Elbert P. Tuttle U.S. Court of Appeals Building
Elbert P. Tuttle U.S. Court of Appeals Building (Rebecca Breyer)

A federal appellate panel in Atlanta whose members had offered blistering verbal critiques of lawyers defending the city of Calhoun’s practice of jailing people too poor to post misdemeanor bonds never-the-less have handed the city an appellate win.

The three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit has vacated a preliminary injunction handed down last year by U.S. District Senior Judge Harold Murphy that had held unconstitutional Calhoun’s practice of jailing indigent defendants accused of city ordinance violations and minor misdemeanors solely because they did not have the money needed to secure their release.

In a joint, unsigned opinion the panel—Eleventh Circuit Judges William Pryor and Adalberto Jordan and Bobby Baldock, a Tenth Circuit senior judge—chided Murphy for issuing a preliminary injunction they determined was too weak in providing any specific direction as to what the city needed to do to make its misdemeanor bond practices constitutionally palatable.

“Requiring the city to ‘comply with the Constitution’ is the arch typical and unenforceable ‘obey the law’ injunction,” the opinion stated. Murphy’s injunction, the appellate panel determined, did not include any “operative command capable of enforcement or review” and offered “no guidance on the minimal standards required by the Constitution.”

Murphy issued the injunction in what has become a nationally-watched case after attorneys with the Southern Center for Human Rights in Atlanta sued the city of Calhoun on behalf of Maurice Walker, the lead plaintiff in the class action complaint. Walker—disabled by a mental disorder and unable to work—had been arrested for public intoxication in 2015 and jailed because he could not afford to pay a $160 cash bond that would have secured his release. He remained in jail for six days until Southern Center attorneys stepped in and sued the city on his behalf.

Calhoun’s bail bond schedule and its policy of detaining those who couldn’t pay up remained in place until nine days before Murphy issued the injunction in February 2016. At that time, the city modified its practice to require that arrestees who couldn’t post a cash bond must be released after 48 hours.

Calhoun’s appeal of Murphy’s ruling <a href=”http://www.dailyreportonline.com/id=1202765607544?keywords=” r.+robin+mcdonald”+and+”american+bar+association”+and+bond&publication=”Daily+Report”">attracted the attention of the U.S. Justice Department and the American Bar Association, both of which filed friend-of-the-court briefs urging the Eleventh Circuit to affirm Murphy’s rulings. Countering those briefs were others submitted by the Georgia Municipal Association and neighboring Alabama League of Municipalities and four Alabama cities that weighed in on behalf of Calhoun. So did the Georgia Sheriffs Association, the American Bail Coalition and the Georgia Association of Professional Bondsmen, which hired Washington lawyer Paul Clement to file an amicus brief defending Calhoun’s bail policies.

Alec Karakatsanis, an attorney with the Washington-based nonprofit Civil Rights Corps who defended Murphy’s injunction in oral arguments last month before the federal appellate panel, said that, although Murphy’s preliminary injunction has been vacated, it has been remanded with instructions that more detail is required. Karakatsanis—who is challenging local governments across the country that have instituted similar bond policies that he said distinguishes and penalizes people simply because they lack an ability to pay—is partnering with the Southern Center for Human Rights in the Walker case.

“The whole purpose of bringing a case like this is to get a more clear ruling on what the law is,” he said.

Karakatsanis said that municipalities such as Calhoun are using the misdemeanor cash bond system to generate revenues to support city services. A preset bond schedule for misdemeanors often matches the total of a fine and court fees and surcharges a defendant would incur if he or she pleaded guilty or was convicted, he said.

Karakatsanis labeled as “terrible public policy” the practice of jailing people who pose no threat to the community in jail—often for days—solely because of their inability to buy their freedom with a cash bond.

Sam Lucas, an attorney with Brinson Askew Berry in Rome who argued Calhoun’s case before the appeals panel, could not be reached for comment. Calhoun City Attorney George Govignon also could not be reached.