CASE-CLOSED,HOLMES,PROTECTIVE-ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:20-cv-00103

Nashville Community Bail Fund, The v. Howard Gentry Assigned to: District Judge Aleta A. Trauger Cause: 42:1983 Civil Rights Act

Date Filed: 02/05/2020 Date Terminated: 12/09/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Nashville Community Bail Fund, The

represented by Andrea Woods ACLU (NY Office) 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2528 Fax: (212) 549-2654 Email: awoods@aclu.org ATTORNEY TO BE NOTICED

Angela Lee Bergman Bass, Berry & Sims (Nashville Office) 150 Third Avenue South Suite 2800 Nashville, TN 37201 (615) 742-7738 Fax: (615) 742-2840 Email: abergman@bassberry.com ATTORNEY TO BE NOTICED

Brandon J. Buskey ACLU (NY Office) 125 Broad Street 18th Floor New York, NY 10004 (212) 549-2528 Fax: (212) 549-2654 Email: bbuskey@aclu.org ATTORNEY TO BE NOTICED

Briana T. Sprick Schuster Bass, Berry & Sims (Nashville Office) 150 Third Avenue South Suite 2800 Nashville, TN 37201 (615) 742-7853 Fax: (615) 248-2380 Email: briana.sprick.schuster@bassberry.com ATTORNEY TO BE NOTICED
C. Dawn Deaner Choosing Justice Initiative 1623 Haynes Meade Lane Nashville, TN 37207 (615) 431-3746 Email: dawndeaner@cjinashville.org ATTORNEY TO BE NOTICED
Charles L. Gerstein Civil Rights Corps 916 G Street NW Suite 701 Washington, DC 20001 (202) 670-4809 Fax: (202) 894-6128 Email: charlie@gerstein-harrow.com TERMINATED: 03/17/2021
Stella Yarbrough American Civil Liberties Union of Tennessee P O Box 120160 Nashville, TN 37212 (615) 320-7142 Fax: (615) 691-7219 Email: syarbrough@aclu-tn.org ATTORNEY TO BE NOTICED
Thomas H. Castelli ACLU (Nashville Office) P O Box 120160 Nashville, TN 37212 (615) 320-7142 Ext. 303

Fax: (615) 691-7219 Email: tcastelli@aclu-tn.org ATTORNEY TO BE NOTICED

V.
Defendant
Hon. Howard Gentry 408 2nd Avenue North Suite 2120 Nashville, TN 37201 Criminal Court Clerk, in his official capacity

represented by Allison L. Bussell Metropolitan Legal Department P O Box 196300 Nashville, TN 37219 (615) 862-6341 Email: allison.bussell@nashville.gov TERMINATED: 04/02/2020

John W. Ayers Metropolitan Legal Department P O Box 196300 Nashville, TN 37219 (615) 862-6341 Fax: (615) 862-6352 Email: will.ayers@nashville.gov TERMINATED: 04/02/2020

Kevin C. Klein Klein Solomon, PLLC 1322 4th Avenue North Nashville, TN 37208 (615) 600-4780 Fax: (615) 600-4780 Email: kevin.klein@kleinpllc.com ATTORNEY TO BE NOTICED

Ryan P. Loofbourrow Klein Solomon, PLLC 1322 4th Avenue North Nashville, TN 37208 (615) 600-4780 Email: ryan.loofbourrow@kleinpllc.com ATTORNEY TO BE NOTICED

Interested Party
Metropolitan Government of Nashville & Davidson County

Date Filed 02/05/2020 02/05/2020 02/05/2020 02/05/2020
02/05/2020

# Docket Text
1 COMPLAINT against Howard Gentry (Filing fee $400, Receipt number 0650-3080731), filed by The Nashville Community Bail Fund. (Attachments: # 1 Attachment - Civil Cover Sheet, # 2 Exhibit A Davidson County Bail Rules, # 3 Exhibit B - Sample Clerks form signed NCBF, # 4 Exhibit C - Community Bail Fund En Banc Order, # 5 Exhibit D - 2019.08.29 NCBF En Banc Order August 2019, # 6 Exhibit E -. Garcia Local Rule Signature)(am) (Entered: 02/05/2020)
2 NOTICE/INFORMATION regarding Consent of the Parties to the Magistrate Judge. (am) (Entered: 02/05/2020)
3 MOTION for Preliminary Injunction by The Nashville Community Bail Fund. (Castelli, Thomas) (Entered: 02/05/2020)
4 MEMORANDUM in Support of 3 MOTION for Preliminary Injunction filed by The Nashville Community Bail Fund . (Attachments: # 1 Attachment Declaration of Rahim Buford, # 2 Exhibit Exhibit ADavidson County Bail Rules, # 3 Exhibit Exhibit B-Z. Garcia Local Rule Signature, # 4 Exhibit Exhibit C-Community Bail Fund En Banc Order May 2019, # 5 Exhibit Exhibit D-2019.08.29 NCBF En Banc Order August 2019, # 6 Exhibit Exhibit E-2019.06.05 Petition to Amend May 6 2019 Order, # 7 Exhibit Exhibit F-2019.06.05 Memo in Support of Petition to Amend May 6 2019 Order, # 8 Exhibit Exhibit G-2019.06.05 Exhibits to Petition to Amend May 6 2019 Order, # 9 Exhibit Exhibit HNCBFs Public Statement on Local Rule 10(B), # 10 Exhibit Exhibit I2020 Projections Bail Fund, # 11 Attachment Declaration of Andrea Woods, # 12 Exhibit Exhibit A-Courtwatch Mini Report, # 13 Exhibit Exhibit B-Downstream Consequences of Misdemeanor Pretrial Detention, # 14 Exhibit Exhibit C-A Decade of Bail Research in New York City, # 15 Exhibit Exhibit D-A Framework for Pretrial Justice, # 16 Exhibit Exhibit E-Moving Beyond Money A Primer on Bail Reform, # 17 Exhibit Exhibit F-Unsecured Bonds The As Effective and Most Efficient Pretrial Release Option, # 18 Exhibit Exhibit G-The Jefferson County Bail Project Impact Study Findings, # 19 Exhibit Exhibit H-Yakima County Washington Pretrial Justice System Improvements, # 20 Exhibit Exhibit I-The Hidden Costs of Pretrial Detention, # 21 Attachment Proposed Order)(Castelli, Thomas) (Entered: 02/05/2020)
5 MOTION for attorney Brandon Buskey to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650-3081485) by The Nashville Community Bail Fund. (Attachments: # 1 Attachment Certificate of Good Standing)(Castelli, Thomas) (Entered: 02/05/2020)

02/05/2020

6 MOTION for attorney Andrea Woods to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650-3081486) by The Nashville Community Bail Fund. (Attachments: # 1 Attachment Certificate of Good Standing)(Castelli, Thomas) (Entered: 02/05/2020)

02/05/2020

7 BUSINESS ENTITY DISCLOSURE STATEMENT filed by The Nashville Community Bail Fund. (Castelli, Thomas) (Entered: 02/05/2020)

02/06/2020

8 NOTICE of Initial Case Management Conference set for 4/6/2020 at 02:30 PM in Chambers 825 before District Judge Aleta A. Trauger. (hb) (Entered: 02/06/2020)

02/06/2020 9 Summons issued as to Howard Gentry. (Service copies to be picked up at the front counter.) (am) (Entered: 02/06/2020)

02/06/2020

State Bar status verified as active for (TN) Thomas H. Castelli, (NY) Andrea Woods, (NY) Brandon J. Buskey, (DC) Charles Gerstein, (TN) C. Dawn Deaner. (am) (Entered: 02/06/2020)

02/06/2020 10 SUMMONS returned executed by Nashville Community Bail Fund, The. Hon. Howard Gentry served on 2/6/2020 . (Castelli, Thomas) Modified Text on 2/7/2020 (am). (Entered: 02/06/2020)

02/07/2020

NOTICE TO FILER re DE# 5 : The pending pro hac vice motion does not comply with the Court's local rules, because the motion fails to state whether disciplinary proceedings by any disciplinary authority, a finding of contempt or a sanction under 28 U.S.C. § 1927 by any court, or criminal charges have been instituted against the attorney seeking pro hac vice admission. Local Rule 83.01(b)(2). By no later than five (5) business days from the date of this docket annotation, the pro hac vice motion must be supplemented by the filing of a statement under oath of the attorney seeking pro hac vice admission disclosing such matters. Failure to do so will result in denial of the pro hac vice motion. (Davies, Kirk) (Entered: 02/07/2020)

02/07/2020

NOTICE TO FILER re DE# 6 : The pending pro hac vice motion does not comply with the Court's local rules, because the motion fails to state whether disciplinary proceedings by any disciplinary authority, a finding of contempt or a sanction under 28 U.S.C. § 1927 by any court, or criminal charges have been instituted against the attorney seeking pro hac vice admission. Local Rule 83.01(b)(2). By no later than five (5) business days from the date of this docket annotation, the pro hac vice motion must be supplemented by the filing of a statement under oath of the attorney seeking pro hac vice admission disclosing such matters. Failure to do so will result in denial of the pro hac vice motion. (Davies, Kirk) (Entered: 02/07/2020)

02/07/2020

11 DECLARATION of Brandon Buskey filed by Nashville Community Bail Fund, The re: 5 MOTION for attorney Brandon Buskey to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650-3081485). (Castelli, Thomas) (Entered: 02/07/2020)

02/07/2020

12 DECLARATION of Andrea Woods filed by Nashville Community Bail Fund, The re: 6 MOTION for attorney Andrea Woods to Appear Pro Hac Vice (paid $100 PHV fee; receipt number 0650-3081486). (Castelli, Thomas) (Entered: 02/07/2020)

02/10/2020

13 ORDER granting 5 Motion for Brandon Buskey to Appear Pro Hac Vice. Signed by Kirk L. Davies on 2/10/20. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 02/10/2020)

02/10/2020

14 ORDER granting 6 Motion for Andrea Woods to Appear Pro Hac Vice. Signed by Kirk L. Davies on 2/10/20. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 02/10/2020)

02/20/2020 15 RESPONSE to Motion re 3 MOTION for Preliminary Injunction filed by Howard Gentry. (Bussell, Allison) (Entered: 02/20/2020)

02/21/2020

TN State Bar status verified as active for Allison L. Bussell, John W. Ayers. (am) (Entered: 02/21/2020)

02/24/2020 16 REPLY to Response to re 3 MOTION for Preliminary Injunction filed by Nashville Community Bail Fund, The. (Woods, Andrea) (Entered: 02/24/2020)

02/27/2020 17 MOTION to Dismiss for Failure to State a Claim by Howard Gentry. (Bussell, Allison) (Entered: 02/27/2020)

02/27/2020 18 MEMORANDUM in Support of 17 MOTION to Dismiss for Failure to State a Claim filed by Howard Gentry . (Bussell, Allison) (Entered: 02/27/2020)

03/06/2020

19 RESPONSE in Opposition re 17 MOTION to Dismiss for Failure to State a Claim filed by Nashville Community Bail Fund, The. (Woods, Andrea) (Entered: 03/06/2020)

03/10/2020 20 REPLY in Support of Defendant's re 17 MOTION to Dismiss for Failure to State a Claim filed by Howard Gentry. (Bussell, Allison) Modified Text on 3/11/2020 (am). (Entered: 03/10/2020)

03/13/2020 21 DECLARATION of Dawn Deaner Re: Second Executed Summons filed by Nashville Community Bail Fund, The. (Attachments: # 1 Exhibit

Second Executed Summons of Service Gentry)(Woods, Andrea) (Entered: 03/13/2020)

03/16/2020

NOTICE TO FILER re DE# [21-1]: The wrong event was used. The correct event should be Summons Returned Executed. Counsel shall refile the document. (am) (Entered: 03/16/2020)

03/17/2020

22 MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 3/17/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg) (Entered: 03/17/2020)

03/17/2020

23 ORDER: For the reasons explained in the accompanying Memorandum 22 , the Motion for Preliminary Injunction filed by the Nashville Community Bail Fund ("NCBF") (Docket No. 3 ) is hereby GRANTED in part and DENIED in part, and the Motion to Dismiss filed by Howard Gentry, in his official capacity as Criminal Court Clerk for the Twentieth Judicial District, (Docket No. 17) is DENIED. Although NCBF is a small charitable organization, the record shows that it is capable of posting some bond and that the defendant may bear costs or damages if wrongly enjoined. NCBF is therefore ORDERED to post security bond in the amount of $1,000.00 in relation to this Order. Signed by District Judge Aleta A. Trauger on 3/17/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg) (Entered: 03/17/2020)

03/18/2020

24 RECEIPT #34675058303 in the amount of $1,000.00 posted by Nashville Community Bail Fund, The re 23 Order on Motion for Preliminary Injunction. (am) (Entered: 03/19/2020)

03/31/2020 25 MOTION to Withdraw as Attorney by Howard Gentry. (Attachments: # 1 Exhibit 1 - Notice of Intent to Withdraw, # 2 Exhibit 2 - Notice to AG)(Bussell, Allison) (Entered: 03/31/2020)

03/31/2020

26 ORDER: Case Management Conference by Telephone set for 4/6/2020 at 02:30 PM before District Judge Aleta A. Trauger. Signed by District Judge Aleta A. Trauger on 3/31/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 03/31/2020)

03/31/2020

27 MOTION for attorney Charles Gerstein to Appear Pro Hac Vice (Fee not paid-due within 21 days) by Nashville Community Bail Fund, The. (Castelli, Thomas) (Entered: 03/31/2020)

04/01/2020

**DISREGARD ENTERED IN ERROR**NOTICE TO FILER re DE# 27 : The PHV motion must be accompanied by a Certificate of Good Standing from a United States District Court or a United States

appellate court. The certificate shall be filed within 10 days. (am) Modified on 4/1/2020 (am). (Entered: 04/01/2020)

04/01/2020

28 CERTIFICATE OF GOOD STANDING of Attorney Charles Gerstein from the United States District Court for the United States District & Bankruptcy Courts for the District of Columbia of Washington, DC filed by Nashville Community Bail Fund, The. (am) (Entered: 04/01/2020)

04/01/2020 29 PROPOSED CASE MANAGEMENT ORDER filed by Nashville Community Bail Fund, The. (Castelli, Thomas) (Entered: 04/01/2020)

04/02/2020

30 ORDER granting 25 Motion to Withdraw as Attorney. Attorney John W. Ayers and Allison L. Bussell terminated. The Motion to Withdraw (Docket No. 25) is hereby GRANTED. Given that new counsel has not yet entered an appearance on behalf of the defendant, it is further ORDERED that the initial case management conference scheduled for April 6, 2020 is hereby RESET for May 11, 2020 at 2:30 p.m. Signed by District Judge Aleta A. Trauger on 4/2/2020. (am) (Entered: 04/02/2020)

04/02/2020

Set/Reset Hearings: Initial Case Management Conference reset for 5/11/2020 at 02:30 PM in Chambers 825 before District Judge Aleta A. Trauger. (am) (Entered: 04/02/2020)

04/21/2020 31 RECEIPT #34675058608 in the amount of $100.00 posted by Nashville Community Bail Fund, The re 27 Motion to Appear Pro Hac Vice for Charles Gerstein. (am) (Entered: 04/21/2020)

04/22/2020

32 ORDER granting 27 Motion for Charles Gerstein to Appear Pro Hac Vice. Signed by Kirk L. Davies on 4/22/20. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Davies, Kirk) (Entered: 04/22/2020)

05/01/2020 33 NOTICE of Appearance by Angela Lee Bergman on behalf of Nashville Community Bail Fund, The (Bergman, Angela) (Entered: 05/01/2020)

05/01/2020

34 ORDER: Telephone Conference set for 5/11/2020 02:30 PM before District Judge Aleta A. Trauger. Signed by District Judge Aleta A. Trauger on 5/1/2020. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 05/01/2020)

05/04/2020

TN State Bar status verified as active for Angela Lee Bergman. (am) (Entered: 05/04/2020)

05/06/2020 35 MOTION for Entry of Default as to Howard Gentry by Nashville Community Bail Fund, The. (Attachments: # 1 Exhibit A. Declaration of

T. Castelli in support of Motion)(Bergman, Angela) (Entered: 05/06/2020)

05/07/2020 36 NOTICE of Appearance by Ryan P. Loofbourrow on behalf of Howard Gentry (Loofbourrow, Ryan) (Entered: 05/07/2020)

05/07/2020 37 NOTICE of Appearance by Kevin C. Klein on behalf of Howard Gentry (Klein, Kevin) (Entered: 05/07/2020)

05/07/2020

38 ORDER denying 35 Motion for Entry of Default against Defendant Gentry. Signed by District Judge Aleta A. Trauger on 5/7/2020. (vh) Modified on 5/7/2020 (vh). (Entered: 05/07/2020)

05/07/2020 39 Joint MOTION for Extension of Time to File Joint Proposed Initial Case Management Order by Howard Gentry. (Loofbourrow, Ryan) (Entered: 05/07/2020)

05/08/2020

TN State Bar status verified as active for Ryan P. Loofbourrow, Kevin C. Klein. (am) (Entered: 05/08/2020)

05/08/2020 40 PROPOSED CASE MANAGEMENT ORDER Joint filed by Howard Gentry. (Loofbourrow, Ryan) (Entered: 05/08/2020)

05/11/2020

41 Consent MOTION for Extension of Time to File Responsive Pleading to May 21, 2020 by Howard Gentry. (Loofbourrow, Ryan) (Entered: 05/11/2020)

05/11/2020 42 ORDER granting 39 Motion for Extension of Time to File Joint Proposed Initial Case Management Order. Signed by District Judge Aleta A. Trauger on 5/11/2020. (am) (Entered: 05/11/2020)

05/11/2020

43 ORDER granting 41 Unopposed Motion to Extend Time to File Responsive Pleading. Signed by District Judge Aleta A. Trauger on 5/11/2020. (ds) (Entered: 05/11/2020)

05/11/2020

Minute Entry for proceedings held before District Judge Aleta A. Trauger: Case Management Conference by Telephone held on 5/11/2020. Defense counsel to file revised case management order. Joint mediation report due 8/15/20. (Hearing lasted :20)(kb) (Entered: 05/11/2020)

05/11/2020

44 ORDER SETTING BENCH TRIAL: Bench Trial set for 2/2/2021 09:00 AM in Courtroom 873 before District Judge Aleta A. Trauger. Exhibit List due by 1/26/2021. Witness List due by 1/26/2021. Pretrial Conference set for 1/29/2021 01:30 PM in Chambers 825 before District Judge Aleta A. Trauger. Joint Proposed Pretrial Order due by 1/26/2021. Signed by District Judge Aleta A. Trauger on 5/11/2020. (DOCKET

TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 05/11/2020)

05/13/2020

45 JOINT PROPOSED CASE MANAGEMENT ORDER filed by Howard Gentry. (Loofbourrow, Ryan) Modified Text on 5/13/2020 (am). (Entered: 05/13/2020)

05/13/2020

46 INITIAL CASE MANAGEMENT ORDER: Motions to Amend due by 6/11/2020. Discovery due by 8/21/2020. Dispositive Motions due by 9/18/2020. Signed by District Judge Aleta A. Trauger on 5/13/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 05/13/2020)

05/21/2020 47 Second MOTION to Dismiss by Howard Gentry. (Loofbourrow, Ryan) (Entered: 05/21/2020)

05/21/2020 48 MEMORANDUM in Support of 47 Second MOTION to Dismiss filed by Howard Gentry . (Loofbourrow, Ryan) (Entered: 05/21/2020)

06/04/2020 49 MOTION for Leave to File Excess Pages for Response to Second Motion to Dismiss by Nashville Community Bail Fund, The. (Bergman, Angela) (Entered: 06/04/2020)

06/04/2020 50 RESPONSE in Opposition re 47 Second MOTION to Dismiss filed by Nashville Community Bail Fund, The. (Bergman, Angela) (Entered: 06/04/2020)

06/05/2020 51 ORDER granting 49 Motion for Leave to File Excess Pages. Motion (DE #49) GRANTED. Signed by District Judge Aleta A. Trauger on 6/5/2020. (am) (Entered: 06/05/2020)

06/11/2020 52 REPLY filed by Howard Gentry re 47 Motion to Dismiss filed by Howard Gentry. (Loofbourrow, Ryan) (Entered: 06/11/2020)

07/28/2020 53 Joint MOTION To Refer Case for Judicial Settlement Conference by Howard Gentry. (Klein, Kevin) (Entered: 07/28/2020)

07/29/2020

54 ORDER REFERRING CASE to Magistrate Judge Barbara D. Holmes. The Joint Motion to Refer Case for a Judicial Settlement Conference (Docket No. 53) is GRANTED. It is hereby ORDERED that this case is REFERRED to Magistrate Judge Holmes, to whom this case is assigned, to either conduct a judicial settlement conference herself or to request another magistrate judge to conduct a settlement conference. The parties should contact Judge Holmes' office in order to determine next steps. Signed by District Judge Aleta A. Trauger on 7/29/2020. (am) (Entered: 07/29/2020)

08/03/2020

55 ORDER: A telephonic status conference was held on August 3, 2020 to discuss next steps following Judge Trauger's referral of this case for a judicial settlement conference. See Order at Docket No. 54. Counsel participating were: Andrea Woods, Angela Bergman, Dawn Deaner, and Thomas Castelli for Plaintiff and Kevin Klein and Ryan Loofbourrow for Defendant. From discussion with counsel, the parties are agreeable to a settlement conference/mediation with Magistrate Judge Joe B. Brown (Ret.). After consultation with Judge Brown, this case is REFERRED to Judge Brown for a settlement conference/mediation. Signed by Magistrate Judge Barbara D. Holmes on 8/3/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 08/03/2020)

08/03/2020

Minute Entry for proceedings held before Magistrate Judge Barbara D. Holmes: Telephone Conference held on 8/3/2020 to discuss setting a settlement conference, ORDER to enter. (Tape #not recorded.) (Hearing lasted :12)(jwc) (Entered: 08/04/2020)

08/06/2020

56 Joint MOTION to Continue All Remaining Deadlines by Two Months and Continue the Trial Date by Howard Gentry. (Loofbourrow, Ryan) (Entered: 08/06/2020)

08/06/2020

57 ORDER granting 56 Joint MOTION to Continue All Remaining Deadlines by Two Months and Continue the Trial Date. Extensions as requested. Signed by District Judge Aleta A. Trauger on 8/6/2020. (vh) (Entered: 08/06/2020)

08/06/2020

58 ORDER RESETTING BENCH TRIAL: Bench Trial is reset for 3/23/2021 at 09:00 AM in Courtroom 873 before District Judge Aleta A. Trauger. Exhibit List due by 3/16/2021. Witness List due by 3/16/2021. Pretrial Conference is reset for 3/19/2021 at 01:30 PM in Chambers 825 before District Judge Aleta A. Trauger. Proposed Pretrial Order due by 3/16/2021. Signed by District Judge Aleta A. Trauger on 8/6/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(vh) (Entered: 08/06/2020)

08/14/2020 59 Joint Case Resolution Status Report by Howard Gentry. (Loofbourrow, Ryan) (Entered: 08/14/2020)

08/31/2020 60 JOINT MEDIATION REPORT filed by Howard Gentry. (Loofbourrow, Ryan) (Entered: 08/31/2020)

09/18/2020 61 Joint MOTION for Protective Order by Nashville Community Bail Fund, The. (Attachments: # 1 Exhibit 1- Stipulated Protective Order)(Bergman, Angela) (Entered: 09/18/2020)

09/21/2020 62 ORDER granting 61 Motion for Protective Order. Signed by District Judge Aleta A. Trauger on 9/21/2020. (am) (Entered: 09/21/2020)

09/21/2020

63 STIPULATED PROTECTIVE ORDER. Signed by District Judge Aleta A. Trauger on 9/21/2020. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 09/21/2020)

10/01/2020 64 NOTICE of Appearance by Stella Yarbrough on behalf of Nashville Community Bail Fund, The (Yarbrough, Stella) (Entered: 10/01/2020)

10/02/2020

TN State Bar status verified as active for Stella Yarbrough admitted to this court. (am) (Entered: 10/02/2020)

10/26/2020

65 MEMORANDUM. Signed by District Judge Aleta A. Trauger on 10/26/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) Modified Text on 10/26/2020 (am). (Entered: 10/26/2020)

10/26/2020

66 ORDER: For the reasons explained in the accompanying Memorandum, the Second Motion to Dismiss filed by Howard Gentry, in his official capacity as Criminal Court Clerk for the Twentieth Judicial District, (Docket No. 47) is DENIED. Signed by District Judge Aleta A. Trauger on 10/26/2020. (am) (Entered: 10/26/2020)

11/05/2020 67 NOTICE of Appearance by Briana T. Schuster on behalf of Nashville Community Bail Fund, The (Schuster, Briana) (Entered: 11/05/2020)

11/06/2020

Admitted in IL State Bar status verified as active for Briana T. Schuster admitted to this court. (am) (Entered: 11/06/2020)

11/11/2020 68 MOTION for Summary Judgment by Nashville Community Bail Fund, The. (Bergman, Angela) (Entered: 11/11/2020)

11/11/2020 69 MEMORANDUM in Support of 68 MOTION for Summary Judgment filed by Nashville Community Bail Fund, The . (Bergman, Angela) (Entered: 11/11/2020)

11/11/2020

70 STATEMENT of facts Statement of Undisputed Material Facts filed by Nashville Community Bail Fund, The in support of 68 Motion for Summary Judgment. (Bergman, Angela) (Entered: 11/11/2020)

11/11/2020

71 DECLARATION of Angela L. Bergman filed by Nashville Community Bail Fund, The re: 68 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A - NCBF's Responses to Defendant's First Set of Interrogatories (Nos. 1, 8, 10), # 2 Exhibit B - NCBF000255, # 3 Exhibit C - NCBF000256)(Bergman, Angela) (Entered: 11/11/2020)

11/12/2020

72 ORDER: On July 28, 2020, the parties filed a joint motion to refer this case for a judicial settlement conference. (Docket No. 53 .) By order entered on July 29, 2020, the case was referred to the undersigned for that purpose. (Docket No. 54 .) Following a status conference with the parties, the case was referred for mediation with Magistrate Judge Joe Brown (Ret.). (Docket No. 55 .) However, prior to mediation, and after following up on questions about Defendant's independent authority to settle and limitations if neither the Criminal Court judges nor the State (other than Gentry himself) participates in the mediation (Docket No. 60 at 3), the parties concluded that mediation would not be successful. (Id.) Functionally, this is tantamount to a withdrawal of the parties' motion for ADR. Accordingly, absent further order, there does not appear to be any further action required of the undersigned. Signed by Magistrate Judge Barbara D. Holmes on 11/12/2020. (ln) (Entered: 11/12/2020)

11/13/2020 73 Unopposed MOTION for Extension of Time to File Response/Reply as to 68 MOTION for Summary Judgment by Howard Gentry. (Loofbourrow, Ryan) (Entered: 11/13/2020)

11/16/2020

Per Order 72 , Magistrate Judge Barbara D. Holmes no longer assigned to case. (ln) (Entered: 11/16/2020)

11/16/2020

74 ORDER granting 73 Motion for Extension of Time to File Response/Reply re 68 MOTION for Summary Judgment. Extension granted to 12/9/2020. Signed by District Judge Aleta A. Trauger on 11/16/2020. (ln) (Entered: 11/16/2020)

12/08/2020 75 Joint MOTION for Entry of Consent Judgment and Decree by Howard Gentry. (Attachments: # 1 Exhibit Proposed Consent Judgment and Decree)(Loofbourrow, Ryan) (Entered: 12/08/2020)

12/09/2020

76 ORDER granting 75 Joint Motion for Entry of Consent Judgment and Decree. Signed by District Judge Aleta A. Trauger on 12/9/2020. (am) (Entered: 12/09/2020)

12/09/2020

77 CONSENT JUDGMENT AND DECREE: The Clerk is DIRECTED to send a copy of this Stipulated Judgment to Herbert Slatery III, the Attorney General and Reporter for the State of Tennessee, and Bob Cooper, the Director of Law for Metropolitan Government of Nashville and Davidson County. The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure It is hereby ORDERED that the preliminary injunction ordered by this Court on March 17, 2020 (Dkt. 23) shall be permanent. The Court retains jurisdiction for the purpose of enforcing the terms of the consent decree. Signed by District Judge Aleta A. Trauger on 12/9/2020. (Herbert Slatery, III sent a copy of the order by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS

MUST OPEN THE PDF AND READ THE ORDER.)(am) (Entered: 12/09/2020)

12/09/2020 78 ENTRY OF JUDGMENT re: 77 Order. (am) (Entered: 12/09/2020)

12/18/2020 79 MOTION for Extension of Time to File Notice of Appeal by Howard Gentry. (Loofbourrow, Ryan) (Entered: 12/18/2020)

12/18/2020 80 RESPONSE in Opposition re 79 MOTION for Extension of Time to File Notice of Appeal filed by Nashville Community Bail Fund, The. (Bergman, Angela) (Entered: 12/18/2020)

12/18/2020

81 ORDER denying 79 Motion for Extension of Time to File A Notice of Appeal. Signed by District Judge Aleta A. Trauger on 12/18/2020. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am) Modified Text on 12/30/2020 (am). (Entered: 12/18/2020)

01/25/2021

82 MOTION for Attorney Fees by Nashville Community Bail Fund, The. (Attachments: # 1 Attachment Declaration of Angela Bergman, # 2 Attachment Declaration of Andrea Woods, # 3 Attachment Declaration of Thomas Castelli, # 4 Attachment Declaration of Charles Gerstein, # 5 Attachment Declaration of Ryan Downer, # 6 Attachment Declaration of Tara Mikkilineni, # 7 Attachment Declaration of Dawn Deaner, # 8 Attachment Declaration of Charles Bone, # 9 Attachment Declaration of John Spragens, # 10 Attachment Declaration of John Farringer)(Bergman, Angela) (Entered: 01/25/2021)

01/25/2021

83 MEMORANDUM in Support of 82 MOTION for Attorney Fees filed by Nashville Community Bail Fund, The . (Attachments: # 1 Exhibit A. Fee Spreadsheet)(Bergman, Angela) (Entered: 01/25/2021)

02/16/2021 84 RESPONSE in Opposition re 82 MOTION for Attorney Fees filed by Metropolitan Government of Nashville & Davidson County. (Bussell, Allison) (Entered: 02/16/2021)

02/16/2021

85 RESPONSE in Opposition re 82 MOTION for Attorney Fees on behalf of Non-Party the State of Tennessee filed by Howard Gentry. (Attachments: # 1 Exhibit 1 - Metro Comprehensive Annual Financial Report, # 2 Exhibit 2 - Metro Budget, Part 1, # 3 Exhibit 3 - Metro Budget, Part 2)(Jones, Miranda) (Entered: 02/16/2021)

02/17/2021

NOTICE TO FILER re DE# 85 : Pursuant to Local Rule 5.01, Certificates of Service shall identify by name the person served, what was served, the method of service, and date of service. Counsel did not include all Counsel on the certificate of service. Please FILE a

conformed Certificate of Service for this document. (kc) (Entered: 02/17/2021)

02/17/2021

86 CERTIFICATE OF SERVICE on behalf of Non-Party the State of Tennessee filed by Howard Gentry. (Jones, Miranda) (Entered: 02/17/2021)

02/23/2021 87 REPLY to Response to re 82 MOTION for Attorney Fees filed by Nashville Community Bail Fund, The. (Bergman, Angela) (Entered: 02/23/2021)

03/16/2021 88 MOTION to Withdraw as Attorney by Nashville Community Bail Fund, The. (Attachments: # 1 Exhibit A Notice of Withdrawal)(Gerstein, Charles) (Entered: 03/16/2021)

03/17/2021

89 ORDER: Motion (DE # 88 ) for Leave to Withdraw GRANTED. Attorney Charles L. Gerstein terminated. Signed by District Judge Aleta A. Trauger on 3/17/2021. (ln) (Entered: 03/17/2021)

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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE NASHVILLE COMMUNITY

)

BAIL FUND,

)

)

Plaintiff,

)

)

v.

)

)

HON. HOWARD GENTRY, Criminal

)

Court Clerk, in his official capacity,

)

)

Defendant.

)

Case No. 3:20-cv-00103 Judge Aleta A. Trauger

MEMORANDUM

The Nashville Community Bail Fund (“NCBF”) has filed a Motion for Preliminary

Injunction (Docket No. 3), to which Howard Gentry, in his official capacity as Criminal Court

Clerk for the Twentieth Judicial District, has filed a Response (Docket No. 15), and NCBF has

filed a Reply (Docket No. 16). Gentry has filed a Motion to Dismiss (Docket No. 17), to which

NCBF has filed a Response (Docket No. 19), and Gentry has filed a Reply (Docket No. 20). For

the reasons set out herein, NCBF’s motion will be granted in part and denied in part and Gentry’s

motion will be denied.

I. BACKGROUND

A. Structure of Pretrial Release and Bail in Tennessee

1. State and Federal Requirements. The State of Tennessee, like the federal

government and the governments of its sister states, routinely jails individuals who have been

charged with, but not convicted of, crimes, pursuant to a common practice known as “pretrial

detention.” As the state’s Supreme Court has observed, the constitutional permissibility of

pretrial detention, as a general matter, is widely accepted, and the practice itself dates back to

before this nation’s founding, having been a feature of the pre-constitutional English courts from which early U.S. courts borrowed many of their organizing principles. State v. Burgins, 464 S.W.3d 298, 303 (Tenn. 2015). Also dating back to these pre-constitutional courts and surviving into the American experience, however, is the admonition that the government’s right to pretrial detention is not absolute. Id. For example, under the Eighth Amendment of the U.S. Constitution, the government can deny a defendant pretrial release based on his failure to pay a bail—that is, a surety tied to his future return to court—but only if the bail amount is not “excessive”— “excessive” meaning, in this context, “[b]ail set at a figure higher than an amount reasonably calculated to” provide “adequate assurance that he will stand trial and submit to sentence if found guilty.” Stack v. Boyle, 342 U.S. 1, 5 (1951). The U.S. Constitution also forbids a court from continuing pretrial detention unless certain adequate procedures are observed. See Schall v. Martin, 467 U.S. 253, 263 (1984).
Although the U.S. Constitution imposes certain procedural requirements and substantive limitations on the pretrial detention process, it does not guarantee that a defendant be given a path to obtaining pretrial release in the first place. When a person is charged with a Tennessee state crime, however, the U.S. Constitution is not the only constitution that matters. The Tennessee Constitution, unlike its federal counterpart, requires that “all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great.” Tenn. Const. art. 1, § 15. “This constitutional provision grants a defendant the right to pretrial release on bail pending adjudication of criminal charges.” Burgins, 464 S.W.3d at 304 (citing Swain v. State, 527 S.W.2d 119, 120 (Tenn. 1975)). Although this right may be forfeited by a defendant’s conduct, every non-capital defendant that enters the Tennessee
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criminal justice system at least begins with a right to establish some conditions pursuant to which he can obtain his freedom until he is, if ever, convicted.1 See id. at 306.
Because the federal Constitution only permits the amount of bail necessary to ensure the
defendant’s future appearance in court, Tennessee courts are required to undertake a process to
determine how much, if any, bail is actually justified by the defendant’s particular circumstances.
First, the court must consider, based on a number of statutorily dictated factors, whether to
release a bailable defendant on the defendant’s own recognizance or an unsecured bond. Tenn.
Code Ann. § 40-11-115(b); Graham v. Gen. Sessions Court, 157 S.W.3d 790, 793 (Tenn. Ct.
App. 2004). If the statutory factors do not support release on the defendant’s own recognizance
or on an unsecured bond, the court is then to consider imposing conditions of release, including
non-monetary conditions that would help ensure the defendant’s appearance to stand trial. The
court must “impose the least onerous conditions reasonably likely to assure the defendant’s
appearance in court.” Tenn. Code Ann. § 40-11-116(a).
The conditions that may be imposed include:
(1) [r]eleas[ing] the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court . . . ;
(2) [i]mpos[ing] reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or
(3) [i]mpos[ing] any other reasonable restriction designed to assure the defendant’s appearance, including, but not limited to, the deposit of bail pursuant to § 40-11-117.
Tenn. Code Ann. § 40-11-116(b). Only if the court determines that “conditions on a release on
recognizance” have not been shown to reasonably assure the defendant’s appearance, may the
1 Tennessee’s pretrial detention statutes likewise provide that, “[w]hen [a] defendant has been arrested . . . for any bailable offense, the defendant is entitled to be admitted to bail by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court . . . .” Tenn. Code Ann. § 40-11-105(a).
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court, “in lieu of the conditions of release set out in § 40-11-115 or § 40-11-116, require bail to be given.” Tenn. Code Ann. § 40-11-117. See Graham, 157 S.W.3d at 793 (“If it is not shown that conditions on a release on recognizance will reasonably assure the defendant’s appearance as required, the magistrate shall require that bail be given in lieu of conditions of release.”).
If the court determines that it will set monetary bail, it must then determine the amount to be required, based on a number of statutory factors listed in Tenn. Code Ann. § 40-11-118. Tennessee has set some statutory upper limits for bail amounts; for example, bail cannot be set in excess of $50,000 “if the defendant is charged with a felony that involves a crime committed against a person,” other than a form of homicide. Tenn. Code Ann. § 40-11-105. In addition to those limits, the court is required, as the U.S. Constitution mandates, to set a bail amount “as low as the court determines is necessary to reasonably assure the appearance of the defendant as required.” Tenn. Code Ann. § 40-11-118(a). Throughout this process, the courts must follow the procedural safeguards imposed by the U.S. Constitution’s guarantee, in the Fourteenth Amendment, that an individual cannot be deprived of his liberty without due process. See Burgins, 464 S.W.3d at 307.
Once monetary bail is set, the defendant can pay that monetary bail by either (1) paying the full amount himself, (2) hiring a surety, most typically in the form of a for-profit bail bondsman, or (3) using real property as collateral. See Tenn. Code Ann. §§ 40-11-118(a), 40-11122. Once his bail is paid, he is released, with the expectation that he will attend all future required court dates, as well as comply with any other conditions of his release. “If the defendant whose release is secured . . . does not comply with the conditions of the bail bond, the court having jurisdiction shall enter an order declaring the bail to be forfeited.” Tenn. Code Ann. § 4011-139(a); see also Tenn. Code Ann. § 40-11-201. However, “[i]f the conditions of the bail bond
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have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the defendant, unless the court orders otherwise, the entire sum which had been deposited.” Tenn. Code Ann. §§ 40-11-119.
2. Local Administrative and Judicial Responsibilities. As should be apparent, the state’s system of pretrial detention, release, and surety reflects an overlay of both federal and state requirements. The list of governmental units involved, however, does not end there. “The judicial power of the state is vested in judges of the courts of general sessions, . . . , circuit courts, [and] criminal courts,” as well as other courts established by the state. Tenn. Code Ann. § 16-1-101. The state’s trial courts are divided among “thirty-one (31) judicial districts” defined by statute. Tenn. Code Ann. § 16-2-506. The state courts located in Metropolitan Nashville and Davidson County (“Metro Nashville” or “Metro”), for example, make up the Twentieth Judicial District. Tenn. Code Ann. § 16-2-506(a)(20)(A)(1).2 The judges of each individual judicial district are authorized to promulgate their own Local Rules, as long as those rules are “consistent with the statutory law, the rules of the supreme court and the rules of criminal and civil procedure.” Tenn. Code Ann. § 16-2-511. Among those Rules may be rules governing the process of reviewing pretrial detention decisions, as is the case in the Twentieth Judicial District, which has a fairly lengthy and detailed set of Local Rules of Practice for Bail Bonds. (See Docket No. 4-2.)
General sessions courts add another layer of complexity, because they are not denominated as state courts at all; rather, they are established and maintained on a county-bycounty basis. See Tenn. Code Ann. § 16-15-102. General sessions judges have their own authority to “adopt such rules as may be necessary to expedite the trial and disposal of cases.” 2 Other districts, however, span multiple counties. For example, the thirteenth judicial district spans seven counties: “Clay, Cumberland, DeKalb, Overton, Pickett, Putnam and White.” Tenn. Code Ann. § 16-2506(a)(13)(A).
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Tenn. Code Ann. § 16-15-406. The Local Rules of Practice for Bail Bonds for the Twentieth Judicial District also apply to Metro’s General Sessions courts. (See Docket No. 4-2 at 1.)
Finally, the pretrial release-related work of each relevant court is divided among various personnel. According to NCBF, bail amounts, at least in Metro Nashville, are typically first set by judicial commissioners and may be reviewed by either a General Sessions judge or a Criminal Court judge. (Docket No. 1 ¶ 13.) The judges and judicial commissioners, however, do not directly administer the actual payment of bail amounts. Tennessee also relies on a system of clerks of court, whose duties are “to attend the court and perform all the clerical functions of the court.” Tenn. Code Ann. § 18-1-101. Among the clerk’s duties, at the circuit and criminal court level, is accounting for the court’s revenues. Tenn. Code Ann. § 18-4-103(3), (7)–(8). As relevant to the pretrial release system, the clerk of the court accepts bond payments and accounts for the funds once they are received. When a defendant or third party gets a surety back, it is the clerk that transmits the funds. (Docket No. 4-1 ¶¶ 21–27.)
The clerk of the criminal or circuit court of a judicial district is empowered to act as the clerk for a General Sessions Court, despite the fact that General Sessions Courts, in Tennessee’s system, are county, rather than state-level, courts. Tenn. Code Ann. §§ 16-15-301, 18-4-201. For example, the Metro Code and Charter instructs the local criminal court clerk to operate the criminal portion of the metropolitan government’s general sessions docket. Charter of the Gov. of Metro. Nashville & Davidson Cty. § 14.20. B. Effect of a Failure to Obtain Pretrial Release
The first and most obvious effect of a defendant’s failure to obtain pretrial release— either because conditions of release were wholly denied or because bail was set and he could not afford it—is the deprivation of the defendant’s liberty. As the court has already discussed, the
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pretrial defendant’s liberty interest, in and of itself, is entitled to substantial constitutional protection. However, focusing narrowly on the abstract concept of liberty, if anything, risks downplaying the full stakes of the pretrial detention determination in many cases. Whether a defendant facing prosecution is released to await trial not only affects his short-term freedom; there is evidence suggesting that it affects the course of his entire criminal case and, by extension, potentially the course of his life. NCBF has provided a July 2016 study of thousands of misdemeanor cases in Harris County, Texas, showing that, controlling for a number of variables, defendants who remained in pretrial detention were 25% more likely to plead guilty than similarly situated defendants who were released and were 43% more likely to receive jail time. When sentenced, the detained defendants’ sentences were, on average, more than twice as long. (Docket No. 4-13 at 2, 19–21.) There may, of course, be many ways that one could take issue with that study. Based on the current record before the court, however, the evidence, at the very least, broadly supports its conclusions.
It is, moreover, not difficult to imagine why detention would have a negative effect on an individual’s criminal defense. The government has much greater leverage over an incarcerated person than a free person. A person on pretrial release can continue to work, make money, and take part in family life, while a detained person may lose his job or even custody of his children. A person on pretrial release can also participate more directly and comprehensively in his defense. He is significantly less likely to be under the intense surveillance present in jailhouses, particularly regarding conversations with the outside world. He can seek continuances—for example, to investigate exculpatory or mitigating evidence—without each continuance meaning more time in jail. Finally, he will not be subject to the daily psychological toll of incarceration and can make decisions about how to proceed with his case surrounded by family and friends. In
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turn, pretrial release deprives the government of the bargaining chip that accepting a quick deal may get the defendant out of confinement sooner. That enticement is likely to be especially strong in misdemeanor and minor felony cases, which are likely to carry a short sentence after conviction but which can have long-ranging effects on the defendant’s life, due to their civil and criminal collateral consequences.
Pretrial detention is an established part of the U.S. criminal justice system, and NCBF does not, at least in this litigation, dispute that it is at least sometimes appropriate. Some defendants, therefore, cannot avoid the disadvantages associated with waiting for trial from a jail cell rather than their homes. As NCBF points out, however, once a defendant has been assigned a bail amount, a determination has already been made that, at least as long as the right conditions are met, pretrial release is appropriate for him. In such a situation, the defendant who can afford to make bail will face a decidedly different, and likely more forgiving, path forward for his case than a defendant who is charged with the same crime and received the same release conditions, but who cannot afford his own release. C. NCBF, Tenn. Code § 40-11-121, and Davidson County Rule 10(B)
1. NCBF’s Charitable Model. In 2016, individuals concerned about the role of money bail in Metro courts founded NCBF as a charitable fund for the purpose of “free[ing] low-income persons from jail and work[ing] to end wealth-based pretrial detention.” (Docket No. 4-1 ¶ 4.) The NCBF posts cash bail on behalf of selected pretrial detainees—not as a for-profit bonding company, but as part of its mission to combat differences in the pretrial detention process based on wealth. NCBF, like a for-profit company, takes steps to communicate with the defendants whose releases it has secured, to ensure that they return to court as required. (Id. ¶¶ 4, 8.)
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In order to fund its efforts, NCBF relies on what its current manager, Rahim Buford, refers to as “a revolving fund of donated money.” (Id. ¶ 4.) NCBF posts bond for a pretrial detainee and, when the detainee’s case is completed, NCBF accepts the refund of its surety, which it puts back into its budget for posting bond for another pretrial detainee. Accordingly, a single donation of $1,000, for example, can be used over and over again to secure pretrial release for a series of defendants with $1,000 bail amounts. (Id.) Since its founding, NCBF has posted bail in over 1,000 cases, representing a total of over $2.3 million in bail. That $2.3 million, however, consists of a much smaller number of individual dollars, cycled through NCBF’s system repeatedly. (Id. ¶ 10.)
In order for NCBF’s revolving fiscal model to be sustainable, NCBF must be able to obtain a refund of at least a substantial portion of the money it uses to post bail. Tennessee, however, has a statute—Tenn. Code Ann. § 40-11-121—requiring that, in cases where bond was paid “by defendant, the deposit shall be applied to the payment of” any fines or court costs. NCBF maintains that that provision does not apply to its deposits, because it posts bail as a thirdparty surety. Nevertheless, the Criminal Court’s local rules include a provision—Rule 10(B) of the Local Rules of Practice for Bail Bonds—stating that “[a]ny individual who desires to deposit a cash bond with the Clerk pursuant to [Tenn. Code Ann.] § 40-11-118 shall be notified in writing by the Clerk that such cash deposit shall be returned subject to any fines, court costs, or restitution as ordered by the Court.” (Docket No. 4-2 at 10 (emphasis added).) Rule 10(B), as interpreted and applied by the Clerk’s Office, extends the garnishment policy to bail set by third parties, including NCBF, which poses an obstacle to NCBF’s revolving fiscal model. 3
3 Technically, on its face, Rule 10(B) does not actually require garnishment, but merely notice that garnishment will occur. The Clerk’s Office, however, has interpreted the Rule as stating the garnishment policy of the Criminal Court and requires individuals posting bond to agree to garnishment consistently with the Rule. See Docket No. 4-3 (acknowledgment form for Rule 10(B) policy).)
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2. NCBF’s Exemption from Garnishment. According to Buford, the Twentieth Judicial District, in recognition of this problem, granted NCBF what he characterizes as “an exemption to [Rule 10(B)],” not requiring that the amounts posted by NCBF to be applied to fines, costs, taxes, or restitution. (Docket No. 4-1 ¶ 19.) This exemption was apparently formalized in an en banc Order of the Criminal Court in April of 2016. (See Docket No. 4-4 at 1.)
On May 6, 2019, however, the Criminal Court released a second en banc Order, rescinding the exemption. (Id.) The court characterized the prior Order as having “effectively exempted the NCBF from the statutory requirement under Tennessee Code Annotated § 40-11121 and from the requirement in the Court’s local rules that a cash bond deposited with the Clerk pursuant to Tennessee Code Annotated § 40- 11-118 shall be returned subject to any fines, court costs, or restitution ordered by the Court.” (Id. at 1.) However, the court wrote, “several issues ha[d] arisen since entry of the April 6, 2016, order that ha[d] caused the Court to reconsider the NCBF’s exemption.” (Id.) First, the court noted, two judges of the court had retired and their positions had been filled by two new Criminal Court judges who had not taken part in the consideration of the initial Order. Second, the court wrote that it had “been made aware by the Davidson County Criminal Court Clerk’s Office that as of April 18, 2019, there are $ 104,200 in conditional forfeits on bonds posted by the NCBF.” (Id. at 1–2.) The court explained that “[t]his level of exposure” was “far beyond what the Court contemplated when the April 6, 2016, order was entered.” The court wrote that, “particularly in light of the amount of conditional forfeitures currently outstanding,” it was “concerned by the NCBF’s lack of sufficient and specific measures to ensure a defendant’s appearance in court.” (Id. at 2.)
Shortly after that Order was entered, the Criminal Court stayed the Order’s operation at NCBF’s request, to allow for motions challenging the end of the exemption. NCBF filed a
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petition to amend the May 2019 Order and reinstate the policy of the April 2016 Order. (Docket
Nos. 4-6 to -8.) The Criminal Court, sitting en banc, heard oral argument regarding the pending
change on July 18, 2019. (See Docket No. 4-5 at 1.) On August 29, 2019, the court entered an en
banc Order denying NCBF’s petition. (Id.) The court “reaffirm[ed]” its earlier rationale for
ending the exemption. (Id. at 2.) It added, however:
[T]he Court notes that in no way does it intend for this Order to force the NCBF to shut down. As the Court stated at the hearing on July 18, 2019, this Court agrees with the NCBF’s contention that the work in which they are engaged is a noble service to the community. The Court continually strives to ensure that the administration of the criminal justice system is fair and equitable for all parties, and is willing to work with the NCBF or any other organization to that end. However, while the Court hopes that the NCBF continues its work, for the aforementioned reasons, the Court is of the opinion that cash bonds posted by the NCBF should not automatically be exempted from being used to satisfy the fines, costs, or restitution that other parties posting cash bonds are generally required to satisfy. Of course, a defendant on a bond made by the NCBF, just like any other defendant, may still petition the appropriate court for waiver of any costs or fines based upon the defendant’s indigency upon entry of any judgment against them. Bond funds paid by the NCBF would still be refunded if all costs, fines, and fees were waived by that court.
(Id. at 2–3.)
Bail amounts are paid through the Clerk of the Criminal Court—that is, through the
office that defendant Gentry oversees and represents. According to Buford, the office will no
longer accept NCBF’s payments unless the NCBF representative making the payment signs the
office’s notification form acknowledging that the bail amounts will be applied to fines, fees,
costs, taxes, or restitution. (Docket No. 4-1 ¶ 22.) Officials from Gentry’s office have informed
NCBF that the garnishments are applied automatically by the clerk’s office, with no hearing
devoted to the garnishments. Rather, when NCBF or another bail depositor seeks a refund of its
surety at the end of the defendant’s case, the clerk provides only the amount that exists after
deducting fines, fees, costs, taxes, and restitution. (Id. ¶¶ 24–27.)
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Buford states that, now that NCBF has lost its exemption from garnishment, it “stands to rapidly lose its revolving fund.” (Id. ¶ 28.) It has reduced its operations and instituted new caps both on the amount it will post in any particular case and the total amount it will post in any given month. (Id. ¶¶ 29–30.) He estimates that NCBF has rejected at least thirty requests from defendants for bail that it otherwise would have approved if the Criminal Court had continued its policies unchanged. (Id. ¶ 31.) He estimates that NCBF is likely to lose “half of all its deposits subject to garnishment” going forward. (Id. ¶ 34.) D. This Litigation
On February 5, 2020, NCBF filed a Complaint for Injunctive and Declaratory Relief, in which it named, as the sole defendant, “Hon. Howard Gentry, Criminal Court Clerk, in his official capacity.” (Docket No. 1 at 1.) NCBF pleaded three causes of action under 42 U.S.C. § 1983: first, for violation of the Eighth Amendment right against excessive bail; second, for violation of the Fourteenth Amendment, based on the imposition of unconstitutional conditions; and, third, for violation of the Fourteenth Amendment right to due process. (Id. ¶¶ 62–78.) On the same day, NCBF filed a Motion for Preliminary Injunction, asking the court to enjoin Gentry “from (1) enforcing Davidson County Local Rule Governing Bail Bonds 10(B) as well as (2) enforcing his office’s policy of conditioning the acceptance of cash bonds on receipt of a signed form acknowledging future payment of criminal debts from that cash bond (collectively “the garnishment policies”).” (Docket No. 3 at 1.)
Pursuant to Fed. R. Civ. P. 4(b), NCBF requested, and the court issued, a summons directed to Hon. Howard Gentry at 408 2nd Avenue in Metro Nashville on February 6, 2020. (Docket No. 9.) The same day, NCBF returned a completed proof of service. (Docket No. 10.) The proof of service described the method of service as follows: “I served the summons on
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Cynthia Gross, attorney for Metro-Nashville Government Department of Law, who agreed to accept service on behalf of Howard Gentry.” (Id. at 1.) It was signed and dated by Lauren Davis, who identified herself as the Legal Program Coordinator of ACLU-TN. (Id.)
NCBF has filed a Declaration by one of its attorneys, C. Dawn Deaner, stating that she spoke with Gross by telephone on February 3, 2020, and informed her that NCBF would be suing Gentry in his official capacity as Clerk of the Criminal Court. Deaner asked Gross if Gross could accept service on Gentry’s behalf, and Gross responded that she would have to get back to Deaner on that matter. Deaner and Gross spoke again later that day, at which time Gross, according to Deaner, “informed me that either she or someone else with her office had spoken directly with Mr. Gentry, and he had agreed to her Office accepting service of this lawsuit on his behalf. As a result, Ms. Gross informed me that her Office would accept service of the lawsuit on behalf of Mr. Gentry.” (Docket No. 21 ¶¶ 3–4.) Finally, Deaner states that, to avoid any further delay, NCBF served Gentry personally on March 12, 2020. (Id. ¶ 8; see Docket No. 21-1.)
On February 20, 2020, Gentry filed a Response opposing the Motion for Preliminary Injunction. (Docket No. 15.) The Response was filed and signed by Allison L. Bussell of the Department of Law of the Metropolitan Government of Nashville and Davidson County (“Metro Legal”), and also listed Metro Director of Law Robert E. Cooper, Jr., and Metro Legal attorney John W. Ayers as representing Gentry. (Id. at 4.) Gentry, through Metro Legal, stated that he was “enter[ing] this appearance exclusively in his capacity as an elected official for the Metropolitan Government of Nashville and Davidson County.” (Id. at 1.) He argues that, as relevant to this case, he was, at all times, “acting as an agent of the State of Tennessee,” not Metro. Accordingly, he argues, he, in his ostensible Metro-related capacity, “has no interest in whether the state
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policy at issue is enforced or enjoined.” Citing that lack of an interest, Gentry states that he “takes no position on Plaintiff’s motion for preliminary injunction.” (Id. at 1.)
On February 24, 2020, NCBF filed a Reply. (Docket No. 26.) In its Reply, NCBF argues that its suit is permissible regardless of whether Gentry was acting, at the relevant times, as an agent of the State of Tennessee or in a more local capacity. NCBF argues that, as the government official in charge of administering the challenged program, Gentry, in his official capacity, is an appropriate defendant—with the state/local distinction relevant only to whether NCBF must rely on Ex parte Young, 209 U.S. 123 (1908), to obtain relief regardless of state sovereign immunity. (Id. at 2.)
On February 27, 2020, Gentry filed a Motion to Dismiss, asking the court to dismiss NCBF’s claims, “insofar as the Court construes the claims as proceeding against Mr. Gentry in his capacity as a Metropolitan Government official.” (Docket No. 17 at 1.) In support of the motion, Gentry reiterates his argument that he enforces Rule 10(B) “on behalf of the State of Tennessee” and contends that, “if this case is proceeding against Mr. Gentry in his official capacity as a state agent, Plaintiff must serve the Attorney General, which [it has] not done.” (Docket No. 18 at 7–8.) NCBF filed a Response, reiterating its position that Gentry is an appropriate defendant and pointing out that Gentry cited no authority for his proposition that NCBF must serve the Tennessee Attorney General. (Docket No. 19.) On March 10, 2020, Gentry filed a Reply, arguing that “[t]he local- or state-capacity distinction is relevant to service of process because Mr. Gentry was served only via the Metropolitan Department of Law, which has no authority to accept service of process for state officials.” (Docket No. 20 at 1 (citing Tenn. R. Civ. P. 4.04(1).)
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II. LEGAL STANDARD A. Motion for Preliminary Injunction
“Four factors determine when a court should grant a preliminary injunction: (1) whether the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.” D.T. v. Sumner Cty. Sch., 942 F.3d 324 (6th Cir. 2019) (citing Benisek v. Lamone, 138 S. Ct. 1942, 1943–44 (2018); Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2948 (3d ed. & Supp. 2019)). The district court must “weigh the strength of the four factors against one another,” with the qualification that irreparable harm is an “indispensable” requirement, without which there is “no need to grant relief now as opposed to at the end of the lawsuit.” Id. (citing Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). “Although no one factor is [otherwise] controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat'l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000) (citing Mich. State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997)). B. Rule 12(b)(6) Motion to Dismiss
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims,” not
15

whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556.
II. ANALYSIS The parties’ briefing raises four closely related, but distinct, issues: (1) whether the Tennessee Attorney General should have been given notice of this suit; (2) whether Gentry was served under the correct method in light of the nature of his office; (3) whether Gentry is an appropriate defendant in this case, rather than some other, presumably state-level official; and (4) whether NCBF has established that it is entitled to a preliminary injunction. The court will turn to each of these issues in order. A. Notice to the State of Tennessee Rule 5.1(a) of the Federal Rules of Civil Procedure requires that “[a] party that files a pleading, written motion, or other paper drawing into question the constitutionality of a . . . state statute must promptly . . . file a notice of constitutional question stating the question” with the state’s attorney general, unless the parties to the case already “include the state, one of its agencies, or one of its officers or employees in an official capacity.” The court has its own
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obligation to inform the State of Tennessee when the constitutionality of one of its statutes is in question, pursuant to Rule 5.1(b) and 28 U.S.C. § 2403(b), if none of the parties is an “agency, officer, or employee” of the state. Rule 5.1 requires only prompt, not immediate, notice, and there is no indication in the rule that failing to provide the required notice immediately after a party raises a constitutional issue is fatal to a claim. However, “[i]n cases in which neither the parties nor the district court notifies the appropriate official of the constitutional challenge, any orders of the court must be stayed or vacated until the United States Attorney General or state attorney general has had an opportunity to intervene.” Wright & Miller, 4B Fed. Prac. & Proc. Civ. § 1154 (4th ed.) (citing Oklahoma ex rel Edmondson v. Pope, 516 F.3d 1214 (10th Cir. 2008); Bd. of Regents of Univ. of Wis. Sys. v. Phoenix Software Int’l., Inc.,No. 07-cv-665-bbc 2008 WL 3842920 (W.D. Wis. Aug. 18, 2008)).
NCBF argues, first, that Rule 5.1(a) should not apply here because Gentry is, by his own admission, an agent of the state of Tennessee, meaning that an “officer[] or employee[]” of the state is already a party to the suit.4 NCBF is correct that Gentry has characterized himself as an “agent” of the state for some purposes, but, even if that is so, it does not necessarily follow that he is an “officer” or “employee.” Moreover, the purpose of Rule 5.1 and 28 U.S.C. § 2403(b) is to protect the interests of the state, regardless of the interests of the individual litigants; it would be contrary to that purpose to allow a litigant to effectively waive the state’s right to notice through his admissions. The court, therefore, must determine whether Gentry is an officer or employee of the State of Tennessee.
In his briefing, Gentry characterizes his roles as divisible between two capacities: that of “an elected official for the Metropolitan Government of Nashville and Davidson County”; or, in 4 NCBF also disputes that it is “drawing into question” the constitutionality of any Tennessee statute. Because the court will conclude that no further notice would be required regardless, it will not address that issue.
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the alternative, that of “an agent of the State of Tennessee.” (Docket No. 18 at 1.) Neither characterization, however, fully captures the nature of his authority. As a Clerk of Court, his power derives from the Criminal Court of the Twentieth Judicial District the “clerical functions” that are delegated to his office by statute. Tenn. Code Ann. § 18-1-101. The court, in turn, is a distinct entity created by Tennessee statute and “vested” with the judicial authority of the state. Tenn. Code Ann. § 16-1-101. Most directly, then, Gentry is an employee of the Office of the Clerk of the Criminal Court of the Twentieth Judicial District (“Clerk’s Office”). The Twentieth Judicial District may be the same size as Metro, but Tennessee statutes do not treat them as interchangeable. The courts of that district are separately created entities exercising the state’s judicial power pursuant to a direct delegation from the state, not through Metro.
On the other hand, however, the court cannot assume, merely because the courts of the Twentieth Judicial District were created by the state and exercise authority granted by the state, that those courts are synonymous with the state for Rule 5.1 purposes. After all, every type of local government—whether a judicial district, school district, utility district, municipality, county, hospital authority, or something else—“is but an emanation from the state.” Maury Cty. ex rel. Maury Reg’l Hosp. v. Tenn. State Bd. of Equalization, 117 S.W.3d 779, 787 (Tenn. Ct. App. 2003) (quoting State ex rel. Bell v. Cummings, 172 S.W. 290, 290 (Tenn. 1914)); see also S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001) (observing that local governments “derive the whole of their authority solely from the General Assembly”) (quoting Mayor & City Council v. Linck, 80 Tenn. (12 Lea) 499 (1883)). That Gentry’s power comes from the state only puts him in the same boat as every other arguably local official.
Fortunately, there is established caselaw for assessing whether a state-created body is an extension of the state or, instead, an entity that, although it was created by the state, is distinct in
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the eyes of the law. The issue most often comes up in the context of sovereign immunity, pursuant to which “arms of the state” are entitled to immunity, while “political subdivisions” are not. See Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (en banc). That inquiry calls on the court to engage in a multi-factor balancing test, considering “(1) the State’s potential liability for a judgment against the entity; (2) the language by which state statutes and state courts refer to the entity and the degree of state control and veto power over the entity’s actions; (3) whether state or local officials appoint the board members of the entity; and (4) whether the entity’s functions fall within the traditional purview of state or local government.” Id. at 359 (citing Hess v. Port Auth. Trans–Hudson Corp., 513 U.S. 30, 44–45 & 51 (1994)); see also Ermold v. Davis, 936 F.3d 429, 433 (6th Cir. 2019); Lowe v. Hamilton Cty. Dep’t of Job & Family Servs., 610 F.3d 321, 326 (6th Cir. 2010); Barachkov v. 41B Dist. Court, 311 F. App’x 863, 867 (6th Cir. 2009); Perry v. Se. Boll Weevil Eradication Found., 154 F. App’x 467, 473 (6th Cir. 2005).
Applying that multi-factor test, the Sixth Circuit has already held, in a published decision, that a Michigan state court is an arm of the state, not a political subdivision. See Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 764 (6th Cir. 2010). In support of that ruling, the Sixth Circuit cited Michigan’s “unified state judicial system . . . under the control and administration of the Michigan Supreme Court” and the “considerable state control over judicial officers’ appointments” and removal. Id. at 762–63. Although the courts of Tennessee and Michigan are not identical, a similar analysis can be applied here. The Tennessee Supreme Court, like the Michigan Supreme Court, has emphasized its inherent power to oversee the courts of the state, see State v. Mallard, 40 S.W.3d 473, 480 (Tenn. 2001), and its “general supervisory control over all the inferior courts of the state” is enshrined in statute.5 Tenn. Code Ann. § 16-3-501. Criminal
5 For example, the Tennessee Supreme Court, relying on its “constitutional, statutory, and inherent authority,” recently entered an Order suspending most “in-person proceedings in all state and local courts
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court vacancies are filled by a state-level, not a local, process. See Tenn. Code Ann. §§ 17-1301(b), -4-301. The Tennessee General Assembly, moreover, has the power to remove judges. Tenn. Const. art. V, § 4; Tenn. Const. art. VI, § 6.
Admittedly, the fact that a Tennessee judicial district has a limited geographic jurisdiction makes it look, from at least one angle, more like a local government than a state agency. Indeed, a different area of Tennessee law defines “political subdivision” to mean “any city, town, municipality, county, including any county having a metropolitan form of government, or other legally authorized local governmental entity with jurisdictional boundaries.” Tenn. Code Ann. § 4-18-102(4), cited in Smith Cty. Reg’l Planning Comm’n v. Hiwassee Vill. Mobile Home Park, LLC, 304 S.W.3d 302, 311 (Tenn. 2010). The Twentieth Judicial District certainly has jurisdictional boundaries like a local government. The same argument, however, could have prevailed regarding the Michigan court in Pucci, but it did not.
The court also notes that at least some aspects of Gentry’s duties—namely those involving General Sessions courts, which are operated at the county level—are more closely related to a political subdivision than the powers at issue in Pucci. A conclusion that some of Gentry’s duties involve a political subdivision, however, would not preclude a holding that he is, in his capacity as Clerk of the Criminal Court, a state officer or employee. The relevant exceptions to the notification obligations of the court and the plaintiff focus only on whether Gentry is a state employee, not on whether he is only a state employee.
Because Pucci was not explicitly about Rule 5.1 or 28 U.S.C. § 2403(b), it is not technically determinative of this case. The issues, however, are so closely related that this court finds the reasoning of Pucci to be inescapable. The most plausible and consistent reading of Rule
in Tennessee.” In re Covid-19 Pandemic, Order No. ADM2020-00428 (Tenn. Mar. 13, 2020), available at http://www.tncourts.gov/sites/default/files/docs/covid-19_order.pdf.
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5.1 and 28 U.S.C. § 2403(b) is that they define the boundaries of the State of Tennessee in essentially the same manner as the U.S. Constitution. The court, accordingly, determines that the Criminal Court—and, by extension, the Clerk’s Office—is an arm of the State of Tennessee, and Gentry is its officer or employee. NCBF was not, therefore, required to grant additional notice to the state. B. Adequacy of Service
In his partial Motion to Dismiss, Gentry argues that service to the Clerk’s Office was ineffective because it was not performed through the state’s Attorney General. NCBF responds that Metro Legal affirmatively accepted service on Gentry’s behalf and indeed does not appear to dispute that it was authorized to do so in at least a limited manner. It argues that Gentry’s distinction between his state and local duties is not relevant to the issue of service.
Because Gentry is sued in his official capacity, the suit is “equivalent of a suit against the governmental entity” he represents—that is, the Clerk’s Office. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). As the court has already held in this opinion, that office is an arm of the state of Tennessee for the purposes of the Federal Rules of Civil Procedure. Pursuant to Rule 4(j)(2), “[a] state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant.”
Tennessee law requires service on the State of Tennessee or any “agency thereof” to be performed “by delivering a copy of the summons and of the complaint to the attorney general of the state or to any assistant attorney general.” Tenn. R. Civ. P. 4.04(6). It is undisputed that that was not done here. NCBF, therefore, did not effect service in the method prescribed by the State
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of Tennessee and cannot rely on Rule 4(j)(2)(B). Rule 4(j)(2)(A), however, also permits NCBF to serve the summons on the defendant agency’s “chief executive officer.” See Wright & Miller, 4B Fed. Prac. & Proc. Civ. § 1109 (4th ed.) (“Rule 4(j)(2)(A) permits service to be made by delivering a copy of the summons and the complaint to the ‘chief executive officer’ of the governmental unit.”). It appears to be beyond dispute that Gentry is the chief executive officer of the Clerk’s Office. Nor does Gentry appear to dispute that Metro Legal was authorized to accept service on his behalf, in his capacity as Clerk, for at least some purposes. He argues only that Metro Legal is not empowered to represent him insofar as he is sued as an “agent of the state,” which he takes to mean that service also could not be made through Metro Legal. But he points to no rule that service can only be accepted by a representative of the entity that will ultimately represent him in the underlying litigation. Indeed, service in a lawsuit is frequently performed before the defendant has an attorney at all. The issues of service and representation are simply distinct concepts, and Gentry has cited no authority for the linkage that he imputes to them here. Service through Metro Legal was therefore appropriate if it falls within the boundaries of Rule 4(j)(2)(A)’s requirement that the summons and Complaint be “delivered” to Gentry, regardless of who is empowered to represent the Clerk’s Office in its defense.6
Rule 4(j)(2)(A) is not entirely clear with regard to how service on a chief executive of a governmental entity must be accomplished, but it does not expressly require “personal” service, requiring only that the summons and complaint be “delivered” to the officer. Other provisions of Rule 4, in contrast, specifically refer to “delivering a copy . . . personally,” see Fed. R. Civ. P 4(e)(2)(A), (f)(2)(C)(1), which would seem to leave open the possibility of a form of delivery involving at least some intermediary beyond what is required for personal service directly on the 6 It appears that direct personal service has, in fact, now been completed on Gentry. However, because that service was only completed on March 12, 2020, the court must consider the adequacy of the earlier service in order to determine whether it can rule on the Motion for Preliminary Injunction at this time.
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chief executive officer. On the other hand, however, courts have generally held that “delivery,” as a “term of art,” requires more than service by mail. Gleeson v. McDonald, No. 3:08-CV-126, 2009 WL 1684447, at *4 (D.N.D. June 15, 2009), aff’d, 377 F. App’x 577 (8th Cir. 2010); see Lee v. Caruso, No. 1:07-CV-139, 2009 WL 4042744, at *2 (W.D. Mich. Nov. 20, 2009) (stating, without analysis, that Rule 4(j)(2)(A) requires the plaintiff to “personally effect service” on the chief executive officer); 1 Moore’s Federal Practice - Civil § 4.58[1] (“The summons and complaint must be personally delivered.”); Wright & Miller, 4B Fed. Prac. & Proc. Civ. § 1109 (4th ed.) (“Once the [chief executive] officer’s identity is determined, the word ‘delivering’ in Rule 4(j) indicates that personal service should be made upon that particular individual.”). NCBF, therefore, could not have satisfied Rule(j)(2)(A) solely by relying on the mail. NCBF, however, did not rely on the mail, instead serving the summons, in person, on Cynthia Gross, who represented that she had express authority to accept on behalf of Gentry in his official capacity.
At least some courts have held that service is sufficient under Rule 4(j)(2)(A) if all of the elements of personal service are accomplished other than the fact that the personal service was made on a subordinate of the chief executive officer, who then completed the final step of passing the summons and complaint along. See Neil v. Randolph, Case No. 09-6242, 2010 WL 1727809, at *3 (E.D. La. Mar. 17, 2010), report and recommendation adopted, 2010 WL 1727806 (E.D. La. Apr. 28, 2010); S.J. ex rel. S.H.J. v. Issaquah Sch. Dist., No. C04-1926RSL, 2007 WL 764916, at *1 (W.D. Wash. Mar. 8, 2007). Requiring personal service—but allowing the service to be made, in the first instance, on an appropriate subordinate official—makes sense in light of the practical difficulties (and security risks) related to gaining physical access to highranking government officials. It is, moreover, consistent with the omission of the word
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“personally” from Rule 4(j)(2)(A), while still avoiding frowned-upon methods such as service by mail.
The court is guided by the reminder that “Rule 4 is a flexible rule which principally requires sufficient notice to the party of claims brought against it . . . .” Gottfried v. Frankel, 818 F.2d 485, 493 (6th Cir. 1987) (citing United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984)); see also Dixie Rests., Inc. v. Philips Consumer Elecs. Co., No. 02-2461 D/A, 2005 WL 948802, at *1 (W.D. Tenn. Feb. 18, 2005) (“Courts construe provisions of Rule 4 liberally in order to uphold service, requiring only ‘substantial compliance.’”) (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982)). This court, accordingly, will join those courts that have held that adequate service through Rule 4(j)(2)(A) may be accomplished if the plaintiff serves an official who acts as an agent of the chief executive officer and represents that she is an appropriate recipient of service on behalf of the chief executive officer.
Although Cynthia Gross was not one of Gentry’s immediate employees when she accepted service on his behalf, she was still acting as an agent of the Clerk’s Office and represented that she could accept service on behalf of that office. Indeed, even now, Metro Legal does not appear to dispute that it was, in fact, authorized to—and did—accept service on behalf of Gentry in his official capacity. Instead, it merely seeks to slice and dice that official capacity into state and local components.
Gentry is correct that the same person may require service in multiple different ways based on his different capacities, and service in one such way is not necessarily sufficient for another. Specifically, the Sixth Circuit has held that, when an individual is sued in both his individual and his official capacity, the plaintiff must properly effect service in both capacities.
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See King v. Taylor, 694 F.3d 650, 657 (6th Cir. 2012). That rule, however, is merely a natural extension of Rule 4(b)’s requirement that service be made on each named defendant, combined with the principle that an official capacity suit is not actually a suit against the person, but his agency. Accordingly, the individual and the office are separate people for the purposes of Rule 4 and must be served accordingly. Gentry, however, was only sued in one capacity, his official capacity—that is, as the Clerk of the Criminal Court. He has identified no authority for subdividing that identity yet again into two separate persons. There was only one entity for which service was required: the Clerk’s Office. That office was served and does not need to be served again.
Finally, the court notes that, even if it had not construed Rule 4(j)(2)(A) in the manner that it has, the undisputed evidence suggests that Gentry waived any objection to adequacy of service through Gross and Metro Legal. There is no evidence disputing that Gentry did, in fact, authorize Gross to accept service on his behalf or that Gross communicated that assent to counsel for NCBF. The right to receive service in a particular manner is a defendant’s to assert, but it is also his to waive. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 351 (1999) (“Unless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights.”) (emphasis added). NCBF, in this case, cooperated with Gentry on the issue of service and complied with the method he agreed to accept. The court will not dismiss or delay the case because he changed his mind. C. Appropriateness of Gentry as a Defendant
Gentry argues next that the court should dismiss the claims against him, at least in part— as well as refrain from granting a preliminary injunction—because he is merely applying a state
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policy that he is required to apply, namely, Tenn. Code Ann. § 40-11-121. NCBF disputes that Gentry is merely applying Tenn. Code Ann. § 40-11-121, noting that statute’s alleged limitation that it applies only to bail posted directly by defendants themselves. Even if Gentry is merely applying a statute, however, that would be no reason to dismiss NCBF’s claims or deny it preliminary relief. Quite to the contrary, it is well established, under Ex parte Young, that the appropriate way to obtain injunctive relief against an unconstitutional statute is by filing suit against an official or officials charged with enforcing the challenged law. 209 U.S. at 156 (holding that injunctive relief is available against officials “clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act”). As the Sixth Circuit has observed, that is why, for example, a plaintiff challenging a state marriage statute may do so by suing the clerk who issues marriage licenses. See Durham v. Martin, 905 F.3d 432, 434 (6th Cir. 2018) (discussing Kitchen v. Herbert, 755 F.3d 1193, 1201 (10th Cir. 2014)). It does not matter that the defendant official believes himself to be merely following the letter of a statute; the premise of a § 1983 case such as this one is that, by acting according to one statute, rule, or policy that is not constitutional in origin, the defendant official has violated the U.S. Constitution, which takes precedence in the event that the two types of law conflict. See McNeil v. Cmty. Prob. Servs., LLC, 945 F.3d 991, 996 (6th Cir. 2019) (holding that sheriff who enforced probation requirements was appropriate Ex parte Young defendant in suit challenging requirements).
Gentry’s attempt to recast the same argument as about whether NCBF has challenged a “policy or custom” of his office is similarly misguided. Gentry is correct that, in order to establish that a governmental entity is liable for relief under § 1983, a plaintiff must demonstrate
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one of the following: “(1) the existence of an illegal official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of a custom or tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). By Gentry’s own account, however, his office does have a policy of deducting fine, cost, tax, and restitution amounts from bail refunds. The fact that that policy is based on Gentry’s understanding of his duties under a state statute does not make the policy cease to exist. Gentry’s argument that he is only enforcing a state law is, simply put, not a defense in any way to his being named as a defendant in this case. D. Motion to Dismiss
The preceding discussion is dispositive of Gentry’s Motion to Dismiss. Gentry does not ask the court to dismiss the claims against him, in his official capacity, altogether, but only to dismiss them “insofar as the Court construes the claims as proceeding against Mr. Gentry in his capacity as a Metropolitan Government official.” (Docket No. 17 at 1.) Gentry, though, has only been sued in one capacity—his capacity as the Clerk of the Criminal Court of the Twentieth Judicial District. In that capacity, he is plainly an appropriate defendant. Gentry is correct that, other than the fact that Metro operates the underlying General Sessions Court, Metro government’s involvement in these matters appears to be limited, which, the court gathers, may have implications regarding whether Metro Legal will continue to represent him. The issue of Gentry’s representation, however, is for Gentry to resolve, not the court, and it certainly does not call for any partial dismissal of the appropriately filed and pleaded claims against him and his office. The motion to dismiss will be denied.
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E. Motion for Preliminary Injunction
1. Likelihood of Success on the Merits. The court finds itself in the unfortunate position
of ruling on NCBF’s motion for preliminary injunction with scant, if any, discussion by Gentry
of NCBF’s likelihood of success on the merits in its lawsuit against him. When NCBF filed its
Motion, it gave rise to an obligation, on Gentry’s behalf, to file a Response if he opposed the
motion. L.R. 7.01(a)(3). Attorneys for Gentry—namely, those from Metro Legal—did file a
Response, but it was focused on a narrow range of issues involving, in particular, Gentry’s
supposed dual roles as a state and local official. The reason for this limited briefing, as far as the
court can tell, is that, as Gentry informs the court, Metro Legal “has no authority to appear on behalf of a defendant acting as an official of the State of Tennessee.”7 (Docket No. 15 at 3 n.1.)
7 The Metro Charter defines Metro Legal’s functions as follows:
(a) Supervise, direct and control all of the law work of the metropolitan government, except with respect to the electric power board, which, having its own general counsel, is excepted from the provisions of this chapter.
(b) Furnish legal advice to the mayor, to the council and to all officers, departments, boards and commissions concerning any matters arising in connection with the exercise of their official powers or performance of their official duties.
(c) Represent the metropolitan government in all litigation. (d) Collect by suit or otherwise all debts, taxes and accounts due the metropolitan
government which shall be placed with it for collection by any officer, department, board or commission. (e) Prepare or approve all contracts, bonds, deeds, leases or other instruments in writing in which the metropolitan government is concerned. (f) Prepare or assist in preparing for introduction any proposed ordinance upon request of the mayor or any member of the council. (g) Codify and cause to be published in convenient book form once in every five (5) years . . . . (h) Perform such other duties as may be assigned to it by ordinance. Charter of the Metro. Gov’t of Nashville & Davidson Cty. § 8.601.
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If, however, Metro Legal is not responding on behalf of Gentry as a state official, then
Gentry should have come to the court with other lawyers who can. Instead, it seems that no one
is representing the state in this matter so far, and the Clerk’s Office, as an arm of the State, has
effectively failed to respond to NCBF’s motion at all. The court can guess that that failure is
because Gentry-the-state-official was hoping to rest on the argument that only Gentry-the-local-
official had been served. Of course, Gentry could have come to the court with lawyers
empowered to represent him in his state capacity and entered a special appearance disputing the adequacy of service, but he did not.8 The court, moreover, has rejected the argument that service
on Gentry in his official capacity was somehow partial or inadequate. The Motion for
Preliminary Injunction is ripe, and there has been no meaningful opposition to it on all but the
most limited grounds.
Based on the record currently available, the court concludes that NCBF has established at
least a sufficient likelihood of success to support the granting of a preliminary injunction, if the
other factors, on balance, support doing so. NCBF bases its Eighth Amendment challenge on the
principle, endorsed by the Supreme Court in Cohen v. United States, 82 S. Ct. 526 (1962) (Douglas, J., in chambers9), that bail that is conditioned on the payment of a fine is “‘excessive’
in the sense of the Eighth Amendment because it would be used to serve a purpose for which bail
was not intended.” (Id. at 529.) Admittedly, Cohen appears to have had a fairly limited effect on
8 The court strongly doubts that attorneys for the State of Tennessee are unaware of this case, but, if they are, the Clerk’s Office is certainly free to inform them or, if the state’s lawyers are unable to provide representation, to obtain counsel elsewhere. The court notes, from its experience, that it is not uncommon for government entities to employ private counsel for specific litigation. 9 An “in chambers” opinion is an opinion written and issued by a single judge of a multi-judge court, pursuant to a court rule allowing a lone judge to address certain secondary matters without obtaining concurrence from the full court or a panel thereof. See Daniel M. Gonen, Judging in Chambers: The Powers of A Single Justice of the Supreme Court, 76 U. Cin. L. Rev. 1159, 1173 (2008). In Cohen, Justice Douglas was addressing the issue of the bond amount set for a defendant pending appeal, which he was permitted to do without seeking concurrence of the other members of the Court. 82 S. Ct. at 527.
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the Supreme Court’s ongoing jurisprudence, and its posture—involving bail pending appeal— was somewhat different from what NCBF’s clients face. But see United States v. Rose, 791 F.2d 1477, 1480 (11th Cir. 1986) (“We have no doubt that the addition of any condition to an appearance bond to the effect that it shall be retained by the clerk to pay any fine that may subsequently be levied against the defendant after the criminal trial is over is for a purpose other than that for which bail is required to be given under the Eighth Amendment. Such provision is therefore excessive and is in violation of the Constitution.”); United States v. Powell, 639 F.2d 224, 225 (5th Cir. 1981) (“[W]e [have] rejected the government’s argument that the fine should be paid out of bail money because the United States, as a creditor, has the same right as other creditors to apply a debtor’s money in its possession to extinguish debts due.”); cf. State ex rel. Baker v. Troutman, 553 N.E.2d 1053, 1056 (Ohio 1990) (adopting similar reasoning under the Ohio Constitution). The mere fact that Cohen has not given rise to much litigation at the Supreme Court level, however, does not mean that its principles can or should be disregarded, particularly given that pretrial release conditions are rarely the type of determination that makes it to the Supreme Court.
NCBF has also advanced a plausible argument that automatically requiring garnishment in every case is not sufficiently narrowly tailored as a policy to survive United States v. Salerno, 481 U.S. 739 (1987), which requires a heightened level of scrutiny for the review of pretrial release conditions. Money bail, in and of itself, can survive that heightened scrutiny, as long as it is tailored to the state’s compelling interest in ensuring that a defendant returns to court. Requiring a defendant to submit to post-conviction bail garnishment in order to secure his pretrial release, however, has no connection to the strong interest in ensuring his return. Rather, it serves only the significantly lesser interest of enabling the government’s future collections. See
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Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250, 263 (1974) (rejecting fiscal savings as a sufficient basis for justifying constitutionally suspect policy). NCBF argues that, by conditioning release on acceptance of a particular collection mechanism, Tennessee imposes conditions of release that are not justified by a sufficiently strong government purpose. While this argument is an extension of Salerno, the court finds, at this stage, that it is, at the very least, a coherent, rational, and persuasive one.
Although NCBF’s ultimate success in this case is not a certainty, a preliminary injunction requires, at most, that a plaintiff be “likely to succeed on the merits.” Fowler v. Benson, 924 F.3d 247, 256 (6th Cir. 2019) (emphasis added).10 NCBF has set forth persuasive constitutional grounds for concluding that the Clerk’s Office’s garnishment scheme fails constitutional muster in at least two ways, and the Clerk’s Office itself has offered no reason to disagree. The court, therefore, concludes that this factor favors a granting of the preliminary injunction.
2. Irreparable Injury to NCBF and the Population it Serves. NCBF argues that it is likely, if not certain, to suffer irreparable injury if a preliminary injunction is not granted, because the Clerk’s Office’s garnishments threaten the viability of NCBF’s funding model and its ability to pursue its charitable mission. Although the Criminal Court, in its final en banc Order, offered some assurances that NCBF might be able to mitigate its damages by seeking waivers of some fines, costs, taxes, and restitution, the evidence before the court shows that this avenue, so far, has not significantly relieved the threat to NCBF’s fiscal sustainability. Admittedly, courts have held that “[m]onetary or economic harm by itself” typically “does not constitute irreparable harm.” Ratcliff v. Moore, 614 F. Supp. 2d 880, 898 (S.D. Ohio 2009)
10 “The courts use a bewildering variety of formulations of the need for showing some likelihood of success—the most common being that plaintiff must demonstrate a reasonable probability of success. But the verbal differences do not seem to reflect substantive disagreement. All courts agree that plaintiff must present a prima facie case but need not show a certainty of winning.” Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2948.3 (3d ed.) (citations omitted).
31

(citing State of Ohio ex rel. Celebrezze v. N.R.C., 812 F.2d 288, 290 (6th Cir. 1987)). The harm that NCBF has raised, however, is not merely a loss on a balance sheet; it is a threat to the entire model of the group’s operation. Every charitable organization needs resources, but, for NCBF, having a churn of money to disburse and draw back is the very essence of its operation.
The risk of irreparable harm to the defendants whom NCBF serves is all the more apparent. Not only do those defendants stand to potentially be deprived of their liberty, despite their eligibility for pretrial release in every way except their ability to amass enough funds, but they are likely, as the court has discussed, to face overall worse outcomes in their criminal cases, which could have negative effects on them in both the short and the long term. An inability to obtain pretrial release may lead to a plea, which may lead to serious collateral consequences, even years into the future.
Finally, the court notes that a finding of at least some irreparable harm is mandated any time a plaintiff’s constitutional rights are violated, because the violation of a person’s constitutional rights is, in and of itself, irreparable. Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). As the court has discussed, NCBF has not established with certainty that either its or anyone else’s rights have been violated or will be violated if the Clerk’s Office’s garnishments are allowed to continue. It has, however, established at least a substantial probability that that is the case. In light of both the concrete injuries and constitutional considerations at stake, the risk of harm to NCBF and the defendants it assists weighs strongly in favor of granting the preliminary injunction.
3. Harm to the Clerk’s Office/Public Interest. The third and fourth factors of the preliminary injunction analysis—harm to others and the public interest—“merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). With that in
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mind, the court finds that the risk of harm to the Clerk’s Office if a preliminary injunction is entered is minimal, while the public interest strongly favors granting the injunction. The most obvious likely harm to the Clerk’s Office is that it will no longer be able to rely on bail garnishment in order to collect fines, fees, costs, taxes and restitution. That does not, however, mean that all of those sums will necessarily go unpaid. Some defendants may pay what they owe, as required, directly from their own pockets. If they do not, moreover, the state has a number of options it can rely on to collect. See Tenn. Code Ann. § 40-24-105; Tenn. R. Civ. P. 69.05–.07; Tenn. Op. Att’y Gen. No. 06-135 (Aug. 21, 2006). Moreover, there is some evidence suggesting that NCBF’s continued operation of a robust caseload may have positive fiscal benefits in the form of relieving the costs of detention. (See Docket No. 4-8 at 50 (stating that, for FY2014, the average daily cost of housing a person in Metro jail was $103.40).) Most importantly, there is no evidence that whatever net loss in revenue may occur without garnishment will put any undue strain on the state or the Criminal Court. To the contrary, the court operated without garnishment of bail posted by NCBF for over three years. Although it offered various reasons for discontinuing the practice, none suggested that the lack of garnishments was creating an immediate fiscal crisis for the Criminal Court or the state. Unlike NCBF—a small charitable organization highly vulnerable to fiscal shocks—the government is likely to be able to go about business as usual, regardless of how the court rules on NCBF’s motion.
The public interest in allowing NCBF to continue to pursue its mission, in contrast, is great. Indeed, even the Criminal Court judges who adopted the rule being challenged conceded as much in their final en banc Order. Moreover, as always, “the public interest is served by preventing the violation of constitutional rights.” Chabad of S. Ohio & Congregation Lubavitch
33

v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004). The court therefore concludes that these factors, as well, strongly favor a granting of the preliminary injunction.
4. Balancing of Factors. The court reiterates that it would have preferred to rule on this motion with more thorough briefing from Gentry and the Clerk’s Office.11 Nevertheless, NCBF has met its burden of establishing facts in support of its motion, and both the Rules of Procedure and the interests of justice support addressing that motion now. Because all of the factors governing the court’s consideration favor granting the preliminary injunction, some of them quite strongly, the motion will be granted.
The court, however, will limit the relief sought in one significant regard. NCBF asks the court to enjoin Gentry’s garnishment policies with regard to all defendants and third-party sureties, including those not party to this case. If, in fact, NCBF is able to ultimately demonstrate, conclusively, that the garnishment policy is unconstitutional, then a full cessation of the policy would no doubt be warranted. At this early stage, however, the evidence before the court about hardship and the public interest is overwhelmingly focused on NCBF itself. The court, accordingly, will limit its preliminary injunction to cases in which NCBF posted or will post bond.
V. CONCLUSION For the foregoing reasons, the NCBF’s Motion for Preliminary Injunction (Docket No. 3) will be granted in part and denied in part, and Gentry’s Motion to Dismiss (Docket No. 17) will be denied.
11 Indeed, the court fears that Gentry’s partial response may well presage his filing of a motion to reconsider once Gentry resolves his scope-of-representation issues and obtains counsel empowered to assert the interests of the state. The court will address any such motion when it comes but stresses, again, that it was Gentry’s decision to proceed in this manner, not NCBF’s or the court’s. NCBF briefed its motion fully on the merits, presumably on the assumption that those were the grounds on which the motion would be contested.
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An appropriate order will enter.

______________________________ ALETA A. TRAUGER United States District Judge

35

 
 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE NASHVILLE COMMUNITY

)

BAIL FUND,

)

)

Plaintiff,

)

)

v.

)

)

HON. HOWARD GENTRY, Criminal

)

Court Clerk, in his official capacity,

)

)

Defendant.

)

Case No. 3:20-cv-00103 Judge Aleta A. Trauger

MEMORANDUM

Howard Gentry, in his official capacity as Criminal Court Clerk for the Twentieth

Judicial District, has filed a Second Motion to Dismiss (Doc. No. 47), to which the Nashville

Community Bail Fund (“NCBF”) has filed a Response (Doc. No. 50), and the Clerk has filed a

Reply (Doc. No. 52). For the reasons set out herein, the motion will be denied.

I. BACKGROUND

A. Pretrial Release and Bail in Tennessee

1. Constitutional Requirements. The State of Tennessee, like the federal government

and the governments of its sister states, routinely jails individuals who have been charged with,

but not convicted of, crimes, pursuant to a common practice known as “pretrial detention.” As

the state’s Supreme Court has observed, the constitutional permissibility of pretrial detention, as

a general matter, is widely accepted, and the practice itself dates back to before this nation’s

founding, having been a feature of the pre-constitutional English courts from which early U.S.

courts borrowed many of their organizing principles. State v. Burgins, 464 S.W.3d 298, 303

(Tenn. 2015). Also dating back to these pre-constitutional courts and surviving into the

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American experience, however, is the admonition that the government’s right to pretrial detention is not absolute. Id.
For example, under the Eighth Amendment of the U.S. Constitution, the government can deny a defendant pretrial release based on his failure to pay bail—that is, a sum of money or a pledge of surety tied to his future return to court—but only if the bail amount is not “excessive,” meaning, in this context, “[b]ail set at a figure higher than an amount reasonably calculated to” provide “adequate assurance that he will stand trial and submit to sentence if found guilty.” Stack v. Boyle, 342 U.S. 1, 5 (1951). The U.S. Constitution also forbids a court from ordering continued pretrial detention unless certain adequate procedures are observed. See Schall v. Martin, 467 U.S. 253, 263 (1984).
Although the U.S. Constitution imposes certain procedural requirements and substantive limitations on the pretrial detention process, it does not mandate that every defendant have the opportunity to secure pretrial release. The Tennessee Constitution, in contrast, requires that “all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the presumption great.” Tenn. Const. art. 1, § 15. “This constitutional provision grants a defendant the right to pretrial release on bail pending adjudication of criminal charges.” Burgins, 464 S.W.3d at 304 (citing Swain v. State, 527 S.W.2d 119, 120 (Tenn. 1975)). Although this right may be forfeited by a defendant’s conduct, every non-capital defendant that enters the Tennessee criminal justice system at least begins with a right to establish some conditions pursuant to which he can obtain his freedom until he is, if ever, convicted.1 See id. at 306.
1 Tennessee’s pretrial detention statutes likewise provide that, “[w]hen [a] defendant has been arrested . . . for any bailable offense, the defendant is entitled to be admitted to bail by the committing magistrate, by any judge of the circuit or criminal court, or by the clerk of any circuit or criminal court . . . .” Tenn. Code Ann. § 40-11-105(a).
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2. Tennessee’s Statutory Bail Process. Although state and federal constitutions create certain boundaries for the exercise of pretrial detention powers, one must look to the relevant state’s statutes and rules to determine how the pretrial detention process will function in any given jurisdiction. Under Tennessee’s statutes, pretrial release determinations are intended to be a multi-step process, with each determination flowing from the previous determination, until the least restrictive necessary terms of release are finally set.
For the first step, the court must consider, based on a number of statutorily dictated factors, whether to release a bailable defendant on the defendant’s own recognizance or an unsecured bond. Tenn. Code Ann. § 40-11-115(b); Graham v. Gen. Sessions Court, 157 S.W.3d 790, 793 (Tenn. Ct. App. 2004) (“A defendant may be released pending trial upon the defendant’s own recognizance if the appearance of the defendant can be reasonably assured, in light of several factors set out in the statute. . . . If the defendant does not qualify for release upon recognizance, the magistrate may place conditions upon release . . . .” (citation omitted)). Specifically, the court is directed to consider the following:
(1) The defendant’s length of residence in the community; (2) The defendant’s employment status and history, and financial condition; (3) The defendant’s family ties and relationships; (4) The defendant’s reputation, character and mental condition; (5) The defendant’s prior criminal record, including prior releases on recognizance or bail; (6) The identity of responsible members of the community who will vouch for defendant’s reliability; (7) The nature of the offense and the apparent probability of conviction and the likely sentence, insofar as these factors are relevant to the risk of nonappearance; and
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(8) Any other factors indicating the defendant’s ties to the community or bearing on the risk of willful failure to appear. Tenn. Code Ann. § 40-11-115(b). If those factors support release on the defendants’ own recognizance or on an unsecured bond, the court may release him without further consideration. Id. If, however, the statutory factors do not support release on the defendant’s own recognizance or on an unsecured bond, the court moves on to the second step of the analysis. In this step, the court considers imposing conditions of release, including non-monetary conditions, that would help ensure the defendant’s appearance to stand trial. The court must “impose the least onerous conditions reasonably likely to assure the defendant’s appearance in court.” Tenn. Code Ann. § 40-11-116(a). The conditions that may be imposed include: (1) Releas[ing] the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court . . . ; (2) Impos[ing] reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or (3) Impos[ing] any other reasonable restriction designed to assure the defendant’s appearance, including, but not limited to, the deposit of bail pursuant to § 40-11117. Tenn. Code Ann. § 40-11-116(b). Only if the court determines that “conditions on a release on recognizance” have not been shown to reasonably ensure the defendant’s appearance, may the court, “in lieu of the conditions of release set out in § 40-11-115 or § 40-11-116, require bail to be given.” Tenn. Code Ann. § 40-11-117; see Graham, 157 S.W.3d at 793 (“If it is not shown that conditions on a release on recognizance will reasonably assure the defendant’s appearance as required, the magistrate shall require that bail be given in lieu of conditions of release.”).
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If the court determines that it will require bail, it must then—as the third and final step in
its analysis—determine the amount to be required, based on a number of statutory factors listed
in Tenn. Code Ann. § 40-11-118:
(1) The defendant’s length of residence in the community;
(2) The defendant’s employment status and history and financial condition;
(3) The defendant’s family ties and relationships;
(4) The defendant’s reputation, character and mental condition;
(5) The defendant’s prior criminal record, record of appearance at court proceedings, record of flight to avoid prosecution or failure to appear at court proceedings;
(6) The nature of the offense and the apparent probability of conviction and the likely sentence;
(7) The defendant’s prior criminal record and the likelihood that because of that record the defendant will pose a risk of danger to the community;
(8) The identity of responsible members of the community who will vouch for the defendant’s reliability; however, no member of the community may vouch for more than two (2) defendants at any time while charges are still pending or a forfeiture is outstanding; and
(9) Any other factors indicating the defendant’s ties to the community or bearing on the risk of the defendant’s willful failure to appear.
Tenn. Code Ann. § 40-11-118(b). The court is required, as the U.S. Constitution mandates, to set
a bail amount “as low as the court determines is necessary to reasonably assure the appearance of
the defendant as required.” Tenn. Code Ann. § 40-11-118(a).
Once monetary bail is set, the defendant can pay that bail by either (1) paying the full
amount in cash, (2) hiring a professional surety, typically a for-profit bail bondsman, to file a written surety to the court for the relevant amount,2 (3) obtaining approval from the magistrate to
2 If a defendant or his family wishes to hire a for-profit bonding company, it typically costs a nonrefundable fee equivalent to 10% of the cash bail amount—meaning that, for those defendants, money
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file a written surety signed by two non-professional sureties, or (4) using real property as collateral. See Tenn. Code Ann. §§ 40-11-118(a), 40-11-122, 40-11-123. Once his bail is secured, the defendant is released, with the expectation that he will attend all future required court dates, as well as comply with any other conditions of his release. At a later date, “[i]f the conditions of the bail bond have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the defendant, unless the court orders otherwise, the entire sum which had been deposited.” Tenn. Code Ann. § 40-11-119.
3. Local Administrative and Judicial Responsibilities. “The judicial power of the [State of Tennessee] is vested in judges of the courts of general sessions, . . . circuit courts, [and] criminal courts,” as well as other courts established by the state. Tenn. Code Ann. § 16-1-101. The state’s trial courts are divided among “thirty-one (31) judicial districts” defined by statute. Tenn. Code Ann. § 16-2-506. The state courts located in Metropolitan Nashville and Davidson County (“Metro Nashville” or “Metro”), for example, make up the Twentieth Judicial District. Tenn. Code Ann. § 16-2-506(a)(20)(A)(1).3
The state’s devolved judicial power is further subdivided between the district’s judges, who adjudicate cases, and its court clerks, who “perform all the clerical functions of the court.” Tenn. Code Ann. § 18-1-101. Among the clerk’s duties, at the circuit and criminal court level, is accounting for the court’s revenues. Tenn. Code Ann. § 18-4-103(3), (7)–(8). As relevant to the pretrial release system, the clerk of the court accepts bail payments and accounts for the funds
bail exists, as a practical matter, not so much as refundable bond that can be recouped, but rather as a nonrefundable fee that he pays to a private company to shoulder a portion of the responsibility for his return. (Doc. No. 1 ¶ 14.) 3 Other districts, however, span multiple counties. For example, the thirteenth judicial district spans seven counties: Clay, Cumberland, DeKalb, Overton, Pickett, Putnam, and White. Tenn. Code Ann. § 16-2506(a)(13)(A).
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once they are received. When a party that posted cash bail returns for its refund, it is the clerk that transmits the funds. (Doc. No. 1 ¶¶ 17–19.)
The judges of each individual judicial district are authorized to promulgate their own local rules, as long as those rules are “consistent with the statutory law, the rules of the supreme court and the rules of criminal and civil procedure.” Tenn. Code Ann. § 16-2-511. Among those rules may be rules governing the process for reviewing pretrial detention decisions, as is the case in the Twentieth Judicial District, which has a fairly lengthy and detailed set of Local Rules of Practice for Bail Bonds. (See Doc. No. 4-2.)
4. Application of the Pretrial Release Structure in Metro Nashville. An outside observer who first confronted Tennessee’s pretrial release laws—which situate money bail as a last resort and mandate the least onerous release conditions necessary—might assume that money bail is rare, or at least that it is applied somewhat sparingly. The reality, however, is that, “[i]n Tennessee,” including in Nashville, “bail is the norm, not the exception.” Fields v. Henry Cty., Tenn., 701 F.3d 180, 187 (6th Cir. 2012). Moreover, due to the volume of defendants that pass through the pretrial system in the Twentieth District, initial bail amounts are typically set by judicial commissioners, with only the option to appeal to a General Sessions or Criminal Court judge. (Doc. No. 1 ¶ 13.) See Tenn. Code Ann. § 40-5-201(a) & (b)(2) (authorizing the creation of judicial commissioners with the power to “set[] . . . bonds and recognizances”).
After a bail amount is set and funding is obtained, an individual goes to the Office of the Clerk to make actual payment. If the person is seeking to pay cash bail on behalf of the defendant, however, he is presented with a document that the court will refer to, for the purposes of this litigation, as the “Clerk’s Form.” (Doc. No. 1 ¶ 16.) The Clerk’s Form requires the signature of the “PERSON TENDERING CASH BOND,” and, if that person refuses to sign, the
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Clerk will not accept the cash bail and accordingly will not relay to the relevant authorities that the defendant should be released. (Id. ¶ 18; Doc. No. 1-3 at 2.)
The signatory of the Clerk’s Form must acknowledge that he “understand[s]” a number of policies that will be applied to the sum he is about to hand over to the Clerk. Among the statements to which the signatory must agree is:
I also understand this cash bail is subject to execution for satisfaction of all fines, fees, court costs, taxes and restitution assessed against the defendant in ALL matters related to this warrant/case number(s), probation violation or other post judgment issue. I further understand the person tendering the cash bail is due the refund, upon request, once all fines, fees, court costs, taxes, and restitution are satisfied (the original cash bail receipt and a valid driver’s license is required for refund). (Doc. No. 1-3 at 2.) This portion of the Clerk’s Form describes the Clerk’s policy pursuant to Rule 10(B) of the Local Rules of Practice for Bail Bonds, which states that “[a]ny individual who desires to deposit a cash bail with the Clerk pursuant to [Tenn. Code Ann.] § 40-11-118 shall be notified in writing by the Clerk that such cash deposit shall be returned subject to any fines, court costs, or restitution as ordered by the Court.” (Doc. No. 1-2 at 10.) As Rule 10(B) directs and as the Clerk’s Form warns, an individual who seeks the return of his cash bail after the defendant has fulfilled all of his appearance obligations will only receive, from the Clerk, the amount he paid minus any amount that the clerk deducted for fines, costs, or restitution. (Doc. No. 1 ¶ 19.) B. NCBF and Rule 10(B) NCBF is a Nashville-based nonprofit entity founded in 2016 for the purpose of “pay[ing] cash bail for individuals who cannot afford to do so in order to alleviate the harms caused by
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unfair wealth-based pretrial detention.”4 (Doc. No. 1 ¶ 11.) NCBF relies on what it refers to as a “revolving fund” in order to post cash bail for as many defendants as possible. In other words, NCBF posts bail for a pretrial detainee and, when the detainee’s case is completed, NCBF accepts the refund, which it puts back into its budget and applies toward posting bail for another pretrial detainee. Accordingly, for example, a single charitable donation of $1,000 can be used over and over again to secure pretrial release for a series of defendants, ultimately resulting in far greater than $1,000 in cash bail being paid. (Id. ¶ 29.)
In order for NCBF’s revolving fiscal model to be sustainable, however, NCBF must be able to obtain a refund of at least a substantial portion of the money it uses to post bail—an uncertain prospect in light of the Clerk’s practice of deducting fees, costs, and restitution from refund amounts pursuant Rule 10(B). In recognition of that obstacle and in support of NCBF’s mission, the Twentieth Judicial District’s Criminal Court Judges, in April of 2016, promulgated a policy exempting NCLB from Rule 10(B). (Id. ¶ 30.) Accordingly, when the defendants for whom NCBF had posted cash bail complied with their appearance obligations, NCBF was able to obtain a full refund, even if the defendants owed outstanding fines or other debt to the court.
On May 6, 2019, however, the Criminal Court released an en banc Order, rescinding the exemption. (Id.¶ 32) The court wrote that “several issues ha[d] arisen . . that ha[d] caused the Court to reconsider the NCBF’s exemption.” (Doc. No. 1-4 at 1.) First, the court noted, two judges of the court had retired, and their positions had been filled by two new Criminal Court judges who had not taken part in the consideration of the initial exemption order. Second, the court wrote that it had “been made aware by the Davidson County Criminal Court Clerk’s Office that as of April 18, 2019, there are $104,200 in conditional forfeits on bonds posted by the 4 The serious potential negative effects of failing to secure pretrial release—which go far beyond the temporary loss of liberty pending trial—are detailed in the court’s Memorandum of March 17, 2020. (Doc. No. 22 at 6–8.)
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NCBF.” (Id. at 1–2.) The court explained that “[t]his level of exposure” was “far beyond what
the Court contemplated” when the initial exemption had been granted. The court wrote that,
“particularly in light of the amount of conditional forfeitures currently outstanding,” it was
“concerned by the NCBF’s lack of sufficient and specific measures to ensure a defendant’s
appearance in court.” (Id. at 2.)
NCBF requested that the court reconsider. (Doc. No. 1 ¶ 33.) On August 29, 2019, the
court entered an en banc Order denying NCBF’s petition. (Id.) The court “reaffirm[ed]” its
earlier rationale for ending the exemption. (Doc. No. 1-5 at 2.) It added, however:
[T]he Court notes that in no way does it intend for this Order to force the NCBF to shut down. As the Court stated at the hearing on July 18, 2019, this Court agrees with the NCBF’s contention that the work in which they are engaged is a noble service to the community. The Court continually strives to ensure that the administration of the criminal justice system is fair and equitable for all parties, and is willing to work with the NCBF or any other organization to that end. However, while the Court hopes that the NCBF continues its work, for the aforementioned reasons, the Court is of the opinion that cash bails posted by the NCBF should not automatically be exempted from being used to satisfy the fines, costs, or restitution that other parties posting cash bails are generally required to satisfy. Of course, a defendant on a bond made by the NCBF, just like any other defendant, may still petition the appropriate court for waiver of any costs or fines based upon the defendant’s indigency upon entry of any judgment against them. Bond funds paid by the NCBF would still be refunded if all costs, fines, and fees were waived by that court.
(Id. at 2–3.)
After the revised policy went into effect, the Clerk changed his policies and practices to
treat NCBF in the same manner as any other party posting cash bail. Specifically, NCBF
personnel are required to sign the Clerk’s Form, acknowledging the Clerk’s Office policy of
refunding only the amounts of bonds remaining following the payment of fines, fees, and
restitution. If the NCBF representative refuses to sign the Form, the Clerk will refuse to accept
the payment. (Doc. No. 1 ¶ 34.) NCBF maintains that this revised policy has forced it to
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substantially scale back its operations, including by declining to post bail for individuals whom it otherwise would have helped. (Id. ¶ 35.) D. This Litigation
On February 5, 2020, NCBF filed a Complaint for Injunctive and Declaratory Relief, in which it named, as the sole defendant, “Hon. Howard Gentry, Criminal Court Clerk, in his official capacity.” (Doc. No. 1 at 1 (italics omitted).) NCBF pleaded three causes of action under 42 U.S.C. § 1983: first, for violation of the Eighth Amendment right against excessive bail; second, for violation of the Fourteenth Amendment, based on the imposition of unconstitutional release conditions; and, third, for violation of the Fourteenth Amendment right not to be subjected to a deprivation of liberty without due process. (Id. ¶¶ 62–78.) On the same day, NCBF filed a Motion for Preliminary Injunction, asking the court to enjoin Gentry “from (1) enforcing Davidson County Local Rule Governing Bail Bonds 10(B) as well as (2) enforcing his office’s policy of conditioning the acceptance of cash bails on receipt of a signed form acknowledging future payment of criminal debts from that cash bail . . . .” (Doc. No. 3 at 1.)
On February 20, 2020, Gentry, represented by attorneys from the Department of Law of the Metropolitan Government of Nashville and Davidson County (“Metro Legal”), filed a Response opposing the Motion for Preliminary Injunction. (Doc. No. 15.) Gentry claimed that he was “enter[ing] this appearance exclusively in his capacity as an elected official for” Metro. (Id. at 1.) Gentry conceded, however, that, when he was carrying out the business of the Twentieth Judicial District and its bail system, he was acting, not in any capacity as a representative or agent of the Metro government, but rather as an agent of the State of Tennessee. (Id. at 1.) Nevertheless, the Clerk did not file any separate response in his state capacity, and no attorneys appeared to represent him in that capacity.
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On February 27, 2020, the Clerk—still represented by Metro Legal and still purporting to be appearing only in a limited capacity—filed a Motion to Dismiss, asking the court to dismiss NCBF’s claims, “insofar as the Court construes the claims as proceeding against Mr. Gentry in his capacity as a Metropolitan Government official.” (Doc. No. 17 at 1.) He explained that his reason for drawing this distinction was that, in his view, he had never been properly served in his capacity as a state official, only as a local official. (Doc. No. 18 at 7–8.)
On March 17, 2020, the court denied the Motion to Dismiss and granted the Motion for Preliminary Injunction. (Doc. No. 23.) The court addressed and rejected various procedural issues that the Clerk had raised related to his supposed dual role as a state and local official and expressed disappointment that the Clerk had not yet obtained counsel empowered to represent him in his full official capacity. The court held that, while the Clerk was correct that the Twentieth Judicial District was an arm of the State of Tennessee, he was mistaken that he had no obligation to respond to the lawsuit in that capacity merely because service had—by his consent—been effected through Metro Legal. The court therefore did not dismiss any aspect of the action. The court also determined that the factors governing preliminary injunctions, including likelihood of success on the merits, favored granting an injunction prohibiting the Clerk from enforcing Rule 10(B) and the surrounding policies against NCBF. (Doc. No. 22 at 28–34.) In the wake of the court’s ruling, Metro Legal withdrew from the case, and the Clerk obtained private counsel. (Doc. Nos. 25, 36–37.)
On May 21, 2020, the Clerk filed his Second Motion to Dismiss. (Doc. No. 47.) He argues that NCBF lacks standing to assert at least some of its claims, that he is entitled to judicial immunity, and that, if neither of those issues poses an obstacle to NCBF’s claims, each of the
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claims should be dismissed on the merits under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Id. at 1.)
II. LEGAL STANDARD A. Rule 12(b)(1)
“Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a facial attack or a factual attack.” Genetek Bldg. Prods., Inc. v. SherwinWilliams Co., 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests jurisdiction factually, the court must weigh the evidence in order to determine whether it has the power to hear the case, without presuming the challenged allegations in the complaint to be true. Id.; DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). When the facts are disputed in this way, “[t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary,” without converting the motion into one for summary judgment. Cooley v. United States, 791 F. Supp. 1294, 1298 (E.D. Tenn. 1992), aff’d sub nom. Myers v. United States, 17 F.3d 890 (6th Cir. 1994); see also Genetek, 491 F.3d at 330. It is then the plaintiff’s burden to show that jurisdiction is appropriate. DLX, 381 F.3d at 511.
However, if a Rule 12(b)(1) motion challenges subject matter jurisdiction based on the face of the complaint, as this one does, the plaintiff’s burden is “not onerous.” Musson Theatrical Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 (6t Cir. 1996). A court evaluating this sort of facial attack to the assertion of subject matter jurisdiction must consider the allegations of fact in the complaint to be true and evaluate jurisdiction accordingly. Genetek, 491 F.3d at 330; Jones v. City of Lakeland, 175 F.3d 410, 413 (6th Cir. 1999). B. Rule 12(b)(6)
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In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether “the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556.
III. ANALYSIS A. Standing
1. Scope and Nature of the Standing Requirement. Article III of the Constitution gives the federal courts jurisdiction only over “cases and controversies,” of which the component of standing is an “essential and unchanging part.” Lujan v. Defenders of Wildlife,
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504 U.S. 555, 560 (1992). To establish standing under the Constitution, a plaintiff must show that: (1) he has suffered an “injury in fact” that is (a)(i) concrete and (ii) particularized; and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by the relief requested. Gaylor v. Hamilton Crossing CMBS, 582 F. App’x 576, 579–80 (6th Cir. 2014) (citing Lujan, 504 U.S. at 560–61); see also Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000). These mandatory minimum constitutional requirements—commonly known as (1) injury-in-fact, (2) causation, and (3) redressability—apply in every case.
In their briefing, the parties to this case take markedly different approaches to the concept of standing. NCBF focuses almost exclusively on the core Article III requirements of standing: how NCBF, as an organization, was injured, how the Clerk caused that injury, and how that injury can be redressed. The Clerk, in contrast, acknowledges but largely sidesteps those traditional considerations and focuses on the “judicially self-imposed limits on the exercise of federal jurisdiction” that have, at times, been treated as part of the “blend of constitutional requirements and prudential considerations” going under the name of “standing.” (Doc. No. 52 at 2 (quoting Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 289 (2008); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982)). Each approach has some historical support, but neither, in fact, is up-to-date.
Prior to 2014, the caselaw largely resembled the Clerk’s approach. Courts—including the Supreme Court, the Sixth Circuit, and this court—routinely repeated the premise that standing included both constitutional and prudential dimensions that combined into a unitary inquiry. That approach, though, had some notable weaknesses, both conceptually and practically. First and
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foremost, it was never clear exactly how or why courts had the power to impose “prudential” limitations that contradicted the scope of jurisdiction conferred by the Constitution and Congress’s jurisdictional statutes. See Allen v. Wright, 468 U.S. 737, 751 (1984) (describing the “judicially self-imposed” components of standing as distinct from the “core component derived directly from the Constitution”). And if courts did have that power, what were its limits, and how was one to know what they were? See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (noting that the Supreme Court had never “exhaustively defined the prudential dimensions of the standing doctrine”). The mostly unacknowledged faults in the pre-2014 approach’s foundations often resulted in exactly what the court sees here: parties talking past each other, seemingly debating the same issue but actually addressing themselves to distinct sets of concerns.
Fortunately, the Supreme Court, in Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), went a long way toward disentangling the actually quite distinct principles involved in this confusion. Lexmark involved the issue of “prudential standing” under the Lanham Act, and the parties on both sides had briefed it as such. Id. at 125. The Supreme Court, however, took the opportunity to “clarify[] the nature of the question at issue.” Id. The Court noted that the very idea of a court prudentially deciding not to hear an otherwise appropriate case was in “some tension” with the established principle that the federal courts have an “‘obligation to hear and decide’ cases within [their] jurisdiction” that “‘is virtually unflagging.’” Id. at 126 (quoting Sprint Commc’ns, 571 U.S. at 78). The Court concluded that the issue that the parties had raised—essentially a “zone of interests” inquiry of the type relevant to a number of federal causes of action—was not ultimately a question of standing at all, but rather a simple issue of statutory interpretation regarding the scope of the relevant Lanham Act
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cause of action. Id. at 129. Accordingly, a court considering such an argument should rely on the “traditional tools of statutory interpretation” to ascertain whether the plaintiff “falls within the class of plaintiffs whom Congress has authorized to sue under” the relevant provision. Id. at 128.
In other words, Lexmark “clarified that prior decisions invoking the ‘prudential standing’ label had really asked a statutory-interpretation question: Does the specific statute give the specific plaintiff a right to bring the specific suit?” In re Capital Contracting Co., 924 F.3d 890, 896 (6th Cir. 2019) (citing Lexmark, 572 U.S. at 128); see also Galaria v. Nationwide Mut. Ins. Co., 663 F. App’x 384, 391 (6th Cir. 2016) (“The Supreme Court has explained that the term ‘statutory standing’ describes an inquiry into the question whether a plaintiff ‘falls within the class of plaintiffs whom Congress has authorized to sue’ and therefore ‘has a cause of action under the statute.’ However, this label is ‘misleading, since the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.’”) (quoting Lexmark, 572 U.S. at 128 & n.4). Although Lexmark was not itself a § 1983 case, there is no plausible basis for treating its analysis as inapplicable in the § 1983 context, given the pervasiveness of “prudential standing” issues in the § 1983 caselaw. See Knife Rights, Inc. v. Vance, 802 F.3d 377, 388 n.9 (2d Cir. 2015) (acknowledging that prudential standing concerns in § 1983 cases are governed by Lexmark).
The parties’ briefing on the issue of standing, therefore, raises two distinct issues. First, there is the jurisdictional question of whether NCLB can satisfy the minimum requirements of standing under Article III. This analysis, as the court has stated, is focused on NCLB’s alleged injuries, those injuries’ source, and whether this court can redress them. The second question raised by the parties’ briefing is whether, as a substantive but non-jurisdictional matter, the cause
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of action created by Congress in § 1983 contemplates that a party in NCLB’s position will be permitted to sue to vindicate the rights it seeks to vindicate. The court will address both issues.
2. Article III Standing. As NCBF points out, its Article III standing in this case is apparent. The Clerk’s Office wants to keep some of NCBF’s money, and NCBF wants that money back. Even “[a] dollar of economic harm is . . . an injury-in-fact for standing purposes.” Johnson v. BLC Lexington, SNF, LLC, No. CV 5:19-064-DCR, 2020 WL 3578342, at *2 (E.D. Ky. July 1, 2020) (quoting Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017)). This is, moreover, not an instance in which the plaintiff organization’s alleged monetary injury is self-inflicted through its own voluntary, speculative expenditures in reaction to the challenged policy. See, e.g., Memphis A. Philip Randolph Inst. v. Hargett, No. 20-6046, 2020 WL 6074331, at *7 (6th Cir. Oct. 15, 2020). Here, the government itself is routinely and intentionally keeping money that NCBF claims it has a right to. The injury-in-fact, in other words, is both fully realized and inflicted directly by the defendant.
There is no question that the Clerk is a cause of that harm; he is the one taking the money and refusing to return it. And there is no question that the injury is redressable; either injunctive or declaratory relief would redress the injury. Moreover, NCBF has plausibly pleaded additional harms, in addition to pure economic injury, including the interference in NCBF’s operations and charitable model. The Clerk’s argument, therefore, poses no serious challenge to NCBF’s standing as a constitutional matter. Rather, it is the purely statutory type of “standing” that the Clerk actually appeals to.
3. Direct “Standing” under § 1983. Section 1983 creates a cause of action for “any citizen of the United States or other person within the jurisdiction thereof” who was subject to “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of
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the United States under the color of law. 42 U.S.C. § 1983. The Supreme Court has interpreted that language as requiring that, “[i]n order to seek redress through § 1983, . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989)). Although the Clerk describes his arguments as challenges to standing, it is really that principle on which his reasoning rests: the Clerk argues that most of the rights that NCBF wishes to assert are not its rights but, if anything, the rights of individual defendants, and NCBF, therefore, has not suffered the deprivation of a federal right for the purposes of § 1983.
As an initial matter, the court notes that the Clerk does not dispute that NCBF is an appropriate plaintiff with regard to its third ground for relief, the alleged deprivation of property without due process of law. That count is premised on NCBF’s own right not to be deprived of a property interest without appropriate procedural safeguards, as guaranteed by the Fourteenth Amendment of the U.S. Constitution. Because that claim involves NCBF’s own rights, NCBF is an appropriate § 1983 plaintiff for its purposes.
The Clerk is correct, however, that NCBF’s other two theories of liability hinge on federal rights that the Constitution guarantees to defendants themselves, not necessarily to third parties. The Eighth Amendment requires that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” That text alone does not explicitly establish whose rights, if any, the Amendment guarantees; it is, rather, simply a prohibition. Cf. Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412, 1418–19 (2016) (relying on specific language of the First Amendment to determine whether plaintiff was within class of plaintiffs whose activity was protected). NCBF, however, has provided no reason to doubt the natural inference that the rights secured by the Eighth Amendment belong to the defendant in a
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criminal proceeding, not to any third party. Such a reading is consistent with the fact that “excessive bail” appears alongside “excessive fines” and “cruel and unusual punishments”—two types of injuries directed at the criminal defendant. The Clerk’s reading is also consistent with the language of the Amendment stating that excessive bail shall not be “required,” as opposed to language more focused on the act of payment itself.5 Bail is only a requirement with regard to one thing—the criminal defendant’s release.
The Supreme Court has long recognized, in § 1983 cases, that, “even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, . . . the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted); accord Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Justice Thomas, in his dissent in a notable recent First Amendment case, captured the nature of the distinction here, even if his reasoning did not ultimately become the holding of the Court:
The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured. Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 661 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a § 1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury. They must allege, instead, that their injury amounted to a violation of their constitutional right against unreasonable seizures—that is, by being unconstitutionally detained.
5 For example, the Amendment could state that “no person shall be made to pay excessive bail to secure the release of a person charged with a crime.”
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Heffernan,136 S. Ct. at 1422 (Thomas, J., dissenting).6 While the majority in Heffernan did not agree with Justice Thomas on the underlying First Amendment issue, nothing in the opinion appears to reject the general rule that a § 1983 claim should arise out of a deprivation of the plaintiff’s own federal right. The general rule, therefore, would suggest that NCBF’s first two counts should have been brought by one or more of its clients, not NCBF itself.
The Supreme Court, however, has also been clear that the general rule that a § 1983 plaintiff should be asserting his own rights is far from “absolute”; quite to the contrary, its caselaw in this area has been, in the Court’s own words, “quite forgiving” in the finding of exceptions allowing third parties to pursue § 1983 claims. Kowalski, 543 U.S. at 130. That flexibility, moreover, must now be understood in terms of Lexmark’s recontextualization of “prudential standing” inquiries in terms of statutory construction, which makes clear that the exercise of the court’s power in any given case is guided, not by the court’s own evaluation of prudential concerns, but by the statute itself.
The Supreme Court, in its application and interpretation of § 1983, has already held that the statute, at least sometimes, permits claims by an injured party other than the individual deprived of his federal right. The court, therefore, must determine whether this might be such an instance, or whether the cause of action enacted by Congress would allow only the individuals whom NCBF serves to raise a § 1983 claim based on excessive bail or impermissible bail conditions.
4. Third-Party “Standing” Under § 1983. At least generally speaking, “a party seeking third-party standing [must] make two additional showings. First, . . . the party asserting the right” must show that it “has a ‘close’ relationship with the person who possesses the right. Second,”
6 Notably, Justice Thomas specifically identified this § 1983 issue as governed by Lexmark. Heffernan,136 S. Ct. at 1422 (Thomas, J., dissenting)
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the party must show that “there is a ‘hindrance’ to the possessor’s ability to protect his own interests.” Kowalski, 543 U.S. at 130 (citing Powers v. Ohio, 499 U.S. 400, 411 (1991)). The Clerk argues that NCBF cannot establish either of these requirements; he argues that NCBF’s relationships with its program participants is not sufficiently “close” to permit it to sue on behalf of their rights and that the program participants are not hindered from asserting their rights themselves.
The Clerk bases his argument that NCBF lacks a close relationship with the defendants whose rights it wishes to assert primarily on the Supreme Court’s opinion in Kowalski v. Tesmer and the Third Circuit’s interpretation of Kowalski in Holland v. Rosen, 895 F.3d 272 (3d Cir. 2018), cert. denied, 139 S. Ct. 440 (2018). In Kowalski, plaintiff attorneys sought to pursue thirdparty claims on behalf of hypothetical future indigent clients who would be denied the right to a criminal appeal under the challenged policy. 543 U.S. at 130. The Supreme Court held that the attorneys did not have third-party standing, in part because the hypothetical future defendants at issue were unidentified and were not yet in any attorney-client relationship with the plaintiffs. Id. at 131. In Holland, the Third Circuit expanded the reasoning of Kowalski to bar third-party standing by a bail bondsman seeking to assert the rights of hypothetical future customers, on the ground that the “hypothetical relationship with potential customers closely mirrors that of attorneys with potential clients.” Holland, 895 F.3d at 288.
As NCBF points out, however, its relationship with its program participants is fundamentally different from that of a compensated attorney or a for-profit bonding company with its paying clients. When discussing who may seek to vindicate a constitutional right,7 the
7 Many of the cases in which the Supreme Court has addressed the question of when a third party may assert a constitutional right have not been § 1983 cases, but rather, for example, cases considering petitions for habeas corpus or appeals of criminal convictions. The Clerk, however, does not argue or
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Supreme Court has expressly distinguished between “the fortuitous connection between a vendor and potential vendees”—which generally will not support third-party standing—and the “relationship between one who act[s] to protect the rights of a” class of person and the individuals in the class of person protected. Eisenstadt v. Baird, 405 U.S. 438, 445 (1972). NCBF is a mission-driven charitable entity that serves and advocates for its participants as beneficiaries, not customers. As a result, NCBF’s interests are closely aligned with its participants’, particularly with regard to the issues raised in this litigation.
The term “close relationship,” in the context of third-party standing, does not focus on the parties’ “closeness” in some generic interpersonal sense, but instead on whether “the relationship between the litigant and the third party [is] such that the former is fully, or very nearly, as effective a proponent of the right as the latter.” Singleton v. Wulff, 428 U.S. 106, 115 (1976). That is why, for example, a criminal defendant can be said to have a close relationship with a juror improperly excluded from his trial—despite neither person’s even knowing the other—due to their “common interest in eliminating racial discrimination from the courtroom.” Powers, 499 U.S. at 413. The relationship between NCBF and its program participants is such that NCBF is at least as effective a proponent of their rights regarding the bail conditions at issue here as they would be. NCBF’s relationship to its participants is therefore sufficiently close, as the term is used in this context, to allow it to assert a § 1983 claim based on their rights, if there is some hindrance that would make them ineffective in doing so themselves.
Some examples of obstacles that have been held to be sufficient hindrances to permit third-party standing include “deterrence from filing suit due to privacy concerns, imminent mootness of a case, or systemic practical challenges to pursuing one’s own rights.” Moody v.
offer any basis for concluding that the third-party standing principles incorporated into § 1983 are any more restrictive than those in these other settings.
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Mich. Gaming Control Bd., 847 F.3d 399, 402–03 (6th Cir. 2017) (citing Powers, 499 U.S. at 414 ); Singleton, 428 U.S. at 117; Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir. 2011) (collecting cases)). The hindrance analysis, in other words, allows the court to consider obstacles both legal and practical, and a hindrance is not required to be an absolute bar to seeking relief in order to be sufficient.
The potential hindrances facing NCBF’s participants in the assertion of their rights regarding excessive bail and unconstitutional release conditions are substantial. First, all of those participants, by definition, have extremely limited resources. NCBF, at least according to its Complaint, is an organization specifically dedicated to ameliorating the effects of poverty in the criminal justice system; it is presumably not in the business of helping those who do not need its help. NCBF’s program participants, therefore, would largely lack the resources to pursue civil litigation against the Clerk. Second, individual plaintiffs would face substantial obstacles from the various doctrines that insulate state court proceedings from meddling by collateral federal litigation. While this court may have authority to issue declaratory or injunctive relief directed at the Clerk’s policies at the general level, it is considerably more questionable—to say the least— whether this court could actually intervene in any individual defendant’s criminal case. See, e.g., Doe v. Univ. of Ky., 860 F.3d 365, 369 (6th Cir. 2017) (explaining that Younger abstention is permitted where necessary to avoid intervening in “an ongoing state criminal prosecution”); Lawrence v. Welch, 531 F.3d 364, 371–72 (6th Cir. 2008) (“[C]laims seeking injunctive relief are barred . . . if they necessarily require the federal court to determine that a state court judgment was erroneously entered.”).
The potential for mootness would also potentially hinder a claim from such an individual, as his period of pretrial release might end during litigation, leaving him with no redressable
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injury. See Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011) (“If
events occur during the case, including during the appeal, that make it ‘impossible for the court
to grant any effectual relief whatever to a prevailing party,’ the appeal must be dismissed as
moot.”) (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)). Finally, it is not
clear why such a person would even bring a claim, given that it is NCBF, not the individual
criminal defendant, who is being deprived of refunded money. There is little, if any, incentive for
an individual plaintiff to devote the time and resources necessary for civil litigation. The same
lack of incentive would also strongly weigh against a defendant’s asserting his rights through a
direct state appeal, insofar as one would be available.
There are, in short, very serious questions regarding whether anyone other than NCBF
offers any practical likelihood of vindicating the rights at issue here, and NCBF is itself well-
situated, relative to the individuals whose rights are at stake, to advocate for those rights. Under
Supreme Court and Sixth Circuit precedent regarding third-party standing, such a plaintiff, if he
was injured by the deprivation of a federal right, has a cause of action under § 1983, even if it is
not strictly his federal right that was violated. The court therefore will not dismiss any of NCFBF’s counts on that ground.8
B. Judicial Immunity
“It is well-established that judges enjoy judicial immunity from suits arising out of the
performance of their judicial functions.” Leech v. DeWeese, 689 F.3d 538, 542 (6th Cir. 2012)
8 Because the court has held that NCBF has, at least at this stage, established that it is entitled to thirdparty standing, the court is not required to determine whether there is an independent basis for finding standing under the rubric of “organizational” or “associational” standing. See Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1010 (6th Cir. 2006). The court notes, though, that conventional associational standing may present a somewhat difficult fit for this case, because the relevant caselaw typically speaks in terms of an organization’s “members,” and it is not clear that NCBF’s relationship to its program participants falls neatly onto the concept of membership. Nevertheless, the facts may ultimately reveal that the associational relationship provides an additional basis for NCBF’s § 1983 claims.
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(quoting Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004); citing Mireles v. Waco, 502 U.S. 9, 11 (1991)). “Moreover, absolute judicial immunity has been extended to non-judicial officers,” such as court administrators “who perform ‘quasi-judicial’ duties.” Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (citing Joseph v. Patterson, 795 F.2d 549, 560 (6th Cir. 1986); Johnson v. Granholm, 662 F.2d 449 (6th Cir. 1981)).
As NCBF has pointed out, the Supreme Court has held that judicial immunity, as traditionally understood, “is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity” under § 1983. Pulliam v. Allen, 466 U.S. 522, 541–42 (1984); accord Raymond v. Moyer, No. 2:05-cv-1157, 2006 WL 1735368, at *3 (S.D. Ohio June 22, 2006). However, § 1983 itself expands the scope of judicial immunity, for the purposes of that cause of action, by stating that, “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” The Prayer for Relief in NCBF’s Complaint includes a number of requests for declaratory relief. (Doc. No. 1 at 28–29.) Therefore, neither traditional principles of judicial immunity nor § 1983’s expanded restrictions related to judicial officers would be wholly fatal to NCBF’s claims. At most, the court could dismiss the claims in part, insofar as NCBF seeks any relief other than declaratory relief (or, if necessary, injunctive relief after the declaratory decree was violated).
In any event, NCBF argues that the Clerk is not entitled to judicial immunity in this case at all, because the underlying actions he took were administrative, not judicial, in nature. Even judges themselves “are not entitled to absolute immunity when acting in their administrative capacity.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993) (citing Forrester v. White, 484 U.S. 219, 229 (1988)). “[T]he paradigmatic judicial act is the resolution of a dispute
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between parties who have invoked the jurisdiction of the court.” Morrison v. Lipscomb, 877 F.2d 463, 465 (6th Cir. 1989) (citing Forrester, 484 U.S. at 226). Outside of that core judicial function, however, the court must engage in a close analysis to determine whether the act of a judge (or other court official, such as a clerk) is sufficiently closely related to judging to warrant immunity. In so doing, the court considers “the nature of the function at issue and not merely . . . the identity of the actor or the harm caused.” Watts v. Day, 129 F. App’x 227, 232 (6th Cir. 2005) (citing Lomaz v. Hennosy, 151 F.3d 493, 497 (6th Cir. 1998)).
This inquiry typically includes two components: “First, a court must determine whether an act is related to those general functions that are normally performed by a judicial officer. Second, a court must assess whether the parties expected to deal with the judicial officer in the officer’s judicial capacity.” Cooper v. Parrish, 203 F.3d 937, 945 (6th Cir. 2000) (citing Stump v. Sparkman, 435 U.S. 349, 362 (1978)). The courts have identified certain “factors ‘characteristic of the judicial process’” that would support an inference that an official was acting in a judicial capacity, including “the importance of precedent; . . . the adversary nature of the process; and . . . the correctability of error on appeal.” Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, 597 F. App’x 342, 348 (6th Cir. 2015) (quoting Cleavinger v. Saxner, 474 U.S. 193, 202 (1985)).
The Clerk’s actions in this case involve essentially two sets of responsibilities: first, the Clerk promulgates and requires the collection on certain paperwork—namely, the Clerk’s Form; and, second, the Clerk acts as, effectively, a bursar, accepting and refunding payments out of a fund over which he is entrusted authority and for which he performs some basic accountancy. Other than the fact that courts do sometimes use forms in connection with adjudication, neither
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of those functions bears much resemblance to the core activity of judging, whereas each is a commonplace feature of ordinary, non-judicial public administration.
With regard to the second half of the functional inquiry, there is at least currently no basis on the record for assuming that a person who goes to the Clerk’s Office to fill out the necessary forms to post bail, or who is seeking to recoup bail previously paid, expects to deal with a judicial officer acting in a judicial capacity. By that point, the bail amount and any other release conditions will already have been set through an adversarial, adjudicatory process involving a judge’s (or at least a judicial commissioner’s) exercise of discretion. The simple making of payment is exactly the type of “clerical” transaction that Tennessee statute entrusts to clerks, not judges. Tenn. Code Ann. § 18-1-101.
It is, moreover, immaterial that the Clerk, in taking the underlying actions, purports to be carrying out a policy set by judges in the form of Rule 10(B). The scope of immunity depends on the function being performed, not the title of the person or people who originated the policy. See Watts, 129 F. App’x at 232. Indeed, the Sixth Circuit has suggested that across-the-board rulemaking by judges is, in fact, one of the types of action that is more likely to be held to be administrative in nature, because it “is not an adjudication between parties,” and it is “not connected to any particular litigation” but rather involves “instruct[ing] court personnel on how to process the petitions made to the court.”9 Morrison, 877 F.2d at 466.
9 Similarly unavailing is the Clerk’s argument that he is an inappropriate defendant because he is merely carrying out a policy set by the judges of the judicial district and therefore should not be held responsible for his actions. As the court explained previously, the fact that the defendant, as the head of the Clerk’s Office, is enforcing a policy set by someone else—whether the judges or the General Assembly—is simply not a defense to a cause of action for injunctive or declaratory relief against the head of a government body. What the Clerk is describing is a run-of-the-mill Ex parte Young claim, of the type routinely considered by the courts. (Doc. No. 22 at 26 (discussing Ex parte Young, 209 U.S. 123 (1908)).) See Durham v. Martin, 905 F.3d 432, 434 (6th Cir. 2018).
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Absolute judicial immunity “is recognized only sparingly, and the official seeking the immunity bears the burden of showing that his actions are entitled to such absolute protection.” Lomaz, 151 F.3d at 497 (citing Burns v. Reed, 500 U.S. 478, 486 (1991)). The chief purpose of that immunity is not simply to shield court employees from unwanted litigation, but to protect “the independent and impartial exercise of judgment vital to the judiciary.” Antoine, 508 U.S. at 435. The Clerk has not shown that any of his actions at issue in this case implicates the independence or impartiality of the judicial process or that he can satisfy any test set forth in the caselaw entitling him to immunity. The court, therefore, will not dismiss NCBF’s claims in any respect on that ground. C. Eighth Amendment Claim
As the court has already explained, the Eighth Amendment of the U.S. Constitution forbids a court from conditioning a criminal defendant’s pretrial release on the payment of “excessive bail,” which has been interpreted to mean bail greater than the amount “reasonably calculated to” provide “adequate assurance that he will stand trial and submit to sentence if found guilty.” Stack, 342 U.S. at 5. For its first cause of action, NCBF alleges that, “[t]hrough enforcement of Rule 10(B) and his own garnishment policy, [the Clerk] violates the Eighth Amendment rights of all accused persons in the Nashville Criminal Courts” by subjecting those defendants to a monetary bail condition—consent to and liability for potential future garnishment—over and above what was calculated as necessary to serve the constitutionally permissible purposes of bail. (Doc. No. 1 ¶ 66.)
NCBF’s argument relies in significant party on the reasoning set forth by Justice Douglas for the Supreme Court in Cohen v. United States, 82 S. Ct. 526 (1962) (Douglas, J., in
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chambers10). In Cohen, the Court concluded that bail pending appeal that is conditioned on the payment of the defendant/appellant’s fine is “‘excessive’ in the sense of the Eighth Amendment because it would be used to serve a purpose for which bail was not intended.” Id. at 529; see also United States v. Rose, 791 F.2d 1477, 1480 (11th Cir. 1986) (“We have no doubt that the addition of any condition to an appearance bond to the effect that it shall be retained by the clerk to pay any fine that may subsequently be levied against the defendant after the criminal trial is over is for a purpose other than that for which bail is required to be given under the Eighth Amendment. Such provision is therefore excessive and is in violation of the Constitution.”); United States v. Powell, 639 F.2d 224, 225 (5th Cir. 1981) (“[W]e [have] rejected the government’s argument that the fine should be paid out of bail money because the United States, as a creditor, has the same right as other creditors to apply a debtor’s money in its possession to extinguish debts due.”); cf. State ex rel. Baker v. Troutman, 553 N.E.2d 1053, 1056 (Ohio 1990) (adopting similar reasoning under the Ohio Constitution). NCBF’s argument, echoing Cohen, is fairly straightforward: the Eighth Amendment permits the Twentieth Judicial District to require no bail in excess of what is required to reasonably ensure a defendant’s appearance; the garnishment policy is not necessary to ensure appearance and therefore represents the surrender of a right in excess of the constitutionally permissible bail amount; and the Clerk’s policies are, therefore, unconstitutional under the Eighth Amendment.
The Clerk argues, first, that this count should be dismissed “because the excessive bail clause does not guarantee the right to post a cash bail bond by a defendant, much less a third
10 An “in chambers” opinion is an opinion written and issued by a single judge of a multi-judge court, pursuant to a court rule allowing a lone judge to address certain secondary matters without obtaining concurrence from the full court or a panel thereof. See Daniel M. Gonen, Judging in Chambers: The Powers of a Single Justice of the Supreme Court, 76 U. Cin. L. Rev. 1159, 1173 (2008). In Cohen, Justice Douglas was addressing the issue of the bond amount set for a defendant pending appeal, which he was permitted to do without seeking concurrence of the other members of the Court. 82 S. Ct. at 527.
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party.” (Doc. No. 48 at 14.) As NCBF points out, however, nothing about its claim hinges on such a guarantee. The availability of bail in non-capital cases, as the court has explained, is a guarantee of Tennessee law and, therefore, is not an appropriate basis for a § 1983 claim. Similarly, the option to pay cash bail is a creation of state statute, and there is no basis for litigating the relevant statutes, in and of themselves, in federal court. What the U.S. Constitution requires—and what therefore can be the basis for a § 1983 claim—is that the State of Tennessee, having adopted a system of pretrial release pursuant to bail, limit any bail amount required to an amount that would not be “excessive,” as the term has been construed in constitutional caselaw. See Fields, 701 F.3d at 184 (“[T]he Eighth Amendment mandates that when bail is granted, it may not be unreasonably high in light of the government’s purpose for imposing bail.”). The Clerk’s first argument, in other words, is not directed at any principle that NCBF has advanced.
The Clerk argues, next, that the court should dismiss this claim because the Twentieth Judicial District’s garnishment policy does not amount to an unconstitutional precondition on bail of the type prohibited by Cohen. In Cohen, Justice Douglas had granted a criminal appellant, Meyer Harris Cohen, bail in the amount of $100,000 during the pendency of his appeal, conditioned on the approval of the district court. The district court modified the bail to state that “of the $100,000 bail it be provided that $30,000 thereof be applicable to the payment of the fine” assessed against Cohen for his conviction. Cohen, 82 S. Ct. at 527. Cohen appealed, and Justice Douglas, acting on behalf of the Court, rejected the condition as in violation of the Eighth Amendment and the relevant Federal Rule of Criminal Procedure. Id. Justice Douglas wrote that “a requirement that the bail bond . . . should also operate as a supersedeas to a judgment for the payment of a fine” would “‘ma[k]e the bail required excessive’ . . . in the sense of the Eighth
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Amendment because it would be used to serve a purpose for which bail was not intended.” Cohen, 82 S. Ct. at 528 (quoting Cain v. United States, 148 F.2d 182, 183 (9th Cir. 1945)).
The Clerk is correct that this case does not present the precise situation covered by Cohen, because Cohen’s bail was being applied toward the payment of a fine already assessed, whereas NCBF’s program participants are being forced to have their bail applied toward potential fines, fees, and costs to be assessed. The court, however, sees no reason why that distinction would be of any importance for Eighth Amendment purposes. What matters, for the purposes of Cohen—and, even aside from Cohen, for the purposes of the Excessive Bail Clause—is whether all or a portion of the bail is being applied for the improper purpose of collecting fines or other costs, rather than ensuring appearance.
The Twentieth Judicial District’s system, as it currently exists, functions like this: a court sets what it determines is an appropriate dollar figure to be posted as bail to secure the defendant’s release; that dollar figure is communicated to the Clerk, whose job it is to take and look after the money; but, then, when NCBF comes to post bail, it is required to surrender not merely the dollar figure determined by the court, but also an additional, valuable asset—the consent to garnishment—that was not included in any calculation of what was necessary to ensure the defendant’s appearance in court. In other words, NCBF is being required to transfer a thing of value that is literally in excess of—meaning “in surplus to”—the bail amount calculated to be necessary. The plain language of the Eighth Amendment prohibits such a practice.
Although Cohen itself is merely an “in chambers” opinion and does not appear to have a significant history of being applied in this circuit, the Sixth Circuit has continued to affirm that the purpose of money bail is to “ensure the appearance of the . . . defendant” and that “‘[t]he fixing of bail for any individual defendant must be based upon standards relevant to the purpose
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of assuring the presence of that defendant.’” Fields, 701 F.3d at 184 (quoting Stack, 342 U.S. at 5). A court may, to that end, enact certain uniform bail policies, as long as those policies are justified in relation to the traditional purposes of bail. Id. At least at this stage, however, the Clerk has identified no basis for concluding that the Twentieth Judicial District’s garnishment policy is supported by those traditional purposes. To the contrary, the most plausible explanation for the policy is that it is a mere fiscal convenience, allowing the court to recover money owed without going through the steps of the ordinary civil collections process. See Tenn. Code Ann. § 40-24-105(a); Tenn. R. Civ. P. 69.05–.07; Tenn. Op. Att’y Gen. No. 06–135 (Aug. 21, 2006) (explaining that civil collection tools are available for the collection of criminal court debt). It will always be easier to have a debt satisfied by just reclassifying money that one already possesses than to seek the money elsewhere, especially where the money’s otherwise rightful owner has been forced to sign a document prospectively agreeing to the reclassification. That fiscal convenience, however, has no relationship to the traditional purposes of bail, and the Twentieth Judicial District, therefore, exceeded the boundaries of permissible bail under the Eighth Amendment by including such conditions in its uniform bail policy. The court therefore will not dismiss this claim. D. Unconstitutional Conditions Claim
“[T]he Fourteenth Amendment ‘forbids the government to infringe ‘fundamental’ liberty interests . . . , no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). This guarantee, which touches on an array of subject matters, see Bell v. Wolfish, 441 U.S. 520, 534 (1979) (collecting cases), is often discussed as involving “substantive due process”—the principle that some “fundamental rights and liberties”
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are recognized by the constitutional due process as so in need of protection that no procedure, alone, can be adequate to guard against their deprivation, unless the substantive basis for the deprivation is itself sufficiently precise and directed toward a sufficiently important purpose. Glucksberg, 521 U.S. at 721. Based on those principles, NCBF, as its second claim for relief, alleges that “[a]n arrested person has a constitutionally protected fundamental liberty interest in pretrial release,” and the Twentieth Judicial District’s garnishment scheme amounts to a restriction on that right that “is not narrowly tailored to promote a compelling government interest.” (Doc. No. 1 ¶¶ 69, 71.)
In United States v. Salerno, which involved an ultimately unsuccessful challenge to Bail Reform Act, the Supreme Court recognized the “general rule,” under substantive due process principles, “that the government may not detain a person prior to a judgment of guilt in a criminal trial” unless that detention satisfies what appears, in that opinion, to be a heightened level of constitutional scrutiny—although the precise holding of Salerno in that regard is not entirely clear. Salerno, 481 U.S. at 749. The Supreme Court stressed, however, that it acknowledged “the importance and fundamental nature of” a defendant’s right to physical freedom from incarceration prior to conviction. Id. at 750. The court, moreover, explicitly considered the “compelling” nature of the government’s interest in the pretrial policies challenged in Salerno, as well as “Congress’ careful delineation of the circumstances under which detention will be permitted.” Id. at 749–50. At the very least, therefore, Salerno suggests that pretrial detention must pass a test relatively similar to the test used in other settings involving fundamental rights. See Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th Cir. 2014) (discussing “Salerno’s heightened scrutiny”).
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Salerno acknowledged a number of constitutionally permissible types of detention of individuals without a conviction, particularly those involving risk of harm to the public or the risk of absconding before trial or deportation. Id. at 748–69 (citing Addington v. Texas, 441 U.S. 418 (1979) (commitment based on mental illness); Gerstein v. Pugh, 420 U.S. 103 (1975) (pretrial detention); Jackson v. Indiana, 406 U.S. 715, 731–39 (1972) (detention of incompetent criminal defendant awaiting becoming competent); Greenwood v. United States, 350 U.S. 366 (1956) (same); Wolfish, 441 U.S. at 534 (pretrial detention); Carlson v. Landon, 342 U.S. 524, 537–42 (1952) (detention pending deportation); Wong Wing v. United States, 163 U.S. 228 (1896) (same)). The Clerk, however, has not identified any relationship between the policy of mandatory consent to garnishment and the interests of public safety or ensuring appearance. To the contrary, as the court has already discussed, the purpose of the garnishment policy appears to be fundamentally pecuniary: garnishment is simply the easiest way to collect money owed to the court.
The Supreme Court recently addressed whether the government’s interest in recouping funds owed to it is sufficient to permit a challenged law to survive strict scrutiny. In Barr v. American Association of Political Consultants, 140 S. Ct. 2335 (2020), the Court considered the constitutionality of the “government debt exception” to the federal prohibition on robocalls to mobile phones and home phones. Barr, 140 S. Ct. at 2343. The Court’s analysis of the issue of compelling purpose was short, however, because even the government itself conceded that the argument was, at least in that posture, a non-starter. The Court wrote:
The Government concedes that it cannot satisfy strict scrutiny to justify the government-debt exception. We agree. The Government’s stated justification for the government-debt exception is collecting government debt. Although collecting government debt is no doubt a worthy goal, the Government concedes that it has not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech, such as
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political speech, charitable fundraising, issue advocacy, commercial advertising, and the like . . . . Barr, 140 S. Ct. at 2347; see also Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250, 263 (1974) (rejecting fiscal savings as a sufficient basis for justifying constitutionally suspect policy). Here, as well, there is no basis for concluding that the government needs to rely on garnishment so badly that it justifies impinging on a right as important as physical freedom from detention. A factual record may illuminate the strength of the government’s interest in the garnishment policy, as well as whether more narrowly tailored alternative policies are available. At this stage, however, NCBF was required only to plead a plausible claim on which relief can be granted. Finally, the Clerk argues that, even if one generally accepts NCBF’s constitutional analysis, the Clerk’s garnishment policy is not, in fact, unconstitutional, because a defendant’s release is not actually conditioned on garnishment. (Doc. No. 48 at 7.) Specifically, the Clerk claims that, if a defendant can simply afford a commercial bail bonding company that will post a surety bond, rather than a cash bail, then no garnishment will occur. This argument is unavailing for at least two reasons. First, it hinges on factual details about Clerk’s Office policies that are outside the four corners of the Complaint and are therefore inappropriate for consideration under Rule 12(b)(6). Second, and perhaps more importantly, it is not clear to the court why the Clerk’s policy of not garnishing bail in some situations can constitutionally redeem its mandatory garnishment in other situations. NCBF has not challenged the Clerk’s treatment of individuals who post surety through commercial bonding companies, only those who post cash bail through NCBF. Because it has set forth a plausible claim for relief in that regard, the court will not dismiss its claim. E. Claim Based on Deprivation of Liberty Without Due Process
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“The Fourteenth Amendment of the United States Constitution protects individuals from the deprivation ‘of life, liberty, or property, without due process of law.’” EJS Props., LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012) (quoting U.S. Const. amend. XIV, § 1). That language has been construed to “require[] that the government provide a ‘fair procedure’ when depriving someone of life, liberty, or property.” Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992); citing Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992)). For its third cause of action, NCBF alleges that, “[w]hen [the Clerk] garnishes cash bail deposits made by third parties, those third parties are not given notice or an opportunity to be heard by a neutral decisionmaker prior to garnishment,” in violation of that guarantee.
The Clerk argues, first, that the court should dismiss this claim because NCBF does not have a property interest in the funds it posts as cash bail for its program participants. The Clerk relies on Tenn. Code Ann. § 40-11-118(a), which states, in relevant part:
Any defendant for whom bail has been set may execute the bail bond and deposit with the clerk of the court before which the proceeding is pending a sum of money in cash equal to the amount of the bail. Upon depositing this sum, the defendant shall be released from custody subject to the conditions of the bail bond. The Clerk argues that this provision discusses only the defendant himself posting cash bond, not a third party such as NCBF, suggesting that, regardless of who posts cash bail, the cash bail belongs to the defendant. The right to recover the funds, the Clerk argues, therefore belongs to the defendant alone. The Clerk’s position is, among other things, directly contrary to the position set forth on his own Clerk’s Form, which requires the signatory to acknowledge, “I further understand the person tendering the cash bond is due the refund, upon request, once all fines, fees, court costs, taxes, and restitution are satisfied.” (Doc No. 1-3 at 2 (emphasis added).) That form, moreover, is
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promulgated by the Clerk pursuant to Rule 10(B), which directs that “[a]ny individual who desires to deposit a cash bond with the Clerk pursuant to [Tenn. Code Ann.] §40-11-118 shall be notified in writing by the Clerk that such cash deposit shall be returned subject to any fines, court costs or restitution as ordered by the Court.” (Doc. No. 1-2 at 10 (emphasis added).) Therefore, insofar as there is any question whether the state’s statutes recognize the property interest of a third party who posted cash bail, it is clear that the Twentieth Judicial District’s own rules do.
In any event, however, the Tennessee Supreme Court has already squarely addressed the issue of whether a third party that posts bail money can retain a property right in that money and concluded that it can. In State v. Clements, 925 S.W.2d 224, 226 (Tenn. 1996), the court considered whether a court could garnish the bail posted by a father for his son without the father’s assent and concluded that it could not. The court specifically rejected the argument, revived by the Clerk here, that “funds . . . deposited on [a] defendant’s behalf” should be “treated as his property.” Id. at 225.
The Clerk argues next that NCBF cannot state a claim for deprivation of due process because its signing of the Clerk’s Form was effectively a waiver of any right on its behalf to a hearing. The Clerk’s Form, however, is a take-it-or-leave-it proposition: one can sign the form or one can be refused the opportunity to post bail. The Clerk has not identified any source for concluding that this kind of mandatory prospective waiver is a suitable substitute for a right to a hearing before (or at least after) a party is deprived of a property right. To the contrary, such an argument would seem to run directly afoul of the principle that the “unconstitutional conditions doctrine . . . prohibit[s] the government from conditioning benefits on a citizen’s agreement to surrender due process rights.” R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 434 (6th
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Cir. 2005) (citing Vance v. Barrett, 345 F.3d 1083, 1089 (9th Cir. 2003)). The government cannot simply eliminate all due process rights in a program by requiring a waiver as the price of admission.
Finally, the Clerk argues that it is simply factually untrue that NCBF lacks an opportunity for a contested hearing seeking the return of its funds. That may be the case, and, if so, it may be fatal to NCBF’s claim. At this stage, however, the court is bound to accept, as true, the allegations of its Complaint. NCBF has alleged as follows:
Beginning on September 30, 2019, NCBF representatives requested a pregarnishment hearing in writing on the Clerk’s Form approximately thirty times that they posted bail. Rather than providing any forum for a hearing, Gentry ignored these requests. Instead, his staff simply notified the NCBF that pursuant to Rule 10(B), he will automatically take any amount owed by an NCBF participant out of the cash bail deposit when a refund request is made and processed. (Doc. No. 1 § 57; see also id. § 20 (“[T]here is no forum in which the NCBF can contest the garnishment of its deposited funds to satisfy . . . a judgment.”) The court will not wade into speculation or premature consideration of factual issues regarding alternative methods that NCBF might have pursued that might have resulted in a hearing. At this stage, NCBF’s obligation was merely to plausibly state an alleged violation of the relevant constitutional guarantee, and it has done so. The court therefore will not dismiss its claim.
V. CONCLUSION For the foregoing reasons, the Clerk’s Second Motion to Dismiss (Doc. No. 47) will be denied. An appropriate order will enter.
______________________________ ALETA A. TRAUGER United States District Judge
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

The Nashville Community Bail Fund,

Case No.

Plaintiff, v.

Hon. Howard Gentry, Criminal Court Clerk; in his official capacity;

Defendant.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

I.

PRELIMINARY STATEMENT

1. Low-income people arrested and jailed in Davidson County face an unconscionable choice: endure the irreparable harm of pretrial confinement, or struggle to post bail, typically through a commercial surety company that requires a substantial, non-refundable deposit. Every day in Davidson County, hundreds of people remain in jail pretrial simply because they cannot pay an upfront money bail requirement. Pretrial incarceration devastates the individuals detained, their families, and their community. These negative consequences are well established: detention exposes people to violence and unsanitary conditions, stigmatizes them, and renders family and work responsibilities nearly impossible.

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2. Unfortunately, accessing the money necessary to pay bail is not the only hurdle persons in Davidson County jails face to exercise their fundamental liberty interest. Local officials further use the pretrial bail system to collect fines and fees from arrested individuals, their families, and other third parties. Under Davidson County Local Rule Governing Bail Bonds 10(B), Defendant Criminal Court Clerk Howard Gentry garnishes cash bond deposits to collect judgment debts from court costs, fines, and restitution. Pursuant to policies created by his office, Gentry requires that people posting cash bonds acknowledge notice of and agree in writing to any future garnishment. Without a signed form, Gentry’s office will refuse to accept a bail bond1 deposit, and the person on whose behalf bond was to be posted will remain incarcerated. In this manner, Gentry unlawfully uses future garnishment of cash bail deposits as a pre-condition of someone’s pretrial release, for the sole purpose of ensuring post-judgment payment of fines, court costs, and restitution.
3. The Nashville Community Bail Fund (“NCBF” or “Bail Fund”) is a charitable organization established in 2016 to free persons from jail prior to trial who cannot afford to pay a money bond requirement, and to end wealth-based detention
1 Plaintiff refers in the Complaint to “bail” and “bond” interchangeably because this case deals with instances in which the form of bail required is a monetary bond. The terms are not otherwise synonymous, however, as courts may set other non-monetary conditions as terms of conditional release or “bail.” See, e.g., Harvard Law School Criminal Justice Policy Program, Moving Beyond Money: A Primer on Bail Reform, 5–6 (Oct. 2016), https://cutt.ly/Trvw1lG.
2
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by demonstrating the ineffectiveness of conditioning pretrial release on the payment of money. To sustain its operation, the NCBF uses a revolving fund that relies on recovering posted bond money at the conclusion of a participant’s case. Because the court may forfeit and completely retain posted bonds for those who fail to appear, the NCBF stakes its survival on participants returning to court.2
4. The NCBF now faces a threat to its existence unrelated to whether the people it bails out successfully return to court. For years, the Davidson County Criminal Court Judges granted the NCBF an exemption from Rule 10(B). The Criminal Court Judges revoked this exemption on September 30, 2019. Shortly thereafter, Gentry began enforcing both Rule 10(B) and his policy of conditioning acceptance of money bonds on receiving written agreement to garnishment against the Bail Fund. As a result, the NCBF and the persons it frees from jail are now subject to the same injuries local officials have long inflicted upon others.
5. Rule 10(B) and Gentry’s garnishment policy violate the Eighth and Fourteenth Amendment rights of those navigating the post-arrest system. The
2 The NCBF is one of several such charitable bail funds operating across the country. See, e.g., The Bronx Freedom Fund, https://cutt.ly/mrdsLbN (charitable bail fund established in the Bronx, New York, in 2007); Our Mission, Chicago Community Bond Fund, https://chicagobond.org (charitable bail fund formally launched in 2015); Detroit Justice Center, Bail Project, https://cutt.ly/brdsMtB (charitable bail fund in Detroit); Hawai‘i Community Bail Fund, https://cutt.ly/jrdduBr (charitable bail fund in Oahu, Hawai‘i).
3
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policies leverage the duress of pre-trial incarceration to extract tens of thousands of dollars annually from arrested individuals and their support networks, for the sole purpose of maximizing revenue for the court system. These garnishment practices bear no relationship to the constitutionally acceptable purpose of money bail: reasonably assuring court appearance. Gentry’s enforcement of these policies harms presumptively innocent people and their support networks by impermissibly taxing pretrial freedom and chilling the posting of bail.
6. Rule 10(B) and Gentry’s garnishment policy also threaten the existence of the NCBF by preventing it from fully recovering the bonds it posts and replenishing its revolving fund. The policies will inevitably bankrupt the NCBF, which will in turn trap people in the Davidson County jails on unaffordable financial conditions of release, with no way to exercise their fundamental pretrial liberty interest.
7. Rule 10(B) and Gentry’s garnishment policy violate the rights of arrested persons and injure the NCBF by: (1) rendering money bail unconstitutionally “excessive,” (2) improperly burdening the constitutional right to pretrial release, and (3) depriving the NCBF of property without due process.
8. Plaintiff NCBF brings this action against Davidson County Criminal Court Clerk Gentry seeking: (1) a preliminary and permanent injunction halting
4
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enforcement of both Rule 10(B) and Gentry’s additional policies, (2) declaratory

relief, (3) attorneys’ fees, (4) costs, and (5) any other relief the Court deems

appropriate.

II.

JURISDICTION AND VENUE

9. The Court has jurisdiction over the claims brought in this action under

28 U.S.C. § 1331, the Eighth and Fourteenth Amendments to the United States

Constitution, and 42 U.S.C. § 1983.

10. Venue is proper under 28 U.S.C. § 1391(b)(2) because all parties reside

in this District, and a substantial part of the events and omissions giving rise to

Plaintiff’s claims occurred in this District.

III.

PARTIES

11. Plaintiff Nashville Community Bail Fund is a Tennessee non-profit corporation founded in 20163 and based in Nashville. The NCBF is registered under I.R.C. § 501(c)(3). The NCBF pays cash bail for individuals who cannot afford to do so in order to alleviate the harms caused by unfair wealth-based pretrial detention.

3 The NCBF was initially started as a subsidiary of the non-profit organization Just City, and formally became an independent non-profit entity in 2018.
5
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The NCBF deposits the entirety of a person’s bail requirement4 with the Criminal

Court Clerk in cash to facilitate their release from jail.

12. Defendant Howard Gentry is the Criminal Court Clerk for Davidson

County. Gentry enforces both Rule 10(B) and his office’s policy requiring depositors

to acknowledge notice of potential forfeiture prior to posting bail amounts.

IV.

STATEMENT OF FACTS

A. Defendant’s Enforcement of The Rule 10(B) Garnishment Policies Improperly Leverages Pretrial Release to Guarantee Revenue

13. The majority of people arrested and detained in Davidson County must pay a secured bail bond to be released from jail prior to trial. The amount of bail required is typically set by judicial commissioners, but can also be set and/or reviewed by a General Sessions Judge or a Criminal Court Judge.
14. In Tennessee, monetary bail requirements can be secured in one of three ways: (1) using real property as collateral, (2) depositing the full cash bond amount with the Clerk, or (3) hiring a for-profit commercial surety company, typically for a

4 As noted above, the Complaint refers to secured, upfront requirements of a payment of money as a condition of release by a variety of terms including “cash bail,” “money bail,” “cash bond deposits,” and “bail bonds.” While there are technical differences, for example, between “bail” (a conditional form of pretrial release) and a bond (collateral posted in service of that release) and multiple forms of “money bail” (for example, deposits that are only required in the event of a failure to appear known as “unsecured bonds”), this Complaint pertains only to these upfront requirements of a deposit of money.
6

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non-refundable fee equivalent to 10% of the bond amount. See Tenn. Code Ann. §§ 40-11-118(a) and 40-11-122.
15. Davidson County Local Rule Governing Bail Bonds 10(B) provides: Any individual who desires to deposit a cash bond with the Clerk pursuant to TCA § 41-11-118 shall be notified in writing by the Clerk that such cash deposit shall be returned subject to any fines, court costs, or restitution as ordered by the Court. No cash bond may be received in the amount of $10,000.00 or more without notice to the District Attorney General and a hearing in open court pursuant to TCA § 3-911-715 [sic].5 See Local Rules Governing Bail Bonds, Ex. A. The Davidson County Criminal Court Judges adopted this policy in 2008. 16. At initial bail hearings in Davidson County, neither the local judges nor any other official provides notice that money bail paid in cash will be garnished under Rule 10(B) to satisfy any fines, court costs and restitution assessed. As such, arrestees have no opportunity to challenge the legality or application of Rule 10(B) when bail is set. 17. Typically, people learn about the Rule 10(B) policy when they arrive at the Clerk’s Office seeking to pay a cash bond. There, they receive a document (“Clerk’s Form”), promulgated by the Criminal Court Clerk’s office, that quotes Rule 10(B) and further states, in part:
5 The statutory authority for this final provision is Tenn. Code Ann. §39-11-715. 7
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I . . . understand this cash bond is subject to execution for satisfaction of all fines, fees, court costs, taxes and restitution assessed against the defendant in ALL matters related to this warrant/case number(s), probation violation or other post judgment issue. I further understand the person tendering the cash bond is due the refund, upon request, once all fines, fees, court costs, taxes, and restitution are satisfied . . . See Clerk’s Form, Ex. B. 18. Gentry will not accept a cash bond payment unless the person paying the bond signs this form. If that person refuses to sign the form, Gentry does not accept the cash bond, and the arrested person remains incarcerated. Further, any effort by someone to first challenge the garnishment scheme would prolong the arrestee’s pretrial incarceration by days, weeks, or even months, because the Clerk does not accept bail and effectuate release without agreement to Rule 10(B). Faced with this conundrum, those paying bail are compelled either to sign the form or leave the person they seek to free in jail. 19. When cash bond payments are made, Gentry enforces Rule 10(B) by automatically extracting from cash bond deposits any court costs, fines, and restitution the court assessed against the criminal defendant when the depositor requests a refund after the completion of the criminal case. 20. Local officials provide no forum for individuals or the NCBF to challenge the legality of garnishment during the pendency of the arrestee’s criminal case or at any other time. And, although an individual may appeal a judgment against
8
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her after conviction, there is no forum in which the NCBF can contest the garnishment of its deposited funds to satisfy such a judgment.
21. In this way, Rule 10(B) and Gentry’s garnishment policy exploit individual arrestees and those who seek to pay their bond by leveraging the duress caused by confinement in jail to guarantee future payment of fines, court costs, and restitution. This policy injures arrestees and third parties who pay their bail by conditioning the right to pretrial release upon the future payment of post-judgment costs.
22. The Rule 10(B) policy generates revenue for Davidson County. Between January 1, 2016 and September 30, 2019, bail garnishments through Rule 10(B) yielded a total of $154,641.77.6 B. The Rule 10(B) Policies Improperly Burden the Exercise of Individuals’
Strong Liberty Interest in Pretrial Release
23. When a judge sets bail in an individual’s criminal case, the judge necessarily deems the individual eligible for pretrial release. An arrested person has a constitutionally protected fundamental liberty interest in pretrial release; once
6 This money appears to have been garnished disproportionately from Latinx people, as noted by the Metro Human Relations Commission in a November 12, 2019 letter.
9
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a money bail condition has been set in an individual’s case, she has a further liberty interest in posting bail and securing her freedom.
24. Rule 10(B) and Gentry’s garnishment policy burden the individual right to pretrial release by conditioning an arrestee’s pretrial liberty on a guarantee of payment for any future debts. This garnishment scheme is unrelated to the acceptable purposes of bail.
25. Generally, persons paying an arrestee’s bail must accept the risk that they may lose their bail deposit if the arrestee fails to return to court. Rule 10(B) and Gentry’s garnishment policy, however, impose an additional financial loss on such persons: they will be forced to pay any court costs, fines, or restitution assessed against the arrestee at the end of the case, even if the arrestee returns to court as required.
26. The amounts of fines, court costs or restitution that courts assess varies widely based on the individual circumstances of a given case, and can range from a few hundred dollars up to several thousand dollars. Tennessee law grants judges broad discretion to waive these amounts for convicted persons, or to dismiss a case but still require payment of costs. There is no way for those posting bond, such as the NCBF, to predict whether a person will owe court debt at the end of a case, and if so, how much.
10
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27. Faced with potential garnishment of their bail deposit under Rule 10(B) and Gentry’s garnishment policy, third parties otherwise willing to pay a cash bail may choose not to do so. Even if reasonably assured that an arrestee will return to court, many individuals may be unwilling to risk losing some or all of their bail deposit to satisfy the arrestee’s post-judgment debt. In such cases, an arrestee remains in jail unless she can secure another option for release. Those unable to post an alternative form of bond often plead guilty in exchange for release.7
28. The garnishment scheme also burdens the exercise of individual liberty rights by incentivizing people to enter exploitative contracts with commercial bail agents. Rather than risk losing the full amount of their bail deposit, even if the arrestee returns to court, individuals and third parties may opt to pay a smaller nonrefundable fee to a commercial surety company, which is not subject to the garnishment scheme. When arrestees and their families post bond with a commercial surety, they are often subjected to additional terms and conditions such as private
7 See, e.g., Megan Stevenson, et al., The Downstream Consequences of Misdemeanor Pretrial Detention 3–4 (July 2016), https://cutt.ly/Qe3WPjm (finding incarcerated misdemeanor arrestees are 25% more likely than similarly situated persons to plead guilty and 43% more likely to be sentenced to time in jail); Mary T. Philips, Ph.D., New York Criminal Justice Agency, Inc., A Decade of Bail Research in New York City, 116 (August 2012), https://cutt.ly/6e3WDrE (“The data suggest that detention itself creates enough pressure to increase guilty pleas without the need for the extra inducement of a reduced charge.”)
11
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location monitoring, telephonic and personal check in requirements, submission to arrest for any reason, and additional fees. C. The NCBF and the Persons It Frees From Jail are Now Injured by the
Local Garnishment Scheme in the Same Manner as Others
29. The NCBF is a charitable organization established in 2016. The NCBF uses a revolving fund to pay secured cash bail deposits on behalf of persons who would otherwise remain in jail because they cannot afford bail.8 The revolving fund model depends on the NCBF receiving full refunds of the bail it posts when a case concludes, which the NCBF then uses to pay another bail.
30. Shortly before the NCBF began operations, the Criminal Court Judges of Davidson County promulgated a rule exempting the Bail Fund from Rule 10(B)9. See 10(B) Policy Orders, Exs. C, D. The NCBF operated successfully under that exemption for the next three years, receiving full refunds of its bail deposits in cases that reached a conclusion.
8 Historically, the NCBF posted bail amounts up to $5,000, but it has reduced its individual limit to $2,000 to, among other things, mitigate its losses due to garnishment. 9 The Davidson County Criminal Court Judges set bail policy for Davidson County pursuant to, inter alia, Tenn. Code Ann. § 40-11-123, which gives them the power to regulate the sufficiency of sureties.
12
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31. On April 17, 2019, the Criminal Court Judges held a meeting with representatives from the NCBF to decide whether to rescind the policy exempting the NCBF from Rule 10(B).
32. On May 6, 2019, the Criminal Court Judges rescinded the NCBF’s exemption from Rule 10(B), based on an apparent concern that the total dollar amount of bail posted by the NCBF in conditional forfeiture status was too high.10 See Preliminary 10(B) Policy Order, Ex. C. The Criminal Court Judges did not explain how revoking the NCBF’s exemption from Rule 10(B) would address their conditional forfeiture concern, let alone promote court appearances by individuals whose bail is posted by the Bail Fund.
33. The NCBF requested that the Criminal Court Judges reverse their decision. However, after another court meeting, the Criminal Court Judges denied the request on August 29, 2019. Ex. D. Once again, the judges expressed their apparent concern about conditional forfeitures, and did not explain how revoking the NCBF’s exemption from Rule 10(B) serves to promote the purpose of bail.
10 Though it is immaterial with respect to the constitutional claims set forth in this Complaint, the proportion of NCBF bail deposits in conditional forfeiture cited by the Criminal Court Judges status is artificially inflated. The Criminal Court Judges are authorized to set cases on for final forfeiture hearings after a conditional forfeiture is noted, but did not do so in a number of the Bail Fund’s cases. The NCBF addressed this point in its materials requesting the Criminal Court Judges to rescind their policy decision.
13
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34. The decision to eliminate the NCBF’s exemption from Rule 10(B) became final on September 30, 2019. Since then, Gentry has required NCBF representatives seeking to pay cash bail to sign the Clerk’s Form. NCBF representatives comply, but only because Gentry’s office refuses to accept the bail payment otherwise, and the person whose bail they seek to pay would then remain in jail. NCBF representatives note on the Clerk’s Form that they are signing “under protest.” See, e.g., Z. Garcia Clerk’s Form Sept. 30, 2019, Ex. E (noting the Bail Fund signed under protest, and requesting a hearing prior to garnishment).
35. The NCBF now does not deposit more than $2,000 on behalf of an arrestee. The NCBF lowered its previous $5,000 bail ceiling to limit its potential financial losses under the garnishment scheme. Further, in light of its projected losses under the garnishment policies, the NCBF instituted a $20,000 monthly cap in January 2020 on the total amount of bail it will post. By comparison, in 2019 the Bail Fund posted an average of $67,312.50 in bail each month. As a result of the new monthly cap, persons for whom the NCBF would have posted bail but for the garnishment scheme will now remain incarcerated. D. The Rule 10(B) Garnishment Policies Perpetuate a Two-Tiered Pretrial
System, Causing Widespread Individual and Systemic Harms
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36. Rule 10(B) and Gentry’s bail garnishment policy contribute to a large-
scale system of pretrial detention, which will only worsen as the NCBF’s operations
decrease.
37. In 2019, there were 24,860 physical arrests11 in Davidson County.
Under local practice, pretrial liberty for most arrestees is determined by whether they
can access enough money to post a secured bail requirement set by a judicial
commissioner or judge.12
38. In 2019, only 23% of those arrested in Davidson County were released
from jail pretrial without being required to meet a monetary condition.13 Another
30% of arrestees met the financial condition of their release by paying a
11 Criminal Justice Planning of Nashville and Davidson County, Monthly Criminal Justice Report, (Jan. 21, 2020). “Physical arrest” means the person was taken into custody and booked into jail. There were an additional 12,442 arrests in Davidson County during the same time frame by state citation or criminal summons. Id. Persons arrested by citation or summons are not taken to jail. 12 See, e.g., Southerners on New Ground Nashville, Courtwatch Mini Report, (documenting 114 bail hearings in 2019, finding secured bail requirements imposed in 93% of cases) (Dec. 2019), https://cutt.ly/vrj4mrT; Letter from Civil Rights Corps to Jon Cooper, Director of Law, Metropolitan Government of Nashville and Davidson County (outlining “Metro’s reflexive use of secured financial conditions in almost every single case…”) (June 21, 2017), https://cutt.ly/zrOIqug. 13 19% of arrestees were released under the supervision on the Davidson County Pretrial Release Program, and 4% were released on their own recognizance. See Criminal Justice Planning Report, supra note 11; Metropolitan Government of Nashville and Davidson County, 2019 CJIS Report Bond Release Totals (Feb. 4, 2020).
15
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nonrefundable deposit to a surety company. Less than 3% of arrestees secured their release through a cash or property bond.14 The remaining 44% of arrestees remained in jail pretrial, most because they could not access the money necessary to pay a secured bail requirement.
39. Davidson County’s reliance on secured bail creates a two-tiered system in Nashville, where those with access to money are able to obtain their pretrial liberty, while those without access to money cannot. As discussed below, those jailed and their families suffer compounding harms. The scope of the problem is substantial. On the average day in 2019, more than 900 people (almost 60% of the entire jail population)15 were incarcerated in Nashville’s jails awaiting trial, most because they could not pay their secured bail.
40. Secured money bail does not promote public goals of assuring court appearance and effectuating speedy pretrial release. In a study replicated in two jurisdictions, there was no meaningful difference in court appearance rates16 among similarly situated individuals based on whether they posted a secured or unsecured
14 2019 CJIS Report, supra note 13. 15 This statistic excludes “locally-sentenced felons,” who are persons serving state prison sentences of 1-6 years in the Metro CCA Detention Facility. 16 The output variable researched in these available studies—failure to appear—is a proxy for the central concern at the time of a bail decision, which is the risk of intentional flight.
16
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bond.17 Secured bail requirements, however, increase pretrial detention, and even
short-term pretrial detention is associated with more failures to appear and arrests
during the pretrial period.18 Multiple federal courts, including the Fifth Circuit Court
of Appeals, have recognized the validity of these research findings,19 and further
17 Michael Jones, Ph.D., Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option (Oct. 2013), https://cutt.ly/Se3WGqK (controlling for risk level and finding that persons released on unsecured bonds performed as well as those released on secured bonds in terms of court appearance rates); Brooker, Claire M. B., et al., The Jefferson County Bail Project: Impact Study Found Better Cost Effectiveness for Unsecured Recognizance Bonds Over Cash and Surety Bonds (June 2014) (finding the same in another jurisdiction); see also Claire M.B. Brooker, Yakima County, Washington Pretrial Justice System Improvements: Preand Post-Implementation Analysis, 6 (Nov. 2017), https://cutt.ly/3e3YW8M (observing similar rates of court appearance, but increased release, after reforms implemented that utilized unsecured bonds more frequently). 18 Christopher T. Lowenkamp et al., Laura and John Arnold Foundation, The Hidden Costs of Pretrial Detention 4 (Nov. 2013), https://cutt.ly/4e3YVvR (concluding that longer pretrial detention is associated with the likelihood of failure to appear pending trial); Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge Randomization 15, 21 (Aug. 18, 2016) https://cutt.ly/Ae3YN0J (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”) 19 See, e.g., ODonnell v. Harris Cty., Texas, 251 F. Supp. 3d 1052, 1120 (S.D. Tex. 2017), aff’d as modified, 892 F.3d 147 (5th Cir. 2018) (referring to evidence of the efficacy of unsecured bonds as “the most recent and credible evidence”); Schultz v. State, 330 F. Supp. 3d 1344, 1362–63 (N.D. Ala. 2018) (discussing studies evaluating efficacy of unsecured bonds and concluding that “most defendants released without financial incentives to appear in court still appear at a very high rate.”); McNeil v. Cmty. Prob. Servs., LLC, 2019 WL 633012, at *14–15 (M.D. Tenn. Feb. 14, 2019) (Citing expert report of Dr. Michael Jones, finding evidence that short-term pretrial detention yields higher failure to appear rates persuasive); Dixon v. City of St. Louis, 2019 WL 2437026, at *15 (E.D. Mo. June 11, 2019) (summarizing and adopting evidentiary findings from ODonnell, Schultz, and
17
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noted the overwhelming success of persons whose release is secured by a charitable
bail fund.20
41. Pretrial detention due to inability to pay money bail also has significant
negative consequences. Those incarcerated have difficulty conferring with attorneys
to defend their case, face mounting pressures as work and family responsibilities go
untended, are unable to provide for their own medical needs or those of dependents,
and are left in unsafe and unsanitary conditions.21 Controlling for other factors,
pretrial incarceration is the single greatest predictor of a conviction: many people
McNeil); see also Buffin v. City and Cty. of San Francisco, 2019 WL 1017537, at *22 (N.D. Cal. March 4, 2019) (finding defense expert testifying to efficacy of release on surety bond based on unrelated proxy data “less reliable and persuasive than other data presented”). 20 See, e.g., ODonnell, 892 F.3d at 153, 159 (upholding district court factual findings, including regarding high court appearance rates of persons whose bail is paid by charitable bail funds in New York City), see ODonnell v. Harris Cty., Tex., 251 F. Supp. 3d 1052, 1120 (S.D. Tex. 2017), aff’d as modified, 892 F.3d 147 (5th Cir. 2018) (“None of those defendants has a financial incentive to return to court. Only the bail funds lose money if the arrestee fails to appear. But the bail funds have consistently achieved [high] appearance rates.”); Schultz, 330 F. Supp. at 1363 (Vast majority of criminal defendants “whose bail was paid by charitable organizations, i.e. who had no ‘skin in the game,’ made all court appearances.”); Dixon, 2019 WL 2437026 at *15 n. 18 (noting high court appearance rates of participants in the St. Louis Bail Project, as well as the fact that approximately half of its participants’ cases ended in dismissals). 21 See, e.g., William S. Paul, M.D., MPH, FACP, Director of Health, NashvilleDavidson Metro Public Health, Response and Investigation of a Rash Outbreak at the CoreCivic Facility (July 6, 2017), https://cutt.ly/we3WRb1 (documenting scabies outbreak at one of the jails where pretrial detainees are incarcerated in Davidson County).
18
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plead guilty—regardless of actual guilt, or the availability of viable defenses—
simply to end the ordeal of pretrial incarceration.22 And the collateral consequences
of conviction in areas such as housing, employment, and civic engagement are well
documented.23
42. The NCBF exists to alleviate the harm caused by this two-tiered pretrial
system, and to demonstrate the ineffectiveness of conditioning pre-trial release on
the payment of money. Since its inception, the NCBF has paid money bail for over
1,000 persons in Davidson County’s jails who could not have otherwise secured their
release.
43. One of every two NCBF participants resolves her case without any
criminal conviction. It is impossible to determine how many of those people would
22 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 17–18 (Nov. 8, 2016), https://cutt.ly/ue3WIBu (finding that a person who is detained pretrial is 13% more likely to be convicted and 18% more likely to plead guilty than a person who is not detained); Stevenson, Downstream Consequences, supra note 7, 3–4 (finding misdemeanor arrestees are 25% more likely than similarly situated persons to plead guilty and 43% more likely to be sentenced to time in jail); Philips, supra note 7, 116. 23 See, e.g., Nat’l Inst. Of Justice, Beyond the Sentence – Understanding Collateral Consequences (Feb. 26, 2013), https://cutt.ly/1e3W0dE (discussing range of arenas affected by conviction from student loans, voting, housing, and employment); U.S. Commission on Civil Rights, Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities (June 2019), https://cutt.ly/he3W9y2 (briefing providing overview of collateral consequences, including those that create barriers to housing and student financial aid, and finding that these barriers confer no benefit to—and in fact harm—community safety).
19
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have been convicted if they had remained incarcerated, but evidence from other jurisdictions suggests many of them would have eventually pleaded guilty simply to end the ordeal of jail.24
44. The garnishment scheme especially harms persons held in Davidson County jails on unaffordable money bail because it threatens to shut down the primary avenue available to them to exercise their fundamental interest in pretrial liberty. The over 1,000 people the NCBF has bailed out to date had no other means of release. Each day, hundreds more people are incarcerated in a Davidson County jail on bail amounts they cannot afford. E. Rule 10(B) and Gentry’s Garnishment Policy Harm the Nashville
Community Bail Fund and the People it Serves
45. Through Rule 10(B) and his garnishment policy, Defendant Gentry is inflicting permanent and ongoing financial losses on the NCBF. These losses will inevitably bankrupt the NCBF. When that happens, people confined in jail in Davidson County on unaffordable bail requirements of $5,000 or less will once again be left without assistance.
24 See Stevenson Downstream Consequences, supra note 7; Philips, supra note 7 at 116 (Using thousands of data points, a researcher in New York City determined that the conviction rate in non-felony cases was approximately 50 percent for those who could gain release within a day of arrest, but 92 percent for those who could not get out of jail).
20
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46. Since the Criminal Court Judges’ decision became final on September 30, 2019, it has become clear that the NCBF will face sustained and considerable financial losses as Gentry garnishes its bail deposits.
47. Since then, the NCBF has paid bail for 106 people, totaling $155,000. As of today, Gentry has fully refunded 13 of those bail payments, totaling $22,750 because Rule 10(B) did not require garnishment.
48. Of the 93 bail bonds posted since September 30, 2019 that are still on deposit with Gentry, 86 of those cases with bail totaling $121,650 remain pending in court and are subject to Rule 10(B) garnishment depending upon the case outcome. In the remaining 7 cases, the court has assessed fines, court costs, or restitution against the NCBF’s participant; thus, the NCBF will lose $7,463.4925 of the $10,600 on deposit for those cases upon requesting a refund.
49. Gentry does not execute judgments on bail deposits until a request for refund is made and processed. To avoid permanent financial losses to its revolving Bail Fund pending the outcome of this litigation, the NCBF has not sought refunds in cases where it deposited money on or after September 30, 2019 and court debts
25 Based on the amount of court debts assessed against NCBF participants thus far, the NCBF expects a substantial portion of each deposit to be garnished in cases subjected to Rule 10(B). For example, one participant has already had $500 of fees and taxes assessed in his case, and so a third of his $1,500 bail posted by the NCBF will be garnished upon return.
21
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have been assessed against the participant. As a result, an increasing portion of NCBF funds remains on deposit with Gentry instead of returning to the NCBF’s revolving fund. This increasingly limits the funds available to the NCBF to bail out persons who are trapped in jail due to unaffordable bail amounts.
50. As of the filing of this complaint, the NCBF estimates it will lose at least $7,463.49 bail deposits it has paid since September 30, 2019 due to the garnishment policy. That is 70% of the total bail deposits in the closed cases where garnishment is expected.
51. The NCBF predicts that it will lose approximately half of its bail deposits each month, which will eventually deplete its revolving fund. As such, Rule 10(B) and Gentry’s garnishment policy threaten the NCBF’s continued existence. To slow this inevitable result, in January 2020, the NCBF implemented a $20,000 monthly cap and previously imposed a $2,000 personal cap on the amount of bail deposits it will make. As a result of these caps, persons for whom the NCBF would have otherwise paid bail will remain in jail.
52. Further, because the NCBF requires relief from Rule 10(B) and Gentry’s garnishment policy to continue operating, it has had to expend, and will continue to expend, significant time and resources advocating against these policies.
22
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53. For example, after the first en banc meeting, the NCBF prepared a detailed request to the Criminal Court Judges to refrain from rescinding its Rule 10(B) exemption. Its petition analyzed data from the Criminal Court Clerk’s office and included affidavits prepared by NCBF Executive Director Tracey Shafroth, Davidson County Sheriff’s Office Chief of Administration John Hudson, and Courts Director of State Trial Courts for the Criminal Court Clerk’s office Nicholas A. Kiefer, all of which required significant effort by the NCBF.
54. The NCBF has also prepared and issued public statements about the harms caused under Rule 10(B). See Statement on Local Rule, Nashville Community Bail Fund, https://cutt.ly/Xe7PFqk.
55. Resources and time the NCBF once directed toward its core mission— posting cash bail for those unable to afford it themselves, and supporting those people upon release—it must now divert toward challenging the garnishment scheme. F. There is no Legal Process To Challenge Rule 10(B) and Gentry’s
Garnishment Policy in State Court
56. Local officials do not afford bail depositors any process in the Davidson County courts to prevent enforcement of Rule 10(B) or Gentry’s garnishment policy. Nor is there any procedure to challenge the legality of this garnishment scheme when bail is set, when bail is paid, or when the case is resolved and bail is refunded.
23
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57. Beginning on September 30, 2019, NCBF representatives requested a pre-garnishment hearing in writing on the Clerk’s Form approximately thirty times that they posted bail. Rather than providing any forum for a hearing, Gentry ignored these requests. Instead, his staff simply notified the NCBF that pursuant to Rule 10(B), he will automatically take any amount owed by an NCBF participant out of the cash bail deposit when a refund request is made and processed.
58. When the Criminal Court Judges revoked the NCBF’s exemption from Rule 10(B), they suggested that the NCBF—and presumably others paying cash bail—may obtain “relief” from garnishment on a case-by-case basis. Ex. D. This would require the NCBF or any other third-party surety to obtain an order from the sentencing court finding the arrestee indigent and waiving payment of any fine, court costs or restitution assessed. See Ex. D at 2–3. This “remedy” does not legitimize the garnishment scheme, nor does it afford the NCBF or any other third party a forum to assert their own rights. Further, the solution has proven impractical and insufficient.26
59. For example, on October 2, 2019 an NCBF participant whose $1,500 bail was paid on September 30, 2019, resolved his case before General Sessions
26 First, by design, NCBF participants lack the means to pay relatively low bail requirements. Further, tethering a requirement that a third party pay fines, fees, costs, and other debts to an underlying indigency determination regarding the arrestee is illogical: the arrestee would not be paying the money in any event.
24
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Judge Allegra Walker. Judge Walker assessed fines and court costs exceeding the

participant’s underlying bail amount. NCBF Manager Rahim Buford was in court at

the time, and requested an indigency hearing as the Criminal Court Judges

suggested.

60. Judge Walker evaluated the NCBF participant’s indigence and waived

his court costs. Judge Walker declined, however, to waive fines and taxes totaling

$500 even after concluding that the participant is indigent.

61. Gentry has notified the NCBF that pursuant to Rule 10(B), his office

will automatically retain $500 of the $1,500 cash bail posted in this case when the

NCBF seeks a refund. Despite the NCBF’s request for a hearing on the Clerk’s Form,

Gentry has not provided an opportunity for the NCBF to be heard prior to

garnishment.

V.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

Excessive Bail in Violation of the Eighth Amendment to the U.S. Constitution 42 U.S.C. § 1983

62. Plaintiff re-alleges and incorporates by reference the allegations above

as if fully set forth herein.

25
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63. The Eighth Amendment prohibits exploiting cash bail as a means of exacting payment for fines and fees, even if debts are related to the criminal case in which bail is set.
64. Further, under the Eighth Amendment, money bail may be set only in an amount reasonably necessary to assure the court appearance of the individual. Any pretrial restraint on liberty must be individually tailored to address a specific, compelling need. Money bail set beyond the amount reasonably necessary to promote court appearance, or for an impermissible purpose, is unconstitutionally excessive.
65. Rule 10(B), and Gentry’s enforcement of it, uses bail for an improper purpose: to generate revenue. Further, Gentry refuses to accept money bail and authorize the release of an individual incarcerated on a secured bond unless the person posting bond acknowledges in writing that bond will be garnished as payment for post-disposition fines, costs, and restitution.
66. Through enforcement of Rule 10(B) and his own garnishment policy, Gentry violates the Eighth Amendment rights of all accused persons in the Nashville Criminal Courts.
67. This practice injures the NCBF, which suffers financial losses and a diversion of its resources.
26
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SECOND CLAIM FOR RELIEF Violation of the Fourteenth Amendment Doctrine of Unconstitutional
Conditions 42 U.S.C. § 1983 68. Plaintiff re-alleges and incorporates by reference each and every allegation above as if fully set forth herein. 69. An arrested person has a constitutionally protected fundamental liberty interest in pretrial release; once a money bail condition has been set in an individual’s case, she has a further liberty interest in satisfying it. 70. Rule 10(B) and Gentry’s garnishment policy exact a penalty on the exercise of this liberty interest by forcing individuals entitled to release to accept that the posted bail will be garnished for fines, costs, and restitution. 71. The garnishment scheme is not narrowly tailored to promote a compelling government interest. 72. This exaction thus has an impermissible chilling effect on the liberty interest of individuals being released from jail by posting bail. 73. This exaction directly injures Plaintiff NCBF, which suffers financial losses and a diversion of other resources as a direct result of the unconstitutional conditions generated by Rule 10(B) and Gentry’s garnishment policy.
27
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THIRD CLAIM FOR RELIEF

Violation of the Fourteenth Amendment Right to Due Process 42 U.S.C. § 1983

74. Plaintiff re-alleges and incorporates by reference each and every

allegation above as if fully set forth herein.

75. Under the Due Process Clause of the Fourteenth Amendment, the

government must provide notice and an opportunity to be heard prior to depriving

individuals of their property.

76. Third parties who pay a bail deposit retain their property interest in the

deposit, because, under Tennessee law, a bail deposit does not convert into the

arrestee’s property upon posting.

77. When Gentry garnishes cash bail deposits made by third parties, those

third parties are not given notice or an opportunity to be heard by a neutral

decisionmaker prior to garnishment.

78. Through enforcement of Rule 10(B) and his garnishment policy, Gentry

violates the due process rights of the NCBF, which in turn suffers financial losses.

VI.

REQUESTS FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court provide the

following relief:

a. Assume jurisdiction over this action;

28

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b. A declaration that Rule 10(B) and Gentry’s garnishment policy violate the Eighth Amendment prohibition on excessive bail;
c. A declaration that Rule 10(B) and Gentry’s garnishment policy violate the Fourteenth Amendment right to due process by placing unnecessary conditions on the exercise of a protected liberty interest;
d. A declaration that Rule 10(B) and Gentry’s garnishment policy violate the Fourteenth Amendment right to due process;
e. An order and judgment preliminarily and permanently enjoining Gentry from enforcing his policy of conditioning the posting of cash bond on future payment of criminal debts, including his use of a written form to extract a promise to pay such debts;
f. An order and judgment preliminarily and permanently enjoining Gentry from enforcing Rule 10(B) by collecting criminal debts from cash bond deposits;
g. Award Plaintiffs costs and reasonable attorney fees; and h. Order such other relief as the Court deems just and appropriate. Dated: February 5, 2020 Respectfully submitted,
/s/ Thomas H. Castelli Thomas H. Castelli BPR# 24849 On behalf of Attorneys for Plaintiff ACLU Foundation of Tennessee, Inc. 29
Case 3:20-cv-00103 Document 1 Filed 02/05/20 Page 29 of 30 PageID #: 29

P.O. Box 120160 Nashville, TN 37212 Telephone: (615) 320-7142 tcastelli@aclu-tn.org
Andrea Woods (lead counsel)* Brandon J. Buskey* American Civil Liberties Union Foundation 125 Broad Street, 18th Fl. New York, NY 10004 Telephone: (212) 549-2528 awoods@aclu.org bbuskey@aclu.org
Charles Gerstein Civil Rights Corps 1601 Connecticut Ave NW Suite 800 Telephone: (202) 894-6128 charlie@civilrightscorps.org
/s/ C. Dawn Deaner C. Dawn Deaner Choosing Justice Initiative 1623 Haynes Meade Circle Nashville, TN 37207 Telephone: (615) 431-3746 dawndeaner@cjinashville.org
* = pro hac vice application forthcoming Attorneys for Plaintiff
30
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

THE NASHVILLE COMMUNITY

)

BAIL FUND,

)

)

)

Plaintiff,

)

)

v.

)

)

HON. HOWARD GENTRY, Criminal

)

Court Clerk, in his official capacity,

)

)

Defendant.

)

Case No. 3:20-cv-00103 Judge Aleta A. Trauger

ORDER

For the reasons explained in the accompanying Memorandum, the Motion for

Preliminary Injunction filed by the Nashville Community Bail Fund (“NCBF”) (Docket No. 3) is

hereby GRANTED in part and DENIED in part, and the Motion to Dismiss filed by Howard

Gentry, in his official capacity as Criminal Court Clerk for the Twentieth Judicial District,

(Docket No. 17) is DENIED. It is hereby ORDERED that:

1. Gentry, as Clerk for the Criminal Court for the Twentieth Judicial District, is hereby

enjoined from enforcing Davidson County Local Rule Governing Bail Bonds 10(B)

against NCFB or in any case in which NCFB posted bond. Cash bond deposits posted in

Gentry’s office by NCFB or a representative thereof shall be refunded in full at the

conclusion of the criminal case, warrant, probation violation, case number, or other issue

to which the bail was attached, so long as no final forfeiture order is entered against the

bond.

2. Gentry is further enjoined from enforcing his policy of conditioning the posting of cash

bonds in Davidson County on signing any written form acknowledging future payment of

Case 3:20-cv-00103 Document 23 Filed 03/17/20 Page 1 of 2 PageID #: 764

criminal debts, with regard to NCBF. Individuals seeking to post cash bonds in Davidson County through NCBF may not be required to sign any form acknowledging or agreeing to any garnishment of bail before the bond is accepted and the individual incarcerated is released. “The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Although NCBF is a small charitable organization, the record shows that it is capable of posting some bond and that the defendant may bear costs or damages if wrongly enjoined. NCBF is therefore ORDERED to post security bond in the amount of $1,000.00 in relation to this Order. It is so ORDERED.
______________________________ ALETA A. TRAUGER United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
AT NASHVILLE

THE NASHVILLE COMMUNITY BAIL FUND,
Plaintiff,
v.
THE HONORABLE HOWARD GENTRY, in his official capacity as Criminal Court Clerk,
Defendant.

) ) ) ) Case No. 3:20-cv-00103 ) ) Judge Trauger ) Magistrate Judge Holmes ) ) ) ) )

CONSENT JUDGMENT AND DECREE

The parties, by the signatures of their counsel below, stipulate to the following court-

ordered judgment and decree:

1. The Nashville Community Bail Fund (“NCBF”) brought this action against the

Honorable Howard Gentry, in his official capacity as Criminal Court Clerk (“Gentry” or the

“Criminal Court Clerk”), to challenge the constitutionality of Davidson County Local Rule

Governing Bail Bonds 10(B) (“Rule 10(B)”) under the Eighth and Fourteenth Amendments to the

United States Constitution.

2. The judges of the Davidson County Criminal Court enact the Local Rules, including

Rule 10(B), and Gentry’s office is tasked with enforcing them.

3. Gentry has publicly voiced his disagreement with Rule 10(B). Nevertheless,

because he was sued in his official capacity as Criminal Court Clerk, he defended Rule 10(B) as

part of his duties as an officer of the Davidson County Criminal Court.

4. Gentry, through counsel, filed two Motions to Dismiss this action. The first Motion

to Dismiss challenged whether Gentry was acting in his capacity as an official of the State of

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Tennessee or the Metropolitan Government of Nashville and Davidson County, whether service of process was sufficient, and whether Gentry was a proper defendant. (ECF No. 18.) The Court concluded that the actions challenged in this litigation implicate Gentry as an officer of the State and denied the Motion to Dismiss. (ECF Nos. 22-23.)
5. The Court also granted NCBF a preliminary injunction, enjoining Gentry from enforcing Rule 10(B) against NCBF during the pendency of this action. (ECF No. 23.) Gentry has fully complied with the Court’s preliminary injunction order.
6. On May 22, 2020, Gentry filed a second Motion to Dismiss. (ECF No. 47.) In it, Gentry challenged NCBF’s standing to bring this lawsuit, asserted that he is entitled to judicial immunity, and argued that NCBF fails to state a claim under any of the three counts in the Complaint.
7. On October 26, 2020, the Court issued a Memorandum Opinion (ECF No. 65) and Order (ECF No. 66), denying Gentry’s Second Motion to Dismiss. In it, the Court ruled:
a. NCBF has Article III standing to bring this lawsuit because it suffered an injury-in-fact caused by Rule 10(B) that is redressable by the Court. It holds its own right not to be deprived of property without appropriate procedural safeguards, as guaranteed by the Fourteenth Amendment to the U.S. Constitution. It also has “prudential” standing to bring claims because the relationship it has with its participants is close and NCBF participants are hindered from bringing the lawsuit themselves. b. Gentry is not entitled to judicial immunity because the challenged actions are clerical in nature and the parties paying bail have no expectation of interacting with a judicial officer.
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c. Rule 10(B) violates the excessive bail clause of the Eighth Amendment because it requires bail posters to provide something of value in excess of the amount of bail set—their consent to potential garnishment at the conclusion of the case—which bears no relationship to the legitimate purposes of bail. d. Rule 10(B) violates the substantive due process clause of the Fourteenth Amendment because Gentry has not identified any relationship between the policy of mandatory consent to garnishment and the interests of public safety or ensuring appearance, and the policy therefore unduly infringes upon the individual right to pretrial liberty. e. NCBF plausibly pleaded a violation of the procedural due process clause of the Fourteenth Amendment because third parties are not given notice or an opportunity to be heard by a neutral decision-maker prior to garnishment under Rule 10(B). 8. Gentry acknowledges that he has no evidence to contest NCBF’s material facts, as alleged in the Complaint. Gentry further acknowledges that he has no additional factual proof that will satisfy the legal standards set forth by the Court in the Memorandum Opinion. 9. Thus, the parties agree that the Court’s ruling on Gentry’s second Motion to Dismiss is dispositive in this matter, and NCBF is entitled to judgment as a matter of law. 10. In its Order granting the preliminary injunction, the Court held that NCBF was likely to succeed on the merits and that a preliminary injunction was appropriate based on: the risk of irreparable harm to NCBF and the arrestees it serves in the absence of an injunction; the low risk of harm to the Clerk’s Office if an injunction was granted; and the strong public interest in favor of an injunction. (ECF 22 at 28-34.) The parties hereby agree that, given the Court’s rulings
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in this matter, Gentry cannot contest that without a permanent injunction, NCBF and the arrestees it serves will suffer irreparable injury for which there is no adequate remedy at law; the balance of hardships between the parties warrants an equitable remedy; and the public interest would be served by a permanent injunction. The parties thus agree that the Preliminary Injunction should become a permanent injunction, and the permanent injunction should prohibit the Criminal Court Clerk from enforcing Rule 10(B) against any third-party attempting to post a cash bail bond in Davidson County. As a result, the Criminal Court Clerk is prohibited from conditioning a thirdparty’s payment of cash bonds on any agreement acknowledging future payment of criminal debts.
11. In accordance with Raceway Properties, Inc. v. Emprise Corporation, 613 F.2d 656, 567 (6th Cir. 1980), and its progeny, Gentry explicitly preserves his right to appeal the Court’s decision on his Motions to Dismiss. This right is purely on the legal issues presented, and Gentry is prohibited from introducing any new factual evidence that he may have entered at the summary judgment stage.
12. This Consent Decree shall inure to the benefit of and be binding upon the parties and their respective heirs, successors or assigns. Additionally, this decree shall inure to the benefit of and be enforceable by any third-party attempting to post a cash bail bond in Davidson Count.
13. The parties to this Order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order before bringing such matters to the Court for resolution. However, in the event that the Criminal Court Clerk acts in violation of any provision of this Order, NCBF or any affected third party,-present or futurewho alleges a violation may then move the Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance or non-performance of
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certain acts and sanctions including cost and attorney’s fees associated with any enforcement action.
14. Pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54, the Court concludes that NCBF is the prevailing party on all claims filed in this matter. In accordance with the parties’ agreement, NCBF shall file any Motion for Attorney’s Fees within 45 days of the date this Judgment is entered. Because the attorney’s fees judgment will be against the Criminal Court Clerk in his official capacity, the judgment will be a suit against the “entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing reference omitted). Thus, there is still an outstanding question of which entity—the State of Tennessee or the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”)—is responsible for the satisfaction of any award of attorney’s fees. If NCBF has any position on whether the State or Metro is responsible for the attorney’s fee judgment, it should so state in its Motion.
15. Gentry, Metro, and/or the State may file a response within 21 days of NCBF’s Motion. Any response shall indicate (1) whether NCBF is entitled to an award of their requested fees and (2) whether the award of attorney’s fees is collectable from Metro or the State.
16. NCBF may file an optional reply in accordance with the Local Rule 7.01(a)(4). 17. The Clerk is DIRECTED to send a copy of this Stipulated Judgment to Herbert Slatery III, the Attorney General and Reporter for the State of Tennessee, and Bob Cooper, the Director of Law for Metropolitan Government of Nashville and Davidson County. 18. The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58.
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19. It is hereby ORDERED that the preliminary injunction ordered by this Court on March 17, 2020 (Dkt. 23) shall be permanent. The Court retains jurisdiction for the purpose of enforcing the terms of the consent decree.
It is so ordered this _9_t_h_ day of _D_e_c_e_m_b_er_, 2020. Aleta A. Trauger United States District Court Judge
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APPROVED FOR ENTRY:
s/ Angela L. Bergman Angela L. Bergman (#31981) Briana T. Sprick Schuster (#38305) BASS BERRY & SIMS, PLC 150 Third Avenue South, Suite 2800 Nashville, Tennessee 37201-3001 Telephone: (615) 742-6200 Facsimile: (615) 742-0442 abergman@bassberry.com briana.sprick.schuster@bassberry.com
Andrea Woods (pro hac vice) Brandon Buskey (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2528 awoods@aclu.org bbuskey@aclu.org
Thomas H. Castelli (#24849) Stella Yarbrough (#33637) ACLU FOUNDATION OF TENNESSEE, INC. P.O. Box 120160 Nashville, Tennessee 37212 (615) 320-7142 Ext. 303 tcastelli@aclu-tn.org syarbrough@aclu-tn.org
Dawn Deaner (#17948) CHOOSING JUSTICE INITIATIVE 1623 Haynes Meade Circle Nashville, Tennessee 37207 (615) 431-3746 dawndeaner@cjinashville.org
Charles Gerstein CIVIL RIGHTS CORPS 1601 Connecticut Avenue NW, Suite 800 Washington, D.C. 20009 (202) 670-4809 charlie@civilrightscorp.org
Counsel for The Nashville Community Bail Fund
7
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and s/ Ryan P. Loofbourrow Kevin C. Klein (#23301) Ryan P. Loofbourrow (#33414) KLEIN SOLOMON MILLS, PLLC 1322 4th Avenue North Nashville, Tennessee 37208 (615) 600-4780 kevin.klein@kleinpllc.com ryan.loofbourrow@kleinpllc.com Counsel for Howard Gentry
8 Case 3:20-cv-00103 Document 77 Filed 12/09/20 Page 8 of 9 PageID #: 1106

CERTIFICATE OF SERVICE
I certify that a true and exact copy of the foregoing has been forwarded via the Court’s CM/ECF system on this 8th day of December, 2020, to:
Angela L. Bergman Briana T. Sprick Schuster BASS BERRY & SIMS, PLC 150 Third Avenue South, Suite 2800 Nashville, Tennessee 37201-3001
Andrea Woods Brandon Buskey AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004
Thomas H. Castelli Stella Yarbrough ACLU FOUNDATION OF TENNESSEE, INC. P.O. Box 120160 Nashville, Tennessee 37212
Dawn Deaner CHOOSING JUSTICE INITIATIVE 1623 Haynes Meade Circle Nashville, Tennessee 37207
Charles Gerstein CIVIL RIGHTS CORPS 1601 Connecticut Avenue NW, Suite 800 Washington, D.C. 20009
s/ Ryan P. Loofbourrow Ryan P. Loofbourrow
29427835.2
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