Carter v. The City of Montgomery et al (JOINT ASSIGN)
Court Docket Sheet

Middle District of Alabama

2:2015-cv-00555 (almd)

ANSWER to [18] Amended Complaint, by Correctional Healthcare Companies, Inc., Judicial Correctional Services, Inc.

Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 1 of 64 IN THE UNITED STATED DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA ALDARESS CARTER, individually,) and on behalf of a class of all others) similarly situated,)) Plaintiffs,)) v.) Case No. 2:15-CV-0555-RCL) THE CITY OF MONTGOMERY;) BRANCH D. KLOESS;) JUDICIAL CORRECTION SERVICES,) INC.; a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC.;) a corporation; and CHC COMPANIES,) INC., a corporation.)) Defendants.) Defendants Judicial Corrections Services and Correctional Healthcare Companies’ Answer to the First Amended and Restated Complaint (Doc. 18) Defendants Judicial Correction Services ("JCS") and Correctional Healthcare Companies ("Correctional Healthcare") hereby answer the First Amended and Restated Complaint. In asserting the following defenses, JCS and Correctional Healthcare do not assume any burden of proof that would otherwise be imposed on the Plaintiff or the proposed class of plaintiffs. 1 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 2 of 64 JCS and Correctional Healthcare respond to the corresponding enumerated paragraphs of the First Amended and Restated Complaint (Doc. 18) (the "Complaint") as follows: Jurisdiction 1. JCS and Correctional Healthcare admit this Court has subject-matter jurisdiction, but they do not agree with all of the bases cited by paragraph 1 of the Complaint and they deny the Plaintiff (or any class) is entitled to any relief under 42 U.S.C. §§ 1983, 1988, or under any other statutory provision or theory of liability. 2. JCS and Correctional Healthcare deny that Plaintiff (or any class) is entitled to declaratory relief under the cited statutes or otherwise. 3. JCS and Correctional Healthcare admit that venue is proper but do not agree with all of the bases cited by the Plaintiff. Parties to the Complaint 4. JCS and Correctional Healthcare are without sufficient information to admit or deny this allegation; therefore it is denied. 5. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; but to the extent a response is due, JCS and Correctional Healthcare deny the allegations in paragraph no. 5 and deny that this case is appropriate for class certification. 2 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 3 of 64 6. JCS and Correctional Healthcare are without sufficient information to admit or deny this allegation; therefore it is denied. 7. JCS and Correctional Healthcare are without sufficient information to admit or deny this allegation; therefore it is denied. 8. Denied. 9. Denied. 10. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations therein. Facts 11. Denied. 12. Denied. 13. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; but to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 13. 14. JCS and Correctional Healthcare admit that JCS operated a for-profit enterprise providing probation services in Alabama, that JCS provided probation services in more than 100 cities and towns in Alabama, and that JCS provided probation services to Montgomery. The remaining allegations of this paragraph are denied. 15. Denied. 3 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 4 of 64 16. Denied. 17. No response is due from JCS or Correctional Healthcare for this paragraph as it is a legal conclusion; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 17. 18. JCS and Correctional Healthcare admit that paragraph no. 18 quotes a part of the agreement between JCS and Montgomery. 19. JCS and Correctional Healthcare admit that the agreement was approved and that JCS provided services to Montgomery under the agreement for a period of time. JCS and Correctional Healthcare are without sufficient information to admit or deny the additional allegations of paragraph no. 19; therefore those allegations are denied. 20. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 20. 21. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 21. 22. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 22. 4 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 5 of 64 23. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 23. 24. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 24. 25. Denied. 26. Denied. 27. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 27. 28. JCS and Correctional Healthcare admit that JCS employees attend municipal court sessions, that the JCS employees are sometimes referred to as probation officers, and that the offenders placed on probation under JCS’s supervision were directed to pay JCS directly. The remaining allegations of paragraph no 28 are denied. 29. Denied. 30. Denied. 31. Denied. 5 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 6 of 64 32. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 32. 33. Denied. 34. Denied. 35. Denied. 36. Denied. 37. Denied. 38. JCS admits that it is not responsible for determining whether an individual is legally indigent. JCS and Correctional Healthcare deny the remaining allegations in this paragraph. 39. Denied. 40. Denied. 41. Denied. 42. Denied. 43. Denied. 44. Denied. 45. Denied. 46. JCS admits that it provided services to the Montgomery Municipal Court. JCS and Correctional Healthcare deny the remaining allegations in this paragraph. 6 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 7 of 64 47. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 47. 48. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 48. 49. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 49. 50. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 50. 51. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 51. 52. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 52. 53. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 53. 7 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 8 of 64 54. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 54. 55. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 55. 56. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 56. 57. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 57. 58. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 58. 59. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 59. 60. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 60. 8 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 9 of 64 61. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 61. 62. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 62. 63. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 63. 64. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 64. 65. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 65. 66. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 66. 67. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 67. 9 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 10 of 64 68. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 68. 69. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 69. The Plaintiff 70. JCS admits that the Plaintiff was assigned to JCS under a probation order issued by the Montgomery Municipal Court. JCS and Correctional Healthcare deny the remaining allegations of paragraph no. 70 and particularly deny that Plaintiff’s claims should be certified as a class action. Aldaress Carter 71. JCS and Correctional Healthcare admit that Aldaress Carter is over the age of 19 and that he at least at one time lived in Montgomery, Alabama. 72. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 10 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 11 of 64 73. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 74. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 75. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 76. Denied. 77. JCS admits that Carter was ordered by the Montgomery Municipal Court to probation under the supervision of JCS in 2011, that the Montgomery Municipal Court set the terms of probation, and that the probation order entered by the court required Carter to pay a probation fee of $40 per month to JCS. The remaining allegations of this paragraph are denied. 78. JCS and Correctional Healthcare are without sufficient information to admit or deny these allegations; therefore the allegations of paragraph no. 78 are denied. 11 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 12 of 64 79. JCS and Correctional Healthcare are without sufficient information to admit or deny these allegations; therefore the allegations of paragraph no. 79 are denied. 80. JCS admits that it sent Carter a letter dated March 29, 2012, to the address that Carter told JCS was the address where he receives mail. JCS admits that it received a return of the letter marked "return to sender" and that it was scanned into its files. The remaining allegations of this paragraph are denied. 81. JCS admits that it sent Carter correspondence to the address that Carter told JCS was the address where he receives mail. JCS admits that it received a returned letter that was noted as being received on April 23, 2013, and that returned letter was scanned into JCS’s electronic file. The remaining allegations of this paragraph are denied. 82. JCS admits that it reported Carter’s non-compliance with the terms of his court-ordered probation as was required by JCS’s contract with Montgomery. The remaining allegations of this paragraph are denied. 83. Denied. 84. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 12 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 13 of 64 85. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 86. Denied. 87. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 88. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 89. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 90. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 91. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 13 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 14 of 64 92. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 93. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 94. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 95. Denied. 96. Denied. 97. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 98. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 99. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 14 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 15 of 64 100. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 101. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. Plaintiff’s Class Allegations 102. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 103. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 104. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the 15 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 16 of 64 allegations in this paragraph and deny that this case is appropriate for class certification. 105. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 106. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 107. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 108. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the 16 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 17 of 64 allegations in this paragraph (including all subparagraphs) and deny that this case is appropriate for class certification. 109. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 110. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. 111. No response is due from JCS or Correctional Healthcare to the alleged classes the individual Plaintiff seeks to represent; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations in this paragraph and deny that this case is appropriate for class certification. Count One Denial of Due Process Against the City of Montgomery and Kloess JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 17 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 18 of 64 112. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 112. 113. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 113. 114. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare admit that paragraph no. 114 quotes a part of the agreement between JCS and Montgomery and deny the other allegations of paragraph no. 114. 115. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 115. 116. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 116. 117. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 117. 18 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 19 of 64 118. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 118. 119. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 119. 120. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 120. 121. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 121. 122. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 122. 123. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 123. 124. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 124. 19 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 20 of 64 125. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 125. 126. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 126. 127. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 127. 128. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 128. 129. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 129. 130. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 130. 131. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 131. 20 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 21 of 64 132. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 132. 133. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 133. 134. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 134. 135. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 135. 136. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 136. 137. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 137. 138. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 138. 21 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 22 of 64 139. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 139. 140. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 140. 141. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 141. 142. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 142. 143. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 143. 144. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 144. 145. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 145. 22 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 23 of 64 146. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 146. 147. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 147. 148. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 148. Count Two Denial of Due Process Against JCS, Correctional Healthcare, and CHC Companies JCS and Correctional Healthcare incorporate by reference the previous answers and denials of the previous paragraphs as if fully stated herein. 149. Denied. 150. JCS admits that it contracted with numerous cities and towns throughout Alabama, including Montgomery. The remaining allegations in this paragraph are denied. 151. JCS admits that it contracted with numerous cities and towns throughout Alabama. The remaining allegations in this paragraph are denied. 152. Denied. 23 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 24 of 64 153. Denied. 154. JCS and Correctional Healthcare admit that paragraph no. 154 quotes a part of the agreement between JCS and Montgomery. The remaining allegations in this paragraph are denied. 155. Denied. 156. Denied. 157. Denied. 158. Denied. 159. Denied. 160. Denied. 161. Denied. 162. Denied. 163. JCS admits that it had no responsibility to determine indigency. JCS and Correctional Healthcare deny the remaining allegations of this paragraph. 164. Denied. 165. Denied. 166. Denied. 167. Denied. 168. Denied. 169. Denied. 24 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 25 of 64 170. Denied. 171. Denied. 172. Denied. 173. Denied. 174. Denied. 175. Denied. 176. Denied. 177. Denied. 178. Denied. 179. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 180. Denied. 181. Denied. 182. Denied. 183. Denied. 184. Denied. 185. Denied. 186. Denied. 187. Denied. 188. Denied. 25 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 26 of 64 189. This paragraph does not make allegations regarding JCS and does not require a response from JCS; however, to the extent any response is required, the allegations of paragraph no. 189 are denied. 190. Denied. 191. Denied. 192. JCS and Correctional Healthcare deny they had any such "policy and practice at Montgomery," and they are without sufficient information to admit or deny the remaining allegations in this paragraph; therefore those allegations are denied. 193. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 194. Denied. Count Three Violation of the Fourth Amendment by the City of Montgomery JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 195. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 195. 26 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 27 of 64 196. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 196. 197. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 197. 198. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 198. 199. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 199. 200. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no 200. 201. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no 201. 202. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no 202. 27 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 28 of 64 203. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no 203. 204. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no 204. 205. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no 205. Count Four Violation of the Fourth Amendment by JCS, Correctional Healthcare, and CHC Companies JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 206. Denied. 207. Denied. 208. Denied. 209. Denied. 210. Denied. 211. Denied. 212. Denied. 28 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 29 of 64 213. Denied. 214. Denied. 215. Denied. 216. Denied. Count Five Violation of the Sixth Amendment by City of Montgomery JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 217. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 217. 218. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 218. 219. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 219. 220. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 220. 29 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 30 of 64 221. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 221. 222. No response is due from JCS or Correctional Healthcare to the allegations in paragraph no. 222; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 222. 223. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 223. 224. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 224. 225. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 225. 226. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 226. 227. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 227. 30 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 31 of 64 228. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 228. 229. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 229. 230. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 230. 231. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 231. 232. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 232. 233. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 233. 31 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 32 of 64 Count Six Violation of the Sixth Amendment by JCS, Correctional Healthcare, and CHC Companies JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 234. Denied. 235. Denied. 236. Denied. 237. Denied. 238. Denied. 239. Denied. 240. JCS admits that it had no responsibility to determine indigency. JCS and Correctional Healthcare deny the remaining allegations of this paragraph. 241. Denied. 242. Denied. 243. Denied. 244. Denied. 245. Denied. 246. Denied. 247. Denied. 248. Denied. 32 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 33 of 64 249. JCS and Correctional Healthcare are without sufficient information to admit or deny the allegations in this paragraph; therefore they are denied. 250. Denied. 251. Denied. Count Seven Violation of the Eighth Amendment by City of Montgomery JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 252. No response is due from JCS or Correctional Healthcare to the allegations contained in paragraph no. 252; however to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 252. 253. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 253. 254. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 254. 33 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 34 of 64 255. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 255. 256. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 256. 257. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 257. 258. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 258. 259. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 259. 260. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 260. 261. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 261. 34 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 35 of 64 262. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 262. 263. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 263. 264. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph. 265. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 265. 266. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph 266. Count Eight Violation of the Eighth Amendment by JCS, Correctional Healthcare, and CHC Companies JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 267. Denied. 268. Denied. 35 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 36 of 64 269. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent this paragraph implies that JCS or Correctional Healthcare violated the Eight Amendment, JCS and Correctional Healthcare deny the allegations of this paragraph. 270. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 270. 271. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 271. 272. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 272. 273. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 273. 274. Denied. 275. Denied. 276. Denied. 277. Denied. 278. Denied. 36 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 37 of 64 279. Denied. 280. Denied. 281. Denied. 282. Denied. Count Nine Denial of Equal Protection by City of Montgomery JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 283. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 283. 284. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 284. 285. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 285. 286. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 286. 37 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 38 of 64 287. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 287. 288. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 288. 289. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 289. 290. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 290. 291. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 291. 292. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 292. 293. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 293. 38 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 39 of 64 294. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 294. Count Ten Denial of Equal Protection by JCS, Correctional Healthcare, and CHC Companies JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 295. Denied. 296. Denied. 297. Denied. 298. Denied. 299. Denied. 300. Denied. 301. Denied. 302. Denied. 303. Denied. 304. Denied. 305. Denied. 306. Denied. 307. Denied. 308. Denied. 39 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 40 of 64 Counts Eleven, Twelve, Thirteen, and Fourteen 309–405. The Court dismissed Counts Eleven through Fourteen of Plaintiff’s First Amended Complaint. (Docs. 97, 98.) Therefore, no response is due from JCS and Correctional Healthcare to the allegations in paragraphs 309 through 405. Count Fifteen Declaratory and Injunctive Relief JCS and Correctional Healthcare incorporate by reference the previous responses and denials of the previous paragraphs as if fully stated herein. 406. Denied. 407. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 407. 408. Denied. 409. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 409. 410. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 410. 411. Denied. 40 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 41 of 64 412. Denied. 413. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 413. 414. Denied. 415. Denied. 416. Denied. 417. Denied. 418. Denied. 419. Denied. 420. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 420. 421. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 421. 422. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 422. 41 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 42 of 64 423. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 423. 424. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 424. 425. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 425. 426. No response is due from JCS or Correctional Healthcare to the allegations in this paragraph; however, to the extent a response is due, JCS and Correctional Healthcare deny the allegations of paragraph no. 426. JCS and Correctional Healthcare deny that Plaintiffs are entitled to any relief requested in the request for relief following paragraph no. 426 or otherwise sought in the First Amended and Restated Complaint. JCS and Correctional Healthcare demand a judgment in their favor on all counts of the Plaintiff’s First Amended and Restated Complaint. 42 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 43 of 64 General Denial JCS and Correctional Healthcare deny any factual, legal, or mixed allegations in the First Amended and Restated Complaint not specifically admitted in this Answer. Defenses First Defense Some or all of the counts in the First Amended and Restated Complaint fail to state a claim upon which relief can be granted. Second Defense Some or all of the claims in the First Amended and Restated Complaint are barred by the applicable statute of limitations. Third Defense Plaintiff’s claims are moot, are not ripe, or fail for lack of justiciable controversy. Fourth Defense JCS and Correctional Healthcare dispute each and every item of damages and relief claimed in the First Amended and Restated Complaint and demand strict proof thereof. 43 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 44 of 64 Fifth Defense JCS and Correctional Healthcare owed no legal duty to the Plaintiff or purported class members under common law, statutes, or the Constitutions of the United States and the State of Alabama. Sixth Defense The First Amended and Restated Complaint fails to state a claim upon which relief can be granted for punitive damages. Seventh Defense To the extent that Plaintiff pleads state-law claims, JCS and Correctional Healthcare plead that the Plaintiff failed to file a Notice of Claim and Demand as required by Alabama Code §1-47-23 and §11-47-192. Eighth Defense The defenses of release, waiver, ratification, estoppel, judicial estoppel, in pari delicto, payment, collateral estoppel, res judicata, and accord and satisfaction bar Plaintiff’s claims and the class-action claims. Ninth Defense The defenses of laches and acquiescence bar Plaintiff’s claims and the class-action claims. 44 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 45 of 64 Tenth Defense The defenses of set-off and recoupment bar Plaintiff’s claims and the class-action claims. Eleventh Defense The doctrine of unclean hands bars Plaintiff’s claims and the class-action claims. Twelfth Defense Plaintiff has failed to join indispensable parties, including, but not limited to, the State of Alabama. Thirteenth Defense The Court lacks subject-matter jurisdiction. Fourteenth Defense Plaintiff’s claims are barred by the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Fifteenth Defense JCS and Correctional Healthcare plead all available doctrines of immunity, including but not limited to absolute quasi-judicial immunity and qualified immunity. Sixteenth Defense JCS and Correctional Healthcare deny that the facts of this case reach the threshold for the imposition of punitive damages. Furthermore, with 45 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 46 of 64 regard to the claim for punitive damages, JCS and Correctional Healthcare plead the following: (a) Plaintiff has failed to present a valid claim for the recovery of punitive damages, and JCS and Correctional Healthcare deny any conduct that could warrant the submission of the issue of punitive damages to a jury or the imposition of punitive damages; (b) Plaintiff’s and the purported class members’ claims for punitive damages violate JCS’s and Correctional Healthcare’s right to equal process and due process of laws under the 5th and 14th Amendments to the Constitution of the United States; (c) Any award of punitive damages in this case would be in violation of the constitutional safeguards provided to the defendant under the Constitution of the United States of America and, to the extent based on state law, the Constitution of the State of Alabama. (d) No punitive damages are warranted or allowable that would exceed comparable maximums established for criminal fines. (e) Punitive damages cannot be sustained because of the lack of clarity in standards for awarding punitive damages. (f) Any claim for punitive damages, on its face and/or as applied in this case, is in violation of the 5th Amendment to the Constitution of the United States; of the right to counsel provided by the 6th 46 Amendment to the Constitution of the United States; of the right to trial by jury of the 7th Amendment to the Constitution of the United States; of the proportionality principles contained in the 8th Amendment to the Constitution of the United States; the due process clause of the 14th Amendment to the Constitution of the United States; and (to the extent Plaintiff seeks punitive damages based on state law) Article 1, Sections 1, 2, 6, 11, 13, 15, 27, and 35 of the Constitution of the State of Alabama of 1901, and is improper under the common law and public policies of the State of Alabama and under applicable court rules and statutes for the following reasons, jointly and separately: (i) There are no standards provided by law for the imposition of punitive damages and, therefore, the Defendants have not been put on notice and given the opportunity to anticipate punitive liability and/or the potential size of the award and to modify or conform its conduct accordingly; (ii) The procedures to be followed would permit an award of punitive damages against the Defendants upon the satisfaction of a burden of persuasion (standard of proof) less than that applicable to the imposition of criminal sanctions for equal culpability; 47 (iii) The procedures to be followed could permit the award of multiple punitive damages for the same act or omission; (iv) There are no provisions or standards for clear and consistent appellate review of any award of punitive damages against the Defendants under present law; (v) The standards of conduct upon which punitive damages are sought against the Defendants are vague and ambiguous; (vi) The procedures used by courts and the guidelines given to the jurors, jointly and severally, are vague and ambiguous; (vii) The procedures used by courts and the guidelines given to the jurors, jointly and severally, are vague and ambiguous and, therefore, impermissibly allow jurors broad, unlimited, and undefined power to make determinations on their notions of what the law should be instead of what it is; (viii) The procedures under which punitive damages are awarded and the instructions used, jointly and severally, are vague and ambiguous and, therefore, fail to eliminate the effects of, and to guard against, impermissible juror passion and prejudice; (ix) Present law does not provide for sufficiently objective and specific standards to be used by the jury in its deliberations 48 on whether to award punitive damages and, if so, on the amount to be awarded; (x) Present law does not provide a meaningful opportunity for challenging the rational basis for, and any excessiveness of, any award of punitive damages; (xi) Present law does not provide for adequate and independent review by the trial court and the appellate court of the imposition of punitive damages by a jury or of the amount of any punitive damages awarded by a jury; (xii) Present procedures fail to provide a constitutionally reasonable limit on the amount of any punitive damages award against the defendant; (xiii) Present procedures may permit the admission of evidence relative to punitive damages in the same proceeding during which liability is determined; (xiv) Present procedures permit the imposition of joint and several judgments against multiple co-defendants for different acts or degrees of wrongdoing or culpability; and (xv) An award of punitive damages would compensate Plaintiff or a purported plaintiff class for elements of damage not otherwise recognized under law. 49 (g) To the extent Plaintiff seeks punitive damages based on state law, Plaintiff’s and the purported class members’ claims for the recovery of punitive damages are barred by Ala. Code §§ 6-11-20 et seq., and § 11-93-2. (h) To the extent Plaintiff seeks punitive damages based on state law, Plaintiff’s and the purported class members’ claims for the recovery of punitive damages are barred by Ala. Code § 6-11-27. (i) Plaintiff’s and the purported class members’ claims for the recovery of punitive damages are in contravention of JCS’s and Correctional Healthcare’s rights under each of the following constitutional provisions: (i) Article I, Section 8 of the United States Constitution, as an impermissible burden on interstate commerce; (ii) The Contracts Clause of Article I, Section 10 of the United States Constitution; (iii) The Due Process Clause of the 5th and 14th Amendments to the United States Constitution; (iv) The Equal Protection Clause of the 14th Amendment to the United States Constitution; (v) The constitutional prohibition against vague and overbroad laws; 50 (vi) The prohibition against ex post facto laws in Article I, Section 22 of the Alabama Constitution; (vii) To the extent Plaintiff seeks punitive damages based on state law, the Contracts Clause of Article I, Section 22 of the Alabama Constitution; and (viii) To the extent Plaintiff seeks punitive damages based on state law, the Due Process Clause of Article I, Section 6 and/or 13 of the Alabama Constitution. (j) An award of punitive damages in this circumstances of this case would clearly be violative of JCS’s and Correctional Healthcare’s due process rights as embraced by the 5th and 14th Amendments to the United States Constitution and, to the extent Plaintiff seeks punitive damages based on state law, by the due process clause of Article I, Section 6 and/or 13 of the Alabama Constitution, jointly and separately, as such award would constitute a deprivation of property without due process of law for the following reasons: (i) There is no rational relationship between the punitive damages awards and the wrongfulness of a defendant’s conduct and/or the compensatory damages awarded; 51 (ii) No rational relationship exists between the extent of punitive damages and legitimate interests to be advanced by the government; (iii) An award of punitive damages in this case would be penal in nature and, therefore, would be violative of JCS’s and Correctional Healthcare’s constitutional rights under the United States Constitution and/or the Alabama Constitution unless JCS and Correctional Healthcare are granted the procedural safeguards afforded criminal defendants including, but not limited to, constitutional safeguards against self-incrimination and a heightened standard of proof beyond a reasonable doubt; (iv) The award of punitive damages on the basis of vicarious liability for the conduct of others violates JCS’s and Correctional Healthcare’s constitutional rights. (k) The imposition of punitive damages in this case would be in denial of JCS’s and Correctional Healthcare’s right to equal protection of the laws as guaranteed by the 14th Amendment to the United States Constitution and Article I, Sections 1, 6, and 22 of the Alabama Constitution. Specifically, JCS and Correctional Healthcare are treated differently from criminal defendants who are charged for similar or identical culpability. Alternatively, the absence of adequate and 52 objective standards for guiding in the assessment of punitive damages fails to insure the equality of treatment between and among similarly situated civil defendants. (l) The assessment of punitive damages in this action would violate the Commerce Clause of Article I, Section 8 of the United States Constitution. (m) To the extent Plaintiff seeks punitive damages based on state law, the imposition of punitive damages in this action would violate JCS’s and Correctional Healthcare’s rights under Article I, Section 22 of the Alabama Constitution in that it would impair the contractual obligations of parties to this litigation. (n) With respect to Plaintiff’s demand for punitive damages, JCS and Correctional Healthcare specifically incorporate by reference any and all standards or limitations regarding the determination or enforceability of punitive damages awards which arose in the decision of BMW of North America v. Gore, 116 U.S. 1589 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 121 S. Ct. 1678 (2001); State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003); and Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007). (o) To the extent that Plaintiff’s demand for punitive damages may result in multiple punitive damages awards being assessed for the 53 same act or omission against JCS or Correctional Healthcare, this award contravenes JCS’s and Correctional Healthcare’s right to due process. In addition, such awards would infringe upon JCS’s and Correctional Healthcare’s rights against double jeopardy insured by the 5th Amendment of the United States Constitution and/or Article I, Section 9 of the Alabama Constitution. (p) The procedures pursuant to which punitive damages are awarded subject civil defendants to punishment for the conduct of others through vicarious liability or through non-apportionment of damages among joint tortfeasors, in violation of the 5th and 14th Amendments to the United States Constitution and Article I, Sections 1 and 6 of the Alabama Constitution. (q) The procedures pursuant to which punitive damages are awarded expose civil defendants to the risk of undefinable, unlimited liability unrelated to actual loss, if any, caused by their conduct, creating a chilling effect on said defendant’s exercise of the right to a judicial resolution of this dispute. (r) To the extent Plaintiff seeks punitive damages based on state law, Plaintiff’s and the purported class members’ claims for punitive damages is limited by the cap imposed by Ala. Code § 6-11-21. Allowing 54 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 55 of 64 an award in excess of this legislative cap would directly contravene the express public policy of the State of Alabama. Seventeenth Defense Plaintiff’s and the purported class members’ claims are barred in whole or in part because they have failed to mitigate their alleged damages. Eighteenth Defense Each and every action taken by JCS or Correctional Healthcare, separately and severely, was taken in the good faith belief that the same was legal and lawful at the time so taken. Nineteenth Defense Plaintiff and the purported class members have failed to exhaust their state court and administrative remedies. Twentieth Defense JCS and Correctional Healthcare deny that they violated Plaintiff’s or the purported class members’ rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Twenty-First Defense JCS and Correctional Healthcare deny that they breached any duty owed to Plaintiff or the purported class members. 55 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 56 of 64 Twenty-Second Defense JCS’s and Correctional Healthcare’s actions or inactions are not the proximate cause of Plaintiff’s or the purported class members’ alleged damages. Twenty-Third Defense Plaintiff and the purported class members have no clear right to the relief sought in the First Amended and Restated Complaint. Twenty-Fourth Defense Plaintiff and the purported class members have failed to show the likelihood of irreparable harm. Twenty-Fifth Defense The issuance of an injunction would not serve the public interest. Twenty-Sixth Defense Plaintiff and the purported class members have failed to do equity. Twenty-Seventh Defense Plaintiff has failed to meet conditions precedent to bring this lawsuit. Twenty-Eighth Defense There is no affirmative link or causal connection between any of JCS’s or Correctional Healthcare’s alleged policies, customs, or practices and Plaintiff’s and the purported class members’ alleged injuries or damages. 56 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 57 of 64 Twenty-Ninth Defense This action may not be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Thirtieth Defense Plaintiff and the purported class cannot satisfy the prerequisites for class certification and therefore cannot represent the interest of others. Thirty-First Defense Plaintiff lacks standing to assert some or all of their claims or Plaintiff is not the real party in interest Thirty-Second Defense This lawsuit cannot be maintained as a class action because individual questions of law and fact predominate, including, but not limited to, each person’s alleged damages are different and subject to different defenses and mitigating circumstances. Thirty-Third Defense JCS and Correctional Healthcare deny that the claims of the members of the proposed class are so numerous as to make it impracticable to bring them all before the Court in one lawsuit. Thirty-Forth Defense Plaintiff is not similarly situated to the other potential members of the alleged putative class they purport to represent and thus, are inadequate 57 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 58 of 64 representatives of the alleged putative class. Furthermore, Plaintiff’s counsel will not adequately represent the alleged putative class. Thirty-Fifth Defense Certain interests of the alleged putative class are in conflict with and antagonistic to the interests of all or certain subgroups of the members of the putative class. Thirty-Sixth Defense JCS and Correctional Healthcare deny that a class action is superior to all available methods for a fair and efficient adjudication of this controversy. Thirty-Seventh Defense This lawsuit is not manageable as a class action. Thirty-Eighth Defense JCS and Correctional Healthcare deny that there are common questions of law and fact affecting members of the purported class. Thirty-Ninth Defense Certification of a class, as applied to the facts and circumstances of this case, would constitute a denial of JCS’s and Correctional Healthcare’s due process rights, both substantive and procedural, in violation of the Fourteenth Amendment of the United States Constitution and the Alabama Constitution of 1901. 58 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 59 of 64 Fortieth Defense Heck v. Humphrey, 512 U.S. 477 (1984), bars Plaintiff’s claims. Forty-First Defense JCS and Correctional Healthcare plead all available affirmative defenses contained in 42 U.S.C. § 1997(e) and the limitation on attorneys’ fees contained in that section. Forty-Second Defense The voluntary payment doctrine bars Plaintiff’s claims and the class-action claims. Forty-Third Defense Plaintiff and the purported class members’ cannot prove the elements of any of their claims. Forty-Fourth Defense Plaintiff’s and the purported class members’ claims are barred in whole or in part by consent. Forty-Fifth Defense Plaintiff and the purported class members either pleaded or were found guilty of all offenses leading to their probation; therefore, any of Plaintiff’s and the purported class members’ claims originating from facts or circumstances related to their probation lack merit and are barred. 59 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 60 of 64 Forty-Sixth Defense Plaintiff’s and the purported class members’ injuries, if any, were caused solely by acts or omissions of persons or entities other than JCS or Correctional Healthcare, who are not and were not employees or agents of JCS or Correctional Healthcare, for whose acts or omissions JCS or Correctional Healthcare are not responsible and which did not occur in connection with direct or indirect contractual relationship with JCS or Correctional Healthcare. At all times, JCS and Correctional Healthcare exercised due care and took precaution against foreseeable acts and omissions of third parties. Forty-Seventh Defense JCS and Correctional Healthcare deny that the claims of the individual Plaintiff are typical of the claims of the proposed class and that the defenses to the action are also on grounds generally applicable to the proposed class. Forty-Eighth Defense Plaintiff willfully failed to comply with the terms of probation, even when able to do so. 60 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 61 of 64 Forty-Ninth Defense The First Amended and Restated Complaint makes vague, conclusory, and extraneous allegations, which are barred under Ashcroft v. Iqbal, 556 U.S. 678 (2009). Fiftieth Defense Plaintiff’s claims are barred by the Rooker-Feldman doctrine. Fifty-First Defense Plaintiff’s claims for injunctive relief in ongoing matters are barred by the exclusive federal remedy of habeas corpus. Fifty-Second Defense Plaintiff’s claims for prospective injunctive relief would constitute an intrusive, unworkable, and ongoing interference by this Court with state court criminal proceedings and would violate principles of comity and federalism. Fifty-Third Defense The contract between JCS and Montgomery is valid under Alabama law. Fifty-Fourth Defense Plaintiff’s and the purported class members’ claims are barred by the rule against double recovery. 61 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 62 of 64 Fifty-Fifth Defense JCS and Correctional Healthcare adopt and incorporate by reference, as if fully set forth herein, all defenses (including affirmative defenses) asserted by the City of Montgomery, Alabama, to the extent that those defenses are not inconsistent with the answers, denials, and defenses asserted by JCS or Correctional Healthcare. Fifty-Sixth Defense JCS and Correctional Healthcare reserve the right to amend this Answer as discovery proceeds in this case. Request for Relief JCS and Correctional Healthcare request relief as follows: 1. That the First Amended and Restated Complaint be dismissed in its entirety with prejudice; 2. That judgment be entered in favor of JCS and Correctional Healthcare; 3. That JCS and Correctional Healthcare be awarded attorneys’ fees and cost in defending this case; and 4. That JCS and Correctional Healthcare be awarded any other, different relief to which they are entitled. 62 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 63 of 64 Respectfully submitted on March 24, 2017. s/Michael L. Jackson Larry S. Logsdon Michael L. Jackson Wesley K. Winborn llogsdon@wallacejordan.com mjackson@wallacejordan.com wwinborn@wallacejordan.com Of Counsel: Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 (205) 870-0555 Wilson F. Green wgreen@fleenorgreen.com Of Counsel: Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 (205) 722-1018 Attorneys for Defendants Judicial Corrections Services and Correctional Healthcare Companies 63 Case 2:15-cv-00555-RCL-WC Document 100 Filed 03/24/17 Page 64 of 64 Certificate of Service I certify that on March 24, 2017, I served a copy of the foregoing Answer on all counsel by the Court=s CM/ECF electronic-filing system as follows: William M. Dawson, Jr., Esq. Shannon Holliday, Esq. Attorney at Law Robert D. Segall, Esq. 2600 Highland Ave., Suite 404 Joel Caldwell, Esq. Birmingham, AL 35205 Copeland, Franco, Screws & Gill P.A. bill@billdawsonlaw.com P.O. Box 347 Montgomery, AL 36101-0347 G. Daniel Evans, Esq. caldwell@copelandfranco.com Alexandria Parrish, Esq. segall@copelandfranco.com Maurine C. Evans, Esq. holliday@copelandfranco.com The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 F. Lane Finch Jr., Esq. Birmingham, AL 35209 Brian C. Richardson, Esq. gdevans@evanslawpc.com Swift, Currie, McGhee & Hiers, LLP ap@evanslawpc.com 2 North 20th Street, Suite 1405 me@evanslawpc.com Birmingham, AL 35203 lane.finch@swiftcurrie.com Michael S. Jackson, Esq. brian.richardson@swiftcurrie.com Webster, Henry, Lyons, Bradwell, Cohan & Black PC P.O. Box 239 Montgomery, AL 36101 mjackson@websterhenry.com s/Michael L. Jackson Michael L. Jackson mjackson@wallacejordan.com 64

ANSWER to Complaint [Dft Branch D. Kloess's Answer to Plaintiff's First Amended and Restated Complaint (Doc 18)] by Branch D. Kloess.

Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA ALDARESS CARTER, individually,) and on behalf of a class of all others) similarly situated,)) Plaintiffs,)) v.) Case No. 2:15-cv-555-RCL) THE CITY OF MONTGOMERY;) BRANCH D. KLOESS;) JUDICIAL CORRECTION SERVICES,) INC.; a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC.;) a corporation; and CHC COMPANIES,) INC., a corporation.)) Defendants.) ANSWER OF DEFENDANT BRANCH D. KLOESS COMES NOW, Branch D. Kloess (hereinafter "Kloess"), Defendant in the above-styled case, and files this Answer to Plaintiffs’ First Amended and Restated Complaint as follows: JURISDICTION 1. Kloess denies that the Court has subject matter jurisdiction over him. Kloess was not a "state actor" and was not acting under color of state law when he represented clients in the City of Montgomery Municipal Court. At the most the Restated and Amended Complaint alleges a legal malpractice claim against Kloess, which claim is a purely state law claim and the Court has no subject matter jurisdiction over the claim made against Kloess. 2. No response is required of this defendant as to the type of claim the Plaintiff seeks to assert. To the extent any response is required, the allegations of this paragraph are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 2 of 24 3. If the Court has subject matter jurisdiction over the claims made against Kloess in this matter, it is admitted that venue in this judicial district is proper. However, Kloess contends that the Court has no subject matter jurisdiction over the claims made against him. PARTIES TO THE COMPLAINT 4. Kloess lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph. 5. Kloess admits that the Plaintiff brings this claim individually and as a purported class action seeking damages as well as declaratory and injunctive relief. Kloess denies that the Plaintiff represents a class of similarly situated people and denies that this case is appropriate for class certification. 6. It is admitted that the City is a municipal corporation located within Montgomery County, Alabama. It is denied that the Mayor "hires" the municipal court judges or the public defenders, and that the Mayor or City Council has authority over the actions of the Municipal Court, its judges or the public defenders. It is further denied that the Mayor contracted with JCS to collect its municipal court fines. 7. It is admitted that Branch D. Kloess is an individual and a licensed attorney located within Montgomery County and that he contracted with the City of Montgomery to provide legal representation to defendants in municipal court, the terms of which speak for itself. The remaining allegations of this paragraph are denied. 8. It is admitted that JCS was doing business in the State of Alabama and in this District. All other allegations of this paragraph are denied. 9. Kloess lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 3 of 24 10. Kloess lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph. FACTS 11. Denied. 12. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 13. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 14. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 15. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 16. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 17. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 4 of 24 18. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 19. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 20. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 21. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 22. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 23. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 24. The terms of the contract between the City and Kloess speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 5 of 24 25. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 26. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 27. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 28. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 29. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 30. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 31. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 6 of 24 32. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 33. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 34. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 35. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 36. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 37. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 38. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 39. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 7 of 24 40. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 41. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 42. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 43. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 44. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 45. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 46. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 8 of 24 47. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 48. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 49. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 50. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 51. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 52. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 53. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 9 of 24 54. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 55. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 56. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 57. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 58. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 59. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 60. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 10 of 24 61. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 62. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 63. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 64. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 65. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 66. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 67. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 11 of 24 68. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 69. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 70. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 71. Kloess lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph. 72. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 73. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 74. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 75. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 12 of 24 76. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 77. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 78. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 79. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 80. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 81. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 82. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 13 of 24 83. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 84. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 85. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 86. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 87. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 88. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 89. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 90. Denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 14 of 24 91. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 92. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 93. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 94. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 95. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 96. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 97. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 98. Denied. 99. Denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 15 of 24 100. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 101. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. PLAINTIFF’S CLASS ALLEGATIONS 102. Kloess denies that the Plaintiff represents any class of similarly situated people and further denies that this case is appropriate for class certification. 103. Denied. 104. Denied. 105. Denied. 106. Denied. 107. Denied. 108. Denied. 109. Denied. 110. Denied. 111. Denied. COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS Kloess incorporates by reference his answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 16 of 24 112. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 113. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 114. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 115. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 116. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 117. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 118. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 17 of 24 119. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 120. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 121. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 122. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 123. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 124. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 125. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 18 of 24 126. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 127. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 128. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 129. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 130. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 131. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 132. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 19 of 24 133. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 134. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 135. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 136. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 137. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 138. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 139. Kloess admits only that he was an independent contractor who agreed to represent certain defendants who appeared in The City of Montgomery Municipal Court. Kloess entered into a contract with the City of Montgomery to provide legal services. The terms and conditions of the contract are the best evidence thereof, and any characterization of the contract by the Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 20 of 24 Plaintiff, and any characterization of Kloess’s scope of representation made by the Plaintiff are denied 140. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 141. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 142. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 143. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 144. Denied. 145. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 146. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 147. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 21 of 24 148. This paragraph contains no allegations against Kloess, and, therefore, requires no responsive pleading from Kloess. To the extent this paragraph could be considered to make allegations against Kloess, the allegations contained in it are denied. 149-429. The remaining allegations of the Restated and Amended Complaint make no allegations against Kloess and require no responsive pleading from Kloess. FIRST AFFIRMATIVE DEFENSE The Court lacks subject matter jurisdiction over Kloess. SECOND AFFIRMATIVE DEFENSE At no time as alleged in the Restated and Amended Complaint was Kloess acting as a "state actor" under color of state law. THIRD AFFIRMATIVE DEFENSE In the alternative only, without waiving his defense that Kloess was not acting under color of state law and was not a "state actor," Kloess contends that if he was acting under color of state law sufficient to be considered a "state actor" that is he is entitled to immunity from Carter’s claims. FOURTH AFFIRMATIVE DEFENSE In the alternative only, without waiving his defense that Kloess was not acting under color of state law and was not a "state actor," Kloess contends that if he was acting under color of state law sufficient to be considered a "state actor" that he is entitled to qualified immunity from Carter’s claims. FIFTH AFFIRMATIVE DEFENSE In the alternative only, without waiving his defense that Kloess was not acting under color of state law and was not a "state actor," Kloess contends that if he was acting under color Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 22 of 24 of state law sufficient to be considered a "state actor" that he is entitled to discretionary function immunity from Carter’s claims. SIXTH AFFIRMATIVE DEFENSE Kloess affirmatively avers that he did not intentionally violate Carter’s constitutional right to due process of law and that none of his conduct regarding Carter is sufficient to impose liability on Kloess pursuant to 42 USC § 1983. SEVENTH AFFIRMATIVE DEFENSE Kloess specifically denies that he failed to adequately represent Carter. EIGHTH AFFIRMATIVE DEFEENSE If Carter appeared before a Municipal Court Judge at The City of Montgomery Municipal Court without Kloess being present to represent him, Carter waived his right to be represented by Counsel and agreed to proceed without counsel being present. NINTH AFFIRMATIVE DEFENSE If Carter appeared before a Municipal Court Judge at The City of Montgomery Municipal Court without Kloess being present to represent him, then there was no attorney client relationship established between Carter and Kloess and Kloess owed Carter no duty of legal representation. TENTH AFFIRMATIVE DEFENSE If Carter’s case was called by a Municipal Court Judge at The City of Montgomery Municipal Court while Kloess was away from the courtroom meeting with other clients and Kloess was not notified that Carter’s case had been called, Kloess was not aware that Carter appeared without counsel before the Court and Kloess pleads a sufficient, intervening cause by Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 23 of 24 others not under his control or agency, which broke any chain of causation between the acts of Kloess and the alleged damage to Carter. Kloess reserves the right to plead additional defenses as they become known in the course of discovery. DONE this the 24th day of March, 2017./s/Micheal S. Jackson MICHEAL S. JACKSON [ASB-8173-O78M] Attorney for Branch D. Kloess WEBSTER, HENRY, LYONS, BRADWELL, COHAN AND SPEAGLE, P.C. 105 Tallapoosa Street, Suite 101 [36104] P. O. Box 239 Montgomery, AL 36101 mjackson@websterhenry.com Case 2:15-cv-00555-RCL-WC Document 101 Filed 03/24/17 Page 24 of 24 CERTIFICATE OF SERVICE I hereby certify that on March 24, 2017, I electronically filed the foregoing ANSWER OF DEFENDANT BRANCH D. KLOESS with the Clerk of the Court using the CM/ECF filing system which will send notification of such filing to the following: William M. Dawson, Jr., Esq. Alexandria Parrish, Esq. Attorney at Law G. Daniel Evans, Esq. 2600 Highland Avenue, Suite 404 Maurine C. Evans, Esq. Birmingham, AL 35205 The Evans Law Firm bill@billdawsonlaw.com 1736 Oxmoor Road, Suite 101 Birmingham, AL 35209 F. Lane Finch Jr., Esq. gdevans@evanslawpc.com Brian C. Richardson, Esq. ap@evanslawpc.com Swift, Currie, McGhee & Hiers, LLP me@evanslawpc.com 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Larry S. Logsdon, Esq. lane.finch@swiftcurrie.com Michael L. Jackson, Esq. brian.richardson@swiftcurrie.com Wesley K. Winborn, Esq. Wallace, Jordan, Ratliff & Shannon L. Holliday, Esq. Brandt, L.L.C. Robert D. Segall, Esq. P.O. Box 530910 Joel Caldwell, Esq. Birmingham, AL 35253 COPELAND, FRANCO, SCREWS mjackson@wallacejordan.com & GILL, P.A. wwinborn@wallacejordan.com P.O. Box 347 Montgomery, AL 36101-0347 holliday@copelandfranco.com segall@copelandfranco.com caldwell@copelandfranco.com Wilson F. Green, Esq. Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, AL 35406 wgreen@fleenorgreen.com/s/Micheal S. Jackson MICHEAL S. JACKSON

Reply to response to order to show cause re [99] Order to Show Cause, PLAINTIFFS RESPONSE TO ORDER TO SHOW CAUSE filed by Aldaress Carter.

Case 2:15-cv-00555-RCL-WC Document 102 Filed 03/24/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) PLAINTIFF’S RESPONSE TO ORDER TO SHOW CAUSE Comes now the Plaintiff in the above-styled cause, by and through undersigned counsel, and in response to this Court’s Order to Show Cause (Doc. 99), states as follows: This Court on March 10, 2017 issued orders and memorandum opinions, both in the above-styled cause and in McCullough v. City of Montgomery, 2:15-cv-463. A review of the order in the McCullough case and its pleadings indicates that Counts I and II were struck, as well as any action against JCS under Count VII, and leaving the other counts and limited claims under Count XIV for money had and received against JCS. The basis of the McCullough case, though arising out of the City of Montgomery’s municipal court practices, includes a number of claims not part of the above-styled cause. While it is true the proposed class definitions in McCullough and in Carter are similar, a review of the McCullough claims, and particularly facts for the proposed class representatives, show that many of the McCullough claims are unrelated to JCS which is the focus of the Carter case. Case 2:15-cv-00555-RCL-WC Document 102 Filed 03/24/17 Page 2 of 6 For instance, unrelated claims in McCullough include claims for peonage, false imprisonment, and other claims which, though arising from the city court or arrests in the city, are predominately for persons never assigned to JCS pursuant to its "probation" contract with the City of Montgomery. Furthermore, a review of the facts for the McCullough representative plaintiffs under the remaining claims show minimum overlap with the Carter litigation. As this Court is well aware, the undersigned counsel are also counsel for the Plaintiffs in Ray v. JCS pending in the Northern District and other similar cases pertaining to JCS operations in Alabama. The Ray case was filed in August of 2012 with claims under § 1983 extending back to August of 2010 and has nearly 600 documents filed of record. A Motion for Class Certification was filed there on August 11, 2016 with an extensive expert report and evidentiary submission. The undersigned Plaintiffs’ counsel for that case has been involved in over 24 depositions, including those of CHC, CCS, JCS, and others. Moreover, electronic discovery and retrieval of the JCS database has involved extensive time, expert consultation, and expense resulting in the production of literally hundreds of thousands of documents contained in the JCS database covering the entire state of Alabama. After numerous conferences and hearings, JCS produced the entire Alabama database of its proprietary software known as ProbationTracker™ which is core to the JCS paperless system. It includes documentation for each person assigned to JCS and scanned documents from the various courts in which JCS operated in Alabama, including the City of Montgomery. The JCS operation in the City of Montgomery encompassed a period from 2009 until July of 2014. Additionally, undersigned counsel has read-only access to the ProbationTracker™ portal. Using this access to those JCS documents, the undersigned counsel has undertaken an investigation of the individual named plaintiffs in the McCullough case in order to discern what overlap exists 2 Case 2:15-cv-00555-RCL-WC Document 102 Filed 03/24/17 Page 3 of 6 between the McCullough plaintiffs’ claims and those of Carter. The JCS data is compiled on each person assigned to JCS by each city court, and includes codes for each city and statuses for jail, warrant, and other matters which are used in the process of collection. The data also includes scanned court documents and a listing of payments made to JCS. From that data, only one of the plaintiffs (Hassam Umar Caldwell) in the McCullough case are shown to have been placed on'warrant’ status after having been placed on JCS, so he is the only McCullough plaintiff that could potentially pursue any possible Fourth Amendment or false imprisonment claims that would relate to JCS. While there may be jailing unrelated to JCS in McCullough, the Carter case pertains only to the City’s joint activity under the JCS system. A review of the JCS documents also indicates that the Plaintiff McCullough never paid JCS any money whatsoever (Exhibit 1 p.3) and that Plaintiffs Adrian Ford, Devron James, and Ashley Scott were never assigned to JCS in any capacity. Christopher Mooney, while on JCS, made his last JCS payment of $250.00 on March 31, 2012 which is beyond the two-year 1983 statute of limitations on the filing of McCullough. (Exhibit 2 p. 5) Similarly, Levon Agee is shown to have made a last payment to JCS on October 28, 2010, again beyond the two-year statute of limitations for McCullough. (Exhibit 3 p.4) The same is also true for Algia Edwards and Kenny Jones who last paid JCS July 1, 2010. (Exhibit 4 pp. 7, 11 & 15) Marquita Jackson was on two separate JCS probations and never paid at all on one, with her last payment on the other being October 19, 2011, again outside the statute of limitations for 1983. (Exhibit 5 pp. 2 & 6) Further, all of the persons back to August of 2010 would be within the putative Ray class. The only named plaintiff in the McCullough case who had actually paid JCS within the two-year time frame of the filing is Hassam Umar Caldwell who paid $50.00 ($10 set up fee & $40 monthly fees) and is similarly covered by the 3 Case 2:15-cv-00555-RCL-WC Document 102 Filed 03/24/17 Page 4 of 6 putative class in Ray. (Exhibit 6 p.3) For these reasons, it appears that the named plaintiffs in McCullough will be unable to make any claims against JCS for claims related to jail time and only limited claims for fees. As a result of this analysis, it appears that the actual overlap between the McCullough claims against JCS and those of Carter is very small. Furthermore, having participated in the Ray case for a number of years and having taken over 24 depositions in that case and analyzed hundreds of thousands of documents included in the databases produced, the undersigned counsel and firm have expended thousands of hours in discovery pertaining to the JCS system statewide, including Montgomery. As a result, the remaining discovery for counsel in Carter will be much more focused than that required in McCullough and will necessarily be directed primarily to Montgomery since the JCS personnel have been largely deposed and the JCS documents concerning the Montgomery operation already produced. McCullough, on the other hand, has done no discovery toward any parties nor even acquired the public documents available for the named plaintiffs, such that the common discovery between these two parties will be limited to only the Montgomery personnel and document production. In light of this analysis, the undersigned counsel believes that though the purported plaintiffs’ classes have common features, the potential for the McCullough stated class to be represented by any of the named plaintiffs seems to be very small. That said, it appears that common discovery between the two cases which will pertain to the City of Montgomery, its personnel, and its documents could afford judicial economy and could be acquired by consolidation for the purposes of the discovery as to that party. To consolidate the cases entirely, however, or for all discovery, would delay the resolution of the matter and unnecessarily impede the progress of the Carter case, adding additional 4 Case 2:15-cv-00555-RCL-WC Document 102 Filed 03/24/17 Page 5 of 6 and repetitive expense to the Carter plaintiffs. Further, having been made aware that McCullough’s counsel, Ms. Morgan, has recently filed a motion to be designated as "Interim Class Counsel," counsel for Carter is required to object. Though it is impossible to discern from the motion what class is proposed or any reason for an interim appointment, there are obvious problems with satisfying the requirements of FRCP 23(g), including the level of development in McCullough, the representatives’ standing, and adequacy issues, among other problems, which all weigh against the motion. RESPECTFULLY SUBMITTED, s/G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Attorneys for The Plaintiff The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com E-Mail: mevans@evanslawpc.com William M. Dawson ASB-3976-S80W Attorney for the Plaintiff Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com 5 Case 2:15-cv-00555-RCL-WC Document 102 Filed 03/24/17 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on the 24th day of March, 2017, I electronically filed the foregoing Plaintiff’s Response to Order to Show Cause with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: Micheal S. Jackson Larry S. Logsdon WEBSTER, HENRY, LYONS, BRADWELL, Michael L. Jackson COHAN & BLACK, P.C. Wesley K. Winborn P. O. Box 239 WALLACE, JORDAN, RATLIFF & Montgomery, AL 36101-0239 BRANDT, LLC P.O. Box 530910 Shannon Holliday Birmingham, AL 35253 Robert D. Segall Joel Caldwell F. Lane Finch, Jr. COPELAND, FRANCO, SCREWS & GILL Brian C. Richardson P. O. Box 347 SWIFT CURRIE MCGHEE & HIERS, LLP Montgomery, AL 36101-0347 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Wilson F. Green Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 s/G. Daniel Evans G. Daniel Evans 6

Exhibit 1 - A McCullough Case file Report

EXHIBIT 1 Document 102-1 Filed 03/24/17 Page 1 of 3 Case 2:15-cv-00555-RCL-WC 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-1 Filed 03/24/17 Page 2 of 3 Modifications Date Notes Detailed Visit Notes Date Notes 1/2/2015 SC: No longer working court HFELIO 1/2/2015 Status Changed to Terminated Modified 5/5/2014 PO Changed from SMARTIN to DHILL by DHILL DHILL 3/29/2011 Petition for Revocation­ Signed ­ EHAWTHORNE 3/25/2011 CFR: RECEIVED PETITION FOR REVOCATION SIGNED BY JUDGE HAYES SMARTIN 2/23/2011 Hearing: Feb 23 2011 1:00PM Type: REVOCATION Location: MONTGMERY COURTHOUSE Entered: Jan 13 2011 10:31AM By SMARTIN Status: No Show 2/23/2011 SC: THE DEFENDANT FAILED TO APPEAR SMARTIN 2/23/2011 Status Changed to Warrant 2/23/2011 CFR: THE DEFENDANT FAILED TO APPEAR FOR HER REVOCATION HEARING PLACING IN WARRANT STATUS SMARTIN 1/13/2011 Petition for Revocation Letter ­ SMARTIN 1/13/2011 VOP Letter ­ SMARTIN CFR: THE DEFENANT FAILED TO REPORT OR MAKE A PAYMENT SINCE BEING PLACED ON PROBATION THE DEFENDANT FAILED TO RESPOND TO PHONE CALLS 1/13/2011 MADE AND TO WRITTEN CORRESPONDANCE SENT THRU THE MAIL THE DEFENDANT OWES $3616 TO THE CITY AND $130 JCS FEES, TOTALLING $3746 PLACED IN SMARTIN VOP AND SET COURT DATE OF 02­23­11@1300 ADDED NOTE THAT THE DEFENDANT MAY PAY $400 BY 02­11­11 TO CANCEL HER HEARING 1/13/2011 SC: The defendant failed to comply with the terms and conditions of probation SMARTIN 1/13/2011 Status Changed to VOP 1/11/2011 T/P: CALLED DEF'S HOME AND LEFT MESSAGE THAT THE DEF MUST REPORT WITH A PAYMENT BY 1630 TOMORROW OR A HEARING WILL BE SET SMARTIN 1/10/2011 You missed your appointment Friday, please call Sara Martin at 334­262­0558 ASAP Thank you Admin 12/30/2010 Delinquency Letter ­ SWEBER 12/30/2010 O/M: DEF HAS FAILED TO REPORT TO THREE+ APPTS IN A ROW SENDING DELINQUENCY LETTER WITH NEW REPORT DATE OF 01/07/11 SWEBER 12/28/2010 This is a reminder of your appt on 12/29/2010 with S Martin of JCS at 10:00am DO NOT REPLY! Admin 12/22/2010 FTR Letter ­ EHAWTHORNE 12/22/2010 CFR: DEF HAS MISSED THREE CONSECUTIVE APPOINTMENTS AND AFTER PO HAS TRIED AND MADE CONTACT­ SENDING FTR LETTER­ NEXT APPOINTMENT EHAWTHORNE 12/29/2010 12/21/2010 You missed your appointment yesterday, please call Sara Martin at 334­262­0558 ASAP Thank you Admin 12/20/2010 Intake Forms ­ EHAWTHORNE 12/19/2010 This is a reminder of your appt on 12/20/2010 with S Martin of JCS at 10:00am DO NOT REPLY! Admin 12/17/2010 You missed your appointment yesterday, please call Sara Martin at 334­262­0558 ASAP Thank you Admin T/P: CALLED DEF'S CELL AND MALE STATED I HAD THE WRONG NUMBER CALLED DEF'S HOME AND SPOKE TO DEF, WHO STATED SHE WILL GET HER FIRST CHECK 12/17/2010 ON THE 31ST TOLD HER WE WILL BE CLOSED FOR THE HOLIDAYS AND I NEED TO COME IN AND AT LEAST REPORT DEF WILL REPORT ON MONDAY NEXT APPT 12­ SMARTIN 20­10@1000 12/15/2010 This is a reminder of your appt on 12/16/2010 with S Martin of JCS at 4:00pm DO NOT REPLY! Admin 12/15/2010 T/P: CALLED DEF'S CELL AND LEFT MESSAGE FOR THE DEFENDANT TO REPORT TO BY 1600 TOMORROW SMARTIN 12/13/2010 This is a reminder of your appt on 12/14/2010 with S Martin of JCS at 2:00pm DO NOT REPLY! Admin 12/13/2010 C/C DEF APPEARED IN COURT AND WAS PLACED ON 24 MONTHS PROBATION DEF WAS ADVISED OF THE TERMS AND CONDITIONS OF BEING PLACED ON FHOOD PROBATION DEF WAS ALSO ADVISED OF THE $200 00 MONTHLY PAYMENT FIRST APPT SCHEDULED 12/14/2010 11/7/2010 Status Changed to Active Appointment Details Date Time Showed Alerts 2/23/2011 RVHR N 1/12/2011 1630 N 1/7/2011 1100 N 12/29/2010 1000 N 12/20/2010 1000 N 12/16/2010 1600 N 12/14/2010 1400 N https://www.judicialservices.com/probationtracker/jcsIndex.asp 2/3 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-1 Filed 03/24/17 Page 3 of 3 Financials Fee Insurance Fines VCF Restitution Court Cost Warrant Fee Other Assessed 960.00 0.00 3,616.00 0.00 0.00 0.00 0.00 10.00 Amt Paid 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 End Bal 960.00 0.00 3,616.00 0.00 0.00 0.00 0.00 10.00 Payments Date Fee Type Amount Note NO COMMUNITY SERVICE ASSIGNED. NO COURT MONEY OBLIGATIONS CONVERTED TO COMMUNITY SERVICE. NO COURT ORDERED PROGRAMS ASSIGNED. NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 3/3

Exhibit 2 - C Mooney Case File Report

EXHIBIT 2 Document 102-2 Filed 03/24/17 Page 1 of 5 Case 2:15-cv-00555-RCL-WC 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-2 Filed 03/24/17 Page 2 of 5 Modifications Date Notes Detailed Visit Notes Date Notes 3/14/2017 Last Payment made on 03/31/2012 1809 Days Ago 8/27/2014 SC: NO LONGER WORKING THIS COURT DHILL 8/27/2014 Status Changed to Terminated Modified 4/1/2013 PO Changed from TIWILLIAMS to PHELLUMS by DHILL DHILL 8/21/2012 Revocation Hearing Order ­ BBURT 7/27/2012 Hearing: Jul 27 2012 8:00AM Type: REVOCATION Location: MONTG MUN Entered: Jun 21 2012 8:04AM By TIWILLIAMS Status: Scheduled 7/27/2012 SC: THE DEFENDANT FAILED TO APPEAR TO SCHEDULED REVOCATION EALLEN 7/27/2012 Status Changed to Warrant 7/27/2012 ********** CASE FILE REVIEW ********** THE DEFENDANT FAILED TO APPEAR TO SCHEDULED REVOCATION HEARING ­ CASE PLACED IN WARRANT STATUS EALLEN 6/21/2012 Petition for Revocation Letter ­ TIWILLIAMS 6/21/2012 Violation Report ­ TIWILLIAMS 6/21/2012 VOP Letter ­ TIWILLIAMS CFR: DEF IS IN VIOLATION OF PROBATION DUE TO OUTSTANDING FINES TO THE CITY OF MONTGOMERY IN THE AMOUNT OF $2739 00 AND $120 IN JCS FEES, 6/21/2012 TOTALING $2859 00 A COURT DATE HAS BEEN SET FOR THE DEF ON 072712 VIOLATION PAPERWORK MAILED TO DEF DEF MAY PAY A MINIMUM OF $800 ONE TIWILLIAMS WEEK PRIOR TO HEARING IN ORDER FOR COURT DATE TO BE CANCELLED 6/21/2012 SC: failed to complete terms TIWILLIAMS 6/21/2012 Status Changed to VOP 6/20/2012 This is a reminder of your appt on 6/21/2012 with T Williams of JCS at 5:02pm DO NOT REPLY! Admin 6/20/2012 You missed your appointment yesterday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 6/19/2012 ******************************************************* PO CAN SET HEARING ******************************************************* DHILL 6/19/2012 CFR: NEEDS HEARING APPROVAL TIWILLIAMS 6/17/2012 This is a reminder of your appt on 6/18/2012 with T Williams of JCS at 5:02pm DO NOT REPLY! Admin 6/10/2012 This is a reminder of your appt on 6/11/2012 with T Williams of JCS at 5:02pm DO NOT REPLY! Admin 6/5/2012 This is a reminder of your appt on 6/6/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 5/30/2012 View of Delinquency Letter ­ TIWILLIAMS 5/30/2012 O/M: DEF HAS MISSED SEVERAL APPTS IN A ROW WILL SEND DEL LETTER WITH REPORTING DATE ON 060612 TIWILLIAMS 5/28/2012 This is a reminder of your appt on 5/29/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 5/24/2012 T/P: CALLED DEF CELL AND LEFT MESSAGE FOR DEF TO REPORT ON 5/29/12 DPEARSON 5/22/2012 This is a reminder of your appt on 5/23/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 5/22/2012 T/P: CALLED DEFS CELL LEFT VOICE MESSAGE INFORMING DEF OF NEXT APPT ON 052312 TIWILLIAMS 5/20/2012 This is a reminder of your appt on 5/21/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 5/14/2012 View of FTR Letter ­ TIWILLIAMS 5/14/2012 O/M: DEF HAS MISSED 4 APPTS WILL SEND FTR LETTER WITH REPORTING DATE ON 052112 TIWILLIAMS 5/10/2012 This is a reminder of your appt on 5/11/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 5/4/2012 O/M: DEF HAS MISSED 3 APPTS WILL SEND FTR LETTER WITH REPORTING DATE ON 051112 TIWILLIAMS 5/2/2012 This is a reminder of your appt on 5/3/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 5/2/2012 T/P: CALLED DEF LEFT VOICE MESSAGE INFORMING DEF OF NEXT APPT ON 050312 TIWILLIAMS 4/30/2012 This is a reminder of your appt on 5/1/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 4/30/2012 T/P: CALLED DEF LEFT VOICE MESSAGE INFORMING DEF OF NEXT APPT ON 050112 TIWILLIAMS 4/27/2012 This is a reminder of your appt on 4/28/2012 with T Williams of JCS at 2:00pm DO NOT REPLY! Admin 3/31/2012 Receipt ­ DHILL 3/31/2012 O/P: DEF REPORTED PD $150 ALL INFO VERIFIED, NO NEW TICKETS OR ARRESTS NEXT APPT 042812 DHILL 3/30/2012 This is a reminder of your appt on 3/31/2012 with T Williams of JCS at 11:00am DO NOT REPLY! Admin https://www.judicialservices.com/probationtracker/jcsIndex.asp 2/5 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-2 Filed 03/24/17 Page 3 of 5 3/23/2012 Manual Receipts ­ KEDWARDS 2/29/2012 Receipt ­ TIWILLIAMS 2/29/2012 CFR: PRINTER WAS DOWN GAVE DEF MAN REC #119237 TIWILLIAMS 2/29/2012 CFR: DEF WILL REPORT ON 033112 TIWILLIAMS 2/29/2012 O/C: DEFS WIFE REPORTED TODAY NO CHANGES PAID $300­ NEXT APPT IS 032912 TIWILLIAMS 2/28/2012 This is a reminder of your appt on 2/29/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 2/28/2012 You missed your appointment yesterday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 2/28/2012 T/P: CALLED DEFS CELL SPOKE TO THE DEF WHO STATED HE COULD REPORT ON 022912 TIWILLIAMS 2/26/2012 This is a reminder of your appt on 2/27/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 2/20/2012 View of FTR Letter ­ TIWILLIAMS 2/20/2012 O/M: DEF HAS MISSED 3 APPTS IN A ROW WILL SEND FTR LETTER WITH REPORTING DATE ON 022712 TIWILLIAMS 2/10/2012 You missed your appointment yesterday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 2/8/2012 This is a reminder of your appt on 2/9/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 2/8/2012 You missed your appointment yesterday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 2/8/2012 T/P: CALLED DEFS CELL SPOKE TO THE DEF WHO STATED HE COULD REPORT ON 020912 TIWILLIAMS 2/6/2012 This is a reminder of your appt on 2/7/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 2/6/2012 You missed your appointment Friday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 2/6/2012 T/P: CALLED DEFS CELL SPOKE TO THE DEF WHO STATED HE COULD REPORT ON 020712 TIWILLIAMS 2/2/2012 This is a reminder of your appt on 2/3/2012 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 1/27/2012 Receipt ­ TIWILLIAMS 1/27/2012 O/P DEF REPORTED TODAY NO CHANGES PAID $40­ NEXT APPT IS 020312 TIWILLIAMS 1/27/2012 T/P: CALLED DEFS CELL SPOKE TO THE DEF WHO STATED HE COULD REPORT ON 013012 TIWILLIAMS 1/25/2012 This is a reminder of your appt on 1/26/2012 with T Williams of JCS at 10:00am DO NOT REPLY! Admin 1/19/2012 Receipt ­ RBRANUM 1/19/2012 O/P DEF REPORTED TODAY NO CHANGES PAID $40­ NEXT APPT IS 012612 RBRANUM 1/18/2012 This is a reminder of your appt on 1/19/2012 with T Williams of JCS at 11:00am DO NOT REPLY! Admin 1/12/2012 Receipt ­ SMARTIN 1/12/2012 O/P: DEF REPORTED ­­ ALL INFORMATION IS THE SAME ­­ STATED HE HAD A NEW TICKET BUT LOST IT ­­ THINKS HE MAY HAVE MISSED THE COURT DATE ­­ GAVE SMARTIN DEF THE COURT NUMBER ­­ DEF PAID $20 TODAY ­­ NEXT APPT 01/19/2012 1/11/2012 This is a reminder of your appt on 1/12/2012 with T Williams of JCS at 11:00am DO NOT REPLY! Admin 1/11/2012 T/P: CALLED DEFS CELL LVM INFORMING DEF OF NEXT APPT ON 011212 TIWILLIAMS 1/9/2012 This is a reminder of your appt on 1/10/2012 with T Williams of JCS at 11:00am DO NOT REPLY! Admin 1/9/2012 T/P: CALLED DEFS CELL LVM INFORMING DEF OF NEXT APPT ON 011012 TIWILLIAMS 1/5/2012 This is a reminder of your appt on 1/6/2012 with T Williams of JCS at 11:00am DO NOT REPLY! Admin 12/29/2011 Receipt ­ TIWILLIAMS 12/29/2011 O/P: DEF REPORTED PD $50 ALL INFO VERIFIED, NO NEW TICKETS OR ARRESTS NEXT APPT 010612 TIWILLIAMS 12/28/2011 T/P: CALLED DEFS CELL LVM INFORMING DEF OF NEXT APPT ON 122911 TIWILLIAMS 12/26/2011 You missed your appointment Friday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 12/22/2011 This is a reminder of your appt on 12/23/2011 with T Williams of JCS at 11:00am DO NOT REPLY! Admin 12/17/2011 Receipt ­ LWILEY 12/17/2011 O/P: DEF REPORTED PD $40 ALL INFO VERIFIED, NO NEW TICKETS OR ARRESTS NEXT APPT 12/23/2011 LWILEY 12/16/2011 This is a reminder of your appt on 12/17/2011 with T Williams of JCS at 11:00am DO NOT REPLY! Admin 12/9/2011 Receipt ­ SMARTIN 12/9/2011 O/P: DEF REPORTED ­­ NO CHANGES ­­ NO TICKET ­­ DEF PAID $20 TODAY ­­ NEXT APPT 12/17/2011 SMARTIN 12/6/2011 O/P: DEF REPORTED AND STATED HE COULD REPORT ON 12/09/11 DEF PAID $0 TIWILLIAMS 12/5/2011 This is a reminder of your appt on 12/6/2011 with T Williams of JCS at 3:00pm DO NOT REPLY! https://www.judicialservices.com/probationtracker/jcsIndex.asp 3/5 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-2 Filed 03/24/17 Page 4 of 5 Admin 12/5/2011 T/P: CALLED DEFS CELL LVM INFORMING DEF OF NEXT APPT ON 120611 TIWILLIAMS 11/29/2011 You missed your appointment yesterday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 11/27/2011 This is a reminder of your appt on 11/28/2011 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 11/22/2011 T/P: CALLED DEFS CELL LVM INFORMING DEF OF NEXT APPT ON 112811 TIWILLIAMS 11/10/2011 GCOP (general conditions of probation) ­ EHAWTHORNE 11/8/2011 Intake Forms ­ KEDWARDS 10/27/2011 General Conditions of Probation ­ TIWILLIAMS 10/27/2011 Receipt ­ TIWILLIAMS 10/27/2011 O/P: THE DEF PD $200 ALL INFO VERIFIED, NO NEW TICKETS OR ARRESTS NEXT APPT 11/25/11 TIWILLIAMS 10/26/2011 This is a reminder of your appt on 10/27/2011 with T Williams of JCS at 3:00pm DO NOT REPLY! Admin 10/26/2011 You missed your appointment yesterday, please call Tenita Williams at 334­262­0558 ASAP Thank you Admin 10/26/2011 T/P: CALLED DEFS CELL LVM INFORMING DEF OF NEXT APPT ON 102711 TIWILLIAMS 10/25/2011 C/C ADVISED DEF OF TERMS AND CONDITIONS OF PROBATION, MONTHLY PAYMENT AND FIRST SCHEDULED APPT BBURT 10/11/2011 Status Changed to Active Appointment Details Date Time Showed Alerts 7/27/2012 RVHR N 6/6/2012 1500 N 5/29/2012 1500 N 5/23/2012 1500 N 5/21/2012 1500 N 5/11/2012 1500 N 5/3/2012 1500 N 5/1/2012 1500 N 4/28/2012 1400 N 3/31/2012 1100 Y 2/29/2012 1500 Y 2/27/2012 1500 N 2/9/2012 1500 N 2/7/2012 1500 N 2/3/2012 1500 N 1/27/2012 WKIN Y 1/26/2012 1000 N 1/19/2012 1100 Y 1/12/2012 1100 Y 1/10/2012 1100 N 1/6/2012 1100 N 12/29/2011 1100 Y 12/23/2011 1100 N 12/17/2011 1100 Y 12/9/2011 1500 Y 12/6/2011 1500 Y 11/28/2011 1500 N 10/27/2011 1500 Y 10/25/2011 1600 N Financials https://www.judicialservices.com/probationtracker/jcsIndex.asp 4/5 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-2 Filed 03/24/17 Page 5 of 5 Fee Insurance Fines VCF Restitution Court Cost Warrant Fee Other Assessed 960.00 0.00 3,349.00 0.00 0.00 0.00 0.00 10.00 Amt Paid 240.00 0.00 610.00 0.00 0.00 0.00 0.00 10.00 End Bal 720.00 0.00 2,739.00 0.00 0.00 0.00 0.00 0.00 Payments Date Fee Type Amount Note 3/31/2012 Fine 110.00 3/31/2012 Probation Fee 40.00 2/29/2012 Fine 240.00 2/29/2012 Probation Fee 60.00 1/27/2012 Fine 20.00 1/27/2012 Probation Fee 20.00 1/19/2012 Fine 25.00 1/19/2012 Probation Fee 15.00 1/12/2012 Fine 10.00 1/12/2012 Probation Fee 10.00 12/29/2011 Fine 25.00 12/29/2011 Probation Fee 25.00 12/17/2011 Fine 20.00 12/17/2011 Probation Fee 20.00 12/9/2011 Fine 10.00 12/9/2011 Probation Fee 10.00 10/27/2011 Fine 150.00 10/27/2011 Other 10.00 10/27/2011 Probation Fee 40.00 NO COMMUNITY SERVICE ASSIGNED. NO COURT MONEY OBLIGATIONS CONVERTED TO COMMUNITY SERVICE. NO COURT ORDERED PROGRAMS ASSIGNED. NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 5/5

Exhibit 3 - L Agee Case File Report

EXHIBIT 3 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-3 Filed 03/24/17 Page 2 of 4 Modifications Date Notes Detailed Visit Notes Date Notes 3/14/2017 Last Payment made on 10/28/2010 2329 Days Ago 8/8/2014 SC: No longer working court WENNIS 8/8/2014 Status Changed to Terminated Modified 3/14/2014 PO Changed from EALLEN to DHILL by DHILL DHILL 3/3/2011 CFR: RECEIVED NOTIFICATION FROM PO RBRANUM THAT THE DEFENDANT DID NOT APPEAR FOR HIS REVOCATION HEARING PLACING IN WARRANT STATUS SMARTIN 3/2/2011 Hearing: Mar 2 2011 8:00AM Type: REVOCATION Location: MONTGOMERY CITY COURT Entered: Jan 16 2011 5:55PM By EALLEN Status: No Show 3/2/2011 SC: The defendant failed to appear SMARTIN 3/2/2011 Status Changed to Warrant 1/16/2011 Petition for Revocation Letter ­ EALLEN 1/16/2011 VOP Letter ­ EALLEN CFR: THE DEFENDANT HAS FAILED TO REPORT AND MAKE A PAYMENT IN OVER 40+ DAYS ­­ CASE PLACED IN VIOLAION OF PROBATION AND A REVOCATION HEARING COURT DATE HAS BEEN SET FOR 03­02­11 AT 08:00 ­­­ MAILED DEFENDANT BOTH THE VIOLATION OF PROBATION AND PETITION FOR REVOCATION 1/16/2011 LETTERS (ADVISED DEFENDANT IN THE VIOLATION OF PROBATION THAT IN ORDER TO CANCEL HIS HEARING HE MUST REPORT WITH A PAYMENT OF $630 00­ TO BE EALLEN CAUGHT UP ­­ NO LATER THAN 02­22­11) THE DEFENDANT OWES THE CITY OF MONTGOMERY $2,325 00 IN FINES THE DEFENDANT OWES JCS $170 00 IN PROBATION SUPERVISON FEES THE DEFENDANT OWES A TOTAL BALANCE OF $2,495 00 1/16/2011 SC: THE DEFENDANT HAS FAILED TO COMPLY WITH THE TERMS AND CONDITIONS OF PROBATION EALLEN 1/16/2011 Status Changed to VOP 1/15/2011 CFR: THE DEFENDANT FAILED TO REPORT TO HIS SCHEDULED APPOINTMENT ON 01­14­11 ­­­ CASE WILL BE PLACED IN VIOLATION OF PROBATION AND A EALLEN REVOCATION HEARING COURT DATE WILL BE SET 1/13/2011 This is a reminder of your appt on 1/14/2011 with E Allen of JCS at 4:00pm DO NOT REPLY! Admin *** FINAL ATTEMPT TO CONTACT DEFENDANT BEFORE PLACING CASE IN VIOLATION OF PROBATION AND SETTING A REVOCATION HEARING COURT DATE *** T/C: 1/13/2011 CALLED DEFENDANT'S CELL PHONE NUMBER AT (334­450­8437) AND: ­ LEFT A VOICE MESSAGE FOR THE DEFENDANT STATING THAT HE MUST REPORT NO LATER EALLEN THAN 01­14­11 BY 16:00 ­ CALLED DEFENDANT'S HOME PHONE NUMBER AT (334­280­7835) ­­ WHICH IS ALSO HIS MOTHER'S NUMBER AND: ­ LEFT MESSAGE WITH A FEMALE ADVISING THAT THE DEFENDANT MUST REPORT NO LATER THAN 01­14­11 BY 16:00 1/11/2011 This is a reminder of your appt on 1/12/2011 with E Allen of JCS at 4:00pm DO NOT REPLY! Admin 12/23/2010 Returned Mail­ Deliquency ­ EHAWTHORNE 12/22/2010 Delinquency Letter ­ EALLEN O/M: DELINQUENCY LETTER SENT TO DEFENDANT'S UPDATED ADDRESS ­­ ADVISED TO REPORT WITH A PAYMENT OF $270 00 (FEES IN ARREARS OF $130 00 + ONE 12/22/2010 MONTHLY PAYMENT OF $140 00) OR HIS CASE WILL BE PLACED IN VIOLATION OF PROBATION AND A REVOCATION HEARING COURT DATE WILL BE SET ­­­ NEXT EALLEN APPOINTMENT IS SET FOR 01­12­11 AT 16:00 12/22/2010 O/M: DELINQUENCY LETTER RETURNED WITH DEFENDANT'S NEW ADDRESS OF: 1262 BUCKINGHAM DRIVE MONTGOMERY, AL 36116 (ADDRESS SCREEN UPDATED) EALLEN ­­­­­ RESENT DELINQUENCY LETTER AND GAVE DEFENDANT A NEW REPORT DATE OF 01­12­11 AT 16:00 * * * * * COURSITY CALL TO DEFENDANT TO TRY AND MAKE CONTACT REGARDING NO PAYMENT MADE IN OVER 40+ DAYS * * * * * T/C: CALLED DEFENDANT'S 12/16/2010 CELL PHONE NUMBER AT (334­450­8437) AND RECEIVED MESSAGE THAT THE PERSON I CALLED IS UNAVAILABLE AT THIS TIME CALLED DEFENDANT'S HOME EALLEN PHONE NUMBER AT (334­280­7835) AND LEFT MESSAGE WITH DEFENDANT'S MOTHER ADVISING THAT THE DEFENDANT REPORT AS SOON AS POSSIBLE WITH AT LEAST A $35 00 PAYMENT 12/15/2010 Returned Mail­ FTR ­ EHAWTHORNE 12/14/2010 Delinquency Letter ­ EALLEN 12/14/2010 CON'D ADVISED DEFENDANT TO REPORT WITH A PAYMENT OF $270 00 (FEES IN ARREARS OF $130 00 + ONE MONTHLY REQUIRED PAYMENT OF $140 00) OR HIS EALLEN CASE WILL BE PLACED IN VIOLATION OF PROBATION AND A REVOCATION HEARING COURT DATE WILL BE SET 12/14/2010 O/M: FAILURE TO REPORT LETTER FROM 12­01­10 WAS RETURNED WITH DEFENDANT'S NEW ADDRESS OF: 1262 BUCKINGHAM DRIVE MONTGOMERY, AL 36116 EALLEN (ADDRESS SCREEN UPDATED) RESENT DELINQUENCY LETTER WITH A NEW REPORT DATE OF 12­28­10 12/14/2010 O/M: DEF HAS FAILED TO REPOERT FO 4 APPTS SINCE OCTOBER SENDING DELINQUENCY LETTER SWEBER 12/12/2010 This is a reminder of your appt on 12/13/2010 with E Allen of JCS at 4:30pm DO NOT REPLY! Admin T/C: CALLED DEFENDANT'S CELL PHONE NUMBER AT (334­450­8437) AND RECEIVED MESSAGE THAT THE PERSON I CALLED IS UNAVAILABLE AT THIS TIME CALLED 12/10/2010 DEFENDANT'S HOME PHONE NUMBER AT (334­280­7835) AND LEFT MESSAGE WITH DEFENDANT'S MOTHER ADVISING THAT THE DEFENDANT MUST REPORT NO EALLEN LATER THAN 12­13­10 BY 16:30 WITH AT LEAST A PAYMENT OF $20 00 ­­ DEFENDANT'S MOTHER STATED THAT SHE WILL LET HER SON KNOW ­­­ NEXT APPOINTMENT IS SET FOR 12­13­10 AT 16:30 12/8/2010 This is a reminder of your appt on 12/9/2010 with E Allen of JCS at 4:00pm DO NOT REPLY! Admin 12/1/2010 FTR Letter ­ EALLEN 12/1/2010 * * * * * WHEN DEFENDANT REPORTS NEXT ­­ PLEASE ADVISE HIM THAT HE IS $390 00 BEHIND ON HIS BALANCE AND THAT HE MUST GET THIS CAUGHT UP AS SOON EALLEN AS POSSIBLE * * * * * 12/1/2010 O/M: FAILURE TO REPORT LETTER ADVISED DEFENDANT IN THE LETTER THAT HE IS $390 00 BEHIND AND THAT HE MUST GET HIS BALANCE CAUGHT UP AS SOON AS EALLEN POSSIBLE FEES IN ARREARS: $130 00 NEXT APPOINTMENT IS SET FOR 12­09­10 AT 16:00 T/C: CALLED DEFENDANT'S CELL PHONE NUMBER AT (334­450­8437) AND RECEIVED MESSAGE THAT THE PERSON I CALLED IS UNAVAILABLE AT THIS TIME CALLED 12/1/2010 DEFENDANT'S HOME PHONE NUMBER AT (334­280­7835) AND LEFT MESSAGE WITH DEFENDANT'S MOTHER ADVISING THAT THE DEFENDANT REPORT AS SOON AS EALLEN POSSIBLE BUT NO LATER THAN 12­09­10 BY 16:00 ­­­­­ DEFENDANT'S MOTHER STATED THAT SHE WILL GIVE HER SON THE MESSAGE 11/29/2010 This is a reminder of your appt tomorrow with E Allen of JCS at 4:00pm DO NOT REPLY! Admin ***** COURSITY CALL TO DEFENDANT ***** T/C: CALLED DEFENDANT'S CELL PHONE NUMBER AT (334­450­8437) AND LEFT A VOICE MESSAGE FOR THE 11/24/2010 DEFENDANT ADVISING HIM OF HIS MISSED APPOINTMENT AT 13:00 AND ADVISED THAT IF HE IS NOT GOING TO MAKE IT BY THE TIME THE OFFICE CLOSES TODAY EALLEN AT 17:00 THAT HE MUST THEN REPORT NO LATER THAN 11­30­10 BY 16:00 11/23/2010 This is a reminder of your appt tomorrow with E Allen of JCS at 1:00pm DO NOT REPLY! https://www.judicialservices.com/probationtracker/jcsIndex.asp 2/4 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-3 Filed 03/24/17 Page 3 of 4 Admin 10/28/2010 Receipt ­ MFREEMAN 10/28/2010 O/P DEF REPORTED TODAY NO CHANGES IN CONTACT INFORMATION NO NEW TICKETS OR CHARGES DEF PAID $80 TODAY NEXT APPOINTMENT IS 11/24/10 MFREEMAN 10/27/2010 This is a reminder of your appt tomorrow with E Allen of JCS at 1:00pm DO NOT REPLY! Admin 10/19/2010 GCOP (general conditions of probation) ­SIGNED ­ KEDWARDS 10/8/2010 FTR Letter ­ EALLEN O/M: SENT DEFENDANT FAILURE TO REPORT LETTER AND ADVISED DEFENDANT THAT HE HAS FAILED TO REPORT AND THAT HE IS TO REPORT WITH A PAYMENT OF 10/8/2010 $290 00 AND IF HE FAILS TO COMPLY WITH THIS LETTER THAT IT WILL LEAD TO VIOLATION OF HIS PROBATION ­­­­­ ARREARS: FINES $200 00 AND FEES $90 00 ­­­­­ EALLEN NEXT APPOINTMENT IS SCHEDULED FOR 10­28­10 AT 13:00 10/7/2010 PO Changed from RBRANUM to EALLEN by WENNIS WENNIS 10/6/2010 T/C CALLED THE DEF CELL NUMBER AND LEFT A MESSAGE ON DEF VOICEMAIL CALLED THE DEF HOME NUMBER AND SPOKE TO DEF MOTHER WHO STATED THAT RBRANUM HE WILL REPORT WITHIN 24 HOURS 10/4/2010 You missed your appointment Friday, please call Renee Branum at 334­262­0558 ASAP Thank you Admin 9/30/2010 This is a reminder of your appt tomorrow with R Branum of JCS at 1:00pm DO NOT REPLY! Admin 9/29/2010 General Conditions of Probation ­ RBRANUM 9/29/2010 O/P DEF REPORTED TODAY WENT OVER TERMS AND CONDITIONS OF PROBATION DEF VERIFIED ALL INFORMATION AS CORRECT NO OTHER TICKETS OR RBRANUM TROUBLE DEF PAID $0 TODAY BUT WILL ON FRIDAY NEXT APPT IS 100110 9/28/2010 Delinquency Letter ­ RBRANUM 9/28/2010 You missed your appointment yesterday, please call Renee Branum at 334­262­0558 ASAP Thank you Admin 9/28/2010 T/C CALLED THE DEF CELL NUMBER BUT NO RING CALLED THE DEF HOME NUMBER AND LEFT A MESAGE WITH A GENTLEMAN FOR THE DEF TO REPORT WITHIN RBRANUM 24 HOURS SENDING DELINQUENCY LETTER IF NO REPONSE 9/26/2010 This is a reminder of your appt tomorrow with R Branum of JCS at 1:00pm DO NOT REPLY! Admin 9/20/2010 FTR Letter ­ RBRANUM 9/17/2010 This is a reminder of your appt tomorrow with R Branum of JCS at 1:00pm DO NOT REPLY! Admin 9/16/2010 Intake Forms ­ DHILL 9/15/2010 T/C CALLED THE DEF ABOUT MISSED APPT AND SPOKE TO DEF MOTHER WHO STATED THAT THE DEF WAS WORKING 6 DAYS A WEEK AT HAUNDAI THROUGH A RBRANUM TEMP SERVICE BUT COULD BE OFF TO MAKE APPT ON SATURDAY AT PERRY HILL OFFICE NEXT APPT SI 091810 9/13/2010 This is a reminder of your appt tomorrow with R Branum of JCS at 1:00pm DO NOT REPLY! Admin 9/8/2010 C/C DEF APPEARED IN COURT AND WAS PLACED ON 24 MONTHS PROBATION DEF WAS ADVISED OF THE TERMS AND CONDITIONS OF BEING PLACED ON FHOOD PROBATION DEF WAS ALSO ADVISED OF THE $140 00 MONTHLY PAYMENT FIRST APPT SCHEDULED 09142010@1300 8/31/2010 Status Changed to Active Appointment Details Date Time Showed Alerts 3/2/2011 RVHR N 1/14/2011 1600 N 1/12/2011 1600 N 12/28/2010 1600 N 12/21/2010 1515 N 12/13/2010 1630 N 12/9/2010 1600 N 11/30/2010 1600 N 11/24/2010 1300 N 10/28/2010 1300 Y 10/1/2010 1300 N 9/29/2010 WKIN Y 9/27/2010 1300 N 9/18/2010 1300 N Financials Fee Insurance Fines VCF Restitution Court Cost Warrant Fee Other Assessed 960.00 0.00 2,365.00 0.00 0.00 0.00 0.00 10.00 Amt Paid 30.00 0.00 40.00 0.00 0.00 0.00 0.00 10.00 End Bal 930.00 0.00 2,325.00 0.00 0.00 0.00 0.00 0.00 Payments https://www.judicialservices.com/probationtracker/jcsIndex.asp 3/4 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-3 Filed 03/24/17 Page 4 of 4 Date Fee Type Amount Note 10/28/2010 Fine 40.00 10/28/2010 Other 10.00 10/28/2010 Probation Fee 30.00 NO COMMUNITY SERVICE ASSIGNED. NO COURT MONEY OBLIGATIONS CONVERTED TO COMMUNITY SERVICE. NO COURT ORDERED PROGRAMS ASSIGNED. NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 4/4

Exhibit 4 - A Edwards & K Jones Case File Repor

EXHIBIT 4 Document 102-4 Filed 03/24/17 Page 1 of 16 Case 2:15-cv-00555-RCL-WC 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-4 Filed 03/24/17 Page 6 of 16 1/21/2011 1630 Y 1/14/2011 WKIN Y 1/7/2011 1630 N 12/28/2010 WKIN Y 12/27/2010 1630 N 12/17/2010 1630 Y 12/13/2010 1630 Y 12/10/2010 1630 Y 11/29/2010 1630 Y 11/19/2010 1630 Y 11/12/2010 1630 Y 11/5/2010 WKIN Y 11/1/2010 1630 N 10/22/2010 1630 N 10/15/2010 WKIN Y 10/12/2010 1600 N 10/1/2010 1600 N 9/24/2010 1600 Y 9/17/2010 1630 Y 9/10/2010 1630 R 9/3/2010 1630 Y 8/30/2010 1630 Y 8/27/2010 1630 N 8/20/2010 1600 Y 8/13/2010 1600 Y 8/6/2010 1630 Y 7/30/2010 1630 Y 7/9/2010 1630 Y 7/6/2010 1630 Y 7/2/2010 1630 N 6/25/2010 1630 Y 6/11/2010 1630 Y 5/21/2010 1630 N 5/14/2010 1630 Y 5/7/2010 1630 Y 4/30/2010 1630 Y 4/2/2010 1630 Y 3/26/2010 1630 Y 2/26/2010 1630 Y 1/29/2010 1630 Y 12/30/2009 1630 Y 12/11/2009 1630 Y 11/30/2009 1630 Y 11/13/2009 WKIN Y 11/12/2009 1630 N 11/2/2009 1630 N 10/30/2009 1630 Y 9/25/2009 1630 Y https://www.judicialservices.com/probationtracker/jcsIndex.asp 6/9 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-4 Filed 03/24/17 Page 8 of 16 8/13/2010 Probation Fee 10.00 CASH 7/30/2010 Fine 35.00 7/30/2010 Probation Fee 15.00 7/9/2010 Fine 18.00 7/9/2010 Probation Fee 10.00 6/25/2010 Fine 30.00 CASH 6/25/2010 Probation Fee 10.00 CASH 6/11/2010 Fine 30.00 CASH 6/11/2010 Probation Fee 20.00 CASH 5/14/2010 Fine 15.00 5/14/2010 Probation Fee 10.00 5/7/2010 Fine 15.00 5/7/2010 Probation Fee 10.00 4/30/2010 Fine 25.00 4/30/2010 Probation Fee 20.00 4/2/2010 Fine 30.00 4/2/2010 Probation Fee 10.00 3/26/2010 Probation Fee 30.00 3/26/2010 Fine 60.00 3/26/2010 Probation Fee 40.00 3/26/2010 Probation Fee (40.00) ENTERED IN ERROR 2/26/2010 Fine 100.00 2/26/2010 Probation Fee 40.00 1/29/2010 Fine 100.00 CASH 1/29/2010 Probation Fee 40.00 CASH 12/30/2009 Fine 105.00 12/30/2009 Probation Fee 35.00 12/11/2009 Fine 100.00 CASH 12/11/2009 Probation Fee 40.00 CASH 11/13/2009 Fine 25.00 CASH 11/13/2009 Probation Fee 15.00 CASH 10/30/2009 Fine 60.00 10/30/2009 Probation Fee 40.00 9/25/2009 Fine 100.00 9/25/2009 Probation Fee 40.00 8/21/2009 Fine 100.00 CASH 8/21/2009 Probation Fee 40.00 CASH 7/17/2009 Fine 100.00 7/17/2009 Probation Fee 40.00 6/16/2009 Fine 100.00 6/16/2009 Other 10.00 6/16/2009 Probation Fee 30.00 NO COMMUNITY SERVICE ASSIGNED. NO COURT MONEY OBLIGATIONS CONVERTED TO COMMUNITY SERVICE. NO COURT ORDERED PROGRAMS ASSIGNED. https://www.judicialservices.com/probationtracker/jcsIndex.asp 8/9 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-4 Filed 03/24/17 Page 9 of 16 NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 9/9 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-4 Filed 03/24/17 Page 11 of 16 Detailed Visit Notes Date Notes 3/14/2017 ADMIN ***** Check for Other Cour ts Listed Below ***** 12/17/2014 SC: Court Closed HFELIO 12/17/2014 Status Changed to Terminated Modified 3/14/2014 PO Changed from NJENKINS to DHILL by DHILL DHILL 8/16/2011 SC: def failed to appear in court for rvhr NJENKINS 8/16/2011 Status Changed to Warrant 12/1/2010 PO Changed from MFREEMAN to NJENKINS by DHILL DHILL 10/25/2010 Alabama Non-Driver's ID ­ VBROWN_PO 10/25/2010 GCOP (general conditions of probation) Signed ­ VBROWN_PO 5/18/2010 Correction Request ­ DSELMAR 5/18/2010 TT: Screen:Offense Please add case # 10trt012534, the offense is Improper Tag, and the fine amount is $138 00 3/15/2010 Intake Forms ­ EWATKINS 3/9/2010 C/C DEF APPEARED IN COURT AND WAS PLACED ON PROBATION FOR 24 MONTHS DEF WAS ADVISED OF THE TERMS AND CONDITIONS OF BEING PLACED ON FHOOD PROBATION DEF WAS ALSO ADVISED OF THE $140 00 MONTHLY PAYMENT FIRST APPT SCHEDULED 03262010@1630 3/8/2010 Status Changed to Hold Appointment Details Date Time Showed Aler ts 8/15/2011 CKST E Financials Fee Insur ance Fines VCF Restitution Cour t Cost War r ant Fee Other Assessed 960.00 0.00 1,660.00 0.00 0.00 0.00 0.00 10.00 Amt Paid 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 End Bal 960.00 0.00 1,660.00 0.00 0.00 0.00 0.00 10.00 Payments Date Fee Type Amount Note NO COMMUNITY SERVICE ASSIGNED. NO COURT MONEY OBLIGATIONS CONVERTED TO COMMUNITY SERVICE. NO COURT ORDERED PROGRAMS ASSIGNED. NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 2/2 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-4 Filed 03/24/17 Page 16 of 16 NO COURT ORDERED PROGRAMS ASSIGNED. NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 5/5

Exhibit 5 - M Johnson Case File Report

EXHIBIT 5 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-5 Filed 03/24/17 Page 4 of 6 Date Note Hear ings Date Type Location Status 2/9/2012 8:00:00 AM REVOCATION MONTGOMERY MUNICIPAL Scheduled Modifications Date Notes Detailed Visit Notes Date Notes 3/14/2017 Last Payment made on 10/19/2011 1973 Days Ago 3/14/2017 ADMIN ***** Check for Other Cour ts Listed Below ***** 12/23/2014 SC: Court Closed HFELIO 12/23/2014 Status Changed to Terminated Modified 2/9/2012 Hearing: Feb 9 2012 8:00AM Type: REVOCATION Location: MONTGOMERY MUNICIPAL Entered: Dec 15 2011 3:24PM By MFREEMAN Status: Scheduled 2/9/2012 SC: failure to report MFREEMAN 2/9/2012 Status Changed to Warrant 2/9/2012 CFR: DEF FAILED TO REPORT TO COURT WARRANT ISSUED MFREEMAN 12/15/2011 VOP Letter ­ MFREEMAN 12/15/2011 Petition for Revocation Letter ­ MFREEMAN 12/8/2011 View of Delinquency Letter ­ MFREEMAN 12/8/2011 O/M DEF FAILED TO REPORT AFTER BEING CONTACTED SEVERAL TIMES SENDING DELINQUENCY LETTER NEXT APPT 12/15/11 MFREEMAN 12/1/2011 T/P CALLED DEF ABOUT MISSED APPT BUT NO ANSWER LEFT MESSAGE ADVISING DEF OF NEXT APPT SET FOR 12/07/11 MFREEMAN 11/23/2011 T/P CALLED DEF ABOUT MISSED APPT BUT NO ANSWER LEFT MESSAGE ADVISING DEF OF NEXT APPT SET FOR 11/30/11 MFREEMAN 11/15/2011 View of FTR Letter ­ MFREEMAN 11/15/2011 O/M DEF FAILED TO REPORT AFTER BEING CONTACTED SEVERAL TIMES SENDING FTR LETTER NEXT APPT 11/22/11 MFREEMAN 11/7/2011 T/P CALLED DEF ABOUT MISSED APPT BUT NO ANSWER LEFT MESSAGE ADVISING DEF OF NEXT APPT SET FOR 11/14/11 MFREEMAN 10/31/2011 T/P CALLED DEF ABOUT MISSED APPT DEF STATED SHE WILL BE IN ON FRIDAY NEXT APPT 11/04/11 MFREEMAN 10/19/2011 Receipt ­ MFREEMAN 10/19/2011 O/P DEF REPORTED TODAY, NO NEW TICKETS OR CHARGES, NO CHANGE IN CONTACT INFO, DEF PAID $20 TODAY, NEXT APPT 10/28/11 MFREEMAN 10/19/2011 SC: failure to report MFREEMAN 10/19/2011 Status Changed to VOP 10/18/2011 This is a reminder of your appt on 10/19/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 10/18/2011 T/P DEF CALLED STATED THAT SHE WILL BE IN TOMORROW NEXT APPT 10/19/11 MFREEMAN 10/17/2011 This is a reminder of your appt on 10/18/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 10/12/2011 T/P CALLED DEF ABOUT MISSED APPT BUT NO ANSWER LEFT MESSAGE ADVISING DEF OF NEXT APPT SET FOR 10/18/11 MFREEMAN 10/10/2011 This is a reminder of your appt on 10/11/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 10/4/2011 View of FTR Letter ­ MFREEMAN 10/4/2011 O/M DEF FAILED TO REPORT AFTER BEING CONTACTED SEVERAL TIMES SENDING FTR LETTER NEXT APPT 10/11/11 MFREEMAN 10/2/2011 This is a reminder of your appt on 10/3/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 9/26/2011 T/P CALLED DEF ABOUT MISSED APPT BUT NO ANSWER LEFT MESSAGE ADVISING DEF OF NEXT APPT SET FOR 10/03/11 MFREEMAN 9/22/2011 This is a reminder of your appt on 9/23/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 9/19/2011 T/P CALLED DEF ABOUT MISSED APPT DEF STATED THAT SHE WILL BE IN ON FRIDAY NEXT APPT 09/23/11 MFREEMAN 9/15/2011 This is a reminder of your appt on 9/16/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 9/9/2011 MFREEMAN O/P DEF REPORTED TODAY, NO NEW TICKETS OR CHARGES, NO CHANGE IN CONTACT INFO, DEF PAID $0 TODAY, NEXT APPT 09/16/11 9/6/2011 T/P CALLED DEF ABOUT MISSED APPT BUT NO ANSWER LEFT MESSAGE ADVISING DEF OF HAS NEXT APPT SET FOR 09/12/11 MFREEMAN https://www.judicialservices.com/probationtracker/jcsIndex.asp 2/4 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-5 Filed 03/24/17 Page 5 of 6 9/5/2011 You missed your appointment Friday, please call Marcy Freeman at 334-262-0558 ASAP Thank you Admin 9/1/2011 This is a reminder of your appt on 9/2/2011 with M Freeman of JCS at 4:00pm DO NOT REPLY! Admin 8/26/2011 Receipt ­ EHAWTHORNE 8/26/2011 O/P: DEF STATED ALL INFO THE SAME­ NO NEW TICKETS OR CHARGES­ DEF PAID $60­ NEXT APPOINTMENTR 9/2/2011 EHAWTHORNE 8/22/2011 You missed your appointment Friday, please call Marcy Freeman at 334-262-0558 ASAP Thank you Admin 8/22/2011 T/P CALLED DEF ABOUT MISSED APPT MALE ANSWERED STATED THAT THE DEF WAS NOT IN LEFT MESSAGE ADVISING DEF THAT HE HAS ANOTHER APPT SET MFREEMAN FOR 08/29/11 8/18/2011 This is a reminder of your appt on 8/19/2011 with M Freeman of JCS at 4:00pm DO NOT REPLY! Admin 8/12/2011 O/P: DEF REPORTED ­­ ALL INFORMATION THE SAME ­­ NO NEW TICKETS ­­ DEF PAID $0 TODAY ­­ NEXT APPT IS 081911 RBRANUM 8/11/2011 This is a reminder of your appt on 8/12/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 8/8/2011 T/P CALLED DEF ABOUT MISSED APPT DEF STATED THAT SHE WILL BE ABLE TO REPORT ON FRIDAY NEXT APPT 08/12/11 MFREEMAN 8/4/2011 This is a reminder of your appt on 8/5/2011 with M Freeman of JCS at 4:30pm DO NOT REPLY! Admin 7/29/2011 O/P: DEF REPORTED STATED EVERYTHING IS STILL THE SAME AND NO NEW TICKETS PAID $0­ NEXT APPOINTMENT 080511@1630 NJENKINS 7/28/2011 This is a reminder of your appt on 7/29/2011 with M Freeman of JCS at 4:00pm DO NOT REPLY! Admin 7/26/2011 T/P CALLED DEF ABOUT MISSED APPT DEF STATED THAT SHE WILL BE IN FRIDAY NEXT APPT 07/29/11 MFREEMAN 7/24/2011 This is a reminder of your appt on 7/25/2011 with M Freeman of JCS at 4:00pm DO NOT REPLY! Admin 7/11/2011 Receipt ­ MFREEMAN 7/11/2011 O/P: DEF REPORTED PD $140 00 ALL INFO VERIFIED, NO NEW TICKETS OR ARREST NEXT APPT 07/25/11 MFREEMAN 7/10/2011 This is a reminder of your appt on 7/11/2011 with M Freeman of JCS at 4:00pm DO NOT REPLY! Admin 7/8/2011 T/P CALLED DEF ABOUT MISSED APPT DEF STATED THAT SHE WILL BE ABLE TO REPORT MONDAY NEXT APPT 07/11/11 MFREEMAN 7/6/2011 This is a reminder of your appt on 7/7/2011 with M Freeman of JCS at 4:00pm DO NOT REPLY! Admin 6/30/2011 GCOP (general conditions of probation) Signed ­ HWIGGINS_PO 6/30/2011 General Conditions of Probation ­ MFREEMAN 6/30/2011 O/P DEF REPORTED MADE $0 PYMT DEF STATES NO NEW TICKETS OR INFORMATION REVIEWED CONDITIONS OF PROBATION NEXT APPT 07/07/113 MFREEMAN 6/27/2011 T/P CALLED DEF ABOUT MISSED APPT DEF STATED THAT SHE WILL BE ABLE TO REPORT THIS THURSDAY NEXT APPT 06/30/11 MFREEMAN 6/23/2011 C/C ADVISED DEF TERMS AND CONDITIONS OF PROBATION AND 294 00 MONTHLY PAYMENT AMOUNT THAMBY 6/10/2011 Intake Forms ­ FHOOD 5/24/2011 Status Changed to Active Appointment Details Date Time Showed Aler ts 2/9/2012 RVHR N 12/15/2011 1630 N 12/7/2011 1630 N 11/30/2011 1630 N 11/22/2011 1630 N 11/14/2011 1630 N 11/4/2011 1630 N 10/28/2011 1630 N 10/19/2011 1630 Y 10/18/2011 1630 N 10/11/2011 1630 N 10/3/2011 1630 N 9/23/2011 1630 N 9/16/2011 1630 N 9/9/2011 WKIN Y 9/2/2011 1600 N https://www.judicialservices.com/probationtracker/jcsIndex.asp 3/4

Exhibit 6 - H Caldwell Case File Report

EXHIBIT 6 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-6 Filed 03/24/17 Page 2 of 3 11/11/2013 Revocation Hearing Order ­ BBURT 8/28/2013 SC: failed to appear for court hearing MFLEN 8/28/2013 Status Changed to Warrant 8/28/2013 FAILED TO APPEAR FOR COURT HEARING WARRANT ISSUED MFLEN 8/27/2013 Hearing: Aug 27 2013 8:00AM Type: REVOCATION Location: MONTGOMERY COURTHOUSE Entered: Jul 23 2013 2:57PM By MFLEN Status: No Show 7/23/2013 Petition for Revocation Letter ­ MFLEN 7/23/2013 VOP Letter ­ MFLEN 7/23/2013 You missed your appointment yesterday, please call Mychal Flen at 334­262­0558 ASAP Thank you Admin 7/23/2013 Status Changed to VOP 7/23/2013 SC: failed to complete terms of probation MFLEN 7/23/2013 ********************************PO CAN SET VOP HEARING*********************************** DHILL 7/23/2013 ***********CASE FILE REVIEW******* MFLEN 7/21/2013 This is a reminder of your appt on 7/22/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 7/15/2013 View of FTR Letter ­ MFLEN 7/12/2013 You missed your appointment yesterday, please call Mychal Flen at 334­262­0558 ASAP Thank you Admin 7/10/2013 This is a reminder of your appt on 7/11/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 7/9/2013 T/P;CALLED DEF 334­356­7228 HOME SPOKE WITH DEF WHO WILL REPORT 71113 MFLEN 7/7/2013 This is a reminder of your appt on 7/8/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 6/28/2013 View of FTR Letter ­ MFREEMAN 6/28/2013 O/M DEF FAILED TO REPORT TO APPT AS AGREED SENDING FTR LETTER NEXT APPT 07/08/13 MFREEMAN 6/26/2013 This is a reminder of your appt on 6/27/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 6/25/2013 T/P;CALLED DEF 334­356­7228 HOME SPOKE WITH DEF WHO WILL REPORT 62713 MFLEN 6/23/2013 This is a reminder of your appt on 6/24/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 6/17/2013 Receipt ­ CPICKENS 6/17/2013 O/P: PROBATIONER REPORTED TODAY VERIFIED ADDRESS AND CONTACT NUMBER REPORTED NEW VIOLATIONS FOR BREAK LIGHTS PAID $40 PROBATIONER OF CPICKENS BALANCE NEXT APPT 06/24/13 6/14/2013 View of FTR Letter ­ MFLEN 6/12/2013 This is a reminder of your appt on 6/13/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 6/12/2013 You missed your appointment yesterday, please call Mychal Flen at 334­262­0558 ASAP Thank you Admin 6/12/2013 T/P: DEF RETURNED CALL AND WILL REPORT 6/13/13 PHELLUMS 6/12/2013 T/C: NO ANSWER ON DEF NUMBER FOR COUSIN PHELLUMS 6/12/2013 T/C; LEFT VOICE MAIL ON HOME NUMBER ADVISING DEF TO RETURN CALL PHELLUMS 6/12/2013 T/C: NO ANSWER ON DEF CELL NUMBER PHELLUMS 6/10/2013 This is a reminder of your appt on 6/11/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 6/4/2013 Receipt ­ MFREEMAN 6/4/2013 O/C: PROBATIONER'S MOM REPORTED TODAY VERIFIED ADDRESS AND CONTACT NUMBER REPORTED NO NEW VIOLATIONS PAID $40 ADVISED PROBATIONER OF MFREEMAN BALANCE NEXT APPT 006/11/13 6/3/2013 This is a reminder of your appt on 6/4/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 5/28/2013 Receipt ­ TIWILLIAMS 5/28/2013 O/P: PROBATIONER REPORTED TODAY VERIFIED ADDRESS AND CONTACT NUMBER REPORTED NO NEW VIOLATIONS PAID $40 ADVISED PROBATIONER OF TIWILLIAMS BALANCE AND NEXT APPT ON 060413 5/27/2013 This is a reminder of your appt on 5/28/2013 with M Flen of JCS at 3:00pm DO NOT REPLY! Admin 5/21/2013 View of FTR Letter ­ MFLEN 5/21/2013 You missed your appointment yesterday, please call Mychal Flen at 334­262­0558 ASAP Thank you Admin 5/20/2013 T/P SPOKE WITH DEF (334­549­9402) DEF STATED THAT HE WILL BE IN TODAY 5/20/13 YHOOD 5/20/2013 T/C:CALLED DEF COURTNEY BOSWELL 334­322­1344 COUSIN VOICEMAIL BOX NOT SET UP MFLEN 5/20/2013 T/P:CALLED DEF 334­239­7673 HOME LEFT MESSAGE FOR DEF TO REPORT 52113 MFLEN 5/20/2013 T/P:CALLED DEF 334­549­9402 CELL NIS MFLEN 5/20/2013 SC: def case made active MFLEN https://www.judicialservices.com/probationtracker/jcsIndex.asp 2/3 3/14/2017 JCS Probation Services Case 2:15-cv-00555-RCL-WC Document 102-6 Filed 03/24/17 Page 3 of 3 5/20/2013 Status Changed to Active 4/25/2013 Receipt ­ YHOOD 4/25/2013 O/P: PROBATIONER REPORTED TODAY VERIFIED ADDRESS AND CONTACT NUMBER REPORTED NO NEW VIOLATIONS/TICKETS PAID $35 ADVISED DEF OF FEES $0 YHOOD AND FINE $150 AND NEXT APPT SCHEDULED FOR 5/17/13 4/19/2013 Intake Forms ­ KEDWARDS 4/19/2013 C/C DEF WAS ADVISED OF THE 30 DAY WAIVER AND DEF WAS EXPLAINED IF FINES ARE NOT PAID WITHIN 30 DAYS $40 00 PROBATION FEES WILL BEGAN KEDWARDS 4/17/2013 Status Changed to Hold Appointment Details Date Time Showed Alerts 8/27/2013 RVHR N 7/22/2013 1500 N 7/11/2013 1500 N 7/8/2013 1500 N 6/27/2013 1500 N 6/24/2013 1500 N 6/17/2013 WKIN Y 6/13/2013 1500 N 6/11/2013 1500 N 6/4/2013 1500 Y 5/28/2013 1500 Y 5/20/2013 1500 N 5/17/2013 CKST N 4/24/2013 1400 N Financials Fee Insurance Fines VCF Restitution Court Cost Warrant Fee Other Assessed 960.00 0.00 175.00 0.00 0.00 0.00 0.00 10.00 Amt Paid 40.00 0.00 105.00 0.00 0.00 0.00 0.00 10.00 End Bal 920.00 0.00 70.00 0.00 0.00 0.00 0.00 0.00 Payments Date Fee Type Amount Note 6/17/2013 Fine 30.00 6/17/2013 Probation Fee 10.00 6/4/2013 Fine 30.00 6/4/2013 Probation Fee 10.00 5/28/2013 Fine 20.00 5/28/2013 Probation Fee 20.00 4/25/2013 Fine 25.00 4/25/2013 Other 10.00 NO COMMUNITY SERVICE ASSIGNED. NO COURT MONEY OBLIGATIONS CONVERTED TO COMMUNITY SERVICE. NO COURT ORDERED PROGRAMS ASSIGNED. NO SPECIAL CONDITIONS NOTED. NO DRUG TESTING GIVEN. https://www.judicialservices.com/probationtracker/jcsIndex.asp 3/3

RESPONSE TO ORDER TO SHOW CAUSE by Branch D. Kloess re [99] Order to Show Cause.

Case 2:15-cv-00555-RCL-WC Document 103 Filed 03/24/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA ALDARESS CARTER, individually,) and on behalf of a class of all others) similarly situated,)) Plaintiffs,)) v.) Case No. 2:15-cv-555-RCL) THE CITY OF MONTGOMERY;) BRANCH D. KLOESS;) JUDICIAL CORRECTION SERVICES,) INC.; a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC.;) a corporation; and CHC COMPANIES,) INC., a corporation.)) Defendants.) RESPONSE TO ORDER TO SHOW CAUSE NOW COMES Branch D. Kloess (hereinafter "Kloess"), by and through undersigned counsel, and responds to this Court’s Order to Show Cause (Doc. 133). Kloess opposes consolidation with McCullough v. City of Montgomery, 2:15-cv-463-WKW, consolidation for the class certification hearing and consolidation for trial in this matter.1 Although Fed R. Civ. P. 42 permits consolidation of cases that involve common questions of law or fact, as this Court correctly pointed out in its March 10, 2017 Order there is only one claim being made against Kloess in this case (due process). There are no claims being made against Kloess in McCullough. The Court also correctly pointed out in its March 10, 2017 Order that there is considerable overlap between the complaints in the two cases. That may be so against some of 1 "Although such common issues are a prerequisite to consolidation, the mere existence of these issues does not require a joint trial as a matter of course." Kelly v. Kelly, 911 F.Supp. 66, 69 (N.D.N.Y. 1996). 1 Case 2:15-cv-00555-RCL-WC Document 103 Filed 03/24/17 Page 2 of 6 the parties, but it is not so as to Kloess. Most of the claims being made in both this case and in McCullough relate to alleged policies or procedures over which Kloess is not alleged to have any control and in which Kloess had no participation or involvement. At most, Carter alleges that Kloess failed to adequately represent him when he appeared before a Municipal Court Judge in The City of Montgomery Municipal Court. The matters alleged in the Complaint dealing with Carter’s arrest and incarceration before he appeared in Municipal Court occurred before Kloess would have begun his representation of Carter, which would not have begun until the day Carter appeared in Municipal Court. The matters alleged in the Complaint dealing with Carter’s dealings with JCS and continued incarceration after he appeared before the Municipal Court occurred after Carter’s appearance and involved matters over which Kloess had no control and in which he has no participation. Carter, supra, Amend. Comp. (Doc. 18), asserts claims for denial of due process and equal protection as well as violations of the Fourth Amendment, Sixth Amendment and Eighth Amendment that may appear similar to claims alleged in McCullough. As noted, as to Kloess, the Restated and Amended Complaint asserts a claim for violation of due process, nothing more. There are distinct claims asserted in McCullough: due process and equal protection violations for use of a fixed bail system and for use of appeal bonds; threat of probation revocation solely to collect fines; violation of the Thirteenth Amendment and Federal Anti-Peonage Laws; and false imprisonment/arrest that conceivably could differ remarkably from the claims in Carter. If there is a possibility of claims or legal theories causing jury confusion, cases should not be consolidated. See Walker v. H. Councill Trenholm State Technical College, 2007 WL 1140423, *2-3 (M.D. Ala. 2007) (ruling against consolidation with Eileen D. Olive v. H. Councill Trenholm State Technical College, et al., Civil Action No. 2:06-cv-48-MEF (M.D. Ala. 2006), 2 Case 2:15-cv-00555-RCL-WC Document 103 Filed 03/24/17 Page 3 of 6 although both lawsuits had common facts, overlapping time frames and were brought pursuant to federal employment discrimination statutes the discriminatory animus alleged by each plaintiff was different). It is realistic that the unique counts asserted in this matter could potentially confuse jurors if the cases are consolidated for trial. Similarly, consolidation in a class certification hearing, while not a jury proceeding, could result in confusion due to the different natures of the claims. In addition, the parties in Carter and McCullough are different. In Carter, the plaintiff sues the City of Montgomery, different corporate entities and Kloess. In comparison, Plaintiffs in McCullough allege claims against the City of Montgomery, the mayor of Montgomery, the chief of police of Montgomery and the former chief of police of the City of Montgomery as well as the presiding judge of the Municipal Court which could entail different defenses as well as impediments to recovery that may not be present in Carter. Kloess acknowledges that some parties in both lawsuits are similar, but the different parties may potentially confuse jurors and may impact jurors’ ability to decipher evidence concerning each Defendant. Finally, the theory of liability in Carter and McCullough, at least as stated in their respective Complaints, is different. Carter acknowledges that the municipality, as a legal matter, has no authority to dictate judicial actions or procedures, but contends that the JCS contract is an unlawful exercise of authority in an attempt to dictate judicial behavior. McCullough, on the other hand, contends, it would appear, that there is some agreement between the Mayor, current and former police chiefs and presiding judge relative to the wrongs alleged in the Complaint. These differing theories will, almost necessarily confuse a jury if presented together. As for class certification, the theories are also apparently different, with Carter being focused on the allegedly streamlined nature of the JCS procedures and McCullough being focused on the 3 Case 2:15-cv-00555-RCL-WC Document 103 Filed 03/24/17 Page 4 of 6 allegedly "administrative" actions of the municipal court officers. Challenging these differing theories will likely be difficult to address effectively in a single trial. At most, Carter’s claims amount to legal malpractice by Kloess – that he failed to adequately represent Carter in The City of Montgomery Municipal Court. That claim is a straightforward common law state court claim, which would be simple to administer from the Court’s perspective, and which would be simple for a jury to consider. Kloess should not be "caught up" in the massive amount of claims being made in the two cases against the other parties. Likewise, Kloess should not be caught up in the massive amount of discovery that is anticipated to be conducted in the two cases. Kloess has no insurance coverage and has to use personal funds to pay for his defense in the case. His counsel should not have to attend depositions, review documents, review interrogatory responses, or otherwise participate in discovery on issues which have nothing to do with whether he adequately represented Carter before The City of Montgomery Municipal Court. Kloess’s counsel should not be required to review pleadings and motions filed by the other parties on issues which have no bearing on the single claim made against Kloess. And, finally, Kloess and his counsel should not have to attend a trial which is likely to last for days or weeks when the claim against him can be considered in a day. Kloess is filing simultaneously with this Response a separate Motion To Sever the claim made against him from the rest of the case. CONCLUSION Not only should Kloess not be included in a consolidated case with the other parties and claims, but Kloess should be severed from this action and the single claim against him be handled separately. 4 RESPECTFULLY SUBMITTED this the 24th day of March, 2017./s/Micheal S. Jackson MICHEAL S. JACKSON [ASB-8173-O78M] Attorney for Defendant Branch D. Kloess WEBSTER, HENRY, LYONS, BRADWELL, COHAN & SPEAGLE, P.C. 105 Tallapoosa Street, Suite 101 [36104] P. O. Box 239 Montgomery, AL 36101-0239 (334) 264-9472/(334) 264-9599 (fax) mjackson@websterhenry.com 5 Case 2:15-cv-00555-RCL-WC Document 103 Filed 03/24/17 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on March 24, 2017, I electronically filed the foregoing RESPONSE OF ORDER TO SHOW CAUSE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: William M. Dawson, Jr., Esq. Alexandria Parrish, Esq. Attorney at Law G. Daniel Evans, Esq. 2600 Highland Avenue, Suite 404 Maurine C. Evans, Esq. Birmingham, AL 35205 The Evans Law Firm bill@billdawsonlaw.com 1736 Oxmoor Road, Suite 101 Birmingham AL 35209 F. Lane Finch, Jr., Esq. gdevans@evanslawpc.com Brian C. Richardson, Esq. ap@evanslawpc.com Swift, Currie, McGhee & Hiers, LLP me@evanslawpc.com 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Larry S. Logsdon, Esq. lane.finch@swiftcurrie.com Michael L. Jackson, Esq. brian.richardson@swiftcurrie.com Wesley K. Winborn, Esq. Wallace, Jordan, Ratliff & Brandt, LLC Shannon L. Holliday, Esq. P. O. Box 530910 Robert D. Segall, Esq. Birmingham, AL 35253 Joel Caldwell, Esq. mjackson@wallacejordan.com Copeland, Franco, Screws & Gill, P.A. wwinborn@wallacejordan.com P. O. Box 347 Montgomery, AL 36101-0347 holliday@copelandfranco.com segall@copelandfranco.com caldwell@copelandfranco.com Wilson F. Green, Esq. Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa AL 35406 wgreen@fleenorgreen.com/s/Micheal S. Jackson MICHEAL S. JACKSON 6

MOTION to Sever [DEFENDANT BRANCH D. KLOESS'S MOTION TO SEVER] by Branch D. Kloess.

Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF ALABAMA ALDARESS CARTER, individually,) and on behalf of a class of all others) similarly situated,)) Plaintiffs,)) v.) CASE NO. 2:15-cv-555-RCL) THE CITY OF MONTGOMERY;) BRANCH D. KLOESS;) JUDICIAL CORRECTION SERVICES,) INC.; a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC.;) a corporation; and CHC COMPANIES,) INC., a corporation.)) Defendants.) DEFENDANT BRANCH D. KLOESS’S MOTION TO SEVER NOW COMES Defendant Branch D. Kloess, by and through undersigned counsel, and moves the Court to sever the single claim made against him from the remainder of the lawsuit, to assign a new case number to such claim, and to allow the claim to proceed separately from the other claims made against the other parties and as grounds for same shows unto the Court as follows: 1. Rule 21, F.R.CIV.P, authorizes the Court to sever a claim against a party. Rule 42, F.R.CIV.P, authorizes the Court to order a separate trial of one or more separate claims. The difference in the rules is that, pursuant to Rule 42, the claims and parties stay in one case with separate trials, while pursuant to Rule 21, the Court severs a party and a new case is created, with a new, separate case number. Compare Nettles v. Daphne Utilities, 2014 WL 1668535 (S.D. AL Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 2 of 7 2014)(in which the Court denied defendant’s Motion to Sever but granted Motion for Separate Trials) with Foster v. Auburn University Montgomery, 2011 WL 3875623 (M.D. AL 2011)(in which the Court granted defendant’s Motion to Sever and directed the Clerk to assign a new case action number to each of the plaintiffs’ claims). 2. Kloess is requesting that the Court sever the sole claim made against him and to direct the Clerk to assign a new case action number to his case. 3. The determination of whether to grant a motion to sever is left to the discretion of the trial court." Fisher v. Ciba Specialty Chemicals Corp., 245 F.R.D. 539, 541 (S.D.Ala.2007); see also Alexander v. Fulton County, Ga., 207 F.3d 1303, 1324, n. 16 (11th Cir.2000) ("The trial court likewise has discretion under Rule 20(b) to order separate trials to prevent delay or prejudice."); Oram v. SoulCycle LLC, ––– F.Supp.2d ––––, 2013 WL 5797346, *2 (S.D.N.Y. Oct. 28, 2013) ("The trial court has broad discretion in determining whether to sever claims under FED.R.CIV.P. Rule 21."). "[T]he factors considered in exercising that discretion include whether the claims arise from the same transaction or occurrence, whether they present some common question of law or fact, whether severance would facilitate settlement or judicial economy, and the relative prejudice to each side if the motion is granted or denied." Fisher, 245 F.R.D. at 541 (citations omitted); see also Graudins v. Retro Fitness, LLC, 921 F.Supp.2d at 468 (in evaluating motion to sever, courts weigh "convenience of the parties, avoiding prejudice, and promoting expedition and economy") (citation omitted). "In considering whether to order separate trials of any claims or issues, the paramount consideration must remain a fair and impartial trial to all litigants through a balance of benefits and prejudice." Fisher, 245 F.R.D. at 541–42 (citation and internal quotation marks omitted); see also Malibu Media, LLC v. John Does, 1–14, 287 F.R.D. 513, 522 (N.D.Ind.2012) (in evaluating motion to sever, "a court should consider the convenience and fairness to parties," and its decision "should Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 3 of 7 serve the ends of justice and facilitate the prompt and efficient disposition of the litigation") (citation omitted). 4. As the Court noted in its March 10, 2017 Order, while there appears to be much overlap between this case and the case styled McCullough v. City of Montgomery, 2:15-cv-463-WKW, there is a unique claim made against Kloess and the City of Montgomery in this case – that those defendants violated Carter’s constitutional right to due process of law. However, even in that claim, Carter alleges that the City of Montgomery violated Carter’s constitutional right to due process in ways different than Kloess. The claim against Kloess is isolated and unique – that he violated Carter’s constitutional right to due process by failing to appear with him when he appeared before The City of Montgomery Municipal Court and, therefore, failed to address Carter’s alleged indigent status. 5. While Carter’s complaint contains class allegations, there is no class nor subclass identified as being "all clients represented by Kloess who appeared before The City of Montgomery Municipal Court without Kloess being present to represent them." While the matter of class certification will be addressed separately if necessary, Kloess’s point is that the asserted classes contained in the complaint have nothing to do with Kloess or his representation. As the Court noted, the overwhelming majority of Carter’s claims address defendants in City court being placed with JCS for payment of fines or incarcerated to "work off" fines "voluntarily." 6. Carter’s other claims made against the other parties are complicate and are going to take substantial discovery, substantial motion practice with regard to the asserted class, and, if tried, lengthy trials with very Complicated issues for a jury to consider. 7. On the other hand, Carter’s claims against Kloess are isolated and much simpler to administer and reach disposition. Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 4 of 7 8. Kloess recognizes that there is one claim that is common to himself and the City of Montgomery (but not any of the other defendants): that Carter’s constitutional right to due process was violated. Therefore, of the factors set forth above, there is one common question of law. However, there is only one and it relates to the law. There are not common questions of fact with regard to how each of Kloess and the City of Montgomery violated Carter’s constitutional right to due process. Therefore, that factor militates against keeping the claims in one suit. 9. The claims against Kloess and the other defendants do not arise out of the same transaction or occurrence. Carter alleges that he was placed on "probation" with JCS, that his probation was "revoked" without a hearing, that a warrant was issued against him, that he was arrested, that he sat in jail over the weekend, and that he finally appeared in Court on Monday — all before Carter allegedly had any interaction with Kloess. Carter then alleges interaction – or lack thereof-he had with Kloess when he appeared in City court. He then alleges that the Municipal Court Judge ordered him to be kept in jail until he paid the fines assessed against him or "worked off" the fines by performing jail labor. The only common transaction or occurrence is allegedly when Carter appeared before a Municipal Court Judge allegedly without Kloess. Since Kloess is alleged not to have been present, there is no common transaction or occurrence alleged. 10. Kloess will be severely prejudiced if severance is not granted. Counsel for Kloess will have to decide what depositions to attend, whether to obtain copies of depositions, what documents to review, what discovery to participate in or not participate in, trying to balance doing what is necessary to represent his client while at the same time trying to minimize expense of defense to Kloess. Likewise, if Kloess remains in this action his counsel will be served with pleadings and motions filed by the parties which will likely have no bearing on the single claim being made against Kloess. Nevertheless, counsel for Kloess will be forced to review any filing to determine whether Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 5 of 7 it has any bearing on the single claim made against Kloess, and will have to charge Kloess for doing so. 11. If the Court severs the single claim made against Kloess, the parties’s activities will be directed at that claim – whether an attorney client relationship was created; what interaction there was between Kloess and Carter; and exactly what happened when Carter appeared in court the Monday after he was arrested. Those facts are simple and the discovery related to them should be significantly less abbreviated than the discovery related to the other claims against the other parties. Likewise, the trial of the single claim against Kloess should be significantly less abbreviated than the trial of the other claims made against the other parties. Severing the claim against Kloess would eliminate juror confusion and eliminate possible bias or prejudice against Koess by jurors hearing what allegedly happened to Carter before and after he appeared in City Court. 12. There will be no substantial prejudice to Carter if the single claim against Kloess is severed. Carter could claim prejudice by having to attend more than one trial, but that prejudice, if any, is outweighed by the prejudice to Kloess if the single claim against him is not severed. 13. In fact, Carter could have filed a separate suit against only Kloess and it is doubtful that any defendant would have filed a motion to have Kloess joined as a party to this action. Kloess certainly would not have filed such a motion; and any such motion would likely be met with a contention that the single claim against Kloess is so unique and different from the other claims against the other parties that the claim against him should remain a separate suit. 14. Judicial economy would be promoted, and juror confusion and prejudice to Kloess would be eliminated if the Court severs the single claim being made against Kloess. Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 6 of 7 WHEREFORE, PREMISES CONSIDERED, Kloess moves the Court to sever the claim made against him and to direct the Clerk of the Court to assign a new case number to the severed claim. RESPECTFULLY SUBMITTED, this the 24th day of March, 2017./s/Micheal S. Jackson MICHEAL S. JACKSON [ASB-8173-O78M] Attorney for Defendant Branch D. Kloess Webster, Henry, Lyons, Bradwell, Cohan & Speagle, P.C. 105 Tallapoosa Street, Suite 101 [36104] P. O. Box 239 Montgomery, AL 36101-0239 (334) 264-9472/(334) 264-9599 (fax) mjackson@websterhenry.com Case 2:15-cv-00555-RCL-WC Document 104 Filed 03/24/17 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on March 24, 2017, I electronically filed DEFENDANT BRANCH D. KLOESS’S MOTION TO SEVER with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: William M. Dawson, Jr., Esq. Alexandria Parrish, Esq. Attorney at Law G. Daniel Evans, Esq. 2600 Highland Avenue, Suite 404 Maurine C. Evans, Esq. Birmingham, AL 35205 The Evans Law Firm bill@billdawsonlaw.com 1736 Oxmoor Road, Suite 101 Birmingham AL 35209 F. Lane Finch, Jr., Esq. gdevans@evanslawpc.com Brian C. Richardson, Esq. ap@evanslawpc.com Swift, Currie, McGhee & Hiers, LLP me@evanslawpc.com 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Larry S. Logsdon, Esq. lane.finch@swiftcurrie.com Michael L. Jackson, Esq. brian.richardson@swiftcurrie.com Wesley K. Winborn, Esq. Wallace, Jordan, Ratliff & Brandt, LLC Shannon L. Holliday, Esq. P. O. Box 530910 Robert D. Segall, Esq. Birmingham, AL 35253 Joel Caldwell, Esq. mjackson@wallacejordan.com Copeland, Franco, Screws & Gill, P.A. wwinborn@wallacejordan.com P. O. Box 347 Montgomery, AL 36101-0347 holliday@copelandfranco.com segall@copelandfranco.com caldwell@copelandfranco.com Wilson F. Green, Esq. Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa AL 35406 wgreen@fleenorgreen.com/s/Micheal S. Jackson MICHEAL S. JACKSON

ANSWER to [18] Amended Complaint, by CHC Companies, Inc.

Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 1 of 21 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER,)) Plaintiff,)) vs.) Civil Action No.: 2:15-cv-00555-RCL) THE CITY OF MONTGOMERY,) et al.,)) Defendants.) ANSWER BY CHC COMPANIES, INC. TO PLAINTIFF’S FIRST AMENDED AND RESTATED COMPLAINT Defendant CHC Companies, Inc. answers Plaintiff’s First Amended and Restated Complaint as follows and asserts the following defenses: Jurisdiction 1. CHC Companies, Inc. admits this Court has subject matter jurisdiction, but denies the Plaintiff is entitled to any relief under 42 U.S.C. §§ 1983. 2. No response is due from CHC Companies, Inc. to the statement contained in Paragraph 2. 3. Admitted. Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 2 of 21 Parties to the Complaint 4. Admitted based on information and belief. 5. No response is due from CHC Companies, Inc. to the alleged classes the Plaintiff seeks to represent; however, to the extent a response is required, CHCC denies the allegations in Paragraph 5. 6. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of these allegations, so the allegations are denied. 7. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of these allegations, so the allegations are denied. 8-9. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of these allegations, so the allegations are denied. 10. CHC Companies, Inc. admits that CHC Companies, Inc. is a foreign corporation formed in Delaware and doing business in Alabama. The remainder of this paragraph is denied. 11-17. Denied. 18. The agreement speaks for itself. Any inconsistent allegations are denied. 19-21. Denied. 2 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 3 of 21 22-24. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of these allegations, so the allegations are denied. 25-69. Denied. The Plaintiffs 70. Denied. Aldaress Carter 71. Admitted based on information and belief. 72-75. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of these allegations, so the allegations are denied. 76. Denied as to CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations, so those allegations are denied. 77. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations, so those allegations are denied. 78-83. Denied as to CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations, so those allegations are denied. 3 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 4 of 21 84-85. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 86. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 87-94. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 95-96. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 97-100. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 101. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 4 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 5 of 21 Plaintiff’s Class Allegations 102. CHC Companies, Inc. denies the claims should be certified as a class action. CHC Companies, Inc. lacks knowledge or information sufficient to form a belief about the truth of these allegations, so the allegations are denied. 103-104. Denied. 105. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 106-108. Denied. 109-111. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Count One-Denial of Due Process Against the City of Montgomery and Kloess CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 112. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 113. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 5 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 6 of 21 114. The agreement speaks for itself. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 115-119. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 120. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 121-122. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 123-135. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 136. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 137-139. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 6 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 7 of 21 140-141. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 142. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 143-147. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 148. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Count Two – Denial of Due Process Against JCS, CHC and CHCC (‘JCS’) CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 149-153. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 7 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 8 of 21 154. The agreement speaks for itself. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 155-159. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 160-162. Denied. 163-194. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Count Three – Violation of the Fourth Amendment Against the City of Montgomery CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 195. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 196-197. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 198. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 8 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 9 of 21 199. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 200. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 201-203. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 204-205. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. Count Four – Violation of the Fourth Amendment by JCS, CHC and CHCC (‘JCS’) CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 206-208. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 209. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 9 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 10 of 21 210. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 211. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 212-216. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Count Five – Violation of the Sixth Amendment Against City of Montgomery CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 217. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 218-233. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Count Six – Violation of the Sixth Amendment by JCS, CHC, and CHCC (‘JCS’) CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 10 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 11 of 21 234-251. Denied. Count Seven – Violation of the Eighth Amendment Against the City of Montgomery CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 252-253. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 254-258. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 259-260. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 261-263. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 264-266. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 11 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 12 of 21 Count Eight – Violation of the Eighth Amendment by JCS, CHC and CHCC (‘JCS’) CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 267-268. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 269-273. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 274-276. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 277-279. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 280-282. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 12 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 13 of 21 Count Nine – Denial of Equal Protection City of Montgomery CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 283-294. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Count Ten – Denial of Equal Protection by JCS, CHC and CHCC (‘JCS’) CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 295-308. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. Counts Eleven through Fourteen Racketeering Influenced and Corrupt Organizations Act 18 U.S.C. § 1962(a)(b)(c) & (b) 309-405. This count was dismissed by the Court and no response is required. See Doc. 97. Count Fifteen – Declaratory and Injunctive Relief CHC Companies, Inc. incorporates by reference the previous answers and denials as if fully stated herein. 13 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 14 of 21 406-407. CHC Companies, Inc. admits a controversy exists. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 408. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 409-410. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. 411-419. Denied as to CHC Companies, Inc. CHC Companies, Inc. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the remaining allegations, so the allegations are denied. 420-426. CHC Companies, Inc. lacks knowledge or sufficient information to form a belief about the truth of the allegations, so the allegations are denied. General Denial CHC Companies, Inc. denies any factual, legal or mixed allegations in the First Amended and Restated Complaint not specifically admitted in this answer. 14 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 15 of 21 Affirmative Defenses 1. The First Amended and Restated Complaint and each claim therein fail to state claims upon which relief can be granted. 2. Plaintiff has failed to state injuries or damages caused by CHC Companies, Inc. which violated Plaintiff’s constitutional rights. 3. Plaintiff failed to fulfill conditions precedent to bringing suit against CHC Companies, Inc. 4. Some or all of the Plaintiff’s claims are barred by the statute of limitations, waiver, estoppel, laches, acquiescence, and accord and satisfaction. 5. The claims are barred by untimely or late notice. 6. Plaintiff’s alleged damages were caused by their failure to mitigate those damages through the exercise of reasonable diligence. 7. CHC Companies, Inc. pleads set-off and recoupment. 8. CHC Companies, Inc. pleads the doctrine of unclean hands. 9. The Plaintiff has failed to join indispensable parties, including, but not limited to, the State of Alabama. 10. CHC Companies, Inc. pleads qualified, judicial, and/or discretionary function immunity. 15 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 16 of 21 11. Plaintiff is guilty of negligence, wantonness, recklessness and intentional acts or criminal acts which proximately caused or contributed to the injuries or damages claimed. 12. Plaintiff’s Complaint should be dismissed in there is no evidence of a policy or practice adopted by this Defendant which violates the Plaintiff’s constitutional rights nor does CHC Companies, Inc. have a policy or custom which is unconstitutional. 13. CHC Companies, Inc. denies any guilt or wrongful conduct giving rise to the stated cause(s) of action in the Complaint. 14. Plaintiff’s claims for the recovery or punitive damages are barred by Ala. Code § 6-11-27. 15. Plaintiff is not entitled to punitive damages and that the award of punitive damages would violate the Fourth, Fifth, Sixth, Eleventh, and Fourteenth Amendments of the Constitution of the United States and Article 1 §§ 6, 10, 11, 15, 22, 35, 36, and 43 of the Constitution of Alabama (1901). 16. Plaintiff’s First Amended and Restated Complaint fails to state a claim upon which relief can be granted for punitive damages. 17. Plaintiff’s claims for the recovery of punitive damages are barred by Ala. Code §§ 6-11-20, et seq., and 11-93-2. 16 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 17 of 21 18. CHC Companies denies each allegation in the First Amended and Restated Complaint and demand strict proof thereof. 19. CHC Companies, Inc. denies that it owed any duty to the Plaintiff. 20. The Plaintiff’s damages, if any, resulted from a suspending, intervening cause and not by any act or omission of this Defendant. 21. CHC Companies, Inc. pleads not guilty. 22. Plaintiff lacks standing to assert some or all of the claims. 23. This lawsuit is not manageable as a class action. 24. CHC Companies, Inc. denies that there are common questions or law and fact affecting members of the purported class. 25. Plaintiff and the purported class members’ claims are barred in whole or in part by consent. 26. Plaintiff and the purported class members either pled or were found guilty of all offenses leading to their probation; therefore, any of Plaintiff’s and purported class members’ claims originating from facts or circumstances related to their probation lack merit and are barred. 27. Plaintiff and the purported class members’ injuries, if any, were caused solely by acts or omissions of persons or entities other than CHC Companies, Inc. who are not and were not employees or agents or CHC Companies, Inc., for whose acts or omissions CHC Companies, Inc. are not 17 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 18 of 21 responsible and which did not occur in connection with direct or indirect contractual relationship with CHC Companies, Inc. At all times, CHC Companies, Inc. exercised due care and took precaution against foreseeable acts and omissions of third parties. 28. Plaintiff’s claims are barred by the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). 29. CHC Companies, Inc.’s actions or inactions are not the proximate cause of Plaintiff’s or the purported class members’ alleged damages. 30. Plaintiff and the purported class members have failed to show the likelihood of irreparable harm. 31. The issuance of an injunction would not serve the public interest. 32. Plaintiff and the purported class members have failed to plead equity. 33. Plaintiff has failed to meet conditions precedent to bring this lawsuit. 34. There is no affirmative link or causal connection between any of CHC Companies, Inc.’s alleged policies, customs, or practices and Plaintiff and the purported class members’ alleged injuries or damages. 35. This action may not be maintained as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. 36. Plaintiff and the purported class cannot satisfy the prerequisites for class certification and therefore cannot represent the interest of others. 18 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 19 of 21 37. This lawsuit cannot be maintained as a class action because individual questions of law and fact predominate, including, but not limited to, each person’s alleged damages are different and subject to different defenses and mitigating circumstances. 38. CHC Companies, Inc. denies that a class action is superior to all available methods for a fair and efficient adjudication of this controversy. 39. CHC Companies, Inc. denies that there are common questions of law and fact affecting members of the purported class. 40. Certification of the class, as applied to the facts and circumstances of this case, would constitute a denial of CHC Companies, Inc.’s due process rights, both substantive and procedural, in violation of the Fourteenth Amendment of the United States Constitution and the Alabama Constitution of 1901. 41. The voluntary payment doctrine bars Plaintiff’s claims and the class action claims. 42. Plaintiff and the purported class members’ cannot prove the elements of any of their claims. 43. CHC Companies, Inc. denies that they claims of the individual Plaintiff are typical of the claims of the proposed class and that the defenses to the action are also on grounds generally applicable to the proposed class. 19 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 20 of 21 44. Plaintiff willfully failed to comply with the terms of probation, even when able to do so. 45. CHC Companies, Inc. adopts and incorporates by reference as if fully set forth herein all affirmative defenses asserted by other defendants in this case, to the extent that those affirmative defenses are not inconsistent with the answers, denials, and affirmative defenses asserted by the Defendants. 46. CHC Companies, Inc. reserves the right to assert any further additional defenses that may be developed during the course of discovery in this matter. RESPECTFULLY SUBMITTED,/s/F. Lane Finch, Jr. F. Lane Finch, Jr. (ASB-0027-I58F) Brian C. Richardson (ASB-5241-H14U) Attorneys for CHC Companies, Inc. OF COUNSEL: SWIFT, CURRIE, MCGHEE & HIERS, LLP 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Telephone: (205) 314-2401 Facsimile: (205) 244-1373 lane.finch@swiftcurrie.com brian.richardson@swiftcurrie.com 20 Case 2:15-cv-00555-RCL-WC Document 105 Filed 03/24/17 Page 21 of 21 CERTIFICATE OF SERVICE I hereby certify that on March 24, 2017, I have electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of filing to all counsel of record. Alexandria Parrish Larry S. Logsdon G. Daniel Evans Michael L. Jackson Maurine C. Evans Wesley K. Winborn THE EVANS LAW FIRM, P.C. WALLACE, JORDAN, RATLIFF & ap@evanslawpc.com BRANDT, LLC gdevans@evanslawpc.com llogsdon@wallacejordan.com mevans@evanslawpc.com mjackson@wallacejordan.com wwinborn@wallacejordan.com William M. Dawson, Jr. bill@billdawsonlaw.com Wilson F. Green Attorneys for Plaintiff FLEENOR & GREEN, LLP wgreen@fleenorgreen.com Joel Thomas Caldwell Attorneys for Judicial Correctional Robert David Segall Services, Inc. and Correctional Shannon Lynn Holliday Healthcare Companies, Inc. COPELAND FRANCO SCREWS & GILL, PA caldwell@copelandfranco.com segall@copelandfranco.com holliday@copelandfranco.com Attorneys for The City of Montgomery Michael S. Jackson WEBSTER, HENRY, LYONS, BRADWELL, COHAN & BLACK, P.C. mjackson@websterhenry.com Attorney for Branch D. Kloess/s/F. Lane Finch, Jr. OF COUNSEL 21 3393641v.1

RESPONSE TO ORDER TO SHOW CAUSE by Judicial Correctional Services, Inc. re [99] Order to Show Cause.

Case 2:15-cv-00555-RCL-WC Document 106 Filed 03/24/17 Page 1 of 7 IN THE UNITED STATED DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA ALDARESS CARTER, individually,) and on behalf of a class of all others) similarly situated,)) Plaintiffs,)) v.) Case No. 2:15-CV-0555-RCL) THE CITY OF MONTGOMERY;) BRANCH D. KLOESS;) JUDICIAL CORRECTION SERVICES,) INC.; a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC.;) a corporation; and CHC COMPANIES,) INC., a corporation.)) Defendants.) Defendant Judicial Corrections Services’ Response to the Court’s Order to Show Cause Relating to the Consolidation of the Carter and McCullough Cases (Doc. 99) Defendant Judicial Correction Services ("JCS") responds to the Court’s show-cause orders (Doc. 99 in Carter, Doc. 133 in McCullough) by stating that JCS does not oppose the consolidation of the Carter and McCullough actions and by requesting that the Court consider taking further action regarding the overlapping nature of certain related putative class actions: 1. JCS agrees that Carter and McCullough are appropriate for consolidated treatment due to the overlapping nature of the putative classes. Case 2:15-cv-00555-RCL-WC Document 106 Filed 03/24/17 Page 2 of 7 2. The nature of the overlapping classes in both Carter and McCullough—which is the basis of the Court’s show-cause order—does not, however, stop with these two cases. For that reason, JCS requests that the Court enter an Order providing for further consolidation or transfer of the case to the Northern District of Alabama, for the reasons set forth below. 3. The Carter and McCullough putative classes are themselves a substantial portion of a substantially larger (and longer-pending) putative class, for which certification is being sought in the Northern District of Alabama in Ray v. Judicial Corrections Services, Inc., Case No. 2:12-cv-02819-RDP (N.D. Ala.). The putative class in Ray covers all JCS probationers in Alabama going back to the fall of 2010, and thus encompasses all of the Carter putative class, as well as the portion of the putative class in McCullough which is asserting claims against JCS. See Fourth Amended and Restated Complaint (Doc. 305) in Ray, at ¶¶ 9 & 79 (defining class to include all Alabama probationers who were ordered to probation under JCS and all Alabama JCS probationers who were allegedly jailed). 1 Plaintiff’s counsel in Carter is putative class counsel in Ray, and the Fourth Amended and Restated Complaint in Ray is substantially similar to the First Amended and Restated Complaint in Carter (Doc. 18). The Fourth Amended and Restated Complaint in Ray can be accessed at Doc. 305 on 1 PACER or the Court’s CM/ECF system at https://ecf.alnd.uscourts.gov/doc1/01914076738. 2 Case 2:15-cv-00555-RCL-WC Document 106 Filed 03/24/17 Page 3 of 7 4. Additionally, there is a case pending in the Middle District of Alabama—Thurman v. Judicial Corrections Services, No. 2:12-cv-00724 (M.D. Ala.)—whose putative class has significant enough overlap with the Ray case that it is has been reassigned to The Honorable R. David Proctor, who is presiding over the Ray case in the Northern District of Alabama (and is sitting in Thurman by designation in the Middle District). The plaintiffs in Thurman seek a putative state-wide class of JCS probationers (Thurman, Second Amended Class Action Complaint (Doc. 53)). 5. In circumstances involving multiple competing and overlapping putative classes, some Eleventh Circuit courts have applied the first-filed doctrine, recognized in the Eleventh Circuit, and concluded that the first-filed case (in this case, that would be Ray and perhaps also Thurman) take precedence over competing putative classes which involve transactionally related claims. See, e.g., Klaas v. Allstate Ins. Co., No. 2:15-cv-163-FtM-29DNF (M.D. Fla. June 1, 2015) (Doc. 20) (available on PACER or the Court’s CM/ECF system at https://ecf.flmd.uscourts.gov/doc1/047114765618) (transferring a putative class action from the Middle District of Florida to the Middle District of Alabama based on the first-filed status of a substantially larger and overlapping class case in the transferee court) (relying on Collegiate Licensing Co. v. Am. Cas. Co. of Reading, 713 F.3d 71, 78 (11th Cir. 2013), and cited in Turner v. Allstate Ins. Co., No. 2:13-CV-685-WKW, 2016 3 Case 2:15-cv-00555-RCL-WC Document 106 Filed 03/24/17 Page 4 of 7 WL 5445068, at *2 (M.D. Ala. Sept. 27, 2016)); see also Discover Prop. & Cas. Ins. Co. v. AIM Leasing Co., No. 1:14-CV-03039-WSD, 2015 WL 4599199, at *5 (N.D. Ga. July 31, 2015) (deciding to transfer an overlapping case to a different district because "transfer is the more efficient process and the one that gives effect to the principles upon which the first-filed rule is founded"). 6. JCS believes that further consolidation of these various and overlapping classes needs to take place. That could be accomplished in at least two different ways, among them: (1) this Court could transfer the consolidated Carter and McCullough cases to the Northern District of Alabama for consolidation with Ray, under the first-filed doctrine; or (2) this Court could consolidate both Carter and McCullough with the Thurman case, still pending in the Middle District of Alabama but assigned to Judge Proctor (who also has the Ray case), in order to ensure the proper monitoring of multi-overlapping putative class phenomena in these cases. Either of those procedural mechanisms would ensure that JCS is not forced to defend multiple overlapping cases in multiple forums among multiple competing class counsel. 7. That last point—the potential for multiple competing class counsel— has been underscored by the most recent filing by the plaintiffs’ counsel in McCullough. After this Court’s show-cause order in McCullough (Doc. 133), putative class counsel in McCullough filed a Motion for Appointment as 4 Case 2:15-cv-00555-RCL-WC Document 106 Filed 03/24/17 Page 5 of 7 Interim Class Counsel (Doc. 135). In that Motion for Appointment, McCullough putative class counsel is arguing (at p. 4) that the McCullough counsel are in a superior position to represent the overlapping class than the Carter putative class counsel because, among other reasons, "counsel in Carter are currently counsel in class action debtor’s prison suits against several other Alabama cities and a purported statewide class action lawsuit against JCS, which not only may prevent their undivided attention to the pre-certification class issues in this case, but possibly could present conflicts of interest with respect to issues in this case." This kind of competition among counsel vying for lead class counsel appointment begs for there to be one district court—whichever one it is—presiding over all of these overlapping cases. 8. Based on the foregoing, JCS agrees that Carter and McCullough should be consolidated. Further, JCS requests that the Court enter an Order providing further consolidation or transfer, or otherwise enter an Order addressing the problems addressed in this response regarding the multiple overlapping classes involved in these various cases. 5 Respectfully submitted on March 24, 2017. s/Michael L. Jackson Larry S. Logsdon Michael L. Jackson Wesley K. Winborn llogsdon@wallacejordan.com mjackson@wallacejordan.com wwinborn@wallacejordan.com Of Counsel: Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 (205) 870-0555 Wilson F. Green wgreen@fleenorgreen.com Of Counsel: Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 (205) 722-1018 Attorneys for Defendants Judicial Corrections Services and Correctional Healthcare Companies 6 Case 2:15-cv-00555-RCL-WC Document 106 Filed 03/24/17 Page 7 of 7 Certificate of Service I certify that on March 24, 2017, I served a copy of the foregoing on all counsel by the Court=s CM/ECF electronic-filing system as follows: William M. Dawson, Jr., Esq. Shannon Holliday, Esq. Attorney at Law Robert D. Segall, Esq. 2600 Highland Ave., Suite 404 Joel Caldwell, Esq. Birmingham, AL 35205 Copeland, Franco, Screws & Gill bill@billdawsonlaw.com P.O. Box 347 Montgomery, AL 36101-0347 G. Daniel Evans, Esq. caldwell@copelandfranco.com Alexandria Parrish, Esq. segall@copelandfranco.com Maurine C. Evans, Esq. holliday@copelandfranco.com The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 F. Lane Finch Jr., Esq. Birmingham, AL 35209 Brian C. Richardson, Esq. gdevans@evanslawpc.com Swift, Currie, McGhee & Hiers ap@evanslawpc.com 2 North 20th Street, Suite 1405 me@evanslawpc.com Birmingham, AL 35203 lane.finch@swiftcurrie.com Michael S. Jackson, Esq. brian.richardson@swiftcurrie.com Webster, Henry, Lyons, Bradwell, Cohan & Black P.O. Box 239 Montgomery, AL 36101 mjackson@websterhenry.com s/Michael L. Jackson Michael L. Jackson mjackson@wallacejordan.com 7

ANSWER to Complaint (Amended Complaint (Doc. 18) by The City of Montgomery.

Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 1 of 49 IN THE UNITED STATED DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA ALDARESS CARTER, individually,) and on behalf of a class of all others) similarly situated,)) Plaintiffs,)) v.) Case No. 2:15-cv-555-RCL) THE CITY OF MONTGOMERY;) BRANCH D. KLOESS;) JUDICIAL CORRECTION SERVICES,) INC.; a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC.;) a corporation; and CHC COMPANIES,) INC., a corporation.)) Defendants.) ANSWER OF DEFENDANT CITY OF MONTGOMERY COMES NOW, the City of Montgomery (the "City"), Defendant in the above-styled case, and files this Answer to Plaintiffs’ First Amended and Restated Complaint as follows: JURISDICTION 1. It is admitted that this Court has subject matter jurisdiction over this action. 2. No response is required of this defendant as to the type of claim the Plaintiff seeks to assert. To the extent any response is required, the allegations of this paragraph are denied. 3. It is admitted that venue in this judicial district is proper. PARTIES TO THE COMPLAINT 4. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 2 of 49 5. The City admits that the Plaintiff brings this claim individually and as a purported class action seeking damages as well as declaratory and injunctive relief. The City denies that the Plaintiff represents a class of similarly situated people and denies that this case is appropriate for class certification. 6. It is admitted that the City is a municipal corporation located within Montgomery County, Alabama. It is denied that the Mayor "hires" the municipal court judges or the public defenders, and that the Mayor or City Council has authority over the actions of the Municipal Court, its judges or the public defenders. It is further denied that the Mayor contracted with JCS to collect its municipal court fines. It is admitted that the City is a municipal corporation. 7. It is admitted that Branch D. Kloess is an individual and a licensed attorney located within Montgomery County and that he contracted with the City of Montgomery to provide legal representation to defendants in municipal court, the terms of which speak for itself. The remaining allegations of this paragraph are denied. 8. It is admitted that JCS was doing business in the State of Alabama and in this District. It is denied that JCS has at all times operated under the color of state law. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 9. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 10. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph. 2 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 3 of 49 FACTS 11. Denied. 12. Denied. 13. Denied. The City likewise denies the allegations in footnote 2. 14. It is admitted that, in the past, the City had contracted with JCS and that JCS was a for-profit business that provides services to municipalities. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph, and demands strict proof thereof. 15. Denied. 16. The terms of the agreement between the City and JCS speak for themselves and any characterization thereof by Plaintiff is denied. The remaining allegations of this paragraph are denied. 17. Denied. 18. The terms of the agreement between the City and JCS speak for themselves and any characterization thereof by Plaintiff is denied. 19. It is admitted that the City and JCS had an agreement from March 19, 2009 until the summer of 2014. The remaining allegations of this paragraph are denied. 20. Denied. 21. It is admitted that the City contracted with attorneys to represent indigent defendants in the Municipal Court. The terms of the contracts between the City and such attorneys speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. 22. Denied. 3 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 4 of 49 23. Denied. 24. The terms of the contracts between the City and the public defenders speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. 25. The terms of the training manual and forms used by JCS speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. 26. Denied. 27. It is admitted that the City Council and Mayor control the policy making for the City of Montgomery, but it is denied that they control the policy making for the Municipal Court. It is admitted that the decision to use JCS was not a decision of the Chief Justice of the Alabama Supreme Court or any other employee of the Administrative Office of Courts. The remaining allegations of this paragraph are denied. 28. It is admitted that during the time the City and JCS were under contract, JCS employees would attend some municipal court sessions. The remaining allegations of this paragraph are denied. 29. Denied. 30. Denied. 31. Denied. 32. Denied. 33. Denied. 34. Denied. 35. Denied. 4 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 5 of 49 36. Denied. 37. Denied. 38. Denied. 39. Denied. 40. Denied. 41. Denied. 42. The terms of the contract between the City and JCS speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. 43. The City lacks information or knowledge to admit or deny the allegations in this paragraph and demands strict proof thereof. 44. Denied. 45. Denied. 46. Based on information made available to the City, it is admitted that JCS had use of a room in the City building that also houses the Municipal Court and that a JCS employee would on occasion sit in the courtroom such that Municipal Court judges could ask questions about individuals who had been placed under JCS’s supervision. The remaining allegations of this paragraph are denied. 47. Denied. 48. Denied. 49. Denied. 50. The court documents speak for themselves and any characterization thereof is denied. Based on information made available to the City, it is denied that any restrictions set out 5 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 6 of 49 in the court documents and allegedly placed on the liberty of individuals placed under JCS supervision were enforced. The remaining allegations of this paragraph are denied. 51. It is admitted that the City imposes, as provided by state statute, a warrant fee when warrants are executed. The remaining allegations of this paragraph are denied. 52. Denied. The contents of footnote 7 are likewise denied as are the contents of all footnotes throughout the complaint. 53. Denied. 54. It is denied that the City had any duty to undertake the actions alleged in this paragraph. It is admitted that the City did not take the actions referenced in this paragraph. The City controls neither the public defender, municipal court judges, or court personnel in connection with any allegations made in this Complaint and does not answer on their behalf in this or any other paragraph of this answer. 55. It is admitted, based on information made available to the City, that the amount listed on paperwork was often less than that announced in open court because judges often waived fees and fines. It is admitted that some offenders were permitted, but never required, to work off an extra $25 per day of outstanding fines and costs while in jail for performing certain tasks. The remaining allegations of this paragraph are denied. 56. It is admitted that tasks available could have included the cleaning of rooms, bathrooms and cells. The remaining allegations of this paragraph are denied. 57. Denied. 58. It is admitted that the City of Montgomery’s 2013 year-end budget reflects $15.9 million as the total revenue from fines and forfeitures including those that would later have to be 6 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 7 of 49 turned over to state and other agencies. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph. 59. It is admitted that the City uses some portion of the money collected by the Municipal Court from the payment of fines and forfeitures to pay for portions of its budget. The remaining allegations of this paragraph are denied. 60. It is admitted that Ken Nixon, the Court Administrator, announced an Amnesty program in connection with which the Municipal Court would remove certain fees, eliminate arrest warrants and institute a payment plan if offenders met the amnesty criteria. The remaining allegations of this paragraph are denied. 61. Denied. Based on information available to the City, to the extent that people were arrested, they were arrested for outstanding warrants for failure to appear. 62. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations regarding how the detail in its budget compares to other cities and how the amount of fines and forfeitures collected compares to other cities and demands strict proof thereof. The City lacks information sufficient to admit or deny precisely what the Court Administrator may have told the Montgomery Advertiser and demands strict proof thereof. The City denies that arrests were made based on failure to pay fines and costs. The remaining allegations of this paragraph are denied. 63. Denied. 64. It is admitted that the Municipal Court refers matters to the Montgomery County District Attorney’s Office. It is denied that the City does so. The contents of letters sent by the District Attorney’s Office speak for themselves and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 7 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 8 of 49 65. Denied. 66. Denied. 67. Denied. 68. Denied. 69. Denied. THE PLAINTIFF 70. It is denied that Plaintiff or any individual was incarcerated for failure to pay charges and fees for services allegedly required by JCS. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 71. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 72. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 73. It is admitted that, according to the court records available, there were multiple capias warrants outstanding for Mr. Carter and that he was arrested. The City specifically denies any allegations in Footnote 10. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 74. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 8 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 9 of 49 75. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. The City denies any implication or accusation relative to footnote 11 in paragraph 75. 76. It is admitted that according to available court records the warrants executed on or about January 25, 2014 related to failure to appear in connection with traffic tickets Mr. Carter had incurred in 2011 and 2012 and that when he first received those tickets, he had been fined by the Montgomery Municipal Court for the charges but did not receive a jail sentence. It is denied that JCS was hired to collect outstanding fines. It is denied, based on available Municipal Court records, that JCS requested that these warrants be issued or that said warrants were issued for outstanding fines. The City denies any implication or accusation relative to footnote 12 in paragraph 76. 77. It is admitted that, according to available court records, in 2011, the Municipal Court of the City of Montgomery entered an "Order of Probation" as to Aldaress Carter and that pursuant to the document he was to pay JCS an additional $40 per month. The remaining allegations of this paragraph are denied. 78. Denied. 79. Denied. 80. It is denied that JCS is the City’s agent. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 81. It is denied that JCS is the City’s agent. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 9 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 10 of 49 82. It is admitted that on or about December 6, 2012, according to JCS’s records, JCS created a document entitled Petition for Revocation of Probation. It is admitted that the City never sent any such notice. The remaining allegations of this paragraph are denied and it is denied that the City had any duty to send said notice to Carter. 83. The content of JCS’s revocation petition speak for itself and any characterization thereof is denied. 84. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 85. It is denied that the City issued a warrant for Mr. Carter’s arrest. The remaining allegations of this paragraph are denied. 86. Denied. 87. It is denied that the City had any responsibility to provide notice of the original court hearing to Mr. Carter. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 88. It is admitted that, according to available Court records, after Plaintiff was arrested on or about January 25, 2014, he was taken to the Montgomery City Jail. The remaining allegations of this paragraph are denied. 89. It is admitted that, according to available Court records, Plaintiff appeared in Montgomery Municipal Court on January 27, 2014. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 10 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 11 of 49 90. The City admits that Branch Kloess is a public defender at the Municipal Court. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 91. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 92. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 93. It is admitted that, based on available Municipal Court records, $452.00 was paid toward Mr. Carter’s fines and costs. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 94. It is admitted that available court records indicate that $452.00 was paid and that the Plaintiff was released from jail. It is denied that his release occurred on January 30, 2014 as, according to available court records, he was in fact released on January 28, 2014. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 95. Denied. 96. Denied. 97. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 98. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph and demands strict proof thereof. 11 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 12 of 49 99. It is admitted that, according to the available court records, neither Mr. Kloess nor any other public defender, filed any pleading raising the issue of his indigence. The City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 100. The City admits that Mr. Kloess was paid to represent indigent people, but the City lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations set forth in this paragraph and demands strict proof thereof. 101. Denied. Plaintiff’s CLASS ALLEGATIONS 102. The City denies that the Plaintiff represents any class of similarly situated people and further denies that this case is appropriate for class certification. 103. Denied. 104. Denied. 105. Denied. 106. Denied. 107. Denied. 108. Denied. 109. Denied. 110. Denied. 111. Denied. 12 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 13 of 49 COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 112. Denied. 113. The terms of the contract between the City and JCS speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. 114. The terms of the contract between the City and JCS speak for themselves and any characterization thereof by the Plaintiff is denied. The remaining allegations of this paragraph are denied. 115. Admitted. 116. Denied. 117. The Alabama statutory and constitutional provisions cited by Plaintiff speak for themselves and any characterization thereof is denied. 118. The Alabama statutory and constitutional provisions cited by Plaintiff speak for themselves and any characterization thereof is denied. 119. The Alabama statutory provisions cited by Plaintiff speak for themselves and any characterization thereof is denied. 120. Denied. 121. Denied. 122. Denied. 13 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 14 of 49 123. The Alabama constitutional provisions cited by Plaintiff speak for themselves and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 124. Denied. 125. Denied. 126. The City lacks knowledge or information sufficient to form a belief about the truth of the allegations set forth in this paragraph as to whether Municipal Court clerks refused to accept payments, but the City denies that the clerks "actively enforced" any requirements as part of any policy or procedures established under [the JCS] contract." 127. It is admitted that some JCS employees attended municipal court sessions. The City lacks knowledge or information sufficient to form a belief about whether they were ever referred to as probation officers. The remaining allegations of this paragraph are denied. 128. Denied. 129. Denied. 130. Denied. 131. Denied. 132. Denied. 133. Denied. 134. Denied. 135. Denied. 136. Denied. 137. It is admitted that many people are assigned a public defender. The City lacks knowledge or information sufficient to form a belief about whether there were instances in which public defenders failed to introduce themselves to speak, to speak to, or keep files on their clients. 14 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 15 of 49 138. Denied. 139. It is admitted that the City paid public defender Kloess to serve as a public defender. It is specifically denied that Montgomery had a duty to investigate the Plaintiff’s indigence. It is also further denied that only indigents received access to a public defender. The remaining allegations of this paragraph are denied. 140. Denied. 141. Denied. 142. Denied. 143. Denied. 144. It is admitted that the City contracts with public defenders to represent the indigent. The remaining allegations of this paragraph are denied. 145. Denied. 146. Denied. 147. Denied. 148. Denied. COUNT TWO DENIAL OF DUE PROCESS AGAINST JCS, CHC and CHCC (‘JCS’) The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 149. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph. 150. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 15 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 16 of 49 denies the allegations of this paragraph to the extent it alleges any wrongdoing attributable to the City. 151. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 152. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 153. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 154. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 155. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 16 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 17 of 49 156. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 157. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 158. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 159. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 160. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 161. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 17 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 18 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 162. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 163. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 164. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 165. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 166. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 18 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 19 of 49 167. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 168. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 169. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 170. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 171. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 172. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 19 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 20 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 173. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 174. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 175. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 176. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 177. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 20 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 21 of 49 178. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 179. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 180. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 181. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 182. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 183. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 21 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 22 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 184. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 185. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 186. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 187. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 188. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 22 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 23 of 49 189. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 190. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 191. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 192. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 193. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 194. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 23 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 24 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. COUNT THREE VIOLATION OF THE FOURTH AMENDMENT CITY OF MONTGOMERY The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 195. Denied. 196. Denied. 197. Denied. 198. Alabama Code § 15-18-62 speaks for itself and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 199. Denied. 200. Denied. 201. Denied. 202. Denied. 203. Denied. 204. Denied. 205. Denied. COUNT FOUR VIOLATION OF THE FOURTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’) The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 206. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 24 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 25 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 207. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 208. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 209. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 210. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 211. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 25 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 26 of 49 212. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 213. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 214. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 215. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 216. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 26 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 27 of 49 COUNT FIVE VIOLATION OF THE SIXTH AMENDMENT CITY OF MONTGOMERY The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 217. Denied. 218. Denied. 219. Denied. 220. It is admitted that Plaintiff was initially ordered to pay a fine and costs by the Montgomery Municipal Court and was later placed under JCS’s supervision. The remaining allegations of this paragraph and anything therein inconsistent herewith are denied. 221. Denied. 222. Denied. 223. Denied. 224. Denied. 225. Denied. 226. Denied. 227. Denied. 228. Denied. 229. Denied. 230. Denied. 231. Denied. 232. Denied. 233. Denied. 27 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 28 of 49 COUNT SIX VIOLATION OF THE SIXTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’) The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 234. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 235. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 236. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 237. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 238. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 28 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 29 of 49 239. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 240. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 241. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 242. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 243. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 244. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 29 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 30 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 245. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 246. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 247. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 248. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 249. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 30 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 31 of 49 250. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 251. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. COUNT SEVEN VIOLATION OF THE EIGHTH AMENDMENT CITY OF MONTGOMERY The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 252. Denied. 253. Denied. 254. The Eighth Amendment speaks for itself and any characterization thereof is denied. 255. The terms of Alabama Code §§s 13A-5-12(a)(3) and 15-22-54(a) speak for themselves and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 256. The terms of Alabama Code § 15-28-62 speak for themselves and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 257. The terms of Alabama Code §§s 15-18-62 and 15-18-62(2) speak for themselves and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 31 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 32 of 49 258. The terms of Rule 26.11 of the Alabama Rules of Criminal Procedure speak for themselves and any characterization thereof is denied. The remaining allegations of this paragraph are denied. 259. Denied. 260. Denied. 261. Denied. 262. Denied. 263. Denied. 264. Denied. 265. Denied. 266. Denied. COUNT EIGHT VIOLATION OF THE EIGHTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’) The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 267. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 268. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 32 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 33 of 49 269. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 270. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 271. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 272. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 273. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 274. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 33 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 34 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 275. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 276. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 277. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 278. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 279. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 34 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 35 of 49 280. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 281. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 282. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. COUNT NINE DENIAL OF EQUAL PROTECTION CITY OF MONTGOMERY The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 283. Denied. 284. Denied. 285. Denied. 286. Denied. 287. Denied. 288. Denied. 289. Denied. 35 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 36 of 49 290. Denied. 291. Denied. 292. Denied. 293. Denied. 294. Denied. COUNT TEN DENIAL OF EQUAL PROTECTION BY JCS, CHC and CHCC (‘JCS’) The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 295. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 296. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 297. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 298. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City 36 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 37 of 49 denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 299. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 300. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 301. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 302. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 303. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 37 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 38 of 49 304. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 305. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 306. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 307. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 308. The allegations of this paragraph do not purport to assert a claim against the City and, therefore, require no response from the City. To the extent a response is required, the City denies the allegations of this paragraph to the extent they allege any wrongdoing attributable to the City. 38 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 39 of 49 RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS ACT 18 U.S.C. § 1962(a)(b) (c) & (b) (Counts Eleven through Fourteen follow this Background) RICO SCHEME-EXTORTION-MONEY FOR FREEDOM Paragraphs 309 to 405 have been dismissed pursuant to this Court’s Order and Memorandum Opinion, Docket Nos. 97 and 98. Thus no answer is required. To the extent one is required, the City pleads a general denial. COUNT FIFTEEN DECLARATORY AND INJUNCTIVE RELIEF The City incorporates by reference its answers and denials of the previous paragraphs of the First Amended and Restated Complaint as if fully set forth herein. 406. Denied. Contract between the City and JCS is void 407. It is admitted that the City had no authority to bind the judicial actions of any court official but it is denied to the extent that Plaintiff suggests that Montgomery had no authority to enter contracts which would provide the court with goods or services to be used at the court’s discretion. City does not have the power to bind the Court 408. It is admitted that the City entered an agreement with JCS. The remaining allegations of this paragraph are denied. 409. The contents of the statutory and constitutional provisions cited by Plaintiff in this paragraph speak for themselves and any characterization thereof by Plaintiff is denied. 410. Admitted. 411. Denied. Contract violates statutory limitation regarding traffic citations and municipal fines 39 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 40 of 49 412. Denied. 413. Denied. 414. Denied. Contract overrides judicial authority and administration of municipal courts reserved to the Chief Justice 415. Denied. Contract is an exclusive franchise 416. Denied. 417. It is admitted that the contract was not competitively bid. The remaining allegations of this paragraph are denied. 418. Denied. 419. Denied. 420. Denied. 421. Denied. 422. Alabama Code § 15-18-62 speaks for itself and any characterization thereof by Plaintiff is denied. 423. Denied. 424. Denied. 425. Denied. 426. Denied. The City denies that the Plaintiffs are entitled to any of the relief they seek. As for the numerous footnotes contained in the Amended Complaint referring to the contents of a DOJ report relating to Ferguson, Missouri, the contents of that report speaks for itself 40 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 41 of 49 and any characterization thereof or implication that its findings are relevant to the facts of this case by Plaintiff is denied. The City denies any factual, legal or mixed allegations of fact and law in the First Amended Class Action Complaint not specifically admitted in this Answer. Prayer for Relief WHEREFORE, premises considered, the City of Montgomery requests relief as follows: 1. The First Amended and Restated Complaint be dismissed in its entirety with prejudice; 2. Judgment be entered in favor of the City; 3. The City be awarded attorneys’ fees and costs in defending this case; and the City be awarded any other, different or further relief to which they are entitled. AFFIRMATIVE DEFENSES 1. Plaintiff’s First Amended and Restated Complaint fails to state injuries or damages caused by the City which violate Plaintiffs’ constitutional rights or for which any relief can be granted. 2. To the extent applicable, the City pleads the statute of limitations. 3. The City pleads immunity, including substantive immunity, qualified immunity, legislative immunity, judicial immunity, quasi-judicial immunity, absolute immunity, state agent immunity, discretionary function immunity, peace-officer immunity, Eleventh Amendment immunity, and sovereign immunity. 4. The City pleads that Plaintiff’s First Amended and Restated Complaint should be dismissed in that there is no evidence of a policy or practice adopted by the City which violated 41 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 42 of 49 Plaintiff’s constitutional rights nor does the City have a policy or custom which is unconstitutional. 5. The City asserts that Plaintiff is not entitled to punitive damages and that the award of punitive damages against it would violate the Fourth, Fifth, Sixth, Eighth, Eleventh and Fourteenth Amendments of the Constitution of the United States and Article 1 §§ 1, 2, 6, 10, 11, 13, 15, 22, 27, 35, 36 and 43 of the Constitution of Alabama (1901). 6. The City avers that a municipality is liable only for its own wrong and cannot be held liable under the principles or theories alleged by Plaintiff to wit: respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 689 (1978), and further that the alleged violations of plaintiff’s rights were not the result of a policy, custom or practice of the Defendant. Defendant further affirmatively pleads that the Supreme Court of Alabama has policymaking authority over the Montgomery Municipal Court. The policies, practices and procedures of the Municipal Court are established, supervised, and administered by the Alabama Supreme Court. See Ala. Code § 12-2-19. The City does not control the Municipal Court; instead, the Alabama Court system and the Municipal Judges manage and establish the operation, policies and procedures of the Municipal Court. 7. The City pleads immunity from claims of intentional acts. A municipality cannot commit intentional acts or act with malice. 8. To the extent applicable, the City pleads the doctrines of release, judicial estoppel, equitable estoppel, and waiver. 9. To the extent the Plaintiff pleads state law claims and/or to the extent such statutes apply to federal claims, the City pleads that the Plaintiff failed to comply with Alabama Code § 11-47-23 and 11-47-192. 42 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 43 of 49 10. The City pleads set-off and recoupment. 11. The City pleads the doctrine of unclean hands. 12. The City pleads that the Plaintiff has failed to join indispensable parties including, but not limited to, the State of Alabama. 13. The City pleads the "Younger abstention doctrine." Younger v. Harris, 301 U.S. 37 (1971). 14. Plaintiff has failed to mitigate his damages, if any. 15. The City pleads that each and every action taken by it was taken in the good faith belief that the same was legal and lawful at the time so taken. 16. The City pleads that Plaintiff has failed to exhaust his state court, administrative and appellate remedies. 17. The City pleads that Plaintiff has no clear right to the relief sought in the First Amended and Restated Complaint. 18. The City pleads that the Plaintiff has failed to do equity. 19. The City pleads failure of conditions precedent required for Plaintiff to bring this suit. 20. The City pleads that the alleged violations of the Plaintiff’s rights were not the result of a policy, custom or practice. 21. The Plaintiff lacks standing to assert some or all of his claims. 22. The City pleads that Heck v. Humphrey, 512 U.S. 477 (1984), bars the Plaintiff’s claims. 23. The City pleads all available affirmative defenses found in 42 U.S.C. § 1997e, including the limitations on attorneys’ fees contained in that section. 43 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 44 of 49 24. The City pleads voluntary payment. 25. The City owed no legal duty to the Plaintiff or purported class members under common law, statutory law, or the Constitution of the United States and the State of Alabama. 26. The First Amended and Restated Complaint fails to state a claim upon which relief can be granted for punitive damages. 27. The City pleads collateral estoppel and res judicata. 28. The City pleads laches and acquiescence. 29. Certification of a class, as applied to the facts and circumstances of this case, would constitute a denial of the City’s due process rights, both substantive and procedural, in violation of the Fourteenth Amendment of the United States Constitution and the Alabama Constitution of 1901. 30. Plaintiff’s claims are barred in whole or in party by consent. 31. Plaintiff either pled or was found guilty of all offenses leading to his fines and costs and/or probation; therefore, any of Plaintiff’s claims originating from facts or circumstances relating to his fines and costs and/or probation lack merit and are barred; Plaintiff cannot mount collateral attacks against his sentence or probation. 32. Plaintiff’s injuries, if any, were caused by the intervening acts of persons or entities other than the City for whose acts or omissions the City is not legally responsible. 33. Plaintiff willfully failed to comply with the terms of probation, even when able to do so. 34. Plaintiff’s claims are barred by the Rooker-Feldman doctrine. 44 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 45 of 49 35. The City asserts that Plaintiff was guilty of negligence, wantonness, recklessness and intentional acts or criminal acts which proximately caused or contributed to the injuries or damages he claims. 36. Plaintiff’s claims for injunctive relief in ongoing matters are barred by the exclusive federal remedy of habeas corpus. 37. Plaintiff’s claims for prospective injunctive relief would constitute an intrusive, unworkable, and ongoing interference by this Court with state court criminal proceedings and would violate principles of comity and federalism. 38. Plaintiff’s claims for injunctive and declaratory relief are moot. 39. Plaintiff cannot obtain injunctive relief against judicial actors pursuant to 42 U.S.C. Sec. 1983. 40. Plaintiff’s requests for relief are barred by the Federal Courts Improvement Act of 1996. 41. The federal courts should exercise abstention. 42. Plaintiff’s claims are barred by the doctrine of in pari delicto. 43. Plaintiff’s claims are barred by accord and satisfaction. 44. The claims are barred by untimely or late notice. 45. The City affirmatively pleads the provisions of Alabama Code § 11-45-9.1 and Rule 19 of the Alabama Rules of Judicial Administration. 46. To the extent permitted by law, the City affirmatively pleads the protections of Alabama Code §§ 11-47-190 and 191. 47. The City pleads failure of conditions precedent to bring this suit. 45 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 46 of 49 48. Plaintiff’s claims for the recovery of punitive damages are barred by Alabama Code §§6-11-20, 6-11-26 and 6-11-27. 49. While the City denies that it is liable for any conduct that would support an award of damages, the City pleads the legislative caps on damages contained in Alabama Code §§ 6-11-21 and 11-93-2. Allowing an award in excess of this legislative cap would directly contravene the express public policy of the State of Alabama. 50. The City pleads laches. 51. The City pleads probable cause to execute arrest warrants and make stops and arrests and good faith. 52. The City pleads that the State’s interest could not be served fully through alternative means of punishment and that alternative measures were not adequate to meet the State's interests in punishment and deterrence. 53. The City pleads voluntary action. 54. The City pleads waiver, ratification, estoppel, and accord and satisfaction bar Plaintiff’s individual and class action claims. 55. The defense of acquiescence bars Plaintiff’s claims. 56. The Plaintiff has failed to show the likelihood of irreparable harm. 57. The issuance of an injunction would not serve the public interest. 58. The Amended Complaint makes vague, conclusory, and extraneous allegations, which are barred under Ashcroft v. Iqbal, 556 U.S. 678 (2009). 59. Plaintiff’s and the purported class members’ claims are barred by the rule against double recovery. 60. The City pleads that their actions or inactions are not the proximate cause of the Plaintiff’s alleged damages. 46 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 47 of 49 61. The City pleads that there is no affirmative link between any of its alleged policies, customs or practices and the Plaintiff’s alleged injuries or damages. 62. The City pleads that Plaintiff assumed the risk of injury. 63. The City pleads entitlement to recover attorney’s fees and costs under 42 U.S.C. Sec. 1988(b) and (c) as well as under the Alabama Code and common law. 64. The City pleads preemption 65. The City pleads abatement. 66. To the extent that the Plaintiff has concluded or may conclude a settlement or recover a verdict against any person, entity or party against whom the Plaintiff has, or could have, made or will make a claim, then City is entitled to a set-off for any amount paid and is otherwise entitled to introduce the fact of said settlement or verdict at its option. 67. The City pleads lack of privity. 68. The City pleads justification. 69. The City avers that Plaintiff cannot state a claim for false imprisonment or arrest of Fourth Amendment violation against it because there was no favorable termination of his incarceration. 70. The City avers that the Plaintiff cannot state a claim for false imprisonment or false arrest or Fourth Amendment violation against him because he was, in fact, guilty of the offenses for which he was arrested and/or failed to appear as ordered. 71. No act of the City was malicious, willful, or reckless and, therefore, any award of punitive damages is barred. 72. Plaintiff has failed to avail himself of post-deprivation remedies available under state law. 47 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 48 of 49 73. City pleads misjoinder. 74. The City Defendants plead Ala. Code Sec. 6-5-338. 75. The City Defendants aver that the Plaintiffs cannot state a claim because the City Defendants enjoy qualified immunity as they acted in good faith and reasonably in the arrest and confinement of the Plaintiffs. 76. The City Defendants aver that the Plaintiffs cannot state a claim because the Plaintiffs’ arrests were justified and pursuant to law. 77. The City Defendants aver that the Plaintiffs cannot state a claim because the conduct was privileged. 78. The City adopts and incorporates by reference as if fully set forth herein all affirmative defenses asserted by the other defendants in this case, to the extent that those affirmative defenses are not inconsistent with the answers, denials, and affirmative defenses asserted by the City. RESERVATION OF DEFENSES The City reserves the right to plead additional defenses as they become known in the course of discovery. Respectfully submitted this the 24th day of March, 2017. s/Shannon L. Holliday Shannon L. Holliday [ASB-5440-Y77S] Robert D. Segall [ASB-7354-E68R] Joel Caldwell [ASB-4625-Z36E] COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 holliday@copelandfranco.com segall@copelandfranco.com caldwell@copelandfranco.com Attorneys for Defendant City of Montgomery 48 Case 2:15-cv-00555-RCL-WC Document 107 Filed 03/24/17 Page 49 of 49 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of March, 2017, I filed the foregoing with the Clerk of the Court using the CM/ECF System which will notify all counsel of record electronically: William M. Dawson, Jr., Esq. Alexandria Parrish, Esq. Attorney at Law G. Daniel Evans, Esq. 2600 Highland Avenue, Suite 404 Maurine C. Evans, Esq. Birmingham, AL 35205 The Evans Law Firm bill@billdawsonlaw.com 1736 Oxmoor Road, Suite 101 Birmingham, AL 35209 F. Lane Finch Jr., Esq. gdevans@evanslawpc.com Brian C. Richardson, Esq. ap@evanslawpc.com Swift, Currie, McGhee & Hiers, LLP me@evanslawpc.com 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Larry S. Logsdon, Esq. lane.finch@swiftcurrie.com Michael L. Jackson, Esq. brian.richardson@swiftcurrie.com Wesley K. Winborn, Esq. Wallace, Jordan, Ratliff & Michael S. Jackson, Esq. Brandt, L.L.C. Webster, Henry, Lyons Bradwell P.O. Box 530910 Cohan & Black PC Birmingham, AL 35253 P.O. Box 239 mjackson@wallacejordan.com Montgomery, AL 36101 wwinborn@wallacejordan.com mjackson@websterhenry.com (205) 870-0555 Wilson F. Green, Esq. Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 wgreen@fleenorgreen.com (205) 722-1018 s/Shannon L. Holliday Of Counsel 49

RESPONSE TO ORDER TO SHOW CAUSE by The City of Montgomery re [99] Order to Show Cause.

Case 2:15-cv-00555-RCL-WC Document 108 Filed 03/24/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiff,)) v.) Civil Action No.: 2:15-cv-00555-RCL) THE CITY OF MONTGOMERY, et al.,)) Defendants.) RESPONSE TO ORDER TO SHOW CAUSE COMES NOW, Defendant, the City of Montgomery, and responds to this Court’s Order to Show Cause (Doc. 99). The Defendant does not oppose consolidation with McCullough v. City of Montgomery, 2:15-cv-463 (RCL), for purposes of discovery, but the Defendant does oppose consolidation for the class certification hearing and trial in this matter. Defendant would request this Court to accept the explanation in McCullough v. City of Montgomery, 2:15-cv-463 (RCL) Doc. 140, Response to Order to Show Cause) as grounds to deny consolidation for trial and class certification. Submitted this the 24th day of March, 2017. s/Shannon L. Holliday Shannon L. Holliday [ASB-5440-Y77S] Robert D. Segall [ASB-7354-E68R] Joel Caldwell [ASB-4625-Z36E] COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 holliday@copelandfranco.com segall@copelandfranco.com caldwell@copelandfranco.com Attorneys for Defendant City of Montgomery 1 Case 2:15-cv-00555-RCL-WC Document 108 Filed 03/24/17 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of March, 2017, I filed the foregoing with the Clerk of the Court using the CM/ECF System which will notify all counsel of record electronically: William M. Dawson, Jr., Esq. Alexandria Parrish, Esq. Attorney at Law G. Daniel Evans, Esq. 2600 Highland Avenue, Suite 404 Maurine C. Evans, Esq. Birmingham, AL 35205 The Evans Law Firm bill@billdawsonlaw.com 1736 Oxmoor Road, Suite 101 Birmingham, AL 35209 F. Lane Finch Jr., Esq. gdevans@evanslawpc.com Brian C. Richardson, Esq. ap@evanslawpc.com Swift, Currie, McGhee & Hiers, LLP me@evanslawpc.com 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Larry S. Logsdon, Esq. lane.finch@swiftcurrie.com Michael L. Jackson, Esq. brian.richardson@swiftcurrie.com Wesley K. Winborn, Esq. Wallace, Jordan, Ratliff & Michael S. Jackson, Esq. Brandt, L.L.C. Webster, Henry, Lyons Bradwell P.O. Box 530910 Cohan & Black PC Birmingham, AL 35253 P.O. Box 239 mjackson@wallacejordan.com Montgomery, AL 36101 wwinborn@wallacejordan.com mjackson@websterhenry.com (205) 870-0555 Wilson F. Green, Esq. Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 wgreen@fleenorgreen.com (205) 722-1018 s/Shannon L. Holliday Of Counsel 2

RESPONSE TO ORDER TO SHOW CAUSE by CHC Companies, Inc. re [99] Order to Show Cause.

Case 2:15-cv-00555-RCL-WC Document 109 Filed 03/24/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER,) Plaintiff,)) CASE NO. 2:15-cv-00555-RCL v.)) THE CITY OF MONTGOMERY,) et. al.,) Defendants.) RESPONSE TO ORDER TO SHOW CAUSE COMES NOW, Defendant CHC Companies, Inc. and responds to this Court’s Order to Show Cause (Doc. 99). Defendant CHC Companies, Inc. does not oppose consolidation with McCullough v. City of Montgomery, Case No. 2:15-cv-463-RCL. RESPECTFULLY SUBMITTED,/s/Brian C. Richardson F. Lane Finch, Jr. (ASB-0027-I58F) Brian C. Richardson (ASB-5241-H14U) Attorneys for CHC Companies, Inc. OF COUNSEL: SWIFT, CURRIE, MCGHEE & HIERS, LLP 2 North 20th Street, Suite 1405 Birmingham, AL 35203 (205) 314-2401 Fax (205) 244-1373 lane.finch@swiftcurrie.com brian.richardson@swiftcurrie.com Case 2:15-cv-00555-RCL-WC Document 109 Filed 03/24/17 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on March 24, 2017, I have electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of filing to the following counsel of record: G. Daniel Evans, Esquire Larry S. Logsdon, Esquire gdevans@evanslawpc.com llogsdon@wallacejordan.com Alexandria Parrish, Esquire Michael L. Jackson, Esquire ap@evanslawpc.com mjackson@wallacejordan.com Maurine C. Evans, Esquire Wesley K. Winborn, Esquire mevans@evanslawpc.com wwinborn@wallacejordan.com William M. Dawson, Jr., Esquire Wilson F. Green, Esquire bill@billdawsonlaw.com wgreen@fleenorgreen.com Joel T. Caldwell, Esquire Michael S. Jackson, Esquire caldwell@copelandfranco.com mjackson@websterhenry.com Robert D. Segall, Esquire segall@copelandfranco.com Shannon L. Holliday, Esquire hollliday@copelandfranco.com/s/Brian C. Richardson OF COUNSEL

RESPONSE in Opposition re [104] MOTION to Sever [DEFENDANT BRANCH D. KLOESS'S MOTION TO SEVER] filed by Aldaress Carter.

Case 2:15-cv-00555-RCL-WC Document 110 Filed 04/07/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT KLOESS’ MOTION TO SEVER COMES NOW Plaintiff and submits this response in opposition to Defendant Branch Kloess’ Motion to Sever (Doc. 104). For the reasons discussed herein, Kloess’ Motion is due to be denied: "It is well established that the determination of whether to grant a motion to sever is left to the discretion of the trial court." Karp v. American Law Enforcement Network, LLC, 2012 WL 38161, *2 (S.D. Ala. Jan. 6, 2012)(internal citations omitted). The factors considered in making this determination "include whether the claims arise from the same transaction or occurrence, whether they present some common question of law or fact, whether severance would facilitate settlement or judicial economy, and the relative prejudice to each side if the motion is granted or denied." Id. Here, all of these factors weigh against severance of Plaintiff’s claims against Kloess. Plaintiff’s First Amended Complaint (Doc. 18) goes into great detail describing the joint Case 2:15-cv-00555-RCL-WC Document 110 Filed 04/07/17 Page 2 of 6 scheme and practice involving the City of Montgomery, Judicial Correction Services, and Branch Kloess. (Doc. 18, ¶ 11-69). As part of this practice, Plaintiff and those he seeks to represent were made victim to a "Pay or Stay" scheme that profited the City, JCS, and Kloess individually. (Doc. 18, ¶ 24). The Complaint states in no uncertain terms that: 17. Montgomery by contract and practice, unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees. 18. The agreement between Montgomery and JCS and signed by the city mayor attests that the Montgomery municipal "court agrees that each court order shall provide for the following: a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00.... " (emphasis added). 19. Montgomery, through its Mayor, Charles Jinright, and Council, approved the agreement with JCS, the City and its court beginning in March 19, 2009 and continued the relationship, by and through its City Council and Mayor, Todd Strange, until the summer of 2014. Throughout this period, the City police, City courts, and City hired public defenders fully participated in the practices and system with JCS. 20. Montgomery also approved the employment of it municipal court judges including its Presiding Judge, Armstead Lester Hayes, III. 21. Montgomery also hired attorneys to represent indigent defendants in its City courts under a contract which provides that "A defendant's status as'indigent’ shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 15-12-5 and 15-12-20." Yet, despite the fact that offenders are designated as indigent for purposes of getting an appointed attorney, routinely the attorneys never introduce themselves to the client they purportedly represent and do not advocate on the client’s behalf before the judge, which results in indigent people being fined, assessed court costs, put on the JCS'payment plan’ which costs them an additional $40/month and are threatened with jail if payments are missed. 22. These'public defenders’ do not request Bearden hearings or inquire into the offender’s ability to pay, or fill out hardship forms requesting community 2 Case 2:15-cv-00555-RCL-WC Document 110 Filed 04/07/17 Page 3 of 6 service or other alternatives due to their client’s poverty. Nor, do they even maintain files on their "clients." 23. Rather, the'public defender’ upholds the City’s practice of prioritizing profits over public welfare and safety by requiring their clients to'pay or stay’ and demanding court costs and full payment of fines for those they "represent." 24. The contract between the City and the'public defender’ mandates that the attorneys will be paid out of the'Fair Tax Trial Fund’ which is funded through the collection of court costs levied and collected on convictions. This payment policy creates a conflict of interest as the City is not required to pay the attorneys more than it has collected in any one month. In fact, Section Five of its public defender contract says: SECTION FIVE. Under the terms of this agreement, on or after the last day of each month during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and 00/100 Dollars ($10,000.00) per month, for services to be performed hereunder for the period of the agreement. Provided, in no event shall the City be required to pay more than the amount deposited in the Fair Trial Tax Fund for a particular month. (Doc1-2 pg. 2)(emphasis added) 25. For a number of years, Montgomery has participated in implementing the JCS system... (Doc. 18, ¶ 17-25). Plaintiff’s allegations describe how "[t]he collective actions of Montgomery and its agents, including JCS and Kloess, are inextricably interwoven with each other... " (Doc. 18, para. 33). That system – of which Kloess is an integral part--is the foundation of all of Plaintiff’s claims. Kloess ignores this and attempts to oversimplify Plaintiff’s Complaint, arguing that he should be severed because Plaintiff has alleged only one claim against him. In fact, Kloess was under contract with the City of Montgomery to represent indigent defendants and undoubtedly had the 3 Case 2:15-cv-00555-RCL-WC Document 110 Filed 04/07/17 Page 4 of 6 same involvement with others in the putative class as he had with Mr. Carter. However, the number of claims a plaintiff has against another party has no bearing on the issue of severance. More importantly, Kloess was forced to concede that for the one claim against him "there is one common question of law" (Doc. 104, p. 4), which warrants against severance. While Kloess attempts to separate his actions from those of the other defendants, Plaintiff’s due process claim against Kloess cannot be viewed independently of the joint system in place in Montgomery. The allegations in the Complaint make this plain. The same discovery would be needed and the same evidentiary foundation would have to be laid in both trials in order to establish the joint scheme that ungirds Plaintiff’s claims. Kloess next argues that "since Kloess is alleged not to have been present [when Plaintiff was before the municipal court for his JCS’ probation and incarceration], there is no common transaction or occurrence alleged." (Doc. 104, p. 4). This argument misses the mark. Kloess was appointed the attorney to represent Mr. Carter’s interests. Instead of doing his job, however, Kloess was a direct participant in the "Pay or Stay" scheme in place in Montgomery by informing Mr. Carter – along with others – that he had to either pay the money demanded or stay in jail. Kloess’ actions are "inexplicably intertwined" with those of Montgomery and JCS and arise from the same occurrence (i.e., Mr. Carter’s arrest and jailing as a result of JCS’ probation in place in Montgomery). Kloess also claims he will be prejudiced without severance because his attorney will have to choose "what depositions to attend" and what transcripts and documents to review in this litigation. (Doc. 104, p. 4). Whether and how defense counsel wants to defend his client is, of course, his prerogative. However, the evidence used and collected from Montgomery and JCS will be evidence used against Kloess, regardless of whether this litigation is severed or not. This is 4 Case 2:15-cv-00555-RCL-WC Document 110 Filed 04/07/17 Page 5 of 6 necessarily so because all three parties are a part of the same joint scheme underlying Plaintiff’s claims. Thus, regardless of whether defense counsel wants to participate in the discovery process, the breadth of the process will be the same even if Kloess is severed. Any severance would therefore lead only to duplicative discovery and multiple trials requiring the same evidentiary showing, further burdening the parties and the Courts. For the many reasons discussed above, Kloess’ Motion to Sever is due to be denied. RESPECTFULLY SUBMITTED, s/G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Attorneys for The Plaintiff The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com E-Mail: mevans@evanslawpc.com William M. Dawson ASB-3976-S80W Attorney for the Plaintiff Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com CERTIFICATE OF SERVICE I hereby certify that on the 7th day of April, 2017, I electronically filed the foregoing 5 Case 2:15-cv-00555-RCL-WC Document 110 Filed 04/07/17 Page 6 of 6 Plaintiff’s Response to Kloess’ Motion to Sever with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: Micheal S. Jackson WEBSTER, HENRY, LYONS, BRADWELL, Larry S. Logsdon COHAN & BLACK, P.C. Michael L. Jackson P. O. Box 239 Wesley K. Winborn Montgomery, AL 36101-0239 WALLACE, JORDAN, RATLIFF & BRANDT, LLC Shannon Holliday P.O. Box 530910 Robert D. Segall Birmingham, AL 35253 Joel Caldwell COPELAND, FRANCO, SCREWS & GILL F. Lane Finch, Jr. P. O. Box 347 Brian C. Richardson Montgomery, AL 36101-0347 SWIFT CURRIE MCGHEE & HIERS, LLP 2 North 20th Street, Suite 1405 Birmingham, AL 35203 Wilson F. Green Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 s/G. Daniel Evans G. Daniel Evans 6

ORDER: In light of the notices of appeal filed in 2:15-cv-463 (RCL) McCullough (143,144), the Court finds that consolidation of the captioned cases would not be beneficial at this time. The Court will readdress consolidation as necessary at a later time. Signed by Honorable Judge Royce C. Lamberth on 4/25/2017.

Case 2:15-cv-00555-RCL-WC Document 111 Filed 04/25/17 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION) ANGELA MCCULLOUGH, et al.,)) Plaintiffs,)) V.) Case No. 2:15-cv-463 (RCL)) THE CITY OF MONTGOMERY, et al.,)) Defendants.) ALDARESS CARTER, et al., Plaintiffs, V. Case No. 2:15-cv-555 (RCL) THE CITY OF MONTGOMERY, et al., Defendants. [IIJ:111 0 In light of the notices of appeal filed in McCullough [143, 144] the Court finds that consolidation of the above captioned cases would not be beneficial at this time. The Court will readdress consolidation as necessary at a later time. IT IS SO ORDERED this 14day of April, 2017. yce C. Lamberth United States District Judge

ORDER: The Court hereby ORDERS that the parties shall meet and confer within ten (10) days of this case; and it is further ORDERED that, within ten (10) days thereafter, a report shall be filed with the Court, along with a proposed scheduling order. Signed by Honorable Judge Royce C. Lamberth on 4/25/2017.

Case 2:15-cv-00555-RCL-WC Document 112 Filed 04/25/17 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, et al., Plaintiffs, Case No. 2:15-cv-555 (RCL) V. THE CITY OF MONTGOMERY, et al., Defendants. ORDER The Court hereby ORDERS that the parties shall meet and confer within ten (10) days of this date; and it is further ORDERED that, within ten (10) days thereafter, a report shall be filed with the Court, along with a proposed scheduling order. IT IS SO ORDERED this _i2gay April, 2017. r4 C. Royce C. Lamberth United States District Judge

NOTICE of Appearance by Kimberly Owen Fehl on behalf of The City of Montgomery

Case 2:15-cv-00555-RCL-WC Document 113 Filed 04/26/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES)) Plaintiffs,) Case No.: 2:15-cv-00555-RCL-WC)) v.)) THE CITY OF MONTGOMERY, et al.)) Defendants.)))))))) NOTICE OF APPEARANCE COMES NOW, Kimberly O. Fehl, City Attorney for the City of Montgomery, and enters her appearance as additional counsel of record for Defendant City of Montgomery in the above-referenced matter. Respectfully submitted this the 26th day of April, 2017./s/Kimberly O. Fehl Kimberly O. Fehl (FEH001) Attorney for Defendant City of Montgomery OF COUNSEL: CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111 Telephone: (334) 625-2050 Facsimile: (334) 625-2310 kfehl@montgomeryal.gov ASB-8054-O67K Case 2:15-cv-00555-RCL-WC Document 113 Filed 04/26/17 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on the 26TH day of April, 2017, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system which will send notification of such filing to the following parties or counsel: Shannon L. Holliday, Esq. Alexandria Parrish, Esq. Robert D. Segall, Esq. G. Daniel Evans, Esq. Joel Caldwell, Esq. Maurine C. Evans, Esq. COPELAND, FRANCO, SCREWS & GILL, P.A. The Evans Law Firm P.O. BOX 347 1736 Oxmoor Road, Ste. 101 Montgomery, AL 36101-0347 Birmingham, AL 35209 gdevans@evanslawpc.com Willliam M. Dawson, Jr. Esq. ap@evanslawpc.com Attorney at Law me@evanslawpc.com 2600 Highland Avenue, Ste. 404 Birmingham, AL 35205 bill@billdawsonlaw.com F. Lane Finch Jr., Esq. Larry S. Logsdon, Esq. Brian C. Richardson, Esq. Michael L. Jackson, Esq. Swift, Currie, McGhee & Hiers, LLP Wesley K. Winborn, Esq. 2 North 20th Street, Ste. 1405 Wallace, Jordan, Ratliff & Birmingham, AL 35203 Brandt, LLC lane.finch@swiftcurrie.com P.O. Box 530910 brian.richardson@swiftcurrie.com Birmingham, AL 35253 mjackson@wallacejordan.com Michael S. Jackson, Esq. wwinborn@wallacejordan.com Webster, Henry, Lyons, Bradwell, (205) 870-0555 Cohan & Black P.C. P.O. Box 239 Wilson F. Green, Esq. Montgomery, AL 36101 Fleenor & Green, LLP mjackson@websterhenry.com 1657 McFarland Blvd. No. Ste. G2A Tuscaloosa, AL 35406 wgreen@fleenorgreen.com (205) 722-1018 and I hereby certify that I have also mailed by United States Postal Service the document to the above-named non-CM/ECF participants: NONE/s/Kimberly O. Fehl OF COUNSEL

NOTICE of Appearance by Michael D. Brymer on behalf of The City of Montgomery

Case 2:15-cv-00555-RCL-WC Document 114 Filed 04/26/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES)) Plaintiffs,) Case No.: 2:15-cv-00555-RCL-WC)) v.)) THE CITY OF MONTGOMERY, et al.)) Defendants.)))))))) NOTICE OF APPEARANCE COMES NOW, Michael D. Brymer, Attorney for the City of Montgomery, and enters his appearance as additional counsel of record for Defendant City of Montgomery in the above-referenced matter. Respectfully submitted this the 26th day of April, 2017./s/Michael D. Brymer Michael D. Brymer (BRY037) Attorney for Defendant City of Montgomery OF COUNSEL: CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111 Telephone: (334) 625-2050 Facsimile: (334) 625-2310 mbrymer@montgomeryal.gov ASB-0169-I38B Case 2:15-cv-00555-RCL-WC Document 114 Filed 04/26/17 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on the 26TH day of April, 2017, I electronically filed the foregoing with the Clerk of the court using the CM/ECF system which will send notification of such filing to the following parties or counsel: Shannon L. Holliday, Esq. Alexandria Parrish, Esq. Robert D. Segall, Esq. G. Daniel Evans, Esq. Joel Caldwell, Esq. Maurine C. Evans, Esq. COPELAND, FRANCO, SCREWS & GILL, P.A. The Evans Law Firm P.O. BOX 347 1736 Oxmoor Road, Ste. 101 Montgomery, AL 36101-0347 Birmingham, AL 35209 gdevans@evanslawpc.com Willliam M. Dawson, Jr. Esq. ap@evanslawpc.com Attorney at Law me@evanslawpc.com 2600 Highland Avenue, Ste. 404 Birmingham, AL 35205 bill@billdawsonlaw.com F. Lane Finch Jr., Esq. Larry S. Logsdon, Esq. Brian C. Richardson, Esq. Michael L. Jackson, Esq. Swift, Currie, McGhee & Hiers, LLP Wesley K. Winborn, Esq. 2 North 20th Street, Ste. 1405 Wallace, Jordan, Ratliff & Birmingham, AL 35203 Brandt, LLC lane.finch@swiftcurrie.com P.O. Box 530910 brian.richardson@swiftcurrie.com Birmingham, AL 35253 mjackson@wallacejordan.com Michael S. Jackson, Esq. wwinborn@wallacejordan.com Webster, Henry, Lyons, Bradwell, (205) 870-0555 Cohan & Black P.C. P.O. Box 239 Wilson F. Green, Esq. Montgomery, AL 36101 Fleenor & Green, LLP mjackson@websterhenry.com 1657 McFarland Blvd. No. Ste. G2A Tuscaloosa, AL 35406 wgreen@fleenorgreen.com (205) 722-1018 and I hereby certify that I have also mailed by United States Postal Service the document to the above-named non-CM/ECF participants: NONE/s/Michael D. Brymer OF COUNSEL

MOTION for Leave to File SECOND AMENDED AND RESTATED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT by Aldaress Carter.

Case 2:15-cv-00555-RCL-WC Document 115 Filed 05/01/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) MOTION FOR LEAVE TO FILE SECOND AMENDED AND RESTATED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT Comes now the Plaintiff in the above-styled cause and, pursuant to Fed. R. Civ. P. 15(a)(2) and Fed. R. Civ. P. 18, files this Motion for Leave to File Second Amended and Restated Complaint to assert claims for false imprisonment and for money-had-and-received arising from the same facts. In support thereof, Plaintiff states as follows: The claims sought to be added arise out of and are related to the same transactions and occurrences pled in Plaintiff’s original pleadings. (Docs. 1 & 18) This Second Amended and Restated Complaint adds false imprisonment and money-had-and-received claims against Judicial Correction Services, LLC (‘JCS’), CHC Companies, Inc. (‘CHC’), and the City of Montgomery. A copy of the proposed Second Amended and Restated Complaint is attached hereto as an Exhibit. Case 2:15-cv-00555-RCL-WC Document 115 Filed 05/01/17 Page 2 of 6 On August 3, 2015, Plaintiff Aldaress Carter filed his original Complaint naming the City of Montgomery and Branch D. Kloess as the only defendants. (Doc. 1) The following month, Plaintiff filed his First Amended Complaint, adding as Defendants JCS and CHC (Doc. 18). Thereafter, all Defendants filed motions to dismiss, which were recently denied by the Court. (Doc. 97). On April 25, 2017, the Court ordered all parties to meet and confer by the first week of May. (Docs. 112). To date, no discovery has been conducted in this case. As such, no party will be prejudiced by this filing and the Plaintiff requests that this Court grant this motion and provide leave to amend. ARGUMENT PLAINTIFF HAS MET THE STANDARD FOR OBTAINING LEAVE TO FILE AN AMENDED COMPLAINT UNDER FEDERAL RULE OF CIVIL PROCEDURE 15. In Foman v. Davis, 371 U.S. 178, 182 (1962), the Supreme Court set out various factors a trial court may consider in ruling on a motion for leave to amend. These factors include whether the movant has a bad faith or dilatory motive; the prejudice to the other parties; evidence of undue delay in seeking leave to amend; and whether the amendment is futile. These factors favor the Plaintiff. There is no bad faith in attempting to assert these additional claims. As discovery has not yet begun, there is no prejudice or undue delay in filing for leave of Court. The amendment contains valid new claims, which are not facially futile. Further, these claims arise out of the conduct and occurrences set out in Plaintiff’s original pleading. The Motion for Leave should be granted. Pursuant to Federal Rule of Civil Procedure 15, "District courts should generously allow amendments even when the plaintiff does not have the right to amend the complaint." Lavender v. Kearney, 206 F. App'x 860, 864 (11th Cir. 2006) (citing Rosen v. TRW, Inc., 979 F.2d 191, 194 (11th Cir.1992) and Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 2 Case 2:15-cv-00555-RCL-WC Document 115 Filed 05/01/17 Page 3 of 6 9 L.Ed.2d 222 (1962)). The decision whether to grant leave to amend a pleading is within the sound discretion of the district court, and that leave should be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). A justifying reason must be apparent for denial of a motion to amend. "Unless a substantial reason exists to deny leave to amend, the discretion of the district court is not broad enough to permit denial." Spottswood v. Stewart Title Guar. Co., 2010 WL 2595092 at *1 (S.D. Ala. June 23, 2010)(quoting Florida Evergreen Foliage v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1041 (11th Cir. 2006)(citations omitted)). Good cause for amending the Complaint is established here. None of the Defendants will be prejudiced if Plaintiff’s amendment is permitted at this point in the proceedings. There is no scheduling order regarding the amendment of claims. Further, class certification has not occurred and discovery has not begun regarding both class certification and merits of the claims. There is no apparent reason for denying the Motion to Amend, as none of the factors that may militate against it are present here. Consistent with the liberal standard that applies to motions to amend under Rule 15(a)(2), the Court should therefore grant Plaintiff’s motion. The interests of justice and judicial economy will undoubtedly be served by having all allegations properly before the Court as set forth in Plaintiff’s proposed amended complaint. The amendment is tailored to reflect the present circumstances and Plaintiff’s present understanding of the case to assist the action in proceeding effectively on the merits. None of the Defendants will suffer any undue prejudice by virtue of the Court’s allowance of the proposed amendment. The determination of whether prejudice would 3 Case 2:15-cv-00555-RCL-WC Document 115 Filed 05/01/17 Page 4 of 6 occur often includes assessing whether allowing an amendment would result in additional discovery, cost, and preparation to defend against new facts or new theories. At this junction, discovery has not begun, which means Defendants would not incur additional costs. Further, the Defendants cannot be prejudiced, or caught off guard, by the new claims pled by the Plaintiff in the proposed amendment, since these claims arise out of the same conduct, transactions and occurrences set out in Plaintiff’s original pleading. No prejudice would result to Defendant in allowing the amendment under these circumstances. Finally, Plaintiffs’ request to file an amended complaint is not futile as Plaintiff has alleged sufficient facts to state a claim for relief that is facially plausible. See FTC v. Phoebe Putney Health System, Inc., 663 F.3d 1369, 1375 (11th Cir. 2011)("We agree with the Commission that, on the facts alleged, the joint operation of Memorial and Palmyra would substantially lessen competition or tend to create, if not create, a monopoly."). Where the proposed amendment is not clearly futile, denying leave to amend on this ground is highly improper. Accordingly, in the interest of justice, this Court should grant Plaintiff’s Motion for Leave to File the proposed Second Amended & Restated Complaint. The grant of this motion is particularly appropriate here, given the clear absence of any substantial reason to deny leave to amend. CONCLUSION For the reasons identified above, Plaintiff requests that this Court grant Plaintiff’s Motion for Leave to File the proposed Second Amended & Restated Complaint. RESPECTFULLY SUBMITTED, s/G. Daniel Evans G. Daniel Evans 4 Case 2:15-cv-00555-RCL-WC Document 115 Filed 05/01/17 Page 5 of 6 ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Attorneys for The Plaintiff The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com E-Mail: mevans@evanslawpc.com William M. Dawson ASB-3976-S80W Attorney for the Plaintiff Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com CERTIFICATE OF SERVICE I hereby certify that on the 1st day of May, 2017, I electronically filed the foregoing Plaintiff’s Motion for Leave to File Second Amended and Restated Complaint and Memorandum of Law in Support with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: Shannon L. Holliday, Esquire Robert D. Segall, Esquire Joel Caldwell, Esquire COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 Micheal S. Jackson, Esquire WEBSTER, HENRY, LYONS, BRADWELL, COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239 5 Case 2:15-cv-00555-RCL-WC Document 115 Filed 05/01/17 Page 6 of 6 F. Lane Finch, Jr., Esquire Brian Richardson, Esquire Swift Currie McGhee and Hiers, LLP 2 North 20th Street, Suite 1405 Birmingham, Alabama 35203 Michael L. Jackson, Esquire Larry S. Logsdon, Esquire Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 Wilson F. Green, Esquire Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 Kimberly O. Fehl, Esquire Michael D. Brymer, Esquire CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111 s/G. Daniel Evans G. Daniel Evans 6

Exhibit A - Second Amended & Restated Complaint

Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 1 of 202 EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY, AND FOR) A CLASS OF SIMILARLY SITUATED PERSONS) OR ENTITIES,)) Plaintiffs) CIVIL ACTION NO.: v.)) 2:15-cv-00555-RCL THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL CORRECTIONAL) CLASS ACTION SERVICES, INC., a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a corporation;) CHC COMPANIES, INC., a corporation.)) DEMAND FOR JURY TRIAL Defendants.) SECOND AMENDED AND RESTATED COMPLAINT COMES NOW, Aldaress Carter (hereinafter "Plaintiff"), individually and on behalf of those similarly situated, upon personal knowledge as to himself and his own acts, and upon information and belief as to all other matters, by and through his undersigned counsel, files this Second Amended and Restated Complaint as follows: JURISDICTION 1. The Court has jurisdiction over this matter because it concerns a controversy arising under the Constitution of the United States. 28 U.S.C. '1331. This is a civil rights action brought under 42 U.S.C. '' 1983 and 1988 and pursuant to 18 U.S.C. 1962. T his Court also has jurisdiction of this action by virtue of 28 U.S.C. '' 1343(a)(3) and 1343(a)(4), authorizing jurisdiction of claims brought under 42 U.S.C. ' 1983 to enforce civil rights guaranteed by the United States Constitution. The Court also has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. ' 1367. Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 2 of 202 2. This action also seeks a declaratory judgment pursuant to 28 U.S.C. '' 2201 and 2022. 3. Venue in this judicial district is proper pursuant to 28 U.S.C. ' 1391 (b) and (c). PARTIES TO THE COMPLAINT 4. The Plaintiff Aldaress Carter is an individual resident of Montgomery, Montgomery County, Alabama. 5. The classes which the individual Plaintiff seeks to represent consist of: All individuals who have been in the past assigned by the Montgomery Municipal Court to "probation" with Judicial Correction Services (JCS) for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. 6. The City of Montgomery, Alabama, ("Montgomery") is a municipal corporation located within Montgomery County, Alabama. The City Council and Mayor control the policy making for Montgomery. The Mayor also hires the municipal court judges, the public defenders to provide legal representation for indigent offenders, and contracted for the services of JCS, a private probation company, to collect its municipal court fines1. (Exhibit 1) 7. Branch D. Kloess ("Kloess") is an individual and a licensed attorney located within Montgomery County, Alabama. Kloess entered into an agreement with the City of 1 JCS’s contract with Montgomery was not renewed in 2014 when the contract renewal date expired. 2 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 3 of 202 Montgomery to provide "competent legal representation and services for indigent defendants charged with the violation of the municipal ordinances and laws before the Municipal Court of the City of Montgomery." He has not provided competent legal representation. Rather, he has a policy and practice of not requesting indigency hearings for the indigents he represents. As such, he has participated in the City’s scheme to extort money from poor citizens he purportedly represents while gaining financially from not seeking indigency status for them. (Exhibit 2) 8. The Defendant Judicial Corrections Services, Inc. (hereinafter "JCS") is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama and in this District which markets itself as "not a social service agency," but a "for profit"company which offers services to governmental entities "free of charge" to the cities as "an offender paid system." At all times, JCS has operated under the color of state law. 9. The Defendant Correctional Healthcare Companies, Inc. (‘CHC’) (also hereinafter "JCS") is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama. It appears to be the successor of JCS, having purchased or otherwise acquired it, continuing to do business as JCS and operating the same. 10. The Defendant CHC Companies, Inc. (‘CHCC’) (also hereinafter "JCS") is a Delaware corporation, registered as a foreign corporation and doing business in the State of Alabama. JCS and Correctional Healthcare Companies, Inc. are, upon information and belief, wholly-owned and fully integrated corporations of CHC Companies, Inc. CHC Companies, Inc. also does business under the name of Correctional Healthcare Companies and employs and/or directs and controls employees in the JCS operations. 3 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 4 of 202 FACTS 11. The Plaintiff brings this action because the policy and practices of Montgomery and its agents JCS, CHC and CHCC (hereinafter'JCS’) and Kloess have violated the Plaintiff’s statutory and constitutional rights and those of persons similarly situated. 12. The treatment of the Plaintiff was caused by and is representative of the City’s policies and practices employed to collect debts from the fines, fees, costs, and surcharges that the City assesses, usually for traffic tickets. These facts are similar to those alleged in the Amended Complaints in cases 2013-cv-732-MEF (Doc. 10), 2013-cv-733-MEF (Doc. 9) and 2014-cv-186-MEF (Doc.26) which describe additional people whose rights were violated by the same policies and practices. 13. The policies and practices of the City of Montgomery are strikingly similar to the unconstitutional practices by which the City of Ferguson, Missouri, operated its courts and police department. These unconstitutional policies placed priority on generating cash for the City without regard to constitutional precepts. The Department of Justice’s Civil Rights Division outlined the unconstitutional practices it discovered at the City of Ferguson in its March 4, 2015 report. (Exhibit 3)2 14. Montgomery has contracted with JCS which operates a "for profit" enterprise that markets its services to various municipal governments and has contracted with over 100 cities and towns throughout Alabama. JCS’s marketing approach to these cities 2 Due to the many similarities between Montgomery’s policies and practices that are coordinated through the city police and the city courts, sections of the DOJ report are referenced by footnotes for the court’s review. 4 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 5 of 202 emphasizes that its fees will be paid by the "offender" and that its efforts will improve collection of court fines and costs at no cost to the City. 15. The JCS approach is highly systemized and uniform throughout the Alabama municipal courts in which it operates, including Montgomery-until July 1, 2014. 16. Under the system implemented by Montgomery, it does not require JCS employees to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement standards as is required of state probation officers. Instead, the only requirements of a JCS employee who is referred to as a "Probation Officer" is that the employee be 21 years old, a non felon, with two years of college who complete 40 hours of JCS training on its processes. On satisfying those requirements, JCS employees are then labeled "Probation Officers"3 and previously permitted to carry the JCS issued badge in collecting its fees, court fines and costs. 17. Montgomery by contract and practice, unlawfully delegated to JCS many administrative and judicial functions of its municipal court, clothing it with the color of state law for the collection of court fines, costs and the JCS private fees. 18. The agreement between Montgomery and JCS and signed by the city mayor attests that the Montgomery municipal "court agrees that each court order shall provide for the following: a probation fee of $40.00 per month flat fee one time probationer set up fee of $10.00.... " (emphasis added). 3 In contrast, even a judicial volunteer is required to meet greater and more specific qualifications, careful screening, specific training and continual oversight established by the Administrative Office of Courts (‘AOC’). See Ala. Rule of Judicial Administration Rule 42. 5 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 6 of 202 19. Montgomery, through its Mayor, Charles Jinright, and Council, approved the agreement with JCS, the City and its court beginning in March 19, 2009 and continued the relationship, by and through its City Council and Mayor, Todd Strange, until the summer of 2014. Throughout this period, the City police, City courts, and City hired public defenders who fully participated in the practices and system with JCS. 20. Montgomery also approved the employment of it municipal court judges, including its Presiding Judge, Armstead Lester Hayes, III. 21. Montgomery also hired attorneys to represent indigent defendants in its city courts under a contract which provides that "A defendant's status as'indigent’ shall be determined by the Judge in the said Court, in accordance with the criteria set forth in Code of Alabama (1975), Sections 15-12-5 and 15-12-20." Yet, despite the fact that offenders are designated as indigent for purposes of getting an appointed attorney, routinely the attorneys never introduce themselves to the client they purportedly represent and do not advocate on the client’s behalf before the judge, which results in indigent people being fined, assessed court costs, put on the JCS'payment plan’ which costs them an additional $40/month, and are threatened with jail if payments are missed. 22. These'public defenders’ do not request Bearden hearings or inquire into the offender’s ability to pay, or fill out hardship forms requesting community service or other alternatives due to their client’s poverty.4 Nor, do they even maintain files on their "clients." 23. Rather, the'public defender’ upholds the City’s practice of prioritizing profits over public welfare and safety by requiring their clients to'pay or stay’ and demanding 4 See DOJ Report pg. 53. 6 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 7 of 202 court costs and full payment of fines for those they "represent." 24. The contract between the City and the'public defender’ mandates that the attorneys will be paid out of the'Fair Tax Trial Fund’ which is funded through the collection of court costs levied and collected on convictions. This payment policy creates a conflict of interest as the City is not required to pay the attorneys more than it has collected in any one month. In fact, Section Five of its public defender contract says: SECTION FIVE. Under the terms of this agreement, on or after the last day of each month during the period of this agreement, Kloess shall submit to the Clerk of Court for approval, a request for payment from the Fair Trial Tax fund not to exceed the sum of Ten Thousand and 00/100 Dollars ($10,000.00) per month, for services to be performed hereunder for the period of the agreement. Provided, in no event shall the City be required to pay more than the amount deposited in the Fair Trial Tax Fund for a particular month. (Exhibit 2, pg. 2)(emphasis added) 25. For a number of years, Montgomery has participated in implementing the JCS system. That system and JCS’s "Probation Tracker" software used at Montgomery was highly systemized and focused on collections of fines and its fees--not traditional probation services. For instance, the "probation officer" does not visit the probationer’s home, job or family, and has contact with them only at the JCS office in collecting fees and fines. That collection focus allows the "offenders" to mail in payments if they live 30 miles from the JCS office. (Doc 1-4). The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the "offenders" and provides court forms to order probation and payments to JCS. The JCS training system also provides sample letters for use after probation is ordered, threatening the "offender" 7 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 8 of 202 that failure to report to JCS "as directed may result in a warrant being issued for your arrest" and that their "court date cannot and will not be reset." (See Exhibits 5 and 6). Similar JCS forms instruct the "offender" that they can avoid the court date if they pay an amount determined by JCS. (See Exhibit 7). Notice to the offender of these JCS set "court dates" was handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate "JCS Docket" which JCS established and which Montgomery then adopts. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. (See Exhibit 8). 26. Once on probation to collect the fines, "offenders" who cannot keep up their payments at Montgomery are arrested typically based upon FTA or FTOCO rather than probation violation. These codes stand for "Failure to Appear" and "Failure to Obey Court Order." Warrants are issued by the City based upon a report that the offender failed to appear as directed at the JCS established date after notice from JCS. Similarly, FTOCO arrests result from JCS reporting that the "offender" failed to comply with their probation order – that is, they failed to pay or appear at the JCS offices as JCS directed. There is no ordinance or statute establishing Failure to Obey Court Order as an offense. The arrests and incarceration on these charges occur without any determination of contempt or willfulness in these arrests and the additional costs are added without any finding whatsoever. Under this system, the "offender" arrested is jailed for an undetermined period of time with bond set by the city magistrate to approximate the money claims to be owed on the balance at JCS. Unlike legitimate probation systems where a probationer would be 8 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 9 of 202 entitled to a finding of the reasons for revocation, appointed counsel and, at worse, suffer jail time equating to the original sentence, the system at Montgomery ignores all those safeguards. 27. The City Council and Mayor control the policy making for Montgomery and also hire the municipal court judges, hire the public defenders and contract for services of JCS at the municipal court. The contract was a no bid contract and provided JCS with an exclusive franchise at the City. The decision to use this JCS system was an administrative decision of Montgomery, by and through its mayor, and not a decision of the municipal court judge or the Chief Justice, or any other employee of the Administrative Office of Courts ("AOC"). 28. Montgomery, through its contract, pattern and practice, clothed JCS with the appearance of state authority and has previously even allowed JCS employees to carry badges. The JCS employees attend each municipal court session and are referred to as "probation officers" in the operation of the municipal court and city clerk’s office, though none have such authority under Alabama statutes. Under this system, JCS "offenders" were not permitted to pay fines at the City payment window, but were required to make all payments, including those for fines, restitution, probation fees and court costs, to JCS. 29. This public ruse was maintained by Montgomery for purposes of imposing and collecting fines, fees and costs from citizens such as the Plaintiff, and was accomplished by allowing JCS to control the money, determine how much each municipal court "offender" must pay each month, how much JCS would keep for its own fees for collection "services" each month, and how much of the payment JCS would rebate to Montgomery toward the fines adjudged. 9 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 10 of 202 30. This system, as a matter of routine, violates the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines, fees and surcharges to indigent persons with no hearing or consideration of their indigency and by converting fines to jail time. 31. Despite the lack of authority to do so, Montgomery allowed JCS to use threats of revoking probation, arrest, increased fines and costs and jail time for purposes of collection. Under the system operated by Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable bond requirements was routinely accepted by City personnel as a matter of policy without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency. 32. The lack of indigency or Bearden hearing is especially disturbing as the court records show many indigent people were supposedly represented by attorneys paid by the City (through the "Fair Trial Tax Fund" funded by court fees). All of the court personnel hired by Montgomery have a significant financial stake in the proceedings. 33. The collective actions of Montgomery and its agents, including JCS and Kloess, are inextricably interwoven with each other and routinely result in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees routinely exceed the two-year statutory maximum, all of which results in Montgomery taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so. Additionally, Montgomery approves routinely adding to the "offender" probation balance any unpaid fines it can resurrect from old traffic tickets or fines, even though those predate the 10 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 11 of 202 "probation." 34. After improperly imposing probation even when no jail sentence is involved, incarceration then follows if the fine, together with the fees added by JCS, are not paid as dictated. The collection purpose of this system is emphasized by the fact that probation is terminated once full payment is made. 35. Under the Montgomery system, JCS had a monetary interest to conduct its role as "probation officer" in a way that maximized its personal profit and not as a neutral court officer. 36. Under the scheme implemented by Montgomery, its agent JCS decided whether to initiate probation revocation proceedings, and made recommendations to the city judge about that revocation, and charges of failure to appear or failure to obey court order – all while financially interested in the outcome of these strong-arm collection efforts. 37. Under the scheme implemented by Montgomery, JCS did not undertake determination of the reasons for nonpayment, and did not consider such things as the Plaintiff’ disability, unemployment or assets, in regard to the nonpayment of the fines and routinely sought collection from exempt income such as Social Security Disability payments. 38. Under the scheme implemented by Montgomery, JCS denied any responsibility to determine indigency, and provided no instruction to its employees for the consideration of indigency. 39. Under the scheme implemented by Montgomery, after simple fines are converted to "probation" for payment, jail often resulted for the "offender" who did not meet the payment schedule. This system used JCS’s conclusion of a "probation violation" or 11 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 12 of 202 "failure to obey court order" to incarcerate individuals who, had they been financially able to pay, would have paid only a fine with no probation whatsoever. 40. If a person is unable to make a full payment, JCS, often took out the amount owed to JCS first so that JCS was paid even if a person’s debt to the City was not reduced. 41. Many people have made payments to the City and to JCS, only to learn later that there was no record of those payments and to be ordered to make them again. 42. If a person missed payments or paid less than required, JCS had the purported contractual authority and discretion to decide whether to petition the City for "revocation" of probation. JCS also has a policy of placing people who cannot make full payments – from whom the company has difficulty making a profit – on "warrant status," which could result in warrants issued for their arrest by the City and which constituted a JCS determination that JCS would not accept the person for future probation supervision. JCS communicated this decision to the City, and the City’s policy and practice was to agree not to place such people back on probation, requiring instead that those people pay in full or go to jail. 43. In other cases in which a person was making substantial payments, JCS, had a personal financial interest in extending a person’s probation and in keeping the person on a payment plan for as long as possible so that it could profit from the collection of more monthly fees. 44. Thus, under the City’s scheme, JCS, was allowed not only to decide whether to initiate judicial revocation proceedings, but could also decide whether a person was put on probation and what judicially ordered conditions were imposed. JCS would also make other recommendations to the City judge concerning how JCS believed the person had 12 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 13 of 202 faired on probation, whether the person should be placed on probation, whether JCS considered the person "eligible" for probation, what the amount of monthly court-ordered payments should be, and a variety of other case-related decisions. 45. JCS had a personal financial interest to conduct its role as a probation officer in a way that maximized its personal profit and not necessarily as a neutral public court officer. 46. JCS used a "probation" room inside the City building that also houses the Municipal Court, directly across from the Municipal courtroom. A JCS employee often sat in the courtroom near the judge and advised the judge about how to handle the cases of "probationers" and potential "probationers." 47. The City enforced a policy and practice of initiating and issuing warrants when a person missed a payment or failed to make sufficient payments without considering the person’s ability to pay5—even when the City or its agent, JCS, had knowledge that the person was indigent – and without providing notice and validly summoning the person to court for a hearing. 48. Instead, City policy allows the City to issue and execute warrants,6 and City officers go to the homes of traffic debtors to arrest them. The City policy and practice is also therefore to deprive people of their liberty without any prior notice and opportunity to be heard and without any basic inquiry into whether the debt is owed, actually unpaid, or still valid. 5 See DOJ Report pp. 54-55 6 See DOJ Report p. 55. 13 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 14 of 202 49. The City often chooses to execute these warrants prior to or over the weekend, which results in a person serving needless extra time in jail prior to the next available court date. 50. People placed on "probation" because they cannot afford to pay their fines, fees, costs, and surcharges immediately were also forced to abide by additional restrictions on their liberty, which the City called "conditions" of probation, which were imposed solely because of their wealth status. These restrictions include: 1) not changing residence or employment without notifying JCS, 2) avoiding "injurious or vicious habits," 3) not using alcohol or visiting places where "intoxicants, drugs, or dangerous substances are sold, dispensed or used, 4) working diligently at a lawful occupation, 5) "truthfully answer all inquiries" by the JCS employees and "comply with all instructions" the JCS employee gives. In addition to these unlawful constraints, the order states in bold type. "You are subject to arrest for violation of any condition imposed by this order, and your probation may be revoked accordingly." 51. When warrants are issued and executed, the City adds fees, costs, and surcharges to the amounts of debt already owed. In addition to court fees and JCS fees and costs, the City routinely adds surcharges for warrants, a "solicitor" fee, and even a 30% debt-collection fee. 52. The City’s policy and practice was to conduct no inquiry into the person’s ability to pay, and the City’s policy and practice also refused to use even the state-issued Affidavit of Substantial Hardship that is available for courts to use to determine indigence. As such, the offenders had no opportunity to present evidence concerning their ability to 14 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 15 of 202 pay or concerning any other relevant question.7 53. If family members were present, the City’s practice was to call them up to the bench and to ask them to pay as much of their family member’s debts as they could on the threat that the person who allegedly owes the money would be jailed if the family members did not pay. 54. The City did not conduct any meaningful inquiry into the person’s ability to pay and did not even explain to people how they might claim indigency through standard forms issued by the State of Alabama. 55. The amount of debt announced to debtors by the judge in open court often differed from the amount listed on the paperwork that they received on their return to the jail. The paperwork amount is usually less than the open court amount, meaning that debtors would often have a balance remaining after they "served out" their fines, leading to their placement back on a payment plan and their continued supervision.8 The City appears to refer to this as "reopening" their cases, although this "reopening" and the corresponding modifications that it entails are not performed at any formal hearing or even in the person’s presence. Once people returned to the jail from City court, they were told of the City’s policy of "working off" an extra $25 per day of their debts if the person agreed to labor in the City jail while being imprisoned. 56. Inmates desperate to return to their families by "working off" their debts more quickly competed on a daily basis to be selected by City jail employees for a limited 7 See DOJ Report p. 58. 8 See DOJ Report pp. 59-61. 15 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 16 of 202 number of difficult, unsanitary, and demeaning daily labor tasks. These tasks included cleaning the offices of City employees in the Municipal Court building, the bathrooms in the City police department and Municipal Court, and cells and bathrooms in the City’s overcrowded jail. 57. The City’s debt collection practices are enormously profitable, especially in getting family members with no legal obligation to pay any money to the City to come up with money to get their loved ones released from jail and in getting low-income people to forgo basic necessities of life in order to pay JCS and the City in an attempt to avoid jail. 58. For example, the 2013 City of Birmingham budget reflects approximately $2.8 million from court and traffic citations, the City of Mobile approximately $2 million, and the City of Huntsville approximately $2.5 million. In contrast, the City of Montgomery budget reflects revenue of $15.9 million from municipal court "fines and forfeitures." 59. The City uses the money collected through these procedures to fund the City jail, to pay Municipal Court judicial salaries, to pay City Attorney’s Office salaries, and to fund other portions of the City budget. 60. The City’s recent "Amnesty Day" program starkly demonstrates its practice of jailing persons who are unable to pay debts to the City. In May 2013, Montgomery Mayor Todd Strange and City Municipal Court Administrator Kenneth Nixon (who is also a member of the Mayor’s cabinet), announced that the City would offer an "Amnesty" program on the first two Saturdays in June. Under this program, the City announced that it would remove certain fees, eliminate arrest warrants, and institute a payment plan if individuals were unable to pay the full amount to which the City claimed it was entitled. 61. However, at least 15 people were arrested on the first day of the "Amnesty" 16 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 17 of 202 program because they had too much debt allegedly outstanding (greater than $2,500) or because they did not bring at least $150 (or 10% of what was owed, if greater) to pay the City. These people were arrested pursuant to a City policy that required the arrest and jailing of people whose debts met these criteria regardless of a person’s ability to pay or financial circumstances. 62. The City’s publicly available budget does not itemize "fines and forfeitures" in as much detail as do the budgets of some other cities, which makes it difficult for the public to know the exact source of these funds. But, the "fines and forfeitures" collected by the City of Montgomery appear substantially higher than those collected by any other major Alabama city, even though those cities are larger than Montgomery. These policies and practices have created a culture of fear among the City’s poorest residents9 who are afraid even to appear in City court to explain their indigence because they know they will be jailed by the City without any meaningful process. Indeed, Mr. Nixon, the court administrator, reported to the Montgomery Advertiser that many residents were jailed during the amnesty program because they owed too much and could not pay even 10% of what they owed. Mr. Nixon publicly acknowledged that the arrests probably scared others from participating in the "Amnesty" program. 63. The same fear motivates many very poor City residents to sacrifice expenditures on food, clothing, utilities, sanitary home repairs, and other basic necessities of life in order to scrape together money to pay traffic debt to the City. 9 See DOJ Report p. 48-"There are also historical reasons, of which the City is well aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail. Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attributable, in part, to this popular belief. These fears are well founded." (Emphasis added) 17 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 18 of 202 64. Mr. Nixon warned that, following the 2013 Amnesty Program, the City would be "stricter" about arresting people for unpaid debt. The City also has a policy of referring unpaid debt to the Montgomery County District Attorney’s Office, which will send letters to debtors on the City’s behalf threatening imminent arrest if they do not pay their debts. A surcharge of 30% of the value of the debt is added to the debt to compensate the District Attorney’s Office for its participation in the City’s debt collection. The City purports to have the authority to arrest and jail indigent people when they cannot pay even these additional surcharges. 65. The City has stated that it seeks to use these collection programs and tactics to go after old traffic debt, including debt dating back to the 1980s. 66. As in the Plaintiff’s case, the City’s policy is to modify orders of incarceration outside of any formal judicial process. These modifications include: decreasing a person’s jail time from what was announced in open court so that a person is released with a remaining balance owed; allowing a person’s release without any hearing if the person or family members present some money to the City clerk; and allowing City employees to reduce the time a person is ordered to be in jail based on labor performed in the jail without any judicial involvement. 67. Plaintiff and witnesses have observed numerous other similar violations of basic constitutional rights in the Montgomery Municipal Court within the past year. 68. Under its scheme, Montgomery, which is also financially interested, takes advantage of its control over its police force and jail facilities to deny these "offender"/debtors the statutory and constitutional protections that every other Alabama debtor may invoke against a private creditor by allowing JCS to use or threaten debtors of 18 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 19 of 202 the City with arrest and jail as coercion for payment. 69. Under this scheme, it was the policy and practice of Montgomery to jail people when they could not afford to pay debts owed to the City resulting from prior city crimes and to do so without any inquiry into the person’s ability to pay and without considering alternatives to imprisonment. THE PLAINTIFF 70. Plaintiff and others similarly situated are individuals who were unable to fully pay fines, fees, costs and surcharges levied by the Montgomery Municipal Court, and who, as a result, were assigned to JCS for "probation" under JCS for purposes of collecting the fine. Plaintiff and many like him are currently or were formerly indigent and, despite that indigency, were incarcerated for failure to pay charges and fees for services allegedly rendered by JCS to Montgomery with which it contracted. ALDARESS CARTER 71. Aldaress Carter (‘Mr. Carter') is over the age of nineteen (19) and is a resident of Montgomery, Alabama. 72. On January 24, 2014, Mr. Carter was riding home from work, and the driver of the car in which he was a passenger was pulled over for a broken tail light. 73. The officer asked Mr. Carter, a passenger, his name and proceeded to run his name through the police records’ database.10 The officer then informed Mr. Carter that 10 See DOJ Report pp. 56, 57-"We have found that FPD officers frequently check individuals for warrants, even when the person is not reasonably suspected of engaging in any criminal activity, and, if a municipal warrant exists, will often make an arrest. City officials have told us that the decision to arrest a person for an outstanding warrant is "highly discretionary" and that officers will frequently not arrest unless the person is "ignorant." Records show, however, that officers do arrest individuals for outstanding municipal warrants with considerable frequency...Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individuals following 19 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 20 of 202 he was under arrest, informing him that there were ten capias warrants outstanding on him. 74. This was the first Mr. Carter had heard of the warrants, and at that time he did not know what the warrants could be related to. 75. Mr. Carter was surprised that he did not know of these warrants because he was on supervised probation with the state and he regularly reported to his probation officer. Despite regularly communicating with his state probation officer and finding work, he was now being told that Montgomery had ten active arrest warrants that no one else knew about.11 76. The private company--Judicial Correction Services, (‘JCS')-Montgomery--hired to collect outstanding fines, had requested that these warrants be issued for unpaid fines, fees and costs relating to traffic tickets Mr. Carter had incurred several years earlier. When Mr. Carter first received those tickets, he had been fined by the Montgomery Municipal Court for the charges but did not receive a jail sentence. 12 77. Mr. Carter was unable to pay the fines and costs in full when levied and, on or around 2011, was ordered to be on "probation" with JCS and to pay JCS an additional $40 per month. a vehicle stop solely because they had outstanding warrants." 11 See DOJ Report p. 61-"As with "warrant warning letters" described above, our investigation has been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient." 12 See DOJ p. 55-"The large number of warrants issued by the court, by any count, is due exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant issued by the Ferguson municipal court was issued because: 1) a person missed consecutive court appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose." 20 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 21 of 202 78. However, Mr. Carter was and has been indigent at all relevant times. At times, Mr. Carter paid what little money he could toward his fines and JCS fees, but eventually stopped paying when his money ran out. 79. Mr. Carter was not able to pay all the fines and fees, but, in accordance with the policy and practice of Montgomery which was established in its contract with JCS, neither the Montgomery Municipal Court nor JCS ever made any inquiry into his inability to pay at the time of levying the fine or thereafter. 80. Montgomery's agent, JCS, sent Mr. Carter a "failure to report" letter dated March 29, 2012, but Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files. 81. Montgomery's agent, JCS, sent Mr. Carter another "failure to report" letter to the same bad address. Mr. Carter did not receive this letter and it was returned to JCS and scanned into its files. The date 4/23/12 is handwritten on the returned letter. 82. Because Mr. Carter failed to pay his City fines and JCS fees, on December 6, 2012, JCS requested that his "probation" be revoked. The City itself sent no notice to Mr. Carter and delegated that to its agent JCS. 83. In its revocation petition, JCS does not mention that letters notifying Mr. Carter of JCS requests have been returned nor does it mention the fact that Mr. Carter is indigent and unable pay, nor does it mention the meager payments Mr. Carter has made. 84. Mr. Carter did not receive a copy of JCS's petition for revocation and did not attend the court hearing because he had no notice of the hearing. 85. Despite the fact that Mr. Carter did not receive notice of the hearing, a warrant for his arrest was issued by the City and a new charge of "Failure to Appear" 21 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 22 of 202 (‘FTA') was assessed to Mr. Carter on January 30, 2013. 86. This common scheme of revoking probation and assessing new charges of FTA benefitted both JCS and the City as it resulted in higher fees and fines owed to the City and it enabled JCS to keep probationers in their system longer which resulted in higher profits to the private company. 87. Mr. Carter had no notice of the original court hearing or the warrant that was issued for his purported "Failure to Appear" and the City made no effort to give him notice. 88. After he was arrested on January 24, 2014, Mr. Carter was then taken to the Montgomery City jail where he learned for the first time that he had been arrested for old, unpaid traffic tickets. 89. Mr. Carter sat in jail for three days and then appeared in the Montgomery Municipal Court on Monday, January 27, 2014--along with sixty-seven (67) other jailed inmates. 90. Before appearing in court, the jailed inmates were told by a man who did not introduce himself that they needed to "Pay or they would Stay." It was later determined that this man was Branch Kloess, a "Public Defender" hired by the City. 91. Despite being in jail and being indigent as shown by his inability to bond out of jail, Mr. Carter appeared before the judge and was ordered to pay $915 for the fines and fees on his unpaid traffic tickets, after which he could be released. Otherwise, the court informed Mr. Carter that he must stay in jail and receive $50 in credit per day toward the payment of his fines and fees. 92. Mr. Carter had recently obtained new employment, a job that had taken him a long time to acquire, and he knew he would be fired if he was forced to stay in jail. 22 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 23 of 202 However, Mr. Carter had no money with which to pay his fines and was left with no option but to stay in jail. Mr. Carter's girlfriend offered to pay all the money she had, which totaled $120, to secure his release from jail so that he could go to work. This offer was refused and Mr. Carter was sent back to jail. Throughout the day, the amount demanded to secure Mr. Carter's release from jail changed several times without any court intervention or consideration. Mr. Carter's mother continued to call the jail to find out how she could get him out and finally learned that if a family member or friend could pay $452, then Mr. Carter would be released and the unpaid fines and JCS fees he owed would be cleared. 93. Mrs. Carter was able to borrow the money to get her son out of jail so that he could go to work. She paid the $452 to one of the clerks at the court window and they called the jail to get Mr. Carter released. 94. On January 30, 2014, Mr. Carter was released from jail when his mother paid $452. 95. Throughout this period of time, JCS provided no services to Mr. Carter and has acted merely as a collection agency charging additional fees, and despite knowledge that Mr. Carter was unable to pay these fines and was indigent, JCS sought to collect and has taken actions to incarcerate Mr. Carter without any due process. 96. Mr. Carter was incarcerated without any formal probation revocation hearing or any hearing on the issue of his indigency, but simply incarcerated and later released based upon the determination of the City of Montgomery pursuant to its policy and contract with JCS. 97. Mr. Carter later learned that the public defender had entered a notice of appearance on Mr. Carter's behalf despite the fact that Mr. Carter did not know who he/she 23 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 24 of 202 was nor had the public defender introduced himself to Mr. Carter or advocated on Mr. Carter's behalf. 98. Mr. Carter's mother discovered that the public defender that supposedly represented her son was Mr. Branch Kloess and called Kloess who rudely questioned her about how she found out he was her son’s attorney and then stated he was no longer his attorney. When she told her son that he had counsel appointed to him, her son was surprised because no one stood up and spoke on his behalf to the judge. 99. Later when Mr. Carter’s girlfriend saw a picture of Mr. Kloess, she recognized him as the man that was seated in the courtroom but had no contact with either her or Mr. Carter. Mr. Kloess did not appear before the judge to plead Mr. Carter's indigency or request that the judge reduce his sentence based on his inability to pay, nor did he meet with Mr. Carter and file any pleading raising the issue of his indigency. 100. In fact, despite the fact that Mr. Kloess was being paid to represent indigent people, Mr. Carter was sent back to jail until his family could somehow get enough money to get him released so he could go back to work and, hopefully, not lose his job. 101. Montgomery's agents and employees all participate in this revenue revitalization program that preys on the poor despite the fact that their actions violate state and federal constitutional freedoms. PLAINTIFF'S CLASS ALLEGATIONS 102. The Classes which the named Plaintiff seeks to represent consist of: All individuals who have been assigned by the Montgomery Municipal Court to "probation" with JCS for the collection of fines. AND 24 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 25 of 202 All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, fees, costs and charges and levied by the Montgomery Municipal Court. 103. The members of the Classes and subclasses are so numerous that joinder of all members is impracticable. 104. As of this time, the exact number in the Classes is unknown but would be more than one thousand and is ascertainable. 105. Plaintiff's treatment by the Defendants is typical of the members of the Classes and subclasses and is ongoing. 106. Plaintiff will fairly and adequately protect the interests of the Classes and has retained counsel who are competent and experienced in class litigation. Plaintiff has no interests that are adverse or antagonistic to the Classes. 107. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. Since the damages suffered by many Class members may be small, the expense and burden of individual litigation make it virtually impossible for the Class members individually to seek redress for the wrongful conduct alleged. 108. Common questions of law and fact exist as to all members of the Class, and predominate over any questions affecting solely members of the Class. Among the questions of law and fact common to the Class are: a. Whether policy and practice of automatically placing on "probation" at additional cost all municipal offenders who cannot immediately pay fines and costs is legal; 25 b. Whether the policy and practice of converting unpaid fines and costs to days of incarceration, without any determination concerning an individual’s ability to pay, is legal; c. Whether the policy and practice of requiring every order of the municipal court to require probation fees for JCS is legal; d. Whether the policy and practice of incarcerating individuals for failure to pay fines and costs with no finding of willfulness is legal; e. Whether the policy and practice of incarcerating individuals for failure to appear when no notice of the hearing was provided by the court is legal; f. Whether the policy and practice of incarcerating individuals for Failure to Obey Court Order when no such ordinance exist and with no finding of willful contempt is legal; g. Whether the policy and practice of failing to appoint counsel for indigent defendants when a jail sentence is involved is legal; h. Whether the policy and practice of failing to make any inquiry into indigency before imposing fines and costs is legal; i. Whether the policy and practice of failing to give adequate notice of the charge and nature of a probation revocation hearing, failing to provide a probation revocation hearing, failing to make written findings concerning the reasons for revoking probation and the evidence relied upon, failing to hold a hearing to determine indigency before revoking probation and otherwise imposing incarceration, failing to make written findings concerning an individual’s willful nonpayment of fines and costs before imposing 26 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 27 of 202 incarceration for nonpayment, is legal; j. Whether the policy and practice of charging incarcerated municipal defendants a daily fee for each day the person is incarcerated is legal; k. Whether the policy and practice of imposing fines and court costs that exceed that statutory maximum for municipal is legal; l. Whether the policy and practice of extending "probation" for municipal offenses beyond 24 months is legal; m. Whether the policy and practice which fails to give any credit for time spent incarcerated is legal; n. Whether the policy and practice of adding unpaid fines that predate probation to the balance to be paid during probation is legal; o. Whether a municipality can legally enter a contract binding upon its municipal court; p. Whether a municipality can enter into a no bid contract to grant an exclusive franchise to a private probation company to operate in its municipal court; q. Whether setting bond based upon a fine balance owed the city is legal; r. Whether the policy of demanding a cash bond for release from jail without inquiry into ones’ financial situation or offense is legal. 109. Montgomery has acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 110. Plaintiff knows of no difficulty which will be encountered in the management 27 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 28 of 202 of this litigation which would preclude its maintenance as a Class Action. The data concerning the Class members and the transaction details and amounts on each charge are largely computerized by Montgomery and by JCS. 111. The names and addresses of the Class members are a matter of public record and are also kept by JCS and notice can be provided to the Class members via First Class U.S. Mail or other appropriate means as may be directed by the Court. COUNT ONE DENIAL OF DUE PROCESS AGAINST THE CITY OF MONTGOMERY AND KLOESS Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 112. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has denied him his right to due process and the rights of the Class members. 113. By contract, Montgomery delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 114. That no bid agreement was signed by the City mayor and bound Montgomery and its municipal court requiring that its municipal "court agrees that each court order shall provide for the following: a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00.... " (emphasis added). 115. Montgomery, through its mayor and/or council, approved the agreements with 28 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 29 of 202 JCS. 116. Montgomery, through its mayor and council, also approved the employment of the judges of its municipal court and its public defenders. 117. Municipalities are prohibited from laws, ordinances and policies which are in conflict with state law. See Ala Code Section 11-45-1. Also see, Ala. Const. Article 4 Section 89. 118. State law also dictates a separation of the branches of government. Ala Const. Article 3, Section 43.13 Under that doctrine, legislative powers granted to cities and towns are exercised by the city council, Ala. Code, Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code, Section 12-2-7 et. seq.; Ala Const., Article 6, Section 139. 119. Municipal mayors have the executive power to execute and enforce contracts14 and the city councils have the legislative power to enact regulations and ordinances,15 but neither the mayor nor the council has the power to invade the 13 Ala. Const. Art. III, Section 43 states: In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men. 14 Ala. Code Section 11-43-83-The mayor shall see that all contracts with the town or city are faithfully kept or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf or performed. He shall execute all deeds and contracts and bonds required in judicial proceedings for and on behalf of the city or town and no sureties shall be required on such bond. He shall perform such other executive duties, in addition to those prescribed in this article, as may be required of him by the council. 15 Ala. Code Section 11-43-43-All legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or 29 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 30 of 202 administration of its judiciary. 120. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, it agreed with JCS to bind its municipal court to include probation and fees for JCS in every court order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City. 121. The illegal agreement and policy of Montgomery invaded and overrode the judicial authority and court administration reserved to the municipal judges and the Chief Justice. 122. Probation is only appropriate when an individual has been sentenced to jail time and not when only a fine has been assessed as is the case with the Plaintiff and Class members. As a result, the Montgomery policy and contract to include probation in every court order mandated a judicial practice that continually deprived indigent misdemeanants of their constitutional rights. 123. The policy and practice of Montgomery also violated the Alabama Constitution. Article I, Section 20 Ala. Const. specifically prohibits imprisonment for the payment of debts, yet the policy enforced at Montgomery regularly jailed misdemeanants upon the recommendation of its agent JCS for failure to pay fines, fees and costs. Article I, Section 16 Ala. Const. requires that all persons shall before conviction be bailable by sufficient surety, but despite this prohibition, misdemeanants were regularly jailed without lawful conviction under any contempt proceedings or probation violation. ordinance. The council shall perform the duties required by this title and other applicable provisions of law. 30 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 31 of 202 124. The Plaintiff and some Class members were imprisoned, and some repeatedly, under these policies of Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned. 125. At the Montgomery Municipal Court, a person unable to fully pay fines and costs when levied was automatically placed on probation. The Montgomery system used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees. 126. Montgomery, through its city clerks, actively enforced these requirements as part of the policy and procedures established under this contract and refused to accept payments of fines and costs referring those payers such as the Plaintiff instead to the JCS office. 127. Montgomery, through its contract, practice and policy, clothed its agent JCS with the appearance of state authority and has previously allowed JCS employees to carry badges.16 Under these practices and policies, JCS employees were allowed to attend each 1 6 31 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 32 of 202 municipal court session and were referred to "probation officers" in the operation of the municipal court and in the City clerk’s office, though none ever had such authority under Alabama statutes. 128. Under this system at Montgomery, "offenders" are not permitted to pay fines at the City clerk’s office, but are instead directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hours and locations set by JCS. 129. Montgomery’s policy and practice also allowed JCS to control the money collected from persons such as Plaintiff and to determine how much each such municipal court "offender" must pay each month. 130. Montgomery’s policy and practice also allowed JCS to determine how much of the collected sums will be credited to the collection "services" of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged. 131. This system, as a matter of routine, violated the rights of persons such as the Plaintiff and the class he seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency. 132. Despite the lack of authority to do so, Montgomery, by its practice and policy, permitted, approved and conspired with JCS, a private actor with a financial stake in the outcome, to play the role of a neutral probation office and, at its discretion, to use threats of revoking probation, increased fines and costs, arrest and jail time for purposes of collection. 133. Under this system, should an individual fail to pay to the satisfaction of JCS, Montgomery permitted and approved JCS setting payment and reporting schedules and 32 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 33 of 202 determining when the individual’s "probation" should be revoked, or when to impose additional fines and costs. 134. Under the system operated at Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid'public defenders’ were assigned to many of these indigent folks, yet they were still subject to punitive action. 135. Montgomery permitted and conspired with JCS allowing it to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so. 136. The municipal court judges employed by Montgomery did no investigation of indigency as a matter of policy. 137. Despite the fact that many people are assigned a'public defender,’ these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the'public defender’ never introduced himself/herself to their'client’ and did not speak to the court on the "‘clients’" behalf and kept no files on their "clients." 138. Under the system at Montgomery, after simple fines are illegally converted to "probation" for payment, jail often resulted for the "offender" who did not meet the 33 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 34 of 202 payment schedule set by JCS and enforced by Montgomery. This system used and accepted JCS’s conclusion of a "probation violation" or "failure to obey court order" and employed JCS recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine. 139. Under this system at Montgomery, the Plaintiff was first fined, but then automatically placed on "probation" though no jail sentence was adjudicated. Though the Plaintiff was indigent, Montgomery made no investigation of that matter--despite the fact that, unknown to him, Montgomery paid Kloess a'public defender’ to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees that Montgomery agreed to levy, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS’s collection efforts. 140. Many individuals who cannot pay their fines and added fees, such as the Plaintiff and Class members, were jailed for charges against them for "failure to obey court order," though there is no such state statute or city ordinance which defines this as a criminal act. 141. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made under the system at Montgomery. 142. Montgomery adopted and implemented JCS’s conclusion of a "probation violation" or "failure to obey court order" and issued arrest warrants to incarcerate individuals whose original case had only been a fine. 143. In this process of converting fines to jail time, Montgomery did not give 34 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 35 of 202 adequate notice to the "offender" of the nature of any lawful charge, it failed to conduct hearings, failed to make written findings concerning the reasons for any probation revocation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs. 144. Under this policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the "offenders." In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that'public defenders’ are retained by the City to represent the indigent,17 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do not raise issues of indigency nor request hearings for that purpose. 145. The public defenders have a policy and practice of not requesting indigency hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the'public defender,’ as all are enriched by avoiding the constitutional due process requirements and demanding money from the poor. 146. After jailing an "offender," Montgomery acted to further violate the Plaintiff’s constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis other than payments it 17 See Exhibit 2-contract for Kloess. 35 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 36 of 202 has secured. As a result, there was no consistent standard of review or logical system under which those incarcerated were granted release. 147. Under the practice and policies used at Montgomery, after an adjudication under which a fine is levied, additional fees, costs, and other charges are added to the "offender" bill including, in some cases, those relating to charges from years earlier. 148. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT TWO DENIAL OF DUE PROCESS AGAINST JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 149. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has denied her right to due process and has denied those rights to the class members and has done so in concert and by agreement conspiring with Montgomery. 150. JCS operates a "for profit" enterprise that markets its services to various municipal and county governments and has contracted with over 100 cities and towns throughout Alabama including Montgomery. JCS’ marketing approach to these cities emphasizes that its fees will be paid by the "offender" before the municipal court and that its efforts will improve collection of court fines and costs at no cost to the City. 36 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 37 of 202 151. JCS routinely uses a form contract to establish its relationship with its customer cities and similarly trains its employees using a training manual replete with forms for court use and for contacting the "offenders" from whom it is seeking collection. As a result, the JCS approach is highly systemized and uniform. 152. Under the system established by JCS, its employees are not required to have criminal justice or legal training, nor are they required to have any social work education or meet any minimum law enforcement standards as is required of state probation officers. Instead, JCS requires only that its employees be 21 years old, a non felon, with two years of college who complete 40 hours of training by JCS on its processes. On satisfying those requirements, JCS employees are then labeled "Probation Officers" and were permitted to carry the JCS issued badge in collecting its fees, court fines and costs. 153. Under this system and by agreement with Montgomery, many administrative and judicial functions of Montgomery’s municipal court were unlawfully delegated to JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 154. The agreement drafted by JCS and signed by the Montgomery mayor and JCS attests that the Montgomery municipal "court agrees that each court order shall provide for the following: a probation fee of $40.00 per month flat fee One time probationer set up fee of $10.00.... " (emphasis added). 155. JCS was, by virtue of this no bid contract with Montgomery, clothed with the appearance of a state actor and its actions were inextricably interwoven with those of Montgomery with which it conspired and acted in concert. Under its contract and its 37 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 38 of 202 operations with Montgomery, JCS employees represented itself to the Plaintiff and class members to be "probation officers" acting as agent "on behalf of City of Montgomery." 156. The JCS system at Montgomery provided "Order of Probation" forms to the municipal court with the printed requirement on each form that the "offender" pay JCS $40 per month plus $10 for a file set up charge. The orders supplied by JCS required the individual to make payments to JCS of the fines, costs and additional monthly fees as required under its contract with the City. 157. Under the JCS contract and procedures, the resulting policy and practice at Montgomery’s municipal court automatically required "probation" for any person who, despite having no jail sentence, was unable to fully pay the fine and costs when levied by the municipal court. 158. The Plaintiff was initially placed on "probation" with JCS under this practice despite the fact that he had not been sentenced to any jail time. 159. That "probation" requirement, under agreement between JCS and Montgomery, was required to be part of every printed order at Montgomery’s municipal court and also required payment of monthly fees to JCS. 160. The policy and practice method of JCS, after requiring probation orders for those unable to immediately pay their fines, and adding additional, monthly fees for JCS, also imposed incarceration for a failure to pay fines, fees and costs when payment was not forthcoming as JCS demanded. 161. Incarceration of individuals who could not pay their fines and added fees, such as the Plaintiff and class members, was accomplished by JCS leveling charges against them for "failure to obey court order," though there is no such state statute or city 38 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 39 of 202 ordinance which defines this as a criminal act or by petition to revoke the "probation" based upon JCS’s conclusion that the person had not paid as directed. 162. Though a determination of willful refusal to obey a court order as required by Ala. Code §15-18-62 can lawfully lead to incarceration, no such determinations were made under the JCS system and Montgomery’s policy. 163. JCS expressly denies any responsibility to determine indigency of the "offenders" such as the Plaintiff or to determine any reasons for an inability to pay the fine. Therefore, when an "offender" is unable to pay the fine and additional fees required by JCS, JCS and Montgomery cooperated with each other to issue arrest warrants requested by JCS based upon claims of "failure to obey court order." 164. The Plaintiff was indigent at the time the traffic fines were levied against him in Montgomery. His indigency was also evidenced by the fact that he could not pay the cash bond Montgomery demanded for his release from jail. The Plaintiff and the class members were all unable to pay the fines and fees demanded by JCS due to their indigency and some were incarcerated as stated in detail in the above facts upon JCS’s recommendation to its conspirator Montgomery which then used its police force to carry out the arrest. 165. The incarceration process used by JCS includes the use of JCS drafted forms that it sent to "probationers" and JCS forms it used to request that a person be jailed. 166. JCS’s recommendations to jail people until a certain sum of money was paid were then approved by administrative personnel at Montgomery without a hearing to determine indigency. 167. The JCS system and its "Probation Tracker" software is highly systemized 39 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 40 of 202 and focuses on collections of fines and its fees--not traditional probation services. That collection focus allows the "offenders" to mail in payments if they live 30 miles from the JCS office. See Exhibit 5. The training manual used by JCS instructs its employees on the use of its computer systems in tracking the payments made by the "offenders" and provides court forms to order probation and payments to JCS. The JCS training system also provided sample letters for use after probation was ordered, threatening the "offender" that "a warrant will be issued for your arrest" and that their "court date cannot and will not be reset." See Docs. 1-6 and 1-7. Similar JCS forms instructed the "offender" that they could avoid the court date if they paid an amount determined by JCS. See Doc 1-8. Notice to the offender of these JCS set "court dates" was, with the City’s knowledge, handled by JCS by regular mail with no proof of service and no consideration of returned mail showing no receipt. Similarly, the setting for any hearing on petitions instituted by JCS was done by JCS and listed on a separate "JCS Docket" which JCS established and which Montgomery then adopted. Finally, the JCS manual instructs its employees on the issuance of warrants of arrest and provides forms for that purpose. See Exhibit 8. 168. The agreement and forms drafted by JCS are uniformly used by it and were used at Montgomery. 169. Clothing JCS with the color of state law and authority was purposely structured under the JCS system for it to extort and collect its fees, fines and costs from citizens such as the Plaintiff, and is accomplished by providing JCS control over the money collected, the payment amount required, schedule of appointments, the location where the money must be paid and control over how much will be credited for each payment to the collection "services" of JCS each month as opposed to how much of it would be rebated 40 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 41 of 202 to Montgomery toward the fines adjudged. 170. Despite the lack of authority to do so but in concert with Montgomery, JCS, at its discretion, used threats of revoking probation, increased fines and costs and jail time for purposes of collection. Under this system, when an individual failed to pay to the satisfaction of JCS, JCS would determine that the individual’s "probation" should be revoked. Under the system operated jointly by Montgomery and JCS, JCS’ determination to incarcerate an individual was routinely accepted without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency or appointment of counsel before taking such punitive action. 171. The actions and efforts of JCS routinely resulted in court costs, fines and fees which exceed the jurisdictional maximum of $500 for municipal courts. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees for JCS routinely exceed the two-year statutory maximum, all of which resulted in JCS taking action to detain and otherwise incarcerate individuals without any jurisdiction to do so. 172. This system at Montgomery used JCS’ conclusion of a "probation violation" or "failure to obey court order" and employed JCS recommendation for the issuance of warrants to incarcerate individuals whose original case had only been a fine. 173. In this process of converting fines to jail time, JCS and Montgomery did not give adequate notice of the nature of any lawful charge, failed to conduct hearings, failed to make written findings concerning the reasons for revoking probation or the evidence relied upon, and failed to make written findings concerning any willful nonpayment of fines and costs before imposing incarceration for failure to pay fines and costs. 174. Under this joint policy and practice of JCS and Montgomery, when a simple 41 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 42 of 202 fine was transformed into a jail sentence of an undetermined time, JCS and Montgomery also failed to provide counsel for the "offenders." 175. After jailing an "offender," JCS and Montgomery acted to further violate the Plaintiff and class members’ constitutional rights by arbitrarily granting early release to some individuals while denying it to others under similar circumstances without any rational basis based upon the whim of JCS and payments it has secured. As a result, there was no consistent standard of review or logical system under which those incarcerated were granted release. 176. Under the practice and policy of JCS used at Montgomery, after a fine is levied, additional fees, costs and other charges were added including, in some cases, those relating to charges years earlier. 177. The Plaintiff and some Class members were imprisoned, and some repeatedly, under the JCS system implemented at Montgomery for their failure to pay fines, costs and the added fees mandated by the illegal contract between Montgomery and JCS. The Plaintiff was not accorded any hearing or consideration of his indigency before being jailed, nor was he provided any notice of charges, a hearing on charges levied that might result in imprisonment, or provided meaningful assistance of counsel before being imprisoned. 178. At the City of Montgomery, under the JCS system, a person unable to fully pay fines and costs when levied was automatically placed on probation. The JCS system used at Montgomery used JCS orders and forms even when no jail sentence was adjudicated. This was routinely done with no investigation into the indigency of the individual or the reasons for their inability to pay the fine and costs. The orders supplied 42 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 43 of 202 by JCS under the agreement with Montgomery then required the individual to make payments to JCS, rather than the City clerk, of the fines, costs and additional monthly fees. 179. As part of the JCS system and procedures established under this contract with Montgomery, the city refused to accept payments of fines and costs, referring those payers such as the Plaintiff instead to the JCS office. 180. Once clothed with the appearance of state authority, JCS allowed its employees to carry badges,18 attended each municipal court session and referred to themselves as "probation officers" and agents for the City, though none ever had such authority as "probation officers" under Alabama statutes. 181. Under the JCS system, persons such as the plaintiffs are directed to make all payments, including those for fines, restitution, probation fees and court costs, to JCS at the JCS office at hours and locations set by JCS. 182. This system gave control the money collected from persons such as Plaintiff to JCS which then determined how much each such municipal court "offender" must pay each month and how much would be credited to the collection "services" of JCS each month and how much it will rebate to Montgomery toward the municipal court fines adjudged. 183. This system, as a matter of routine, violated the rights of persons such as the 1 8 43 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 44 of 202 Plaintiff and the class he seeks to represent by imposing fines and charging fees to indigent persons with no hearing or consideration of their indigency. 184. Despite the lack of authority to do so, JCS, a private actor with a financial stake in the outcome, playing the role of a neutral probation office, at its discretion, used threats of revoking probation, increased fines and costs, arrest and jail time for purposes of extorting the collection. 185. Under this system, JCS set payment amounts and reporting schedules and recommended when the individual’s "probation" should be revoked, or when to impose additional fines and costs. 186. Under the system operated at Montgomery, JCS’s determination to incarcerate an individual and/or impose unreasonable release requirements was routinely accepted by city personnel without conducting delinquency or probation hearings and without making any findings, much less any determination of indigency despite the fact that city-paid'public defenders’ were assigned to many of these indigent folks, yet they were still subject to punitive action. 187. JCS conspired with Montgomery to control and dictate these functions and, as a consequence, this routinely resulted in court costs and fines which exceed the statutory maximum of $500 for municipal courts. Similarly, the periods of "probation" imposed for purposes of collecting fines and fees at Montgomery routinely exceeded the two-year statutory maximum, all of which result in action to detain and otherwise incarcerate individuals without any jurisdiction to do so. 188. JCS nor, the municipal court judges or public defenders employed by Montgomery did any investigation of indigency as a matter of policy. 44 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 45 of 202 189. Despite the fact that many people are assigned a'public defender,’ these indigent people are not adequately represented and many times do not even know that an attorney has been assigned to their case. In fact, many times the'public defender’ never introduced himself/herself to their'client’ and did not speak to the court on the "‘clients’" behalf and kept no files on their "clients." 190. Under the JCS system at Montgomery, after simple fines are illegally converted to "probation" for payment, jail often resulted for the "offender" who did not meet the payment schedule set by JCS and which in turn is enforced by Montgomery. This system used and accepted JCS’s conclusion of a "probation violation" or "failure to obey court order" and employed JCS’s recommendations for the issuance of a warrant of arrest to incarcerate individuals whose original obligation was only the payment of a fine. 191. Under the JCS system at Montgomery, the Plaintiff was first fined, but then automatically placed on "probation" though no jail sentence was adjudicated. Though the Plaintiff was indigent, neither JCS nor Montgomery made any investigation of that matter--despite the fact that, unknown to him, Montgomery paid a'public defender’ to represent him. When the Plaintiff was unable to pay the fines, costs and additional JCS fees, recommendations from JCS were made and followed by Montgomery to incarcerate him for undetermined time unless a cash bond was made in amounts closely approximating the sums sought by JCS’s collection efforts. 192. Under this policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, the City failed to provide adequate counsel for the "offenders." In fact, like the Plaintiff, many people are jailed for nonpayment despite the fact that'public defenders’ are retained by the City to represent 45 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 46 of 202 the indigent,19 are listed as attorneys on their case, and are paid to supposedly represent them. Those public defenders like Kloess are paid from fines collected on convictions, do not routinely oppose the charges made, and do not raise issues of indigency nor request hearings for that purpose. 193. The public defenders have a policy and practice of not requesting indigency hearings despite the fact that the only clients they represent under the contract with the City are indigents. This policy and practice of not requesting indigency hearings benefits both the City and the'public defender’, as well as JCS, since all are enriched by avoiding the constitutional due process requirements and demanding money from the poor. 194. As a proximate consequence of this deprivation of due process, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT THREE VIOLATION OF THE FOURTH AMENDMENT CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 195. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated their Fourth Amendment rights and the rights 19 Exhibit 2-contract for Kloess. 46 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 47 of 202 of the Class members to be free from unreasonable seizure. 196. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 197. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these "offenders" who could not pay the fine imposed under this system constitutes a "seizure" in violation of the Fourth Amendment as well. 198. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines. 199. Montgomery’s policy and practice of including probation with JCS in every municipal court order created the process by which misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code, Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the U.S. Constitution. 200. Under Alabama case law, the Alabama Constitution and the U.S. Constitution, an indigent defendant cannot be required to serve jail time for nonpayment of fines or costs.20 20 It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so. Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution. 47 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 48 of 202 201. Despite longstanding legal precedent prohibiting incarceration for one’s inability to pay a fine/debt, Montgomery’s personnel, working in conjunction with JCS, unlawfully arrested and jailed the Plaintiff for his inability to pay a simple fine with added fees and costs dictated by the Montgomery contract with JCS. 202. Montgomery’s police, municipal court processes and jail access all became tools of collection under forms and processes issued by its agent JCS and which were routinely followed by Montgomery. Montgomery’s policy and practice, after clothing its agent JCS with the appearance of state actor acting on their behalf, allowed JCS to threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to jail time under the original adjudication. 203. When these threats failed to produce sufficiently, Montgomery police, clerks and other personnel, cooperated with JCS to arrest and jail the Plaintiff class members such as Aldaress Carter. 204. The jailing of class members by Montgomery, as described under the specific facts stated above, constitutes unlawful seizures in violation of the Fourth Amendment.21 "These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that 'justice shall be administered without sale, denial or delay.'" Esdale, 253 Ala. at 553. Crutcher v. State, 439 So. 2d 725; 726 (Ala. Crim. App. 1983) 21 "Fourth Amendment seizure [occurs]... when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it."). 48 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 49 of 202 205. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent. COUNT FOUR VIOLATION OF THE FOURTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 206. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, violated his Fourth Amendment rights and the rights of the class members to be free from unreasonable seizure and has done so in concert and by agreement conspiring with Montgomery. 207. By no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of its municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 208. In addition to a denial of due process guaranteed the Plaintiff under the Fourteenth Amendment, the arrest and detainment of these "offenders" who could not pay the fine imposed under this system constitutes a "seizure" in violation of the Fourth Amendment as well. 209. Under Alabama law, a simple fine can only be converted into jail time if the court makes findings under Ala. Code, Section 15-18-62 (1975) that a defendant has willfully failed to pay the fines. 210. Under the system created and implemented by JCS at Montgomery including 49 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 50 of 202 probation with JCS in every municipal court order created the process by which misdemeanants were incarcerated without a willfulness hearing as required by Ala. Code, Section 15-18-62, and in violation of Alabama case law, the Alabama Constitution and the U.S. Constitution. 211. Under Alabama case law, the Alabama Constitution and the U.S. Constitution, an indigent defendant cannot be required to serve jail time for nonpayment of fines or costs.22 212. Despite longstanding legal precedent prohibiting incarceration for one’s inability to pay a fine/debt, JCS instituted the issuance of arrest warrants for the plaintiff and many class members when JCS knew these people could not pay the fines and fees JCS demanded and despite the fact that many had no jail time assessed on their original conviction. 213. Montgomery’s police, municipal court processes and jail access all became tools of collection under forms and processes issued by its agent JCS and which were 22 It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State 51 Ala.App. 212, 283 So.2d 662 (1973). "To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws." Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so. Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution. "These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that 'justice shall be administered without sale, denial or delay.'" Esdale, 253 Ala. at 553. Crutcher v. State, 439 So. 2d 725; 726 (Ala. Crim. App. 1983) 50 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 51 of 202 routinely followed by Montgomery. Montgomery’s policy and practice, after clothing its agent JCS with the appearance of state actor acting on their behalf, allowed JCS to threaten arrest or revocation of probation and/or incarceration in order to coerce these indigents to pay the city fines and fees for misdemeanor offenses not otherwise subject to jail time under the original adjudication. 214. Unless prompt payment of its fees and fines was made as determined by JCS, JCS took steps to have the "probation" revoked or initiated charges for "failure to obey court order" beginning the process of incarcerating an individual who otherwise would never have seen jail under the original adjudication. 23 215. Many of the class members were unlawfully jailed at Montgomery under the JCS process as described and under the specific facts as stated above all of which constitute unlawful seizures in violation of the Fourth Amendment.24 216. As a proximate consequence of this unlawful seizure, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, all while being indigent. 23 "Fourth Amendment seizure [occurs]... when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it."). 24 "Fourth Amendment seizure [occurs]... when there is a governmental termination of freedom of movement through means intentionally applied." (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274 (plurality opinion) ("The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it."). 51 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 52 of 202 COUNT FIVE VIOLATION OF THE SIXTH AMENDMENT CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 217. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members. 218. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 219. Under the policy and practice at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent "offenders." 220. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on "probation" under JCS pursuant to JCS form orders and the contract approved by Montgomery. 221. The no bid contract signed by Montgomery approved a "probation" process as essentially a collection vehicle for the City to collect its fines. That agreement, as discussed above, conflicts with state statutes, violates state constitutional requirements for separation of power in the branches of government, and exceeds the authority of the mayor and council. 52 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 53 of 202 222. Under that agreement, Montgomery allowed JCS to add monthly fees to the "offender" who had already disclosed an inability to pay the fine when adjudicated and despite the fact that JCS provided no services to them. 223. Under the agreement and with the knowledge and approval of Montgomery, JCS represented itself as acting on behalf of the City which clothed it with that appearance. 224. Under this agreement, Montgomery unlawfully invaded the province of the municipal court and mandated that each order there contain provisions for fees to JCS. 225. By this agreement, simple fines without jail sentences were automatically and illegally converted to'probation’ through JCS if the offender could not promptly pay the entire fine and costs. 226. After this conversion from a fine to'probation,’ threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled. 227. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present but for Montgomery’s policy and practice adopting and using the JCS collection system in the administration of its court system illegally requiring "probation" for simple fines. 228. With the Plaintiff’s inability to pay and the JCS focus on collections, charges are routinely initiated claiming "probation violation" or "failure to appear" or "failure to obey court order." These are initiated by JCS under its system and then approved and enforced by Montgomery personnel. 229. At that point, jail sentences become potential jeopardy for the "offenders" such as the Plaintiff on charges that have never before been subjected to meaningful 53 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 54 of 202 adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those "offenders." 230. At the point when jail sentences become potential, Montgomery does not provide notice of charges, nor are findings made as required for conviction. Similarly, though JCS also regularly proposes a charge of "failure to obey court order" which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City’s system with JCS, there is no finding or hearing on the issue of willfulness. 231. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never advocated to the court on Mr. Carter’s behalf to raise any issue of his indigency as a bar to incarceration for failure to pay. This lack of representation by Kloess is indicative of his conflicted position under a contract which pays him for costs taxed on convictions. His position as "indigent defense counsel" has become essentially another part of the collection process utilized by the city and does not present adequate representation for the indigent class members such as Mr. Carter. 232. These actions constitute a denial of the Plaintiff’s rights secured by the Sixth Amendment. 233. As a proximate consequence of this violation of their Sixth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail 54 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 55 of 202 sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT SIX VIOLATION OF THE SIXTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 234. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has violated his Sixth Amendment rights and the rights of the Class members. 235. By a no bid contract as discussed in detail above, Montgomery illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. JCS performed those functions in a manner which violated the rights of the Class members. 236. Under this joint policy and practice of JCS at Montgomery, when a simple fine was transformed into a jail sentence of an undetermined time, adequate counsel was not provided for the indigent "offenders." 237. The Plaintiff was initially ordered to pay only a fine at the Montgomery Municipal Court, but due to his inability to pay, he was placed on "probation" under JCS pursuant to JCS form orders and the contract approved by Montgomery. 238. The JCS "probation" process is essentially a collection vehicle for the City to 55 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 56 of 202 collect its fines which adds monthly fees to the "offender" who had already disclosed an inability to pay the fine. JCS provided no services to the Plaintiff, but represents itself as acting on behalf of which clothed it with that appearance. 239. Under that process at Montgomery, JCS has added monthly fees to "offenders" who had already disclosed an inability to pay the fine when levied and despite the fact that JCS provided no services to them. 240. Though representing itself as an agent of the City, JCS denies any responsibility to investigate the indigency of the "offenders" and thus took no action to determine or consider disabilities, employment status or other reasons justifying non payment. 241. Simple fines without jail sentences were automatically and illegally converted to "probation" under the JCS system used at Montgomery if the offender could not promptly pay the entire fine and costs. 242. After this conversion from a fine to probation, JCS makes threats of jail and actual incarceration if the fines, fees and costs were not paid as demanded by JCS. 243. Under its illegal agreement with Montgomery, simple fines without jail sentences were automatically and illegally converted to'probation’ through JCS if the offender could not promptly pay the entire fine and costs. 244. After this conversion from a fine to'probation,’ threats of jail were used by JCS with the approval of Montgomery and actual incarceration then takes place by police and other City personnel if the fines, fees and costs were not paid as scheduled. 245. The jeopardy of jail time was not present when the simple fines were adjudicated against the Plaintiff and the Class members and would not have been present 56 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 57 of 202 but for the JCS collection system used at Montgomery. 246. With the Plaintiff’s inability to pay and the JCS focus on collections, charges are routinely initiated claiming "probation violation" or "failure to appear" or "failure to obey court order." These are initiated by JCS under its system and then approved by Montgomery personnel. 247. At that point, jail sentences become potential jeopardy for the "offenders" such as the Plaintiff on charges that have never before been subjected to meaningful adversarial testing. Nevertheless, neither JCS nor Montgomery routinely provided adequate counsel for those "offenders." 248. Though JCS also regularly proposes a charge of "failure to obey court order" which Montgomery then pursues, that is not a valid offense. If willful failure to pay under state statutes such as Ala. Code Section 15-18-62 is used as the basis, under the City’s system with JCS, there is no finding or hearing on the issue of willfulness. 249. The named Plaintiff, Aldaress Carter, while indigent, was unlawfully jailed by Montgomery under this JCS system and was not provided meaningful assistance of counsel. In fact, Mr. Carter was surprised to learn that Mr. Kloess was appointed to his case that resulted in his incarceration. Mr. Kloess never identified himself to Mr. Carter, never met with him and, despite being paid to represent indigents, Mr. Kloess never advocated to the court on Mr. Carter’s behalf to raise any issue of his indigency as a bar to incarceration for failure to pay. This lack of representation by Kloess is indicative of his conflicted position under a contract which pays him for costs taxed on convictions. His position as "indigent defense counsel" has become essentially another part of the collection process utilized by the city and did not provide adequate representation for the 57 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 58 of 202 indigent class members such as Mr. Carter. 250. These actions constitute a denial of the Plaintiff’s rights secured by the Sixth Amendment. 251. As a proximate consequence of this violation of their Sixth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. Incarceration of Class members routinely followed the decision by JCS to institute proceedings to coerce payments. COUNT SEVEN VIOLATION OF THE EIGHTH AMENDMENT CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 252. The Plaintiff avers that Montgomery, acting under color of state law in violation of 42 U.S.C. § 1983, violated the Eighth Amendment prohibitions against excessive fines, cruel and unusual punishment and excessive bail, in its actions with the Plaintiff and Class members and has done so in concert and by agreement conspiring with JCS. 253. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 58 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 59 of 202 254. The Eighth Amendment prohibits cruel and unusual punishment and, as such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on what can be made criminal and punished as such and prohibits excessive bail. 255. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code § 13A-5-12(a)(3), and even lawful probation for misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code § 15-22-54(a). 256. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost. 257. Even upon proper notice and a finding of willful nonpayment under § 15-18-62, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2). 258. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery. 259. Under these facts, Montgomery illegally contracted and conspired with JCS to add monthly fees and costs to each municipal court order. This agreement increased the substantial fines levied against indigent persons such as the Plaintiff. 260. Neither Montgomery, nor its agent JCS, made inquiries into the indigency of 59 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 60 of 202 the "offenders" in the system. As a result, the Plaintiff’s failure to make payments as dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and incarceration followed under the process based upon JCS’s representation that the offender had "failed to obey a court order" or had "failed to appear" or had violated "probation." 261. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-18-62. 262. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violate the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment. 263. The named Plaintiff was, at all pertinent times, indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs. 264. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala Rule Crim Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment. 265. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail. 266. As a proximate consequence of this violation of his Eighth Amendment rights, 60 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 61 of 202 the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT EIGHT VIOLATION OF THE EIGHTH AMENDMENT BY JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 267. The Plaintiff avers that JCS, acting under color of state law in violation of 42 U.S.C. § 1983, has violated the Eighth Amendment prohibition against excessive fines, excessive bail and cruel and unusual punishment in its actions with the Plaintiff and Class members and has done so in concert and by agreement conspiring with Montgomery. 268. As discussed in detail above, Montgomery has illegally delegated many administrative and judicial functions of their municipal court to its agent JCS, clothing it with the color of state law for the collection of court fines, costs and private fees. 269. The Eighth Amendment prohibits cruel and unusual punishment and, as such, limits the kinds of punishment that can be imposed on those convicted of crimes, proscribes punishment grossly disproportionate to the severity of the crime and imposes substantive limits on what can be made criminal and punished as such and prohibits excessive bail. 270. Under Alabama law, a municipal court has no authority to award a fine on any particular charge over $500, Ala. Code § 13A-5-12(a)(3), and even lawful probation for 61 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 62 of 202 misdemeanors cannot, by statute, extend beyond a two-year period. See Ala. Code § 15-22-54(a). 271. As mentioned above, Ala. Code § 15-18-62 is the only statutory method under which a fine levied by a court on adjudication can be converted to imprisonment, but that can legally occur only where the court finds willful nonpayment of the fine and cost. 272. Even upon proper notice and a finding of willful nonpayment under § 15-18-62, the conversion of fine to imprisonment has a specific ratio such that a fine not to exceed $500 shall result in no more than 20 days. See Ala. Code § 15-18-62(2). 273. Rule 26.11 of the Alabama Rules of Criminal Procedure provides the method for dealing with fines, restitution and the failure to pay under a variety of circumstances, none of which were followed by Montgomery. 274. Under these facts, JCS, operating under an illegal contract with Montgomery, increased the financial burden on the plaintiffs by adding additional monthly fees and costs to their balance after fines were levied against these indigent persons. For many class members, the total amounts demanded by JCS regularly exceeded the $500 limitation on the municipal court authority. 275. Under the JCS extortion system at Montgomery, though JCS made no inquiry into the indigency of the "offenders" in the system or the reason for their failure to make payments, JCS increased the amount demanded from the Plaintiffs to the point that even partial payments could not be made. 276. As a result, the Plaintiff’s failure to make payments as dictated resulted in threats of arrests. If threats failed to produce the demanded payments, arrest and 62 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 63 of 202 incarceration followed under the process based upon JCS’s representation that the offender had "failed to obey a court order" or had "failed to appear" or had violated "probation." 277. These fines exceeded the statutory limits of the municipal court and the incarceration periods imposed for the failure to pay exceeded those in Ala. Code §15-18-62. 278. The practice and policy of imposing jail time for an inability to pay its fees, fines and costs violate the Eighth Amendment prohibition against excessive fines and cruel and unusual punishment. 279. The named Plaintiff was at all pertinent times indigent and yet was incarcerated by City personnel for his inability to pay fines, fees and costs. 280. After being arrested, JCS, with the City, calculates the amount claimed to be owed for fines, fees and costs which is then used as the bail required for release without consideration of factors justifying release on recognizance or other factors provided for under Ala. Rule Crim. Pro. 7.2. This practice results in excessive bail requirements in violation of the Eighth Amendment. 281. As a result of the violation of the Eighth Amendment, the Plaintiff was subjected to excessive fines, fees, and costs beyond the jurisdictional limits of the municipality and violation of the prohibition against excessive fines and cruel and unusual punishment and excessive bail. 282. As a proximate consequence of this violation of his Eighth Amendment rights, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of 63 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 64 of 202 their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT NINE DENIAL OF EQUAL PROTECTION CITY OF MONTGOMERY Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 283. Montgomery has acted under color of state law in violation of 42 U.S.C. § 1983 to deny the Plaintiff and Class members’ rights to equal protection secured by the Fourteenth Amendment and did so in concert by agreement conspiring with JCS. 284. This was accomplished by the illegal contractual agreement Montgomery had with JCS. Under that agreement, the actions of its agent JCS were inextricably intertwined in a practice and policy at Montgomery. That practice and policy automatically required "probation" for any person who, despite having no jail sentence, was financially unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS. 285. Persons who are financially able to fully pay the levied fine and costs at Montgomery are not placed on "probation." As a result, those persons are not charged any fees for JCS and are not subjected to threats of arrest and incarceration in the collection process. 286. For those such as the Plaintiff who were unable to fully pay the fine and costs 64 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 65 of 202 when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on "probation" with JCS. 287. This requirement was part of the Montgomery contract with JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority of municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government. 288. Once on "probation" for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62. 289. This disparate treatment based upon the wealth of the "offender" before the municipal court is a violation of equal protection and cannot be justified on any legitimate rational state interest basis. 290. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to "offenders" who could not pay immediately and created its own "rules" for penalizing individuals who could not pay as directed. 291. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the fine. Furthermore, those "offenders" at Montgomery with its JCS system arrangement were 65 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 66 of 202 processed and fined differently than "offenders" in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment. 292. By its policies, agreement and conspiratorial actions with JCS, the City has also deprived Carter and the Class members of all the civil debt protections available to others. 293. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded. 294. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT TEN DENIAL OF EQUAL PROTECTION BY JCS, CHC and CHCC (‘JCS’) Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 295. JCS and Montgomery have acted jointly under color of state law in violation of 42 U.S.C. § 1983, to deny the Plaintiff and class members’ rights to equal protection secured by the Fourteenth Amendment and have done so in concert and by agreement conspiring with Montgomery. 66 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 67 of 202 296. JCS, though a private company, has been clothed with the color of state law by the specific actions of Montgomery all pursuant to an agreement between these parties. 297. As referenced above, by agreement, JCS employees attended all municipal court sessions, collected city fines and costs, were labeled as "probation officers," carried badges and regularly represented themselves as acting "on behalf of the City of Montgomery." Additionally, the JCS forms were used at the municipal court and fees for JCS were included in every court order there. 298. Under its illegal contractual agreement with Montgomery, the actions of JCS were inextricably intertwined with its co-conspirator Montgomery in a practice and policy at Montgomery. That practice and policy automatically required "probation" for any person who, despite having no jail sentence, was financially unable to fully pay the fine and costs when levied by the municipal court. That probation requirement was part of the agreement between Montgomery and JCS and was part of every printed order at the municipal court and required payment of monthly fees to JCS. 299. Persons who were financially able to fully pay the levied fine and costs at Montgomery were not placed on "probation." As a result, those persons were not charged any JCS fees and were not subjected to threats of arrest and incarceration in the collection process. 300. For those such as the Plaintiff who were unable to fully pay the fine and costs when levied by the municipal court, not only were they required to come to court for traffic tickets, were charged court costs, they were also put on "probation" with JCS. 301. This requirement was part of the Montgomery contract with JCS. That no bid contract, as mentioned above, exceeded the statutory and constitutional authority of 67 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 68 of 202 municipalities and imposed on the municipal court an agreement in violation of the separation of powers doctrine between the branches of government. 302. Once on "probation" for purposes of paying a fines and costs, this policy and practice at Montgomery routinely imposed incarceration and additional costs on individuals who are unable to pay fines and costs, without any determination of willfulness as would lawfully be required under Alabama statutes. See Ala Code Section 15-18-62. 303. This disparate treatment based upon the wealth of the "offender" before the municipal court is a violation of equal protection and cannot be justified on any legitimate rational state interest basis. 304. This inequality of treatment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to "offenders" who could not pay immediately and created its own "rules" for penalizing individuals who could not pay as directed. 305. These additional JCS fines resulted in disparate treatment between those who could immediately pay the fine from those who were unable to immediately pay the fine. Furthermore, those "offenders" at Montgomery with its JCS arrangement were processed and fined differently than "offenders" in jurisdictions that have not allowed JCS to charge additional fees to those who cannot pay. There is no state authority for such disparate treatment. JCS was also illegally afforded the ability to exercise discretion over which persons to sanction or request warrant status, and such discrimination was applied 68 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 69 of 202 in an effort to enhance revenue. 306. By its policies, agreement and conspiratorial actions with the City, JCS has also deprived Carter and the Class members of all the civil debt protections available to other debtors. 307. The Plaintiff Aldaress Carter and the Class members were required to pay the additional costs and fees under this disparate system and many like Aldaress Carter were unlawfully jailed for their inability to pay as demanded. 308. As a proximate consequence of this denial of the right to equal protection under the Fourteenth Amendment, the Plaintiff and Class members suffered injuries, including having fines converted to jail sentences, being unlawfully incarcerated for undetermined periods of time with the loss of their liberty and injury to their dignity, by having fines in excess of statutory limits levied against them and by having other illegal charges for JCS fees, costs and restitution levied, all while being indigent. COUNT ELEVEN MONEY HAD AND RECEIVED CITY OF MONTGOMERY The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 309. The City of Montgomery charged plaintiff and class members extra fees if they did not pay the fines and fees owed from a city crime within ninety-days. 310. Routinely and as a matter of policy, once a city fine was ninety (90) days past due the city doubled the persons’ fine balance, charged a warrant fee, issued a warrant for the person’s arrest, and added a thirty percent (30%) surcharge. 311. These extra charges were not charged to those who immediately paid the 69 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 70 of 202 fines and fees when adjudicated or to people who paid the fines online or people who were assigned to the JCS'payment plan’. 312. The city had no legal authority to charge these extra fees and costs. 313. Charging extra fees for non-payment is also beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. The policy at Montgomery was not uniform with the procedures established by the Alabama Administrative Office of Courts because it added fees only to "offenders" who could not pay immediately and created its own "rules" for penalizing individuals who could not pay as directed. 314. These extra fees resulted in people being charged amounts that exceeded statutory maximums for the city'crime’ for which the fees were assessed. 315. The city under its contract and joint practice with JCS also illegally required those assigned to JCS to pay additional fees to JCS in order to acquire free collection services for the city. 316. Charging extra fees for non-payment is beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 317. The city unlawfully charged and collected these extra fees which were paid under duress to avoid arrest and jail. 318. The city owes the plaintiffs and class members for money had and received from the payment of these illegal charges. 70 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 71 of 202 COUNT TWELVE MONEY HAD AND RECEIVED JCS, CHC and CHCC (‘JCS’) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 319. JCS charged the plaintiff and class members extra fees if they did not pay the fines and fees owed from a city crime within thirty days. Pursuant to its contract and joint practice with the City JCS charged a $10 setup fee and charged an additional $45 monthly fee for each month the person was on JCS'probation.’ 320. JCS also determined and assessed a minimum, monthly fee each person had to pay JCS to'stay current’. 321. When a person made a payment to JCS, the JCS employee decided the amount it would keep and the amount it would send to the City to reduce the person’s city debt. 322. These extra charges were not charged to those who immediately paid the city fines and fees when adjudicated or to people who paid the fines online or to people who were allowed to make periodic payments to the city at the window. 323. Neither JCS nor the city had legal authority to charge these extra fees. 324. Charging extra fees for non-payment is beyond the authority of the municipal court which is required by Alabama statute to uniformly process traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 325. These extra fees resulted in people being charged amounts that exceeded 71 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 72 of 202 statutory maximums for the city'crime’ for which the fees were assessed. 326. JCS unlawfully charged and collected these extra fees which were also paid under duress to avoid arrest and jail. 327. JCS owes the plaintiffs and class members for money had and received from the payment of these illegal charges. COUNT THIRTEEN FALSE IMPRISONMENT CITY OF MONTGOMERY The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 328. Plaintiff Carter and numerous class members were falsely arrested and imprisoned by the City of Montgomery under its joint practice with JCS. 329. Plaintiff Carter and numerous class members were arrested and jailed on charges for which they had not been notified and for which they had not been found guilty due to their inability to pay fines, fees and costs. 330. Additionally, under the city policy and practice with JCS, Mr. Carter and other class members were kept in jail until a cash bond was paid despite the fact that many had no jail sentence and were not a safety risk. Rather, these persons were jailed and then put back on JCS "probation" which included old debts the city claimed they owed which predated the probation order. 331. Plaintiff and class members were arrested and jailed by City employees until cash bonds were paid. Under the city policy and practice, these cash bonds were generally set by adding up the amounts the City and JCS said the person owed. Their freedom was 72 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 73 of 202 denied until cash payment was received by the City. 332. Plaintiff and class members were deprived of their personal liberty by the City and under the city policy and practice with JCS and were only released when the City received the cash demanded. At times, the amount the City demanded for release would change since the jail time was not based on a jail sentence but on the amount the person owed. In those instances, the person stayed in jail until some money was paid and then told that the remaining balance was due or additional jail time would be demanded. 333. The city policy and practice with JCS was that when people could not pay the fines and fees imposed for a city crime they would have to spend a day in jail for each $50 owed (people were given $25/day credit prior to 2012). 334. This policy of'commuting' fines and fees to jail time made it difficult, if not impossible, for the poor to keep their freedom. 335. The City had a financial interest in people staying on'probation' and being arrested as payments were more likely to be received from the family and friends of the person incarcerated. 336. These arrests and jailings were unlawful as they were used to extort money which went to the City and to JCS and all of which damaged and harmed plaintiff Carter and the class members. COUNT FOURTEEN FALSE IMPRISONMENT JCS, CHC and CHCC (‘JCS’) The Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 337. Plaintiff Carter and numerous class members were falsely arrested and 73 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 74 of 202 imprisoned pursuant to requests by JCS and its joint practice with the City of Montgomery. 338. JCS participated in falsely imprisoning Plaintiffs and class members by asking the City to arrest people when they did not pay as JCS demanded. Under the practice at the city, these requests by JCS for arrests were routinely followed resulting in the arrest and jailing of the plaintiff and many class members. 339. When a person did not pay JCS as JCS demanded, JCS would mail documents demanding that the person appear in the city court while stating that the hearing would be cancelled if the money JCS demanded was paid. 340. JCS did not use any civil methods of debt collection and did not deliver its notifications in a way that ensured the person received it (such as certified letters or hand delivery). 341. These threats by JCS were taken seriously by those threatened since JCS and the City employees jointly participated in the common practice of using the city police to arrest and jail persons to enforce collection of the City and JCS fees. 342. The City honored JCS’s request to arrest and jail people as it did with the plaintiff Carter and numerous class members, despite the fact that neither JCS nor the city alleged that the people were willfully refusing to pay. 343. JCS employees also provided testimony in support of its requests to arrest and jail persons when people did appear at the hearings JCS set. This testimony was readily accepted by the city and warrants were issued without inquiry into the validity of a private company demanding someone appear in court and without inquiry into whether the party had notice of the hearing. 344. JCS had a financial interest in people staying on'probation’ and being 74 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 75 of 202 arrested as payments were more likely to be received from the family and friends of the person incarcerated. 345. These arrests and jailings were unlawful as they were used to extort money which went to the City and to JCS and all of which damaged the plaintiff and class members. COUNT FIFTEEN DECLARATORY AND INJUNCTIVE RELIEF Plaintiff incorporates by reference the previous paragraphs and makes them a part hereof. 346. A real controversy exists between these parties concerning several issues, including the validity of Montgomery’s attempt to bind its municipal court and the legality of the actions taken under the contract with JCS, such that declaratory relief is appropriate. Contract between the City and JCS is void 347. Plaintiff requests the Court to declare that Montgomery had no authority to contractually bind their municipal court. City does not have the power to bind the Court 348. Montgomery entered into an agreement with JCS that exceeded both its statutory and constitutional limitations on municipalities. Furthermore, that agreement violated the separation of powers doctrine embodied in the Alabama Constitution. See Ala. Const., Article 3, Section 43. As a result, that agreement is void and due to be declared a nullity. 349. Alabama state law also dictates a separation of the branches of government. Ala. Const., Article 3, Section 43. Under that doctrine, legislative powers granted to cities 75 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 76 of 202 and towns are exercised by the city council, Ala. Code Section 11-43-43, while the mayor of the city is responsible for executive duties. Ala. Code, Section 11-43-83. If the town establishes a municipal court, its administration is supervised by the Chief Justice of Alabama. Ala. Code Section 12-2-7 et. seq.; Ala. Const., Art. 6, Section 139. 350. A city’s mayor, such as Montgomery’s mayor, has the executive power to execute and enforce contracts and the city council has the legislative power to enact regulations and ordinances, but neither the mayor nor the council has the power to invade the administration of its judiciary. 351. Montgomery has exceeded its statutory authority and acted in conflict with state statute and constitutional limitations when, acting through its mayor, they agreed to require its municipal court to include probation and fees for JCS in every court order entered by its hired judge. That action essentially sold the court process for purposes of increasing income to the City. Contract violates statutory limitation regarding traffic citations and municipal fines 352. That agreement also violates the uniformity required by statute for processing traffic infractions and penalties for misdemeanors in accordance with specified maximum fines. See Ala. Code Section 12-14-8. 353. The process at Montgomery is not uniform with the procedures established by the Alabama Administrative Office of Courts because it adds fees only to "offenders" who cannot pay immediately and creates other "rules" for further penalizing individuals who cannot pay as directed. "Offenders" who are able to immediately pay the fine are charged one rate, but those that are unable to immediately pay for the same offense are charged 76 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 77 of 202 the fine and required to pay JCS monthly fees that accumulate each month that passes. 354. The "offenders" at Montgomery are processed and fined differently than "offenders" in municipal jurisdictions which have not contracted for JCS to charge its fees to those who cannot pay and, as a result, violates uniformity requirements of Ala. Code Section 12-14-8. Contract overrides judicial authority and administration of municipal courts reserved to the Chief Justice 355. The illegal agreement and policy of Montgomery invades and overrides the judicial authority and court administration reserved to the municipal judge and the Chief Justice. Contract is an exclusive franchise 356. The contract between JCS and the City of Montgomery grants an exclusive franchise for provision of probation services. 357. The contract was not competitively bid as required by Ala. Const. Art. I,§ 22 and Ala. Code 1975, §41-16-50. 358. Because the contract was not bid, it is void and unenforceable. 359. Plaintiff requests the Court to declare the actions of Montgomery under this contract to be unconstitutional under the premises discussed above. Under this void agreement, Montgomery has implemented policies and practices to prosecute persons such as the Plaintiff where there is no jurisdiction or authority to do so under Alabama law, doing so intentionally in an effort to extort the payment of fines and costs from indigent people. These efforts have resulted in the illegal prosecution and incarceration of the Plaintiff and the Class beyond the limited jurisdiction of the municipal courts. 77 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 78 of 202 360. Further, Montgomery has added increased punishment, fines and costs after adjudication and even where there has been no adjudication of guilt, all without jurisdiction or authority for such under Alabama law. 361. Montgomery has systematically applied Ala. Code § 15-18-62 in an unconstitutional fashion, denying the Plaintiff and the Class he seeks to represent constitutionally protected rights. 362. Section 15-18-62 provides for the imprisonment for the failure to pay fines and costs in limited circumstances and only upon the finding of a willful nonpayment.25 363. Under the policies and practices at Montgomery, "offenders" before the municipal court, such as the Plaintiff and the Class he seeks to represent, are systematically imprisoned for nonpayment with no determination of willfulness and with no consideration of their indigency or ability to pay. 364. Furthermore, once imprisoned, the requirements of time to be served under § 15-18-62 are ignored by the practice and policy of Montgomery. 365. The result of this consistent systematic policy and practice of Montgomery 25 Section 15-18-62 Imprisonment for failure to pay fines and costs. In cases of willful nonpayment of the fine and costs, the defendant shall either be imprisoned in the county jail or, at the discretion of the court, sentenced to hard labor for the county as follows: (1) If the fine and costs do not exceed two hundred fifty dollars ($250), no more than 10 days; (2) If the fine and costs exceed two hundred fifty dollars ($250) but do not exceed five hundred dollars ($500), no more than 20 days; (3) If the fine and costs exceed five hundred dollars ($500), but do not exceed one thousand dollars ($1,000), no more than 30 days; and (4) For every additional one hundred dollars ($100) or fractional part thereof, 4 days. 78 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 79 of 202 is essentially a debtor’s prison for fines and charges levied. 366. Plaintiff requests the Court to enjoin the actions of Montgomery identified herein to prevent the continuation of these violations of statutory and constitutional prohibitions. WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully prays that the Court will take jurisdiction of this cause and upon the final hearing: a. Certify this matter as a proper class action maintainable under Rule 23 of the Federal Rules of Civil Procedure for a plaintiff class; b. Award the Plaintiff such damages as this Court shall find the Plaintiff have sustained, together with punitive, or exemplary damages as the law shall permit; c. Enter an injunction and other declaratory relief which declares the Montgomery contract requiring fees to JCS to be void ab initio and in violation of the statutory and constitutional limitations on municipalities; d. Enter an injunction and other declaratory relief which enjoins Montgomery from engaging in the violations of law set forth hereinabove; e. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from placing persons on probation for collection of fines and declares that any current probation and fees for simple fines is void; f. Enter an injunction and other declaratory relief which prohibits 79 Montgomery in the future from assessing fines in excess of $500 and/or extending probation periods beyond 24 months and declare that any previously assessed fines and probationary periods in excess of these limits to be void; g. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from imprisoning indigent persons for failure to pay fines and fees; h. Enter an injunction and other declaratory relief which prohibits Montgomery in the future from charging excessive bail established to collect claimed fines and fees; i. Award to the Plaintiff and Class members damages under 42 U.S.C. § 1983 equal to any amounts paid on fines and all fees to JCS and Montgomery that are found unconstitutional and/or unlawful (along with interest), and the annulment of any remaining unpaid fines and fees that are found unconstitutional and/or unlawful; j. Order that the culpable parties disgorge their ill-gotten gains derived from their unlawful conduct; k. Award to the Plaintiff and Class the cost of this matter, including a reasonable attorneys' fee; l. Award to the Plaintiff and the Class members such other, further and more general relief as the Court may deem appropriate under these circumstances including cost of these proceedings. 80 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 81 of 202 JURY DEMAND Plaintiff demands a trial struck by jury. RESPECTFULLY SUBMITTED, s/G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Attorney for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com William M. Dawson ASB-3976-S80W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com CERTIFICATE OF SERVICE I hereby certify that on this the day of May, I electronically filed the foregoing Second Amended and Restated Complaint with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Shannon L. Holliday, Esquire Robert D. Segall, Esquire Joel Caldwell, Esquire COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 Micheal S. Jackson, Esquire WEBSTER, HENRY, LYONS, BRADWELL, 81 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 82 of 202 COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239 F. Lane Finch, Jr., Esquire Brian Richardson, Esquire Swift Currie McGhee and Hiers, LLP 2 North 20th Street, Suite 1405 Birmingham, Alabama 35203 Michael L. Jackson, Esquire Larry S. Logsdon, Esquire Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 Wilson F. Green, Esquire Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 Kimberly O. Fehl, Esquire Michael D. Brymer, Esquire CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111 s/G. Daniel Evans G. Daniel Evans 82 EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 Investigation of the Ferguson Police Department United States Department of Justice Civil Rights Division March 4, 2015 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 92 of 202 TABLE OF CONTENTS I. REPORT SUMMARY........................................................................................................ 1 II. BACKGROUND.................................................................................................................. 6 III. FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED ON GENERATING REVENUE............................................................................................... 9 IV. FERGUSON LAW ENFORCEMENT PRACTICES VIOLATE THE LAW AND UNDERMINE COMMUNITY TRUST, ESPECIALLY AMONG AFRICAN AMERICANS.................................................................................................................... 15 A. Ferguson’s Police Practices............................................................................................ 15 1. FPD Engages in a Pattern of Unconstitutional Stops and Arrests in Violation of the Fourth Amendment..................................................................................... 16 2. FPD Engages in a Pattern of First Amendment Violations.................................. 24 3. FPD Engages in a Pattern of Excessive Force in Violation of the Fourth Amendment........................................................................................................... 28 B. Ferguson’s Municipal Court Practices........................................................................... 42 1. Court Practices Impose Substantial and Unnecessary Barriers to the Challenge or Resolution of Municipal Code Violations....................................... 43 2. The Court Imposes Unduly Harsh Penalties for Missed Payments or Appearances.......................................................................................................... 54 C. Ferguson Law Enforcement Practices Disproportionately Harm Ferguson’s African-American Residents and Are Driven in Part by Racial Bias............................ 62 1. Ferguson’s Law Enforcement Actions Impose a Disparate Impact on African Americans that Violates Federal Law................................................................... 63 2. Ferguson’s Law Enforcement Practices Are Motivated in Part by Discriminatory Intent in Violation of the Fourteenth Amendment and Other Federal Laws......................................................................................................... 70 D. Ferguson Law Enforcement Practices Erode Community Trust, Especially Among Ferguson’s African-American Residents, and Make Policing Less Effective, More Difficult, and Less Safe.................................................................................................. 79 1. Ferguson’s Unlawful Police and Court Practices Have Led to Distrust and Resentment Among Many in Ferguson................................................................ 79 2. FPD’s Exercise of Discretion, Even When Lawful, Often Undermines Community Trust and Public Safety..................................................................... 81 3. FPD’s Failure to Respond to Complaints of Officer Misconduct Further Erodes Community Trust...................................................................................... 82 4. FPD’s Lack of Community Engagement Increases the Likelihood of Discriminatory Policing and Damages Public Trust............................................. 86 i Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 93 of 202 5. Ferguson’s Lack of a Diverse Police Force Further Undermines Community Trust...................................................................................................................... 88 V. CHANGES NECESSARY TO REMEDY FERGUSON’S UNLAWFUL LAW ENFORCEMENT PRACTICES AND REPAIR COMMUNITY TRUST................. 90 VI. CONCLUSION................................................................................................................ 102 ii Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 94 of 202 I. REPORT SUMMARY The Civil Rights Division of the United States Department of Justice opened its investigation of the Ferguson Police Department ("FPD") on September 4, 2014. This investigation was initiated under the pattern-or-practice provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d ("Safe Streets Act"), and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"). This investigation has revealed a pattern or practice of unlawful conduct within the Ferguson Police Department that violates the First, Fourth, and Fourteenth Amendments to the United States Constitution, and federal statutory law. Over the course of the investigation, we interviewed City officials, including City Manager John Shaw, Mayor James Knowles, Chief of Police Thomas Jackson, Municipal Judge Ronald Brockmeyer, the Municipal Court Clerk, Ferguson’s Finance Director, half of FPD’s sworn officers, and others. We spent, collectively, approximately 100 person-days onsite in Ferguson. We participated in ride-alongs with on-duty officers, reviewed over 35,000 pages of police records as well as thousands of emails and other electronic materials provided by the police department. Enlisting the assistance of statistical experts, we analyzed FPD’s data on stops, searches, citations, and arrests, as well as data collected by the municipal court. We observed four separate sessions of Ferguson Municipal Court, interviewing dozens of people charged with local offenses, and we reviewed third-party studies regarding municipal court practices in Ferguson and St. Louis County more broadly. As in all of our investigations, we sought to engage the local community, conducting hundreds of in-person and telephone interviews of individuals who reside in Ferguson or who have had interactions with the police department. We contacted ten neighborhood associations and met with each group that responded to us, as well as several other community groups and advocacy organizations. Throughout the investigation, we relied on two police chiefs who accompanied us to Ferguson and who themselves interviewed City and police officials, spoke with community members, and reviewed FPD policies and incident reports. We thank the City officials and the rank-and-file officers who have cooperated with this investigation and provided us with insights into the operation of the police department, including the municipal court. Notwithstanding our findings about Ferguson’s approach to law enforcement and the policing culture it creates, we found many Ferguson police officers and other City employees to be dedicated public servants striving each day to perform their duties lawfully and with respect for all members of the Ferguson community. The importance of their often-selfless work cannot be overstated. We are also grateful to the many members of the Ferguson community who have met with us to share their experiences. It became clear during our many conversations with Ferguson residents from throughout the City that many residents, black and white, genuinely embrace Ferguson’s diversity and want to reemerge from the events of recent months a truly inclusive, united community. This Report is intended to strengthen those efforts by recognizing the harms caused by Ferguson’s law enforcement practices so that those harms can be better understood and overcome. 1 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 95 of 202 Ferguson’s law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs. This emphasis on revenue has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing, and has also shaped its municipal court, leading to procedures that raise due process concerns and inflict unnecessary harm on members of the Ferguson community. Further, Ferguson’s police and municipal court practices both reflect and exacerbate existing racial bias, including racial stereotypes. Ferguson’s own data establish clear racial disparities that adversely impact African Americans. The evidence shows that discriminatory intent is part of the reason for these disparities. Over time, Ferguson’s police and municipal court practices have sown deep mistrust between parts of the community and the police department, undermining law enforcement legitimacy among African Americans in particular. Focus on Generating Revenue The City budgets for sizeable increases in municipal fines and fees each year, exhorts police and court staff to deliver those revenue increases, and closely monitors whether those increases are achieved. City officials routinely urge Chief Jackson to generate more revenue through enforcement. In March 2010, for instance, the City Finance Director wrote to Chief Jackson that "unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year.... Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue." Similarly, in March 2013, the Finance Director wrote to the City Manager: "Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try." The importance of focusing on revenue generation is communicated to FPD officers. Ferguson police officers from all ranks told us that revenue generation is stressed heavily within the police department, and that the message comes from City leadership. The evidence we reviewed supports this perception. Police Practices The City’s emphasis on revenue generation has a profound effect on FPD’s approach to law enforcement. Patrol assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on "productivity," meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many officers appear to see some residents, especially those who live in Ferguson’s predominantly African-American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue. This culture within FPD influences officer activities in all areas of policing, beyond just ticketing. Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, indications of mental or physical illness as belligerence. Police supervisors and leadership do too little to ensure that officers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer misconduct. The result is a pattern of stops without reasonable suspicion and arrests without probable cause in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected 2 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 96 of 202 expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment. Even relatively routine misconduct by Ferguson police officers can have significant consequences for the people whose rights are violated. For example, in the summer of 2012, a 32-year-old African-American man sat in his car cooling off after playing basketball in a Ferguson public park. An officer pulled up behind the man’s car, blocking him in, and demanded the man’s Social Security number and identification. Without any cause, the officer accused the man of being a pedophile, referring to the presence of children in the park, and ordered the man out of his car for a pat-down, although the officer had no reason to believe the man was armed. The officer also asked to search the man’s car. The man objected, citing his constitutional rights. In response, the officer arrested the man, reportedly at gunpoint, charging him with eight violations of Ferguson’s municipal code. One charge, Making a False Declaration, was for initially providing the short form of his first name (e.g., "Mike" instead of "Michael"), and an address which, although legitimate, was different from the one on his driver’s license. Another charge was for not wearing a seat belt, even though he was seated in a parked car. The officer also charged the man both with having an expired operator’s license, and with having no operator’s license in his possession. The man told us that, because of these charges, he lost his job as a contractor with the federal government that he had held for years. Municipal Court Practices Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary harm, overwhelmingly on African-American individuals, and run counter to public safety. Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments. In 2013 alone, the court issued over 9,000 warrants on cases stemming in large part from minor violations such as parking infractions, traffic tickets, or housing code violations. Jail time would be considered far too harsh a penalty for the great majority of these code violations, yet Ferguson’s municipal court routinely issues warrants for people to be arrested and incarcerated for failing to timely pay related fines and fees. Under state law, a failure to appear in municipal court on a traffic charge involving a moving violation also results in a license suspension. Ferguson has made this penalty even more onerous by only allowing the suspension to be lifted after payment of an owed fine is made in full. Further, until recently, Ferguson also added charges, fines, and fees for each missed appearance and payment. Many pending cases still include such charges that were imposed before the court recently eliminated them, making it as difficult as before for people to resolve these cases. The court imposes these severe penalties for missed appearances and payments even as several of the court’s practices create unnecessary barriers to resolving a municipal violation. The court often fails to provide clear and accurate information regarding a person’s charges or court obligations. And the court’s fine assessment procedures do not adequately provide for a defendant to seek a fine reduction on account of financial incapacity or to seek alternatives to 3 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 97 of 202 payment such as community service. City and court officials have adhered to these court practices despite acknowledging their needlessly harmful consequences. In August 2013, for example, one City Councilmember wrote to the City Manager, the Mayor, and other City officials lamenting the lack of a community service option and noted the benefits of such a program, including that it would "keep those people that simply don’t have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again." Together, these court practices exacerbate the harm of Ferguson’s unconstitutional police practices. They impose a particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment, or housing. We spoke, for example, with an African-American woman who has a still-pending case stemming from 2007, when, on a single occasion, she parked her car illegally. She received two citations and a $151 fine, plus fees. The woman, who experienced financial difficulties and periods of homelessness over several years, was charged with seven Failure to Appear offenses for missing court dates or fine payments on her parking tickets between 2007 and 2010. For each Failure to Appear, the court issued an arrest warrant and imposed new fines and fees. From 2007 to 2014, the woman was arrested twice, spent six days in jail, and paid $550 to the court for the events stemming from this single instance of illegal parking. Court records show that she twice attempted to make partial payments of $25 and $50, but the court returned those payments, refusing to accept anything less than payment in full. One of those payments was later accepted, but only after the court’s letter rejecting payment by money order was returned as undeliverable. This woman is now making regular payments on the fine. As of December 2014, over seven years later, despite initially owing a $151 fine and having already paid $550, she still owed $541. Racial Bias Ferguson’s approach to law enforcement both reflects and reinforces racial bias, including stereotyping. The harms of Ferguson’s police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race. Ferguson’s law enforcement practices overwhelmingly impact African Americans. Data collected by the Ferguson Police Department from 2012 to 2014 shows that African Americans account for 85% of vehicle stops, 90% of citations, and 93% of arrests made by FPD officers, despite comprising only 67% of Ferguson’s population. African Americans are more than twice as likely as white drivers to be searched during vehicle stops even after controlling for non-race based variables such as the reason the vehicle stop was initiated, but are found in possession of contraband 26% less often than white drivers, suggesting officers are impermissibly considering race as a factor when determining whether to search. African Americans are more likely to be cited and arrested following a stop regardless of why the stop was initiated and are more likely to receive multiple citations during a single incident. From 2012 to 2014, FPD issued four or more citations to African Americans on 73 occasions, but issued four or more citations to non-African Americans only twice. FPD appears to bring certain offenses almost exclusively against African Americans. For example, from 2011 to 2013, African Americans accounted for 95% of Manner of Walking in Roadway charges, and 94% of all Failure to Comply charges. Notably, with 4 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 98 of 202 respect to speeding charges brought by FPD, the evidence shows not only that African Americans are represented at disproportionately high rates overall, but also that the disparate impact of FPD’s enforcement practices on African Americans is 48% larger when citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment. These disparities are also present in FPD’s use of force. Nearly 90% of documented force used by FPD officers was used against African Americans. In every canine bite incident for which racial information is available, the person bitten was African American. Municipal court practices likewise cause disproportionate harm to African Americans. African Americans are 68% less likely than others to have their cases dismissed by the court, and are more likely to have their cases last longer and result in more required court encounters. African Americans are at least 50% more likely to have their cases lead to an arrest warrant, and accounted for 92% of cases in which an arrest warrant was issued by the Ferguson Municipal Court in 2013. Available data show that, of those actually arrested by FPD only because of an outstanding municipal warrant, 96% are African American. Our investigation indicates that this disproportionate burden on African Americans cannot be explained by any difference in the rate at which people of different races violate the law. Rather, our investigation has revealed that these disparities occur, at least in part, because of unlawful bias against and stereotypes about African Americans. We have found substantial evidence of racial bias among police and court staff in Ferguson. For example, we discovered emails circulated by police supervisors and court staff that stereotype racial minorities as criminals, including one email that joked about an abortion by an African-American woman being a means of crime control. City officials have frequently asserted that the harsh and disparate results of Ferguson’s law enforcement system do not indicate problems with police or court practices, but instead reflect a pervasive lack of "personal responsibility" among "certain segments" of the community. Our investigation has found that the practices about which area residents have complained are in fact unconstitutional and unduly harsh. But the City’s personal-responsibility refrain is telling: it reflects many of the same racial stereotypes found in the emails between police and court supervisors. This evidence of bias and stereotyping, together with evidence that Ferguson has long recognized but failed to correct the consistent racial disparities caused by its police and court practices, demonstrates that the discriminatory effects of Ferguson’s conduct are driven at least in part by discriminatory intent in violation of the Fourteenth Amendment. Community Distrust Since the August 2014 shooting death of Michael Brown, the lack of trust between the Ferguson Police Department and a significant portion of Ferguson’s residents, especially African Americans, has become undeniable. The causes of this distrust and division, however, have been the subject of debate. Police and other City officials, as well as some Ferguson residents, have insisted to us that the public outcry is attributable to "outside agitators" who do not reflect the opinions of "real Ferguson residents." That view is at odds with the facts we have gathered during our investigation. Our investigation has shown that distrust of the Ferguson Police Department is longstanding and largely attributable to Ferguson’s approach to law enforcement. This approach results in patterns of unnecessarily aggressive and at times unlawful policing; 5 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 99 of 202 reinforces the harm of discriminatory stereotypes; discourages a culture of accountability; and neglects community engagement. In recent years, FPD has moved away from the modest community policing efforts it previously had implemented, reducing opportunities for positive police-community interactions, and losing the little familiarity it had with some African-American neighborhoods. The confluence of policing to raise revenue and racial bias thus has resulted in practices that not only violate the Constitution and cause direct harm to the individuals whose rights are violated, but also undermine community trust, especially among many African Americans. As a consequence of these practices, law enforcement is seen as illegitimate, and the partnerships necessary for public safety are, in some areas, entirely absent. Restoring trust in law enforcement will require recognition of the harms caused by Ferguson’s law enforcement practices, and diligent, committed collaboration with the entire Ferguson community. At the conclusion of this report, we have broadly identified the changes that are necessary for meaningful and sustainable reform. These measures build upon a number of other recommended changes we communicated verbally to the Mayor, Police Chief, and City Manager in September so that Ferguson could begin immediately to address problems as we identified them. As a result of those recommendations, the City and police department have already begun to make some changes to municipal court and police practices. We commend City officials for beginning to take steps to address some of the concerns we have already raised. Nonetheless, these changes are only a small part of the reform necessary. Addressing the deeply embedded constitutional deficiencies we found demands an entire reorientation of law enforcement in Ferguson. The City must replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race. II. BACKGROUND The City of Ferguson is one of 89 municipalities in St. Louis County, Missouri.1 According to United States Census Data from 2010, Ferguson is home to roughly 21,000 residents.2 While Ferguson’s total population has stayed relatively constant in recent decades, Ferguson’s racial demographics have changed dramatically during that time. In 1990, 74% of Ferguson’s population was white, while 25% was black.3 By 2000, African Americans became the new majority, making up 52% of the City’s population.4 According to the 2010 Census, the black population in Ferguson has grown to 67%, whereas the white population has decreased to 29%.5 According to the 2009-2013 American Community Survey, 25% of the City’s population lives below the federal poverty level.6 1 See 2012 Census of Governments, U.S. Census Bureau (Sept. 2013), available at http://factfinder.census.gov/bkmk/table/1.0/en/COG/2012/ORG13.ST05P?slice=GEO~0400000US29 (last visited Feb. 26, 2015). 2 See 2010 Census, U.S. Census Bureau (2010), available at http://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/QTP3/1600000US2923986 (last visited Feb. 26, 2015). 3 See 1990 Census of Population General Population Characteristics Missouri, U.S. Census Bureau (Apr. 1992), available at ftp://ftp2.census.gov/library/publications/1992/dec/cp-1-27.pdf (last visited Feb. 26, 2015). 4 See Race Alone or in Combination: 2000, U.S. Census Bureau (2000), available at http://factfinder.census.gov/bkmk/table/1.0/en/DEC/00_SF1/QTP5/1600000US2923986 (last visited Feb. 26, 2015). 5 2010 Census, supra note 2. 6 See Poverty Status in the Past 12 Months 2009-2013 American Community Survey 5-Year Estimates, U.S. Census Bureau (2014), available at 6 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 100 of 202 Residents of Ferguson elect a Mayor and six individuals to serve on a City Council. The City Council appoints a City Manager to an indefinite term, subject to removal by a Council vote. See Ferguson City Charter § 4.1. The City Manager serves as chief executive and administrative officer of the City of Ferguson, and is responsible for all affairs of the City. The City Manager directs and supervises all City departments, including the Ferguson Police Department. The current Chief of Police, Thomas Jackson, has commanded the police department since he was appointed by the City Manager in 2010. The department has a total of 54 sworn officers divided among several divisions. The patrol division is the largest division; 28 patrol officers are supervised by four sergeants, two lieutenants, and a captain. Each of the four patrol squads has a canine officer. While all patrol officers engage in traffic enforcement, FPD also has a dedicated traffic officer responsible for collecting traffic stop data required by the state of Missouri. FPD has two School Resource Officers ("SROs"), one who is assigned to the McCluer South-Berkeley High School and one who is assigned to the Ferguson Middle School. FPD has a single officer assigned to be the "Community Resource Officer," who attends community meetings, serves as FPD’s public relations liaison, and is charged with collecting crime data. FPD operates its own jail, which has ten individual cells and a large holding cell. The jail is staffed by three non-sworn correctional officers. Of the 54 sworn officers currently serving in FPD, four are African American. FPD officers are authorized to initiate charges—by issuing citations or summonses, or by making arrests—under both the municipal code and state law. Ferguson’s municipal code addresses nearly every aspect of civic life for those who live in Ferguson, and regulates the conduct of all who work, travel through, or otherwise visit the City. In addition to mirroring some non-felony state law violations, such as assault, stealing, and traffic violations, the code establishes housing violations, such as High Grass and Weeds; requirements for permits to rent an apartment or use the City’s trash service; animal control ordinances, such as Barking Dog and Dog Running at Large; and a number of other violations, such as Manner of Walking in Roadway. See, e.g., Ferguson Mun. Code §§ 29-16 et seq.; 37-1 et seq.; 46-27; 6-5, 6-11; 44-344. FPD files most charges as municipal offenses, not state violations, even when an analogous state offense exists. Between July 1, 2010, and June 30, 2014, the City of Ferguson issued approximately 90,000 citations and summonses for municipal violations. Notably, the City issued nearly 50% more citations in the last year of that time period than it did in the first. This increase in enforcement has not been driven by a rise in serious crime. While the ticketing rate has increased dramatically, the number of charges for many of the most serious offenses covered by the municipal code—e.g., Assault, Driving While Intoxicated, and Stealing—has remained relatively constant.7 http://factfinder.census.gov/bkmk/table/1.0/en/ACS/13_5YR/S1701/1600000US2923986 (last visited Feb. 26, 2015). 7 This is evidenced not only by FPD’s own records, but also by Uniform Crime Reports data for Ferguson, which show a downward trend in serious crime over the last ten years. See Uniform Crime Reports, Federal Bureau of Investigation, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s (last visited Feb. 26, 2015). 7 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 101 of 202 Because the overwhelming majority of FPD’s enforcement actions are brought under the municipal code, most charges are processed and resolved by the Ferguson Municipal Court, which has primary jurisdiction over all code violations. Ferguson Mun. Code § 13-2. Ferguson’s municipal court operates as part of the police department. The court is supervised by the Ferguson Chief of Police, is considered part of the police department for City organizational purposes, and is physically located within the police station. Court staff report directly to the Chief of Police. Thus, if the City Manager or other City officials issue a court-related directive, it is typically sent to the Police Chief’s attention. In recent weeks, City officials informed us that they are considering plans to bring the court under the supervision of the City Finance Director. A Municipal Judge presides over court sessions. The Municipal Judge is not hired or supervised by the Chief of Police, but is instead nominated by the City Manager and elected by the City Council. The Judge serves a two-year term, subject to reappointment. The current Municipal Judge, Ronald Brockmeyer, has presided in Ferguson for approximately ten years. The City’s Prosecuting Attorney and her assistants officially prosecute all actions before the court, although in practice most cases are resolved without trial or a prosecutor’s involvement. The current Prosecuting Attorney was appointed in April 2011. At the time of her appointment, the Prosecuting Attorney was already serving as City Attorney, and she continues to serve in that separate capacity, which entails providing general counsel and representation to the City. The Municipal Judge, Court Clerk, Prosecuting Attorney, and all assistant court clerks are white. While the Municipal Judge presides over court sessions, the Court Clerk, who is employed under the Police Chief’s supervision, plays the most significant role in managing the court and exercises broad discretion in conducting the court’s daily operations. Ferguson’s municipal code confers broad authority on the Court Clerk, including the authority to collect all fines and fees, accept guilty pleas, sign and issue subpoenas, and approve bond determinations. Ferguson Mun. Code § 13-7. Indeed, the Court Clerk and assistant clerks routinely perform duties that are, for all practical purposes, judicial. For example, documents indicate that court clerks have disposed of charges without the Municipal Judge’s involvement. The court officially operates subject to the oversight of the presiding judge of the St. Louis County Circuit Court (21st Judicial Circuit) under the rules promulgated by that Circuit Court and the Missouri Supreme Court. Notwithstanding these rules, the City of Ferguson and the court itself retain considerable power to establish and amend court practices and procedures. The Ferguson municipal code sets forth a limited number of protocols that the court must follow, but the code leaves most aspects of court operations to the discretion of the court itself. See Ferguson Mun. Code Ch. 13, Art. III. The code also explicitly authorizes the Municipal Judge to "make and adopt such rules of practice and procedure as are necessary to hear and decide matters pending before the municipal court." Ferguson Mun. Code § 13-29. The Ferguson Municipal Court has the authority to issue and enforce judgments, issue warrants for search and arrest, hold parties in contempt, and order imprisonment as a penalty for contempt. The court may conduct trials, although it does so rarely, and most charges are resolved without one. Upon resolution of a charge, the court has the authority to impose fines, fees, and imprisonment when violations are found. Specifically, the court can impose imprisonment in the Ferguson City Jail for up to three months, a fine of up to $1,000, or a combination thereof. It is rare for the court to sentence anyone to jail as a penalty for a violation of the municipal code; indeed, the Municipal Judge reports that he has done so only once. 8 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 102 of 202 Rather, the court almost always imposes a monetary penalty payable to the City of Ferguson, plus court fees. Nonetheless, as discussed in detail below, the court issues arrest warrants when a person misses a court appearance or fails to timely pay a fine. As a result, violations that would normally not result in a penalty of imprisonment can, and frequently do, lead to municipal warrants, arrests, and jail time. As the number of charges initiated by FPD has increased in recent years, the size of the court’s docket has also increased. According to data the City reported to the Missouri State Courts Administrator, at the end of fiscal year 2009, the municipal court had roughly 24,000 traffic cases and 28,000 non-traffic cases pending. As of October 31, 2014, both of those figures had roughly doubled to 53,000 and 50,000 cases, respectively. In fiscal year 2009, 16,178 new cases were filed, and 8,727 were resolved. In 2014, by contrast, 24,256 new offenses were filed, and 10,975 offenses were resolved. The court holds three or four sessions per month, and each session lasts no more than three hours. It is not uncommon for as many as 500 people to appear before the court in a single session, exceeding the court’s physical capacity and leading individuals to line up outside of court waiting to be heard. Many people have multiple offenses pending; accordingly, the court typically considers 1,200-1,500 offenses in a single session, and has in the past considered over 2,000 offenses during one sitting. Previously there was a cap on the number of offenses that could be assigned to a particular docket date. Given that cap, and the significant increase in municipal citations in recent years, a problem developed in December 2011 in which more citations were issued than court sessions could timely accommodate. At one point court dates were initially scheduled as far as six months after the date of the citation. To address this problem, court staff first raised the cap to allow 1,000 offenses to be assigned to a single court date and later eliminated the cap altogether. To handle the increasing caseload, the City Manager also requested and secured City Council approval to fund additional court positions, noting in January 2013 that "each month we are setting new all-time records in fines and forfeitures," that this was overburdening court staff, and that the funding for the additional positions "will be more than covered by the increase in revenues." III. FERGUSON LAW ENFORCEMENT EFFORTS ARE FOCUSED ON GENERATING REVENUE City officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity. Ferguson generates a significant and increasing amount of revenue from the enforcement of code provisions. The City has budgeted for, and achieved, significant increases in revenue from municipal code enforcement over the last several years, and these increases are projected to continue. Of the $11.07 million in general fund revenue the City collected in fiscal year 2010, $1.38 million came from fines and fees collected by the court; similarly, in fiscal year 2011, the City’s general fund revenue of $11.44 million included $1.41 million from fines and fees. In its budget for fiscal year 2012, however, the City predicted that revenue from municipal fines and fees would increase over 30% from the previous year’s amount to $1.92 million; the court exceeded that target, collecting $2.11 million. In its budget for fiscal year 2013, the City budgeted for fines and fees to yield $2.11 million; the court exceeded that target as well, collecting $2.46 million. For 2014, the City budgeted for the municipal court to generate $2.63 million in revenue. The City has not yet made public the actual revenue collected that year, although budget documents forecasted lower revenue than 9 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 103 of 202 was budgeted. Nonetheless, for fiscal year 2015, the City’s budget anticipates fine and fee revenues to account for $3.09 million of a projected $13.26 million in general fund revenues.8 City, police, and court officials for years have worked in concert to maximize revenue at every stage of the enforcement process, beginning with how fines and fine enforcement processes are established. In a February 2011 report requested by the City Council at a Financial Planning Session and drafted by Ferguson’s Finance Director with contributions from Chief Jackson, the Finance Director reported on "efforts to increase efficiencies and maximize collection" by the municipal court. The report included an extensive comparison of Ferguson’s fines to those of surrounding municipalities and noted with approval that Ferguson’s fines are "at or near the top of the list." The chart noted, for example, that while other municipalities’ parking fines generally range from $5 to $100, Ferguson’s is $102. The chart noted also that the charge for "Weeds/Tall Grass" was as little as $5 in one city but, in Ferguson, it ranged from $77 to $102. The report stated that the acting prosecutor had reviewed the City’s "high volume offenses" and "started recommending higher fines on these cases, and recommending probation only infrequently." While the report stated that this recommendation was because of a "large volume of non-compliance," the recommendation was in fact emphasized as one of several ways that the code enforcement system had been honed to produce more revenue. In combination with a high fine schedule, the City directs FPD to aggressively enforce the municipal code. City and police leadership pressure officers to write citations, independent of any public safety need, and rely on citation productivity to fund the City budget. In an email from March 2010, the Finance Director wrote to Chief Jackson that "unless ticket writing ramps up significantly before the end of the year, it will be hard to significantly raise collections next year. What are your thoughts? Given that we are looking at a substantial sales tax shortfall, it’s not an insignificant issue." Chief Jackson responded that the City would see an increase in fines once more officers were hired and that he could target the $1.5 million forecast. Significantly, Chief Jackson stated that he was also "looking at different shift schedules which will place more officers on the street, which in turn will increase traffic enforcement per shift." Shortly thereafter, FPD switched to the 12-hour shift schedule for its patrol officers, which FPD continues to use. Law enforcement experience has shown that this schedule makes community policing more difficult—a concern that we have also heard directly from FPD officers. Nonetheless, while FPD heavily considered the revenue implications of the 12-hour shift and certain other factors such as its impact on overtime and sick time usage, we have found no evidence that FPD considered the consequences for positive community engagement. The City’s 2014 budget itself stated that since December 2010, "the percent of [FPD] resources allocated to traffic enforcement has increased," and "[a]s a result, traffic enforcement related collections increased" in the following two years. The 2015 budget added that even after those initial increases, in fiscal year 2012-2013, FPD was once again "successful in increasing their proportion of resources dedicated to traffic enforcement" and increasing collections. 8 Each of these yearly totals excludes certain court fees that are designated for particular purposes, but that nonetheless are paid directly to the City. For example, $2 of the court fee that accompanies every citation for a municipal code violation is set aside to be used for police training. That fee is used only by the City of Ferguson and is deposited in the City’s general fund; nonetheless, the City’s budget does not include that fee in its totals for "municipal court" revenue. In 2012 and 2013, the police training fee brought in, respectively, another $24,724 and $22,938 in revenue. 10 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 104 of 202 As directed, FPD supervisors and line officers have undertaken the aggressive code enforcement required to meet the City’s revenue generation expectations. As discussed below in Part III.A., FPD officers routinely conduct stops that have little relation to public safety and a questionable basis in law. FPD officers routinely issue multiple citations during a single stop, often for the same violation. Issuing three or four charges in one stop is not uncommon in Ferguson. Officers sometimes write six, eight, or, in at least one instance, fourteen citations for a single encounter. Indeed, officers told us that some compete to see who can issue the largest number of citations during a single stop. The February 2011 report to the City Council notes that the acting prosecutor—with the apparent approval of the Police Chief—"talked with police officers about ensuring all necessary summonses are written for each incident, i.e. when DWI charges are issued, are the correct companion charges being issued, such as speeding, failure to maintain a single lane, no insurance, and no seat belt, etc." The prosecutor noted that "[t]his is done to ensure that a proper resolution to all cases is being achieved and that the court is maintaining the correct volume for offenses occurring within the city." Notably, the "correct volume" of law enforcement is uniformly presented in City documents as related to revenue generation, rather than in terms of what is necessary to promote public safety.9 Each month, the municipal court provides FPD supervisors with a list of the number of tickets issued by each officer and each squad. Supervisors have posted the list inside the police station, a tactic officers say is meant to push them to write more citations. The Captain of FPD’s Patrol Division regularly communicates with his Division commanders regarding the need to increase traffic "productivity," and productivity is a common topic at squad meetings. Patrol Division supervisors monitor productivity through monthly "self-initiated activity reports" and instruct officers to increase production when those reports show they have not issued enough citations. In April 2010, for example, a patrol supervisor criticized a sergeant for his squad only issuing 25 tickets in a month, including one officer who issued "a grand total" of 11 tickets to six people on three days "devoted to traffic stops." In November 2011, the same patrol supervisor wrote to his patrol lieutenants and sergeants that "[t]he monthly self-initiated activity totals just came out," and they "may want to advise [their] officers who may be interested in the open detective position that one of the categories to be considered when deciding on the eligibility list will be self-initiated activity." The supervisor continued: "Have any of you heard comments such as, why should I produce when I know I’m not getting a raise? Well, some people are about to find out why." The email concludes with the instruction to "[k]eep in mind, productivity (self-initiated activity) cannot decline for next year." FPD has communicated to officers not only that they must focus on bringing in revenue, but that the department has little concern with how officers do this. FPD’s weak systems of supervision, review, and accountability, discussed below in Part III.A., have sent a potent message to officers that their violations of law and policy will be tolerated, provided that officers 9 FPD’s financial focus has also led FPD to elevate municipal enforcement over state-law enforcement. Even where individuals commit violations of state law, if there is an analogous municipal code provision, the police department will nearly always charge the offense under municipal law. A senior member of FPD’s command told us that all Ferguson police officers understand that, when a fine is the likely punishment, municipal rather than state charges should be pursued so that Ferguson will reap the financial benefit. 11 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 105 of 202 continue to be "productive" in making arrests and writing citations. Where officers fail to meet productivity goals, supervisors have been instructed to alter officer assignments or impose discipline. In August 2012, the Captain of the Patrol Division instructed other patrol supervisors that, "[f]or those officers who are not keeping up an acceptable level of productivity and they have already been addressed at least once if not multiple times, take it to the next level." He continued: "As we have discussed already, regardless of the seniority and experience take the officer out of the cover car position and assign them to prisoner pick up and bank runs.... Failure to perform can result in disciplinary action not just a bad evaluation." Performance evaluations also heavily emphasize productivity. A June 2013 evaluation indicates one of the "Performance-Related Areas of Improvements" as "Increase/consistent in productivity, the ability to maintain an average ticket [sic] of 28 per month." Not all officers within FPD agree with this approach. Several officers commented on the futility of imposing mounting penalties on people who will never be able to afford them. One member of FPD’s command staff quoted an old adage, asking: "How can you get blood from a turnip?" Another questioned why FPD did not allow residents to use their limited resources to fix equipment violations, such as broken headlights, rather than paying that money to the City, as fixing the equipment violation would more directly benefit public safety.10 However, enough officers—at all ranks—have internalized this message that a culture of reflexive enforcement action, unconcerned with whether the police action actually promotes public safety, and unconcerned with the impact the decision has on individual lives or community trust as a whole, has taken hold within FPD. One commander told us, for example, that when he admonished an officer for writing too many tickets, the officer challenged the commander, asking if the commander was telling him not to do his job. When another commander tried to discipline an officer for over-ticketing, he got the same response from the Chief of Police: "No discipline for doing your job." The City closely monitors whether FPD’s enforcement efforts are bringing in revenue at the desired rate. Consistently over the last several years, the Police Chief has directly reported to City officials FPD’s successful efforts at raising revenue through policing, and City officials have continued to encourage those efforts and request regular updates. For example, in June 2010, at the request of the City, the Chief prepared a report comparing court revenues in Ferguson to court revenues for cities of similar sizes. The Chief’s email sending the report to the City Manager notes that, "of the 80 St. Louis County Municipal Courts reporting revenue, only 8, including Ferguson, have collections greater than one million dollars." In the February 2011 report referenced above, Chief Jackson discussed various obstacles to officers writing tickets in previous months, such as training, injury leave, and officer deployment to Iraq, but noted that those factors had subsided and that, as a result, revenues were increasing. The acting prosecutor echoed these statements, stating "we now have several new officers writing tickets, and as a result our overall ticket volume is increasing by 400-700 tickets per month. This increased volume will lead to larger dockets this year and should have a direct effect in increasing overall revenue to the municipal court." 10 After a recommendation we made during this investigation, Ferguson has recently begun a very limited "correctable violation" or "fix-it" ticket program, under which charges for certain violations can be dismissed if corrected within a certain period of time. 12 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 106 of 202 Similarly, in March 2011, the Chief reported to the City Manager that court revenue in February was $179,862.50, and that the total "beat our next biggest month in the last four years by over $17,000," to which the City Manager responded: "Wonderful!" In a June 2011 email from Chief Jackson to the Finance Director and City Manager, the Chief reported that "May is the 6th straight month in which court revenue (gross) has exceeded the previous year." The City Manager again applauded the Chief’s efforts, and the Finance Director added praise, noting that the Chief is "substantially in control of the outcome." The Finance Director further recommended in this email greater police and judicial enforcement to "have a profound effect on collections." Similarly, in a January 2013 email from Chief Jackson to the City Manager, the Chief reported: "Municipal Court gross revenue for calendar year 2012 passed the $2,000,000 mark for the first time in history, reaching $2,066,050 (not including red light photo enforcement)." The City Manager responded: "Awesome! Thanks!" In one March 2012 email, the Captain of the Patrol Division reported directly to the City Manager that court collections in February 2012 reached $235,000, and that this was the first month collections ever exceeded $200,000. The Captain noted that "[t]he [court clerk] girls have been swamped all day with a line of people paying off fines today. Since 9:30 this morning there hasn’t been less than 5 people waiting in line and for the last three hours 10 to 15 people at all times." The City Manager enthusiastically reported the Captain’s email to the City Council and congratulated both police department and court staff on their "great work." Even as officers have answered the call for greater revenue through code enforcement, the City continues to urge the police department to bring in more money. In a March 2013 email, the Finance Director wrote: "Court fees are anticipated to rise about 7.5%. I did ask the Chief if he thought the PD could deliver 10% increase. He indicated they could try." Even more recently, the City’s Finance Director stated publicly that Ferguson intends to make up a 2014 revenue shortfall in 2015 through municipal code enforcement, stating to Bloomberg News that "[t]here’s about a million-dollar increase in public-safety fines to make up the difference."11 The City issued a statement to "refute[]" the Bloomberg article in part because it "insinuates" an "over reliance on municipal court fines as a primary source of revenues when in fact they represented less than 12% of city revenues for the last fiscal year." But there is no dispute that the City budget does, in fact, forecast an increase of nearly a million dollars in municipal code enforcement fines and fees in 2015 as reported in the Bloomberg News report. The City goes so far as to direct FPD to develop enforcement strategies and initiatives, not to better protect the public, but to raise more revenue. In an April 2014 communication from the Finance Director to Chief Jackson and the City Manager, the Finance Director recommended immediate implementation of an "I-270 traffic enforcement initiative" in order to "begin to fill the revenue pipeline." The Finance Director’s email attached a computation of the net revenues that would be generated by the initiative, which required paying five officers overtime for highway traffic enforcement for a four-hour shift. The Finance Director stated that "there is nothing to keep us from running this initiative 1,2,3,4,5,6, or even 7 days a week. Admittedly at 7 days per week[] we would see diminishing returns." Indeed, in a separate email to FPD 11 Katherine Smith, Ferguson to Increase Police Ticketing to Close City’s Budget Gap, Bloomberg News (Dec. 12, 2014), http://www.bloomberg.com/news/articles/2014-12-12/ferguson-to-increase-police-ticketing-to-close-city-s-budget-gap. 13 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 107 of 202 supervisors, the Patrol Captain explained that "[t]he plan behind this [initiative] is to PRODUCE traffic tickets, not provide easy OT." There is no indication that anyone considered whether community policing and public safety would be better served by devoting five overtime officers to neighborhood policing instead of a "revenue pipeline" of highway traffic enforcement. Rather, the only downsides to the program that City officials appear to have considered are that "this initiative requires 60 to 90 [days] of lead time to turn citations into cash," and that Missouri law caps the proportion of revenue that can come from municipal fines at 30%, which limits the extent to which the program can be used. See Mo. Rev. Stat. § 302.341.2. With regard to the statewide-cap issue, the Finance Director advised: "As the RLCs [Red Light Cameras] net revenues ramp up to whatever we believe its annualized rate will be, then we can figure out how to balance the two programs to get their total revenues as close as possible to the statutory limit of 30%."12 The City has made clear to the Police Chief and the Municipal Judge that revenue generation must also be a priority in court operations. The Finance Director’s February 2011 report to the City Council notes that "Judge Brockmeyer was first appointed in 2003, and during this time has been successful in significantly increasing court collections over the years." The report includes a list of "what he has done to help in the areas of court efficiency and revenue." The list, drafted by Judge Brockmeyer, approvingly highlights the creation of additional fees, many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared, and a "failure to appear fine," which the Judge noted is "increased each time the Defendant fails to appear in court or pay a fine." The Judge also noted increasing fines for repeat offenders, "especially in regard to housing violations, [which] have increased substantially and will continue to be increased upon subsequent violations." The February 2011 report notes Judge Brockmeyer’s statement that "none of these changes could have taken place without the cooperation of the Court Clerk, the Chief of Police, and the Prosecutor’s Office." Indeed, the acting prosecutor noted in the report that "I have denied defendants’ needless requests for continuance from the payment docket in an effort to aid in the court’s efficient collection of its fines." Court staff are keenly aware that the City considers revenue generation to be the municipal court’s primary purpose. Revenue targets for court fines and fees are created in consultation not only with Chief Jackson, but also the Court Clerk. In one April 2010 exchange with Chief Jackson entitled "2011 Budget," for example, the Finance Director sought and received confirmation that the Police Chief and the Court Clerk would prepare targets for the court’s fine and fee collections for subsequent years. Court staff take steps to ensure those targets are met in operating court. For example, in April 2011, the Court Clerk wrote to Judge 12 Ferguson officials have asserted that in the last fiscal year revenue from the municipal court comprised only 12% of City revenue, but they have not made clear how they calculated this figure. It appears that 12% is the proportion of Ferguson’s total revenue (forecasted to amount to $18.62 million in 2014) derived from fines and fees (forecasted to be $2.09 million in 2014). Guidelines issued by the Missouri State Auditor in December 2014 provide, however, that the 30% cap outlined in Mo. Rev. Stat. § 302.341.2 imposes a limit on the makeup of fines and fees in general use revenue, excluding any revenue designated for a particular purpose. Notably, the current 30% state cap only applies to fines and fees derived from "traffic violations." It thus appears that, for purposes of the state cap, Ferguson must ensure that its traffic-related fines and fees do not exceed 30% of its "General Fund" revenue. In 2014, Ferguson’s General Fund revenue was forecasted to be $12.33 million. 14 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 108 of 202 Brockmeyer (copying Chief Jackson) that the fines the new Prosecuting Attorney was recommending were not high enough. The Clerk highlighted one case involving three Derelict Vehicle charges and a Failure to Comply charge that resulted in $76 in fines, and noted this "normally would have brought a fine of all three charges around $400." After describing another case that she believed warranted higher fines, the Clerk concluded: "We need to keep up our revenue." There is no indication that ability to pay or public safety goals were considered. The City has been aware for years of concerns about the impact its focus on revenue has had on lawful police action and the fair administration of justice in Ferguson. It has disregarded those concerns—even concerns raised from within the City government—to avoid disturbing the court’s ability to optimize revenue generation. In 2012, a Ferguson City Councilmember wrote to other City officials in opposition to Judge Brockmeyer’s reappointment, stating that "[the Judge] does not listen to the testimony, does not review the reports or the criminal history of defendants, and doesn’t let all the pertinent witnesses testify before rendering a verdict." The Councilmember then addressed the concern that "switching judges would/could lead to loss of revenue," arguing that even if such a switch did "lead to a slight loss, I think it’s more important that cases are being handled properly and fairly." The City Manager acknowledged mixed reviews of the Judge’s work but urged that the Judge be reappointed, noting that "[i]t goes without saying the City cannot afford to lose any efficiency in our Courts, nor experience any decrease in our Fines and Forfeitures." IV. FERGUSON LAW ENFORCEMENT PRACTICES VIOLATE THE LAW AND UNDERMINE COMMUNITY TRUST, ESPECIALLY AMONG AFRICAN AMERICANS Ferguson’s strategy of revenue generation through policing has fostered practices in the two central parts of Ferguson’s law enforcement system—policing and the courts—that are themselves unconstitutional or that contribute to constitutional violations. In both parts of the system, these practices disproportionately harm African Americans. Further, the evidence indicates that this harm to African Americans stems, at least in part, from racial bias, including racial stereotyping. Ultimately, unlawful and harmful practices in policing and in the municipal court system erode police legitimacy and community trust, making policing in Ferguson less fair, less effective at promoting public safety, and less safe. A. Ferguson’s Police Practices FPD’s approach to law enforcement, shaped by the City’s pressure to raise revenue, has resulted in a pattern and practice of constitutional violations. Officers violate the Fourth Amendment in stopping people without reasonable suspicion, arresting them without probable cause, and using unreasonable force. Officers frequently infringe on residents’ First Amendment rights, interfering with their right to record police activities and making enforcement decisions based on the content of individuals’ expression. FPD’s lack of systems to detect and hold officers responsible for misconduct reflects the department’s focus on revenue generation at the expense of lawful policing and helps perpetuate the patterns of unconstitutional conduct we found. FPD fails to adequately supervise officers or review their enforcement actions. While FPD collects vehicle-stop data because it is required to 15 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 109 of 202 do so by state law, it collects no reliable or consistent data regarding pedestrian stops, even though it has the technology to do so.13 In Ferguson, officers will sometimes make an arrest without writing a report or even obtaining an incident number, and hundreds of reports can pile up for months without supervisors reviewing them. Officers’ uses of force frequently go unreported, and are reviewed only laxly when reviewed at all. As a result of these deficient practices, stops, arrests, and uses of force that violate the law or FPD policy are rarely detected and often ignored when they are discovered. 1. FPD Engages in a Pattern of Unconstitutional Stops and Arrests in Violation of the Fourth Amendment FPD’s approach to law enforcement has led officers to conduct stops and arrests that violate the Constitution. We identified several elements to this pattern of misconduct. Frequently, officers stop people without reasonable suspicion or arrest them without probable cause. Officers rely heavily on the municipal "Failure to Comply" charge, which appears to be facially unconstitutional in part, and is frequently abused in practice. FPD also relies on a system of officer-generated arrest orders called "wanteds" that circumvents the warrant system and poses a significant risk of abuse. The data show, moreover, that FPD misconduct in the area of stops and arrests disproportionately impacts African Americans. a. FPD Officers Frequently Detain People Without Reasonable Suspicion and Arrest People Without Probable Cause The Fourth Amendment protects individuals from unreasonable searches and seizures. Generally, a search or seizure is unreasonable "in the absence of individualized suspicion of wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The Fourth Amendment permits law enforcement officers to briefly detain individuals for investigative purposes if the officers possess reasonable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 21 (1968). Reasonable suspicion exists when an "officer is aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed." United States v. Givens, 763 F.3d 987, 989 (8th Cir. 2014) (internal quotation marks omitted). In addition, if the officer reasonably believes the person with whom he or she is dealing is armed and dangerous, the officer may conduct a protective search or frisk of the person’s outer clothing. United States v. Cotter, 701 F.3d 544, 547 (8th Cir. 2012). Such a search is not justified on the basis of "inchoate and unparticularized suspicion;" rather, the "issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. (quoting Terry, 392 U.S. at 27). For an arrest to constitute a reasonable seizure under the Fourth Amendment, it must be supported by probable cause, which exists only if "the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the individual arrested had 13 FPD policy states that "[o]fficers should document" all field contacts and field interrogation "relevant to criminal activity and identification of criminal suspects on the appropriate Department approved computer entry forms." FPD General Order 407.00. Policy requires that a "Field Investigation Report" be completed for persons and vehicles "in all instances when an officer feels" that the subject "may be in the area for a questionable or suspicious purpose." FPD General Order 422.01. In practice, however, FPD officers do not reliably document field contacts, particularly of pedestrians, and the department does not evaluate such field contacts. 16 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 110 of 202 committed an offense at the time of the arrest." Stoner v. Watlingten, 735 F.3d 799, 803 (8th Cir. 2013). Under Missouri law, when making an arrest, "[t]he officer must inform the defendant by what authority he acts, and must also show the warrant if required." Mo. Rev. Stat. § 544.180. In reviewing FPD records, we found numerous incidents in which—based on the officer’s own description of the detention—an officer detained an individual without articulable reasonable suspicion of criminal activity or arrested a person without probable cause. In none of these cases did the officer explain or justify his conduct. For example, in July 2013 police encountered an African-American man in a parking lot while on their way to arrest someone else at an apartment building. Police knew that the encountered man was not the person they had come to arrest. Nonetheless, without even reasonable suspicion, they handcuffed the man, placed him in the back of a patrol car, and ran his record. It turned out he was the intended arrestee’s landlord. The landlord went on to help the police enter the person’s unit to effect the arrest, but he later filed a complaint alleging racial discrimination and unlawful detention. Ignoring the central fact that they had handcuffed a man and put him in a police car despite having no reason to believe he had done anything wrong, a sergeant vigorously defended FPD’s actions, characterizing the detention as "minimal" and pointing out that the car was air conditioned. Even temporary detention, however, constitutes a deprivation of liberty and must be justified under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996). Many of the unlawful stops we found appear to have been driven, in part, by an officer’s desire to check whether the subject had a municipal arrest warrant pending. Several incidents suggest that officers are more concerned with issuing citations and generating charges than with addressing community needs. In October 2012, police officers pulled over an African-American man who had lived in Ferguson for 16 years, claiming that his passenger-side brake light was broken. The driver happened to have replaced the light recently and knew it to be functioning properly. Nonetheless, according to the man’s written complaint, one officer stated, "let’s see how many tickets you’re going to get," while a second officer tapped his Electronic Control Weapon ("ECW") on the roof of the man’s car. The officers wrote the man a citation for "tail light/reflector/license plate light out." They refused to let the man show them that his car’s equipment was in order, warning him, "don’t you get out of that car until you get to your house." The man, who believed he had been racially profiled, was so upset that he went to the police station that night to show a sergeant that his brakes and license plate light worked. At times, the constitutional violations are even more blatant. An African-American man recounted to us an experience he had while sitting at a bus stop near Canfield Drive. According to the man, an FPD patrol car abruptly pulled up in front of him. The officer inside, a patrol lieutenant, rolled down his window and addressed the man: Lieutenant: Get over here. Bus Patron: Me? Lieutenant: Get the f*** over here. Yeah, you. Bus Patron: Why? What did I do? 17 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 111 of 202 Lieutenant: Give me your ID. Bus Patron: Why? Lieutenant: Stop being a smart ass and give me your ID. The lieutenant ran the man’s name for warrants. Finding none, he returned the ID and said, "get the hell out of my face." These allegations are consistent with other, independent allegations of misconduct that we heard about this particular lieutenant, and reflect the routinely disrespectful treatment many African Americans say they have come to expect from Ferguson police. That a lieutenant with supervisory responsibilities allegedly engaged in this conduct is further cause for concern. This incident is also consistent with a pattern of suspicionless, legally unsupportable stops we found documented in FPD’s records, described by FPD as "ped checks" or "pedestrian checks." Though at times officers use the term to refer to reasonable-suspicion-based pedestrian stops, or "Terry stops," they often use it when stopping a person with no objective, articulable suspicion. For example, one night in December 2013, officers went out and "ped. checked those wandering around" in Ferguson’s apartment complexes. In another case, officers responded to a call about a man selling drugs by stopping a group of six African-American youths who, due to their numbers, did not match the facts of the call. The youths were "detained and ped checked." Officers invoke the term "ped check" as though it has some unique constitutional legitimacy. It does not. Officers may not detain a person, even briefly, without articulable reasonable suspicion. Terry, 392 U.S. at 21. To the extent that the words "ped check" suggest otherwise, the terminology alone is dangerous because it threatens to confuse officers’ understanding of the law. Moreover, because FPD does not track or analyze pedestrian Terry stops—whether termed "ped checks" or something else—in any reliable way, they are especially susceptible to discriminatory or otherwise unlawful use. As with its pattern of unconstitutional stops, FPD routinely makes arrests without probable cause. Frequently, officers arrest people for conduct that plainly does not meet the elements of the cited offense. For example, in November 2013, an officer approached five African-American young people listening to music in a car. Claiming to have smelled marijuana, the officer placed them under arrest for disorderly conduct based on their "gathering in a group for the purposes of committing illegal activity." The young people were detained and charged—some taken to jail, others delivered to their parents—despite the officer finding no marijuana, even after conducting an inventory search of the car. Similarly, in February 2012, an officer wrote an arrest notification ticket for Peace Disturbance for "loud music" coming from a car. The arrest ticket appears unlawful as the officer did not assert, and there is no other indication, that a third party was disturbed by the music—an element of the offense. See Ferguson Mun. Code § 29-82 (prohibiting certain conduct that "unreasonably and knowingly disturbs or alarms another person or persons"). Nonetheless, a supervisor approved it. These warrantless arrests violated the Fourth Amendment because they were not based on probable cause. See Virginia v. Moore, 553 U.S. 164, 173 (2008). While the record demonstrates a pattern of stops that are improper from the beginning, it also exposes encounters that start as constitutionally defensible but quickly cross the line. For example, in the summer of 2012, an officer detained a 32-year-old African-American man who 18 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 112 of 202 was sitting in his car cooling off after playing basketball. The officer arguably had grounds to stop and question the man, since his windows appeared more deeply tinted than permitted under Ferguson’s code. Without cause, the officer went on to accuse the man of being a pedophile, prohibit the man from using his cell phone, order the man out of his car for a pat-down despite having no reason to believe he was armed, and ask to search his car. When the man refused, citing his constitutional rights, the officer reportedly pointed a gun at his head, and arrested him. The officer charged the man with eight different counts, including making a false declaration for initially providing the short form of his first name (e.g., "Mike" instead of "Michael") and an address that, although legitimate, differed from the one on his license. The officer also charged the man both with having an expired operator’s license, and with having no operator’s license in possession. The man told us he lost his job as a contractor with the federal government as a result of the charges. b. FPD Officers Routinely Abuse the "Failure to Comply" Charge One area of FPD activity deserves special attention for its frequency of Fourth Amendment violations: enforcement of Ferguson’s Failure to Comply municipal ordinance.14 Ferguson Mun. Code § 29-16. Officers rely heavily on this charge to arrest individuals who do not do what they ask, even when refusal is not a crime. The offense is typically charged under one of two subsections. One subsection prohibits disobeying a lawful order in a way that hinders an officer’s duties, § 29-16(1); the other requires individuals to identify themselves, § 29-16(2). FPD engages in a pattern of unconstitutional enforcement with respect to both, resulting in many unlawful arrests. i. Improper Enforcement of Code Provision Prohibiting Disobeying a Lawful Order Officers frequently arrest individuals under Section 29-16(1) on facts that do not meet the provision’s elements. Section 29-16(1) makes it unlawful to "[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer’s official duties where such failure interfered with, obstructed or hindered the officer in the performance of such duties." Many cases initiated under this provision begin with an officer ordering an individual to stop despite lacking objective indicia that the individual is engaged in wrongdoing. The order to stop is not a "lawful order" under those circumstances because the officer lacks reasonable suspicion that criminal activity is afoot. See United States v. Brignoni-Ponce, 422 U.S. 873, 882-83 (1975); United States v. Jones, 606 F.3d 964, 967-68 (8th Cir. 2010). Nonetheless, when individuals do not stop in those situations, FPD officers treat that conduct as a failure to comply with a lawful order, and make arrests. Such arrests violate the Fourth Amendment because they are not based on probable cause that the crime of Failure to Comply has been committed. Dunaway v. New York, 442 U.S. 200, 208 (1979). FPD officers apply Section 29-16(1) remarkably broadly. In an incident from August 2010, an officer broke up an altercation between two minors and sent them back to their homes. The officer ordered one to stay inside her residence and the other not to return to the first’s 14 FPD officers are not consistent in how they label this charge in their reports. They refer to violations of Section 29-16 as both "Failure to Comply" and "Failure to Obey." This report refers to all violations of this code provision as "Failure to Comply." 19 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 113 of 202 residence. Later that day, the two minors again engaged in an altercation outside the first minor’s residence. The officer arrested both for Failure to Comply with the earlier orders. But Section 29-16(1) does not confer on officers the power to confine people to their homes or keep them away from certain places based solely on their verbal orders. At any rate, the facts of this incident do not satisfy the statute for another reason: there was no evidence that the failure to comply "interfered with, obstructed or hindered the officer in the performance" of official duties. § 29-16(1). The officer’s arrest of the two minors for Failure to Comply without probable cause of all elements of the offense violated the Fourth Amendment. ii. Improper Enforcement of Code Provision Requiring Individuals to Identify Themselves to a Police Officer FPD’s charging under Section 29-16(2) also violates the Constitution. Section 29-16(2) makes it unlawful to "[f]ail to give information requested by a police officer in the discharge of his/her official duties relating to the identity of such person." This provision, a type of "stop-and-identify" law, is likely unconstitutional under the void-for-vagueness doctrine. It is also unconstitutional as typically applied by FPD. As the Supreme Court has explained, the void-for-vagueness doctrine "requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983). In Kolender, the Supreme Court invalidated a California stop-and-identify law as unconstitutionally vague because its requirement that detained persons give officers "credible and reliable" identification provided no standard for what a suspect must do to comply with it. Instead, the law "vest[ed] complete discretion in the hands of the police" to determine whether a person had provided sufficient identity information, which created a "potential for arbitrarily suppressing First Amendment liberties" and "the constitutional right to freedom of movement." Id. at 358. The Eighth Circuit has applied the doctrine numerous times. In Fields v. City of Omaha, 810 F.2d 830 (8th Cir. 1987), the court struck down a city ordinance that required a person to "identify himself" because it did not make definite what would suffice for identification and thereby provided no "standard to guide the police officer’s discretionary assessment" or "prevent arbitrary and discriminatory law enforcement." Id. at 833-34; see also Stahl v. City of St. Louis, 687 F.3d 1038, 1040 (8th Cir. 2012) (holding that an ordinance prohibiting conduct that would impede traffic was unconstitutionally vague under the Due Process Clause because it "may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits") (internal quotation marks omitted). Under these binding precedents, Ferguson’s stop-and-identify law appears to be unconstitutionally vague because the term "information... relating to the identity of such person" in Section 29-16(2) is not defined. Neither the ordinance nor any court has narrowed that language. Cf. Hiibel v. Sixth Judicial Dist. Ct. of Nevada, 542 U.S. 177, 188-89 (2004) (upholding stop-and-identify law that was construed by the state supreme court to require only that a suspect provide his name). As a consequence, the average person has no understanding of precisely how much identity information, and what kind, he or she must provide when an FPD officer demands it; nor do officers. Indeed, we are aware of several people who were asked to provide their Social Security numbers, including one man who was arrested after refusing to do 20 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 114 of 202 so. Given that the ordinance appears to lend itself to such arbitrary enforcement, Section 29-16(2) is likely unconstitutional on its face.15 Even apart from the facial unconstitutionality of the statute, the evidence is clear that FPD’s enforcement of Section 29-16(2) is unconstitutional in its application. Stop-and-identify laws stand in tension with the Supreme Court’s admonition that a person approached by a police officer "need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." Florida v. Royer, 460 U.S. 491, 497-98 (1983). For this reason, the Court has held that an officer cannot require a person to identify herself unless the officer first has reasonable suspicion to initiate the stop. See Brown v. Texas, 443 U.S. 47, 52-53 (1979) (holding that the application of a Texas statute that criminalized refusal to provide a name and address to a peace officer violated the Fourth Amendment where the officer lacked reasonable suspicion of criminal activity); see also Hiibel, 542 U.S. at 184 (deeming the reasonable suspicion requirement a "constitutional limitation[]" on stop-and-identify statutes). FPD officers, however, routinely arrest individuals under Section 29-16(2) for failure to identify themselves despite lacking reasonable suspicion to stop them in the first place. For example, in an October 2011 incident, an officer arrested two sisters who were backing their car into their driveway. The officer claimed that the car had been idling in the middle of the street, warranting investigation, while the women claim they had pulled up outside their home to drop someone off when the officer arrived. In any case, the officer arrested one sister for failing to provide her identification when requested. He arrested the other sister for getting out of the car after being ordered to stay inside. The two sisters spent the next three hours in jail. In a similar incident from December 2011, police officers approached two people sitting in a car on a public street and asked the driver for identification. When the driver balked, insisting that he was on a public street and should not have to answer questions, the officers ordered him out of the car and ultimately charged him with Failure to Comply. In another case, from March 2013, officers responded to the police station to take custody of a person wanted on a state warrant. When they arrived, they encountered a different man— not the subject of the warrant—who happened to be leaving the station. Having nothing to connect the man to the warrant subject, other than his presence at the station, the officers nonetheless stopped him and asked that he identify himself. The man asserted his rights, asking the officers "Why do you need to know?" and declining to be frisked. When the man then extended his identification toward the officers, at their request, the officers interpreted his hand motion as an attempted assault and took him to the ground. Without articulating reasonable suspicion or any other justification for the initial detention, the officers arrested the man on two counts of Failure to Comply and two counts of Resisting Arrest. In our conversations with FPD officers, one officer admitted that when he conducts a traffic stop, he asks for identification from all passengers as a matter of course. If any refuses, he considers that to be "furtive and aggressive" conduct and cites—and typically arrests—the 15 Other broad quality-of-life ordinances in the Ferguson municipal code, such as the disorderly conduct provision, may also be vulnerable to attack as unconstitutionally vague or overbroad. See Ferguson Mun. Code § 29-94 (defining disorderly conduct to include the conduct of "[a]ny person, while in a public place, who utters in a loud, abusive or threatening manner, any obscene words, epithets or similar abusive language") (emphasis added). 21 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 115 of 202 person for Failure to Comply. The officer thus acknowledged that he regularly exceeds his authority under the Fourth Amendment by arresting passengers who refuse, as is their right, to provide identification. See Hiibel, 542 U.S. at 188 ("[A]n officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop."); Stufflebeam v. Harris, 521 F.3d 884, 887-88 (8th Cir. 2008) (holding that the arrest of a passenger for failure to identify himself during a traffic stop violated the Fourth Amendment where the passenger was not suspected of other criminal activity and his identification was not needed for officer safety). Further, the officer told us that he was trained to arrest for this violation. Good supervision would correct improper arrests by an officer before they became routine. But in Ferguson, the same dynamics that lead officers to make unlawful stops and arrests cause supervisors to conduct only perfunctory review of officers’ actions—when they conduct any review at all. FPD supervisors are more concerned with the number of citations and arrests officers produce than whether those citations and arrests are lawful or promote public safety. Internal communications among command staff reveal that FPD for years has failed to ensure even that officers write their reports and first-line supervisors approve them. In 2010, a senior police official complained to supervisors that every week reports go unwritten, and hundreds of reports remain unapproved. "It is time for you to hold your officers accountable," he urged them. In 2014, the official had the same complaint, remarking on 600 reports that had not been approved over a six-month period. Another supervisor remarked that coding errors in the new records management system is set up "to hide, do away with, or just forget reports," creating a heavy administrative burden for supervisors who discover incomplete reports months after they are created. In practice, not all arrests are given incident numbers, meaning supervisors may never know to review them. These systemic deficiencies in oversight are consistent with an approach to law enforcement in which productivity and revenue generation, rather than lawful policing, are the priority. Thus, even as commanders exhort line supervisors to more closely supervise officer activity, they perpetuate the dynamics that discourage meaningful supervision. c. FPD’s Use of a Police-run "Wanted" System Circumvents Judicial Review and Poses the Risk of Abuse FPD and other law enforcement agencies in St. Louis County use a system of "wanteds" or "stop orders" as a substitute for seeking judicial approval for an arrest warrant. When officers believe a person has committed a crime but are not able to immediately locate that person, they can enter a "wanted" into the statewide law enforcement database, indicating to all other law enforcement agencies that the person should be arrested if located. While wanteds are supposed to be based on probable cause, see FPD General Order 424.01, they operate as an end-run around the judicial system. Instead of swearing out a warrant and seeking judicial authorization from a neutral and detached magistrate, officers make the probable cause determination themselves and circumvent the courts. Officers use wanteds for serious state-level crimes and minor code violations alike, including traffic offenses. FPD command staff express support for the wanted system, extolling the benefits of being able to immediately designate a person for detention. But this expedience carries constitutional risks. If officers enter wanteds into the system on less than probable cause, then 22 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 116 of 202 the subsequent arrest would violate the Fourth Amendment. Our interviews with command staff and officers indicate that officers do not clearly understand the legal authority necessary to issue a wanted. For example, one veteran officer told us he will put out a wanted "if I do not have enough probable cause to arrest you." He gave the example of investigating a car theft. Upon identifying a suspect, he would put that suspect into the system as wanted "because we do not have probable cause that he stole the vehicle." Reflecting the muddled analysis officers may employ when deciding whether to issue a wanted, this officer concluded, "you have to have reasonable suspicion and some probable cause to put out a wanted." At times, FPD officers use wanteds not merely in spite of a lack of probable cause, but because they lack probable cause. In December 2014, a Ferguson detective investigating a shooting emailed a county prosecutor to see if a warrant for a suspect could be obtained, since "a lot of state agencies won’t act on a wanted." The prosecutor responded stating that although "[c]hances are" the crime was committed by the suspect, "we just don’t have enough for a warrant right now." The detective responded that he would enter a wanted. There is evidence that the use of wanteds has resulted in numerous unconstitutional arrests in Ferguson. Internal communications reveal problems with FPD officers arresting individuals on wanteds without first confirming that the wanteds are still valid. In 2010, for instance, an FPD supervisor wrote that "[a]s of late we have had subjects arrested that were wanted for other agencies brought in without being verified first. You guessed it, come to find out they were no longer wanted by the agencies and had to be released." The same supervisor told us that in 2014 he cleared hundreds of invalid wanteds from the system, some of them over ten years old, suggesting that invalid wanteds have been an ongoing problem. Wanteds can also be imprecise, leading officers to arrest in violation of the Fourth Amendment. For example, in June 2011, officers arrested a man at gunpoint because the car he was driving had an active wanted "on the vehicle and its occupants" in connection with an alleged theft. In fact, the theft was alleged to have been committed by the man’s brother. Nonetheless, according to FPD’s files, the man was arrested solely on the basis of the wanted. This system creates the risk that wanteds could be used improperly to develop evidence necessary for arrest rather than to secure a person against whom probable cause already exists. Several officers described wanteds as an investigatory tool. According to Chief Jackson, "a wanted allows us to get a suspect in for booking and potential interrogation." One purpose, he said, is "to conduct an interview of that person." While it is perfectly legitimate for officers to try to obtain statements from persons lawfully detained, it is unconstitutional for them to jail individuals on less than probable cause for that purpose. Dunaway, 442 U.S. at 216. One senior supervisor acknowledged that wanteds could be abused. He agreed that the potential exists, for example, for an officer to pressure a subject into speaking voluntarily to avoid being arrested. These are risks that the judicially-reviewed warrant process is meant to avoid. Compounding our concern is the minimal training and supervision provided on when to issue a wanted, and the lack of any meaningful oversight to detect and respond to improperly issued wanteds. Some officers told us that they may have heard about wanteds in the training academy. Others said that they received no formal training on wanteds and learned about them 23 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 117 of 202 from their field training officers. As for supervision, officers are supposed to get authorization from their supervisors before entering a wanted into a law enforcement database. They purportedly do this by providing the factual basis for probable cause to their supervisors, orally or in their written reports. However, several supervisors and officers we spoke with acknowledged that this supervisory review routinely does not happen. Further, the supervisors we interviewed told us that they had never declined to authorize a wanted. Finally, a Missouri appellate court has highlighted the constitutional risks of relying on a wanted as the basis for an arrest. In State v. Carroll, 745 S.W.2d 156 (Mo. Ct. App. 1987), the court held that a robbery suspect was arrested without probable cause when Ferguson and St. Louis police officers picked him up on a wanted for leaving the scene of an accident. Id. at 158. The officers then interrogated him three times at two different police stations, and he eventually made incriminating statements. Despite the existence of a wanted, the court deemed the initial arrest unconstitutional because "[t]he record... fail[ed] to show any facts known to the police at the time of the arrest to support a reasonable belief that defendant had committed a crime." Id. Carroll highlights the fact that wanteds do not confer an authority equal to a judicial arrest warrant. Rather, the Carroll court’s holding suggests that wanteds may be of unknown reliability and thus insufficient to permit custodial detention under the Fourth Amendment. See also Steven J. Mulroy, "Hold" On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold, 63 Case W. Res. L. Rev. 815, 823, 842-45 (2013) (observing that one problem with police "holds" is that, although they require probable cause, "in practice they often lack it"). We received complaints from FPD officers that the County prosecutor’s office is too restrictive in granting warrant requests, and that this has necessitated the wanted practice. This investigation did not determine whether the St. Louis County prosecutor is overly restrictive or appropriately cautious in granting warrant requests. What is clear, however, is that current FPD practices have resulted in wanteds being issued and executed without legal basis. 2. FPD Engages in a Pattern of First Amendment Violations FPD’s approach to enforcement results in violations of individuals’ First Amendment rights. FPD arrests people for a variety of protected conduct: people are punished for talking back to officers, recording public police activities, and lawfully protesting perceived injustices. Under the Constitution, what a person says generally should not determine whether he or she is jailed. Police officers cannot constitutionally make arrest decisions based on individuals’ verbal expressions of disrespect for law enforcement, including use of foul language. Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (holding that officers violated the Constitution when they arrested a woman for disorderly conduct after she called one an "asshole," especially since "police officers are expected to exercise greater restraint in their response than the average citizen"); Copeland v. Locke, 613 F.3d 875, 880 (8th Cir. 2010) (holding that the First Amendment prohibited a police chief from arresting an individual who pointed at him and told him "move the f*****g car," even if the comment momentarily distracted the chief from a routine traffic stop); Gorra v. Hanson, 880 F.2d 95, 100 (8th Cir. 1989) (holding that arresting a person in retaliation for making a statement "constitutes obvious infringement" of the First Amendment). As the Supreme Court has held, "the First Amendment protects a significant 24 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 118 of 202 amount of verbal criticism and challenge directed at police officers." City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (striking down as unconstitutionally overbroad a local ordinance that criminalized interference with police by speech). In Ferguson, however, officers frequently make enforcement decisions based on what subjects say, or how they say it. Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents—sometimes called "contempt of cop" cases—are propelled by officers’ belief that arrest is an appropriate response to disrespect. These arrests are typically charged as a Failure to Comply, Disorderly Conduct, Interference with Officer, or Resisting Arrest. For example, in July 2012, a police officer arrested a business owner on charges of Interfering in Police Business and Misuse of 911 because she objected to the officer’s detention of her employee. The officer had stopped the employee for "walking unsafely in the street" as he returned to work from the bank. According to FPD records, the owner "became verbally involved," came out of her shop three times after being asked to stay inside, and called 911 to complain to the Police Chief. The officer characterized her protestations as interference and arrested her inside her shop.16 The arrest violated the First Amendment, which "does not allow such speech to be made a crime." Hill, 482 U.S. at 462. Indeed, the officer’s decision to arrest the woman after she tried to contact the Police Chief suggests that he may have been retaliating against her for reporting his conduct. Officers in Ferguson also use their arrest power to retaliate against individuals for using language that, while disrespectful, is protected by the Constitution. For example, one afternoon in September 2012, an officer stopped a 20-year-old African-American man for dancing in the middle of a residential street. The officer obtained the man’s identification and ran his name for warrants. Finding none, he told the man he was free to go. The man responded with profanities. When the officer told him to watch his language and reminded him that he was not being arrested, the man continued using profanity and was arrested for Manner of Walking in Roadway. In February 2014, officers responded to a group of African-American teenage girls "play fighting" (in the words of the officer) in an intersection after school. When one of the schoolgirls gave the middle finger to a white witness who had called the police, an officer ordered her over to him. One of the girl’s friends accompanied her. Though the friend had the right to be present and observe the situation—indeed, the offense reports include no facts suggesting a safety concern posed by her presence—the officers ordered her to leave and then attempted to arrest her when she refused. Officers used force to arrest the friend as she pulled away. When the first girl grabbed an officer’s shoulder, they used force to arrest her, as well. 16 The ordinance on interfering with arrest, detention, or stop, Ferguson Mun. Code § 29-17, does not actually permit arrest unless the subject uses or threatens violence, which did not occur here. Another code provision the officer may have relied on, § 29-19, is likely unconstitutionally overbroad because it prohibits obstruction of government operations "in any manner whatsoever." See Hill, 482 U.S. at 455, 462, 466 (invalidating ordinance that made it unlawful to "in any manner oppose, molest, abuse, or interrupt any policeman in the execution of his duty"). 25 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 119 of 202 Officers charged the two teenagers with a variety of offenses, including: Disorderly Conduct for giving the middle finger and using obscenities; Manner of Walking for being in the street; Failure to Comply for staying to observe; Interference with Officer; Assault on a Law Enforcement Officer; and Endangering the Welfare of a Child (themselves and their schoolmates) by resisting arrest and being involved in disorderly conduct. This incident underscores how officers’ unlawful response to activity protected by the First Amendment can quickly escalate to physical resistance, resulting in additional force, additional charges, and increasing the risk of injury to officers and members of the public alike. These accounts are drawn entirely from officers’ own descriptions, recorded in offense reports. That FPD officers believe criticism and insolence are grounds for arrest, and that supervisors have condoned such unconstitutional policing, reflects intolerance for even lawful opposition to the exercise of police authority. These arrests also reflect that, in FPD, many officers have no tools for de-escalating emotionally charged scenes, even though the ability of a police officer to bring calm to a situation is a core policing skill. FPD officers also routinely infringe on the public’s First Amendment rights by preventing people from recording their activities. The First Amendment "prohibit[s] the government from limiting the stock of information from which members of the public may draw." First Nat’l Bank v. Belloti, 435 U.S. 765, 783 (1978). Applying this principle, the federal courts of appeal have held that the First Amendment "unambiguously" establishes a constitutional right to videotape police activities. Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); see also ACLU v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012) (issuing a preliminary injunction against the use of a state eavesdropping statute to prevent the recording of public police activities); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a First Amendment right to film police carrying out their public duties); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right "to photograph or videotape police conduct"). Indeed, as the ability to record police activity has become more widespread, the role it can play in capturing questionable police activity, and ensuring that the activity is investigated and subject to broad public debate, has become clear. Protecting civilian recording of police activity is thus at the core of speech the First Amendment is intended to protect. Cf. Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (First Amendment protects "news gathering"); Mills v. Alabama, 384 U.S. 214, 218 (1966) (news gathering enhances "free discussion of governmental affairs"). "In a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions." Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). In Ferguson, however, officers claim without any factual support that the use of camera phones endangers officer safety. Sometimes, officers offer no rationale at all. Our conversations with community members and review of FPD records found numerous violations of the right to record police activity. In May 2014, an officer pulled over an African-American woman who was driving with her two sons. During the traffic stop, the woman’s 16-year-old son began recording with his cell phone. The officer ordered him to put down the phone and refrain from using it for the remainder of the stop. The officer claimed this was "for safety reasons." The situation escalated, apparently due to the officer’s rudeness and the woman’s response. According to the 16 year old, he began recording again, leading the officer to wrestle the phone 26 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 120 of 202 from him. Additional officers arrived and used force to arrest all three civilians under disputed circumstances that could have been clarified by a video recording. In June 2014, an African-American couple who had taken their children to play at the park allowed their small children to urinate in the bushes next to their parked car. An officer stopped them, threatened to cite them for allowing the children to "expose themselves," and checked the father for warrants. When the mother asked if the officer had to detain the father in front of the children, the officer turned to the father and said, "you’re going to jail because your wife keeps running her mouth." The mother then began recording the officer on her cell phone. The officer became irate, declaring, "you don’t videotape me!" As the officer drove away with the father in custody for "parental neglect," the mother drove after them, continuing to record. The officer then pulled over and arrested her for traffic violations. When the father asked the officer to show mercy, he responded, "no more mercy, since she wanted to videotape," and declared "nobody videotapes me." The officer then took the phone, which the couple’s daughter was holding. After posting bond, the couple found that the video had been deleted. A month later, the same officer pulled over a truck hauling a trailer that did not have operating tail lights. The officer asked for identification from all three people inside, including a 54-year-old white man in the passenger seat who asked why. "You have to have a reason. This is a violation of my Fourth Amendment rights," he asserted. The officer, who characterized the man’s reaction as "suspicious," responded, "the reason is, if you don’t hand it to me, I’ll arrest you." The man provided his identification. The officer then asked the man to move his cell phone from his lap to the dashboard, "for my safety." The man said, "okay, but I’m going to record this." Due to nervousness, he could not open the recording application and quickly placed the phone on the dash. The officer then announced that the man was under arrest for Failure to Comply. At the end of the traffic stop, the officer gave the driver a traffic citation, indicated at the other man, and said, "you’re getting this ticket because of him." Upon bringing that man to the jail, someone asked the officer what offense the man had committed. The officer responded, "he’s one of those guys who watches CNBC too much about his rights." The man did not say anything else, fearing what else the officer might be capable of doing. He later told us, "I never dreamed I could end up in jail for this. I’m scared of driving through Ferguson now." The Ferguson Police Department’s infringement of individuals’ freedom of speech and right to record has been highlighted in recent months in the context of large-scale public protest. In November 2014, a federal judge entered a consent order prohibiting Ferguson officers from interfering with individuals’ rights to lawfully and peacefully record public police activities. That same month, the City settled another suit alleging that it had abused its loitering ordinance, Mun. Code § 29-89, to arrest people who were protesting peacefully on public sidewalks. Despite these lawsuits, it appears that FPD continues to interfere with individuals’ rights to protest and record police activities. On February 9, 2015, several individuals were protesting outside the Ferguson police station on the six-month anniversary of Michael Brown’s death. According to protesters, and consistent with several video recordings from that evening, the protesters stood peacefully in the police department’s parking lot, on the sidewalks in front of it, and across the street. Video footage shows that two FPD vehicles abruptly accelerated from the police parking lot into the street. An officer announced, "everybody here’s going to jail," 27 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 121 of 202 causing the protesters to run. Video shows that as one man recorded the police arresting others, he was arrested for interfering with police action. Officers pushed him to the ground, began handcuffing him, and announced, "stop resisting or you’re going to get tased." It appears from the video, however, that the man was neither interfering nor resisting. A protester in a wheelchair who was live streaming the protest was also arrested. Another officer moved several people with cameras away from the scene of the arrests, warning them against interfering and urging them to back up or else be arrested for Failure to Obey. The sergeant shouted at those filming that they would be arrested for Manner of Walking if they did not back away out of the street, even though it appears from the video recordings that the protesters and those recording were on the sidewalk at most, if not all, times. Six people were arrested during this incident. It appears that officers’ escalation of this incident was unnecessary and in response to derogatory comments written in chalk on the FPD parking lot asphalt and on a police vehicle. FPD’s suppression of speech reflects a police culture that relies on the exercise of police power—however unlawful—to stifle unwelcome criticism. Recording police activity and engaging in public protest are fundamentally democratic enterprises because they provide a check on those "who are granted substantial discretion that may be misused to deprive individuals of their liberties." Glik, 655 F.3d at 82. Even profane backtalk can be a form of dissent against perceived misconduct. In the words of the Supreme Court, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Hill, 482 U.S. at 463. Ideally, officers would not encounter verbal abuse. Communities would encourage mutual respect, and the police would likewise exhibit respect by treating people with dignity. But, particularly where officers engage in unconstitutional policing, they only exacerbate community opposition by quelling speech. 3. FPD Engages in a Pattern of Excessive Force in Violation of the Fourth Amendment FPD engages in a pattern of excessive force in violation of the Fourth Amendment. Many officers are quick to escalate encounters with subjects they perceive to be disobeying their orders or resisting arrest. They have come to rely on ECWs, specifically Tasers®, where less force—or no force at all—would do. They also release canines on unarmed subjects unreasonably and before attempting to use force less likely to cause injury. Some incidents of excessive force result from stops or arrests that have no basis in law. Others are punitive and retaliatory. In addition, FPD records suggest a tendency to use unnecessary force against vulnerable groups such as people with mental health conditions or cognitive disabilities, and juvenile students. Furthermore, as discussed in greater detail in Part III.C. of this report, Ferguson’s pattern of using excessive force disproportionately harms African-American members of the community. The overwhelming majority of force—almost 90%—is used against African Americans. The use of excessive force by a law enforcement officer violates the Fourth Amendment. Graham v. Conner, 490 U.S. 386, 394 (1989); Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1207-09 (8th Cir. 2013). The constitutionality of an officer’s use of force depends on whether the officer’s conduct was "‘objectively reasonable’ in light of the facts and 28 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 122 of 202 circumstances," which must be assessed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. Relevant considerations include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id.; Johnson v. Caroll, 658 F.3d 819, 826 (8th Cir. 2011). FPD also imposes limits on officers’ use of force through department policies. The use-of-force policy instituted by Chief Jackson in 2010 states that "force may not be resorted to unless other reasonable alternatives have been exhausted or would clearly be ineffective under a particular set of circumstances." FPD General Order 410.01. The policy also sets out a use-of-force continuum, indicating the force options permitted in different circumstances, depending on the level of resistance provided by a suspect. FPD General Order 410.08. FPD’s stated practice is to maintain use-of-force investigation files for all situations in which officers use force. We reviewed the entire set of force files provided by the department for the period of January 1, 2010 to September 8, 2014.17 Setting aside the killing of animals (e.g., dogs, injured deer) and three instances in which the subject of the use of force was not identified, FPD provided 151 files. We also reviewed related documentation regarding canine deployments. Our finding that FPD force is routinely unreasonable and sometimes clearly punitive is drawn largely from FPD’s documentation; that is, from officers’ own words. a. FPD’s Use of Electronic Control Weapons Is Unreasonable FPD’s pattern of excessive force includes using ECWs in a manner that is unconstitutional, abusive, and unsafe. For example, in August 2010, a lieutenant used an ECW in drive-stun mode against an African-American woman in the Ferguson City Jail because she had refused to remove her bracelets.18 The lieutenant resorted to his ECW even though there were five officers present and the woman posed no physical threat. Similarly, in November 2013, a correctional officer fired an ECW at an African-American woman’s chest because she would not follow his verbal commands to walk toward a cell. The woman, who had been arrested for driving while intoxicated, had yelled an insulting remark at the officer, but her conduct amounted to verbal noncompliance or passive resistance at most. Instead of attempting hand controls or seeking assistance from a state trooper who was also present, the correctional officer deployed the ECW because the woman was "not doing as she was told." When another FPD officer wrote up the formal incident report, the reporting officer wrote that the woman "approached [the correctional officer] in a threatening manner." This "threatening manner" allegation appears nowhere in the statements of the correctional 17 This set, however, did not include any substantive information on the August 9, 2014 shooting of Michael Brown by Officer Darren Wilson. That incident is being separately investigated by the Criminal Section of the Civil Rights Division and the U.S. Attorney’s Office for the Eastern District of Missouri. 18 ECWs have two modes. In dart mode, an officer fires a cartridge that sends two darts or prongs into a person’s body, penetrating the skin and delivering a jolt of electricity of a length determined by the officer. In drive-stun mode, sometimes referred to as "pain compliance" mode, an officer presses the weapon directly against a person’s body, pulling the trigger to activate the electricity. Many agencies strictly limit the use of ECWs in drive-stun mode because of the potential for abuse. 29 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 123 of 202 officer or witness trooper. The woman was charged with Disorderly Conduct, and the correctional officer soon went on to become an officer with another law enforcement agency. These are not isolated incidents. In September 2012, an officer drive-stunned an African-American woman who he had placed in the back of his patrol car but who had stretched out her leg to block him from closing the door. The woman was in handcuffs. In May 2013, officers drive-stunned a handcuffed African-American man who verbally refused to get out of the back seat of a police car once it had arrived at the jail. The man did not physically resist arrest or attempt to assault the officers. According to the man, he was also punched in the face and head. That allegation was neither reported by the involved officers nor investigated by their supervisor, who dismissed it. FPD officers seem to regard ECWs as an all-purpose tool bearing no risk. But an ECW—an electroshock weapon that disrupts a person’s muscle control, causing involuntary contractions—can indeed be harmful. The Eighth Circuit Court of Appeals has observed that ECW-inflicted injuries are "sometimes severe and unexpected." LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013). Electroshock "inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless." Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993). Guidance produced by the United States Department of Justice, Office of Community Oriented Policing Services, and the Police Executive Research Forum in 2011 warns that ECWs are "‘less-lethal’ and not'nonlethal weapons’" and "have the potential to result in a fatal outcome." 2011 Electronic Control Weapon Guidelines 12 (Police Executive Research Forum & U.S. Dep’t of Justice Office of Community Oriented Policing Services, Mar. 2011) ("2011 ECW Guidelines"). FPD officers’ swift, at times automatic, resort to using ECWs against individuals who typically have committed low-level crimes and who pose no immediate threat violates the Constitution. As the Eighth Circuit held in 2011, an officer uses excessive force and violates clearly established Fourth Amendment law when he deploys an ECW against an individual whose crime was minor and who is not actively resisting, attempting to flee, or posing any imminent danger to others. Brown v. City of Golden Valley, 574 F.3d 491, 497-99 (8th Cir. 2011) (upholding the denial of a qualified immunity claim made by an officer who drive-stunned a woman on her arm for two or three seconds when she refused to hang up her phone despite being ordered to do so twice); cf. Hickey, 12 F.3d at 759 (finding that the use of a stun gun against a prisoner for refusing to sweep his cell violated the more deferential Eighth Amendment prohibition against cruel and unusual punishment). Courts have found that even when a suspect resists but does so only minimally, the surrounding factors may render the use of an ECW objectively unreasonable. See Mattos v. Agarano, 661 F.3d 433, 444-46, 448-51 (9th Cir. 2011) (en banc) (holding in two consolidated cases that minimal defensive resistance—including stiffening the body to inhibit being pulled from a car, and raising an arm in defense—does not render using an ECW reasonable where the offense was minor, the subject did not attempt to flee, and the subject posed no immediate threat to officers); Parker v. Gerrish, 547 F.3d 1, 9-11 (1st Cir. 2008) (upholding a jury verdict of excessive use of force for an ECW use because the evidence supported a finding that the subject who had held his hands together was not actively resisting or posing an immediate threat); Casey v. City of Fed. Heights, 509 F.3d 1278, 1282-83 (10th Cir. 2007) (holding that the use of an ECW was not objectively reasonable when the 30 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 124 of 202 subject pulled away from the officer but did not otherwise actively resist arrest, attempt to flee, or pose an immediate threat). Indeed, officers’ unreasonable ECW use violates FPD’s own policies. The department prohibits the use of force unless reasonable alternatives have been exhausted or would clearly be ineffective. FPD General Order 410.01. A separate ECW policy describes the weapon as "designed to overcome active aggression or overt actions of assault." FPD General Order 499.00. The policy states that an ECW "will never be deployed punitively or for purposes of coercion. It is to be used as a way of averting a potentially injurious or dangerous situation." FPD General Order 499.04. Despite the existence of clearly established Fourth Amendment case law and explicit departmental policies in this area, FPD officers routinely engage in the unreasonable use of ECWs, and supervisors routinely approve their conduct. It is in part FPD officers’ approach to policing that leads them to violate the Constitution and FPD’s own policies. Officers across the country encounter drunkenness, passive defiance, and verbal challenges. But in Ferguson, officers have not been trained or incentivized to use de-escalation techniques to avoid or minimize force in these situations. Instead, they respond with impatience, frustration, and disproportionate force. FPD’s weak oversight of officer use of force, described in greater detail below, facilitates this abuse. Officers should be required to view the ECW as one tool among many, and "a weapon of need, not a tool of convenience." 2011 ECW Guidelines at 11. Effective policing requires that officers not depend on ECWs, or any type of force, "at the expense of diminishing the fundamental skills of communicating with subjects and de-escalating tense encounters." Id. at 12. b. FPD’s Use of Canines on Low-level, Unarmed Offenders Is Unreasonable FPD engages in a pattern of deploying canines to bite individuals when the articulated facts do not justify this significant use of force. The department’s own records demonstrate that, as with other types of force, canine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American. This disparity, in combination with the decision to deploy canines in circumstances with a seemingly low objective threat, suggests that race may play an impermissible role in officers’ decisions to deploy canines. FPD currently has four canines, each assigned to a particular canine officer. Under FPD policy, canines are to be used to locate and apprehend "dangerous offenders." FPD General Order 498.00. When offenders are hiding, the policy states, "handlers will not allow their K-9 to engage a suspect by biting if a lower level of force could reasonably be expected to control the suspect or allow for the apprehension." Id. at 498.06. The policy also permits the use of a canine, however, when any crime—not just a felony or violent crime—has been committed. Id. at 498.05. This permissiveness, combined with the absence of meaningful supervisory review and an apparent tendency to overstate the threat based on race, has resulted in avoidable dog bites to low-level offenders when other means of control were available. In December 2011, officers deployed a canine to bite an unarmed 14-year-old African-American boy who was waiting in an abandoned house for his friends. Four officers, including a 31 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 125 of 202 canine officer, responded to the house mid-morning after a caller reported that people had gone inside. Officers arrested one boy on the ground level. Describing the offense as a burglary in progress even though the facts showed that the only plausible offense was trespassing, the canine officer’s report stated that the dog located a second boy hiding in a storage closet under the stairs in the basement. The officer peeked into the space and saw the boy, who was 5’5" and 140 pounds, curled up in a ball, hiding. According to the officer, the boy would not show his hands despite being warned that the officer would use the dog. The officer then deployed the dog, which bit the boy’s arm, causing puncture wounds. According to the boy, with whom we spoke, he never hid in a storage space and he never heard any police warnings. He told us that he was waiting for his friends in the basement of the house, a vacant building where they would go when they skipped school. The boy approached the stairs when he heard footsteps on the upper level, thinking his friends had arrived. When he saw the dog at the top of the steps, he turned to run, but the dog quickly bit him on the ankle and then the thigh, causing him to fall to the floor. The dog was about to bite his face or neck but instead got his left arm, which the boy had raised to protect himself. FPD officers struck him while he was on the ground, one of them putting a boot on the side of his head. He recalled the officers laughing about the incident afterward. The lack of sufficient documentation or a supervisory force investigation prevents us from resolving which version of events is more accurate. However, even if the officer’s version of the force used were accurate, the use of the dog to bite the boy was unreasonable. Though described as a felony, the facts as described by the officer, and the boy, indicate that this was a trespass—kids hanging out in a vacant building. The officers had no factual predicate to believe the boy was armed. The offense reports document no attempt to glean useful information about the second boy from the first, who was quickly arrested. By the canine officer’s own account, he saw the boy in the closet and thus had the opportunity to assess the threat posed by this 5’5" 14 year old. Moreover, there were no exigent circumstances requiring apprehension by dog bite. Four officers were present and had control of the scene. There is a recurring pattern of officers claiming they had to use a canine to extract a suspect hiding in a closed space. The frequency with which this particular rationale is used to justify dog bites, alongside the conclusory language in the reports, provides cause for concern. In December 2012, a 16-year-old African-American boy suspected of stealing a car fled from an officer, jumped several fences, and ran into a vacant house. A second officer arrived with a canine, which reportedly located the suspect hiding in a closet. Without providing a warning outside the closet, the officer opened the door and sent in the dog, which bit the suspect and dragged him out by the legs. This force appears objectively unreasonable. See Kuha v. City of Minnetonka, 365 F.3d 590, 598 (8th Cir. 2004), abrogated on other grounds by Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 396 (8th Cir. 2007) (en banc) (holding that "a jury could find it objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender"). The first officer, who was also on the scene by this point, deployed his ECW against the suspect three times as the suspect struggled with the dog, which was still biting him. The offense reports provide only minimal explanation for why apprehension by dog bite was necessary. The pursuing officer claimed the suspect had "reached into the front section of his waist area," but the report does not 32 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 126 of 202 say that he relayed this information to the canine officer, and no weapon was found. Moreover, given the lack of a warning at the closet, the use of the dog and ECW at the same time, and the application of three ECW stuns in quick succession, the officers’ conduct raises the possibility that the force was applied in retaliation for leading officers on a chase. In November 2013, an officer deployed a canine to bite and detain a fleeing subject even though the officer knew the suspect was unarmed. The officer deemed the subject, an African-American male who was walking down the street, suspicious because he appeared to walk away when he saw the officer. The officer stopped him and frisked him, finding no weapons. The officer then ran his name for warrants. When the man heard the dispatcher say over the police radio that he had outstanding warrants—the report does not specify whether the warrants were for failing to appear in municipal court or to pay owed fines, or something more serious—he ran. The officer followed him and released his dog, which bit the man on both arms. The officer’s supervisor found the force justified because the officer released the dog "fearing that the subject was armed," even though the officer had already determined the man was unarmed. As these incidents demonstrate, FPD officers’ use of canines to bite people is frequently unreasonable. Officers command dogs to apprehend by biting even when multiple officers are present. They make no attempt to slow situations down, creating time to resolve the situation with lesser force. They appear to use canines not to counter a physical threat but to inflict punishment. They act as if every offender has a gun, justifying their decisions based on what might be possible rather than what the facts indicate is likely. Overall, FPD officers’ use of canines reflects a culture in which officers choose not to use the skills and tactics that could resolve a situation without injuries, and instead deploy tools and methods that are almost guaranteed to produce an injury of some type. FPD’s use of canines is part of its pattern of excessive force in violation of the Fourth Amendment. In addition, FPD’s use of dog bites only against African-American subjects is evidence of discriminatory policing in violation of the Fourteenth Amendment and other federal laws. c. FPD’s Use of Force Is Sometimes Retaliatory and Punitive Many FPD uses of force appear entirely punitive. Officers often use force in response to behavior that may be annoying or distasteful but does not pose a threat. The punitive use of force by officers is unconstitutional and, in many cases, criminal. See, e.g., Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1197 (9th Cir. 2002) ("The Due Process clause protects pretrial detainees from the use of excessive force that amounts to punishment."); see also 18 U.S.C. § 242 (making willful deprivation of rights under color of law, such as by excessive force, a federal felony punishable by up to ten years in prison). We reviewed many incidents in which it appeared that FPD officers used force not to counter a physical threat but to inflict punishment. The use of canines and ECWs, in particular, appear prone to such abuse by FPD. In April 2013, for example, a correctional officer deployed an ECW against an African-American prisoner, delivering a five-second shock, because the man had urinated out of his cell onto the jail floor. The correctional officer observed the man on his security camera feed inside the booking office. When the officer came out, some of the urine hit 33 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 127 of 202 his pant leg and, he said, almost caused him to slip. "Due to the possibility of contagion," the correctional officer claimed, he deployed his ECW "to cease the assault." The ECW prongs, however, both struck the prisoner in the back. The correctional officer’s claim that he deployed the ECW to stop the ongoing threat of urine is not credible, particularly given that the prisoner was in his locked cell with his back to the officer at the time the ECW was deployed. Using less-lethal force to counter urination, especially when done punitively as appears to be the case here, is unreasonable. See Shumate v. Cleveland, 483 F. App’x 112, 114 (6th Cir. 2012) (affirming denial of summary judgment on an excessive-force claim against an officer who punched a handcuffed arrestee in response to being spit on, when the officer could have protected himself from further spitting by putting the arrestee in the back of a patrol car and closing the door). d. FPD Use of Force Often Results from Unlawful Arrest and Officer Escalation A defining aspect of FPD’s pattern of excessive force is the extent to which force results from unlawful stops and arrests, and from officer escalation of incidents. Too often, officers overstep their authority by stopping individuals without reasonable suspicion and arresting without probable cause. Officers frequently compound the harm by using excessive force to effect the unlawful police action. Individuals encountering police under these circumstances are confused and surprised to find themselves being detained. They decline to stop or try to walk away, believing it within their rights to do so. They pull away incredulously, or respond with anger. Officers tend to respond to these reactions with force. In January 2013, a patrol sergeant stopped an African-American man after he saw the man talk to an individual in a truck and then walk away. The sergeant detained the man, although he did not articulate any reasonable suspicion that criminal activity was afoot. When the man declined to answer questions or submit to a frisk—which the sergeant sought to execute despite articulating no reason to believe the man was armed—the sergeant grabbed the man by the belt, drew his ECW, and ordered the man to comply. The man crossed his arms and objected that he had not done anything wrong. Video captured by the ECW’s built-in camera shows that the man made no aggressive movement toward the officer. The sergeant fired the ECW, applying a five-second cycle of electricity and causing the man to fall to the ground. The sergeant almost immediately applied the ECW again, which he later justified in his report by claiming that the man tried to stand up. The video makes clear, however, that the man never tried to stand—he only writhed in pain on the ground. The video also shows that the sergeant applied the ECW nearly continuously for 20 seconds, longer than represented in his report. The man was charged with Failure to Comply and Resisting Arrest, but no independent criminal violation. In a January 2014 incident, officers attempted to arrest a young African-American man for trespassing on his girlfriend’s grandparents’ property, even though the man had been invited into the home by the girlfriend. According to officers, he resisted arrest, requiring several officers to subdue him. Seven officers repeatedly struck and used their ECWs against the subject, who was 5’8" and 170 pounds. The young man suffered head lacerations with significant bleeding. In the above examples, force resulted from temporary detentions or attempted arrests for which officers lacked legal authority. Force at times appeared to be used as punishment for non-34 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 128 of 202 compliance with an order that lacked legal authority. Even where FPD officers have legal grounds to stop or arrest, however, they frequently take actions that ratchet up tensions and needlessly escalate the situation to the point that they feel force is necessary. One illustrative instance from October 2012 began as a purported check on a pedestrian’s well-being and ended with the man being taken to the ground, drive-stunned twice, and arrested for Manner of Walking in Roadway and Failure to Comply. In that case, an African-American man was walking after midnight in the outer lane of West Florissant Avenue when an officer asked him to stop. The officer reported that he believed the man might be under the influence of an "impairing substance." When the man, who was 5’5" and 135 pounds, kept walking, the officer grabbed his arm; when the man pulled away, the officer forced him to the ground. Then, for reasons not articulated in the officer’s report, the officer decided to handcuff the man, applying his ECW in drive-stun mode twice, reportedly because the man would not provide his hand for cuffing. The man was arrested but there is no indication in the report that he was in fact impaired or indeed doing anything other than walking down the street when approached by the officer. In November 2011, officers stopped a car for speeding. The two African-American women inside exited the car and vocally objected to the stop. They were told to get back in the car. When the woman in the passenger seat got out a second time, an officer announced she was under arrest for Failure to Comply. This decision escalated into a use of force. According to the officers, the woman swung her arms and legs, although apparently not at anyone, and then stiffened her body. An officer responded by drive-stunning her in the leg. The woman was charged with Failure to Comply and Resisting Arrest. As these examples demonstrate, a significant number of the documented use-of-force incidents involve charges of Failure to Comply and Resisting Arrest only. This means that officers who claim to act based on reasonable suspicion or probable cause of a crime either are wrong much of the time or do not have an adequate legal basis for many stops and arrests in the first place. Cf. Lewis v. City of New Orleans, 415 U.S. 130, 136 (1974) (Powell, J., concurring) (cautioning that an overbroad code ordinance "tends to be invoked only where there is no other valid basis for arresting an objectionable or suspicious person" and that the "opportunity for abuse... is self-evident"). This pattern is a telltale sign of officer escalation and a strong indicator that the use of force was avoidable. e. FPD Officers Have a Pattern of Resorting to Force Too Quickly When Interacting with Vulnerable Populations Another dimension of FPD’s pattern of unreasonable force is FPD’s overreliance on force when interacting with more vulnerable populations, such as people with mental health conditions or intellectual disabilities and juvenile students. i. Force Used Against People with Mental Health Conditions or Intellectual Disabilities The Fourth Amendment requires that an individual’s mental health condition or intellectual disability be considered when determining the reasonableness of an officer’s use of force. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (explaining in 35 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 129 of 202 case concerning use of force against a detainee with autism that "[t]he diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted"); see also Phillips v. Community Ins. Corp., 678 F.3d 513, 526 (7th Cir. 2012); Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001); Giannetti v. City of Stillwater, 216 F. App’x 756, 764 (10th Cir. 2007). This is because people with such disabilities "may be physically unable to comply with police commands." Phillips, 678 F.3d at 526. Our review indicates that FPD officers do not adequately consider the mental health or cognitive disability of those they suspect of wrongdoing when deciding whether to use force. Ferguson is currently in litigation against the estate of a man with mental illness who died in September 2011 after he had an ECW deployed against him three times for allegedly running toward an officer while swinging his fist. See Estate of Moore v. Ferguson Police Dep't, No. 4:14-cv-01443 (E.D. Mo. filed Aug. 19, 2014). The man had been running naked through the streets and pounding on cars that morning while yelling "I am Jesus." The Eighth Circuit recently considered a similar set of allegations in De Boise v. Taser Intern., Inc., 760 F.3d 892 (8th Cir. 2014). There, a man suffering from schizophrenia, who had run naked in and out of his house and claimed to be a god, died after officers used their ECWs against him multiple times because he would not stay on the ground. Id. at 897-98. Although the court resolved the case on qualified immunity grounds without deciding the excessive-force issue, the one judge who reached that issue opined that the allegations could be sufficient to establish a Fourth Amendment violation. Id. at 899-900 (Bye, J., dissenting). In 2013, FPD stopped a man running with a shopping cart because he seemed "suspicious." According to the file, the man was "obviously mentally handicapped." Officers took the man to the ground and attempted to arrest him for Failure to Comply after he refused to submit to a pat-down. In the officers’ view, the man resisted arrest by pulling his arms away. The officers drive-stunned him in the side of the neck. They charged him only with Failure to Comply and Resisting Arrest. In August 2011, officers used an ECW device against a man with diabetes who bit an EMT’s hand without breaking the skin. The man had been having seizures when he did not comply with officer commands. In August 2010, an officer responded to a call about an African-American man walking onto the highway and lying down on the pavement. Seeing that the man was sweating, acting jittery, and had dilated pupils, the officer believed he was on drugs. The man was cooperative at first but balked, pushing the officer back when the officer tried to handcuff him for safety reasons. The officer struck the man several times with his Asp® baton—including once in the head, a form of deadly force—causing significant bleeding. Two other officers then deployed their ECWs against the man a total of five times. Jail staff have also reacted to people with mental health conditions by resorting to greater force than necessary. For example, in July 2011, a correctional officer used an ECW to drive-stun an African-American male inmate three times after he tried to hang himself with material torn from a medical dressing and banged his head on the cell wall. That same month, a correctional officer used an ECW against an African-American inmate with bipolar disorder who broke the overhead glass light fixture and tried to use it to cut his wrists. According to the correctional officer, the glass was "safety glass" and could not be used to cut the skin. 36 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 130 of 202 These incidents indicate a pattern of insufficient sensitivity to, and training about, the limitations of those with mental health conditions or intellectual disabilities. Officers view mental illness as narcotic intoxication, or worse, willful defiance. They apply excessive force to such subjects, not accounting for the possibility that the subjects may not understand their commands or be able to comply with them. And they have been insufficiently trained on tactics that would minimize force when dealing with individuals who are in mental health crisis or who have intellectual disabilities. ii. Force Used Against Students FPD’s approach to policing impacts how its officers interact with students, as well, leading them to treat routine discipline issues as criminal matters and to use force when communication and de-escalation techniques would likely resolve the conflict. FPD stations two School Resource Officers in the Ferguson-Florissant School District,19 one at Ferguson Middle School and one at McCluer South-Berkeley High School. The stated mission of the SRO program, according to the memorandum of understanding between FPD and the school district, is to provide a safe and secure learning environment for students. But that agreement does not clearly define the SROs’ role or limit SRO involvement in cases of routine discipline or classroom management. Nor has FPD established such guidance for its SROs or provided officers with adequate training on engaging with youth in an educational setting. The result of these failures, combined with FPD’s culture of unreasonable enforcement actions more generally, is police action that is unreasonable for a school environment. For example, in November 2013, an SRO charged a ninth grade girl with several violations after she refused to follow his orders to walk to the principal’s office. The student and a classmate, both 15-year-old African-American girls, had gotten into a fight during class. When the officer responded, school staff had the two girls separated in a hallway. One refused the officer’s order to walk to the principal’s office, instead trying to push past staff toward the other girl. The officer pushed her backward toward a row of lockers and then announced that she was under arrest for Failure to Comply. Although the officer agreed not to handcuff her when she agreed to walk to the principals’ office, he forwarded charges of Failure to Comply, Resisting Arrest, and Peace Disturbance to the county family court. The other student was charged with Peace Disturbance. FPD officers respond to misbehavior common among students with arrest and force, rather than reserving arrest for cases involving safety threats. As one SRO told us, the arrests he made during the 2013-14 school year overwhelmingly involved minor offenses—Disorderly Conduct, Peace Disturbance, and Failure to Comply with instructions. In one case, an SRO decided to arrest a 14-year-old African-American student at the Ferguson Middle School for Failure to Comply when the student refused to leave the classroom after getting into a trivial argument with another student. The situation escalated, resulting in the student being drive-19 The Ferguson-Florissant School District serves over 11,000 students, about 80% of whom are African American. See Ferguson-Florissant District Demographic Data 2014 & 2015, Mo. Dep’t of Elementary & Secondary Educ., http://mcds.dese.mo.gov/guidedinquiry/Pages/District-and-School-Information.aspx (last visited Feb. 26, 2015). 37 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 131 of 202 stunned with an ECW in the classroom and the school seeking a 180-day suspension for the student. SROs’ propensity for arresting students demonstrates a lack of understanding of the negative consequences associated with such arrests. In fact, SROs told us that they viewed increased arrests in the schools as a positive result of their work. This perspective suggests a failure of training (including training in mental health, counseling, and the development of the teenage brain); a lack of priority given to de-escalation and conflict resolution; and insufficient appreciation for the negative educational and long-term outcomes that can result from treating disciplinary concerns as crimes and using force on students. See Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline, U.S. Dep’t of Justice & U.S. Dep’t of Education, http://www.justice.gov/crt/about/edu/documents/dcl.pdf (2014) (citing research and providing guidance to public schools on how to comply with federal nondiscrimination law). f. FPD’s Weak Oversight of Use of Force Reflects its Lack of Concern for Whether Officer Conduct Is Consistent with the Law or Promotes Police Legitimacy FPD’s use-of-force review system is particularly ineffectual. Force frequently is not reported. When it is, there is rarely any meaningful review. Supervisors do little to no investigation; either do not understand or choose not to follow FPD’s use-of-force policy in analyzing officer conduct; rarely correct officer misconduct when they find it; and do not see the patterns of abuse that are evident when viewing these incidents in the aggregate. While Chief Jackson implemented new department policies when he joined FPD in 2010, including on use-of-force reporting and review, these policies are routinely ignored. Under FPD General Order 410.00, when an officer uses or attempts to use any force, a supervisor must respond to the scene to investigate. The supervisor must complete a two-page use-of-force report assessing whether the use of force complied with FPD’s force policy. Additional forms are required for ECW uses and vehicle pursuits. According to policy and our interviews with Chief Jackson, a use-of-force packet is assembled—which should include the use-of-force report and supplemental forms, all police reports, any photographs, and any other supporting materials—and forwarded up the chain of command to the Chief. The force reporting and review system is intended to "help identify trends, improve training and officer safety, and provide timely information for the department addressing use-of-force issues with the public." FPD General Order 410.07. The policy even requires that a professional standards officer conduct an annual review of all force incidents. Id. These requirements are not adhered to in practice. Perhaps the greatest deviation from FPD’s use-of-force policies is that officers frequently do not report the force they use at all. There are many indications that this underreporting is widespread. First, we located information in FPD’s internal affairs files indicating instances of force that were not included in the force files provided by FPD. Second, in reviewing randomly selected reports from FPD’s records management system, we found several offense reports that described officers using force with no corresponding use-of-force report. Third, we found evidence that force had been used but not documented in officers’ workers compensation claims. Of the nine cases between 2010 and 2014 in which officers claimed injury sustained from using force on the job, three had no corresponding use-of-force paperwork. Fourth, the set of force investigations provided by FPD contains lengthy gaps, including six stretches of time ranging 38 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 132 of 202 from two to four months in which no incidents of force are reported. Otherwise, the files typically reflect between two and six force incidents per month. Fifth, we heard from community members about uses of force that do not appear within FPD’s records, and we learned of many uses of force that were never officially reported or investigated from reviewing emails between FPD supervisors. Finally, FPD’s force files reflect an overrepresentation of ECW uses—a type of force that creates a physical record (a spent ECW cartridge with discharged confetti) and that requires a separate form be filled out. It is much easier for officers to use physical blows and baton strikes without documenting them. Thus, the evidence indicates that a significant amount of force goes unreported within FPD. This in turn raises the possibility that the pattern of unreasonable force is even greater than we found. Even when force is reported, the force review process falls so short of FPD’s policy requirements that it is ineffective at improving officer safety or ensuring that force is used properly. First, and most significantly, supervisors almost never actually investigate force incidents. In almost every case, supervisors appear to view force investigations as a ministerial task, merely summarizing the involved officers’ version of events and sometimes relying on the officers’ offense report alone. The supervisory review starts and ends with the presumption that the officer’s version of events is truthful and that the force was reasonable. As a consequence, though contrary to policy, supervisors almost never interview non-police witnesses, such as the arrestee or any independent witnesses. They do not review critical evidence even when it is readily available. For example, a significant portion of the documented uses of force occurs at the Ferguson jail, which employs surveillance cameras to monitor the area. Yet FPD records provide no indication that a supervisor has ever sought to review the footage for a jail incident. Nor do supervisors examine ECW camera video, even though it is available in FPD’s newer model ECWs. Sometimes, supervisors provide no remarks on the use-of-force report, indicating simply, "see offense report." Our review found the record to be replete with examples of this lack of meaningful supervisory review of force. For example, the use-of-force report for a May 2013 incident states that a suspect claims he had an ECW deployed against him and that he was punched in the head and face. The supervisor concludes simply, "other than the drive stun, no use of force was performed by the officers." The report does not clarify what investigation the supervisor did, if any, to assess the suspect’s allegations, or how he determined that the allegations were false. Supervisors also fail to provide recommendations for how to ensure officer safety and minimize the need for force going forward. In January 2014, for instance, a correctional officer used force to subdue an inmate who tried to escape while the correctional officer was moving the inmate’s cellmate to another cell without assistance. The supervisor missed the opportunity to recommend that correctional officers not act alone in such risky situations. Second, supervisors either do not understand or choose not to follow FPD’s use-of-force policy. As discussed above, in many of the force incidents we reviewed, it is clear from the officers’ offense reports that the force used was, at the very least, contrary to FPD policy. Nonetheless, based on records provided by FPD, it appears that first-line supervisors and the command staff found all but one of the 151 incidents we reviewed to be within policy. This includes the instances of unreasonable ECW use discussed above. FPD policy advises that ECWs are to be used to "overcome active aggression or overt actions of assault." FPD General 39 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 133 of 202 Order 499.00. They are to be used to "avert[] a potentially injurious or dangerous situation," and never "punitively or for purposes of coercion." FPD General Order 499.04. Simply referring back to these policies should have made clear to supervisors that the many uses of ECWs against subjects who were merely argumentative or passively resistant violated policy. For example, in April 2014, an intoxicated jail detainee climbed up on the bars in his cell and refused to get down when ordered to by the arresting officer and the correctional officer on duty. The correctional officer then fired an ECW at him, from outside the closed cell door, striking the detainee in the chest and causing him to fall to the ground. In addition to being excessive, this force violated explicit FPD policy that "[p]roper consideration and care should be taken when deploying the X26 TASER on subjects who are in an elevated position or in other circumstance where a fall may cause substantial injury or death." FPD General Order 499.04. The reviewing supervisor deemed the use of force within policy. Supervisors seem to believe that any level of resistance justifies any level of force. They routinely rely on boilerplate language, such as the statement that the subject took "a fighting stance," to justify force. Such language is not specific enough to understand the specific behavior the officer encountered and thus to determine whether the officer’s response was reasonable. Indeed, a report from September 2010 shows how such terms may obscure what happened. In that case, the supervisor wrote that the subject "turned to [the officer] in a fighting stance" even though the officer’s report makes clear that he chased and tackled the subject as the subject fled. That particular use of force may have been reasonable, but the use-of-force report reveals how little attention supervisors give to their force investigations. Another common justification, frequently offered by officers who use ECWs to subdue individuals who do not readily put their hands behind their back after being put on the ground, is to claim that a subject’s hands were near his waist, where he might have a weapon. Supervisors tend to accept this justification without question. Third, the review process breaks down even further when officers at the sergeant level or above use force. Instead of reporting their use of force to an official higher up the chain, who could evaluate it objectively, they complete the use-of-force investigation themselves. We found several examples of supervisors investigating their own conduct. When force investigations are conducted by the very officers involved in the incidents, the department is less likely to identify policy and constitutional violations, and the public is less likely to trust the department’s commitment to policing itself. Fourth, the failure of supervisors to investigate and the absence of analysis from their use-of-force reports frustrate review up the chain of command. Lieutenants, the assigned captain, and the Police Chief typically receive at most a one-or two-paragraph summary from supervisors; no witness statements, photographs, or video footage that should have been obtained during the investigation is included. These reviewers are left to rely only on the offense report and the sergeant’s cursory summary. To take one example, 21 officers responded to a fight at the high school in March 2013, and several of them used force to take students into custody. FPD records contain only one offense report, which does not describe the actions of all officers who used force. The use-of-force report identifies the involved officers as "multiple" (without names) and provides only a one-paragraph summary stating that students "were grabbed, 40 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 134 of 202 handcuffed, and restrained using various techniques of control." The offense report reflects that officers collected video from the school’s security cameras, but the supervisor apparently never reviewed it. Further, while the offense report contains witness statements, those statements relate to the underlying fight, not the officer use of force, and there appear to be no statements from any of the 21 officers who responded to the fight. It is not possible for higher-level supervisors to adequately assess uses of force with so little information. In fact, although a use-of-force packet is supposed to include all related documents, in practice only the two-page use-of-force report, that is, the supervisor’s brief summary of the incident, goes to the Chief. In the example from the high school, then, the Chief would have known only that there was a fight at the school and that force was used—not which officers used force, what type of force was used, or what the students did to warrant the use of force. Offense reports are available in FPD’s records management system, but Chief Jackson told us he rarely retrieves them when reviewing uses of force. The Chief also told us that he has never overturned a supervisor’s determination of whether a use of force fell within FPD policy. Finally, FPD does not perform any comprehensive review of force incidents sufficient to detect patterns of misconduct by a particular officer or unit, or patterns regarding a particular type of force. Indeed, FPD does not keep records in a manner that would allow for such a review. Within FPD’s paper storage system, the two-page use-of-force reports (which are usually handwritten) are kept separately from all other documentation, including ECW and pursuit forms for the same incidents. Offense reports are attached to some use-of-force reports but not others. Some use-of-force reports have been removed from FPD’s set of force files because the incidents became the subjects of an internal investigation or a lawsuit. As a consequence, when FPD provided us what it considers to be its force files—which, as described above, we have reason to believe do not capture all actual force incidents—a majority of those files were missing a critical document, such as an offense report, ECW report, or the use-of-force report itself. We had to make repeated requests for documents to construct force files amenable to fair review. There were some documents that FPD was unable to locate, even after repeated requests. With its records incomplete and scattered, the department is unable to implement an early intervention system to identify officers who tend to use excessive force or the need for more training or better equipment—goals explicitly set out by FPD policy. It appears that no annual review of force incidents is conducted, as required by FPD General Order 410.07; indeed, a meaningful annual audit would be impossible. These recordkeeping problems also explain why Chief Jackson told us he could not remember ever imposing discipline for an improper use of force or ordering further training based on force problems. These deficiencies in use-of-force review can have serious consequences. They make it less likely that officers will be held accountable for excessive force and more likely that constitutional violations will occur. They create potentially devastating liability for the City for failing to put in place systems to ensure officers operate within the bounds of the law. And they result in a police department that does not give its officers the supervision they need to do their jobs safely, effectively, and constitutionally. 41 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 135 of 202 B. Ferguson’s Municipal Court Practices The Ferguson municipal court handles most charges brought by FPD, and does so not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue. The impact that revenue concerns have on court operations undermines the court’s role as a fair and impartial judicial body.20 Our investigation has uncovered substantial evidence that the court’s procedures are constitutionally deficient and function to impede a person’s ability to challenge or resolve a municipal charge, resulting in unnecessarily prolonged cases and an increased likelihood of running afoul of court requirements. At the same time, the court imposes severe penalties when a defendant fails to meet court requirements, including added fines and fees and arrest warrants that are unnecessary and run counter to public safety. These practices both reflect and reinforce an approach to law enforcement in Ferguson that violates the Constitution and undermines police legitimacy and community trust. Ferguson’s municipal court practices combine to cause significant harm to many individuals who have cases pending before the court. Our investigation has found overwhelming evidence of minor municipal code violations resulting in multiple arrests, jail time, and payments that exceed the cost of the original ticket many times over. One woman, discussed above, received two parking tickets for a single violation in 2007 that then totaled $151 plus fees. Over seven years later, she still owed Ferguson $541—after already paying $550 in fines and fees, having multiple arrest warrants issued against her, and being arrested and jailed on several occasions. Another woman told us that when she went to court to try to pay $100 on a $600 outstanding balance, the Court Clerk refused to take the partial payment, even though the woman explained that she was a single mother and could not afford to pay more that month. A 90-year-old man had a warrant issued for his arrest after he failed to timely pay the five citations FPD issued to him during a single traffic stop in 2013. An 83-year-old man had a warrant issued against him when he failed to timely resolve his Derelict Auto violation. A 67-year-old woman told us she was stopped and arrested by a Ferguson police officer for an outstanding warrant for failure to pay a trash-removal citation. She did not know about the warrant until her arrest, and the court ultimately charged her $1,000 in fines, which she continues to pay off in $100 monthly increments despite being on a limited, fixed income. We have heard similar stories from dozens of other individuals and have reviewed court records documenting many additional instances of similarly harsh penalties, often for relatively minor violations. Our review of police and court records suggests that much of the harm of Ferguson’s law enforcement practices in recent years is attributable to the court’s routine use of arrest warrants to secure collection and compliance when a person misses a required court appearance or payment. In a case involving a moving violation, procedural failures also result in the suspension of the defendant’s license. And, until recently, the court regularly imposed a separate Failure to Appear charge for missed appearances and payments; that charge resulted in an additional fine in the amount of $75.50, plus $26.50 in court costs. See Ferguson Mun. Code § 13-58 (repealed Sept. 23, 2014). During the last three years, the court imposed roughly one Failure to Appear charge per every two citations or summonses issued by FPD. Since at least 20 The influence of revenue on the court, described both in Part II and in Part III.B. of this Report, may itself be unlawful. See Ward v. Vill. of Monroeville, 409 U.S. 57, 58-62 (1972) (finding a violation of the due process right to a fair and impartial trial where a town mayor served as judge and was also responsible for the town’s finances, which were substantially dependent on "fines, forfeitures, costs, and fees" collected by the court). 42 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 136 of 202 2010, the court has collected more revenue for Failure to Appear charges than for any other charge. This includes $442,901 in fines for Failure to Appear violations in 2013, which comprised 24% of the total revenue the court collected that year. While the City Council repealed the Failure to Appear ordinance in September 2014, many people continue to owe fines and fees stemming from that charge. And the court continues to issue arrest warrants in every case where that charge previously would have been applied. License suspension practices are similarly unchanged. Once issued, arrest warrants can, and frequently do, lead to arrest and time in jail, despite the fact that the underlying offense did not result in a penalty of imprisonment.21 Thus, while the municipal court does not generally deem the code violations that come before it as jail-worthy, it routinely views the failure to appear in court to remit payment to the City as jail-worthy, and commonly issues warrants to arrest individuals who have failed to make timely payment. Similarly, while the municipal court does not have any authority to impose a fine of over $1,000 for any offense, it is not uncommon for individuals to pay more than this amount to the City of Ferguson—in forfeited bond payments, additional Failure to Appear charges, and added court fees—for what may have begun as a simple code violation. In this way, the penalties that the court imposes are driven not by public safety needs, but by financial interests. And despite the harm imposed by these needless penalties, until recently, the City and court did little to respond to the increasing frequency of Failure to Appear charges, and in many respects made court practices more opaque and difficult to navigate. 1. Court Practices Impose Substantial and Unnecessary Barriers to the Challenge or Resolution of Municipal Code Violations It is a hallmark of due process that individuals are entitled to adequate notice of the allegations made against them and to a meaningful opportunity to be heard. See Cole v. Arkansas, 333 U.S. 196, 201 (1948); see also Ward v. Vill. of Monroeville, 409 U.S. 57, 58-62 (1972) (applying due process requirements to case adjudicated by municipal traffic court). As documented below, however, Ferguson municipal court rules and procedures often fail to provide these basic protections, imposing unnecessary barriers to resolving a citation or summons and thus increasing the likelihood of incurring the severe penalties that result if a code violation is not quickly resolved. We have concerns not only about the obstacles to resolving a charge even when an individual chooses not to contest it, but also about the trial processes that apply in the rare occasion that a person does attempt to challenge a charge. While it is "axiomatic that a fair trial in a fair tribunal is a basic requirement of due process," Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 876 (2009), the adjudicative tribunal provided by the Ferguson municipal court appears deficient in many respects.22 Attempts to raise legal claims are met with retaliatory conduct. In an August 2012 email exchange, for instance, the Court Clerk asked what the 21 As with many of the problematic court practices that we identify in this report, other municipalities in St. Louis County also have imposed a separate Failure to Appear charge, fine, and fee for missed court appearances and payments. Many continue to do so. 22 As discussed in Part II of this report, City officials have acknowledged several of these procedural deficiencies. In 2012, a City Councilmember, citing specific examples, urged against reappointing Judge Brockmeyer because he "often times does not listen to the testimony, does not review the reports or the criminal history of defendants, and doesn’t let all the pertinent witnesses testify before rendering a verdict." 43 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 137 of 202 Prosecuting Attorney does when an attorney appears in a red light camera case, and the Prosecuting Attorney responded: "I usually dismiss them if the attorney merely requests a recommendation. If the attorney goes off on all of the constitutional stuff, then I tell the attorney to come... and argue in front [of] the judge—after that, his client can pay the ticket." We have found evidence of similar adverse action taken against litigants attempting to fulsomely argue a case at trial. The man discussed above who was cited after allowing his child to urinate in a bush attempted to challenge his charges. The man retained counsel who, during trial, was repeatedly interrupted by the court during his cross-examination of the officer. When the attorney objected to the interruptions, the judge told him that, if he continued on this path, "I will hold you in contempt and I will incarcerate you," which, as discussed below, the court has done in the past to others appearing before it. The attorney told us that, believing no line of questioning would alter the outcome, he tempered his defense so as not to be jailed. Notably, at that trial, even though the testifying officer had previously been found untruthful during an official FPD investigation, the prosecuting attorney presented his testimony without informing defendant of that fact, and the court credited that testimony.23 The evidence thus suggests substantial deficiencies in the manner in which the court conducts trials. Even where defendants opt not to challenge their charges, a number of court processes make resolving a case exceedingly difficult. City officials and FPD officers we spoke with nearly uniformly asserted that individuals’ experiences when they become embroiled in Ferguson’s municipal code enforcement are due not to any failings in Ferguson’s law enforcement practices, but rather to those individuals’ lack of "personal responsibility." But these statements ignore the barriers to resolving a case that court practices impose, including: 1) a lack of transparency regarding rights and responsibilities; 2) requiring in-person appearance to resolve most municipal charges; 3) policies that exacerbate the harms of Missouri’s law requiring license suspension where a person fails to appear on a moving violation charge; 4) basic access deficiencies that frustrate a person’s ability to resolve even those charges that do not require in-court appearance; and 5) legally inadequate fine assessment methods that do not appropriately consider a person’s ability to pay and do not provide alternatives to fines for those living in or near poverty. Together, these barriers impose considerable hardship. We have heard repeated reports, and found evidence in court records, of people appearing in court many times— 23 This finding of untruthfulness by a police officer constitutes impeachment evidence that must be disclosed in any trial in which the officer testifies for the City. Under the Fourteenth Amendment, the failure to disclose evidence that is "favorable to an accused" violates due process "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). This duty applies to impeachment evidence, United States v. Bagley, 473 U.S. 667, 676 (1985), and it applies even if the defendant does not request the evidence, United States v. Agurs, 427 U.S. 97, 107 (1976). The duty encompasses, furthermore, information that should be known to the prosecutor, including information known solely by the police department. Kyles v. Whitley, 514 U.S. 419, 437 (1995). This constitutional duty to disclose appears to extend to municipal court cases, which can result in jail terms of up to three months under Section 29-2 of Ferguson’s municipal code. See City of Kansas City v. Oxley, 579 S.W.2d 113, 114 (Mo. 1979) (en banc) (holding that the due process standard of proof beyond a reasonable doubt applied in a municipal court speeding case because "the violation has criminal overtones"); see also City of Cape Girardeau v. Jones, 725 S.W.2d 904, 907-09 (Mo. Ct. App. 1987) (explaining that reasonable doubt standard applied to municipal trespass prosecution because municipal ordinance violations are "quasi-criminal," and reversing two convictions based on privilege against self-incrimination). We are aware of at least two cases, from January 2015, in which the City called this officer as a witness without disclosing the finding of untruthfulness to the defense. 44 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 138 of 202 in some instances on more than ten occasions—to try to resolve a case but being unable to do so, and subsequently having additional fines, fees, and arrest warrants issued against them. a. Court Practices and Procedural Deficiencies Create a Lack of Transparency Regarding Rights and Responsibilities It is often difficult for an individual who receives a municipal citation or summons in Ferguson to know how much is owed, where and how to pay the ticket, what the options for payment are, what rights the individual has, and what the consequences are for various actions or oversights. The initial information provided to people who are cited for violating Ferguson’s municipal code is often incomplete or inconsistent. Communication with municipal court defendants is haphazard and known by the court to be unreliable. And the court’s procedures and operations are ambiguous, are not written down, and are not transparent or even available to the public on the court’s website or elsewhere. The rules and procedures of the court are difficult for the public to discern. Aside from a small number of exceptions, the Municipal Judge issues rules of practice and procedure verbally and on an ad hoc basis. Until recently, on the rare occasion that the Judge issued a written order that altered court practices, those orders were not distributed broadly to court and other FPD officials whose actions they affect and were not readily accessible to the public. Further, Ferguson, unlike other courts in the region, does not include any information about its operations on its website other than inaccurate instructions about how to make payment.24 Court staff acknowledged during our investigation that the public would benefit from increased information about how to resolve cases and about court practices and procedures. Yet neither the court nor other City officials have undertaken efforts to make court operations more transparent in order to ensure that litigants understand their rights or court procedures, or to enable the public to assess whether the court is operating in a fair manner. Current court practices fail to provide adequate information even to those who are charged with a municipal violation. The lack of clarity about a person’s rights and responsibilities often begins from the moment a person is issued a citation. For some offenses, FPD uses state of Missouri uniform citations, and typically indicates on the ticket the assigned court date for the offense. Many times, however, FPD officers omit critical information from the citation, which makes it impossible for a person to determine the specific nature of the offense charged, the amount of the fine owed, or whether a court appearance is required or some alternative method of payment is available. In some cases, citations fail to indicate the offense charged altogether; in November 2013, for instance, court staff wrote FPD patrol to "see what [a] ticket was for" because it "does not have a charge on it." In other cases, a ticket will indicate a charge but omit other crucial information. For example, speeding tickets often fail to indicate the alleged speed observed, even though both the fine owed and whether a court appearance is mandatory depends upon the specific speed alleged. Evidence shows that in some of these cases, 24 See City Courts, City of Ferguson, http://www.fergusoncity.com/60/The-City-Of-Ferguson-Municipal-Courts (last visited Feb. 26, 2015). By contrast, the neighboring municipality of Normandy operates a court website with an entire page containing information regarding fine due dates, methods of payment, and different payment options, including the availability of payment plans for those who cannot afford to pay a fine in full. See How Do I Pay a Ticket/Fine?, City of Normandy, http://www.cityofnormandy.gov/index.aspx?NID=570 (last visited Feb. 26, 2015). 45 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 139 of 202 a person has appeared in court but been unable to resolve the citation because of the missing information. In June 2014, for instance, a court clerk wrote to an FPD officer: "The above ticket... does not have a speed in it. The guy came in and we had to send him away. Can you email me the speed when you get time." Separate and apart from the difficulties these omissions create for people, the fact that the court staff routinely add the speed to tickets weeks after they are issued raises concerns about the accuracy and reliability of officers’ assertions in official records. We have also found evidence that in issuing citations, FPD officers frequently provide people with incorrect information about the date and time of their assigned court session. In November 2012, court staff emailed the two patrol lieutenants asking: "Would you please be so kind to tell your squads to check their ct. dates and times. We are getting quite a few wrong dates and times [on tickets]." In December 2012, a court clerk emailed an FPD officer to inform him that while he had been putting 6:00 p.m. on his citations that month, the scheduled court session was actually a morning session. More recently, in March 2014, an officer wrote a court clerk because the officer had issued a citation that listed the court date as ten days later than the actual court date assigned. Some of these emails indicate that court staff planned to send a letter to the person who was cited. As noted below, however, such letters often are returned to the court as undeliverable. It is thus unsurprising that, on one occasion, a City employee who works in the building where court was held wrote the Court Clerk to tell her that "[a] few people stopped by tonight looking for court and I referred them to you." The email notes that one person insisted on providing her information so the employee could "vouch for her appearance for Night Court." The email does not identify any other individual who showed up for court that night, nor does it state that any steps were taken to ensure that those assigned the incorrect court date did not have Failure to Appear charges and fines imposed, arrest warrants issued against them, or their licenses suspended. Even if the citation a person receives has been properly filled out, it is often unclear whether a court appearance is required or if some other method of resolving a case is available. Ferguson has a schedule that establishes fixed fines for a limited number of violations that do not require court appearance. Nonetheless, this list—called the "TVB" or "Traffic Violations Bureau" list—is incomplete and does not provide sufficient clarity regarding whether a court appearance is mandatory. Court staff members have themselves informed us that there are certain offenses for which they will sometimes require a court appearance and other times not, depending on their own assessment of whether an appearance should be required in a given case. That information, however, is not reliably communicated to the person who has been given the citation. Although the City of Ferguson frequently bears responsibility for giving people misinformation about when they must appear in court, Ferguson does little to ensure that persons who have missed a court date are properly notified of the consequences that result from an additional missed appearance, such as arrest or losing their driver’s licenses, or that those consequences have already been levied. If a person misses a required appearance, it is the purported practice of court staff to send a letter that sets a new court date and informs the defendant that missing the next appearance will result in an arrest warrant being issued. But court staff do not even claim to send these letters before issuing warrants if an individual is on a payment plan and misses a payment, or if a person already has an outstanding warrant on a 46 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 140 of 202 different offense; in those cases, the court issues a warrant after a single missed payment or appearance. Further, even for the cases in which the court says it does send such letters prior to issuing a warrant, court records suggest that those letters are often not actually sent. Even where a letter is sent, some are returned to court, and court staff told us that in those cases, they make no additional effort to notify the individual of the new court date or the consequences of non-appearance. Court staff and staff from other municipal courts have informed us that defendants in poverty are more likely not to receive such a letter from court because they frequently change residence. If an individual misses a second court date, an arrest warrant is issued, without any confirmation that the individual received notice of that second court date. In the past, when the court issued a warrant it would also send notice to the individual that a warrant was issued against them and telling them to appear at the police department to resolve the matter. This notice did not provide the basis of the arrest warrant or describe how it might be resolved. In any case, Ferguson stopped providing even this incomplete notice in 2012. In explaining the decision to stop sending this warrant notice, the Court Clerk wrote in a June 2011 email to Chief Jackson that "this will save the cost of warrant cards and postage" and "it is not necessary to send out these cards." Some court employees, however, told us that the notice letter had been useful—at least for those who received it—and that they believe it should still be sent. That the court discontinued what little notice it was providing to people in advance of issuing a warrant is particularly troubling given that, during our investigation, we spoke with several individuals who were arrested without ever knowing that a warrant was outstanding.25 Once a warrant is issued, a person can clear the warrant by appearing at the court window in the police department and paying a pre-determined bond. However, that process is itself not communicated to the public and, in any case, is only useful if an individual knows there is a warrant for her or his arrest. Court clerks told us that in some cases they deem sympathetic in their own discretion, they will cancel the warrant without a bond. Further, it appears that if a person is aware of an outstanding warrant but believes that the warrant was issued in error, that person can petition the Municipal Judge to cancel the warrant only after the bond is paid in full. If a person cannot afford to pay the bond, there is no opportunity to seek recourse from the court. If a person is arrested on an outstanding warrant—or as the result of an encounter with FPD—it is often difficult to secure release with a bond payment, not only because of the inordinately high bond amounts discussed below, but also because of procedural obstacles. In practice, bond procedures depart from those articulated in official policy, and are arbitrary and confusing. FPD staff have told us that correctional officers have at times tried to find a warrant in the court’s files to determine the bond amount owed, but have been unable to do so. This is unsurprising given the existence of what has been described to us as "drawers and drawers of warrants." In some cases, people have attempted to pay a bond to secure the release of a family 25 Prior to September 2014, a second missed court appearance (or a single missed payment) would result not only in a warrant being issued, but also the imposition of an additional Failure to Appear charge. This charge was imposed automatically. It does not appear that there was any attempt by the court to inform individuals that a failure to appear could be excused upon a showing of good cause, or to provide individuals with an opportunity to make such a showing. Additionally, just as the court does not currently send any notice informing a defendant that an arrest warrant has been issued, the court did not send any notice that this additional Failure to Appear charge had been brought. 47 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 141 of 202 member in FPD custody, but were not even seen by FPD staff. On one occasion, an FPD staff member reported to an FPD captain that a person "came to the station last night and waited to post bond for [a detainee], from 1:00 until 3:30. No one ever came up to get her money and no one informed her that she was going to have to wait that long." b. Needlessly Requiring In-Court Appearances for Most Code Violations Imposes Unnecessary Obstacles to Resolving Cases Ferguson requires far more defendants to appear in court than is required under state law. Under Missouri Supreme Court rules, there is a short list of violations that require the violator’s appearance in court: any violation resulting in personal injury or property damage; driving while intoxicated; driving without a proper license; and attempting to elude a police officer. See Mo. Sup. Ct. R. 37.49. The municipal judge of each court has the discretion to expand this list of "must appears," and Ferguson’s municipal court has expanded it exponentially: of 376 actively charged municipal offenses, court staff informed us that approximately 229 typically require an appearance in court before the fine can be paid, including Dog Creating Nuisance, Equipment Violations, No Passing Zone, Housing – Overgrown Vegetation, and Failure to Remove Leaf Debris. Ferguson requires these court appearances regardless of whether the individual is contesting the charges. Requiring an individual to appear at a specific place and time to pay a citation makes it far more likely that the individual will fail to appear or pay the citation on time, quickly resulting, in Ferguson, in an arrest warrant and a suspended license. Even setting aside the fact that people often receive inaccurate information about when they must appear in court, the in-person appearance requirement imposes particular difficulties on low-wage workers, single parents, and those with limited access to reliable transportation. Requiring an individual to appear in court also imposes particular burdens on those with jobs that have set hours that may conflict with an assigned court session. Court sessions are sometimes set during the workday and sometimes in the early evening. Additionally, while court dates can be set for several months after the citation was issued, in some cases they can also be issued as early as a week after a citation is received. For example, court staff have instructed FPD officers that derelict auto violations must be set for the "very next court date even if it is just a week... or so away." This can add an additional obstacle for those with firmly established employment schedules. There are also historical reasons, of which the City is well-aware, that many Ferguson residents may not appear in court. Some individuals fear that if they cannot immediately pay the fines they owe, they will be arrested and sent to jail. Ferguson court staff members told us that they believe the high number of missed court appearances in their court is attributable, in part, to this popular belief. These fears are well founded. While Judge Brockmeyer has told us that he has never sentenced someone to jail time for being unable to pay a fine, we have found evidence that the Judge has held people appearing in court for contempt on account of their unwillingness to answer questions and sentenced those individuals to jail time. In December 2013, the FPD officer assigned to provide security at a court session directly emailed the City Manager to provide notice that "Judge Brockmeyer ordered [a defendant] arrested tonight after [he] refused to answer any questions and told the Judge that he had no jurisdiction. This happened on two separate occasions and with the second occasion when [the defendant] continued with his refusal 48 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 142 of 202 to answer the Judge, he was order[ed] to be arrested and held for 10 days."26 We also spoke with a woman who told us that, after asking questions in court, FPD officers arrested her for Contempt of Court at the instructions of the Court Clerk. Moreover, we have also received a report of an FPD officer arresting an individual at court for an outstanding warrant. In that instance, which occurred in April 2014, the individual—who was in court to make a fine payment—was approached by an FPD officer, asked to step outside of the court session, and was immediately arrested. In addition, as Ferguson’s Municipal Judge confirmed, it is not uncommon for him to add charges and assess additional fines when a defendant challenges the citation that brought the defendant into court. Appearing in court in Ferguson also requires waits that can stretch into hours, sometimes outdoors in inclement weather. Many individuals report being treated dismissively, or worse, by court staff and the Municipal Judge. Further, as Ferguson officials have told us, many people have experience with the numerous other municipal courts in St. Louis County that informs individuals’ expectations about the Ferguson municipal court. Our investigation shows that other municipalities in the area have engaged in a number of practices that have the effect of discouraging people from attending court sessions. For instance, court clerks from other municipalities have told us that they have seen judges order people arrested if they appear in court with an outstanding warrant but are unable to pay the fine owed or post the bond amount listed on the warrant. Indeed, one municipal judge from a neighboring municipality told us that this practice has resulted in what he believes to be a widespread belief that those who attend court but cannot pay will be immediately arrested—a view that municipal judge says is "entirely the municipal courts’ fault" for perpetuating because they have not taken steps to correct it. Recent reports have documented other problematic practices. For example, a June 2014 letter from Presiding Circuit Court Judge Maura McShane to municipal court judges in the region discussed troubling and possibly unlawful practices of municipal courts in St. Louis County that served to prevent the public from attending court sessions. These practices included not allowing children in court. Indeed, as late as October 2014, the municipal court website in the neighboring municipality of Bel Ridge— where Judge Brockmeyer serves as prosecutor—stated that children are not allowed in court. While it appears that Ferguson’s court has always allowed children, we talked with people who assumed it did not because of their experiences in other courts. One man told us he was aggressively questioned by FPD officers after he left his child outside court with a friend because of this assumption. Thus, even though Ferguson might not engage in some of these practices, and while it may even be the case that other municipalities have themselves implemented reforms, the long history of these practices continues to shape community members’ views of what might happen to them if they attend court. Court officials have told us that Ferguson’s expansive list of "must appear" offenses is not driven by any public safety need. That is underscored by the fact that, in some cases, attorneys are allowed to resolve such offenses over the phone without making any appearance in 26 The email reports that the defendant, a black male, was booked into jail. This email does not provide the full context of the circumstances that led to the 10-day jail sentence and further information is required to assess the appropriateness of that order. Nonetheless, the email suggests that the court jailed a defendant for refusing to answer questions, which raises significant Fifth Amendment concerns. There is also no indication as to whether the defendant was represented or, if not, was allowed or afforded representation to defend against the contempt charge and 10-day sentence. 49 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 143 of 202 court. Nonetheless, despite the acknowledged obstacles to appearing in person in court and the lack of any articulated need to appear in court in all but a few instances, Ferguson has taken few, if any, steps to reduce the number of cases that require a court appearance. c. Driver’s License Suspensions Mandated by State Law and Unnecessarily Prolonged by Ferguson Make It Difficult to Resolve a Case and Impose Substantial Hardship For many who have already had a warrant issued against them for failing to either appear or make a required payment, appearing in court is made especially difficult by the fact that their warrants likely resulted in the suspension of their driver’s licenses. Pursuant to Missouri state law, anyone who fails to pay a traffic citation for a moving violation on time, or who fails to appear in court regarding a moving traffic violation, has his or her driver’s license suspended. Mo. Rev. Stat. § 302.341.1. Thus, by virtue of having their licenses suspended, those who have already missed a required court appearance are more likely to fail to meet subsequent court obligations if they require physically appearing in court—fostering a cycle of missed appearances that is difficult to end. That is particularly so given what some City officials from Ferguson and surrounding communities have called substandard public transportation options. We spoke with one woman who had her license suspended because she received a Failure to Appear charge in Ferguson and so had to rely on a friend to drive her to court. When her friend canceled, she had no other means of getting to court on time, missed court, and had another Failure to Appear charge and arrest warrant issued against her—adding to the charges that required resolution before her license could be reinstated.27 To be clear, responsibility for the hardship imposed by automatically suspending a person’s license for failing to appear in a traffic case rests largely with this state law. Notably, however, Ferguson’s own discretionary practices amplify and prolong that law’s impact. A temporary suspension can be lifted with a compliance letter from the municipal court, but the Ferguson municipal court does not issue compliance letters unless a person has satisfied the entire fine pending on the charge that caused the suspension. This rule is not mandated by state law, which instead provides a municipality with the authority to decide when to issue a compliance letter. See Mo. Rev. Stat. § 302.341.1 ("Such suspension shall remain in effect until the court with the subject pending charge requests setting aside the noncompliance suspension pending final disposition."). Indeed, Ferguson court staff told us that they will issue compliance letters before full payment has been made for cases that they determine, in their unguided discretion, to be sympathetic. This rule and the Ferguson practices that magnify its impact underscore how missed court appearances can have broad ramifications for individuals’ ability to maintain a job and care for their families. We spoke with one woman who received three citations during a single incident in 2013 in which she pulled to the side of the road to allow a police car to pass, was confronted by the officer for doing so, and was cited for obstructing traffic, failing to signal, and not wearing a seatbelt. The woman appeared in court to challenge those citations, was told a new trial date would be mailed to her, and instead received notice from the Missouri Department of Revenue 27 While Missouri provides a process to secure a temporary waiver of a license suspension, we have heard from many that this process can be difficult and, in any case, is only available in certain circumstances. 50 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 144 of 202 several months later that her license was suspended. Upon informing the Court Clerk that she never received notice of her court date, the Clerk told her the trial date had passed two weeks earlier and that there was now a warrant for her arrest pending.28 Given that the woman’s license was suspended only two weeks after her trial date, it appears the court did not send a warning letter before entering a warrant and suspending the license, contrary to purported policy. Court records likewise do not indicate a letter being sent. The woman asked to see the Municipal Judge to explain the situation, but court staff informed her that she could only see the Judge if she was issued a new court date and that she would only be issued a new court date if she paid her $200 bond. With no opportunity to further petition the court, she wrote to Mayor Knowles about her situation, stating: Although I feel I have been harassed, wronged and unjustly done by Ferguson... [w]hat I am upset and concerned about is my driver’s license being suspended. I was told that I may not be able to [be] reinstate[d] until the tickets are taken care of. I am a hard working mother of two children and I cannot by any means take care of my family or work with my license being suspended and being unable to drive. I have to have [a] valid license to keep my job because I transport clients that I work with not to mention I drive my children back and forth to school, practices and rehearsals on a daily basis. I am writing this letter because no one has been able to help me and I am really hoping that I can get some help getting this issue resolved expediently. It appears that, at the Mayor’s request, the court entered "Not Guilty" dispositions on her cases, several months after they first resulted in the license suspension. d. Court Operations Impose Obstacles to Resolving Even Those Offenses that Do Not Require In-Person Court Appearance The limited number of code violations that do not require an in-person court appearance can likewise be difficult to resolve, even if a person can afford to do so. The court has accepted mailed payments for some time and has recently begun to accept online payments, but the court’s website suggests that in-person payment is required and provides no information that payment online or by mail is an option. As a result, many people try to remit payment to the court window within the police department. But community members have informed us that the court window often closes earlier than the posted hours indicate. Indeed, during our investigation, we observed the court window close at 4:30 p.m. on days where an evening court session was not being held, despite the fact that both the Ferguson City website and the Missouri Courts website state that the window closes at 5:00 p.m.29 On one such occasion, we observed two different sets 28 By initiating the license suspension procedure after a single missed appearance and without first providing notice or an opportunity to remedy the missed appearance, the court appears to have violated Missouri law. See Mo. Rev. Stat. § 302.341.1 (providing that after a missed appearance associated with a moving violation, a court "shall within ten days... inform the defendant by ordinary mail at the last address shown on the court records that the court will order the director of revenue to suspend the defendant’s driving privileges if the charges are not disposed of and fully paid within thirty days from the date of mailing"). 29 See City Courts, City of Ferguson, http://www.fergusoncity.com/60/The-City-Of-Ferguson-Municipal-Courts (last visited Feb. 26, 2015); Ferguson Municipal Court, Your Missouri Courts, http://www.courts.mo.gov/page.jsp?id=8862 (last visited Feb. 26, 2015). 51 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 145 of 202 of people arrive after 4:30 p.m. but before 5:00 p.m. One man told us his ticket payment was due that day. Another woman arrived in the rain with her small child, unsuccessfully attempted to call someone to the window, and left. Even when the court window is technically open, we have seen people standing at the window waiting for a response to their knocks for long periods of time, sometimes in inclement weather—even as court staff sat inside the police department tending to their normal duties. As noted above, documents we reviewed showed that even where individuals are successful in talking with court staff about a citation, FPD-issued citations are sometimes so deficient that court staff are unable to determine what the fine, or even charge, is supposed to be. Evidence also shows that court staff have at times been unable to even find a person’s case file, often because the FPD officer who issued the ticket failed to properly file a copy. In these cases, a person is left unable to resolve her or his citation. e. High Fines, Coupled with Legally Inadequate Ability-to-Pay Determinations and Insufficient Alternatives to Immediate Payment, Impose a Significant Burden on People Living In or Near Poverty It is common for a single traffic stop or other encounter with FPD to give rise to fines in amounts that a person living in poverty is unable to immediately pay. This fact is attributable in part to FPD’s practice of issuing multiple citations—frequently three or more—on a single stop. This fact is also attributable to the fine assessment practices of the Ferguson municipal court, including not only the high fine amounts imposed, but also the inadequate process available for those who cannot afford to pay a fine. Even setting aside cases where additional fines and fees were imposed for Failure to Appear violations, our investigation found instances in which the court charged $302 for a single Manner of Walking violation; $427 for a single Peace Disturbance violation; $531 for High Grass and Weeds; $777 for Resisting Arrest; and $792 for Failure to Obey, and $527 for Failure to Comply, which officers appear to use interchangeably. For many, the hardship of the fine amounts imposed is exacerbated by the fact that they owe similar fines in other, neighboring municipalities. We spoke with one woman who, in addition to owing several hundred dollars in fines to Ferguson, also owed fines to the municipal courts in Jennings and Edmundson. In total, she owed over $2,500 in fines and fees, even after already making over $1,000 in payments and clearing cases in several other municipalities. This woman’s case is not unique. We have heard reports from many individuals and even City officials that, in light of the large number of municipalities in the area immediately surrounding Ferguson, most of which have their own police departments and municipal courts, it is common for people to face significant fines from many municipalities. City officials have extolled that the Ferguson preset fine schedule establishes fines that are "at or near the top of the list" compared with other municipalities across a large number of offenses. A more recent comparison of the preset fines of roughly 70 municipal courts in the region confirms that Ferguson’s fine amounts are above regional averages for many offenses, particularly discretionary offenses such as non-speeding-related traffic offenses. That comparison also shows that Ferguson imposes the highest fine of any of those roughly 70 municipalities for the offense of Failing to Provide Proof of Insurance; Ferguson charges $375, whereas the average fine imposed is $186 and the median fine imposed is $175. In 2013 alone, 52 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 146 of 202 the Ferguson court collected over $286,000 in fines for that offense—more than any other offense except Failure to Appear. The fines that the court imposes for offenses without preset fines are more difficult to evaluate precisely because they are imposed on a case-by-case basis. Typically, however, in imposing fines for non-TVB offenses during court sessions, the Municipal Judge adopts the fine recommendations of the Prosecuting Attorney—who also serves as the Ferguson City Attorney. As discussed above, court staff have communicated with the Municipal Judge regarding the need to ensure that the prosecutor’s recommended fines are sufficiently high because "[w]e need to keep up our revenue." We were also told of at least one incident in which an attorney received a fine recommendation from the prosecutor for his client, but when the client went to court to pay the fine, a clerk refused payment, informing her that there was an additional $100 owed beyond the fine recommended by the prosecutor. The court imposes these fines without providing any process by which a person can seek a fine reduction on account of financial incapacity. The court does not provide any opportunity for a person unable to pay a preset TVB fine to seek a modification of the fine amount. Nor does the court consider a person’s financial ability to pay in determining how much of a fine to impose in cases without preset fines. The Ferguson court’s failure to assess a defendant’s ability to pay stands in direct tension with Missouri law, which instructs that in determining the amount and the method of payment of a fine, a court "shall, insofar as practicable, proportion the fine to the burden that payment will impose in view of the financial resources of an individual." Mo. Rev. Stat. § 560.026. In lieu of proportioning a fine to a particular individual’s ability to pay or allowing a process by which a person could petition the court for a reduction, the court offers payment plans to those who cannot afford to immediately pay in full. But such payment plans do not serve as a substitute for an ability-to-pay determination, which, properly employed, can enable a person in some cases to pay in full and resolve the case. Moreover, the court’s rules regarding payment plans are themselves severe. Unlike some other municipalities that require a $50 monthly payment, Ferguson’s standard payment plan requires payments of $100 per month, which remains a difficult amount for many to pay, especially those who are also making payments to other municipalities. Further, the court treats a single missed, partial, or untimely payment as a missed appearance. In such a case, the court immediately issues an arrest warrant without any notice or opportunity to explain why a payment was missed—for example, because the person was sick, or the court closed its doors early that day. The court reportedly has softened this rule during the course of our investigation by allowing a person who has missed a payment to go to court to seek leave for not paying the full amount owed. However, even this softened rule provides minimal relief, as making this request requires a person to appear in court the first Wednesday of the month at 11:00 a.m. If a person misses that session, the court immediately issues an arrest warrant. Before the court provided this Wednesday morning court session for those on payment plans, court staff frequently rejected requests from payment plan participants to reduce or continue monthly payments—leaving individuals unable to make the required payment with no recourse besides incurring a Failure to Appear charge, receiving additional fines, and having an arrest warrant issued. In July 2014, an assistant court clerk wrote in an email that she rejected a defendant’s request for a reduced monthly payment on account of inability to pay and told the 53 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 147 of 202 defendant, "everyone says [they] can’t pay." This is consistent with earlier noted statements by the acting Ferguson prosecutor that he stopped granting "needless requests for continuances from the payment docket." Another defendant who owed $1,002 in fines and fees stemming from a Driving with a Revoked License charge wrote to a City official that he would be unable to make his required monthly payment but hoped to avoid having a warrant issued. He explained that he was unemployed, that the court had put him on a payment plan only a week before his first payment was due, and that he did not have enough time to gather enough money. He implored the City to provide "some kind of community service to work off the fines/fees," stating that "I want to pay you guys what I owe" and "I have been trying to scrape up what I can," but that "with warrants it’s hard to get a job." The City official forwarded the request to a court clerk, who noted that the underlying charge dated back to 2007, that five Failure to Appear charges had been levied, and that no payments had yet been made. The clerk responded: "In this certain case [the defendant] will go to warrant." Records show that, only a week earlier, this same clerk asked a court clerk from another municipality to clear a ticket for former Ferguson Police Chief Moonier as a "courtesy." And, only a month later, that same clerk also helped the Ferguson Collector of Revenue clear two citations issued by neighboring municipalities. Ferguson does not typically offer community service as an alternative to fines. City officials have emphasized to us that Ferguson is one of only a few municipalities in the region to provide any form of a community service program, and that the program that is available is well run. But the program, which began in February 2014, is only available on a limited basis, mostly to certain defendants who are 19 years old or younger.30 We have heard directly from individuals who could not afford to pay their fines—and thus accumulated additional charges and fines and had warrants issued against them—that they requested a community service alternative to monetary payment but were told no such alternative existed. One man who still owes $1,100 stemming from a speeding and seatbelt violation from 2000 told us that he has been arrested repeatedly in connection with the fines he cannot afford to pay, and that "no one is willing to work with him to find an alternative solution." City officials have recognized the need to provide a meaningful community service option. In August 2013, one City Councilmember wrote to the City Manager and the Mayor that, "[f]or a few years now we have talked about offering community service to those who can’t afford to pay their fines, but we haven’t actually made it happen." The Councilmember noted the benefits of such a program, including that it would "keep those people that simply don’t have the money to pay their fines from constantly being arrested and going to jail, only to be released and do it all over again." 2. The Court Imposes Unduly Harsh Penalties for Missed Payments or Appearances The procedural deficiencies identified above work together to make it exceedingly difficult to resolve a case and exceedingly easy to run afoul of the court’s stringent and confusing rules, particularly for those living in or near poverty. That the court is at least in part responsible for causing cases to protract and result in technical violations has not prevented it from imposing 30 Recently, the court has allowed some individuals over age 19 to resolve fines through community service, but that remains a rarity. See City of Ferguson Continues Court Reform Initiative by Offering Community Service Program, City of Ferguson (Dec. 15, 2014), http://www.fergusoncity.com/CivicAlerts.aspx?AID=370&ARC=699 (stating community service program was launched in partnership with Ferguson Youth Initiative in February 2014 "to assist teenagers and certain other defendants"). 54 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 148 of 202 significant penalties when those violations occur. Although Ferguson’s court—unlike many other municipal courts in the region—has ceased imposing the Failure to Appear charge, the court continues to routinely issue arrest warrants for missed appearances and missed payments. The evidence we have found shows that these arrest warrants are used almost exclusively for the purpose of compelling payment through the threat of incarceration. The evidence also shows that the harms of the court’s warrant practices are exacerbated by the court’s bond procedures, which impose unnecessary obstacles to clearing a warrant or securing release after being arrested on a warrant and often function to further prolong a case and a person’s involvement in the municipal justice system. These practices—together with the consequences to individuals and communities that result—raise significant due process and equal protection concerns. a. The Ferguson Municipal Court Uses Arrest Warrants Primarily as a Means of Securing Payment Ferguson uses its police department in large part as a collection agency for its municipal court. Ferguson’s municipal court issues arrest warrants at a rate that police officials have called, in internal emails, "staggering." According to the court’s own figures, as of December 2014, over 16,000 people had outstanding arrest warrants that had been issued by the court. In fiscal year 2013 alone, the court issued warrants to approximately 9,007 people. Many of those individuals had warrants issued on multiple charges, as the 9,007 warrants applied to 32,975 different offenses. In the wake of several news accounts indicating that the Ferguson municipal court issued over 32,000 warrants in fiscal year 2013, court staff determined that it had mistakenly reported to the state of Missouri the number of charged offenses that had warrants (32,975), not the number of people who had warrants outstanding (9,007). Our investigation indicates that is the case. In any event, it is probative of FPD’s enforcement practices that those roughly 9,000 warrants were issued for over 32,000 offenses. Moreover, for those against whom a warrant is issued, the number of offenses included within the warrant has tremendous practical importance. As discussed below, the bond amount a person must pay to clear a warrant before an arrest occurs, or to secure release once a warrant has been executed, is often dependent on the number of offenses to which the warrant applies. And, that the court issued warrants for the arrest of roughly 9,000 people is itself not insignificant; even under that calculation, Ferguson has one of the highest warrant totals in the region. The large number of warrants issued by the court, by any count, is due exclusively to the fact that the court uses arrest warrants and the threat of arrest as its primary tool for collecting outstanding fines for municipal code violations. With extremely limited exceptions, every warrant issued by the Ferguson municipal court was issued because: 1) a person missed consecutive court appearances, or 2) a person missed a single required fine payment as part of a payment plan. Under current court policy, the court issues a warrant in every case where either of those circumstances arises—regardless of the severity of the code violation that the case involves. Indeed, the court rarely issues a warrant for any other purpose. FPD does not request arrest or any other kind of warrants from the Ferguson municipal court; in fact, FPD officers told us that they have been instructed not to file warrant applications with the municipal court because the court does not have the capacity to consider them. 55 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 149 of 202 While issuing municipal warrants against people who have not appeared or paid their municipal code violation fines is sometimes framed as addressing the failure to abide by court rules, in practice, it is clear that warrants are primarily issued to coerce payment.31 One municipal judge from a neighboring municipality told us that the use of the Failure to Appear charge "provides cushion for judges against the attack that the court is operating as a debtor’s prison." And the Municipal Judge in Ferguson has acknowledged repeatedly that the warrants the court issues are not put in place for public safety purposes. Indeed, once a warrant issues, there is no urgency within FPD to actually execute it. Court staff reported that they typically take weeks, if not months, to enter warrants into the system that enables patrol officers to determine if a person they encounter has an outstanding warrant. As of December 2014, for example, some warrants issued in September 2014 were not yet detectable to officers in the field. Court staff also informed us that no one from FPD has ever commented on that lag or prioritized closing it. Nor does there seem to be any public safety obstacle to eliminating failure to appear warrants altogether. The court has, in fact, adopted a temporary "warrant recall program" that allows individuals who show up to court to immediately have their warrants recalled and a new court date assigned. And, under longstanding practice, once an attorney makes an appearance in a case, the court automatically discharges any pending warrants. That the primary role of warrants is not to protect public safety but rather to facilitate fine collection is further evidenced by the fact that the warrants issued by the court are overwhelmingly issued in non-criminal traffic cases that would not themselves result in a penalty of imprisonment. From 2010 to December 2014, the offenses (besides Failure to Appear ordinance violations) that most often led to a municipal warrant were: Driving While License Is Suspended, Expired License Plates, Failure to Register a Vehicle, No Proof of Insurance, and Speed Limit violations. These offenses comprised the majority of offenses that led to a warrant not because they are more severe than other offenses, but rather because every missed appearance or payment on any charge results in a warrant, and these were some of the most common charges brought by FPD during that period. Even though these underlying code violations would not on their own result in a penalty of imprisonment, arrest and detention are not uncommon once a warrant enters on a case. We have found that FPD officers frequently check individuals for warrants, even when the person is not reasonably suspected of engaging in any criminal activity, and, if a municipal warrant exists, will often make an arrest. City officials have told us that the decision to arrest a person for an outstanding warrant is "highly discretionary" and that officers will frequently not arrest unless the person is "ignorant." Records show, however, that officers do arrest individuals for outstanding municipal warrants with considerable frequency. Jail records are poorly managed, and data on jail bookings is only available as of April 2014. But during the roughly six-month period from April to September 2014, 256 people were booked into the Ferguson City Jail after being arrested at least in part for an outstanding warrant—96% of whom were African American. Of these individuals, 28 were held for longer than two days, and 27 of these 28 people were black. 31 As stated in the Missouri Municipal Court Handbook produced by the Circuit Court: "Defendants who fail or refuse to pay their fines and costs can be extremely difficult to deal with, but if there is a credible threat of incarceration if they do not pay, the job of collection becomes much easier." Mo. Mun. Benchbook, Cir. Ct., Mun. Divs. § 13.6 (2010). 56 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 150 of 202 Similarly, data collected during vehicle stops shows that, during a larger period of time between October 2012 and October 2014, FPD arrested roughly 460 individuals following a vehicle stop solely because they had outstanding warrants. This figure is likely a significant underrepresentation of the total number of people arrested for outstanding warrants during that period, as it does not include those people arrested on outstanding warrants not during traffic stops; nor does it include those people arrested during traffic stops for multiple reasons, but who might not have been stopped, much less arrested, without the officer performing a warrant check on the car and finding an outstanding warrant. Even among this limited pool, the data shows the disparate impact these arrests have on African Americans. Of the 460 individuals arrested during traffic stops solely for outstanding warrants, 443 individuals—or 96%—were African American. That data also does not include those people arrested by other municipal police departments on the basis of an outstanding warrant issued by Ferguson. As has been widely reported in recent months, many municipal police departments in the region identify people with warrants pending in other towns and then arrest and hold those individuals on behalf of those towns. FPD’s records show that it routinely arrests individuals on warrants issued by other jurisdictions. And, although we did not review the records of other departments, we have heard reports of many individuals who were arrested for a Ferguson-issued warrant by police officers outside of Ferguson. On some occasions, Ferguson will decline to pick up a person arrested in a different municipality for a Ferguson warrant and, after however long it takes for that decision to be made, the person will be released, sometimes after being required to pay bond. On other occasions, Ferguson will send an officer to retrieve the person for incarceration in the Ferguson City Jail; FPD supervisors have in fact instructed officers to do so "regardless of the charge or the bond amount, or the number of prisoners we have in custody." We found evidence of FPD officers traveling more than 200 miles to retrieve a person detained by another agency on a Ferguson municipal warrant. Because of the large number of municipalities in the region, many of which have warrant practices similar to Ferguson, it is not unusual for a person to be arrested by one department, have outstanding warrants pending in other police departments, and be handed off from one department to another until all warrants are cleared. We have heard of individuals who have run out of money during this process—referred to by many as the "muni shuffle"—and as a result were detained for a week or longer. The large number of municipal court warrants being issued, many of which lead to arrest, raises significant due process and equal protection concerns. In particular, Ferguson’s practice of automatically treating a missed payment as a failure to appear—thus triggering an arrest warrant and possible incarceration—is directly at odds with well-established law that prohibits "punishing a person for his poverty." Bearden v. Georgia, 461 U.S. 660, 671 (1983); see also Tate v. Short, 401 U.S. 395, 398 (1971). In Bearden, the Supreme Court found unconstitutional a state’s decision to revoke probation and sentence a defendant to prison because the defendant was unable to pay a required fine. Bearden, 461 U.S. at 672-73. The Court held that before imposing imprisonment, a court must first inquire as to whether the missed payment was attributable to an inability to pay and, if so, "consider alternate measures of punishment other than imprisonment." Id. at 672; see also Martin v. Solem, 801 F.2d 324, 332 (8th Cir. 1986) 57 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 151 of 202 (noting that the state court had failed to adequately determine, as required by Bearden, whether the defendant had "made sufficient bona fide efforts legally to acquire the resources to pay," but nonetheless denying habeas relief because the defendant’s failure to pay was due not to indigency but his "willful refusal to pay"). The Ferguson court, however, has in the past routinely issued arrest warrants when a person is unable to make a required fine payment without any ability-to-pay determination. While the court does not sentence a defendant to jail in such a case, the result is often equivalent to what Bearden proscribes: the incarceration of a defendant solely because of an inability to pay a fine. In response to concerns about issuing warrants in such cases, Ferguson officials have told us that without issuing warrants and threatening incarceration, they have no ability to secure payment. But the Supreme Court rejected that argument, finding that states are "not powerless to enforce judgments against those financially unable to pay a fine," and noting that—especially in cases like those at issue here in which the court has already made a determination that penological interests do not demand incarceration—a court can "establish a reduced fine or alternate public service in lieu of a fine that adequately serves the state’s goals of punishment and deterrence, given the defendant’s diminished financial resources."32 Id. As discussed above, however, Ferguson has not established any such alternative.33 Finally, in light of the significant portion of municipal charges that lead to an arrest warrant, as well as the substantial number of arrest warrants that lead to arrest and detention, we have considerable concerns regarding whether individuals facing charges in Ferguson municipal court are entitled to, and being unlawfully denied, the right to counsel. b. Ferguson’s Bond Practices Impose Undue Hardship on Those Seeking to Secure Release from the Ferguson City Jail Our investigation found substantial deficiencies in the way Ferguson police and court officials set, accept, refund, and forfeit bond payments. Recently, in response to concerns raised during our investigation, the City implemented several changes to its bond practices, most of which apply to those detained after a warrantless arrest.34 These changes represent positive 32 Ferguson officials have also told us that the arrest warrant is issued not because of the missed payment per se, but rather because the person missing the payment failed to abide by the court’s rules. But the Supreme Court has rejected that contention, too. In Bearden, the Court noted that the sentencing court’s stated concern "was that the petitioner had disobeyed a prior court order to pay the fine," but found that the sentence nonetheless "is no more than imprisoning a person solely because he lacks funds" to pay. Bearden, 461 U.S. at 674. 33 Additionally, Ferguson’s municipal code provides: "When a sentence for violation of any provision of this Code or other ordinance of the city... includes a fine and such fine is not paid, or if the costs of prosecution adjudged against an offender are not paid, the person under sentence shall be imprisoned one day for every ten dollars ($10.00) of any such unpaid fine or costs... not to exceed a total of four (4) months." Ferguson Mun. Code § 1-16. Our investigation did not uncover any evidence that the court has sentenced anyone to imprisonment pursuant to this statute in the past several years. Nonetheless, it is concerning that this statute, which unconstitutionally sanctions imprisonment for failing to pay a fine, remains in effect. Cf. Bearden v. Georgia, 461 U.S. 660, 671 (1983). 34 In December 2014, the court set forth a bond schedule for warrantless arrests, which provides that, for all but 14 code violations, a person arrested pursuant to a municipal code violation and brought to Ferguson City Jail shall be issued a citation or summons and released on his or her own recognizance without any bond payment required. For those 14 code violations requiring a bond, the court has set "fixed" bond amounts, although these are subject to the court’s discretion to raise or lower those amounts at the request of the City or the detained individual. The court’s 58 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 152 of 202 developments, but many deficiencies remain.35 Given the high number of arrest warrants issued by the municipal court—and given that in many cases a person can only clear a pending warrant or secure release from detention by posting bond—the deficiencies identified below impose significant harm to individuals in Ferguson. Current bond practices are unclear and inconsistent. Information provided by the City reveals a haphazard bond system that results in people being erroneously arrested, and some people paying bond but not getting credit for having done so. Documents describe officers finding hundred dollar bills in their pockets that were given to them for bond payment and not remembering which jail detainee provided them; bond paperwork being found on the floor; and individuals being arrested after their bonds had been accepted because the corresponding warrants were never cancelled. At one point in 2012, Ferguson's Court Clerk called such issues a "daily problem." The City’s practices for receiving and tracking bond payments have not changed appreciably since then. The practices for setting bond are similarly erratic. The Municipal Judge advised us that he sets all bonds upon issuing an arrest warrant. We found, however, that bond amounts are mostly set by court staff, and are rarely even reviewed by the Judge. While court staff told us that the current bond schedule requires a bond of $200 for up to four traffic offenses, $100 for every traffic offense thereafter, $100 for every Failure to Appear charge, and $300 for every criminal offense, FPD’s own policy includes a bond schedule that departs from these figures. In practice, bond amounts vary widely. See FPD General Order 421.02. Our review of a random sample of warrants indicates that bond is set in a manner that often departs from both the schedule referenced by court staff and the schedule found in FPD policy. In a number of these cases, the bond amount far exceeded the amount of the underlying fine. The court’s bond practices, including the fact that the court often imposes bonds that exceed the amount owed to the court, do not appear to be grounded in any public safety need. In a July 2014 email to Chief Jackson and other police officials, the Court Clerk reported that "[s]tarting today we are going to reduce anyone’s bond that calls and is in warrant[] to half the amount," explaining that "[t]his may bring in some extra monies this way." The email identifies no public safety obstacle or other reason not to implement the bond reduction. Notably, the email also states that "[w]e will only do this between the hours of 8:30 to 4" and that no half-bond will be accepted after those hours unless the Court Clerk approves it.36 Thus, as a result of this policy, an individual able to appear at the court window during business hours would pay half as much to clear a warrant as an individual who is actually arrested on a warrant after hours. That Ferguson’s bond practices do not appear grounded in public safety is underscored by the recent order further provides that, even if an individual does not pay the bond required, he or she shall in any case be released after 12 hours, rather than the previous 72-hour limit. 35 For example, the recent orders fail to specify that, in considering whether to adjust the bond imposed, the court shall make an assessment of an individual’s ability to pay, and assign bond proportionately. Cf. Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc) (noting that the incarceration of those who cannot afford to meet the requirements of a fixed bond schedule "without meaningful consideration of other possible alternatives" infringes on due process and equal protection requirements). 36 The court’s website states that the court window is open from 8:30 a.m. to 5:00 p.m., not 4:00 p.m. See City Courts, City of Ferguson, http://www.fergusoncity.com/60/The-City-Of-Ferguson-Municipal-Courts (last visited Feb. 26, 2015). 59 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 153 of 202 fact that the court will typically cancel outstanding warrants without requiring the posting of any bond for people who have an attorney enter an appearance on their behalf. Records show that this practice is also applied haphazardly, and there do not appear to be any rules that govern the apparent discretion court staff have to waive or require bond following an attorney’s appearance. It is not uncommon for an individual charged with only a minor violation to be arrested on a warrant, be unable to afford bond, and have no recourse but to await release. Longstanding court rules provide for a person arrested pursuant to an arrest warrant to be held up to 72 hours before being released without bond, and the court’s recent orders do not appear to change this. Records show that individuals are routinely held for 72 hours. FPD’s records management system only began capturing meaningful jail data in April 2014; but from April to September 2014 alone, 77 people were detained in the jail for longer than two days, and many of those detentions neared, reached, or exceeded the 72-hour mark. Of those 77 people, 73, or 95%, were black. Many people, including the woman described earlier who was charged with two parking code violations, have reported being held up until the 72-hour limit—despite having no ability to pay. Indeed, many others report being held for far longer, and documentary evidence is consistent with these reports. In April 2010, for example, the Chief of Police wrote an email to the Captain of the Patrol Division stating that the "intent is that when the watch commander/street supervisor gets the census from the jail he asks who will come up on 72 hrs.," and, if there is any such person, "he can have them given the next available court date and released, or authorize they remain in jail, since he will be the designate." The email continues: "If someone has already been there more than 72 hours, it may be assumed their continued hold was previously authorized." Further, as noted above, while comprehensive jail records do not exist for detentions prior to April 2014, records do show several recent instances in which FPD detained a person for longer than the purported 72-hour limit. Despite the fact that those arrested by FPD for outstanding municipal warrants can be held for several days if unable to post bond, the Ferguson municipal court does not give credit for time served. As a result, there have been many cases in which a person has been arrested on a warrant, detained for 72 hours or more, and released owing the same amount as before the arrest was made. Court records do not even track the total amount of time a person has spent in jail as part of a case. When asked why this is not tracked, a member of court staff told us: "It’s only three days anyway." These prolonged detentions for those who cannot afford bond are alarming, and raise considerable due process and equal protection concerns. The prolonged detentions are especially concerning given that there is no public safety need for those who receive municipal warrants to be jailed at all. The Ferguson Municipal Judge has acknowledged that for most code violations, it is "probably a good idea to do away with jail time." Further, there are many circumstances in which court practices preclude a person from making payment against the underlying fine owed—and thus resolving the case, or at least moving the case toward resolution—and instead force the person to pay a bond. If, for example, an individual is jailed on a "must appear" charge and has not yet appeared in court to have the 60 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 154 of 202 fine assessed, the individual will not be allowed to make payment on the underlying charge. Rather, the person must post bond, receive a new court date, appear in court, and start the process anew. Even when the underlying fine has been assessed, a person in jail may still be forced to make a bond payment instead of a fine payment to secure release if court staff are unavailable to determine the amount the person owes. And when a person attempts to resolve a warrant before they end up arrested, a bond payment will typically be required unless the person can afford to pay the underlying fine in full, as, by purported policy, the court does not accept partial payment of fines outside of a court-sanctioned payment plan. Bond forfeiture procedures also raise significant due process concerns. Under current practice, the first missed appearance or missed payment following a bond payment results in a warning letter being sent; after the second missed appearance or payment, the court initiates a forfeiture action (and issues another arrest warrant). As with "warrant warning letters" described above, our investigation has been unable to verify that the court consistently sends bond forfeiture warning letters. And, as with warrant warning letters, bond forfeiture warning letters are sometimes returned to the court, but court staff members do not appear to make any further attempt to contact the intended recipient. Upon a bond being forfeited, the court directs the bond money into the City’s account and does not apply the amount to the individual’s underlying fine. For example, if a person owes a $200 fine payment, is arrested on a warrant, and posts a bond of $200, the forfeiture of the bond will result in the fine remaining $200 and an arrest warrant being issued. If, instead, Ferguson were to allow this $200 to go toward the underlying fine, this would resolve the matter entirely, obviating the need for any warrant or subsequent court appearance. Not applying a forfeited bond to the underlying fine is especially troubling considering that this policy does not appear to be clearly communicated to those paying bonds. Particularly in cases where the bond is set at an amount near the underlying fine owed—which we have found to be common—it is entirely plausible that a person paying bond would mistakenly believe that payment resolves the case. When asked why the forfeited bond is not applied to the underlying fine, court staff asserted that applicable law prohibits them from doing so without the bond payer’s consent.37 That explanation is grounded in an incorrect view of the law. In Perry v. Aversman, 168 S.W.3d 541 (Mo. Ct. App. 2005), the Missouri Court of Appeals explicitly upheld a rule requiring that forfeited bonds be applied to pending fines of the person who paid bond and found that such practices are acceptable so long as the court provides sufficient notice. Id. at 543-46. In light of the fact that applicable law permits forfeited bonds to be applied to pending fines, Ferguson’s longstanding practice of directing forfeited bond money to the City’s general fund is troubling. In fiscal year 2013 alone, the City collected forfeited bond amounts of $177,168, which could instead have been applied to the fines of those making the payments. Ferguson’s rules and procedures for refunding bond payments upon satisfaction of the underlying fine raise similar concerns. Ferguson requires that when a person pays the underlying 37 Critically, however, when a person attends court after paying a bond and is assessed a fine, court staff members do automatically apply the bond already paid to the fine owed, and in fact require application of the bond to the fine regardless of the defendant’s wishes. Thus, the court has simultaneously asserted that it can apply a bond to a fine without a defendant’s consent when the bond would otherwise be returned to the defendant, but that it cannot apply a bond to a fine without a defendant’s consent when the bond would otherwise be forfeited into the City’s own accounts. 61 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 155 of 202 fine to avoid bond forfeiture, he or she must pay in person and provide photo identification. Yet, where the underlying fine is less than the bond amount—a common occurrence—the City does not immediately refund the difference to the individual. Rather, pursuant to a directive issued by the current City Finance Director approximately four years ago, bond refunds cannot be made in person, and instead must be sent via mail. According to Ferguson’s Court Clerk, it is not entirely uncommon for these refund checks to be returned as undeliverable and become "unclaimed property." C. Ferguson Law Enforcement Practices Disproportionately Harm Ferguson’s African-American Residents and Are Driven in Part by Racial Bias Ferguson’s police and municipal court practices disproportionately harm African Americans. Further, our investigation found substantial evidence that this harm stems in part from intentional discrimination in violation of the Constitution. African Americans experience disparate impact in nearly every aspect of Ferguson’s law enforcement system. Despite making up 67% of the population, African Americans accounted for 85% of FPD’s traffic stops, 90% of FPD’s citations, and 93% of FPD’s arrests from 2012 to 2014. Other statistical disparities, set forth in detail below, show that in Ferguson:  African Americans are 2.07 times more likely to be searched during a vehicular stop but are 26% less likely to have contraband found on them during a search. They are 2.00 times more likely to receive a citation and 2.37 times more likely to be arrested following a vehicular stop.  African Americans have force used against them at disproportionately high rates, accounting for 88% of all cases from 2010 to August 2014 in which an FPD officer reported using force. In all 14 uses of force involving a canine bite for which we have information about the race of the person bitten, the person was African American.  African Americans are more likely to receive multiple citations during a single incident, receiving four or more citations on 73 occasions between October 2012 and July 2014, whereas non-African Americans received four or more citations only twice during that period.  African Americans account for 95% of Manner of Walking charges; 94% of all Fail to Comply charges; 92% of all Resisting Arrest charges; 92% of all Peace Disturbance charges; and 89% of all Failure to Obey charges.38  African Americans are 68% less likely than others to have their cases dismissed by the Municipal Judge, and in 2013 African Americans accounted for 92% of cases in which an arrest warrant was issued. 38 As noted above, FPD charges violations of Municipal Code Section 29-16 as both Failure to Obey and Failure to Comply. Court data carries forward this inconsistency. 62 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 156 of 202  African Americans account for 96% of known arrests made exclusively because of an outstanding municipal warrant. These disparities are not the necessary or unavoidable results of legitimate public safety efforts. In fact, the practices that lead to these disparities in many ways undermine law enforcement effectiveness. See, e.g., Jack Glaser, Suspect Race: Causes and Consequence of Racial Profiling 96-126 (2015) (because profiling can increase crime while harming communities, it has a "high risk" of contravening the core police objectives of controlling crime and promoting public safety). The disparate impact of these practices thus violates federal law, including Title VI and the Safe Streets Act. The racially disparate impact of Ferguson’s practices is driven, at least in part, by intentional discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Racial bias and stereotyping is evident from the facts, taken together. This evidence includes: the consistency and magnitude of the racial disparities throughout Ferguson’s police and court enforcement actions; the selection and execution of police and court practices that disproportionately harm African Americans and do little to promote public safety; the persistent exercise of discretion to the detriment of African Americans; the apparent consideration of race in assessing threat; and the historical opposition to having African Americans live in Ferguson, which lingers among some today. We have also found explicit racial bias in the communications of police and court supervisors and that some officials apply racial stereotypes, rather than facts, to explain the harm African Americans experience due to Ferguson’s approach to law enforcement. "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available." Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977). Based on this evidence as a whole, we have found that Ferguson’s law enforcement activities stem in part from a discriminatory purpose and thus deny African Americans equal protection of the laws in violation of the Constitution. 1. Ferguson’s Law Enforcement Actions Impose a Disparate Impact on African Americans that Violates Federal Law African Americans are disproportionately represented at nearly every stage of Ferguson law enforcement, from initial police contact to final disposition of a case in municipal court. While FPD’s data collection and retention practices are deficient in many respects, the data that is collected by FPD is sufficient to allow for meaningful and reliable analysis of racial disparities. This data—collected directly by police and court officials—reveals racial disparities that are substantial and consistent across a wide range of police and court enforcement actions. African Americans experience the harms of the disparities identified below as part of a comprehensive municipal justice system that, at each juncture, enforces the law more harshly against black people than others. The disparate impact of Ferguson’s enforcement actions is compounding: at each point in the enforcement process there is a higher likelihood that an African American will be subjected to harsher treatment; accordingly, as the adverse consequences imposed by Ferguson grow more and more severe, those consequences are imposed more and more disproportionately against African Americans. Thus, while 85% of 63 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 157 of 202 FPD’s vehicle stops are of African Americans, 90% of FPD’s citations are issued to African Americans, and 92% of all warrants are issued in cases against African Americans. Strikingly, available data shows that of those subjected to one of the most severe actions this system routinely imposes—actual arrest for an outstanding municipal warrant—96% are African American. a. Disparate Impact of FPD Practices i. Disparate Impact of FPD Enforcement Actions Arising from Vehicular Stops Pursuant to Missouri state law on racial profiling, Mo. Rev. Stat. § 590.650, FPD officers are required to collect race and other data during every traffic stop. While some law enforcement agencies collect more comprehensive data to identify and stem racial profiling, this information is sufficient to show that FPD practices exert a racially disparate impact along several dimensions. FPD reported 11,610 vehicle stops between October 2012 and October 2014. African Americans accounted for 85%, or 9,875, of those stops, despite making up only 67% of the population. White individuals made up 15%, or 1,735, of stops during that period, despite representing 29% of the population. These differences indicate that FPD traffic stop practices may disparately impact black drivers.39 Even setting aside the question of whether there are racial disparities in FPD’s traffic stop practices, however, the data collected during those stops reliably shows statistically significant racial disparities in the outcomes people receive after being stopped. Unlike with vehicle stops, assessing the disparate impact of post-stop outcomes—such as the rate at which stops result in citations, searches, or arrests—is not dependent on population data or on assumptions about differential offending rates by race; instead, the enforcement actions imposed against stopped black drivers are compared directly to the enforcement actions imposed against stopped white drivers. In Ferguson, traffic stops of black drivers are more likely to lead to searches, citations, and arrests than are stops of white drivers. Black people are significantly more likely to be searched during a traffic stop than white people. From October 2012 to October 2014, 11% of stopped black drivers were searched, whereas only 5% of stopped white drivers were searched. 39 While there are limitations to using basic population data as a benchmark when evaluating whether there are racial disparities in vehicle stops, it is sufficiently reliable here. In fact, in Ferguson, black drivers might account for less of the driving pool than would be expected from overall population rates because a lower proportion of blacks than whites is at or above the minimum driving age. See 2009-2013 5-Year American Community Survey, U.S. Census Bureau (2015) (showing higher proportion of black population in under-15 and under-19 age categories than white population). Ferguson officials have told us that they believe that black drivers account for more of the driving pool than their 67% share of the population because the driving pool also includes drivers traveling from neighboring municipalities—many of which have higher black populations than Ferguson. Our investigation casts doubt upon that claim. An analysis of zip-code data from the 53,850 summonses FPD issued from January 1, 2009 to October 14, 2014, shows that the African-American makeup for all zip codes receiving a summons—weighted by population size and the number of summonses received by people from that zip code—is 63%. Thus, there is substantial reason to believe that the share of drivers in Ferguson who are black is in fact lower than population data suggests. 64 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 158 of 202 Despite being searched at higher rates, African Americans are 26% less likely to have contraband found on them than whites: 24% of searches of African Americans resulted in a contraband finding, whereas 30% of searches of whites resulted in a contraband finding. This disparity exists even after controlling for the type of search conducted, whether a search incident to arrest, a consent search, or a search predicated on reasonable suspicion. The lower rate at which officers find contraband when searching African Americans indicates either that officers’ suspicion of criminal wrongdoing is less likely to be accurate when interacting with African Americans or that officers are more likely to search African Americans without any suspicion of criminal wrongdoing. Either explanation suggests bias, whether explicit or implicit.40 This lower hit rate for African Americans also underscores that this disparate enforcement practice is ineffective. Other, more subtle indicators likewise show meaningful disparities in FPD’s search practices: of the 31 Terry stop searches FPD conducted during this period between October 2012 to October 2014, 30 were of black individuals; of the 103 times FPD asked both the driver and passenger to exit a vehicle during a search, the searched individuals were black in 95 cases; and, while only one search of a white person lasted more than half an hour (1% of all searches of white drivers), 59 searches of African Americans lasted that long (5% of all searches of black drivers). Of all stopped black drivers, 91%, or 8,987, received citations, while 87%, or 1,501, of all stopped white drivers received a citation.41 891 stopped black drivers—10% of all stopped black drivers—were arrested as a result of the stop, whereas only 63 stopped white drivers—4% of all stopped white drivers—were arrested. This disparity is explainable in large part by the high number of black individuals arrested for outstanding municipal warrants issued for missed court payments and appearances. As we discuss below, African Americans are more likely to have warrants issued against them than whites and are more likely to be arrested for an outstanding warrant than their white counterparts. Notably, on 14 occasions FPD listed the only reason for an arrest following a traffic stop as "resisting arrest." In all 14 of those cases, the person arrested was black. These disparities in the outcomes that result from traffic stops remain even after regression analysis is used to control for non-race-based variables, including driver age; gender; the assignment of the officer making the stop; disparities in officer behavior; and the stated reason the stop was initiated. Upon accounting for differences in those variables, African Americans remained 2.07 times more likely to be searched; 2.00 times more likely to receive a citation; and 2.37 times more likely to be arrested than other stopped individuals. Each of these 40 Assessing contraband or "hit rates" is a generally accepted practice in the field of criminology to "operationaliz[e] the concept of'intent to discriminate.’" The test shows "bias against a protected group if the success rate of searches on that group is lower than on another group." Nicola Persico & Petra Todd, The Hit Rates Test for Racial Bias in Motor-Vehicle Searches, 25 Justice Quarterly 37, 52 (2008). Indeed, as noted below, in assessing whether racially disparate impact is motivated by discriminatory intent for Equal Protection Clause purposes, disparity can itself provide probative evidence of discriminatory intent. 41 As noted above, African Americans received 90% of all citations issued by FPD from October 2012 to July 2014. This data shows that 86% of people receiving citations following an FPD traffic stop between October 2012 and October 2014 were African American. 65 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 159 of 202 disparities is statistically significant and would occur by chance less than one time in 1,000.42 The odds of these disparities occurring by chance together are significantly lower still. ii. Disparate Impact of FPD’s Multiple Citation Practices The substantial racial disparities that exist within the data collected from traffic stops are consistent with the disparities found throughout FPD’s practices. As discussed above, our investigation found that FPD officers frequently make discretionary choices to issue multiple citations during a single incident. Setting aside the fact that, in some cases, citations are redundant and impose duplicative penalties for the same offense, the issuance of multiples citations also disproportionately impacts African Americans. In 2013, for instance, more than 50% of all African Americans cited received multiple citations during a single encounter with FPD, whereas only 26% of non-African Americans did. Specifically, 26% of African Americans receiving a citation received two citations at once, whereas only 17% of white individuals received two citations at once. Those disparities are even greater for incidents that resulted in more than two citations: 15% of African Americans cited received three citations at the same time, whereas 6% of cited whites received three citations; and while 10% of cited African Americans received four or more citations at once, only 3% of cited whites received that many during a single incident. Each of these disparities is statistically significant, and would occur by chance less than one time in 1,000. Indeed, related data from an overlapping time period shows that, between October 2012 to July 2014, 38 black individuals received four citations during a single incident, compared with only two white individuals; and while 35 black individuals received five or more citations at once, not a single white person did.43 iii. Disparate Impact of Other FPD Charging Practices From October 2012 to July 2014, African Americans accounted for 85%, or 30,525, of the 35,871 total charges brought by FPD—including traffic citations, summonses, and arrests. Non-African Americans accounted for 15%, or 5,346, of all charges brought during that period.44 These rates vary somewhat across different offenses. For example, African Americans represent a relatively low proportion of those charged with Driving While Intoxicated and Speeding on State Roads or Highways. With respect to speeding offenses for all roads, African Americans account for 72% of citations based on radar or laser, but 80% of citations based on other or unspecified methods. Thus, as evaluated by radar, African Americans violate the law at lower rates than as evaluated by FPD officers. Indeed, controlling for other factors, the disparity in speeding tickets between African Americans and non-African Americans is 48% larger when 42 It is generally accepted practice in the field of statistics to consider any result that would occur by chance less than five times out of 100 to be statistically significant. 43 Similar to the post-stop outcome disparities—which show disparities in FPD practices after an initial stop has been made—these figures show disparities in FPD practices after a decision to issue a citation has been made. Thus, these disparities are not based in any part on population data. 44 Although the state-mandated racial profiling data collected during traffic stops captures ethnicity in addition to race, most other FPD reports capture race only. As a result, these figures for non-African Americans include not only whites, but also non-black Latinos. That FPD’s data collection methods do not consistently capture ethnicity does not affect this report’s analysis of the disparate impact imposed on African Americans, but it has prevented an analysis of whether FPD practices also disparately impact Latinos. In 2010, Latinos comprised 1% of Ferguson’s population. See 2010 Census, U.S. Census Bureau (2010), available at http://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/QTP3/1600000US2923986 (last visited Feb. 26, 2015). 66 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 160 of 202 citations are issued not on the basis of radar or laser, but by some other method, such as the officer’s own visual assessment. This difference is statistically significant. Data on charges issued by FPD from 2011-2013 shows that, for numerous municipal offenses for which FPD officers have a high degree of discretion in charging, African Americans are disproportionately represented relative to their representation in Ferguson’s population. While African Americans make up 67% of Ferguson’s population, they make up 95% of Manner of Walking in Roadway charges; 94% of Failure to Comply charges; 92% of Resisting Arrest charges; 92% of Peace Disturbance charges; and 89% of Failure to Obey charges. Because these non-traffic offenses are more likely to be brought against persons who actually live in Ferguson than are vehicle stops, census data here does provide a useful benchmark for whether a pattern of racially disparate policing appears to exist. These disparities mean that African Americans in Ferguson bear the overwhelming burden of FPD’s pattern of unlawful stops, searches, and arrests with respect to these highly discretionary ordinances. iv. Disparate Impact of FPD Arrests for Outstanding Warrants FPD records show that once a warrant issues, racial disparities in FPD’s warrant execution practices make it exceedingly more likely for a black individual with an outstanding warrant to be arrested than a white individual with an outstanding warrant. Arrest data captured by FPD often fails to identify when a person is arrested solely on account of an outstanding warrant. Nonetheless, the data FPD collects during traffic stops pursuant to Missouri state requirements does capture information regarding when arrests are made for no other reason than that an arrest warrant was pending. Based upon that data, from October 2012 to October 2014, FPD arrested 460 individuals exclusively because the person had an outstanding arrest warrant. Of those 460 people arrested, 443, or 96%, were black. That African Americans are disproportionately impacted by FPD’s warrant execution practices is also reflected in the fact that, during the roughly six-month period from April to September 2014, African Americans accounted for 96% of those booked into the Ferguson City Jail at least in part because they were arrested for an outstanding municipal warrant. v. Concerns Regarding Pedestrian Stops Although available data enables an assessment of the disparate impact of many FPD practices, many other practices cannot be assessed statistically because of FPD’s inadequate data collection. FPD does not reliably collect or track data regarding pedestrian stops, or FPD officers’ conduct during those stops. Given this lack of data, we are unable to determine whether African Americans are disproportionately the subjects of pedestrian stops, or the rate of searches, arrests, or other post-pedestrian stop outcomes. We note, however, that during our investigation we have spoken with not only black community members who have been stopped by FPD officers, but also non-black community members and employees of local businesses who have observed FPD conduct pedestrian stops of others, all of whom universally report that pedestrian stops in Ferguson almost always involve African-American youth. Even though FPD does not specifically track pedestrian stops, other FPD records are consistent with those accounts. Arrest and other incident reports sometimes describe encounters that begin with pedestrian stops, almost all of which involve African Americans. 67 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 161 of 202 b. Disparate Impact of Court Practices Our investigation has also found that the rules and practices of the Ferguson municipal court also exert a disparate impact on African Americans. As discussed above, once a charge is filed in Ferguson municipal court, a number of procedural barriers imposed by the court combine to make it unnecessarily difficult to resolve the charge. Data created and maintained by the court show that black defendants are significantly more likely to be adversely impacted by those barriers. An assessment of every charge filed in Ferguson municipal court in 2011 shows that, over time, black defendants are more likely to have their cases persist for longer durations, more likely to face a higher number of mandatory court appearances and other requirements, and more likely to have a warrant issued against them for failing to meet those requirements.45 In light of the opaque court procedures previously discussed, the likelihood of running afoul of a court requirement increases when a case lasts for a longer period of time and results in more court encounters. Court cases involving black individuals typically last longer than those involving white individuals. Of the 2,369 charges filed against white defendants in 2011, over 63% were closed after six months. By contrast, only 34% of the 10,984 charges against black defendants were closed within that time period. 10% of black defendants, however, resolved their case between six months and a year from when it was filed, while 9% of white defendants required that much time to secure resolution. And, while 17% of black defendants resolved their charge over a year after it was brought against them, only 9% of white defendants required that much time. Each of these cases was ultimately resolved, in most instances by satisfying debts owed to the court; but this data shows substantial disparities between blacks and whites regarding how long it took to do so. On average, African Americans are also more likely to have a high number of "events" occur before a case is resolved. The court’s records track all activities that occur in a case—from payments and court appearances to continuances and Failure to Appear charges. 11% of cases involving African Americans had three "events," whereas 10% of cases involving white defendants had three events. 14% of cases involving black defendants had four to five events, compared with 9% of cases involving white defendants. Those disparities increase as the recorded number of events per case increases. Data show that there are ten or more events in 17% of cases involving black defendants but only 5% of cases involving white defendants. Given that an "event" can represent a variety of different kinds of occurrences, these particular disparities are perhaps less probative; nonetheless, they strongly suggest that black defendants have, on average, more encounters with the court during a single case than their white peers. Given the figures above, it is perhaps unsurprising that the municipal court’s practice of issuing warrants to compel fine payments following a missed court appearance or missed payment has a disparate impact on black defendants. 92% of all warrants issued in 2013 were issued in cases involving an African-American defendant. This figure is disproportionate to the representation of African Americans in the court’s docket. Although the proportion of court cases involving black defendants has increased in recent years—81% of all cases filed in 2009, 45 The universe of cases in this and subsequent analyses consisted of cases filed in 2011 because, given that some cases endure for years, a more recent sample would have excluded a greater amount of data from case events that have not yet occurred. 68 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 162 of 202 compared with 85% of all cases filed in 2013—that proportion remains substantially below the proportion of warrants issued to African Americans. These disparities are consistent with the evidence discussed above that African Americans are often unable to resolve municipal charges despite taking appropriate steps to do so, and the evidence discussed below suggesting that court officials exercise discretion in a manner that disadvantages the African Americans that appear before the court. Notably, the evidence suggests that African Americans are not only disparately impacted by court procedures, but also by the court’s discretionary rulings in individual cases. Although court data did not enable a comprehensive assessment of disparities in fines that the court imposes, we did review fine data regarding ten different offenses and offense categories, including the five highly discretionary offenses disproportionately brought against African Americans noted above.46 That analysis suggests that there may be racial disparities in the court’s fine assessment practices. In analyzing the initial fines assessed for those ten offenses for each year from 2011-2013—30 data points in total—the average fine assessment was higher for African Americans than others in 26 of the 30 data points. For example, among the 53 Failure to Obey charges brought in 2013 that did not lead to added Failure to Appear fines—44 of which involved an African-American defendant—African Americans were assessed an average fine of $206, whereas the average fine for others was $147. The magnitude of racial disparities in fine amounts varied across the 30 yearly offense averages analyzed, but those disparities consistently disfavored African Americans. Further, an evaluation of dismissal rates throughout the life of a case shows that, on average, an African-American defendant is 68% less likely than other defendants to have a case dismissed. In addition to cases that are "Dismissed," court records also show cases that are "Voided" altogether. There are only roughly 400 cases listed as Voided from 2011-2013, but the data that is available for that relatively small number of Voided cases shows that African Americans are three times less likely to receive the Voided outcome than others. c. Ferguson’s Racially Disparate Practices Violate Federal Law This data shows that police and court practices impose a disparate impact on black individuals that itself violates the law. Title VI and the Safe Streets Act prohibit law enforcement agencies that receive federal financial assistance, such as FPD, from engaging in law enforcement activities that have an unnecessary disparate impact based on race, color, or national origin. 42 U.S.C. § 2000d. Title VI’s implementing regulations prohibit law enforcement agencies from using "criteria or methods of administration" that have an unnecessary disparate impact based on race, color, or national origin. 28 C.F.R. § 42.104(b)(2); see also Alexander v. Sandoval, 532 U.S. 275, 281-82 (2001). Similarly, the Safe Streets Act applies not only to intentional discrimination, but also to any law enforcement practices that 46 The ten offenses or offense categories analyzed include: 1) Manner of Walking in Roadway; 2) Failure to Comply; 3) Resisting Arrest; 4) Peace Disturbance; 5) Failure to Obey; 6) High Grass and Weeds; 7) One Headlight; 8) Expired License Plate; 9) aggregated data for 14 different parking violation offenses; and 10) aggregated data for four different headlight offenses, including: One Headlight; Defective Headlights; No Headlights; and Failure to Maintain Headlights. 69 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 163 of 202 unnecessarily disparately impact an identified group based on the enumerated factors. 28 C.F.R. § 42.203. Cf. Charleston Housing Authority v. USDA, 419 F.3d 729, 741-42 (8th Cir. 2005) (finding in the related Fair Housing Act context that where official action imposes a racially disparate impact, the action can only be justified through a showing that it is necessary to non-discriminatory objectives). Thus, under these statutes, the discriminatory impact of Ferguson’s law enforcement practices—which is both unnecessary and avoidable—is unlawful regardless of whether it is intentional or not. As set forth below, these practices also violate the prohibitions against intentional discrimination contained within Title VI, the Safe Streets Act, and the Fourteenth Amendment. 2. Ferguson’s Law Enforcement Practices Are Motivated in Part by Discriminatory Intent in Violation of the Fourteenth Amendment and Other Federal Laws The race-based disparities created by Ferguson’s law enforcement practices cannot be explained by chance or by any difference in the rates at which people of different races adhere to the law. These disparities occur, at least in part, because Ferguson law enforcement practices are directly shaped and perpetuated by racial bias. Those practices thus operate in violation of the Fourteenth Amendment’s Equal Protection Clause, which prohibits discriminatory policing on the basis of race. Whren, 517 U.S. at 813; Johnson v. Crooks, 326 F.3d 995, 999 (8th Cir. 2003).47 An Equal Protection Clause violation can occur where, as here, the official administration of facially neutral laws or policies results in a discriminatory effect that is motivated, at least in part, by a discriminatory purpose. See Washington v. Davis, 426 U.S. 229, 239-40 (1976). In assessing whether a given practice stems from a discriminatory purpose, courts conduct a "sensitive inquiry into such circumstantial and direct evidence of intent as may be available," including historical background, contemporaneous statements by decision makers, and substantive departures from normal procedure. Vill. of Arlington Heights, 429 U.S. at 266; United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). To violate the Equal Protection Clause, official action need not rest solely on racially discriminatory purposes; rather, official action violates the Equal Protection Clause if it is motivated, at least in part, by discriminatory purpose. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). We have uncovered significant evidence showing that racial bias has impermissibly played a role in shaping the actions of police and court officials in Ferguson. That evidence, detailed below, includes: 1) the consistency and magnitude of the racial disparities found throughout police and court enforcement actions; 2) direct communications by police supervisors and court officials that exhibit racial bias, particularly against African Americans; 3) a number of other communications by police and court officials that reflect harmful racial stereotypes; 4) the background and historic context surrounding FPD’s racially disparate enforcement practices; 5) 47 Ferguson’s discriminatory practices also violate Title VI and the Safe Streets Act, which, in addition to prohibiting some forms of unintentional conduct that has a disparate impact based on race, also prohibit intentionally discriminatory conduct that has a disparate impact. See 42 U.S.C. § 2000d; 42 U.S.C. § 3789d. 70 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 164 of 202 the fact that City, police, and court officials failed to take any meaningful steps to evaluate or address the race-based impact of its law enforcement practices despite longstanding and widely reported racial disparities, and instead consistently reapplied police and court practices known to disparately impact African Americans. a. Consistency and Magnitude of Identified Racial Disparities In assessing whether an official action was motivated in part by discriminatory intent, the actual impact of the action and whether it "bears more heavily on one race or another" may "provide an important starting point." Vill. of Arlington Heights, 429 U.S. at 266 (internal citations and quotation marks omitted). Indeed, in rare cases, statistical evidence of discriminatory impact may be sufficiently probative to itself establish discriminatory intent. Hazelwood School Dist. v. United States, 433 U.S. 299, 307-08 (1977) (noting in the Title VII context that where "gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination"). The race-based disparities we have found are not isolated or aberrational; rather, they exist in nearly every aspect of Ferguson police and court operations. As discussed above, statistical analysis shows that African Americans are more likely to be searched but less likely to have contraband found on them; more likely to receive a citation following a stop and more likely to receive multiple citations at once; more likely to be arrested; more likely to have force used against them; more likely to have their case last longer and require more encounters with the municipal court; more likely to have an arrest warrant issued against them by the municipal court; and more likely to be arrested solely on the basis of an outstanding warrant. As noted above, many of these disparities would occur by chance less than one time in 1000. These disparities provide significant evidence of discriminatory intent, as the "impact of an official action is often probative of why the action was taken in the first place since people usually intend the natural consequences of their actions." Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 487 (1997); see also Davis, 426 U.S. at 242 ("An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another."). These disparities are unexplainable on grounds other than race and evidence that racial bias, whether implicit or explicit, has shaped law enforcement conduct.48 b. Direct Evidence of Racial Bias Our investigation uncovered direct evidence of racial bias in the communications of influential Ferguson decision makers. In email messages and during interviews, several court and law enforcement personnel expressed discriminatory views and intolerance with regard to race, religion, and national origin. The content of these communications is unequivocally derogatory, dehumanizing, and demonstrative of impermissible bias. 48 Social psychologists have long recognized the influence of implicit racial bias on decision making, and law enforcement experts have similarly acknowledged the impact of implicit racial bias on law enforcement decisions. See, e.g., R. Richard Banks, Jennifer L. Eberhardt, & Lee Ross, Discrimination and Implicit Bias in a Racially Unequal Society, 94 Cal. L. Rev. 1169 (2006); Tracey G. Gove, Implicit Bias and Law Enforcement, The Police Chief (October 2011). 71 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 165 of 202 We have discovered evidence of racial bias in emails sent by Ferguson officials, all of whom are current employees, almost without exception through their official City of Ferguson email accounts, and apparently sent during work hours. These email exchanges involved several police and court supervisors, including FPD supervisors and commanders. The following emails are illustrative:  A November 2008 email stated that President Barack Obama would not be President for very long because "what black man holds a steady job for four years."  A March 2010 email mocked African Americans through speech and familial stereotypes, using a story involving child support. One line from the email read: "I be so glad that dis be my last child support payment! Month after month, year after year, all dose payments!"  An April 2011 email depicted President Barack Obama as a chimpanzee.  A May 2011 email stated: "An African-American woman in New Orleans was admitted into the hospital for a pregnancy termination. Two weeks later she received a check for $5,000. She phoned the hospital to ask who it was from. The hospital said,'Crimestoppers.’"  A June 2011 email described a man seeking to obtain "welfare" for his dogs because they are "mixed in color, unemployed, lazy, can’t speak English and have no frigging clue who their Daddies are."  An October 2011 email included a photo of a bare-chested group of dancing women, apparently in Africa, with the caption, "Michelle Obama’s High School Reunion."  A December 2011 email included jokes that are based on offensive stereotypes about Muslims. Our review of documents revealed many additional email communications that exhibited racial or ethnic bias, as well as other forms of bias. Our investigation has not revealed any indication that any officer or court clerk engaged in these communications was ever disciplined. Nor did we see a single instance in which a police or court recipient of such an email asked that the sender refrain from sending such emails, or any indication that these emails were reported as inappropriate. Instead, the emails were usually forwarded along to others.49 49 We did find one instance in 2012 in which the City Manager forwarded an email that played upon stereotypes of Latinos, but within minutes of sending it, sent another email to the recipient in which he stated he had not seen the offensive part of the email and apologized for the "inappropriate and offensive" message. Police and court staff took no such corrective action, and indeed in many instances expressed amusement at the offensive correspondence. 72 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 166 of 202 Critically, each of these email exchanges involved supervisors of FPD's patrol and court operations.50 FPD patrol supervisors are responsible for holding officers accountable to governing laws, including the Constitution, and helping to ensure that officers treat all people equally under the law, regardless of race or any other protected characteristic. The racial animus and stereotypes expressed by these supervisors suggest that they are unlikely to hold an officer accountable for discriminatory conduct or to take any steps to discourage the development or perpetuation of racial stereotypes among officers. Similarly, court supervisors have significant influence and discretion in managing the court’s operations and in processing individual cases. As discussed in Parts I and III.B of this report, our investigation has found that a number of court rules and procedures are interpreted and applied entirely at the discretion of the court clerks. These include: whether to require a court appearance for certain offenses; whether to grant continuances or other procedural requests; whether to accept partial payment of an owed fine; whether to cancel a warrant without a bond payment; and whether to provide individuals with documentation enabling them to have a suspended driver’s license reinstated before the full fine owed has been paid off. Court clerks are also largely responsible for setting bond amounts. The evidence we found thus shows not only racial bias, but racial bias by those with considerable influence over the outcome of any given court case. This documentary evidence of explicit racial bias is consistent with reports from community members indicating that some FPD officers use racial epithets in dealing with members of the public. We spoke with one African-American man who, in August 2014, had an argument in his apartment to which FPD officers responded, and was immediately pulled out of the apartment by force. After telling the officer, "you don’t have a reason to lock me up," he claims the officer responded: "N*****, I can find something to lock you up on." When the man responded, "good luck with that," the officer slammed his face into the wall, and after the man fell to the floor, the officer said, "don’t pass out motherf****r because I’m not carrying you to my car." Another young man described walking with friends in July 2014 past a group of FPD officers who shouted racial epithets at them as they passed. Courts have widely acknowledged that direct statements exhibiting racial bias are exceedingly rare, and that such statements are not necessary for establishing the existence of discriminatory purpose. See, e.g., Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (noting that "discriminatory intent is rarely susceptible to direct proof"); see also Thomas v. Eastman Kodak Co., 183 F.3d 38, 64 (1st Cir. 1999) (noting in Title VII case that "[t]here is no requirement that a plaintiff... must present direct,'smoking gun’ evidence of racially biased decision making in order to prevail"); Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998) (noting in Title VII case that "[r]arely will there be direct evidence from the lips of the defendant proclaiming his or her racial animus"). Where such evidence does exist, however, it is highly probative of discriminatory intent. That is particularly true where, as here, the communications exhibiting bias are made by those with considerable decision-making authority. See Doe v. 50 We were able to review far more emails from FPD supervisors than patrol officers. City officials informed us that, while many FPD supervisors have their email accounts on hard drives in the police department, most patrol officers use a form of webmail that does not retain messages once they are deleted. 73 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 167 of 202 Mamaroneck, 462 F. Supp. 2d 520, 550 (S.D.N.Y. 2006); Eberhart v. Gettys, 215 F. Supp. 2d 666, 678 (M.D.N.C. 2002). c. Evidence of Racial Stereotyping Several Ferguson officials told us during our investigation that it is a lack of "personal responsibility" among African-American members of the Ferguson community that causes African Americans to experience disproportionate harm under Ferguson’s approach to law enforcement. Our investigation suggests that this explanation is at odd with the facts. While there are people of all races who may lack personal responsibility, the harm of Ferguson’s approach to law enforcement is largely due to the myriad systemic deficiencies discussed above. Our investigation revealed African Americans making extraordinary efforts to pay off expensive tickets for minor, often unfairly charged, violations, despite systemic obstacles to resolving those tickets. While our investigation did not indicate that African Americans are disproportionately irresponsible, it did reveal that, as the above emails reflect, some Ferguson decision makers hold negative stereotypes about African Americans, and lack of personal responsibility is one of them. Application of this stereotype furthers the disproportionate impact of Ferguson’s police and court practices. It causes court and police decision makers to discredit African Americans’ explanations for not being able to pay tickets and allows officials to disown the harms of Ferguson’s law enforcement practices. The common practice among Ferguson officials of writing off tickets further evidences a double standard grounded in racial stereotyping. Even as Ferguson City officials maintain the harmful stereotype that black individuals lack personal responsibility—and continue to cite this lack of personal responsibility as the cause of the disparate impact of Ferguson’s practices— white City officials condone a striking lack of personal responsibility among themselves and their friends. Court records and emails show City officials, including the Municipal Judge, the Court Clerk, and FPD supervisors assisting friends, colleagues, acquaintances, and themselves in eliminating citations, fines, and fees. For example:  In August 2014, the Court Clerk emailed Municipal Judge Brockmeyer a copy of a Failure to Appear notice for a speeding violation issued by the City of Breckenridge, and asked: "[FPD patrol supervisor] came to me this morning, could you please take [care] of this for him in Breckenridge?" The Judge replied: "Sure." Judge Brockmeyer also serves as Municipal Judge in Breckenridge.  In October 2013, Judge Brockmeyer sent Ferguson’s Prosecuting Attorney an email with the subject line "City of Hazelwood vs. Ronald Brockmeyer." The Judge wrote: "Pursuant to our conversation, attached please find the red light camera ticket received by the undersigned. I would appreciate it if you would please see to it that this ticket is dismissed." The Prosecuting Attorney, who also serves as prosecuting attorney in Hazelwood, responded: "I worked on red light matters today and dismissed the ticket that you sent over. Since I entered that into the system today, you may or may not get a second notice – you can just ignore that." 74 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 168 of 202  In August 2013, an FPD patrol supervisor wrote an email entitled "Oops" to the Prosecuting Attorney regarding a ticket his relative received in another municipality for traveling 59 miles per hour in a 40 miles-per-hour zone, noting "[h]aving it dismissed would be a blessing." The Prosecuting Attorney responded that the prosecutor of that other municipality promised to nolle pros the ticket. The supervisor responded with appreciation, noting that the dismissal "[c]ouldn’t have come at a better time."  Also in August 2013, Ferguson’s Mayor emailed the Prosecuting Attorney about a parking ticket received by an employee of a non-profit day camp for which the Mayor sometimes volunteers. The Mayor wrote that the person "shouldn’t have left his car unattended there, but it was an honest mistake" and stated, "I would hate for him to have to pay for this, can you help?" The Prosecuting Attorney forwarded the email to the Court Clerk, instructing her to "NP [nolle prosequi, or not prosecute] this parking ticket."  In November 2011, a court clerk received a request from a friend to "fix a parking ticket" received by the friend’s coworker’s wife. After the ticket was faxed to the clerk, she replied: "It’s gone baby!"  In March 2014, a friend of the Court Clerk’s relative emailed the Court Clerk with a scanned copy of a ticket asking if there was anything she could do to help. She responded: "Your ticket of $200 has magically disappeared!" Later, in June 2014, the same person emailed the Court Clerk regarding two tickets and asked: "Can you work your magic again? It would be deeply appreciated." The Clerk later informed him one ticket had been dismissed and she was waiting to hear back about the second ticket. These are just a few illustrative examples. It is clear that writing off tickets between the Ferguson court staff and the clerks of other municipal courts in the region is routine. Email exchanges show that Ferguson officials secured or received ticket write-offs from staff in a number of neighboring municipalities. There is evidence that the Court Clerk and a City of Hazelwood clerk "fixed" at least 12 tickets at each other’s request, and that the Court Clerk successfully sought help with a ticket from a clerk in St. Ann. And in April 2011, a court administrator in the City of Pine Lawn emailed the Ferguson Court Clerk to have a warrant recalled for a person applying for a job with the Pine Lawn Police Department. The court administrator explained that "[a]fter he gets the job, he will have money to pay off his fines with Ferguson." The Court Clerk recalled the warrant and issued a new court date for more than two months after the request was made. City officials’ application of the stereotype that African Americans lack "personal responsibility" to explain why Ferguson’s practices harm African Americans, even as these same City officials exhibit a lack of personal—and professional—responsibility in handling their own and their friends’ code violations, is further evidence of discriminatory bias on the part of decision makers central to the direction of law enforcement in Ferguson. 75 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 169 of 202 d. Historical Background Until the 1960s, Ferguson was a "sundown town" where African Americans were banned from the City after dark. The City would block off the main road from Kinloch, which was a poor, all-black suburb, "with a chain and construction materials but kept a second road open during the day so housekeepers and nannies could get from Kinloch to jobs in Ferguson."51 During our investigative interviews, several older African-American residents recalled this era in Ferguson and recounted that African Americans knew that, for them, the City was "off-limits." The Ferguson of half a century ago is not the same Ferguson that exists today. We heard from many residents—black and white—who expressed pride in their community, especially with regard to the fact that Ferguson is one of the most demographically diverse communities in the area. Pride in this aspect of Ferguson is well founded; Ferguson is more diverse than most of the United States, and than many of its surrounding cities. It is clear that many Ferguson residents of different races genuinely embrace that diversity. But we also found evidence during our investigation that some within Ferguson still have difficulty coming to terms with Ferguson’s changing demographics and seeing Ferguson’s African American and white residents as equals in civic life. While total population rates have remained relatively constant over the last three decades, the portion of Ferguson residents who are African American has increased steadily but dramatically, from 25% in 1990 to 67% in 2010. Some individuals, including individuals charged with discretionary enforcement decisions in either the police department or the court, have expressed concerns about the increasing number of African Americans that have moved to Ferguson in recent years. Similarly, some City officials and residents we spoke with explicitly distinguished Ferguson’s African-American residents from Ferguson’s "normal" residents or "regular" people. One white third-generation Ferguson resident told us that in many ways Ferguson is "progressive and quite vibrant," while in another it is "typical—trying to hang on to its'whiteness.’" On its own, Ferguson’s historical backdrop as a racially segregated community that did not treat African Americans equally under the law does not demonstrate that law enforcement practices today are motivated by impermissible discriminatory intent. It is one factor to consider, however, especially given the evidence that, among some in Ferguson, these attitudes persist today. As courts have instructed, the historical background of an official practice that leads to discriminatory effects is, together with other evidence, probative as to whether that practice is grounded in part in discriminatory purposes. See Vill. of Arlington Heights, 429 U.S. at 267; see also Rogers v. Lodge, 458 U.S. 613, passim (1982). e. Failure to Evaluate or Correct Practices that Have Long Resulted in a Racially Disparate Impact That the discriminatory effect of Ferguson’s law enforcement practices is the result of intentional discrimination is further evidenced by the fact that City, police, and court officials have consistently failed to evaluate or reform—and in fact appear to have redoubled their 51 Richard Rothstein, The Making of Ferguson, Econ. Policy Inst. (Oct. 2014), available at http://www.epi.org/publication/making-ferguson/. 76 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 170 of 202 commitment to—the very practices that have plainly and consistently exerted a disparate impact on African Americans. The disparities we have identified appear to be longstanding. The statistical analysis performed as part of our investigation relied upon police and court data from recent years, but FPD has collected data related to vehicle stops pursuant to state requirements since 2000. Each year, that information is gathered by FPD, sent to the office of the Missouri Attorney General, and published on the Missouri Attorney General’s webpage.52 The data show disparate impact on African Americans in Ferguson for as long as that data has been reported. Based on that racial profiling data, Missouri publishes a "Disparity Index" for each reporting municipality, calculated as the percent of stops of a certain racial group compared with that group’s local population rate. In each of the last 14 years, the data show that African Americans are "over represented" in FPD’s vehicular stops.53 That data also shows that in most years, FPD officers searched African Americans at higher rates than others, but found contraband on African Americans at lower rates. In 2001, for example, African Americans comprised about the same proportion of the population as whites, but while stops of white drivers accounted for 1,495 stops, African Americans accounted for 3,426, more than twice as many. While a white person stopped that year was searched in 6% of cases, a black person stopped was searched in 14% of cases. That same year, searches of whites resulted in a contraband finding in 21% of cases, but searches of African Americans only resulted in a contraband finding in 16% of cases. Similar disparities were identified in most other years, with varying degrees of magnitude. In any event, the data reveals a pattern of racial disparities in Ferguson’s police activities. That pattern appears to have been ignored by Ferguson officials. That the extant racial disparities are intentional is also evident in the fact that Ferguson has consistently returned to the unlawful practices described in Parts III.A. and B. of this Report knowing that they impose a persistent disparate impact on African Americans. City officials have continued to encourage FPD to stop and cite aggressively as part of its revenue generation efforts, even though that encouragement and increased officer discretion has yielded disproportionate African-American representation in FPD stops and citations. Until we recommended it during our investigation, FPD officials had not restricted officer discretion to issue multiple citations at once, even though the application of that discretion has led officers to issue far more citations to African Americans at once than others, on average, and even though only black individuals (35 in total) ever received five or more citations at once over a three-year period. FPD has not provided further guidance to constrain officer discretion in conducting searches, even though FPD officers have, for years, searched African Americans at higher rates than others but found contraband during those searches less often than in searches of individuals of other races. 52 See Missouri Vehicle Stops Report, Missouri Attorney General, http://ago.mo.gov/VehicleStops/Reports.php?lea=161 (last visited Feb. 13, 2015). 53 Data for the entire state of Missouri shows an even higher "Disparity Index" for those years than the disparity index present in Ferguson. This raises, by the state’s own metric, considerable concerns about policing outside of Ferguson as well. 77 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 171 of 202 Similarly, City officials have not taken any meaningful steps to contain the discretion of court clerks to grant continuances, clear warrants, or enable driver’s license suspensions to be lifted, even though those practices have resulted in warrants being issued and executed at highly disproportionate rates against African Americans. Indeed, until the City of Ferguson repealed the Failure to Appear statute in September 2014—after this investigation began—the City had not taken meaningful steps to evaluate or reform any of the court practices described in this Report, even though the implementation of those practices has plainly exerted a disparate impact on African Americans. FPD also has not significantly altered its use-of-force tactics, even though FPD records make clear that current force decisions disparately impact black suspects, and that officers appear to assess threat differently depending upon the race of the suspect. FPD, for example, has not reviewed or revised its canine program, even though available records show that canine officers have exclusively set their dogs against black individuals, often in cases where doing so was not justified by the danger presented. In many incidents in which officers used significant levels of force, the facts as described by the officers themselves did not appear to support the force used, especially in light of the fact that less severe tactics likely would have been equally effective. In some of these incidents, law enforcement experts with whom we consulted could find no explanation other than race to explain the severe tactics used. During our investigation, FPD officials told us that their police tactics are responsive to the scenario at hand. But records suggest that, where a suspect or group of suspects is white, FPD applies a different calculus, typically resulting in a more measured law enforcement response. In one 2012 incident, for example, officers reported responding to a fight in progress at a local bar that involved white suspects. Officers reported encountering "40-50 people actively fighting, throwing bottles and glasses, as well as chairs." The report noted that "one subject had his ear bitten off." While the responding officers reported using force, they only used "minimal baton and flashlight strikes as well as fists, muscling techniques and knee strikes." While the report states that "due to the amount of subjects fighting, no physical arrests were possible," it notes also that four subjects were brought to the station for "safekeeping." While we have found other evidence that FPD later issued a wanted for two individuals as a result of the incident, FPD’s response stands in stark contrast to the actions officers describe taking in many incidents involving black suspects, some of which we earlier described. Based on this evidence, it is apparent that FPD requires better training, limits on officer discretion, increased supervision, and more robust accountability systems, not only to ensure that officers act in accordance with the Fourth Amendment, but with the Fourteenth Amendment as well. FPD has failed to take any such corrective action, and instead has actively endorsed and encouraged the perpetuation of the practices that have led to such stark disparities. This, together with the totality of the facts that we have found, evidences that those practices exist, at least in part, on account of an unconstitutional discriminatory purpose. See Feeney, 442 U.S. at 279 n.24 (noting that the discriminatory intent inquiry is "practical," because what "any official entity is'up to’ may be plain from the results its actions achieve, or the results they avoid"). 78 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 172 of 202 D. Ferguson Law Enforcement Practices Erode Community Trust, Especially Among Ferguson’s African-American Residents, and Make Policing Less Effective, More Difficult, and Less Safe The unlawful police misconduct and court practices described above have generated great distrust of Ferguson law enforcement, especially among African Americans.54 As described below, other FPD practices further contribute to distrust, including FPD’s failure to hold officers accountable for misconduct, failure to implement community policing principles, and the lack of diversity within FPD. Together, these practices severely damaged the relationship between African Americans and the Ferguson Police Department long before Michael Brown’s shooting death in August 2014. This divide has made policing in Ferguson less effective, more difficult, and more likely to discriminate. 1. Ferguson’s Unlawful Police and Court Practices Have Led to Distrust and Resentment Among Many in Ferguson The lack of trust between a significant portion of Ferguson’s residents, especially its African-American residents, and the Ferguson Police Department has become, since August 2014, undeniable. The causes of this distrust and division, however, have been the subject of debate. City and police officials, and some other Ferguson residents, have asserted that this lack of meaningful connection with much of Ferguson’s African-American community is due to the fact that they are "transient" renters; that they do not appreciate how much the City of Ferguson does for them; that "pop-culture" portrays alienating themes; or because of "rumors" that the police and municipal court are unyielding because they are driven by raising revenue. Our investigation showed that the disconnect and distrust between much of Ferguson’s African-American community and FPD is caused largely by years of the unlawful and unfair law enforcement practices by Ferguson’s police department and municipal court described above. In the documents we reviewed, the meetings we observed and participated in, and in the hundreds of conversations Civil Rights Division staff had with residents of Ferguson and the surrounding area, many residents, primarily African-American residents, described being belittled, disbelieved, and treated with little regard for their legal rights by the Ferguson Police Department. One white individual who has lived in Ferguson for 48 years told us that it feels like Ferguson’s police and court system is "designed to bring a black man down... [there are] no second chances." We heard from African-American residents who told us of Ferguson’s "long history of targeting blacks for harassment and degrading treatment," and who described the steps they take to avoid this—from taking routes to work that skirt Ferguson to moving out of state. An African-American minister of a church in a nearby community told us that he doesn’t allow his two sons to drive through Ferguson out of "fear that they will be targeted for arrest." African Americans’ views of FPD are shaped not just by what FPD officers do, but by how they do it. During our investigation, dozens of African Americans in Ferguson told us of 54 Although beyond the scope of this investigation, it appears clear that individuals’ experiences with other law enforcement agencies in St. Louis County, including with the police departments in surrounding municipalities and the County Police, in many instances have contributed to a general distrust of law enforcement that impacts interactions with the Ferguson police and municipal court. 79 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 173 of 202 verbal abuse by FPD officers during routine interactions, and these accounts are consistent with complaints people have made about FPD for years. In December 2011, for example, an African-American man alleged that as he was standing outside of Wal-Mart, an officer called him a "stupid motherf****r" and a "bastard." According to the man, a lieutenant was on the scene and did nothing to reproach the officer, instead threatening to arrest the man. In April 2012, officers allegedly called an African-American woman a "bitch" and a "mental case" at the jail following an arrest. In June 2011, a 60-year-old man complained that an officer verbally harassed him while he stood in line to see the judge in municipal court. According to the man, the officer repeatedly ordered him to move forward as the line advanced and, because he did not advance far enough, turned to the other court-goers and joked, "he is hooked on phonics." Another concern we heard from many African-American residents, and saw in the files we reviewed, was of casual intimidation by FPD officers, including threats to draw or fire their weapons, often for seemingly little or no cause. In September 2012, a 28-year resident of Ferguson complained to FPD about a traffic stop during which a lieutenant approached with a loud and confrontational manner with his hand on his holstered gun. The resident, who had a military police background, noted that the lieutenant’s behavior, especially having his hand on his gun, ratcheted up the tension level, and he questioned why the lieutenant had been so aggressive. In another incident captured on video and discussed below in more detail, an officer placed his gun on a wall or post and pointed it back and forth to each of two store employees as he talked to them while they took the trash out late one night. In another case discussed above, a person reported that an FPD officer removed his ECW during a traffic stop and continuously tapped the ECW on the roof of the person’s car. These written complaints reported to FPD are consistent with complaints we heard from community members during our investigation about officers casually threatening to hurt or even shoot them. It appears that many police and City officials were unaware of this distrust and fear of Ferguson police among African Americans prior to August 2014. Ferguson’s Chief, for example, told us that prior to the Michael Brown shooting he thought community-police relations were good. During our investigation, however, City and police leadership, and many officers of all ranks, acknowledged a deep divide between police and some Ferguson residents, particularly black residents. Mayor Knowles acknowledged that there is "clearly mistrust" of FPD by many community members, including a "systemic problem" with youth not wanting to work with police. One FPD officer estimated that about a quarter of the Ferguson community distrusts the police department. A growing body of research, alongside decades of police experience, is consistent with what our investigation found in Ferguson: that when police and courts treat people unfairly, unlawfully, or disrespectfully, law enforcement loses legitimacy in the eyes of those who have experienced, or even observed, the unjust conduct. See, e.g., Tom R. Tyler & Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002). Further, this loss of legitimacy makes individuals more likely to resist enforcement efforts and less likely to cooperate with law enforcement efforts to prevent and investigate crime. See, e.g., Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law & Soc’y Rev. 513, 534-36 (2003); Promoting Cooperative Strategies to Reduce Racial Profiling 20-21 (U.S. Dep’t of Justice, Office of Community 80 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 174 of 202 Oriented Policing Services, 2008) ("Being viewed as fair and just is critical to successful policing in a democracy. When the police are perceived as unfair in their enforcement, it will undermine their effectiveness."); Ron Davis et al., Exploring the Role of the Police in Prisoner Reentry 13-14 (Nat’l Inst. of Justice, New Perspectives in Policing, July 2012) ("Increasingly, research is supporting the notion that legitimacy is an important factor in the effectiveness of law, and the establishment and maintenance of legitimacy are particularly important in the context of policing.") (citations omitted). To improve community trust and police effectiveness, Ferguson must ensure not only that its officers act in accord with the Constitution, but that they treat people fairly and respectfully. 2. FPD’s Exercise of Discretion, Even When Lawful, Often Undermines Community Trust and Public Safety Even where lawful, many discretionary FPD enforcement actions increase distrust and significantly decrease the likelihood that individuals will seek police assistance even when they are victims of crime, or that they will cooperate with the police to solve or prevent other crimes. Chief Jackson told us "we don’t get cooperating witnesses" from the apartment complexes. Consistent with this statement, our review of documents and our conversations with Ferguson residents revealed many instances in which they are reluctant to report being victims of crime or to cooperate with police, and many instances in which FPD imposed unnecessary negative consequences for doing so. In one instance, for example, a woman called FPD to report a domestic disturbance. By the time the police arrived, the woman’s boyfriend had left. The police looked through the house and saw indications that the boyfriend lived there. When the woman told police that only she and her brother were listed on the home’s occupancy permit, the officer placed the woman under arrest for the permit violation and she was jailed. In another instance, after a woman called police to report a domestic disturbance and was given a summons for an occupancy permit violation, she said, according to the officer’s report, that she "hated the Ferguson Police Department and will never call again, even if she is being killed." In another incident, a young African-American man was shot while walking on the road with three friends. The police department located and interviewed two of the friends about the shooting. After the interview, they arrested and jailed one of these cooperating witnesses, who was 19 years old, on an outstanding municipal warrant. We also reviewed many instances in which FPD officers arrested individuals who sought to care for loved ones who had been hurt. In one instance from May 2014, for example, a man rushed to the scene of a car accident involving his girlfriend, who was badly injured and bleeding profusely when he arrived. He approached and tried to calm her. When officers arrived they treated him rudely, according to the man, telling him to move away from his girlfriend, which he did not want to do. They then immediately proceeded to handcuff and arrest him, which, officers assert, he resisted. EMS and other officers were not on the scene during this arrest, so the accident victim remained unattended, bleeding from her injuries, while officers were arresting the boyfriend. Officers charged the man with five municipal code violations (Resisting Arrest, Disorderly Conduct, Assault on an Officer, Obstructing Government Operations, and Failure to 81 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 175 of 202 Comply) and had his vehicle towed and impounded. In an incident from 2013, a woman sought to reach her fiancé, who was in a car accident. After she refused to stay on the sidewalk as the officer ordered, she was arrested and jailed. While it is sometimes both essential and difficult to keep distraught family from being in close proximity to their loved ones on the scene of an accident, there is rarely a need to arrest and jail them rather than, at most, detain them on the scene. Rather than view these instances as opportunities to convey their compassion for individuals at times of crisis even as they maintain order, FPD appears instead to view these and similar incidents we reviewed as opportunities to issue multiple citations and make arrests. For very little public safety benefit, FPD loses opportunities to build community trust and respect, and instead further alienates potential allies in crime prevention. 3. FPD’s Failure to Respond to Complaints of Officer Misconduct Further Erodes Community Trust Public trust has been further eroded by FPD’s lack of any meaningful system for holding officers accountable when they violate law or policy. Through its system for taking, investigating, and responding to misconduct complaints, a police department has the opportunity to demonstrate that officer misconduct is unacceptable and unrepresentative of how the law enforcement agency values and treats its constituents. In this way, a police department’s internal affairs process provides an opportunity for the department to restore trust and affirm its legitimacy. Similarly, misconduct investigations allow law enforcement the opportunity to provide community members who have been mistreated a constructive, effective way to voice their complaints. And, of course, effective internal affairs processes can be a critical part of correcting officer behavior, and improving police training and policies. Ferguson’s internal affairs system fails to respond meaningfully to complaints of officer misconduct. It does not serve as a mechanism to restore community members’ trust in law enforcement, or correct officer behavior. Instead, it serves to contrast FPD’s tolerance for officer misconduct against the Department’s aggressive enforcement of even minor municipal infractions, lending credence to a sentiment that we heard often from Ferguson residents: that a "different set of rules" applies to Ferguson’s police than to its African-American residents, and that making a complaint about officer misconduct is futile. Despite the statement in FPD’s employee misconduct investigation policy that "[t]he integrity of the police department depends on the personal integrity and discipline of each employee," FPD has done little to investigate external allegations that officers have not followed FPD policy or the law, or, with a few notable exceptions, to hold officers accountable when they have not. Ferguson Police Department makes it difficult to make complaints about officer conduct, and frequently assumes that the officer is telling the truth and the complainant is not, even where objective evidence indicates that the reverse is true. It is difficult for individuals to make a misconduct complaint against an officer in Ferguson, in part because Ferguson both discourages individuals from making complaints and discourages City and police staff from accepting them. In a March 2014 email, for example, a 82 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 176 of 202 lieutenant criticized a sergeant for taking a complaint from a man on behalf of his mother, who stayed in her vehicle outside the police station. Despite the fact that Ferguson policy requires that complaints be taken "from any source, identified or anonymous," the lieutenant stated "I would have had him bring her in, or leave." In another instance, a City employee took a complaint of misconduct from a Ferguson resident and relayed it to FPD. An FPD captain sent an email in response that the City employee viewed as being "lectured" for taking the complaint. The City Manager agreed, calling the captain’s behavior "not only disrespectful and unacceptable, but it is dangerous in [that] it is inciteful [sic] and divisive." Nonetheless, there appeared to be no follow-up action regarding the captain, and the complaint was never logged as such or investigated. While official FPD policy states clearly that officers must "never attempt to dissuade any citizen from lodging a complaint," FPD General Order 301.3, a contrary leadership message speaks louder than policy. This message is reflected in statements by officers that indicate a need to justify their actions when they do accept a civilian complaint. In one case, a sergeant explained: "Nothing I could say helped, he demanded the complaint forms which were provided." In another: "I spoke to [two people seeking to make a complaint]... but after the conversation, neither had changed their mind and desired still to write out a complaint." We saw many instances in which people complained of being prevented from making a complaint, with no indication that FPD investigated those allegations. In one instance, for example, a man alleging significant excessive force reported the incident to a commander after being released from jail, stating that he was unable to make his complaint earlier because several different officers refused to let him speak to a sergeant to make a complaint about the incident and threatened to keep him in jail longer if he did not stop asking to make a complaint. Some individuals also fear that they will suffer retaliation from officers if they report misconduct or even merely speak out as witnesses when approached by someone from FPD investigating a misconduct complaint. For instance, in one case FPD acknowledged that a witness to the misconduct was initially reluctant to complete a written statement supporting the complainant because he wanted no "repercussions" from the subject officer or other officers. In another case involving alleged misconduct at a retail store that we have already described, the store’s district manager told the commander he did not want an investigation—despite how concerned he was by video footage showing an officer training his gun on two store employees as they took out the trash—because he wanted to "stay on the good side" of the police. Even when individuals do report misconduct, there is a significant likelihood it will not be treated as a complaint and investigated. In one case, FPD failed to open an investigation of an allegation made by a caller who said an officer had kicked him in the side of the head and stepped on his head and back while he was face down with his hands cuffed behind his back, all the while talking about having blood on him from somebody else and "being tired of the B.S." The officer did not stop until the other officer on the scene said words to the effect of, "[h]ey, he’s not fighting he’s cuffed." The man alleged that the officer then ordered him to "get the f*** up" and lifted him by the handcuffs, yanking his arms backward. The commander taking the call reported that the man stated that he supported the police and knew they had a tough job but was reporting the incident because it appeared the officer was under a lot of stress and needed counseling, and because he was hoping to prevent others from having the experience he did. The 83 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 177 of 202 commander’s email regarding the incident expressed no skepticism about the veracity of the caller’s report and was able to identify the incident (and thus the involved officers). Yet FPD did not conduct an internal affairs investigation of this incident, based on our review of all of FPD’s internal investigation files. There is not even an indication that a use-of-force report was completed. In another case, an FPD commander wrote to a sergeant that despite a complainant being "pretty adamant that she was profiled and that the officer was rude," the commander "didn’t even bother to send it to the chief for a control number" before hearing the sergeant’s account of the officer’s side of the story. Upon getting the officer’s account second hand from the sergeant, the commander forwarded the information to the Police Chief so that it could be "filed in the non-complaint file." FPD officers and commanders also often seek to frame complaints as being entirely related to complainants’ guilt or innocence, and therefore not subject to a misconduct investigation, even though the complaint clearly alleges officer misconduct. In one instance, for example, commanders told the complainant to go to court to fight her arrest, ignoring the complainant’s statement that the officer arrested her for Disorderly Conduct and Failure to Obey only after she asked for the officer’s name. In another instance, a commander stated that the complainant made no allegations unrelated to the merits of the arrest, even though the complainant alleged rudeness and being "intimidated" during arrest, among a number of other non-guilt related allegations. FPD appears to intentionally not treat allegations of misconduct as complaints even where it believes that the officer in fact committed the misconduct. In one incident, for example, a supervisor wrote an email directly to an officer about a complaint the Police Chief had received about an officer speeding through the park in a neighboring town. The supervisor informed the officer that the Chief tracked the car number given by the complainant back to the officer, but assured the officer that the supervisor’s email was "[j]ust for your information. No need to reply and there is no record of this other than this email." In another instance referenced above, the district manager of a retail store called a commander to tell him that he had a video recording that showed an FPD officer pull up to the store at about midnight while two employees were taking out the trash, take out his weapon, and put it on top of a concrete wall, pointed at the two employees. When the employees said they were just taking out the trash and asked the officer if he needed them to take off their coats so that he could see their uniforms, the officer told the employees that he knew they were employees and that if he had not known "I would have put you on the ground." The commander related in an email to the sergeant and lieutenant that "there is no reason to doubt the Gen. Manager because he said he watched the video and he clearly saw a weapon—maybe the sidearm or the taser." Nonetheless, despite noting that "we don’t need cowboy" and the "major concern" of the officer taking his weapon out of his holster and placing it on a wall, the commander concluded, "[n]othing for you to do with this other than make a mental note and for you to be on the lookout for that kind of behavior."55 55 This incident raises another concern regarding whether a second-hand informal account of a complaint, often the only record Ferguson retains, conveys the seriousness of the allegation of misconduct. In this illustrative instance, our conversation with a witness to this incident indicates that the officer pointed his weapon at each employee as he spoke to him, and threatened to shoot both, despite knowing that they were simply employees taking out the trash. 84 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 178 of 202 In another case, an officer investigating a report of a theft at a dollar store interrogated a minister pumping gas into his church van about the theft. The man alleged that he provided his identification to the officer and offered to return to the store to prove he was not the thief. The officer instead handcuffed the man and drove him to the store. The store clerk reported that the detained man was not the thief, but the officer continued to keep the man cuffed, allegedly calling him "f*****g stupid" for asking to be released from the cuffs. The man went directly to FPD to file a complaint upon being released by the officer. FPD conducted an investigation but, because the complainant did not respond to a cell phone message left by the investigator within 13 days, reclassified the complaint as "withdrawn," even as the investigator noted that the complaint of improper detention would otherwise have been sustained, and noted that the "[e]mployee has been counseled and retraining is forthcoming." In still another case, a lieutenant of a neighboring agency called FPD to report that a pizza parlor owner had complained to him that an off-duty FPD officer had become angry upon being told that police discounts were only given to officers in uniform and said to the restaurant owner as he was leaving, "I hope you get robbed!" The allegation was not considered a complaint and instead, despite its seriousness, was handled through counseling at the squad level.56 Even where a complaint is actually investigated, unless the complaint is made by an FPD commander, and sometimes not even then, FPD consistently takes the word of the officer over the word of the complainant, frequently even where the officer’s version of events is clearly at odds with the objective evidence. On the rare occasion that FPD does sustain an external complaint of officer misconduct, the discipline it imposes is generally too low to be an effective deterrent.57 Our investigation raised concerns in particular about how FPD responds to untruthfulness by officers. In many departments, a finding of untruthfulness pursuant to internal investigation results in an officer’s termination because the officer’s credibility on police reports and in providing testimony is subsequently subject to challenge. In FPD, untruthfulness appears not even to always result in a formal investigation, and even where sustained, has little effect. In one case we reviewed, FPD sustained a charge of untruthfulness against an officer after he was found to have lied to the investigator about whether he had engaged in an argument with a civilian over the loudspeaker of his police vehicle. FPD imposed only a 12-hour suspension on the officer. In addition, FPD appears not to have taken the officer’s untruthfulness into sufficient account in 56 We found additional examples of FPD officers behaving in public in a manner that reflects poorly on FPD and law enforcement more generally. In November 2010, an officer was arrested for DUI by an Illinois police officer who found his car crashed in a ditch off the highway. Earlier that night he and his squad mates—including his sergeant—were thrown out of a bar for bullying a customer. The officer received a thirty-day suspension for the DUI. Neither the sergeant nor any officers was disciplined for their behavior in the bar. In September 2012, an officer stood by eating a sandwich while a fight broke out at an annual street festival. After finally getting involved to break up the fight, he publically berated and cursed at his squad mates, screamed and cursed at the two female street vendors who were fighting, and pepper-sprayed a handcuffed female arrestee in the back of his patrol car. The officer received a written reprimand. 57 While the Chief’s "log" of Internal Affairs ("IA") investigations contains many sustained allegations, most of these were internally generated; that is, the complaint was made by an FPD employee, usually a commander. In addition, we found that a majority of complaints are never investigated as IA cases, or even logged as complaints. The Chief’s log, which he told us included all complaint investigations, includes 56 investigations from January 2010 through July 2014. Our review indicates that there were significantly more complaints of misconduct during this time period. Despite repeated requests, FPD provided us no other record of complaints received or investigated. 85 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 179 of 202 several subsequent complaints, including in at least one case in which the complainant alleged conduct very similar to that alleged in the case in which FPD found the officer untruthful. Nor, as discussed above, has FPD or the City disclosed this information to defendants challenging charges brought by the officer. In another case a supervisor was sustained for false testimony during an internal affairs investigation and was given a written reprimand. In another case in which an officer was clearly untruthful, FPD did not sustain the charge.58 In that case, an officer in another jurisdiction was assigned to monitor an intersection in that city because an FPD-marked vehicle allegedly had repeatedly been running the stop sign at that intersection. While at that intersection, and while receiving a complaint from a person about the FPD vehicle, the officer saw that very vehicle "dr[iving] through the stop sign without tapping a brake," according to a sergeant with the other jurisdiction. When asked to respond to these allegations, the officer wrote, unequivocally, "I assure you I don’t run stop signs." It is clear from the investigative file that FPD found that he did, in fact, run stop signs, as the officer was given counseling. Nonetheless, the officer received a counseling memo that made no mention of the officer’s written denial of the misconduct observed by another law enforcement officer. This officer continues to write reports regarding significant uses of force, several of which our investigation found questionable.59 By failing to hold officers accountable, FPD leadership sends a message that FPD officers can behave as they like, regardless of law or policy, and even if caught, that punishment will be light. This message serves to condone officer misconduct and fuel community distrust. 4. FPD’s Lack of Community Engagement Increases the Likelihood of Discriminatory Policing and Damages Public Trust Alongside its divisive law enforcement practices and lack of meaningful response to community concerns about police conduct, FPD has made little effort in recent years to employ community policing or other community engagement strategies. This lack of community engagement has precluded the possibility of bridging the divide caused by Ferguson’s law enforcement practices, and has increased the likelihood of discriminatory policing. Community policing and related community engagement strategies provide the opportunity for officers and communities to work together to identify the causes of crime and disorder particular to their community, and to prioritize law enforcement efforts. See Community Policing Defined 1-16 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2014). The focus of these strategies—in stark contrast to Ferguson’s current law enforcement approach—is on crime prevention rather than on making arrests. See Effective Policing and Crime Prevention: A Problem Oriented Guide for Mayors, City Managers, and County Executives 1-62 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2009). When implemented fully, community policing creates opportunities for officers and community 58 FPD may have initially accepted this as a formal complaint, but then informally withdrew it after completion of the investigation. No rationale is provided for doing so, but the case does not appear on the Chief’s IA investigation log, and another case with this same IA number appears instead. 59 Our review of FPD’s handling of misconduct complaints is just one source of our concern about FPD’s efforts to ensure that officers are truthful in their reports and testimony, and to take appropriate measures when they are not. As discussed above, our review of FPD offense and force reports also raises this concern. 86 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 180 of 202 members to have frequent, positive interactions with each other, and requires officers to partner with communities to solve particular public safety problems that, together, they have decided to address. Research and experience show that community policing can be more effective at crime prevention and at making people feel safer. See Gary Cordner, Reducing Fear of Crime: Strategies for Police 47 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, Jan. 2010) ("Most studies of community policing have found that residents like community policing and feel safer when it is implemented where they live and work.") (citations omitted). Further, research and law enforcement experience show that community policing and engagement can overcome many of the divisive dynamics that disconnected Ferguson residents and City leadership alike describe, from a dearth of positive interactions to racial stereotyping and racial violence. See, e.g., Glaser, supra, at 207-11 (discussing research showing that community policing and similar approaches can help reduce racial bias and stereotypes and improve community relations); L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. of Crim. L. 115, 143-47 (2014) (describing how fully implemented and inclusive community policing can help avoid racial stereotyping and violence); Strengthening the Relationship Between Law Enforcement and Communities of Color: Developing an Agenda for Action 1-20 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2014). Ferguson’s community policing efforts appear always to have been somewhat modest, but have dwindled to almost nothing in recent years. FPD has no community policing or community engagement plan. FPD currently designates a single officer the "Community Resource Officer." This officer attends community meetings, serves as FPD’s public relations liaison, and is charged with collecting crime data. No other officers play any substantive role in community policing efforts. Officers we spoke with were fairly consistent in their acknowledgment of this, and of the fact that this move away from community policing has been due, at least in part, to an increased focus on code enforcement and revenue generation in recent years. As discussed above, our investigation found that FPD redeployed officers to 12-hour shifts, in part for revenue reasons. There is some evidence that community policing is more difficult to carry out when patrol officers are on 12-hour shifts, and this appears to be the case in Ferguson. While many officers in Ferguson support 12-hour shifts, several told us that the 12-hour shift has undermined community policing. One officer said that "FPD used to have a strong community policing ethic—then we went to a 12-hour day." Another officer told us that the 12-hour schedule, combined with a lack of any attempt to have officers remain within their assigned area, has resulted in a lack of any geographical familiarity by FPD officers. This same officer told us that it is viewed as more positive to write tickets than to "talk with your businesses." Another officer told us that FPD officers should put less energy into writing tickets and instead "get out of their cars" and get to know community members. One officer told us that officers could spend more time engaging with community members and undertaking problem-solving projects if FPD officers were not so focused on activities that generate revenue. This officer told us, "everything’s about the courts... the court’s enforcement priorities are money." Another officer told us that officers cannot "get out of the car and play basketball with the kids," because "we’ve removed all the basketball hoops— there’s an ordinance against it." While one officer told us that there was a police substation in 87 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 181 of 202 Canfield Green when FPD was more committed to community policing, another told us that now there is "nobody in there that anybody knows." City and police officials note that there are several active neighborhood groups in Ferguson. We reached out to each of these during our investigation and met with each one that responded. Some areas of Ferguson are well-represented by these groups. But City and police officials acknowledge that, since August 2014, they have realized that there are entire segments of the Ferguson community that they have never made an effort to know, especially African Americans who live in Ferguson’s large apartment complexes, including Canfield Green. While some City officials appear well-intentioned, they have also been too quick to presume that outreach to more disconnected segments of the Ferguson community will be futile. One City employee told us, "they think they do outreach, but they don’t," and that some Ferguson residents do not even realize their homes are in Ferguson. Our investigation indicated that, while the City and police department may have to use different strategies for engagement in some parts of Ferguson than in others, true community policing efforts can have positive results. As an officer who has patrolled the area told us, "most of the people in Canfield are good people. They just don’t have a lot of time to get involved." 5. Ferguson’s Lack of a Diverse Police Force Further Undermines Community Trust While approximately two-thirds of Ferguson’s residents are African American, only four of Ferguson’s 54 commissioned police officers are African American. Since August 2014, there has been widespread discussion about the impact this comparative lack of racial diversity within FPD has on community trust and police behavior. During this investigation we also heard repeated complaints about FPD’s lack of racial diversity from members of the Ferguson community. Our investigation indicates that greater diversity within Ferguson Police Department has the potential to increase community confidence in the police department, but may only be successful as part of a broader police reform effort. While it does appear that a lack of racial diversity among officers decreases African Americans’ trust in a police department, this observation must be qualified. Increasing a police department’s racial diversity does not necessarily increase community trust or improve officer conduct. There appear to be many reasons for this. One important reason is that African-American officers can abuse and violate the rights of African-American civilians, just as white officers can. And African-American officers who behave abusively can undermine community trust just as white officers can. Our investigation indicates that in Ferguson, individual officer behavior is largely driven by a police culture that focuses on revenue generation and is infected by race bias. While increased vertical and horizontal diversity, racial and otherwise, likely is necessary to change this culture, it probably cannot do so on its own. Consistent with our findings in Ferguson and other departments, research more broadly shows that a racially diverse police force does not guarantee community trust or lawful policing. See Diversity in Law Enforcement: A Literature Review 4 n.v. (U.S. Dep’t of Justice, Civil Rights Division, Office of Justice Programs, & U.S. Equal Employment Opportunity Commission, Submission to President’s Task Force on 21st Century Policing, Jan. 2015). The 88 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 182 of 202 picture is far more complex. Some studies show that Africa-American officers are less prejudiced than white officers as a whole, are more familiar with African-American communities, are more likely to arrest white suspects and less likely to arrest black suspects, and receive more cooperation from African Americans with whom they interact on the job. See David A. Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224-25 (2006). But studies also show that African Americans are equally likely to fire their weapons, arrest people, and have complaints made about their behavior, and sometimes harbor prejudice against African-American civilians themselves. Id. While a diverse police department does not guarantee a constitutional one, it is nonetheless critically important for law enforcement agencies, and the Ferguson Police Department in particular, to strive for broad diversity among officers and civilian staff. In general, notwithstanding the above caveats, a more racially diverse police department has the potential to increase confidence in police among African Americans in particular. See Joshua C. Cochran & Patricia Y. Warren, Racial, Ethnic, and Gender Differences in, Perceptions of the Police: The Salience of Officer Race Within the Context of Racial Profiling, 28(2) J. Contemp. Crim. Just. 206, 206-27 (2012). In addition, diversity of all types—including race, ethnicity, sex, national origin, religion, sexual orientation and gender identity—can be beneficial both to police-community relationships and the culture of the law enforcement agency. Increasing gender and sexual orientation diversity in policing in particular may be critical in re-making internal police culture and creating new assumptions about what makes policing effective. See, e.g., Sklansky, supra, at 1233-34; Richardson & Goff, supra, at 143-47; Susan L. Miller, Kay B. Forest, & Nancy C. Jurik, Diversity in Blue, Lesbian and Gay Police Officers in a Masculine Occupation, 5 Men and Masculinities 355, 355-85 (Apr. 2003).60 Moreover, aside from the beneficial impact a diverse police force may have on the culture of the department and police-community relations, police departments are obligated under law to provide equal opportunity for employment. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Our investigation indicates that Ferguson can and should do more to attract and hire a more diverse group of qualified police officers.61 However, for these efforts to be successful at increasing the diversity of its workforce, as well as effective at increasing community trust and improving officer behavior, they must be part of a broader reform effort within FPD. This reform effort must focus recruitment efforts on attracting qualified candidates of all demographics with the skills and temperament to police respectfully and effectively, and must ensure that all officers—regardless of race—are required to police lawfully and with integrity. 60 While the emphasis in Ferguson has been on racial diversity, FPD also, like many police agencies, has strikingly disparate gender diversity: in Ferguson, approximately 55% of residents are female, but FPD has only four female officers. See 2010 Census, U.S. Census Bureau (2010), available at factfinder.census.gov/bkmk/table/1.0/en/DEC/10_DP/DPDP1/1600000US2923986 (last visited Feb. 26, 2015). During our investigation we received many complaints about FPD’s lack of gender diversity as well. 61 While not the focus of our investigation, the information we reviewed indicated that Ferguson’s efforts to retain qualified female and black officers may be compromised by the same biases we saw more broadly in the department. In particular, while the focus of our investigation did not permit us to reach a conclusive finding, we found evidence that FPD tolerates sexual harassment by male officers, and has responded poorly to allegations of sexual harassment that have been made by female officers. 89 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 183 of 202 V. CHANGES NECESSARY TO REMEDY FERGUSON’S UNLAWFUL LAW ENFORCEMENT PRACTICES AND REPAIR COMMUNITY TRUST The problems identified within this letter reflect deeply entrenched practices and priorities that are incompatible with lawful and effective policing and that damage community trust. Addressing those problems and repairing the City’s relationship with the community will require a fundamental redirection of Ferguson’s approach to law enforcement, including the police and court practices that reflect and perpetuate this approach. Below we set out broad recommendations for changes that Ferguson should make to its police and court practices to correct the constitutional violations our investigation identified. Ensuring meaningful, sustainable, and verifiable reform will require that these and other measures be part of a court-enforceable remedial process that includes involvement from community stakeholders as well as independent oversight. In the coming weeks, we will seek to work with the City of Ferguson toward developing and reaching agreement on an appropriate framework for reform. A. Ferguson Police Practices 1. Implement a Robust System of True Community Policing Many of the recommendations included below would require a shift from policing to raise revenue to policing in partnership with the entire Ferguson community. Developing these relationships will take time and considerable effort. FPD should: a. Develop and put into action a policy and detailed plan for comprehensive implementation of community policing and problem-solving principles. Conduct outreach and involve the entire community in developing and implementing this plan; b. Increase opportunities for officers to have frequent, positive interactions with people outside of an enforcement context, especially groups that have expressed high levels of distrust of police. Such opportunities may include police athletic leagues and similar informal activities; c. Develop community partnerships to identify crime prevention priorities, with a focus on disconnected areas, such as Ferguson’s apartment complexes, and disconnected groups, such as much of Ferguson’s African-American youth; d. Modify officer deployment patterns and scheduling (such as moving away from the current 12-hour shift and assigning officers to patrol the same geographic areas consistently) to facilitate participating in crime prevention projects and familiarity with areas and people; e. Train officers on crime-prevention, officer safety, and anti-discrimination advantages of community policing. Train officers on mechanics of community policing and their role in implementing it; f. Measure and evaluate individual, supervisory, and agency police performance on community engagement, problem-oriented-policing projects, and crime prevention, rather than on arrest and citation productivity. 90 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 184 of 202 2. Focus Stop, Search, Ticketing and Arrest Practices on Community Protection FPD must fundamentally change the way it conducts stops and searches, issues citations and summonses, and makes arrests. FPD officers must be trained and required to abide by the law. In addition, FPD enforcement efforts should be reoriented so that officers are required to take enforcement action because it promotes public safety, not simply because they have legal authority to act. To do this, FPD should: a. Prohibit the use of ticketing and arrest quotas, whether formal or informal; b. Require that officers report in writing all stops, searches and arrests, including pedestrian stops, and that their reports articulate the legal authority for the law enforcement action and sufficient description of facts to support that authority; c. Require documented supervisory approval prior to: 1) Issuing any citation/summons that includes more than two charges; 2) Making an arrest on any of the following charges: i. Failure to Comply/Obey; ii. Resisting Arrest; iii. Disorderly Conduct/Disturbing the Peace; iv. Obstruction of Government Operations; 3) Arresting or ticketing an individual who sought police aid, or who is cooperating with police in an investigation; 4) Arresting on a municipal warrant or wanted; d. Revise Failure to Comply municipal code provision to bring within constitutional limits, and provide sufficient guidance so that all stops, citations, and arrests based on the provision comply with the Constitution; e. Train officers on proper use of Failure to Comply charge, including elements of the offense and appropriateness of the charge for interference with police activity that threatens public safety; f. Require that applicable legal standards are met before officers conduct pat-downs or vehicle searches. Prohibit searches based on consent for the foreseeable future; g. Develop system of correctable violation, or "fix-it" tickets, and require officers to issue fix-it tickets wherever possible and absent contrary supervisory instruction; h. Develop and implement policy and training regarding appropriate police response to activities protected by the First Amendment, including the right to observe, record, and protest police action; i. Provide initial and regularly recurring training on Fourth Amendment constraints on police action, as well as responsibility within FPD to constrain action beyond what Fourth Amendment requires in interest of public safety and community trust; j. Discontinue use of "wanteds" or "stop orders" and prohibit officers from conducting stops, searches, or arrests on the basis of "wanteds" or "stop orders" issued by other agencies. 3. Increase Tracking, Review, and Analysis of FPD Stop, Search, Ticketing and Arrest Practices At the first level of supervision and as an agency, FPD must review more stringently officers’ stop, search, ticketing, and arrest practices to ensure that officers are complying with the 91 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 185 of 202 Constitution and department policy, and to evaluate the impact of officer activity on police legitimacy and community trust. FPD should: a. Develop and implement a plan for broader collection of stop, search, ticketing, and arrest data that includes pedestrian stops, enhances vehicle stop data collection, and requires collection of data on all stop and post-stop activity, as well as location and demographic information; b. Require supervisors to review all officer activity and review all officer reports before the supervisor leaves shift; c. Develop and implement system for regular review of stop, search, ticketing, and arrest data at supervisory and agency level to detect problematic trends and ensure consistency with public safety and community policing goals; d. Analyze race and other disparities shown in stop, search, ticketing, and arrest practices to determine whether disparities can be reduced consistent with public safety goals. 4. Change Force Use, Reporting, Review, and Response to Encourage De-Escalation and the Use of the Minimal Force Necessary in a Situation FPD should reorient officers’ approach to using force by ensuring that they are trained and skilled in using tools and tactics to de-escalate situations, and incentivized to avoid using force wherever possible. FPD also should implement a system of force review that ensures that improper force is detected and responded to effectively, and that policy, training, tactics, and officer safety concerns are identified. FPD should: a. Train and require officers to use de-escalation techniques wherever possible both to avoid a situation escalating to where force becomes necessary, and to avoid unnecessary force even where it would be legally justified. Training should include tactics for slowing down a situation to increase available options; b. Require onsite supervisory approval before deploying any canine, absent documented exigent circumstances; require and train canine officers to take into account the nature and severity of the alleged crime when deciding whether to deploy a canine to bite; require and train canine officers to avoid sending a canine to apprehend by biting a concealed suspect when the objective facts do not suggest the suspect is armed and a lower level of force reasonably can be expected to secure the suspect; c. Place more stringent limits on use of ECWs, including limitations on multiple ECW cycles and detailed justification for using more than one cycle; d. Retrain officers in use of ECWs to ensure they view and use ECWs as a tool of necessity, not convenience. Training should be consistent with principles set out in the 2011 ECW Guidelines; e. Develop and implement use-of-force reporting that requires the officer using force to complete a narrative, separate from the offense report, describing the force used with particularity, and describing with specificity the circumstances that required the level of force used, including the reason for the initial stop or other enforcement action. Some levels of force should require all officers observing the use of force to complete a separate force narrative; f. Develop and implement supervisory review of force that requires the supervisor to conduct a complete review of each use of force, including gathering and considering 92 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 186 of 202 evidence necessary to understand the circumstances of the force incident and determine its consistency with law and policy, including statements from individuals against whom force is used and civilian witnesses; g. Prohibit supervisors from reviewing or investigating a use of force in which they participated or directed; h. Ensure that complete use-of-force reporting and review/investigation files—including all offense reports, witness statements, and medical, audio/video, and other evidence—are kept together in a centralized location; i. Develop and implement a system for higher-level, inter-disciplinary review of some types of force, such as lethal force, canine deployment, ECWs, and force resulting in any injury; j. Improve collection, review, and response to use-of-force data, including information regarding ECW and canine use; k. Implement system of zero tolerance for use of force as punishment or retaliation rather than as necessary, proportionate response to counter a threat; l. Discipline officers who fail to report force and supervisors who fail to conduct adequate force investigations; m. Identify race and other disparities in officer use of force and develop strategies to eliminate avoidable disparities; n. Staff jail with at least two correctional officers at all times to ensure safety and minimize need for use of force in dealing with intoxicated or combative prisoners. Train correctional officers in de-escalation techniques with specific instruction and training on minimizing force when dealing with intoxicated and combative prisoners, as well as with passive resistance and noncompliance. 5. Implement Policies and Training to Improve Interactions with Vulnerable People Providing officers with the tools and training to better respond to persons in physical or mental health crisis, and to those with intellectual disabilities, will help avoid unnecessary injuries, increase community trust, and make officers safer. FPD should: a. Develop and implement policy and training for identifying and responding to individuals with known or suspected mental health conditions, including those observably in mental health crisis, and those with intellectual or other disabilities; b. Provide enhanced crisis intervention training to a subset of officers to allow for ready availability of trained officers on the scenes of critical incidents involving individuals with mentally illness; c. Require that, wherever possible, at least one officer with enhanced crisis intervention training respond to any situation concerning individuals in mental health crisis or with intellectual disability, when force might be used; d. Provide training to officers regarding how to identify and respond to more commonly occurring medical emergencies that may at first appear to reflect a failure to comply with lawful orders. Such medical emergencies may include, for example, seizures and diabetic emergencies. 93 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 187 of 202 6. Change Response to Students to Avoid Criminalizing Youth While Maintaining a Learning Environment FPD has the opportunity to profoundly impact students through its SRO program. This program can be used as a way to build positive relationships with youth from a young age and to support strategies to keep students in school and learning. FPD should: a. Work with school administrators, teachers, parents, and students to develop and implement policy and training consistent with law and best practices to more effectively address disciplinary issues in schools. This approach should be focused on SROs developing positive relationships with youth in support of maintaining a learning environment without unnecessarily treating disciplinary issues as criminal matters or resulting in the routine imposition of lengthy suspensions; b. Provide initial and regularly recurring training to SROs, including training in mental health, counseling, and the development of the teenage brain; c. Evaluate SRO performance on student engagement and prevention of disturbances, rather than on student arrests or removals; d. Regularly review and evaluate incidents in which SROs are involved to ensure they meet the particular goals of the SRO program; to identify any disparate impact or treatment by race or other protected basis; and to identify any policy, training, or equipment concerns. 7. Implement Measures to Reduce Bias and Its Impact on Police Behavior Many of the recommendations listed elsewhere have the potential to reduce the level and impact of bias on police behavior (e.g., increasing positive interactions between police and the community; increasing the collection and analysis of stop data; and increasing oversight of the exercise of police discretion). Below are additional measures that can assist in this effort. FPD should: a. Provide initial and recurring training to all officers that sends a clear, consistent and emphatic message that bias-based profiling and other forms of discriminatory policing are prohibited. Training should include: 1) Relevant legal and ethical standards; 2) Information on how stereotypes and implicit bias can infect police work; 3) The importance of procedural justice and police legitimacy on community trust, police effectiveness, and officer safety; 4) The negative impacts of profiling on public safety and crime prevention; b. Provide training to supervisors and commanders on detecting and responding to bias-based profiling and other forms of discriminatory policing; c. Include community members from groups that have expressed high levels of distrust of police in officer training; d. Take steps to eliminate all forms of workplace bias from FPD and the City. 8. Improve and Increase Training Generally FPD officers receive far too little training as recruits and after becoming officers. Officers need a better knowledge of what law, policy, and integrity require, and concrete training on how to 94 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 188 of 202 carry out their police responsibilities. In addition to the training specified elsewhere in these recommendations, FPD should: a. Significantly increase the quality and amount of all types of officer training, including recruit, field training (including for officers hired from other agencies), and in-service training; b. Require that training cover, in depth, constitutional and other legal restrictions on officer action, as well as additional factors officers should consider before taking enforcement action (such as police legitimacy and procedural justice considerations); c. Employ scenario-based and adult-learning methods. 9. Increase Civilian Involvement in Police Decision Making In addition to engaging with all segments of Ferguson as part of implementing community policing, FPD should develop and implement a system that incorporates civilian input into all aspects of policing, including policy development, training, use-of-force review, and investigation of misconduct complaints. 10. Improve Officer Supervision The recommendations set out here cannot be implemented without dedicated, skilled, and well-trained supervisors who police lawfully and without bias. FPD should: a. Provide all supervisors with specific supervisory training prior to assigning them to supervisory positions; b. Develop and require supervisors to use an "early intervention system" to objectively detect problematic patterns of officer misconduct, assist officers who need additional attention, and identify training and equipment needs; c. Support supervisors who encourage and guide respectful policing and implement community policing principles, and evaluate them on this basis. Remove supervisors who do not adequately review officer activity and reports or fail to support, through words or actions, unbiased policing; d. Ensure that an adequate number of qualified first-line supervisors are deployed in the field to allow supervisors to provide close and effective supervision to each officer under the supervisor’s direct command, provide officers with the direction and guidance necessary to improve and develop as officers, and to identify, correct, and prevent misconduct. 11. Recruiting, Hiring, and Promotion There are widespread concerns about the lack of diversity, especially race and gender diversity, among FPD officers. FPD should modify its systems for recruiting hiring and promotion to: a. Ensure that the department’s officer hiring and selection processes include an objective process for selection that employs reliable and valid selection devices that comport with best practices and federal anti-discrimination laws; b. In the case of lateral hires, scrutinize prior training and qualification records as well as complaint and disciplinary history; 95 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 189 of 202 c. Implement validated pre-employment screening mechanisms to ensure temperamental and skill-set suitability for policing. 12. Develop Mechanisms to More Effectively Respond to Allegations of Officer Misconduct Responding to allegations of officer misconduct is critical not only to correct officer behavior and identify policy, training, or tactical concerns, but also to build community confidence and police legitimacy. FPD should: a. Modify procedures and practices for accepting complaints to make it easier and less intimidating for individuals to register formal complaints about police conduct, including providing complaint forms online and in various locations throughout the City and allowing for complaints to be submitted online and by third parties or anonymously; b. Require that all complaints be logged and investigated; c. Develop and implement a consistent, reliable, and fair process for investigating and responding to complaints of officer misconduct. As part of this process, FPD should: 1) Investigate all misconduct complaints, even where the complainant indicates he or she does not want the complaint investigated, or wishes to remain anonymous; 2) Not withdraw complaints without reaching a disposition; d. Develop and implement a fair and consistent system for disciplining officers found to have committed misconduct; e. Terminate officers found to have been materially untruthful in performance of their duties, including in completing reports or during internal affairs investigations; f. Timely provide in writing to the Ferguson Prosecuting Attorney all impeachment information on officers who may testify or provide sworn reports, including findings of untruthfulness in internal affairs investigations, for disclosure to the defendant under Brady v. Maryland, 373 U.S. 83 (1963); g. Document in a central location all misconduct complaints and investigations, including the nature of the complaint, the name of the officer, and the disposition of the investigation; h. Maintain complete misconduct complaint investigative files in a central location; i. Develop and implement a community-centered mediation program to resolve, as appropriate, allegations of officer misconduct. 13. Publically Share Information about the Nature and Impact of Police Activities Transparency is a key component of good governance and community trust. Providing broad information to the public also facilitates constructive community engagement. FPD should: a. Provide regular and specific public reports on police stop, search, arrest, ticketing, force, and community engagement activities, including particular problems and achievements, and describing the steps taken to address concerns; b. Provide regular public reports on allegations of misconduct, including the nature of the complaint and its resolution; c. Make available online and regularly update a complete set of police policies. 96 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 190 of 202 B. Ferguson Court Practices 1. Make Municipal Court Processes More Transparent Restoring the legitimacy of the municipal justice system requires increased transparency regarding court operations to allow the public to assess whether the court is operating in a fair manner. The municipal court should: a. Make public—through a variety of means, including prominent display on the City, police, and municipal court web pages—all court-related fines, fees, and bond amounts, and a description of the municipal court payment process, including court dates, payment options, and potential consequences for non-payment or missed court dates; b. Create, adopt, and make public written procedures for all court operations; c. Collect all orders currently in effect and make those orders accessible to the public, including by posting any such materials on the City, police, and municipal court web pages. Make public all new court orders and directives as they are issued; d. Initiate a public education campaign to ensure individuals can have an accurate and complete understanding of how Ferguson’s municipal court operates, including that appearance in court without ability to pay an owed fine will not result in arrest; e. Provide broadly available information to individuals regarding low-cost or cost-free legal assistance; f. Enhance public reporting by ensuring data provided to the Missouri Courts Administrator is accurate, and by making that and additional data available on City and court websites, including monthly reports indicating: 1) The number of warrants issued and currently outstanding; 2) The number of cases heard during the previous month; 3) The amount of fines imposed and collected, broken down by offense, including by race; 4) Data regarding the number of Missouri Department of Revenue license suspensions initiated by the court and the number of compliance letters enabling license reinstatement issued by the court. g. Revise the municipal court website to enable these recommendations to be fully implemented. 2. Provide Complete and Accurate Information to a Person Charged with a Municipal Violation In addition to making its processes more transparent to the public, the court should ensure that those with cases pending before the court are provided with adequate and reliable information about their case. The municipal court, in collaboration with the Patrol Division, should: a. Ensure all FPD citations, summonses, and arrests are accompanied by sufficient, detailed information about the recipient’s rights and responsibilities, including: 1) The specific municipal violation charged; 2) A person’s options for addressing the charge, including whether in-person appearance is required or if alternative methods, including online payment, are available, and information regarding all pending deadlines; 97 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 191 of 202 3) A person’s right to challenge the charge in court; 4) The exact date and time of the court session at which the person receiving the charge must or may appear; 5) Information about how to seek a continuance for a court date; 6) The specific fine imposed, if the offense has a preset fine; 7) The processes available to seek a fine reduction for financial incapacity, consistent with recommendation four set forth below; 8) The penalties for failing to meet court requirements. b. Develop and implement a secure online system for individuals to be able to access specific details about their case, including fines owed, payments made, and pending requirements and deadlines. 3. Change Court Procedures for Tracking and Resolving Municipal Charges to Simplify Court Processes and Expand Available Payment Options The municipal court should: a. Strictly limit those offenses requiring in-person court appearance for resolution to those for which state law requires the defendant to make an initial appearance in court; b. Establish a process by which a person may seek a continuance of a court date, whether or not represented by counsel; c. Continue to implement its online payment system, and expand it to allow late payments, payment plan installments, bond payments, and other court payments to be made online; d. Continue to develop and transition to an electronic records management system for court records to ensure all case information and events are tracked and accessible to court officials and FPD staff, as appropriate. Ensure electronic records management system has appropriate controls to limit user access and ability to alter case records; e. Ensure that the municipal court office is consistently staffed during posted business hours to allow those appearing at the court window of the police department seeking to resolve municipal charges to do so; f. Accept partial payments from individuals, and provide clear information to individuals about payment plan options. 4. Review Preset Fine Amounts and Implement System for Fine Reduction The municipal court should: a. Immediately undertake a review of current fine amounts and ensure that they are consistent not only with regional but also statewide fine averages, are not overly punitive, and take into account the income of Ferguson residents; b. Develop and implement a process by which individuals can appear in court to seek proportioning of preset fines to their financial ability to pay. 98 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 192 of 202 5. Develop Effective Ability-to-Pay Assessment System and Improve Data Collection Regarding Imposed Fines The municipal court should: a. Develop and implement consistent written criteria for conducting an assessment of an individual’s ability to pay prior to the assessment of any fine, and upon any increase in the fine or related court costs and fees. The ability-to-pay assessment should include not only a consideration of the financial resources of an individual, but also a consideration of any documented fines owed to other municipal courts; b. Improve current procedures for collecting and tracking data regarding fine amounts imposed. Track initial fines imposed as an independent figure separate from any additional charges imposed during a case; c. Regularly conduct internal reviews of data regarding fine assessments. This review should include an analysis of fines imposed for the same offenses, including by race of the defendant, to ensure fine assessments for like offenses are set appropriately. 6. Revise Payment Plan Procedures and Provide Alternatives to Fine Payments for Resolving Municipal Charges The municipal court should: a. Develop and implement a specific process by which a person can enroll in a payment plan that requires reasonable periodic payments. That process should include an assessment of a person’s ability to pay to determine an appropriate periodic payment amount, although a required payment shall not exceed $100. That process should also include a means for a person to seek a reduction in their monthly payment obligation in the event of a change in their financial circumstances; b. Provide more opportunities for a person to seek leave to pay a lower amount in a given month beyond the court’s current practice of requiring appearance the first Wednesday of the month at 11:00 a.m. Adopt procedures allowing individuals to seek their first request for a one-time reduction outside of court, and to have such requests be automatically granted. Such procedures should provide that subsequent requests shall be granted liberally by the Municipal Judge, and denials of requests for extensions or reduced monthly payments shall be accompanied by a written explanation of why the request was denied; c. Cease practice of automatically issuing a warrant when a person on a payment plan misses a payment, and adopt procedures that provide for appropriate warnings following a missed payment, consistent with recommendation eight set forth below; d. Work with community organizations and other regional groups to develop alternative penalty options besides fines, including expanding community service options. Make all individuals eligible for community service. 7. Reform Trial Procedures to Ensure Full Compliance with Due Process Requirements The municipal court should take all necessary steps to ensure that the court’s trial procedures fully comport with due process such that defendants are provided with a fair and impartial forum to challenge the charges brought against them. As part of this effort, the court shall ensure that 99 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 193 of 202 defendants taking their case to trial are provided with all evidence relevant to guilt determinations consistent with the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and other applicable law. 8. Stop Using Arrest Warrants as a Means of Collecting Owed Fines and Fees As Ferguson’s own Municipal Judge has recognized, municipal code violations should result in jail in only the rarest of circumstances. To begin to address these problems, Ferguson should only jail individuals for a failure to appear on or pay a municipal code violation penalty, if at all, if the following steps have been attempted in a particular case and have failed: a. Enforcement of fines through alternative means, including: 1) Assessment of reasonable late fees; 2) Expanding options for payment through community service; 3) Modified payment plans with reasonable amounts due and payment procedures; 4) A show cause hearing on why a warrant should not issue, including an assessment of ability to pay, where requested. At this hearing the individual has a right to counsel and, if the individual is indigent, the court will assign counsel to represent the individual. See Mo. Sup. Ct. R. 37.65; Mo. Mun. Benchbook, Cir. Ct., Mun. Divs. § 13.8; b. Personal service on the individual of the Order to Show Cause Motion that provides notice of the above information regarding right to counsel and the consequences of non-appearance; and c. If the above mechanisms are unsuccessful at securing payment or otherwise resolving the case, the court should ensure that any arrest warrant issued has the instruction that it be executed only on days that the court is in session so that the individual can be brought immediately before the court to enable the above procedures to be implemented. See Mo. Mun. Benchbook, Cir. Ct., Mun. Divs. § 13.8 ("If a defendant fails to appear in court on the return date of the order to show cause or motion for contempt, a warrant should be issued to get the defendant before the court for the hearing.") (emphasis added). 9. Allow Warrants to be Recalled Without the Payment of Bond Ferguson recently extended its warrant recall program, also called an "amnesty" program, which allows individuals to have municipal warrants recalled and to receive a new court date without paying a bond. This program should be made permanent. The municipal court should: a. Allow all individuals to seek warrant recall in writing or via telephone, whether represented by an attorney or not; b. Provide information to a participating individual at the time of the warrant recall, including the number of charges pending, the fine amount due if a charge has been assessed, the options available to pay assessed fines, the deadlines for doing so, and the requirements, if any, for appearing in court. 100 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 194 of 202 10. Modify Bond Amounts and Bond and Detention Procedures Ferguson has two separate municipal code bond schedules and processes: one for warrantless arrests, and another for arrests pursuant to warrants issued by the municipal court. Ferguson’s municipal court recently limited the number of municipal code violations for which officers can jail an individual without a warrant, and reduced the amount of time the jail may hold a defendant who is unable to post bond from 72 to 12 hours. These changes are a positive start, but further reforms are necessary. The City and municipal court should: a. Limit the amount of time the jail may hold a defendant unable to post bond on all arrests for municipal code violations or municipal arrest warrants to 12 hours; b. Establish procedures for setting bond amounts for warrantless and warrant-based detainees that are consistent with the Equal Protection Clause’s prohibition on incarcerating individuals on the basis of indigency, and that ensure bond shall in no case exceed $100 for a person arrested pursuant to a municipal warrant, regardless of the number of pending charges; c. At the time of bond payment, provide individuals with the option of applying a bond fee to underlying fines and costs, including in the event of forfeiture; d. Take steps necessary, including the continued development of a computerized court records management system as discussed above, to enable court staff, FPD officers, and FPD correctional officers to access case information so that a person has the option of paying the full underlying fine owed in lieu of bond upon being arrested; e. Increase options for making a bond payment, including allowing bond payment by credit card and through the online payment system, whether by a person in jail or outside of the jail; f. Institute closer oversight and tracking of bond payment acceptance by FPD officers and FPD correctional officers; g. Initiate practice of issuing bond refund checks immediately upon a defendant paying their fine in full and being owed a bond refund; h. Ensure that all court staff, FPD officers, and FPD correctional officers understand Ferguson’s bond rules and procedures. 11. Consistently Provide "Compliance Letters" Necessary for Driver’s License Reinstatement After a Person Makes an Appearance Following a License Suspension Per official policy, the municipal court provides people who have had their licenses suspended pursuant to Mo. Rev. Stat. § 302.341.1 with compliance letters enabling the suspension to be lifted only once the underlying fine has been paid in full. Court staff told us, however, that in "sympathetic cases," they provide compliance letters that enable people to have their licenses reinstated. The court should adopt and implement a policy of providing individuals with compliance letters immediately upon a person appearing in court following a license suspension pursuant to this statute. 101 Case 2:15-cv-00555-RCL-WC Document 115-1 Filed 05/01/17 Page 195 of 202 12. Close Cases that Remain on the Court’s Docket Solely Because of Failure to Appear Charges or Bond Forfeitures In September 2014, the City of Ferguson repealed Ferguson Mun. Code § 13-58, which allowed the imposition of an additional "Failure to Appear" charge, fines, and fees in response to missed appearances and payments. Nonetheless, many cases remain pending on the court’s docket solely on account of charges, fines, and fees issued pursuant to this statute or because of questionable bond forfeiture practices. The City and municipal court should: a. Close all municipal cases in which the individual has paid fines equal or greater to the amount of the fine assessed for the original municipal code violation—through Failure to Appear fines and fees or forfeited bond payments—and clear all associated warrants; b. Remove all Failure to Appear related charges, fines, and fees from current cases, and close all cases in which only a Failure to Appear charge, fine, or fee remains pending; c. Immediately provide compliance letters so that license suspensions are lifted for all individuals whose cases are closed pursuant to these reforms. 13. Collaborate with Other Municipalities and the State of Missouri to Implement Reforms These recommendations should be closely evaluated and, as appropriate, implemented by other municipalities. We also recommend that the City and other municipalities work collaboratively with the state of Missouri on issues requiring statewide action, and further recommend: a. Reform of Mo. Rev. Stat. § 302.341.1, which requires the suspension of individuals’ driving licenses in certain cases where they do not appear or timely pay traffic charges involving moving violations; b. Increased oversight of municipal courts in St. Louis County and throughout the state of Missouri to ensure that courts operate in a manner consistent with due process, equal protection, and other requirements of the Constitution and other laws. VI. CONCLUSION Our investigation indicates that Ferguson as a City has the capacity to reform its approach to law enforcement. A small municipal department may offer greater potential for officers to form partnerships and have frequent, positive interactions with Ferguson residents, repairing and maintaining police-community relationships. See, e.g., Jim Burack, Putting the "Local" Back in Local Law Enforcement, in, American Policing in 2022: Essays on the Future of the Profession 79-83 (Debra R. Cohen McCullough & Deborah L. Spence, eds., 2012). These reform efforts will be well worth the considerable time and dedication they will require, as they have the potential to make Ferguson safer and more united. 102 EXHIBIT 4 EXHIBIT 5 EXHIBIT 6 EXHIBIT 7 EXHIBIT 8

MOTION to Certify Class by Aldaress Carter.

Case 2:15-cv-00555-RCL-WC Document 116 Filed 05/02/17 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) MOTION FOR CLASS CERTIFICATION Comes now the Plaintiff and moves the Court to certify this action as a class action on behalf of a Class composed of: All individuals who have been in the past assigned by the Montgomery Municipal Court to "probation" with Judicial Correction Services (JCS) for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. Plaintiff requests that the Class be certified pursuant to the provisions of Federal Rules of Civil Procedure 23(b)(1), 23(b)(2), and/or 23(b)(3), and 23(b)(4). As grounds for this motion, Plaintiff shows the Court the following: Case 2:15-cv-00555-RCL-WC Document 116 Filed 05/02/17 Page 2 of 5 1. All of the prerequisites of Rule 23(a) are met, because: (a) the Class and subclass include thousands of persons and is so numerous that the joinder of all members is impracticable; (b) there are questions of law or fact common to the entire Class; (c) the claims of the named Plaintiffs are typical of the claims of the Class; and, (d) the named Plaintiffs will fairly and adequately protect the interests of the Class. Counsel for the Plaintiffs, who are proposed as Class Counsel, are prepared and qualified to represent the Class and have actively pursued this matter. (See Affidavits of G. Daniel Evans and Alexandria Parrish attached to the evidentiary submission). The named Plaintiff has no conflict with the members of the Class, and is willing to fulfill his duty to fully and adequately protect the interests of the Class. 2. Certification is appropriate under the provisions of Rule 23(b)(1) because the prosecution of separate actions by or against individual members of the Class would create (a) a risk of inconsistent or varying adjudications with respect to individual members of the Class which would establish incompatible standards of conduct for the parties opposing the Class, or (b) adjudications with respect to individual members of the Class which would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests. 3. Certification is appropriate under the provisions of Rule 23(b)(2) because the parties opposing the Class have acted or refused to act on grounds generally applicable 2 Case 2:15-cv-00555-RCL-WC Document 116 Filed 05/02/17 Page 3 of 5 to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole. 4. Certification is appropriate under the provisions of Rule 23(b)(3) because the questions of law or fact common to members of the Class predominate over questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 5. Certification is appropriate under the provisions of Rule 23(c)(4) because particular issues are of common importance. Those include: a. Whether using a "private probation" company which is financially interested in extending the process for collecting city fines, violates Due Process; b. Whether requiring additional collection fees to be paid only by those who cannot pay their fines in full, violates Equal Protection; c. Whether a no bid contract under which a city binds its court is valid under Alabama law; d. Whether incarcerating individuals for failure to pay fines, costs and fees with no finding of willful contempt, violates due process and the fourth amendment; e. Whether charging a person for being in jail due to their failure to pay, fines, fees and costs, violates due process and the eighth amendment. f. Whether a private probation company requiring the waiver of counsel as part of its collection of fines and costs, violates the sixth amendment 6. In support of this motion, the Plaintiffs submit an Evidentiary Submission and Memorandum Brief. WHEREFORE PREMISES CONSIDERED, Plaintiffs pray that upon consideration 3 Case 2:15-cv-00555-RCL-WC Document 116 Filed 05/02/17 Page 4 of 5 of this matter, the requested Class Certification will be granted and that the undersigned will be appointed as Class Counsel, and for such other relief as the Court deems appropriate under these circumstances./s G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Attorneys for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com E-Mail: mevans@evanslawpc.com CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of May, 2017, I electronically filed the foregoing Motion for Class Certification with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Shannon L. Holliday, Esquire Robert D. Segall, Esquire Joel Caldwell, Esquire COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 Micheal S. Jackson, Esquire WEBSTER, HENRY, LYONS, BRADWELL, COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239 F. Lane Finch, Jr., Esquire Brian Richardson, Esquire 4 Case 2:15-cv-00555-RCL-WC Document 116 Filed 05/02/17 Page 5 of 5 Swift Currie McGhee and Hiers, LLP 2 North 20th Street, Suite 1405 Birmingham, Alabama 35203 Michael L. Jackson, Esquire Larry S. Logsdon, Esquire Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 Wilson F. Green, Esquire Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 Kimberly O. Fehl, Esquire Michael D. Brymer, Esquire CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111 s/G. Daniel Evans G. Daniel Evans 5

BRIEF/MEMORANDUM in Support re [116] MOTION to Certify Class filed by Aldaress Carter.

Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 1 of 50 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Attorneys for the Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 William M. Dawson ASB-3976-S80W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 2 of 50 TABLE OF CONTENTS OVERVIEW.......................................................... 1 FACTS.............................................................. 1 CLASS CLAIMS..................................................... 21 CLASS DEFINITION.................................................. 21 Named Plaintiff’s Allegations-ALDARESS CARTER......................... 21 ARGUMENT........................................................ 23 A. All the prerequisites to certification under Rule 23 are met........... 23 1. Plaintiffs Have Standing................................ 24 B. The Class Is Ascertainable.................................. 24 1. Rule 23(a) Is Satisfied................................. 26 i. Numerosity.................................... 27 ii. Commonality................................... 28 iii. Typicality...................................... 31 iv. Adequacy of Representation...................... 34 2. Certification is Warranted Under Rule 23(b)(2).............. 36 Class Members Have Been Harmed in the Same Way........ 37 Plaintiffs Seek Class-Wide Injunctive Relief and Equitable Remedies.................................. 37 3. Certification is Warranted under Rule 23(b)(3).............. 39 i. Common Issues Predominate..................... 40 ii. A Class Action is the superior form of prosecution...... 42 C. Separate Classes Can Also Be Certified Under Rule 23(c)(4) With Respect To Particular Issues............................. 45 CONCLUSION....................................................... 46 CERTIFICATE OF SERVICE........................................... 47 ii Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 3 of 50 MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION OVERVIEW The Plaintiffs seek class certification for persons assigned by Montgomery to Judicial Correction Services, Inc.1 (hereinafter'JCS’) for the collection of fines, fees and costs. A subclass of those individuals would include persons arrested and jailed pursuant to this joint scheme. The Plaintiffs’ counsel began litigating civil rights violations relating to the JCS scheme on August 28, 2012 with the filing of the Ray case in the Northern District of Alabama (2:12-cv-02819-RDP). At that time, JCS was operating in approximately 112 cities within the state of Alabama. After the institution of this litigation and other lawsuits against JCS and the corporations that acquired it, JCS announced it was withdrawing from the state of Alabama effective November 2015. JCS operated in the City of Montgomery from 20092 until the City terminated its relationship with JCS ending June 30, 2014 (Ex. 13 p. 128). FACTS Until JCS was terminated by Montgomery in June 2014,3 well over 17,000 individuals were subjected to the JCS system for the collection of fines, fees and costs by the City of Montgomery (Exh. 1; Composite Summary-p. 18). 1 JCS and Correctional Healthcare Companies, Inc. were fully integrated into the operations of CHC Companies, Inc. on September 30, 2011. 2 Mayor Charles Jinwright entered into the original contract with JCS. (See Doc. 73-1 p. 130) Mr. J i n wr i g h t wa s m a yo r o f M o n t g o m e r y f r o m J a n u a r y 6-M a r c h 2 4 2 0 0 9. https://en.wikipedia.org/wiki/Charles_Jinright-last visited May 2, 2017. 3 http://www.selmatimesjournal.com/2015/10/23/private-probation-company-stops-state-operations-after-splc-lawsuit/(last visited December 28, 2015) 1 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 4 of 50 JCS marketed itself to the cities offering its services"free of charge" stating that JCS will be "offender paid." (Doc. 73-3, p. 49 at Depo p. 193) Like other cities throughout the state, in 2009, the City of Montgomery accepted the JCS proposal and entered into a contract signed by its mayor and approved by its council for JCS to collect city fines. (Doc. 73-1 pp.363-367) Under these no bid contracts, the mayor and city council bound the City and its court to the exclusive use of JCS. (Doc. 73-1 pp.363-367) In order to receive the free collection services, the City promises that its court will order those sent to JCS to pay the JCS fees. The contract therefore requires that each court order used to send someone to JCS "probation" must also require payment to JCS of a "probation" fee of $40.00 per month, together with a setup fee of $10.00. (Doc. 73-1 p.366) Those orders are provided by JCS and preprinted to include the fees for JCS. Those fees, however, are not authorized by any statute or ordinance as fines or court costs. These orders are used when a person appearing before the city court cannot pay the fines or costs levied in full. They are then assigned to JCS for collection of those fines and costs to which are then added fees for JCS. Conversely, those who pay are never assigned to JCS "probation" or charged those fees. Once assigned to JCS, its collection approach is very uniform. And, once the fines, fees and costs are collected, the "probation" ends. The JCS system and its application in Montgomery are highly systemized. During the course of discovery in the Ray case, Colleen Ray, the JCS Alabama state director, testified as the JCS 30(b)(6) representative. Ms. Ray testified that the JCS manual was central to its system along with the JCS software known as ProbationTracker™. Each employee is trained on the manual, a copy of which is kept at every office, and each has 2 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 5 of 50 access to and training on ProbationTracker™. (Doc.73-3, pp. 17, 20, 27 at Depo pp. 65-66, 77,107-08) The manual is replete with forms which are generated by ProbationTracker™. Those JCS form documents include, among others, letters threatening arrest (Doc. 73-5 pp.74-76); delinquency letters (Doc. 73-5 pp.77-83); failure to report letters (Doc. 73-5 pp.68-74); Notices to Show Cause threatening arrest (Doc. 73-6 pp.5-6); Violation or Probation Letters threatening arrest (Doc. 73-5 pp.86-88); Petitions for Revocations requesting the arrest of the person (Doc. 73-5 pp.89-93); warrants for arrest (Doc. 1-8; Doc. 73-6 pp.7-9); and recall of warrants (Doc. 73-6 p.17). ProbationTracker™ also provides case files for each person from whom collection is sought with a narrative input page chronicling the collection efforts and information gathered by the JCS employees. (Exh. 1-Composite Summary-Section 9) Though Ms. Ray acknowledged the financial interest of JCS in this process, she denied any responsibility to investigate indigency of the persons assigned there. (Doc.73-3, pp. 40-41, 62 at Depo pp.160-61, 242-43). Ms. Ray stated that once the fines, fees and costs are collected, the "probation" terminates, (Doc.73-3, p. 66 at Depo p. 262; Doc. 73-9, p. 28 at Depo p. 109) but also admitted that JCS uses no civil tools of collection in its system. (Doc.73-3 p. 86 at Depo pp. 339-40) Once trained, the JCS employees are then referred to as "Probation Officers." The training and system is so uniform that employees can easily serve several cities and are easily relocated to different city courts as the need arises. (Doc.73-3, p. 18 at Depo p. 70) However, none is required to be trained as a real probation officer and none has any certification or qualification as would be required in the federal or state system. (Doc.73-3, p. 18 at Depo p. 69). The JCS system is essentially a paperless system which generates court forms, demand letters, various reports. Any hard documents actually generated by 3 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 6 of 50 the city court itself are scanned into ProbationTracker™ and then linked to the individual concerned. (Doc.73-3, pp. 169-171; Doc. 73-9, p. 108; Exh. 1-Composite Summary) JCS then shredded the hard copy. (Doc. 73-9, p. 28 at Depo p. 109) The process begins when an individual at the municipal court cannot pay a fine or cost in full and is assigned to JCS for its collection. (Doc. 73-194; Doc. 73-1 p. 45; Doc. 73-2 pp. 100, 105) That inability to pay is typically not investigated and once that person is assigned to JCS, JCS denies any responsibility to investigate or consider poverty as well. (Doc.73-3, p. 41 at Depo p. 161; Doc. 73-9, p. 58 at Depo p. 232) Instead, the person unable to pay the fine is then given the additional burden of monthly fees to JCS. (Doc. 73-1 at depo. 45:22-47:3) The focus of the JCS system is the collection of fines. (Doc. 73-2 p. 117) JCS acts jointly with the cities like Montgomery which uses its city court, police force, jails and the appearance of official authority to extort the collections rather than normal civil tools of collection. (Doc. 73-2 pp.17-18) This uniform system was applied at Montgomery in substantially the same manner and under substantially the same contractual terms. (Exh. 1-Composite Summary) Reports and the extensive data collected in JCS’s ProbationTracker™ on each person provide detailed ascertainability of the class members, the fees charged them and the actions taken to extort money from them. (Exh. 1-Composite Summary and exhibits) ProbationTracker™ can also generate a number of reports which allow the data to be easily searched and organized. Plaintiffs’ counsel were provided real time read-only access by JCS to ProbationTracker™ and also 4 This is a memo from Colleen Ray, the JCS state director for Alabama (and its to her boss Karen Lloyd suggesting charging for alcohol monitoring.) In it she writes " Most defendants in Alabama get placed on probation with JCS because they can’t pay their fine in full and once they do pay their fine in full they are terminated as far as the case with JCS." See also, testimony by Don Houston (Doc. 73-16, p. 60 at depo pp. 237-238) 4 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 7 of 50 copies of the underlying database. The underlying SQL database for ProbationTracker™ provides even more capability in the data analysis. That database shows that once a person is assigned to JCS, this system is applied in a nearly identical fashion with repetitive patterns. Aldaress Carter is a typical example of such probationers and their common treatment in this system. (Exh. 1-Composite Summary) JCS form "probation orders" are used when a person is sent to JCS for collection. Those forms are preprinted in a three-part form provided by JCS. (Doc. 73-9, p. 37 at Depo p.146) The JCS form recites a "waiver of counsel" in small print for all the "probationers," so no one is represented. Those forms also have preprinted "conditions of probation" with blanks which are filled in by JCS employees--not the court--after a person is sent to JCS. (Doc. 73-17) JCS determines also determines the length of the "probation" and the minimum monthly payment required. (Doc. 73-1 pp. 163-66) The accounting between JCS and its city customers is also systematic and includes a bimonthly remittance from JCS to the city treasurer for the money collected. The accounting office of CCS (the JCS parent company) in Atlanta sends the cities the collected money (Docs.73-3, p. 47 at Depo p. 188; 73-8, p. 54 at Depo p. 434; Doc. 73-1 p. 250) Those remittance forms include the name of the person assigned to JCS and the amount being remitted toward that person’s city fine. ProbationTracker™ also provides payment codes within the system from which types of payments and totals can be easily calculated. That data shows that JCS collected fees for itself in the amount of $4,065,146.63 from Montgomery "probationers" just since August 28, 2010. (Exh. 9) The 5 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 8 of 50 payment of those JCS fees was imposed on all members of the putative class.5 Though the JCS contract requires JCS to abide by the law, its system, using JCS documents routinely extended, modified or reinstated "probation" extending it well beyond the two-year statutory limit for municipal probations. (Ex. 1-Composite summary section 9 & Doc. 73-17) Similarly, it was routine for JCS to retroactively add to a current "probation" any old fines or tickets found to be existing on the City’s books, (Doc. 73-1 pp. 169-70) thus inflating the balance claimed of a "probationer" and greatly increasing their financial burden. City case numbers include the last two numbers of the year of the case and'TR’ for traffic or'MC’ for municipal ordinance. Mr. Carter’s initial probation in 2011 shows that a 2010 ticket for No Proof of Insurance (‘NPI’) was added to his 2011 probation. (Doc. 73-17) The JCS fees added each month to a "probationer’s" balance were set by contract between JCS and Montgomery at $40 per month. (Doc. 73-1 p.366) Those fees are not part of any city or state fine schedule and are not legitimate court costs, but merely a matter of agreement between Montgomery and JCS. For these reasons, many people paid much more than the original fine, being required to pay fines along with JCS fees, often for a "probation" period extending many years beyond the two-year statutory limitation-all while being threatened and jailed. Under the JCS system, its form letters and notices routinely threatened arrest, jail, imprisonment, increased fines and other threats during the 5 Montgomery did not use community service. While some persons at other cities were assigned to JCS for CRO or community service, those persons are not included in the putative class and again are easily identified for exclusion from a class of persons assigned to JCS for collection of fines. (Exh. 1-Composite Summary) 6 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 9 of 50 process of extorting payment. (Docs. 73-3, 73-4)6 These are used in a sequence dictated by the manual. The manual even has a flow chart for "Working a Typical Case" showing the JCS collection system progressing to "warrant." (Doc. 73-3 p.167): Under the system, when progressive form threats were unsuccessful, the JCS "officer" signed a Petition for Revocation on a JCS form which requests that the person be arrested and then selects the hearing date. (Doc. 73-18) The notice of such action, if any, was mailed by JCS. Returned mail is ignored as the "Typical Case" example shows (Doc. 73-3 p.167) and as the treatment of the Plaintiff attests. (Ex. 1-Composite Summary section 9) The petition is followed either by payment or the issuance of an arrest warrant. 6 See Doc. 73-3 pp. 171-194 & Doc. 73-4 pp. 1-35 7 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 10 of 50 There are no examples of true probation revocation hearings with required fact findings in the JCS data. In fact, the presiding judge at Montgomery-Judge Hayes-testified that contempt powers were not used very often. (Doc. 73-2 p. 15) Instead, Judge Hayes testified that is was the practice at Montgomery to "commute" sentences to jail time when people could not pay. (Doc. 73-2 pp. 17-18). Similarly, the Montgomery representative, clerk Kenneth Nixon, confirmed that "commuting" a sentence means converting a dollar fine amount into days in jail at $50 per day. (Doc. 73-1 pp. 281-83) If the jailed person can pay, they are released. (Doc. 73-1 p. 289) As the extensive data collected by JCS shows, its arrest recommendations were routinely followed by Montgomery and warrants were issued: (Ex. 1-Composite Summery-Section 9 p.35) As shown above, after the warrants were issued, the JCS employee changed the computer status of the individual being pursued to "warrant" showing again the systematic use of this tool. The warrant even presets a cash bond before the arrest takes place in an amount of the entire debt balance that JCS claims the individual owes. Often these individuals were previously charged on traffic tickets that resulted in only fines to begin with and no jail sentence. (Doc. 73-17). As a result, the 8 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 11 of 50 "probation" had no underlying adjudicated suspended jail sentence leaving the period of incarceration on a "revocation" undetermined and often lengthy until family members or friends could acquire funds to satisfy the city and JCS. (Exh. 10) JCS & Montgomery The evidentiary submission in support of this motion includes depositions and exhibits from the JCS Alabama state manager (Colleen Ray), the deposition of the JCS regional manager over the Montgomery city court (Wes Ennis), the presiding judge of the Montgomery city court (Les Hayes), the Montgomery 30b(6) representative, city clerk, (Kenneth Nixon), and Montgomery city judge Milton Westry, among others. This robust submission shows the joint participation of the Defendants in the systematic extortion practice which damaged the Plaintiff and putative class at Montgomery. The putative class includes those persons who were assigned by Montgomery to JCS for the collection of fines and/or costs, some of whom were also jailed. Because JCS was terminated by the City of Montgomery in the summer of 2014, this group is easily defined. The JCS records are highly computerized and the City itself went "paperless" in 2012, both of which assist in ascertainability and management of the class. (Doc. 73-1 p. 65) During the class period, well over 20,000 probationers in Montgomery were subjected to the identical JCS system for the collection of fines, fees and cost.7 (Exh. 1) All were subjected to the JCS systemized collection efforts under ProbationTracker™ and its unified training system and manual and the joint practice at Montgomery. All were charged fees because they could 7 The exact number can be determined from reports run within ProbationTracker and the SQL database provided to plaintiffs in the Ray case in April 2015. Further, those who might be assigned for CRO or other non collection issues are not to be included in the putative plaintiff class and can also be identified from the SQL database for exclusion. (Plaintiff’s Exh. 1) 9 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 12 of 50 not pay their fines in full when levied. ProbationTracker™ was JCS’s core repository for all data, for all cities and all persons involved. (Doc.73-3, p. 28 at Depo p. 107, Doc. 73-8, p. 17 at Depo p. 397) The JCS "services" at Montgomery were at "no cost" to the city and were paid for by the "offender" with the JCS fees charged to the probationer set at the same amount. JCS operated its system in Montgomery uniformly using status codes, notes and ProbationTracker™ generated forms. (Exh. 1) JCS used the same form letters and notices, status codes and required actions and "Probation order" forms with Mr. Carter that it used with other people in its system. (Exh. 1; Doc. 73-1, pp. 372; Doc. 18-2, pp. 40-46) Similarly, the JCS "probation officers" were all trained under the same system, same manual using the same software and same procedures. (Doc.73-3, p. 17 at Depo pp. 65-66) Analysis of the ProbationTracker™ data and its underlying SQL database also attests to the systematic consistency of JCS operations and to its treatment of "probationers" of the putative class. (Exh. 1) Quite simply, once a person is assigned to JCS, the post-sentence collection process is then mechanical. Data collected by JCS also shows a complete absence of any investigation or consideration of poverty even after the person has disclosed their inability to pay resulting in the assignment to JCS and despite JCS’s documentation of persons who were on disability, social security, without employment, juvenile, and/or hospitalized. (Exh. 7) Due to the robust data in ProbationTracker™, the probations and individuals assigned to JCS within any time period is easily ascertainable. (Exh. 1) Similarly, the fees, fines and costs paid by each such persons, warrants issued to them, jail imposed, and credit for time served are all documented in ProbationTracker™. (Exhibits 1,4,5, 9). Montgomery had a policy and practice of converting unpaid city fines into jail days, 10 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 13 of 50 giving the person $50 credit against their city fines for every day the person spent in jail. (Doc. 73-2 pp. 17:7-18:23) Many of these "commutations" as they were called, were documented in ProbationTracker™ by JCS employees entering a StatusAction of T for "time served" and by scanning the JCS'Modification of Probation’ forms into ProbationTracker which state that the person’s'probation’ is terminated due to "time served." (Exhs. 4 & 5) The databases contained within ProbationTracker™ are also relational and provide precise tools to identify and connect individual class members, their payments, treatment and detailed personal information on each. As a result, the fees paid, the warrants issued and credit given for jail time served by individuals during a particular time frame-are all easily determined from this data. Manageability is also greatly enhanced by the robust data contained in the databases. (Exhibits 1-9) All of the data relating to JCS’s collection activities is in the SQL databases and scanned documents linked to each'probationer.’ As a result of the relational data collected, the class-wide effect from this collection system can be identified, quantified and sorted by individual, city, time and/or multiple other fields. As the JCS manual requires, its computer system keeps track of probationers through the use of Status codes and this information is documented for its operation: Throughout the management of a case, a defendant's status may change many times. The status refers to the "current" stage of a case and it should be as close to real time as possible. Statuses require an "action" to be associated with it. If there is not an appropriate action for a particular situation, choose one. Make sure to place detailed notes in the appointments screen as to the reason for the status change. Listed below are various statuses and how they should be used. • Jail-should be used when a defendant is in jail due to a petition of the court due to non-compliance of a court order on behalf of JCS… 11 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 14 of 50 • Warrant-should be used when a warrant has been issued by the court for the defendant. Do not put the case in warrant status until the warrant has been signed by the Judge and taken back to the court clerk, as the warrant is not active before this point. (Emphasis added) (Doc. 73-4 pp. 35,36) Plaintiffs’ counsel, who are also counsel in the Ray case, deposed Wes Ennis (‘Mr. Ennis’) on June 30, 2014. (See Exhibits 13, 14) Mr. Ennis began working for JCS in the City of Montgomery in 2009-first as a'probation officer' and then promoted to regional manager. As a regional manager, Mr. Ennis was responsible for the oversight of JCS offices in Montgomery, Tallassee, Millbrook, Prattville, Notasulga, Clanton, Jemison, Montevallo, Calera, Thorsby, Childersburg, Harpersville, and Columbiana. (Exh. 13, pp. 12-14) For all those cities, there were three office managers-Darlene Hill, Stephen Raymond, and Lisha Kidd. (Exh. 13, p.32) Mr. Ennis was responsible for managing those three managers ensuring that the JCS collection operations maintained a case load with a 50% owed and 50% paid ratio. (Exh. 13, pp. 172-173) Mr. Ennis testified that ProbationTracker™ is where all the notes, data and documents on a person are kept. (Exh. 13, p.22) JCS employees are trained and required to document everything relating to a case in ProbationTracker™. (Exh. 13, pp. 94-95) Once the hard copy documents had been scanned into ProbationTracker™, it was JCS’s practice to shred the original. 9 Q. What is Probation Tracker? 10 A. Probation Tracker is an online--what's 11 the word I'm looking for? It's how we keep our 12 communication with--anything that's related to 13 a defendant in a case, it all goes to Probation 14 Tracker, whether it's notes, payments, any court 15 documents, any communication, any courses 12 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 15 of 50 16 completed, anything related to a defendant is 17 tracked through, entered into Probation Tracker. 18 Q. Including court orders? 19 A. Yes, sir. 20 Q. Do you scan court orders and then shred 21 them? 22 A. In most cases, yes, sir. 23 Q. Is that a practice in all your cities? 00036 1 A. I can't say specifically. I can only speak 2 to my area. 3 Q. Well, that's what I was asking, your 4 cities, your areas. Unless I tell you 5 differently from this point on, I'm just talking 6 about the cities that you supervise. 7 A. Once--from my experience, we would enter, 8 a JCS employee would enter the information into 9 Tracker. Unless we're ordered by the Court to, 10 you know, keep a specific document, we would scan 11 it in--enter it, scan it in, and then shred it. 12 Q. That's true for all your cities? 13 A. I believe so, yes, sir. (Exh. 13, pp. 35, 36)(emphasis added) Mr. Ennis also testified that JCS does not consider a person’s poverty even though JCS does collect financial information on folks. (Exh. 13, pp. 50, 51,178-189) For example, JCS employees would document that a person was on SSI if the debtor listed SSI as their employer, but that information did not materially change the way JCS demanded money from them. (Exh. 13, pp. 178-182)8 Some JCS employees wore star-shaped metal badges and referred to themselves as "probation officers" without explaining that they worked for a private company. (Exh. 13, pp. 100-112; Doc. 18 p. 32, ¶127) JCS had a policy and 8 After the Ray lawsuit was filed, JCS adopted a new company-wide policy and procedure on the forms that it sent to probationers. (Exh. 13 p. 59-60) Prior to the Ray lawsuit, JCS had a policy of sending notices of violation of probation, delinquency letters, notices to show cause, petitions for revocations, and violation of probation letters directly to the debtors. (Exh. 13 pp. 75-78) JCS sent these communications without using any assurance of delivery such as certified letters or personal delivery to ensure a person received notices of court hearings or other documents JCS drafted and sent on behalf of the City. (Exh. 13 p. 84-85) 13 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 16 of 50 practice of having its employees print, sign and mail notice to show cause letters to debtors directly and setting the amount that must be paid to avoid the hearing. (Exh. 13 pp. 115, 117-120, 122-124) JCS’s process for requesting petitions for revocation was uniform and consistently administered. These uniform forms included a request that a warrant be issued for the debtor right above where the JCS employee signed the form. Kenneth Nixon has testified as the 30(b)(6) representative of the City of Montgomery. He is the court administrator there and reports to the mayor. As a member of the mayor’s cabinet, he meets with the cabinet biweekly. (Doc. 73-1, pp. 13-15) Kenneth Nixon went to law school and is admitted to practice law in Alabama. (Doc. 73-1 p. 23) The City has four municipal judges and handles about 80,000 traffic tickets a year, together with approximately 8,000 misdemeanor offenses. (Doc. 73-1, 32). The City’s prosecutors, as well as two groups of public defenders, are all under contract with the City of Montgomery. (Doc. 73-1, pp. 56, 57). Branch Kloess is one of those public defenders and splits the dockets with the other group. Public defenders are paid from the Fair Trial Tax Fund. (Doc. 73-1, p. 84) The assignment of a public defender to a person is noted on the case action summary. (Doc. 73-1, pp. 59-60) The system in Montgomery has been paperless since February 6, 2012, and associated hard copy documents are actually scanned into the system. (Doc. 73-1, pp. 62-65) The state form affidavit of substantial hardship for indigents is not available in the courtroom for the defendants to use and, according to Mr. Nixon, he does not think it or any other such form is used to document someone’s financial situation. (Doc. 73-1, p. 89) Montgomery has its own jail and the police department oversees the city jail. (Doc. 73-1, p. 91). In addition to state authorized court costs, Montgomery also charges a "warrant 14 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 17 of 50 fee" of $32.00 when a warrant is issued. (Doc. 73-1, pp. 126-27) When more than one ticket or offense arises from the event, Montgomery charges court costs on each ticket. (Doc. 73-1, pp. 128-29) The contract between JCS and Montgomery was signed by the mayor. Mr. Nixon confirmed that JCS "probation" was used in Montgomery for the collection of fines over a period of time. (Doc. 73-1, pp. 138-39) If a person was ticketed there on a scheduled offense for less than $250.00, they have to pay in full or a warrant is executed, and if it is non-scheduled in that event, they would simply be arrested. (Doc. 73-1, pp. 142-47) If the amount is greater than $250.00 and a person needs time to pay, they were placed on JCS. (Doc. 73-1, p. 149) Concerning the use of JCS, the judge did not sign all orders of probation. JCS filled in the terms and decided the length of the probation and determined the minimum monthly payment to be required. (Doc. 73-1, pp. 163-66) Also, Mr. Nixon admitted that when JCS started in Montgomery, the policy there added old fines already on the books to the person’s probation balance with JCS. (Doc. 73-1, pp. 169-70) Mr. Nixon admits that even where there was no jail time on a ticket, probation with JCS was still used to allow a longer period of time to pay. (Doc. 73-1, p. 177) If the fines are not paid, then the city court in Montgomery "commutes" the fine. That term simply means having the monetary fine converted a jail sentence. (Doc. 73-1, p. 281) 6 Q. What does the term commuted 7 mean? 8 MR. PAULK: Object to the 9 form. You can answer if you know. 10 A. If a fine and cost is to be 11 eliminated through confinement, that's what a 12 commute would be. 13 Q. So is that term referring to 14 a method of having someone serve time in jail 15 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 18 of 50 15 and getting a dollar credit per day toward 16 whatever fine amount they owe? 17 A. A dollar amount meaning an 18 amount, not a one dollar amount, but an 19 amount? 20 Q. Yes. Is there a set rate 21 that the Montgomery court system uses? 22 A. Yes. 23 Q. What is the set rate? 00282 1 A. The general rate is fifty 2 dollars per day. They have the option--3 excuse me, the ability, if the jail--if 4 they work in the jail, it can be seventy-five 5 dollars per day. 6 Q. What is the purpose of 7 commuting sentences? 8 MR. PAULK: Object to the 9 form. If you can answer what the Judge's 10 purpose of doing that is. 11 A. To satisfy and/or close the 12 case. (Doc. 73-1, pp. 281-82) Mr. Nixon testified that other than closing the case, he knows of no other purpose that "commuting" a fine to jail time serves. (Doc. 73-1, p. 284) In addition to using JCS, the City of Montgomery’s policy and practice is that all cases not paid by 90 days have warrants fees added, a late fee that doubles the fine, and a 30% additional fee as a district attorney collection fee. (Doc. 73-1, pp. 190-93) The City also, as a matter of its standard practice, requests the suspension of a person’s driver’s license if they fail to appear. (Doc. 73-1, p. 221). When a person is actually placed on JCS, according to Mr. Nixon, the clerks of the court are authorized to make this placement without the judge taking action. (Doc. 73-1, p. 224) If a person does not pay JCS, JCS seeks "revocation." Nixon knows of no other circumstances for which JCS seeks revocation other than nonpayment. (Doc. 73-1, pp. 280-81) The court bailiffs maintain an 16 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 19 of 50 independent electronic log to keep up with the persons who are serving time under "commuted" sentences. (Doc. 73-1, p. 296) If a person goes to jail under a "commuted" sentence, the City removes the doubling fines and the DA fees before the jail days are calculated. (Doc. 73-1, p. 308) Once a person is in jail, they may, under a "commuted" sentence, be released if they pay the fine, serve the time, or pay the remaining fine after serving part of the time. (Doc. 73-1, pp. 314-15) Judge Les Hayes was the presiding judge in Montgomery for a number of years until recently removed from that position by the Judicial Inquiry Commission. Hayes was recommended by the mayor and appointed by the City council. (Doc. 73-2, p. 136) He presided in Montgomery starting in 2000. (Doc. 73-2, p. 7) Like Nixon testified, Hayes implemented the Montgomery practice of "commuting" sentences. 16 Q. Can you explain to me what it 17 means to commute a sentence? 18 A. To commute a sentence. 19 MR. PAULK: Object to the f orm. 20 Go ahead. 21 A. As I understand, it would be to 22 take fines and cost and to basically roll them 23 into one to where a defendant is placed in 1 jail to serve out his or her time at fifty 2 dollars a day, with the option of paying the 3 commuted amount to be released. (Doc. 73-2, pp. 9-10) Usually sentences are commuted for people who are already in jail as a result of nonpayment of fines and costs. (Doc. 73-2, p. 13) Commuting a sentence is not a contempt hearing and they do not use contempt powers very often. (Doc. 73-2, pp. 14-15) If a person is on JCS, they call it a "probation revocation," but Hayes agrees the result is the same. (Doc. 73-2, p. 18) JCS has a separate docket of its own which does not appear 17 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 20 of 50 on the actual printed court docket. (Doc. 73-2, pp. 22-23) When a person is brought before Hayes on such a docket, he does not have a colloquy with the individual and just reviews the history. (Doc. 73-2, p. 38) He does not tell them that the court will not jail them if they cannot pay. (Doc. 73-2, p. 41) The Montgomery court does not use community service as an alternative to commuting a sentence in jailing the person because Hayes says it is hard to manage. (Doc. 73-2, p. 80) Similarly, the court does not use garnishment of a person’s wages to collect their fees. (Doc. 73-2, p. 82) Hayes has been "commuting" fines to jail sentences throughout his 14 years on the bench. (Doc. 73-2, p. 83) He has never considered using an affidavit of substantial hardship to help him determine whether or commute fines. (Doc. 73-2, p. 88) Like Mr. Nixon, Hayes confirms he does not fill in the JCS forms or select the time for "probation" or the monthly payment. (Doc. 73-2, pp. 106-07) JCS forms, like Notices to Show Cause, and the hearing dates it establishes are not on court forms. Milton Westry is another judge at the Montgomery city court. He was appointed there full time in 2012. Previously, he was a public defender under contract with the City. Like Hayes and Nixon, Westry uses the term "commuted" to mean being jailed and given credit on a fine at a certain amount per day. (Exh. 16, Milton Westry depo. p. 11) When persons are brought from the jail, Westry confirms that the prosecutors are not even always present. (Exh. 16, Westry depo. p. 33) Similarly, sometimes the public defender is not present when the person is brought before the court. (Exh. 16, Westry depo. p. 37) When that occurs, the judge takes it upon himself to actually review the public defender notes if those exist. (Exh. 16, Westry depo. p. 37) When Westry commutes a sentence to jail time, he does not write any findings or why this was done. (Exh. 16, Westry depo. pp. 18 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 21 of 50 44-45) In some instances, JCS decided that a defendant is not eligible for JCS collection probation, but Westry does not know the basis. (Exh. 16, Westry depo. pp. 46-47) If a person is eligible, Westry gives a person options of paying through JCS or "commuting" the sentence. In either event, they have to pay to be released. (Exh. 16, Westry depo. p. 48) Westry explained his understanding of indigency as follows: 1 Q. What do you believe that 2 indigent means? 3 MR. PAULK: Object to the f orm. 4 A. A person who had a total 5 inability to pay. 6 Q. What does total inability to pay 7 mean? 8 A. Meaning that in all probability 9 this person will never be able to pay the 10 fines and costs that have been ordered in a 11 lawful case that they've incurred. (Exh. 16, Westry depo. p. 52). The state form affidavits of substantial hardship are not used by him and he has not seen those used in the Montgomery city court. (Exh. 16, Westry depo. pp. 53-54) According to Westry, the procedures and policies at Montgomery are as follows: 20 Q. Do you know of any policies or 21 procedures that you were supposed to follow 22 with respect to conducting indigency 23 determinations? 00056 1 MR. PAULK: Object to the f orm. 2 A. Well, at the expense of being 3 redundant, I've indicated, you know, the 4 policy of our court is that if the citizen has 5 not satisfied us, that they have life events 6 or circumstances which prevent them from being 7 able to pay the costs and fines that were 8 assigned their particular cases, and then we 9 commute. 19 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 22 of 50 10 Q. Okay. So you don't know of any 11 policies or procedures specifically about 12 indigency determination then? 13 MR. PAULK: Object to the f orm. 14 Asked and answered. 15 A. Same thing. 16 Q. Are there any policies or 17 procedures that you know of from the Office of 18 Indigent Defense Services? 19 A. No. I'm not aware of any. (Exh. 16, Westry depo. pp. 55-56) Westry, like Hayes, does not use community service or allow it to be used. (Exh. 16, Westry depo. p. 77) Similarly, he has never ordered wages to be garnished rather than sending the person to jail because: 10 A. Well, just never have thought 11 about doing it that way. You know, most 12 individuals when we are taking in 13 consideration whether or not we'll commute, 14 are telling us we have no employment. So you 15 cannot--you know, even if it was available, 16 in the vast majority of cases, we wouldn't be 17 able to do that anyway because the 18 individual's saying that, hey, I'm not 19 working. (Exh. 16, Westry depo. p. 78) (emphasis added) In operating with JCS, the only thing he puts on the JCS probation forms is his signature. (Exh. 16, Westry depo. p. 104). JCS determines the monthly payment as far as he knows. (Exh. 16, Westry depo. p. 104). Generally, he is handed a bunch of documents to sign at once. (Exh. 16, Westry depo. p. 106) JCS determines the number of months a person is on probation. He’s never waived the JCS fees. (Exh. 16, Westry depo. p. 107) He says a lot of people request JCS in order to get them out of jail. (Exh. 16, Westry depo. p. 108) The alternatives for a person who is fined are to: 1) pay the fine, 20 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 23 of 50 2) have their sentence commuted, 3) go to JCS or, 4) receive a much shorter period of time to pay it to city court. (Exh. 16, Westry depo. p. 110) Once a person is on JCS, JCS sets the length of the term to pay and brings that person back before the court if needed. (Exh. 16, Westry depo. p. 111-12) He has seen Notices to Show Cause used by JCS, but has no oversight on them and does not know how the amounts are determined. (Exh. 16, Westry depo. p. 112) He has never held a revocation hearing with JCS based on anything other than nonpayment. (Exh. 16, Westry depo. p. 121) CLASS CLAIMS Plaintiffs’ claims under Title 42 U.S.C. §1983 present the "paradigmatic" and "classic" case for class certification under Rule 23(b)(2). Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). This class also meets all of the requirements for certification under Rule 23(b)(3) and Rule 23(b)(4). CLASS DEFINITION Plaintiff seeks certification of a class of: All individuals who have been in the past assigned by the Montgomery Municipal Court to "probation" with Judicial Correction Services (JCS) for the collection of fines. AND All individuals who, despite their indigency, were incarcerated, without consideration of their indigency for failure to pay fines, charges and fees to Montgomery. Named Plaintiff’s Allegations-ALDARESS CARTER Aldaress Carter (‘Mr. Carter’) is typical of individuals in Montgomery subjected to the JCS system and he shares common issues of fact and law with similarly situated persons. 21 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 24 of 50 Mr. Carter was unable to immediately pay in full fines or costs on city charges and was assigned to JCS by the Montgomery City court operating under the JCS form contract signed by the mayor. (Doc. 73-1, pp. 363-67) Carter and each class member were charged fees by JCS and were all subject to the systematic threats of arrest generated in ProbationTracker™. Finally, Carter and many of the class members were arrested upon the request of JCS working with its city partner when they did not pay as demanded. (Exh. 10) Though Carter stated that he could not pay the fines assessed, there was no inquiry or consideration of his poverty by either the City or JCS. Instead, he was ordered to pay JCS an additional $40 per month under JCS preprinted (and at Montgomery, presigned) "probation orders." (Doc. 73-17) JCS, like with all the class members, established a case file for Mr. Carter in its Probation Tracker and applied its system to collecting his fines. (Exh. 1-section 9) When he could not pay as demanded by JCS, Mr. Carter was arrested by Montgomery police on January 24, 2014. (Exh. 10) Mr. Carter remained in the Montgomery city jail for three days due to this arrest for traffic tickets he could not pay and because he could not pay the cash bond the city demanded for his release. (Exh. 10) The cash bond amount for release was set by the City before the arrest warrant was served on the Plaintiff and was equal to the balance JCS claimed to be owed. On Monday, January 27, 2014, along with a lot of other jailed inmates, Carter was taken to the Montgomery City Court. Before appearing in court, Carter and the jailed group were told by a man who did not introduce himself that they needed to pay or they "would stay." Much later, Carter learned that the man was Branch Kloess, a "Public Defender" hired by the City. When family members paid the $452 to one of the clerks at the court window, Carter was 22 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 25 of 50 released on January 30, 2014. The unlawful and unconstitutional deprivations suffered by Mr. Carter are sadly typical of the practices challenged by this class action in the JCS system and in its application at Montgomery. ARGUMENT A. All the prerequisites to certification under Rule 23 are met. For purposes of class certification, substantive allegations in the complaint are accepted as true. Winston v. Jefferson County, Ala., 2006 WL 6916381, at *6 (N.D. Ala. 2006)(citing In re Catfish Antitrust Litig., 826 F.Supp. 1019, 1033 (N. Miss. 1993)). Specifically, the class certification stage concerns whether the requirements of Rule 23 are met – not whether Plaintiffs will prevail on the merits. Winston, 2006 WL 6916381 at *6; Miller v. Mackey International, Inc., 452 F.2d 424, 427 (5th Cir. 1971). "... Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent – but only to the extent – that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184, 1194-95 (2013). Here, all of the prerequisites to certification under Fed. R. Civ. P. 23 are met. Title 42 U.S.C. § 1983 cases such as this are especially suited for class treatment. Plaintiffs have specifically limited their claims to post conviction collection practices which extort money and have refined the class definition to include only those who were harmed by those practices. Certification is appropriate under both Rule 23(b)(2) and (b)(3). Additionally, a Rule 23(c)(4) class would also be appropriate with respect to certain issues presented in this litigation. These points are discussed in detail below. 23 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 26 of 50 1. Plaintiffs Have Standing. To establish standing, a plaintiff must have sustained an injury-in-fact that would be corrected by a decision in his or her favor. Church v. City of Huntsville, 30 F.3d 1332, 1335 (11th Cir. 1994); see Pettco Enterprises, Inc. v. White, 162 F.R.D. 151, 156 (M.D. Ala. 1995)("The core of the standing doctrine is a requirement that a plaintiff allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief."). Named Plaintiff Carter and putative class members satisfy the standing requirement. All have been charged fees on JCS probation for the collection of fines and many, like Carter, were jailed in that process. B. The Class Is Ascertainable. "Ascertainability depends on the class definition, and a successful definition is one that is'precise, objective, and presently ascertainable... by reference to objective criteria." Moore v. Walter Coke, Inc., 294 F.R.D. 620, 625 (N.D. Ala. 2013). Specifically, "[c]lass members need not actually be ascertained prior to certification, but each individual’s class membership must be ascertainable at some stage in the proceeding, meaning it must be administratively feasible for the court to determine whether a particular individual is a member." Moore v. Walter Coke, Inc., 294 F.R.D. 620, 625 (N.D. Ala. 2013). "All courts essentially focus on the question of whether the class can be ascertained by objective criteria... However, the court need not know the identity of each class member before certification; ascertainability requires only that the court be able to identify class members at some stage of the proceeding." William B. Rubenstein et al., Newburg on Class Actions § 3:3, at p. 163 (5 th ed. 2011) [hereinafter "Newburg"]. 24 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 27 of 50 Recent decisions have discussed the fact that "ascertainability" is not a requirement under Rule 23 with several courts now holding that it should not be a requirement for certification. See Briseno v ConAgra Foods Inc., 844 F.3d 1121(9th Cir. 2017), where the 9th Circuit categorically rejected ascertainability or administrative feasibility as a free standing prerequisite to class certification.9 Nevertheless, whether or not this is required, the proposed Class and subclasses here are highly ascertainable. The computerized system of JCS, the collected data within Probation Tracker and its underlying SQL databases allow identification of each class member on each probation with many details about them. The collected data shows for each individual, the fines collected, JCS fees, warrants, jail status and credit for time served with linked documents pertaining to such individual which were scanned to the system. The data also contains a running narrative chronologically documenting the JCS employees’ entries and actions. Thus, not only are the class members ascertainable, extensive data about each is already documented. (Exh. 1) Very few class actions have such abundant and consistent data about the entire class. 9 We also take guidance from language used in other provisions of the Rule. In contrast to Rule 23(a), Rule 23(b)(3) provides, "The matters pertinent to these findings include," followed by four listed considerations. Fed. R. Civ. P. 23(b)(3) (emphasis added). If the Rules Advisory Committee had intended to create a non-exhaustive list in Rule 23(a), it would have used similar language. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("'[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ " (alteration in original) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam))). Moreover, Rule 23(b)(3) requires a court certifying a class under that section to consider "the likely difficulties in managing a class action." Fed. R. Civ. P. 23(b)(3)(D). Imposing a separate administrative feasibility requirement would render that manageability criterion largely superfluous, a result that contravenes the familiar precept that a rule should be interpreted to "give[] effect to every clause." Mackay, 742 F.3d at 864. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1125–26 (9th Cir. 2017) 25 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 28 of 50 The underlying database tables for ProbationTracker™ are relational allowing the user to quickly filter out the JCS "probationers" for any particular time frame. (Exhibits 1-9) Further, hard copy documents generated in court are scanned to the system and linked with the individual’s case file. Finally, those persons at Montgomery for whom warrants were issued in this collection process are also ascertainable. After a warrant is issued, the status in Probation Tracker is changed to "warrant."10 Similarly, the computer system provides status codes for "jail" when a person is jailed due to non compliance on behalf of JCS.11 Additionally, categories for persons released on "time served" allow easy calculation of the days in jail. This abundant data from JCS’s own database should provide ample assurance of ascertainability. This data is further verified and refined by the City’s own jail logs, dockets, and records. For instance, Montgomery has its own jail so the city jail records of those on JCS provide further tools for verifying by independent data those who were jailed. Seldom would a court have such abundant data available to it not only to identify the class members and assist in the management of the class, but also in documenting the systematic similar treatment of each person within the class. 1. Rule 23(a) Is Satisfied. Rule 23(a) outlines four requirements for class certification: (1) numerosity; (2) 10 • Warrant-should be used when a warrant has been issued by the court for the defendant. Do not put the case in warrant status until the warrant has been signed by the Judge and taken back to the court clerk, as the warrant is not active before this point. (Emphasis added) (Doc. 73-4 p. 36) 11 Jail-should be used when a defendant is in jail due to a petition of the court due to non-compliance of a court order on behalf of JCS… (Emphasis added) (Doc. 73-4 p. 35) 26 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 29 of 50 commonality; (3) typicality; and (4) adequacy of representation. As outlined below, Plaintiffs satisfy each of the Rule 23(a) requirements. i. Numerosity. Under Rule 23(a)(1), a class action may be maintained only if the class is so numerous that joinder of all Class Members is impracticable. Dujanovic v. Mortgage America, Inc., 185 F.R.D. 660, 666 (N.D. Ala. 1999); Terazosin Hydrochloride Antitrust Litig., 203 F.R.D. 551, 553 (S.D.Fla. 2001). Whether joinder is practicable depends on many factors including the size of the class, ease of identifying its numbers and determining their addresses, facility of making service on them if joined and their geographic dispersion. See Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) If the Court can draw reasonable inferences from the facts before it as the approximate size of the class and the infeasibility of joinder, the numerosity requirement is satisfied. Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) ("Although mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff need not show the precise number of members in the class. Furthermore, the relevance of the numerosity requirement to class certification may in appropriate cases be less significant where in fact class wide discrimination has been alleged..."); Dujanovic, 185 F.R.D. at 666 ("this court may'make common sense assumptions’ to support a finding of numerosity"). Winston, 2006 WL 6916381 at *6; Roundtree v. Bush Ross, P.A., 304 F.R.D. 644, 659 (M.D. Fla. 2015) Here, the size of the putative class makes joinder impracticable. The JCS putative class pertains to over 17,000 individuals (many people, like Mr. Carter, were on multiple'probations’). Because the proposed Class is undeniably 27 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 30 of 50 large, numerosity is satisfied. See, e.g., Cox v. American Cast Iron Pipe Co., 784 F.2d 12 1546, 1553 (11th Cir. 1986); Napoles-Arcila v. Pero Family Farms, LLC 2009 WL 1585970 at *6 (S.D. Fla. June 4, 2009) ("this Court concludes that Plaintiffs’ putative general class of one hundred fifty (150) or more, and Plaintiffs’ putative subclass of fifty (50) meets the numerosity requirement of Rule 23(a)."); Kreuzfield A.G. v. Carnehammar, 138 F.R.D. 594, 599 (S.D. Fla. 1991) (finding that a class of 130 satisfied the numerosity prerequisite). Further, the Montgomery clerk provided testimony that "approximately fourteen hundred people at any given time [were] assigned to JCS" (Doc. 73-1 pp.137-38 at depo 137:18-138:9) ii. Commonality. Commonality requires that the grievances of the Plaintiff and the Class Members share a common question of law or of fact. Fed. R. Civ. P. 23(a)(2). The threshold for satisfying the commonality prerequisite is "not high." Dujanovic, 185 F.R.D. at 667. Simply put, "the commonality requirement is not usually a contentious one: the requirement is generally satisfied by the existence of a single issue of law or fact that is common across all class members and is thus easily met in most cases." Newburg, supra, § 3:18, at p. 228. Commonality requires only that there be one issue that affects all or a significant number of proposed Class Members. Winston, 2006 WL 6916381 at *6; see also Anderson v. Garner, 22 F.Supp. 2d 1379, 1385 (N. Ga. 1997) (a common question is defined as "one 12 See also, Terazosin, 203 F.R.D. at 553 ("finding that a class of over one thousand satisfied the numerosity prerequisite); In re Consolidated "Non-Filing Insurance" Fee Litig., 195 F.R.D. 684, 693 (M.D. Ala. 2000) (finding that a class of thousands of policyholders satisfied the numerosity prerequisite); Kreuzfield A.G. v. Carnehammar, 138 F.R.D., 138 F.R.D. 594, 599 (S.D. Fla. 1991) (finding that a class of 130 satisfied the numerosity prerequisite). 28 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 31 of 50 which arises from a'nucleus of operative facts,’ regardless of whether the underlying facts fluctuate over a class period and vary as to individual claimants."); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)("[F]or purposes of Rule 23(a)(2) [e]ven a single [common] question will do.").13 Indeed, a "single plaintiff can use the discrimination he or she has suffered as a basis for a company-wide class action if that discrimination stems from an identifiable corporate policy that affects all." General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 159 n.15 (1982). Further "[b]ecause not all questions need be common, the fact that class members must individually demonstrate their right to recover, or that they may suffer varying degrees of injury, will not bar a finding of commonality." Newburg, supra, § 3:20, at p. 244; see also Roundtree v. Bush Ross, P.A., 304 F.R.D. 644, 659-60 (M.D. Fla. 2015)("Though Bush Ross contends that the determination of the nature of each putative class member’s debt (residential or commercial), the potential awards of damages for each putative class member, and the issue of whether a putative class member entered into a settlement or release or filed for bankruptcy defeat the commonality and typicality inquiries, such an argument is unavailing in light of the overarching commonalities of law and fact. Accordingly, Roundtree has established the commonality requirement."). Here, the JCS collection system was a common practice affecting all Class members and which was applied in Montgomery. That system which provides the nucleus of operative facts from which common questions arise. The testimony and documents of 13 See also Dujanovic, 185 F.R.D. at 667 (commonality can be found where the class allegations arise from "a common nucleus of operative facts"); Cox, 784 F.2d at 1567 (The commonality element is satisfied whenever "[t]he claims actually litigated in the suit [are] fairly represented by the named plaintiffs."); Walmart Stores, Inc. v. Dukes, 131 S Ct. 2541 (2011)("[Plaintiffs’] claims must depend upon a common contention."). 29 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 32 of 50 JCS support this. The factual issues raised by the complaint are common to all JCS "probationers" who were assigned to JCS. Among the questions of law and fact common to the Class are: 1. Whether a policy and practice of placing those persons on "probation" for the collection of fines who cannot immediately pay fines and costs, is legal; 2. Whether the policy and practice of converting unpaid fines and costs to days of incarceration, without any determination concerning an individual’s ability to pay, is legal; 3. Whether the policy and practice of requiring each "probation"order for the collection of fines to require additional fees for JCS is legal; 4. Whether the policy and practice of incarcerating individuals for failure to pay fines and costs with no finding of willfulness is legal; 5. Whether, after being informed of the inability to pay, is a policy and practice which fails to make any inquiry into indigency before imposing fines and costs is legal; 6. Whether the policy and practice of failing to give adequate notice of the charge and nature of a probation revocation hearing, failing to provide a probation revocation hearing, failing to make written findings concerning the reasons for revoking probation and the evidence relied upon, failing to hold a hearing to determine indigency before revoking probation and otherwise imposing incarceration, failing to make written findings concerning an individual’s willful nonpayment of fines and costs before imposing 30 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 33 of 50 incarceration for nonpayment are legal; 7. Whether the policy and practice of imposing fines and court costs that exceed that statutory maximum for municipalities is legal; 8. Whether the policy and practice of extending "probation" for municipal offenses beyond 24 months is legal; 9. Whether the policy and practice of demanding cash bonds for release from jail is legal; 10. Whether the policy and practice of hiring private probation companies who are financially interested in the collection process is legal; 11. Whether a municipality can legally enter a contract binding upon its municipal court; 12. Whether a municipality can enter into a no bid contract to grant an exclusive franchise to a private probation company to operate in its municipal court; 13. Whether setting bond based upon a fine balance owed the city is legal. These common questions of law and fact exist as to members of the Class all of whom were subjected to the same system and practice in the same city, and predominate over any individualized questions affecting members of the Class. Because the JCS system is highly automated and systemized, it provides an underlying pattern of common unlawful behavior. iii. Typicality The typicality requirement is met when each class member’s claim arises "from the same event or pattern or practice and are based on the same legal theory" as the claims 31 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 34 of 50 of the class. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984); Winston, 2006 WL 6916381 at *8. "The typicality requirement seeks to ensure that the class representative’s claims are similar to those of the class members so that the interests of the class representatives are closely aligned with those of the class." Newburg, supra, § 3:31, at p. 271. The typicality threshold is not high and is to be permissively construed. Buford v. H&R Block Tax Servs., 168 F.R.D. 340, 351 (S.D.Ga. 1996); Dujanovic, 185 F.R.D. at 667 ("The typicality requirement of Rule 23 often is considered to require no more than that there exist no antagonism between the claims of the class representative and the other members of the class."). The test for typicality is "not demanding." Newburg, supra, § 3:29, at p. 267. Further, "[t]ypicality... does not require identical claims or defenses. A factual variation will not render a class representative’s claim atypical unless the factual position of the representative markedly differs from that of other members of the class." Kornberg, 741 F2d at 1337; see also Newburg, supra, § 3:29, at p. 267 ("[T]he plaintiffs’ claims need not be identical to those of the class; typicality will be satisfied so long as'the named representatives’ claims share the same essential characteristics as the claims of the class at large."); In re Piedmont Office Trust, Inc. v. Securities Litigation, 264 F.R.D. 693, 698 (N.D. Ga. 2010). Further, "[d]ifferences in the amount of damages between the class representative and other class members does not affect typicality." Kornberg, 741 F.2d at 1337 (citation omitted); see also Roundtree v. Bush Ross, P.A., 304 F.R.D. 644, 660 (M.D. Fla. 2015). Newburg, supra, § 3:43, at p. 292 ("Courts routinely find that the proposed class representative’s claims are typical even if the amount of damages sought differ from 32 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 35 of 50 those of the class or if there are differences among class members in the amount of damages each is claiming.") Here, the typicality requirement is easily satisfied.14 The named Plaintiff makes the same legal and factual arguments that all Class Members will make. When Mr. Carter was unable to immediately pay city fines, he was assigned to JCS for collection and then charged additional fees--all because of the city contract with JCS. The contract required each person like the Plaintiff to then pay the additional monthly fees. These fees, along with the highly computerized system, used systematic threats, form letters, and processes leading to the arrest of Mr. Carter and many other proposed Class Members "in the same general fashion," such that his claims are indeed typical of the claims of the entire Class. Kornberg, 741 F.2d at 1337; see Dujanovic, 185 F.R.D. at 660 (finding that the typicality prerequisite was satisfied where the plaintiff alleged a harm that was caused by defendant’s policies and practices); Ingram, 200 F.R.D. at 698 (finding typicality where plaintiffs alleged a harm caused by defendant’s company-wide policies and practices); J.W. v. Birmingham Bd. of Educ., 2012 WL 3849032 (N.D. Ala. 2012)(finding typicality requirement was satisfied as "the proposed class and Plaintiffs’ claims arise from the same allegedly unconstitutional practices... Thus, the court finds the typicality requirement is satisfied because the class representatives and members’ claims are premised around the same injury or threat of injury and the same legal theory of the unconstitutionality of Chief 14 As noted by many courts, the commonality and typicality requirements involve similar considerations and "tend to merge." Falcon, 457 U.S. at 158 n.13. Both requirements "serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the Class Members will be fairly and adequately protected in their absence." Id. Typicality is thus satisfied here for substantially the same reasons the commonality requirement is satisfied. 33 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 36 of 50 Roper’s polices, practices and training.") The JCS State Director Colleen Ray, testified as JCS’s 30(b)(6) representative in the Ray case that the JCS training manual listed specific steps that each JCS employee would use in working a "typical case": 23 Q. And that's what you're telling 00110 1 your people here in this document, this is the 2 way we do this within the system, right? 3 A. Correct. 4 Q. Go with me, if you would, to page 5 65 of the document. What is this? 6 A. This is an example of just working 7 a typical case and the actual steps in a 8 typical case that a probation officer might 9 use in following the steps. (Doc.73-3, p. 28 at Depo pp. 109:23-110-9) Ms. Ray’s testimony is further supported by the JCS flowchart of its "Typical Case" depicted in its training manual. (Doc. 73-3 p.167) The actions of JCS are detailed by status changes, linked form letters, and detailed notes that are documented in each probationer’s case file. The systematic application of "working a typical case" is shown by examining the current status table and the notes table as well. (Exh. 1) Examination of JCS’s data reveals that Mr. Carter was processed similarly to other putative class members and that JCS uniformly used the procedures listed above throughout its operation in Montgomery. (Exh. 1 and exhibits) The "working a typical case" flowchart is a clear representation of the typical JCS process of extorting money from its probationers. iv. Adequacy of Representation The final Rule 23(a) certification prerequisite is adequacy of representation. To meet this requirement, the Plaintiff must show (1) that Plaintiff’s counsel is competent to 34 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 37 of 50 handle the case and (2) that there are no disabling conflicts of interest among the Class Members. Griffin v. Carlin, 755 F.2d 1516, 1532-33 (11th Cir. 1985); see also Winston, 2006 WL 6916381 at *8; Camp v. City of Pelham, 2012 WL 7008393 at * 4 (N.D. Ala. 2012); J.W. Birmingham Bd. Of Educ., 2012 WL 3849032 (N.D. Ala. Aug. 31, 2012). Both requirements are met here. See also J.W. v. Birmingham Bd. Of Educ., 2012 WL 3849032, at *9 (N.D. Ala. Aug. 31, 2012)("Counsel will be deemed adequate if they are shown to be qualified, adequately financed, and possess sufficient experience in the subject matter of the class action.") On several occasions, Plaintiff’s counsel has successfully litigated major consumer class actions against numerous banks, financial institutions, government entities and others (See Exh. 11). The efforts and perseverance of Plaintiffs’ counsel in this litigation and the litigation in the Ray case stand as evidence of their competence in this area. (Exh. 12) There is no reason to believe that Plaintiffs’ counsel will not continue to prosecute this case with a high degree of diligence and vigor. Second, there are no conflicts among the proposed Class Members that undermine adequate representation. See J.W. v. Birmingham Bd. Of Educ, 2012 WL 3849032, *10 (N.D. Ala. 2012)("...'[t]he existence of minor conflicts alone will not defeat a party’s claim to class certification: the conflict must be a'fundamental’ one going to the specific issues in controversy... A fundamental conflict exists where some party members claim to have been harmed by the same conduct that benefitted other members of the class.’"). Further, the prior counsel for JCS at hearing before Judge Proctor on January 7, 2015 in the Ray case agreed that adequacy is satisfied. 35 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 38 of 50 12 THE COURT: Give me a little bit of trailer on what 13 may be forthcoming. It seems to me numerosity isn't going to 14 be an issue? 15 MR. EZELLE: No, Your Honor. 16 THE COURT: Adequacy? 17 MR. EZELLE: No. (Jan. 7, 2015 Hearing at p. 56). 2. Certification is Warranted Under Rule 23(b)(2) This class action, which seeks to prohibit illegal extortion under the guise of "private probation," and restore the money taken is exactly the type of case for which Rule 23(b)(2) was designed. JCS, with its city customer Montgomery, carried out a uniform practice of extortion using the police power of the cities to back its threats. Certification under Rule 23(b)(2) is appropriate where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2). JCS’s conduct along with Montgomery is directed against and uniformly harms a specific class of poverty stricken people and thus, falls squarely within the ambit of Rule 23(b)(2). After this case was filed, Montgomery fired JCS and JCS has since left the state of Alabama. Nevertheless, a declaratory judgment and injunction will be necessary to prevent the recurrence of these problems in the future. Rule 23(b)(2) contains two basic requirements: (1) the class members must have been harmed in essentially the same way by the Defendant’s acts; and (2) the common injury may properly be addressed by class-wide injunctive or equitable remedies. Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir. 1983)("[T]he claims contemplated in a (b)(2) action are class claims, claims resting on the same grounds and applying more 36 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 39 of 50 or less equally to all members of the class.")(emphasis in original). see also Winston, 2006 WL 6916381, *9. Where these requirements are met, the class members’ interests are sufficiently cohesive that absent members will be adequately represented. Holmes, 706 F.2d at 1155 n.8 ("[T]he (b)(2) class is distinguished from the (b)(3) class by class cohesiveness... [i]njuries remedied through (b)(2) actions are really group, as opposed to individual injuries."); see Lemon v. International Union of Operating Engineers, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000)("Rule 23(b)(2) operates under the presumption that the interests of the class members are cohesive and homogeneous such that the case will not depend on the adjudication of facts particular to any subset of the class nor require a remedy that differentiates materially among class members.").Winston, 2006 WL 6916381, *9 This case thus falls squarely within the ambit of Rule 23(b)(2)."). Rule 23(b)(2)’s requirements are met here. Class Members Have Been Harmed in the Same Way Cohesiveness exists in this case because all Class Members have been harmed in the same way by JCS’s systematic and uniform practices in Montgomery. All have been charged fees because they could not pay fines. Within that group is a subgroup who were also arrested and jailed for their failure to pay. Both of these damages arise from the same system imposed on all putative class members. Plaintiffs Seek Class-Wide Injunctive Relief and Equitable Remedies Cohesiveness also exits because the injunctive and equitable "make whole" remedies sought by Plaintiffs will provide appropriate relief for the Class Members’ 37 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 40 of 50 common injury.15 See Winston, 2006 WL 6916381, *10 (N.D. Ala. June 26, 2006). This relief includes, but is not limited to, the return to the class members of the fees paid JCS under this illegal system and illegal costs paid to the City. These forms of relief are appropriate for Rule 23(b)(2) certification. Injunctive relief forcing Defendants to end their illegal practices and the disgorgement of the funds wrongfully gained is the predominant remedy sought by Plaintiffs. The Court has broad equitable authority under 42 U.S.C. § 1983 to enjoin such long-standing, systemic conduct and grant restitution to its victims. While an injunction prohibiting Montgomery and JCS from engaging in these practices in the future is predominant, other equitable relief such as restitution are properly be sought under Rule 23(b)(2) without destroying the cohesiveness of the Class. "Monetary relief is appropriate provided that the awards are either equitable in nature or secondary to the general scheme of injunctive relief. Moreover, this Circuit holds that equitable remedies in no way conflict with the limitations of Rule 23(b)(2) where the defendants’ liability for the equitable relief'is rooted in grounds applicable to all members of the defined class.’" Winston, 2006 WL 691381 at *10 (citing Holmes, 706 F.2d at 1155). Also see Carnegie, slip op. at 23 (citing Newberg, 1 Newberg on Class Actions § 4.14 at 4-46 to 47 (1992)). In Carnegie, the court found that the restitutionary relief for the same racially discriminatory conduct was equitable in nature and appropriate for (b)(2) 15 Notice and opt-out rights protect the interests of those persons, if any, who might wish to pursue an individual claim for compensatory damages. Plaintiffs request that the Court order such a procedure under the plenary powers granted by Rule 23(d)(2) and 23(d)(5). Allison v. Citgo Petroleum Corp., 151 F.3d 402, 418 n.13. ("Indeed, we have long-required notice in (b)(2) class actions in which equitable monetary claims are at stake."). 38 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 41 of 50 certification. Id. at 27 (distinguishing Great-West Life & Annuity Ins. Co. v. Knudsen, 534 U.S. 204, 122 S.Ct. 708 (2002) which involved a breach of contract claim). Here, Plaintiffs seek the return of the fees paid JCS much like a "make whole" equitable group remedies, similar to back pay, which flow directly from a finding of liability to the Class as a whole for the imposition of this illegal system. In order to vindicate the unconstitutional practice in this case, the Court can and should establish a constructive trust over the property which the JCS illegally took from the Plaintiff Class. Title 42 U.S.C. §1988(a) clearly gives this Court full power to fashion effective equitable remedies. Jones v. Alfred H. Mayer, 392 U.S. 409, 88 S.Ct. 2186 (1968). A review of the JCS’s records shows that JCS collected fees for itself in the amount of $4,065,146.63 from Montgomery "probationers" since August 28, 2010. (Exh.9) A constructive trust is a relationship with respect to property subjecting the person holding legal title to the property to an equitable duty to convey it to another on the grounds that his acquisition and/or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property. See Restatement of Restitution, § 160; Restatement 2d Trust, § 1, 1959 WL 16228; see also, Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 250-251 (2000); Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 (1919); Pound, The Progress of the Law, Equity, 33 Harv.L.Rev. 420 (1920); Restatement (Third) of Restitution, § 4. 3. Certification is Warranted under Rule 23(b)(3). This putative class should also properly be certified under Rule 23(b)(3) because common questions of law or fact predominate and adjudication by class action is superior 39 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 42 of 50 to other available methods. Fed.R.Civ.P 23(b)(3); see also Newburg, supra, § 4:47, at pp. 186-87 ("Specifically,'[s]ubdivision (b)(3) encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’"). Here, both requirements are readily met. Subdivisions (b)(3) and (b)(2) both require the existence of common questions of law or fact. However, (b)(3) contains the additional requirement that common issues must "predominate" over individual issues. Also, it adds "superiority" to Rule 23's list of qualifications for certification. In adding'predominance’ and'superiority’ to the qualification-for-certification list, the Advisory Committee sought to cover cases'in which a class action would achieve economies of time, effort, and expense, and promote... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’... Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Report for the 1966 amendments cautioned:'The new provision invites a close look at the case before it is accepted as a class action...’ Amchem Products, Inc. v. Windsor, 521 U.S. 591, 615 (1997) (citations omitted). Significantly, "Rule 23(a)(2) does not require that all... questions of law and fact raised by the dispute be common. Instead, the commonality requirement is qualitative rather than quantitative – that is, there need be only a single issue common to all members of the class." Winston, 2006 WL 6916381 at *11 (citing Cox, 784 F.2d at 1557 and Newberg, supra § 3.10, at p 3-50). i. Common Issues Predominate Predominance exists when the issues subject to general proof and thus applicable 40 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 43 of 50 to the class as a whole predominate over those issues susceptible only to individualized proof. Nichols v. Mobile Board of Realtors, Inc., 675 F.2d 671, 676 (5th Cir. Unit B 1982). "The common issues, however, need not be dispositive of the entire litigation. Those questions peculiar to individual class members may remain after resolution of common issues does not preclude class certification." Winston, 2006 WL 6916381 at *11 (citing Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1378-79 (11th Cir. 1984)). Stated differently, "[c]ommon issues of fact and law predominate if they'ha[ve] a direct impact on every class member’s effort to establish liability and on every class member’s entitlement to injunctive and monetary relief." Williams v. Mohawk Industries, Inc., 568 F.3d 1350, 1357 (11th Cir. 2009). Rule 23(b)(3)’s predominance inquiry is designed to test "whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem Products, 521 U.S. at 623 & n. 19 (emphasis supplied). For example, Rule 23(b)(3)(A) instructs courts to consider "the interest of members of the class in individually controlling the prosecution... of separate actions." In other words, "[p]redominance... asks whether the common, aggregation-enabling, issues in the case are more prevalent or important than the non-common, aggregation-defeating, individual issues." Newburg, supra, § 4:49 p. 195-96.16 Here, proof of the common system used at Montgomery and statewide, under a common contractual basis, using an identical structure to impose added fees on those who have disclosed their inability to pay fines--pose, common factual and legal issues. 16 It is also worth noting that "[c]ommon issues will predominate if individual factual determinations can be accomplished using computer records, clerical assistance, and objective criteria – thus rendering unnecessary an evidentiary hearing on each claim." Newburg, supra, § 4:50, at p. 197 (internal citations omitted). 41 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 44 of 50 Predominance exists here because 1) the placement on "probation" for collection of fines after an inability to pay is disclosed, 2) the illegal requirement of additional JCS fees from only those who cannot pay their fines, 3) the systematic application of the process, 4) the absence of consideration of factors other than failure to pay – all show these common factors predominate. The consistency in the amount of the fees, the arrests and jailing is proven by the extensive data collected by JCS. (Exh. 1 and Exhibits thereto) Proof of each Class Members’ claim against JCS and/or Montgomery therefore does not require the resolution of case-specific individualized issues because those were not considered in the JCS system. Payment or non payment was the scale which determined treatment. Further, if JCS’s practice with Montgomery is found to be unconstitutional, the defendants are liable to all Class Members for restitution of the fees paid and for their injury from their arrest and incarceration. Predominance is further supported because there are no counterclaims, no reliance issues and a defined statute of limitation for common claims all arising in this jurisdiction. ii. A Class Action is the superior form of prosecution. Four factors are considered in determining whether "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." Fed.R.Civ.P. 23(b)(3); Newburg, supra, § 4:64, at p. 249. The first factor is "the class members’ interests in individually controlling the prosecution or defense of separate actions." Fed. R. Civ. P. 23(b)(3)(A). The question is whether the interest of most class members in conducting separate lawsuits is so strong as to require denial of class certification. McClendon v. Continental Group, Inc., 113 F.R.D. 39, 45 (D.N.J. 1986). For a number of reasons, the overwhelming majority of Class Members have little 42 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 45 of 50 ability to prosecute their claims against JCS and Montgomery through individual actions. Individuals face the impossible combination of pursuing a wealthy entity as a defendant with substantial resources with relatively low value claims requiring significant resources to prove. Such a combination would make the retention of legal representation all but impossible. Nor could the Class Members, who are unable to pay simple court fines, be expected to take on a large corporations and a city government by themselves. See Winston v. Jefferson County, Ala. 2006 WL 691381, at *12; Sala v. National R.R. Passenger Corp., 120 F.R.D. 494, 500 (E.D. Pa. 1988); 7A Wright & Miller, Federal Practice and Procedure, § 1779 at 557 ("a group composed of consumers... typically will be unable to pursue their claims on an individual basis because the cost of doing so exceed any recovery they might secure").17 "When potential class members have little understanding of the law... individual suits become more difficult and class certification more likely..." Newburg, supra, § 4:65, at p. 258. Significantly "the class action device is especially pertinent to vulnerable population..." such as the poverty-stricken plaintiffs here. Newburg, supra, § 4:65, at p. 260. The second factor under Rule 23(b)(3) concerns "the extent and nature of any litigation concerning the controversy already begun by or against class members." While there are a handful of putative class actions pending in Alabama presenting similar issues 17 See, also In re Copely Pharmaceutical Inc., 158 F.R.D. 485, 492 (D. Wyo. 1994) ("persuasive" case for certification made by attorney representing six plaintiffs with small claims who "argued that without class certification neither he nor his clients had the resources to have their day in court against a large defendant"); In re Badger Mountain Irrigation Dist. Sec. Litig., 143 F.R.D. 693, 701 (W.D. Wash. 1992) (average individual claim of $15,000 too small to justify individual lawsuits); Cumberland Farms, Inc. v. Browning-Ferris Indus., 120 F.R.D. 642, 648 (E.D. Pa. 1988) (class action superior as there were a large number of individuals injured, although no one person may have been damaged to degree which would have induced him to institute litigation on his own). 43 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 46 of 50 including other JCS cities, class certification has not yet been granted for a damage class. Another superiority factor set forth on Rule 23(b)(3) is "the desirability or undesirability of concentrating the litigation of the claims in the particular forum." This Court has many similar cases in the Middle District of Alabama and has gained a great deal of knowledge concerning this matter such that judicial economy weighs in favor of this forum. Finally, the fourth factor concerns "the likely difficulties in managing a class action." Fed. R. Civ. P. 23(b)(3)(D). "The manageability inquiry is not whether there will be any manageability problems at all, but whether reasonably foreseeable difficulties render some other method of adjudication superior to class certification." Winston, 2006 WL 6916381, at *12 (citing In re Coordinated Proceedings in Antibiotic Antitrust Actions, 333 F. Supp. 278, 287-83 (D.N.Y. 1971)("... defendants, after reciting potential manageability problems, seem to conclude that no remedy is better than an imperfect one"); see generally, 1 Newberg § 4.3 at 4-125 ("It is only when such difficulties made a class action less fair and efficient than some other method, such as individual interactions or consolidation of individual lawsuits, that a class action is improper.")).18 Further, "[t]here 18 The Eleventh Circuit has addressed these points, stating:...[W]e have explained two reasons that the factor of manageability is ordinarily satisfied so long as common issues predominate over individual issues: First, we are not assessing whether this class action will create significant management problems, but instead determining whether it will create relatively more management problems than any of the alternatives.... Second, where a court has already made a finding that common issues predominate over individualized issues, we would be hard pressed to conclude that a class action is less manageable than individual actions. If a district court determines that issues common to all class members predominate over individual issues, then a class action will likely be more manageable than and superior to individual actions. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1358 (11th Cir. 2009)(citations omitted) 44 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 47 of 50 exists a strong presumption against denying class certification for management reasons." Winston, 2006 WL 6916381, at *12 (citing Buford v. H & R Block, Inc., 168 F.R.D. 340, 363 (S. Ga. 1996), aff’d 117 F.3d 1443 (11 th Cir. 1997)). This case presents no significant manageability concerns. The Class as defined is objectively ascertainable from the computer database of ProbationTracker™. Further, the extensive data collected by JCS provides a wealth of information about each "probationer," including addresses, family members, social security numbers and more which would undoubtedly assist in the management of the class. Accordingly, certification is appropriate under Rule 23(b)(3). C. Separate Classes Can Also Be Certified Under Rule 23(c)(4) With Respect To Particular Issues. Fed. R. Civ. P. 23(c)(4) provides that "an action may be brought or maintained as a class action with respect to particular issues." Issue classes under (c)(4) serve the distinct purpose of affording "the courts discretion to realize the advantages and efficiencies of class wide adjudication of common issues when there also exist individual issues that must be tried separately." Newburg, supra, § 4:89, at p. 375.; see also Rules Advisory Committee Notes, 39 F.R.D. 69, 106 (1966)("This provision recognizes that an action may be maintained as a class action as to particular issues only. For example, in a fraud or similar case the action may retain its "class" character only through the adjudication of liability to the class; the members of the class may thereafter be required to come in individually and prove the amounts of their respective claims."). Certification is appropriate under the provisions of Rule 23(c)(4) because particular issues are of common importance. Those include: 45 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 48 of 50 1. Whether using a "private probation" company which is financially interested in extending the process for collecting city fines, violates Due Process; 2. Whether requiring additional collection fees to be paid only by those who cannot pay their fines in full, violates Equal Protection; 3. Whether a no bid contract under which a city binds its court is valid under Alabama law; 4. Whether incarcerating individuals for failure to pay fines, costs and fees with no finding of willful contempt, violates due process and the fourth amendment; 5. Whether requiring a cash bond to be released from jail when the person is held in jail due to their failure to pay, fines, fees and costs (to the city and to a private company), violates due process and the eighth amendment; 6. Whether a private probation company requiring the waiver of counsel as part of its collection of fines and costs, violates the sixth amendment. Each of these issues are clearly presented here and as 23(c)(4) classes would materially advance the resolution of multiple claims and actions. CONCLUSION For the foregoing reasons, certification of the proposed Class and Subclass is entirely appropriate and warranted, and Plaintiffs’ Motion should therefore be granted. RESPECTFULLY SUBMITTED, s/G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 49 of 50 Attorneys for The Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com E-Mail: mevans@evanslawpc.com William M. Dawson ASB-3976-S80W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of May, 2017, I electronically filed the foregoing Plaintiffs’ Memorandum in Support of Motion for Class Certification with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: Shannon L. Holliday, Esquire Robert D. Segall, Esquire Joel Caldwell, Esquire COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 Micheal S. Jackson, Esquire WEBSTER, HENRY, LYONS, BRADWELL, COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239 F. Lane Finch, Jr., Esquire Brian Richardson, Esquire Swift Currie McGhee and Hiers, LLP 2 North 20th Street, Suite 1405 Birmingham, Alabama 35203 47 Case 2:15-cv-00555-RCL-WC Document 117 Filed 05/02/17 Page 50 of 50 Michael L. Jackson, Esquire Larry S. Logsdon, Esquire Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 Wilson F. Green, Esquire Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 Kimberly O. Fehl, Esquire Michael D. Brymer, Esquire CITY OF MONTGOMERY Legal Department Post Office Box 1111 Montgomery, AL 36101-1111 s/G. Daniel Evans G. Daniel Evans 48

Evidentiary Submission re [117] BRIEF/MEMORANDUM in Support, [116] MOTION to Certify Class filed by Aldaress Carter.

Case 2:15-cv-00555-RCL-WC Document 118 Filed 05/02/17 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) PLAINTIFFS’ SUBMISSION OF EVIDENTIARY MATTERS IN SUPPORT OF MOTION FOR CLASS CERTIFICATION Come now the Plaintiffs in the above-styled cause and submit the following evidentiary matters in support of their Motion for Class Certification: 1. Plaintiffs’ Exhibit 1-Composite Summary. 2. Plaintiffs’ Exhibit 2-APT_Payment Types printed from JCS Table PaymentTypes. 3. Plaintiffs’ Exhibit 3-APT_StatusCodes and StatusActions printed from JCS Tables APT_StatusCodes and StatusActions. 4. Plaintiffs’ Exhibit 4-JCS Modification of Termination Forms signed by Montgomery judges showing termination of'probation’ due to "credit for time served." 5. Plaintiffs’ Exhibit 5-APT Status Details Table-Status = T'time served’ since August 28, 2010. 6. Plaintiffs’ Exhibit 6-JCS Termed Case report showing all probationers terminated on or after August 28, 2010. 7. Plaintiffs’ Exhibit 7-APT_Employer table information printed from JCS’s Employer table where Employer is Like-SSI, disb, or unemp. 8. Plaintiffs’ Exhibit 8-Scanned documents in ProbationTracker™ for Aldaress Carter’s JCS cases. 9. Plaintiffs’ Exhibit 9-JCS Fees Collected in Montgomery since August 28, 2010. 10. Plaintiffs’ Exhibit 10-Affidavit of Aldaress Carter. 11. Plaintiffs’ Exhibit 11-Affidavit of G. Daniel Evans. 12. Plaintiffs’ Exhibit 12-Affidavit of Alexandria Parrish. 13. Plaintiffs’ Exhibit 13-Deposition of Wes Ennis, JCS regional manager for the region including the City of Montgomery, taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on June 30, 2014. 14. Plaintiff’s Exhibit 14-Exhibits 109-114 to Deposition of Wes Ennis, JCS regional manager for the region including the City of Montgomery, taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on June 30, 2014. 15. Plaintiff’s Exhibit 15-Exhibits 32-34 to Deposition of Presiding Judge Les Hayes, taken in Cleveland v. City of Montgomery, et al. 2:13-cv-732-MEF & Watts v. City of Montgomery, et al. 2:13-cv-733-MEF on April 29, 2014. 16. Plaintiffs’ Exhibit 16-Deposition Judge Milton Westry and Exhibits, taken in Cleveland v. City of Montgomery, et al. 2:13-cv-732-MEF & Watts v. City of Montgomery, et al. 2:13-cv-733-MEF on April 28, 2014. 17. Plaintiffs’ Exhibit 17-APT_StatusCodes equaling'E’ (Warrant status) for Montgomery JCS'probationers’ with an enter date after August 28, 2010. The following depositions and documents have been previously submitted: 1. Doc. 73-1-Deposition of Kenneth H. Nixon, Jr. and exhibits taken in Cleveland v. City of Montgomery, et al. 2:13-cv-732-MEF & Watts v. City of Montgomery, et al. 2:13-cv-733-MEF on April 18, 2014 as the 30(b)(6) representative for the City of Montgomery. 2. Doc. 73-2-Deposition of Presiding Judge Les Hayes, taken in Cleveland v. City of Montgomery, et al. 2:13-cv-732-MEF & Watts v. City of Montgomery, et al. 2:13-cv-733-MEF on April 29, 2014. 2 3. Doc. 73-3-Deposition of Colleen Ray, JCS’s 30(b)(6) representative, taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on June 20, 2014 as well as Exhibit 1 to that deposition and pages from Exhibit 2 to that deposition. (JCS’s training manual) 4. Doc. 73-4-Exhibit 2 to Colleen Ray’s deposition taken on June 20, 2014. 5. Doc. 73-5-Pages from Exhibit 2 to Colleen Ray’s deposition taken on June 20, 2014. 6. Doc. 73-6-Pages from Exhibit 2 to Colleen Ray’s deposition taken on June 20, 2014 as well as Exhibits 3-9 of her June 20, 2014 deposition. 7. Doc. 73-7-Pages from Exhibit 9 to Colleen Ray’s deposition taken on June 20, 2014 as well as Exhibits 10-19 of her June 20, 2014 deposition. 8. Doc. 73-8-Deposition of Colleen Ray, JCS’s 30(b)(6) representative, taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on April 14, 2015 as well as Exhibits 159-182 to that deposition. 9. Doc. 73-9-Deposition of Lisha Kidd taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on June 25, 2014 as well as Exhibits 20-46 to that deposition. 10. Doc. 73-10-Exhibits 47-82 to Lisha Kidd’s deposition taken on June 25, 2014. 11. Doc. 73-11-Exhibits 83-108 to Lisha Kidd’s deposition taken on June 25, 2014. 12. Doc. 73-12-Deposition of Lisha Kidd taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on April 20, 2015 as well as Exhibits 183-186 to that deposition. 13. Doc. 73-13-Pages from Exhibit 186 to Lisha Kidd’s deposition taken on April 20, 2015 as well as Exhibits 187-195 to that deposition. 14. Doc. 73-14-Deposition pages 485-605-of Lisha Kidd taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on September 1, 2015. 15. Doc. 73-15-Deposition pages 605-625-of Lisha Kidd taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on September 1, 2015 as well as Exhibits 259-269 to that deposition. 3 16. Doc. 73-16-Deposition of Don Houston, CHC Companies, Inc.’s 30(b)(6) representative taken in Ray, et. al. v. Judicial Correction Services, et. al. 2:12-cv-02819-RDP on September 12, 2016. 17. Doc. 73-17-Aldaress Carter’s JCS Order of Probation. 18. Doc. 73-18-Aldaress Carter’s JCS Petition for Revocation of Probation and Statement of Delinquency Charges. 19. Doc. 73-19-Exhibit 11-Email from Colleen Ray to Karen Lloyd, sending copies to Don Houston, Robert McMichael and Demarcus Fomby, regarding Ignition Interlock dated Thursday September 4, 2014. 20. Doc. 73-20-Exhibit 12-City of Montgomery’s municipal court ordinance. 21. Doc. 73-21-Exhibit 13-Filed under Seal. 22. Doc. 73-22-Exhibit 14-JCS marketing materials. RESPECTFULLY SUBMITTED, s/G. Daniel Evans G. Daniel Evans ASB-1661-N76G Alexandria Parrish ASB-2477-D66P Maurine C. Evans ASB-4168-P16T Attorneys for The Plaintiffs The Evans Law Firm, P.C. 1736 Oxmoor Road, Suite 101 Birmingham, Alabama 35209 Telephone: (205) 870-1970 Fax: (205) 870-7763 E-Mail: gdevans@evanslawpc.com E-Mail: ap@evanslawpc.com E-Mail: mevans@evanslawpc.com William M. Dawson ASB-3976-S80W Attorney for the Plaintiffs Dawson Law Office 1736 Oxmoor Road Birmingham, Alabama 35209 4 Case 2:15-cv-00555-RCL-WC Document 118 Filed 05/02/17 Page 5 of 6 Telephone: 205-795-3512 E-Mail: bill@billdawsonlaw.com CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of May, 2017, I electronically filed the foregoing Plaintiffs’ Submission of Evidentiary Matters in Support of Motion for Class Certification with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to: Shannon L. Holliday, Esquire Robert D. Segall, Esquire Joel Caldwell, Esquire COPELAND, FRANCO, SCREWS & GILL, P.A. P.O. Box 347 Montgomery, AL 36101-0347 Micheal S. Jackson, Esquire WEBSTER, HENRY, LYONS, BRADWELL, COHAN & BLACK, P.C. P. O. Box 239 Montgomery, AL 36101-0239 F. Lane Finch, Jr., Esquire Brian Richardson, Esquire Swift Currie McGhee and Hiers, LLP 2 North 20th Street, Suite 1405 Birmingham, Alabama 35203 Michael L. Jackson, Esquire Larry S. Logsdon, Esquire Wallace, Jordan, Ratliff & Brandt, L.L.C. P.O. Box 530910 Birmingham, Alabama 35253 Wilson F. Green, Esquire Fleenor & Green LLP 1657 McFarland Blvd. N., Ste. G2A Tuscaloosa, Alabama 35406 Kimberly O. Fehl, Esquire Michael D. Brymer, Esquire CITY OF MONTGOMERY Legal Department Post Office Box 1111 5 Case 2:15-cv-00555-RCL-WC Document 118 Filed 05/02/17 Page 6 of 6 Montgomery, AL 36101-1111 s/G. Daniel Evans G. Daniel Evans 6

Exhibit 1 - Composite Summary

EXHIBIT 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALDARESS CARTER, INDIVIDUALLY,) AND FOR A CLASS OF SIMILARLY) SITUATED PERSONS OR ENTITIES,)) Plaintiffs)) Civil Action No.: v.) 2:15-cv-555-RCL) THE CITY OF MONTGOMERY and) BRANCH D. KLOESS; JUDICIAL) CORRECTION SERVICES, INC.,) a corporation; CORRECTIONAL) HEALTHCARE COMPANIES, INC., a) corporation; CHC COMPANIES, INC., a) corporation.)) Defendants.) COMPOSITE EXHIBIT Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 1 Plaintiff’s Composite Exhibit Motion for Class Certification Carter, et al, v. Judicial Corrections Services, et al 2017 Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 2 Table of Contents 1. INTRODUCTION........................................................................................................... 5 2. EXHIBIT OVERVIEW..................................................................................................... 5 3. DESCRIPTION OF THE DATA AND RESOURCES CONSIDERED...................................... 9 A. JCS SQL SERVER DATABASE TABLES.................................................................... 9 B. JCS PROBATIONTRACKER™............................................................................... 10 C. SCANNED PAPER DOCUMENTS......................................................................... 11 D. JCS TRAINING MANUAL.................................................................................... 12 4. COMPOSITION........................................................................................................... 12 A. USE OF JCS PROBATIONTRACKER™ SQL DATABASE TABLES............................ 13 B. IDENTIFICATION OF INDIVIDUALS..................................................................... 14 C. IDENTIFICATION OF CLASS PROBATIONS.......................................................... 15 D. IDENTIFICATION AND PATTERNS OF PROBATION FEES.................................... 16 E. IDENTIFICATION AND PATTERNS OF WARRANTS AND INCARCERATION......... 19 I. INCARCERATION DOCUMENTED-CREDIT FOR TIME SERVED.......................... 24 II. WARRANT AND INCARCERATION AS A MEANS TO COLLECT............................ 24 III. JCS DATA SHOWING POVERTY.......................................................................... 25 IV. IDENTIFICATION OF AGE................................................................................... 26 V. IDENTIFICATION OF PROBATION DURATION.................................................... 26 VI. IDENTIFICATION OF COURT OR LOCATION....................................................... 27 5. JCS PROBATIONTRACKER™....................................................................................... 27 A. TERMED CASES REPORT.................................................................................... 27 B. CASE FILE REPORTS........................................................................................... 29 6. SUMMARY................................................................................................................. 30 7. APPLICATION TO CLASS CERTIFICATION................................................................... 31 8. QUALITY MEASUREMENTS........................................................................................ 32 9. CASE FILE REPORTS FOR ALDARESS CARTER............................................................. 33 10. List of Probations by Court................................................................................ 51 Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 3 INDEX OF EXHIBITS 1. APT 1 Payment Types – printed from the JCS table PaymentTypes. 2. APT Status Codes and Status Actions in ProbationTracker™-printed from the JCS tables StatusCodes and StatusActions. 3. APT Docs – Query of Documents scanned into ProbationTracker™ after August 28, 2010 that terminated JCS'Probation’ giving credit for time served. 4. JCS Modification of Termination Forms signed by Montgomery judges showing the termination of probationers due to "credit for time served". 5. APT Status Details Table-Status Action T-on or after Aug 28, 2010 6. JCS Termed Case Report printed from ProbationTracker™ listing Montgomery’s JCS'Probationers’ terminated since August 28, 2010. 7. Documents scanned into ProbationTracker™ for Aldaress Carter’s two (2) JCS probations. 8. APT_Employer table information where Employer is Like-SSI, disb, or unemp. 1 APT stands for Alabama Probation Tracker. This is the complete SQL database of the JCS ProbationTracker™ for the State of Alabama. This database was produced by JCS in 2015. SQL queries can be run from this database to obtain specific details as explained in this report. Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 4 1. INTRODUCTION This is a Composite Exhibit based upon the JCS private probation system data as applied in Montgomery’s municipal court. Under that system, once a person is assigned to JCS for the collection of city fines, fees and costs, the approach is computer based, highly systemized and utilizes substantially the same actions, methods, forms, codes, data fields and documentation for JCS’s operations throughout Montgomery. As a result, and as discussed in detail hereinafter, the JCS data and the documents scanned into and linked in its system provide ample tools for ascertaining the number, identity and similarity of treatment of those on JCS and provide a wealth of details about each individual in this system. This wealth of data allows determinations of who was assigned to JCS, during what period, what fees and fines were assessed and collected, who was placed on warrant status, who was possibly arrested, who was given credit for time served as well as when the various actions within this system took place, among other things. 2. EXHIBIT OVERVIEW The JCS system, as it was applied at Montgomery, is highly systematic, using substantially similar forms for letters, orders and notices, and compiling information about each person assigned to JCS. The JCS computer programs and the data and documents contained therein provide ample means to identify and ascertain a class of individuals placed on JCS for probation for the collection of fines by Montgomery’s city court. The detailed data also allows the identification of numerous categories. As discussed in more detail, the JCS data allows identification of the fees paid by each individual which can be limited to a designated time frame. Further, codes contained within the JCS data also provide ample means for identification of individuals placed on warrant status, and those whose fines were commuted – spending time in jail and only removed from'probation’ after jail time served. The designated definitions and application of the JCS system codes also require these codes to be changed only after the occurrence of the event. This data, along with confirming data from Montgomery, provide ample means for the ascertainment of individuals who were Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 5 jailed as a result of the JCS system. During the time frame of the Alabama data provided by JCS, thousands of individuals in the city of Montgomery were assigned to JCS and were treated in essentially the same fashion under this system. Limiting the time frame to those on JCS on or after August 28, 2010, the number of "probationers" is well over 20,000 and limiting the time frame to those on JCS on or after August 3, 2013, the number is almost 4,000. That system provides ample means for the identification of these individuals and multiple contact information for management purposes, as well. As a result, the implementation of this JCS system at Montgomery impacted the individuals assigned to JCS in a common fashion. The JCS data shows that the treatment of Aldaress Carter (‘Mr. Carter’) under this system was typical of the treatment of similarly situated individuals at Montgomery who were assigned to JCS. Finally, the identification of subclasses for individuals jailed as a result of this system are easily identifiable from the JCS data and have common characteristics across its subclass, which, again, would number in the thousands of individuals from August 28, 2010 and with several hundred in the August 3, 2013 to July 2014 period. Here again, Mr. Carter was jailed in fashion typical of similar individuals in Montgomery. JCS’ data shows that there are more than 20,000 probationers in Montgomery assigned to JCS probation on or after August 28, 2010 including those for the collection of fines, fees and costs. If any probationers were assigned to JCS for some other court ordered program, such as CRO, those would not be part of the class. Probationers assigned to community service or court ordered programs are identified in specific tables within ProbationTracker™, so they are easily ascertained. Additionally, any JCS probationers who JCS classified as indigent (StatusCode = M) and charged no JCS fees would also be excluded from the class. 2 2 A query of the tables shows that only 69 Montgomery probationers were given StatusCodes of M by JCS the entire time JCS operated in Montgomery. Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 6 The Montgomery class of probationers on JCS for the collection of fines and fees is ascertained by identifying all probationers on JCS or assigned to JCS on or after the beginning of the class period and then eliminating any of those identified as being on court ordered programs or assigned community service or who were not assigned fees due to JCS. The Payments table within ProbationTracker™ categorizes the money that JCS kept for its fees and the money JCS sent to its contracting cities. JCS accounted for its $10 set-up fee using fee type 9 and JCS accounted for its monthly probation fees using fee type 1. All payments are accounted for by payment date, fee type, amount received, ProbID, reference number, enter date with time, payment transaction ID, person receiving the money, and some entries have notes. JCS collected payments for its fees – fee types 1 and 9 – on or after August 28, 2010 for a total amount of $4,065,146.63. Similarly, for the period on or after August 3, 2013 JCS collected a total of $672,507 for its fees. The total amount of fines and fees paid to JCS during the class period by probationers for the collection of fines and fees is easily ascertainable and would be a common factor to all the individuals paying the fees. Some people were assigned to JCS more than once. These people are identified within the ProbationTracker™ system by their PersonID and by each unique ProbID. For the people with multiple ProbIDs each instance of probation along with the activities throughout that period are documented according to the discrete ProbID. JCS’ data provides the ability to identify and count these probations and individuals and to verify their probation status, their payments, and their warrant status or incarceration. The quality of information within the database tables and within JCS ProbationTracker™ shows that there are no meaningful differences in how JCS operated its system within Montgomery. The JCS training manual contains its policies, procedures, many forms and detailed instruction to JCS employees on the use of ProbationTracker™-the JCS software. The JCS system user screens, data entry screens, reports, and internal codes are uniform across the system statewide. Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 7 Because of the relational nature of the tables produced by JCS, and through the use of JCS ProbationTracker™ itself, it is possible to search and calculate, both statewide or for any individual city: • How many individuals were on or placed on probation for collection of fines and fees during a period of time. • The name, address, phone number, date of birth, social security number, driver license, contact information, employment, and alternative contacts for those individuals. • How many impositions of probation affected how many individuals. • How long the person was on probation, and between what dates. • What citations are associated with which individuals and which probations, by case number, charge, and municipality. • What fines and fees were imposed for each citation or probation. • What probation and other fees were imposed for each probation. • What fines, probation fees, and other fees were paid on each probation. • What fines, probation fees, and other fees were paid by each individual. • The age of the individual put on probation. • Whether and when a warrant was issued for an individual for non-payment of fines or fees. • Whether and when an individual was in jail due to a JCS petition for non-compliance. • Whether and when an individual’s money balance was reduced for time served in jail • In the aggregate, to what governmental entity each fine and fee was paid. • In the aggregate, how much JCS received for collecting fines and fees. The answers to the questions above can be determined from objective data within the JCS system. Money Payments are easily calculated using specific codes for fee types and activities such as warrants, arrests, and jailings are identifiable by status and action codes. The JCS training manual instructs on the specific use of status codes and status actions to identify and track this information. For example, the JCS manual instructs on the use of status codes stating: Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 8 (G) – Jail "should be used when a defendant is in jail due to a petition of the court due to non-compliance of a court order on behalf of JCS." (E) – Warrant "should be used when a warrant has been issued by the court for the defendant. Do not put the case in warrant status until the warrant has been signed by the Judge and taken back to the court clerk, as the warrant is not active before this point." (Doc. 73-4 pp. 35-36-Ray v. JCS 000127-000128)(emphasis added) Probationers with codes indicating the possibility of jail, (such as warrant, jail, time served, or arrested) are easily identifiable, as these codes are regularly used to document the activities within ProbationTracker™. Additionally, documents evidencing warrants issued pursuant to the JCS process are kept in ProbationTracker™ and are easily accessible by activity and probationer, as these documents are linked to each probationer. 3. DESCRIPTION OF THE DATA AND RESOURCES CONSIDERED There are three primary resources which serve as the basis for this composite summary. These are (a) JCS ProbationTracker™ SQL Server database tables and the scanned documents linked there, (b) read-only access to a Alabama version of JCS ProbationTracker™ and the reports generated there, and (c) the JCS employees training manual in JCS production BATES Ray v. JCS 1-225. (See Doc. 73-3 p.103 to 73-4 p.106) A. JCS SQL SERVER DATABASE TABLES The SQL Server database tables underlying the JCS ProbationTracker™ system were produced by JCS to Plaintiffs’ counsel in the Ray case April 2015. There are more than 200 tables contained in this database, totaling thousands of fields and millions of items of data about people, probations, fines, fees, warrants, payments, arrests, incarcerations, and other details about JCS’ probation operations in Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 9 Since all probationers at Montgomery were marked terminated within ProbationTracker™ after JCS was fired, the Termed Cases Report limited by date will identify all probationers there during the time frame chosen. JCS ProbationTracker™ provides another standard report entitled Case File. The Case File Report is a summary of each individual probation’s history, identifying the individual, contact information, bibliographic information, citations, fines, fees, payments, the status of probation, the city court, JCS’s activity in chronological order, and notes about status and changes in status. The Case File Report provides a means to verify investigation of the database tables and the conclusions contained in this report, as well as showing the common approach at Montgomery. These reports also confirm that Aldaress Carter’s treatment was typical. Since JCS left Montgomery in July of 2014, the Case File Reports on each individual and the standard reports to which it hyperlinks should not change. C. SCANNED PAPER DOCUMENTS The JCS system scans in hard documents such as citations, court papers, probation orders, JCS requests, JCS letters, JCS notes, mailings, returned mail, commutation of jail sentences and other forms, and then links these to the probationer involved. Each document is given a discrete number. When a probationer file is accessed, all associated documents that JCS has produced within its system or accumulated and scanned are available by a hyperlink which is titled "View Scanned Docs." This hyperlink takes the user to a screen containing a table titled Probationer Scanned Documents. This table contains three fields of data – Date, Document, and Created By. The Document Field contains a hyperlink to the document. Additionally, JCS generated documents for each probationer are accessible through the probationer’s Case File Report. JCS documents that have been generated through the ProbationTracker™ system are available via hyperlinks named by the document. For example, the Case File Reports for Aldaress Carter in Section 9 of this Report show these hyperlinks within the detailed visit notes. These JCS generated documents include: FTR letter, GCOP (General Conditions of Probation), Receipts, Intake Forms, VOP Letter, Petition for Revocation Letter, Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 11 payment history, Delinquency Letter, Warrant, Modification of Probation and Successful Termination of Probation forms, among others. The links to documents have been made by JCS, so that any document associated with an individual or probation can be fairly quickly retrieved within the system itself and displayed on the screen or printed. D. JCS TRAINING MANUAL In the Ray case JCS produced the training and resource manual which JCS uses to train its employees. The manual provides uniform instruction as to how the JCS ProbationTracker™ is to be used. (Doc. 73-3 p. 103 to Doc. 73-4 p. 106) Its consistent application is seen in the ProbationTracker™ data statewide. 4. COMPOSITION The JCS ProbationTracker™ SQL Server database production contains "tables." A table is essentially a chart that contains categories of information called "fields" in columns which are identified across the top of each table. Each row in the table represents a "record." Depending on which table is examined, a record may indicate a person, a probation, or a probation-related event such as a fine, fee, payment, JCS action, warrant, arrest or incarceration. Every person, probation, or event is captured by an item of data in one or more fields. The SQL Server database tables produced by JCS are capable of being searched and filtered using SQL queries and functions. For example, in the JCS ProbationTracker™ database tables, the Probationers table has a lot of bibliographic information about a particular imposition of probation. It can be joined with the Persons table to yield or match name, gender, race, social security number, date of birth, and other personal information for any incidence of probation. In turn, these items of data can be linked, variably, to the Addresses or Contacts tables to yield address and other contact information collected from individual probationers over time. For another example, the Payments table includes a column for ProbID (Probation ID), which is a unique number identifying an imposition of probation. Because Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 12 the ProbID field exists in both the Probationers table and the Payments table, these tables can be joined to yield lists of every payment recorded by JCS for every probationer. The Payments table contains a field called FeeType, which is a numeric code. Feetype is defined in a separate relational table called Paymenttypes. Here the codes are translated as to how the payment was allocated. For example, "1" represents "probation fee," 2 represents "insurance," 3 represents "fine" and so forth. (Exhibit 2 – APT_PaymentTypes) Using the relational features of SQL Server one can identify each payment, how it was allocated, to which probation it was attributed, and to which individual it is attributed. Even without these tools, though it may be tedious, each table could be used as a "lookup table" to create the same calculations and summaries. There are in this SQL Server database production more than 200 tables. Each table has roughly between four and fifty fields. The tables may contain between eight and 550,000 rows or records. All of these are related to JCS operation of probation services in Alabama. The richness of detail contained in these database tables and in the underlying JCS ProbationTracker™ system evidences a common approach in Montgomery’s probation system. It is also apparent that the treatment of Aldaress Carter was typical from review of case reports. A. USE OF JCS PROBATIONTRACKER™ SQL DATABASE TABLES JCS through the operation of JCS ProbationTracker™ assigned each probation a unique ProbID. Individuals who are put on probation more than once have more than one ProbID associated with their identity. Multiple citations, particularly those issued on the same date, may be associated with a single ProbID. JCS ProbationTracker™ assigns each individual a PersonID. Each PersonID relates to a unique individual within JCS ProbationTracker™ who has been assigned one or more probations. The Persons table is a chart of all of those people and with rich bibliographic and contact information for each. JCS ProbationTracker™ assigns each JCS governmental entity a numeric CourtID. A table named Courts associates the name of each entity with a corresponding CourtID number. For example, the CourtID number assigned to Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 13 Montgomery is 136. Every governmental entity that contracted with JCS in Alabama is represented by a CourtID in the JCS ProbationTracker™ system and in the database tables. JCS ProbationTracker™ records the probation date, the amount of fines assessed, the amount of start-up fees assessed, the amount of probation fees assessed, and the amounts of payments received and credited for each of the assessments. These are recorded in a Payments table. JCS ProbationTracker™ records the probation status and associated activities of probationers, JCS employees, and governmental entities. Status and activities are tracked by means of StatusCodes, StatusActions, and StatusDetail. The status codes appear in the database tables as individual letters or numbers and are translated by a StatusCode table. For examples, A means "active," B means "successful termination," C means "probation revoked," D means "VOP" or violation of probation, E means "warrant," G means "jail," and H means "jail hold." (Exhibit 3 – StatusCodes and StatusActions) JCS has created "status action" codes, which appear in the database as individual letters or numbers and are translated by a StatusActions table. For examples, A means "completed all terms of probation", E means "failed to complete terms of probation, 6 means "appeared in court", M means "VOP (violation of probation) letter mailed", T means "time served", Z means "arrested", and X means "reinstated." (Exhibit 3 – StatusCodes and StatusActions) B. IDENTIFICATION OF INDIVIDUALS The Persons table contains a unique PersonID number, and then fields for, among other things, SSN, last name, middle name, first name, suffix, gender, date of birth, hair, eyes, height, weight, race, place of birth, marital status, number of dependents, citizenship status, and information about language used, driver license, auto, employment, prior arrests and military service. There are 257,058 records in this table for the entire state of Alabama not limited by date. Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 14 C. IDENTIFICATION OF CLASS PROBATIONS The Probationers table contains, among other things, a unique ProbID associated with a name, an intended term of probation, a beginning and intended ending date of probation, a sentence date, a JCS fee per month, a total of fees owed, a total "other" owed, notes for an intended payment plan, and information about court and probation status. To demonstrate the feasibility of calculation, there are 385,440 records contained within the Probationers table and every record lists a distinct or unique ProbID number. These ProbIDs can be linked or "related" to the Persons table described above, using a relationship through the PersonID field in both Persons and Probationers. This relationship provides detailed bibliographic information for each incident of probation for 257,050 individuals not limited by date or city. 3 Limitation to a specific time frame for the putative class period is easily done. As mentioned above, Probationers on CRO or other Court Order Program or assigned to Community Service are not to be part of a class of persons on JCS for the collection of fines, fees and cost. These probationers and the details regarding their program are identified in separate tables and are easily ascertained. The probationers for the City of Montgomery are easily identified as the CourtID is one of the records in the Probationers table and can be sorted by CourtID=136 (The CourtID JCS assigned to the City of Montgomery). 3 For examples of matching persons with rich For insight into how many people had how many information about each probation: probations, select per.personid, pro.probid, per.lastname, select distinct per.personid per firstname, pro.probationdate, from pro.feepermonth, pro.totalfeeowed, [alabamaprobationtracking].[dbo].[persons] as pro.totalotherowed, pro.paymentplan per from join [alabamaprobationtracking].[dbo].[persons] as [alabamaprobationtracking].[dbo].[probationers] per as pro join on per.personid = pro.personid [alabamaprobationtracking].[dbo].[probationers] order by per.personid as pro on per.personid = pro.personid order by per.personid Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 15 D. IDENTIFICATION AND PATTERNS OF PROBATION FEES I. IDENTIFICATION Three tables within ProbationTracker™ contain detailed financial data. These tables (PaymentTypes, Payments, and PaymentTransactions) show how much money was paid by whom, when, what City, and a description how JCS allocated the payment (i.e., city fine, court cost, JCS probation fee, JCS start-up fee, insurance, restitution, or other assessment). The PaymentTypes table lists the numerical codes that are used to identify specific types of payments. JCS uses these codes to allocate money from each probationer payment. The most common codes are: Probation Fee (1), Insurance (2), Fine (3), VCF (4), Restitution (5), Court Cost (6), Pre-Payment Bond (8), and Other (9)(Code 9 is used for the $10 set-up fee). (See Exhibit 2) The Payments table identifies each time a probationer makes a payment. This table identifies each payment by specific Payment Transaction ID, PaymentDate, FeeType, AmountReceived, and ProbID. The Payments table shows how JCS allocated each probationer payment. Each allocation is given a specific reference number and the payment is recorded by probation ID, Date, Person receiving the payment, and it assigns a transaction ID to each allocation. This robust, objective financial data enables a user to specifically calculate the money JCS received by probationer, city, percent of each payment allocated to fines, total amount JCS kept for its probation fees, total amount JCS kept for start-up fines, and amount remitted to cities for court costs, fines, restitution, etc. Additionally, these calculations can be further refined by date ranges and many other characteristics depending on the needs of the user. To demonstrate the feasibility of calculation, there are in the database tables produced by JCS as of April 2015 a total of 5,299,374 records of individual payments. Using ProbID, the Probationers table and the Persons table, the payments are readily attributed to individuals and municipalities. Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 16 A summary of payments contained in the Alabama ProbationTracker™ SQL Server database produced to Ray Plaintiffs in April 2015 is as follows: 4 No, of Fee Type% of Payments Total Dollars% of Dollars Payments 3 Fine 2,424,758 46% $ 126,150,229.34 60% 1 Probation Fee 2,176,506 41% $ 51,253,901.09 24% 8 Pre-Payment/Bond 40,278 1% $ 12,969,663.02 6% 6 Court Cost 189,958 4% $ 10,255,856.85 5% All Other Fee Types 467,874 9% $ 11,026,545.76 5% Totals 5,299,374 100% $ 211,656,196.06 100% The 2,176,506 individual payments attributable to fees are made in the cases of 258,524 individual ProbIDs or individual probations. Linking these probations to Persons yield the number of distinct individuals in the putative class. Adjusting for multiple payments and probations for a given individual, and filtering for only Montgomery Probations shows that 17,730 distinct people consisting of 22,142 probationers paid JCS fees on or after August 28, 2010. 5 There are a small number of blank or test rows fields in the associated tables which may cause the figure to vary, but insignificantly. 4 Source: JCS AlabamaProbationTracker SQL Server Tables, produced April 2015. SELECT FeeType, COUNT(FEETYPE) FROM [AlabamaProbationTracking].[dbo].[Payments] GROUP BY FEETYPE SELECT SUM(AMOUNTRECEIVED) FROM [AlabamaProbationTracking].[dbo].[Payments] WHERE FEETYPE=[n] 5 An example of such a query joining the tables is as follows: select a.probid,a.Lname,a.Fname,a.PersonID, SUM(b.AmountReceived) from [AlabamaProbationTracking].[dbo].[Probationers] a, [AlabamaProbationTracking].[dbo].[Payments] b where a.probID = b.ProbID and (b.feeType = 1 OR b.FeeType = 9) and a.courtid = 136 and b.PaymentDate >=('8-28-2010') GROUP BY a.probid,a.Lname,a.Fname,a.PersonID Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 17 II. PATTERNS Of the 31,427 Montgomery probations contained in the SQL database produced in April 2015 in the Ray case, all of them were assigned the $40 monthly JCS fees. Many of the payment plans require monthly payments of $100-140. 6 Aldaress Carter had two probations through Montgomery. For each of these probations JCS charged an initial set-up fee and monthly probation fees. The second probation (ProbID 638392) was classified by JCS as'Hold’ status which meant that JCS would not begin to actively collect the fines and fees assessed until all the City and JCS fees were paid in full on the'Active’ JCS probation (ProbID 483970). (See Doc. 73-4 p. 40) The case file reports for Mr. Carter are in this Report in Section 9. His probation records for these probations are easily determined within the JCS ProbationTracker™ system and database tables. The following is pasted directly from the Probationers table from the production of JCS ProbationTracker™ database tables. 7 The imposition of fees on him is representative and typical of the JCS probations in Montgomery. LName FName ProbID ProbationDate FeePerMonth TotalFeeOwed CourtID PaymentPlan PersonID CARTER ALDARESS 483970 2011-05-27 40.00 960 136 $140.00 Monthly 10469347 CARTER ALDARESS 638391 2012-06-04 40.00 480 136 NULL 10469347 JCS determined the allocation of each payment between city fines and costs or JCS fees. This allocation is shown in Mr. Carter’s Case File Report as well. For example, on December 17, 2012 Mr. Carter made a JCS payment of $20 which JCS allocated $10 to his fines – to send to Montgomery-while keeping $10 for itself. This 50/50 allocation JCS determined is reflected in Mr. Carter’s September and October payments of $20 as well. 6 JCS instructs its people to: "d) Determine the monthly payment. Note that payments are not to be less than $135/$140/$145 monthly, unless a specified amount is ordered by the Judge." (Doc. 73-3 p.116-Ray v. JCS 00014 Section 1(d)) 7 SELECT[LName],[FName],[ProbID],[ProbationDate],[FeePerMonth],[TotalFeeOwed],[CourtID],[PaymentPlan], [PersonID] FROM [AlabamaProbationTracking].[dbo].[Probationers] where (courtid=136) and (probID =483970) OR (PROBID=638391).. order by lname Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 18 Payments Date Fee Type Amount Note 12/17/2012 Fine 10.00 12/17/2012 Probation Fee 10.00 10/17/2012 Fine 10.00 10/17/2012 Probation Fee 10.00 9/14/2012 Fine 10.00 9/14/2012 Probation Fee 10.00 8/15/2012 Fine 25.00 8/15/2012 Probation Fee 10.00 (Section 9 infra) E. IDENTIFICATION AND PATTERNS OF WARRANTS AND INCARCERATION The JCS SQL database tables contain StatusCodes and StatusActions as follows: Status Description Status Description Code Action A Active A Completed All Terms of Probation B Successful Termination 2 Treatment Hold C Probation Revoked 3 Amended Order D VOP (Violation of Probation) 4 Closed Administratively E Warrant E Failed to Complete Terms of Probation F Term Unsuccessful 5 ICE/INS G Jail 6 Appeared in Court H Jail Hold 9 Transfer I Medical Hold V Warrant Destroy J Unsupervised 7 Court Account Closed K Hold I Expired L Terminated Modified S Show Cause Letter Mailed M Indigent M VOP Letter mailed X Deleted N None O Consecutive Case Q Community Service Only B Balance Suspended R Revoked T Time Served U Appeal W Deceased Y Original Sentencing Z Arrested X Reinstated 0 Sanctioned 1 Concurrent Case Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 19 The JCS manual instructs its people to keep track of probationers through the use of Status codes: Throughout the management of a case, a defendant's status may change many times. The status refers to the "current" stage of a case and it should be as close to real time as possible. Statuses require an "action" to be associated with it. If there is not an appropriate action for a particular situation, choose one. Make sure to place detailed notes in the appointments screen as to the reason for the status change. Listed below are various statuses and how they should be used. (emphasis added) (Doc. 73-4 p. 35-Ray v. JCS 000127) The training manual goes on to describe the codes and when and how they should be used within ProbationTracker™. Some of the most commonly used codes are: • Active-should be used when a defendant is reporting for probation in person or through the mail and the case has fees, restitution and/or fines and court costs associated with it… • Jail-should be used when a defendant is in jail due to a petition of the court due to non-compliance of a court order on behalf of JCS. The probation officer must verify this information. If the defendant is released from the known place of incarceration and is not transferred to another institution, the status of the defendant should be changed appropriately… • Successful Termination-should be used when a defendant has completed all terms of probation and documentation is in order. • Unsuccessful Termination-should be used when a defendant has not completed all terms of probation and time on the case has expired. Monies should not be collected and appointments should not be set for the defendant at this point. If a defendant would like to continue making payments beyond the date of expiration, the case should remain in "active" status until the defendant completes the terms of the probation or ceases reporting. If the defendant ceases to report, an FTR letter cannot be sent to the defendant. If the defendant is required to take a class it is pertinent to Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 20 inform the defendant that his/her case is no longer being supervised and they may complete the class on their own. **If a defendant completes the requirements of probation after the expiration date on his/her own in a reasonable amount of time, change the status to "successful termination" upon submission of a modification order signed by the Judge authorizing the change. • Terminated Modified-should be used when the defendant's case has not expired, but should be closed. This status should be used in circumstances where a defendant dies, is incapacitated to the point where it is not feasible to complete probation, or is incarcerated for longer than the time left on probation. Another instance where this status should be chosen is when a defendant reports for a revocation hearing and the probation is revoked, not reinstated or the case has been closed administratively at the revocation hearing. • VOP-should be used when the defendant has failed to comply with the terms and conditions of probation. If a defendant brings his/her case back into compliance prior to the court hearing, the status should be changed to reflect the change. • Warrant-should be used when a warrant has been issued by the court for the defendant. Do not put the case in warrant status until the warrant has been signed by the Judge and taken back to the court clerk, as the warrant is not active before this point. (Doc. 73-4 pp. 35,36-Ray v. JCS 000127-128) The StatusCodes and StatusActions information are used in a transactional table called StatusDetails. To demonstrate the feasibility of calculation, there are 1,313,036 records relating to all ProbIDs or probations affecting 256,849 individuals. 8 This raw data shows the characteristics of all the Alabama probationers unrestricted by dates of these individuals, 8 select distinct per.personid from [alabamaprobationtracking].[dbo].[persons] as per join [alabamaprobationtracking].[dbo].[probationers] as pro on per.personid = pro.personid join [alabamaprobationtracking].[dbo].[statusdetails] as sdt on sdt.probid = pro.probid where sdt.status = 'd' Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 21 102,282 had one or more VOP (probation violation) status. 80,184 had one or more Warrant status. 31,807 had one or more Jail status. 16,664 show Status Action of Arrested. 8,506 show Status Action of credit for Time Served. This data can also be refined to only include specific dates and Probation IDs. Additionally, the activities of issuing warrants and jailing are further supported by the documents linked in the ProbationTracker™ system and the records the cities possess. The StatusDetails table yields the serial status history of each probation 9 when the data is sorted by ProbID, then by DetailDate. Additionally, the probationers who were only paid fees on their probation can be seen by analyzing the probationer’s status codes. For example, if a probation ID only has status codes going from A (Active) to B (Successful Termination) and the absence of other codes, this would indicate a person who paid money to JCS but had no warrants or arrests in the process. There are 161,685 probationers of all the Alabama probationers in the tables unrestricted by date who demonstrate this pattern of having one A-B count and no warrant or VOP codes. Correspondingly, if a probation ID has status codes going from A (Active) to (E)Warrant or D (VOP) to (E)Warrant, these codes indicate a warrant. JCS trains/*****or/*****where sdt.status = 't' 9 select sdt.detaildate, sdt.probid, sdt.status, sdt.action from [alabamaprobationtracking].[dbo].[persons] as per join [alabamaprobationtracking].[dbo].[probationers] as pro on per.personid = pro.personid join [alabamaprobationtracking].[dbo].[statusdetails] as sdt on sdt.probid = pro.probid order by sdt.probid, sdt.detaildate Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 22 its people to use the Warrant code only after a "when a warrant has been issued…" (Doc. 73-4 p. 36-Ray v. JCS 000128) To demonstrate the feasibility of this using Status Codes as a preliminary method to ascertain similarly treated probationers, there are 1,313,036 records relating to all the distinct ProbIDs within the StatusDetails Tables 10. This raw data shows the characteristics of all the Alabama probationers unrestricted by dates of these individuals: 182,312-Counts of A,B (Active to Successful Termination) 164,996-Counts of A,D (Active to Violation of Probation) 9,580-Counts of A,E (Active to Warrant) 39,610-Counts of D,A (Violation of Probation to Active) 33,062-Counts of E,A (Warrant to Active) 115,125-Counts of D,E (Violation of Probation to Warrant) As previously stated, of the 182,312 probationers with counts of A,B, 161,685 probationers had only one of these status counts meaning that the probationer paid fines and fees over a period of time but with no warrant requests. Additional queries and can be used to identify those jailed (status = G) for whom warrants were issued (status = E). In Montgomery over 5,500 probationers were put on warrant status by JCS since August 28, 2010. (See Exhibit 17) As such, these probationers can be identified as those for whom arrest and jail is possible/probable. As previously discussed, the ProbationTracker™ system has fields for DetailNotes. These notes are used to track changes in status and to contemporaneously document activities JCS has with its probationers. These notes include links to documents produced by JCS in its ProbationTracker™ system and links to documents scanned into ProbationTracker™. Some of these links are contained in the DetailNotes_Docs table. 10 As stated above, these ProbIDs affect 256,849 individuals – as many individuals are on multiple probations. Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 23 These documents, in addition to the codes within ProbationTracker™, can be reviewed to confirm if the document evidences jail time for non-payment. Probationers with patterns of warrant and jail may be further confirmed by city data. I. INCARCERATION DOCUMENTED-CREDIT FOR TIME SERVED JCS’s training guide instructs its employees that each status requires a status "’action’ to be associated with it." (Doc. 73-4 p. 35-Ray v. JCS 000127) Status Action (T) stands for "Time Served" and a simple filtering of the StatusDetails table reveals probationers coded as'Time Served" on or after August 28, 2010. (Exhibit 5 – APT_StatusDetails –T time served since 8 28 2010) Exhibit 5 is a list of over 900 "probationers" in Montgomery getting credit against their fines for time they served in jail. The practice of'commuting’ money fines to jail time was a common practice in Montgomery. This practice is yet another method for identifying and determining the amount of time JCS probationers spent in jail for non-payment. Analysis of JCS codes reduces further inquiry of jail time to a limited number of probationers. Additional investigation of the ProbationTracker™ documents and city records reveal when warrants were issued, when arrests were made and if the person spent time in jail. II. WARRANT AND INCARCERATION AS A MEANS TO COLLECT JCS data in Montgomery shows a regular pattern of StatusCodes going from A to E (Active to Warrant) and D to E (Violation to Warrant) status. Using the same features to join tables, it is readily ascertainable in the Probationers and Status Detail tables which probations went from A to B (Active to Payment to Successful Termination) and which went from D to E (VOP to Warrant), or in many cases simply A to E (Active to Warrant). Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 24 The note fields further show numerous entries showing Payments "to be released from jail" or "to get out of jail" confirming this practice. Mr. Carter was incarcerated for offenses which did not include incarceration at sentencing. He is typical of many thousands of individuals on JCS in Montgomery who were similarly incarcerated for nonpayment of a fine or costs. III. JCS DATA SHOWING POVERTY JCS Probationers’ payments tend to be small, particularly if compared to the monthly added probation fees of $40 per month in Montgomery. More than 20% of all payments are $10. The second most frequent payment is $20 at 11%, followed by $15 at 9%. Though JCS, by policy, set the monthly payments of at least $135/month from each probationer (JCS Training Manual), 11 81% of all payments are less than $100. 12 These figures account for all locations in Alabama and years for 5,233,752 payments greater than zero. The amount JCS demanded from each probationer is listed in the Probationers Table in the Field Titled PaymentPlan. JCS tracked the employment status for people in its system. The EmploymentHistory table includes fields for: Employer, Phone, Supervisor, wages, StartDate, EndDate, ProbID_old, ref, EnterDate, EnteredBy, ModifyDate, ModifiedBy, Location, Expired, and PersonID. Querying this table and joining it with the Persons table allows one to ascertain those for whom JCS documented 11 d) Determine the monthly payment. Note that payments are not to be less than $135/$140/$145 monthly, unless a specified amount is ordered by the Judge. Company policy is to try to never make payments less than $85 per month. (emphasis added) Add the amount of fines, court costs and restitution payments, divide that number by number of months the defendant has been sentenced to probation minus one month. Take the amount derived and add the monthly probation fee. Round the amount up to the nearest $5. (Ray v. JCS 00014) 12 SELECT AmountReceived, count(amountreceived)FROM [AlabamaProbationTracking].[dbo].[Payments] Where amountreceived>0 GROUP BY AMOUNTRECEIVED ORDER BY-AMOUNTRECEIVED Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 25 No employment, Receiving SSI, and persons who were disabled. 13 Once the Probationers and EmploymentHistory tables are joined a query of the employer field identifies those in Montgomery who were known to be poor. In fact, almost 3,000 distinct probationers are identified with these classifications by JCS throughout the time JCS operated in Montgomery (no date restriction). (See Exhibit 7-Employer like SSI, unemp, or disabl) IV. IDENTIFICATION OF AGE Date of birth is expressed in the Persons table field DOB as yyyy-mm-dd. The date of imposition of probation is expressed in the Probationers table in the ProbationDate field as yyyy-mm-dd. Joining the Persons table with the Probationers table allows a calculation of Probation Date minus DOB in years, months and days. This allows a determination of the age of the person if needed to identify juveniles etc. V. IDENTIFICATION OF PROBATION DURATION The date of imposition of probation is expressed in the Probationers table in the ProbationDate field as yyyy-mm-dd. The date of the termination of probation is best identified in the StatusDetails table, using the latest date or one of three Status Codes found in that table for each probation. Those Status Codes are Termination Successful, Termination Unsuccessful, or Termination Modified. By joining the Probationers table and the StatusDetails table, the duration of probation can be calculated by subtracting the Termination date in the StatusDetails table from the ProbationDate in the Probation Table. Joining the Persons table allows a calculation of probation durations for each individual. 13 select distinct a.probid,a.courtid,a.Lname,a.Fname,a.CourtID,b.Wages,b.Employer,b.EnterDate from [AlabamaProbationTracking].[dbo].[Probationers] a, [AlabamaProbationTracking].[dbo].[EmploymentHistory] b where a.PersonID = b.PersonID and a.CourtID = 136 and (b.Employer LIKE '%disab%' or b.Employer LIKE '%unemp%' or b.Employer LIKE '%SSI%') order by a.probid; Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 26 VI. IDENTIFICATION OF COURT OR LOCATION There are 148 individual CourtID codes in the JCS Alabama ProbationTracker™ tables. Each CourtID is associated with a particular governmental entity in the Courts table. The CourtID for Montgomery is 136. The CourtID information appears in each record of Probationers, so it may be readily determined what governmental entity exercised jurisdiction over what probation. This indentifier provides the ability to calculate or filter by governmental entity. 5. JCS PROBATIONTRACKER™ The SQL server database tables described above upon which the above searches and calculations were created were extracted by JCS from the JCS ProbationTracker™ system. The system itself consists of database tables discussed above, an "application layer" built by and proprietary to JCS, and a database engine (SQL Server) which provides the means to create tables and fields and to create and run summary and detailed reports. The application layer consists of the screens, user interfaces, and the means by which individuals interact with the database tables using those screens. In general, an application layer for a system using SQL Server may have built into it many "canned" or pre-programmed searches, queries, relational "joins", and reports. The application layer also provides JCS with levels of security and transparency for employees, managers, systems administrators, and third party access such as that provided to Plaintiffs. A. TERMED CASES REPORT Termed Cases Report is a canned report within JCS ProbationTracker™. Since JCS has ceased operations in Montgomer, every JCS probation has been coded as terminated. So every probation should appear in a Termed Cases by City report for Montgomery. A Termed Cases Report can be generated by operating JCS Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 27 ProbationTracker™, clicking the selection for Termed Cases, then selecting a governmental entity, a start date, and an end date. The report itself is bare-bones. Each row contains the name of the individual placed on probation, the type of probation termination, the citation numbers for the underlying charge, the date of birth of the individual put on probation, and the social security number of the person put on probation. The appearance of the report is straightforward. CARTER, Terminated 12TRT033859, X/XX/19XX XXX-XX-XXXX ALDARESS Modified 12TRT033860, 12TRT040632 CARTER, Terminated 10TRT094804, X/XX/19XX XXX-XX-XXXX ALDARESS Modified 11TRT16671, 11TRT16672, 11TRT20956, 11TRT20957, 11TRT20958 The highlighting on the names indicates a "hyperlink" or a shortcut to enable direct access to a different location within JCS ProbationTracker™. In the example above, the first link leads to: https://www.judicialservices.com/probationtracker/admin.asp?ProbID=638391 The second link leads to: https://www.judicialservices.com/probationtracker/admin.asp?ProbID=483970 Each of those links leads to an on-screen case report. The detailed information in the case report includes: Sentence Date, Probation Date, Probation Length (not calculated), Expires Date, Type of meeting, Name of Probation Officer, Status (current), Photo of the individual, if one is present in the system, Employment History, Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 28 Contacts, Addresses, and Offense, with information about Fine Amount, Court Cost, and Warrant Fee. Each of these items of data also appears in the database tables. All of these appear in JCS ProbationTracker™ as of the date of this compilation. Since Montgomery terminated JCS in July 2014, all the Montgomery probationers have as their current status some form of Termination. As seen in Exhibit 6 – Termed Case Report-JCS has 3 codes for Termination – (B-Successful Termination, F-Term Unsuccessful, and L-Terminated Modified). If a probationer has a current status of terminated, that probationer would be included in the putative class if the termination date was within the class period. The probationers within the class period who were on probation for a court ordered program would be eliminated from the putative class as well as probationers that paid no fees to JCS. As discussed, all of these categories are identifiable from the objective data in this system. Exhibit 6 shows a termed cases report run for Montgomery from August 28, 2010. Linking Payments information and status details would show all the payment and warrant information for each probationer. This method for ascertaining the class is mechanical. As detailed above, the class members can be ascertained with specificity and the class is manageable as the bibliographical information by person is exquisitely detailed by JCS.14 B. CASE FILE REPORTS A Case File Report can be generated for each probationer. The Case File report is a standard JCS report which identifies the JCS employee supervising the 14 List of all the Information in the PersonsTable: PersonID LastName MiddleName FirstName Suffix Sex Hair Eyes Height Weight DOB Race PlaceofBirth Married NumDependents SSN USCitizen OtherID DL DLState DLExpires DLStatu s DLSuspended AutoMake AutoYear AutoModel AutoBody AutoState AutoColor AutoTag Sp anishSpkg Language1 Language2 Language3 EnterDate EnteredBy ModifyDate ModifiedBy Pr iorArrest EmploymentVerified_old AddressVerified_old FBIID FDLE DOC MergedRecord ProbI D_old BrevardMLNumber2 SexualOffenderP BranchOfService Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 29 probation; sentence date; probation date; probation length (not calculated); expires date; type of visit; months on probation; SSN; DOB; date of report; employment history; address; contact information; offense information; probation status by date, status, and action; hearings by date, type, location and status of appearance; modification history; detailed visit notes by date and text; appointment details by date, time, appearance status; financials by assessment, amount paid, and ending balance; payment history by date, fee type, amount, and text notes; and general comments by the JCS employee. The assembly of these items in the Case File report indicates that JCS joins fields and tables for its report in the same manner that Plaintiffs have described above. Each of these items, and others, are searchable and calculable within the JCS ProbationTracker™ database tables. In the aggregate, the Case Files Report provides the ability to test and sample calculations and support the similarity of Mr. Carter with members of the class. From that, the treatment of Mr. Carter is shown to be typical of other persons on JCS in Montgomery. Examples of the Case Files Reports appear below in Section 9 for Mr. Carter. The Case File Reports for each probationer contains the same fields and is uniform throughout the JCS system. 15 6. SUMMARY Use of the JCS database tables and data shows that a putative class is ascertainable and can be defined based upon date limitations and other 15 List of all the Information in the Probationers Table: LName MName FName Suffix ProbID OtherID_old ProbationDate TermMonths TermDays Pr obationLength ProbationExpires Intake AssignedTo SentenceDate OrigCounty JudgeID ProbT ype ProbInterval RestitutionStartDate RestitutionEndDate FeePerMonth TotalFeeOwed TotalI nsuranceOwed TotalVCFOwed TotalOtherOwed EnterDate ModifyDate EnteredBy CurrentSta tus CourtID ReportingOfficeID Jail PaymentPlan PostIt YouthfulOffender AlternativeSentencin g CS_Paid_Rate Archived ArchivedNotes SexualOffender TerminationOption Picture PictureR emoved PicDir CourtProbationerID CourtRecordNumber SpecialCourt PicUploadDate Address Verified EmploymentVerified PersonID DrugTestColor Plaintiff’s Composite Exhibit Motion for Class Certification Carter et al v. JCS et al Page 30 parameters. The many data fields also allow determinations on a class wide basis, of fee payments, and the status and treatment of the included individuals during the class period without individual inquiry. The database tables supplied by JCS in April 2015 and the reports found in JCS ProbationTracker™ readily find and ascertain the number of individuals subject to probation administered by JC