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U.S. District Court North Carolina Middle District (NCMD) CIVIL DOCKET FOR CASE #: 1:19-cv-01126-NCT-LPA

ALLISON et al v. ALLEN et al Assigned to: JUDGE N. C. TILLEY, JR Referred to: MAG/JUDGE L. PATRICK AULD Cause: 42:1983 Civil Rights Act

Date Filed: 11/12/2019 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff LEA ALLISON

represented by LEAH J. KANG ACLU OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611 919-307-7353 Email: lkang@acluofnc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

ANN CAPPS WEBB AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611-8004 919-532-3697 Email: awebb@acluofnc.org ATTORNEY TO BE NOTICED

BRANDON JEREL BUSKEY AMERICAN CIVIL LIBERTIES UNION 125 BROAD STREET, 18TH FLOOR NEW YORK, NY 10004 212-549-7364 Fax: 212-549-2654 Email: bbuskey@aclu.org ATTORNEY TO BE NOTICED

Plaintiff ANTONIO HARRELL

ERIC I. HALPERIN CIVIL RIGHTS CORPS 1601 CONNECTICUT AVENUE, NW WASHINGTON, DC 20009 202-854-1518 Fax: 202-609-8030 ATTORNEY TO BE NOTICED
KATHERINE HUBBARD CIVIL RIGHTS CORPS 1601 CONNECTICUT AVENUE, NW SUITE 800 WASHINGTON, DC 20009 202-844-4975 Fax: 202-609-8030 Email: katherine@civilrightscorps.org ATTORNEY TO BE NOTICED
TWYLA JEANETTE CARTER AMERICAN CIVIL LIBERTIES UNION 125 BROAD STREET, 18TH FLOOR NEW YORK, NY 10004 212-549-2636 Email: tcarter@aclu.org ATTORNEY TO BE NOTICED
IRENA COMO AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA POB 28004 RALEIGH, NC 27611-8004 919-834-3466 Email: icomo@acluofnc.org ATTORNEY TO BE NOTICED
represented by LEAH J. KANG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff KATHERINE GUILL

ANN CAPPS WEBB (See above for address) ATTORNEY TO BE NOTICED
BRANDON JEREL BUSKEY (See above for address) ATTORNEY TO BE NOTICED
ERIC I. HALPERIN (See above for address) ATTORNEY TO BE NOTICED
KATHERINE HUBBARD (See above for address) ATTORNEY TO BE NOTICED
TWYLA JEANETTE CARTER (See above for address) ATTORNEY TO BE NOTICED
IRENA COMO (See above for address) ATTORNEY TO BE NOTICED
represented by LEAH J. KANG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANN CAPPS WEBB (See above for address) ATTORNEY TO BE NOTICED
BRANDON JEREL BUSKEY (See above for address) ATTORNEY TO BE NOTICED
ERIC I. HALPERIN (See above for address) ATTORNEY TO BE NOTICED
KATHERINE HUBBARD (See above for address) ATTORNEY TO BE NOTICED

TWYLA JEANETTE CARTER (See above for address) ATTORNEY TO BE NOTICED
IRENA COMO (See above for address) ATTORNEY TO BE NOTICED

V. Defendant BRADLEY R. ALLEN, SR. in his official capacity as Chief District Court Judge
Defendant MAGISTRATE JEFFREY D. HOLLAN
Defendant KELLY COUNCILMAN in their official capacity as magistrate of the Alamance County District Court Defendant DAVID CRABBE in their official capacity as magistrate of the Alamance County District Court Defendant RHONDA CRISP in their official capacity as

represented by JOSEPH FINARELLI N. C. DEPARTMENT OF JUSTICE POB 629 RALEIGH, NC 27602 919-716-6531 Fax: 919-716-6761 Email: jfinarelli@ncdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address)

magistrate of the Alamance County District Court
Defendant
BERTRAM HEATHCOTE in their official capacity as magistrate of the Alamance County District Court
Defendant
WENDY HUNTER in their official capacity as magistrate of the Alamance County District Court
Defendant
AMELIA KNAUFF in their official capacity as magistrate of the Alamance County District Court
Defendant
BOBBIE NANCE in their official capacity as magistrate of the Alamance County District Court
Defendant
HELENA RODGERS in their official capacity as magistrate of the Alamance County District Court
Defendant
KIMESHA THORPE in their official capacity as magistrate of the Alamance County District Court
Defendant
JOHN WATTERSON in their official capacity as

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address)

magistrate of the Alamance County District Court
Defendant
SUSAN WORTINGER in their official capacity as magistrate of the Alamance County District Court
Defendant
D. THOMAS LAMBETH, JR. in their official capacity as magistrate of the Alamance County District Court
Defendant
TERRY S. JOHNSON in his official capacity as Alamance County Sheriff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by JOSEPH FINARELLI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by CLYDE BALLINGER ALBRIGHT ALAMANCE CO. ATTORNEY'S OFFICE PROSECUTORIAL DISTRICT 15A 124 W. ELM ST. GRAHAM, NC 27253 336-570-4046 Fax: 336-570-6788 Email: clyde.albright@alamancenc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
WILLIAM L. HILL FRAZIER HILL & FURY, RLLP POD 1559 GREENSBORO, NC 27402 336-378-7787 Fax: 336-274-7358 Email: whill@frazierlawnc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

11/12/2019
11/12/2019 11/12/2019 11/12/2019 11/12/2019 11/12/2019 11/12/2019
11/12/2019 11/13/2019 11/13/2019

COMPLAINT against All Defendants ( Filing fee $ 400 receipt

1

number 0418-2693568.), filed by ANTONIO HARRELL, LEA

ALLISON, KATHERINE GUILL. (Attachments: # 1 Exhibit 1995

Official Policies on Pretrial Release)(COMO, IRENA) (Entered:

11/12/2019)

2 MOTION to Certify Class by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. Response to Motion due by 12/3/2019 (Attachments: # 1 Text of Proposed Order)(COMO, IRENA) (Entered: 11/12/2019)

3 BRIEF re 2 MOTION to Certify Class . (Attachments: # 1 Exhibit Decl. Allison, # 2 Exhibit Decl. Harrell, # 3 Exhibit Decl. Guill, # 4 Exhibit Decl. Hubbard, # 5 Exhibit Decl. Como, # 6 Exhibit Decl. Buskey)(COMO, IRENA) (Entered: 11/12/2019)

4 NOTICE of Appearance by attorney LEAH J. KANG on behalf of Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL (KANG, LEAH) (Entered: 11/12/2019)

5 MOTION for Temporary Restraining Order by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 11/12/2019)

6 MOTION for Preliminary Injunction by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. Response to Motion due by 12/3/2019 (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 11/12/2019)

7 MOTION for Leave to File Excess Pages by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. Responses due by 12/3/2019 (Attachments: # 1 Exhibit Proposed Brief iso 5 Motion for TRO and 6 Motion for Preliminary Injunction)(KANG, LEAH) (Entered: 11/12/2019)

8 NOTICE of Appearance by attorney ANN CAPPS WEBB on behalf of Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL (WEBB, ANN) (Entered: 11/12/2019)

Case assigned to JUDGE N. C. TILLEY, JR and MAGISTRATE JUDGE L. PATRICK AULD. (Coyne, Michelle) (Entered: 11/13/2019)

Motions Submitted: 7 MOTION for Leave to File Excess Pages to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 11/13/2019)

11/13/2019 11/13/2019
11/13/2019 11/13/2019 11/14/2019 11/14/2019 11/14/2019 11/14/2019 11/14/2019
11/14/2019 11/14/2019

Telephone/Electronic Notification from Clerk of Court on 11/13/2019 to Counsel. Motion Hearing set for 11/14/2019 10:00 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR. (Winchester, Robin) (Entered: 11/13/2019)
9 Summons Issued as to All Defendants. (Attachments: # 1 Wortinger, # 2 Thorpe, # 3 Rodgers, # 4 Knauff, # 5 Nance, # 6 Hunter, # 7 Lambert, # 8 Johnson, # 9 Councilman, # 10 Crabbe, # 11 Crisp, # 12 heathcoate, # 13 Brown)(Coyne, Michelle) (Entered: 11/13/2019)
10 Notice of Right to Consent. Counsel shall serve the attached form on all parties. (Attachments: # 1 Consent Form)(Coyne, Michelle) (Entered: 11/13/2019)
11 Summons Issued as to JOHN WATTERSON. (Coyne, Michelle) (Entered: 11/13/2019)
12 NOTICE of Appearance by attorney KATHERINE HUBBARD on behalf of Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Garland, Leah) (Entered: 11/14/2019)
13 NOTICE of Appearance by attorney ERIC HALPERIN on behalf of Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Garland, Leah) (Entered: 11/14/2019)
14 NOTICE of Appearance by attorney WILLIAM L. HILL on behalf of Defendant TERRY S. JOHNSON (HILL, WILLIAM) (Entered: 11/14/2019)
15 Corrected document re 14 Notice of Appearance. (HILL, WILLIAM) (Entered: 11/14/2019)
***Attorney JOSEPH FINARELLI for BRADLEY R. ALLEN, SR,for BRENDA BROWN, KELLY COUNCILMAN, DAVID CRABBE, RHONDA CRISP,BERTRAM HEATHCOTE, WENDY HUNTER, AMELIA KNAUFF, D. THOMAS LAMBETH, JR,BOBBIE NANCE, HELENA RODGERS,KIMESHA THORPE, JOHN WATTERSON, AND SUSAN WORTINGER added. (Winchester, Robin) (Entered: 11/14/2019)
***Attorney CLYDE BALLINGER ALBRIGHT for TERRY S. JOHNSON added. (Winchester, Robin) (Entered: 11/14/2019)
Minute Entry for proceedings held before JUDGE N. C. TILLEY, JR. Motion Hearing held on 11/14/2019 regarding 5 MOTION for Temporary Restraining Order and 7 MOTION for Leave to File

11/14/2019 11/15/2019 11/15/2019 11/18/2019 11/19/2019

Excess Pages filed by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. For reasons stated on the record the Court finds that 5 Motion for Temporary Restraining Order is denied at this time. The Court grants 7 Motion for leave to File Excess Pages. The parties are to meet and confer by November 22, 2019. Preliminary Injunction hearing set for 12/2/2019 at 9:30 a.m. before Judge Tilley, Greensboro, N.C., Courtroom No. 2. Attorneys Katherine Hubbard, Leah Kang, Eric Halperin and Ann Webb appeared as counsel for plaintiffs. Attorney Joseph Finarelli appeared as counsel for defendants Bradley R. Allen, Sr., Brenda Brown, Kelly Councilman, David Crabbe, Rhonda Crisp, Bertram Heathcote, Wendy Hunter, Amelia Knauff, Bobbie Nance, Helena Rodgers, Kimesha Thorpe, John Watterson, Susan Wortinger and D. Thomas Lambeth, Jr. Attoneys William L. Hill and Clyde Albright appeared as counsel for defendant Terry S. Johnson (Court Reporter Jane Calhoun.) (Winchester, Robin) Modified on 12/3/2019 (Winchester, Robin). (Entered: 11/14/2019)
Set Motion Hearing: Motion Hearing regarding 6 Motion for Preliminary Injunction set for 12/2/2019 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR. (Winchester, Robin) (Entered: 11/14/2019)
16 TRANSCRIPT REQUEST by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL for proceedings held on 11/14/2019 before Judge N. C. Tilley, Jr... (COMO, IRENA) (Entered: 11/15/2019)
17 BRIEF re 6 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit Ex. A Decl. Allison, # 2 Exhibit Ex. B Decl. Harrell, # 3 Exhibit Ex. C Decl. Guill)(KANG, LEAH) (Entered: 11/15/2019)
18 NOTICE of Appearance by attorney TWYLA JEANETTE CARTER on behalf of Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL (CARTER, TWYLA) (Entered: 11/18/2019)
19 Transcript of Proceedings held on November 14, 2019, before Judge Tilley. Court Reporter/Transcriber Calhoun, Telephone number 336-332-6033. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

11/26/2019 11/26/2019 11/26/2019 11/26/2019
11/26/2019 12/05/2019

NOTICE RE: REDACTION OF TRANSCRIPTS: The parties have 5 business days to file a Notice of Intent to Request Redaction and 21 calendar days to file a Redaction Request. If no notice is filed, this transcript will be made electronically available to the public without redaction after 90 calendar days. Transcript may be viewed at the court public terminal or purchased through the court reporter before the 90 day deadline. After that date it may be obtained through PACER.
Redaction Request due 12/13/2019. Redacted Transcript Deadline set for 12/23/2019. Release of Transcript Restriction set for 2/20/2020. (Calhoun, J.) (Entered: 11/19/2019)
20 Joint MOTION for Extension of Time to Reschedule the Preliminary Injunction Hearing by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 11/26/2019)
Motions Submitted: 20 Joint MOTION for Extension of Time to Reschedule the Preliminary Injunction Hearing to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 11/26/2019)
21 NOTICE of Appearance by attorney BRANDON JEREL BUSKEY on behalf of Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL (BUSKEY, BRANDON) (Entered: 11/26/2019)
TEXT ORDER issued by JUDGE N. C. TILLEY, JR. on 11/26/2019 granting 20 Joint Status Report and Motion for Extension of Time, with agreement of counsel the Preliminary Injunction Hearing is continued to March 16, 2020. The parties shall file a joint status report no later than 14 days prior to the preliminary injunction hearing date, apprising the Court of the status of their progress and whether there is a continued need for a preliminary injunction hearing. (Winchester, Robin) (Entered: 11/26/2019)
Reset Hearing: Motion Hearing set for 3/16/2020 09:30 AM in Greensboro Courtroom #2 before JUDGE N. C. TILLEY JR. (Winchester, Robin) (Entered: 11/26/2019)
22 First MOTION for Extension of Time to File Answer to Plaintiff's Complaint and Motion for Preliminary Injunction by TERRY S. JOHNSON. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Motion for Extension of Time to Answer or

12/05/2019 12/06/2019 12/09/2019 12/10/2019 12/10/2019 01/06/2020
01/15/2020 01/16/2020

Otherwise Respond to Plaintiff's Complaint and Motion for Preliminary Injunction)(HILL, WILLIAM) (Entered: 12/05/2019)
23 Corrected Motion re 22 First MOTION for Extension of Time to File Answer to Plaintiff's Complaint and Motion for Preliminary Injunction. (HILL, WILLIAM) (Entered: 12/05/2019)
Motions Referred regarding 23 MOTION for Extension of Time to MAG/JUDGE L. PATRICK AULD (Winchester, Robin) (Entered: 12/06/2019)
24 First MOTION for Extension of Time to File Response/Reply as to 2 MOTION to Certify Class by TERRY S. JOHNSON. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendan't Motion for Extension of Time to Respond to Plaintiffs' Motion to Certify Class)(HILL, WILLIAM) (Entered: 12/09/2019)
TEXT ORDER granting 23 Motion for Extension of Time. Defendant Terry S. Johnson shall file any answer or other response
to 1 Complaint and any response to 6 Motion for Preliminary Injunction by 01/06/2020. Issued by MAG/JUDGE L. PATRICK AULD on 12/10/2019. (AULD, L.) (Entered: 12/10/2019)
TEXT ORDER granting 24 Motion for Extension of Time. Defendant Terry S. Johnson shall file any response to 2 Motion to Certify Class by 01/06/2020. Issued by MAG/JUDGE L. PATRICK AULD on 12/10/2019. (AULD, L.) (Entered: 12/10/2019)
25 Second MOTION for Extension of Time to File Answer re 2 MOTION to Certify Class , 6 MOTION for Preliminary
Injunction , 1 Complaint by TERRY S. JOHNSON. (Attachments: # 1 Text of Proposed Order Proposed Order Granting Defendant's Second Motion for Extension of Time to Answer or Otherwise Respond to Plaintiffs' Complaint, Motion for Preliminary Injunction, and Motion to Certify Class)(HILL, WILLIAM) (Entered: 01/06/2020)
Motions Referred: RE: 25 Second MOTION for Extension of Time to File Answer re 2 MOTION to Certify Class , 6 MOTION for
Preliminary Injunction , 1 Complaint , to MAG/JUDGE L. PATRICK AULD. (Winchester, Robin) (Entered: 01/15/2020)
TEXT ORDER granting 25 Second Motion for Extension of Time. Defendant Terry S. Johnson shall file any answer or other response

01/16/2020 02/05/2020 02/05/2020
02/05/2020
02/06/2020 02/06/2020 02/12/2020 02/13/2020 02/13/2020

to 1 Complaint and shall file any response to 2 Motion to Certify Class and 6 Motion for Preliminary Injunction by 02/05/2020. Issued by MAG/JUDGE L. PATRICK AULD on 01/16/2020. (AULD, L.) (Entered: 01/16/2020)
Reset Motion and R and R Deadlines/Hearings re: 2 MOTION to Certify Class, 6 MOTION for Preliminary Injunction: Responses due by 2/5/2020. (Garland, Leah) (Entered: 01/16/2020)
26 ANSWER to 1 Complaint by TERRY S. JOHNSON. (HILL, WILLIAM) (Entered: 02/05/2020)
27 RESPONSE filed by Defendant TERRY S. JOHNSON re 6 MOTION for Preliminary Injunction filed by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL filed by TERRY S. JOHNSON. Replies due by 2/19/2020 (HILL, WILLIAM) (Entered: 02/05/2020)
28 RESPONSE filed by Defendant TERRY S. JOHNSON re 2 MOTION to Certify Class filed by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL filed by TERRY S. JOHNSON. Replies due by 2/19/2020 (HILL, WILLIAM) (Entered: 02/05/2020)
29 Corrected document re 28 Response to Motion. (HILL, WILLIAM) (Entered: 02/06/2020)
30 Corrected document re 27 Response to Motion. (HILL, WILLIAM) (Entered: 02/06/2020)
31 Joint MOTION to Substitute Party by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 02/12/2020)
Motions Submitted: 31 Joint MOTION to Substitute Party to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 02/13/2020)
32 NOTICE of Appearance by attorney JOSEPH FINARELLI on behalf of Defendants BRADLEY R. ALLEN, SR, BRENDA BROWN, KELLY COUNCILMAN, DAVID CRABBE, RHONDA CRISP, BERTRAM HEATHCOTE, WENDY HUNTER, AMELIA KNAUFF, D. THOMAS LAMBETH, JR, BOBBIE NANCE, HELENA RODGERS, KIMESHA THORPE, JOHN

02/13/2020 02/13/2020 02/13/2020 02/13/2020 02/13/2020 02/13/2020 02/13/2020 02/13/2020

WATTERSON, SUSAN WORTINGER (FINARELLI, JOSEPH) (Entered: 02/13/2020)
33 WAIVER OF SERVICE Returned Executed by BRADLEY R. ALLEN, SR. BRADLEY R. ALLEN, SR waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 33 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
34 WAIVER OF SERVICE Returned Executed by KELLY COUNCILMAN. KELLY COUNCILMAN waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 34 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
35 WAIVER OF SERVICE Returned Executed by DAVID CRABBE. DAVID CRABBE waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 35 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
36 WAIVER OF SERVICE Returned Executed by RHONDA CRISP. RHONDA CRISP waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 36 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
37 WAIVER OF SERVICE Returned Executed by BERTRAM HEATHCOTE. BERTRAM HEATHCOTE waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 37 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
38 WAIVER OF SERVICE Returned Executed by BRENDA BROWN. BRENDA BROWN waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 38 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
39 WAIVER OF SERVICE Returned Executed by WENDY HUNTER. WENDY HUNTER waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 39 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
40 WAIVER OF SERVICE Returned Executed by AMELIA KNAUFF. AMELIA KNAUFF waiver sent on 2/12/2020, answer

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due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 40 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
41 WAIVER OF SERVICE Returned Executed by D. THOMAS LAMBETH, JR. D. THOMAS LAMBETH, JR waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 41 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
42 WAIVER OF SERVICE Returned Executed by BOBBIE NANCE. BOBBIE NANCE waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 42 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
43 WAIVER OF SERVICE Returned Executed by HELENA RODGERS. HELENA RODGERS waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 43 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
44 WAIVER OF SERVICE Returned Executed by KIMESHA THORPE. KIMESHA THORPE waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 44 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
45 WAIVER OF SERVICE Returned Executed by JOHN WATTERSON. JOHN WATTERSON waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 45 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
46 WAIVER OF SERVICE Returned Executed by SUSAN WORTINGER. SUSAN WORTINGER waiver sent on 2/12/2020, answer due 4/13/2020. (FINARELLI, JOSEPH) (Main Document 46 replaced on 2/13/2020 with correct PDF image) (Garland, Leah) (Entered: 02/13/2020)
47 ORDER signed by JUDGE N. C. TILLEY, JR on 02/14/2020, that Magistrate Jeffrey D. Hollan be substituted as a party to the case. The Clerk's Office is directed to make the substitution in the case docket in the Courts Electronic Court Filing System. (Garland, Leah) (Entered: 02/14/2020)

02/19/2020 02/20/2020 02/21/2020

48 Consent MOTION for Extension of Time to File Response/Reply by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 02/19/2020)
Motions Referred: RE: 48 Consent MOTION for Extension of Time to File Response/Reply , to MAG/JUDGE L. PATRICK AULD (Winchester, Robin) (Entered: 02/20/2020)
TEXT ORDER granting in part and denying in part 48 Consent Motion for Extension of Time, in that Plaintiffs shall file any replies to 27 Response of Defendant Sheriff Terry S. Johnson ("Defendant Sheriff") to 6 Motion for Class-wide Preliminary Injunction and to 28 Response of Defendant Sheriff to 2 Plaintiffs' Motion to Certify Class by 03/02/2020. Via 48 Consent Motion, Plaintiffs seek indefinite extensions of their deadlines to file replies to 27 Response and 28 Response. In support of that request, 48 Consent Motion observes that "Defendants Chief District Judge Allen, Senior Resident Superior Court Judge Lambeth, and the Magistrates ('Judicial Defendants') executed waivers of service of process on February 12, 2020...." As a result, the Judicial Defendants need not appear to answer or otherwise
respond to 1 Complaint until 04/13/2020. Consistent with that fact, the Judicial Defendants have not responded to 2 Plaintiffs' Motion or 6 Motion and no reason exists to believe that the Judicial Defendants would so respond prior to 04/13/2020. Accordingly, 48 Consent Motion's "request that the Court's [sic] stay their deadline to file Replies to Defendant Sheriff's Responses until their Replies to the Judicial Defendants' Responses are due" effectively would delay Plaintiffs' filing of any reply to 27 Response and 28 Response until some time after 04/13/2020. The Court, however, via Text Order dated 11/26/2020 ("with agreement of counsel" for Plaintiffs and Defendant Sheriff) set 6 Motion for hearing on 03/16/2020 and directed Plaintiffs and Defendant Sheriff to "file a joint status report no later than [03/02/2020], apprising the Court of the status of their progress [in resolving 6 Motion] and whether there is a continued need for a preliminary injunction hearing." Granting 48 Consent Motion thus would extend briefing on 6 Motion, as it relates to Defendant Sheriff, well beyond the current hearing date for resolution of 6 Motion, as it relates to Defendant Sheriff. Under these circumstances, the Court concludes that Plaintiffs must file any reply to 27 Response and the inter-related 28 Response by 03/02/2020. A review of the substance of 27 Response and 28 Response confirms the propriety of that conclusion. In that

02/24/2020 03/02/2020 03/02/2020 03/03/2020 03/03/2020

regard, 27 Response does not present substantive arguments as to 6 Motion, but instead simply states that "the parties are diligently working on the issues at hand in attempts to limit the scope of the hearing [on 6 Motion] or perhaps the entirety of the hearing," as well as that Defendant Sheriff "does not believe any further response is required to 6 Motion." Similarly, in 28 Response, Defendant Sheriff does not address the merits of the class certification issue raised in 2 Plaintiffs' Motion, except to assert that "his presence as a Defendant in this action is unnecessary and a class action against him in [sic] improper." Given the nature of Defendant Sheriff's contentions in 27 Response and 28 Response, delaying Plaintiffs' reply thereto until some future date when the Judicial Defendants have responded to 2 Plaintiffs' Motion and 6 Motion would not (contrary to the contention in 48 Consent Motion) serve "the interest of efficiency and judicial economy," but instead would undermine the Court's interest in determining, on the established schedule, (1) whether or not disputes actually exist between Plaintiffs and Defendant Sheriff about the need for a classwide preliminary injunction against Defendant Sheriff and/or the propriety of certification of a class action against Defendant Sheriff, and (2) if such disputes exist, how the Court should resolve them. Issued by MAG/JUDGE L. PATRICK AULD on 02/21/2020. (AULD, L.) (Entered: 02/21/2020)
Set Reply Deadlines re: 2 MOTION to Certify Class, 6 MOTION for Preliminary Injunction: Replies due by 3/2/2020. (See 2/21/2020 Text Order) (Garland, Leah) (Entered: 02/24/2020)
49 REPLY, filed by Plaintiffs LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL, to Response to 2 MOTION to Certify Class filed by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (HUBBARD, KATHERINE) (Entered: 03/02/2020)
50 JOINT STATUS REPORT AND MOTION TO STAY filed by all parties.. (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 03/02/2020)
Motions Submitted: 50 Joint Status Report and MOTION to Stay to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 03/03/2020)
51 ORDER signed by JUDGE N. C. TILLEY, JR on 03/03/2020, the Court hereby GRANTS the Motion to Stay [Doc. # 50 ], and ORDERS that Judicial Defendants' deadlines to file their responsive pleadings and their responses to Plaintiffs' Motion for Preliminary

04/30/2020
04/30/2020 04/30/2020 05/01/2020 05/01/2020 05/01/2020

Injunction and Motion for Class Certification are stayed until April 30, 2020. (Garland, Leah) (Entered: 03/03/2020)
52 RESPONSE filed by Defendants BRADLEY R. ALLEN, SR, KELLY COUNCILMAN, DAVID CRABBE, RHONDA CRISP, BERTRAM HEATHCOTE, JEFFREY D. HOLLAN, WENDY HUNTER, AMELIA KNAUFF, D. THOMAS LAMBETH, JR, BOBBIE NANCE, HELENA RODGERS, KIMESHA THORPE, JOHN WATTERSON, SUSAN WORTINGER re 2 MOTION to Certify Class filed by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL filed by BRADLEY R. ALLEN, SR, KELLY COUNCILMAN, DAVID CRABBE, RHONDA CRISP, BERTRAM HEATHCOTE, JEFFREY D. HOLLAN, WENDY HUNTER, AMELIA KNAUFF, D. THOMAS LAMBETH, JR, BOBBIE NANCE, HELENA RODGERS, KIMESHA THORPE, JOHN WATTERSON, SUSAN WORTINGER. Replies due by 5/14/2020 (FINARELLI, JOSEPH) (Entered: 04/30/2020)
53 ANSWER to 1 Complaint with Jury Demand by BRADLEY R. ALLEN, SR, KELLY COUNCILMAN, DAVID CRABBE, RHONDA CRISP, BERTRAM HEATHCOTE, JEFFREY D. HOLLAN, WENDY HUNTER, AMELIA KNAUFF, D. THOMAS LAMBETH, JR, BOBBIE NANCE, HELENA RODGERS, KIMESHA THORPE, JOHN WATTERSON, SUSAN WORTINGER. (FINARELLI, JOSEPH) (Entered: 04/30/2020)
54 Joint MOTION for Extension of Time of 51 Order Granting Stay by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Attachments: # 1 Text of Proposed Order)(KANG, LEAH) (Entered: 04/30/2020)
Motions Submitted: 54 Joint MOTION for Extension of Time of 51 Order Granting Stay to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 05/01/2020)
TEXT ORDER granting 54 Motion for Extension of Time. The deadline to file a response to the Motion for Preliminary Injunction is extended to 5/1/2020. Issued by JUDGE N. C. TILLEY, JR. on 5/1/2020.(Blumke, Sheila) (Entered: 05/01/2020)
55 Joint MOTION to Approve Consent Order for Preliminary Injunction by LEA ALLISON, KATHERINE GUILL, ANTONIO HARRELL. (Attachments: # 1 Exhibit Proposed Consent Order for Preliminary Injunction)(KANG, LEAH) (Entered: 05/01/2020)

05/04/2020
05/08/2020 56

Motions Submitted: 55 Joint MOTION to Approve Consent Order for Preliminary Injunction to JUDGE N. C. TILLEY, JR. (Winchester, Robin) (Entered: 05/04/2020)
ORDER signed by JUDGE N. C. TILLEY, JR on 5/8/2020 as set out. This Order shall become effective upon entry by the Court and shall remain in effect until further order of the Court. The Court shall retain jurisdiction over this action to ensure compliance with this Order and for all other purposes related to this action. (Garland, Leah) (Entered: 05/08/2020)

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1:19-cv01126-NCTLPA

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

LEA ALLISON, ANTONIO HARRELL,

)

and KATHERINE GUILL, on behalf of

)

themselves and those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRADLEY R. ALLEN, SR., in his official )

capacity as Chief District Court Judge,

)

)

BRENDA BROWN,

)

KELLY COUNCILMAN,

)

DAVID CRABBE, RHONDA CRISP,

)

BERTRAM HEATHCOTE,

)

WENDY HUNTER, AMELIA KNAUFF, )

BOBBIE NANCE, HELENA RODGERS, )

KIMESHA THORPE, JOHN WATTERSON, )

SUSAN WORTINGER, in their official

)

capacity as magistrates of the

)

Alamance County District Court,

)

)

D. THOMAS LAMBETH, JR., in his

)

official capacity as Senior Resident

)

Superior Court Judge,

)

)

and

)

)

TERRY S. JOHNSON, in his official

)

capacity as Alamance County Sheriff,

)

)

Defendants.

)

Case No. (Class Action)

CLASS ACTION COMPLAINT

Case 1:19-cv-01126-NCT-LPA Document 1 Filed 11/12/19 Page 1 of 33

1. Every day in Alamance County, presumptively innocent people remain in jail simply because they are too poor to pay for their freedom. Hundreds of people each year are condemned to remain confined in jail for days, weeks, or possibly even months until they either have their day in court or accept a plea that allows them to be released and return to their lives. This system inflicts devastating harm on people solely because of their poverty and violates the most fundamental of American axioms: that all people are equal under law.
2. Defendants are responsible for these harms, as they implement and employ policies and practices that imprison people on unaffordable money bail, deny them even the most basic procedural protections, and violate their fundamental constitutional rights to pretrial liberty and to not be jailed because of their poverty.
3. Plaintiffs Lea Allison, Antonio Harrell, and Katherine Guill (collectively, “Named Plaintiffs”) are currently confined in Alamance County jail cells solely because they do not have enough money to purchase their freedom. Because they cannot make the payment that Defendants require for their release, these presumptively innocent individuals will be detained in the Alamance County Detention Center until their cases reach a disposition.
4. Defendants subject people arrested and charged in Alamance County to unconstitutional de facto detention orders set without the assistance of counsel and do not provide any process for the incarcerated individuals to contest their jailing until days or weeks have passed and the individual waives counsel or an attorney enters an appearance
2
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and files a bail motion.1 Conversely, wealthier individuals are released from custody almost immediately because they can pay the monetary condition of release.
5. Thus, Defendants systematically violate Plaintiffs’ rights to equal protection under the law, substantive and procedural due process, and to be represented by counsel.
6. Defendants’ unconstitutional policies and practices result in widespread wealth-based detention. Of the nearly 350 people locked in Alamance County Detention Center, approximately 78 percent are there awaiting trial.2 Similarly, the Alamance County Sheriff’s Office reported that in 2017, the average daily detention center population was 438 people, of which 315, or approximately 71 percent were held pretrial, including those held on federal charges.3 Many of these people are in pretrial detention solely because they cannot pay the secured money bail that Defendants require for their release.
7. Pretrial detention not only subjects these individuals to the overcrowded conditions in Alamance County’s jail, but it also negatively impacts their personal lives and jeopardizes their legal defense. The consequences of pretrial incarceration are severe: people who are detained pretrial routinely suffer losses in employment, child custody, and housing, and barriers to participation in one’s own defense. Critically, people detained
1 The allegations in this Complaint pertain only to people arrested for felony and misdemeanor charges that do not involve domestic violence. Individuals charged with domestic violence offenses receive a different process for bail under state law, which requires that a judge set their conditions of release, so a magistrate does not set conditions of pretrial release for them at the initial appearance. See N.C. Gen. Stat. § 15A-534.1. 2 Data obtained from Alamance County Sheriff’s Office Inmate Inquiry, accessed on Nov. 8, 2019 at 2:30 p.m. 3 Data released by Alamance County Sheriff’s Office (Aug. 2018).
3
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pretrial experience worse trial and sentencing outcomes than people who are charged with
the same offense but are released before trial.4
8. These harms are inflicted on people living in poverty who cannot pay money
bail despite compelling evidence that alternatives to monetary release conditions are more
effective in ensuring appearance for trial and reduce the risk of re-arrest before trial.5
9. Plaintiffs bring this lawsuit in their individual capacities and as
representatives of the class of individuals including all people who are or will be arrested
and detained in the Alamance County Detention Center because they are unable to pay a
monetary condition of pretrial release, subject to the exception laid out in footnote 1. Each
Named Plaintiff has already suffered pretrial incarceration without due process due to
Defendants’ actions.
10. On behalf of themselves and all others similarly situated, Named Plaintiffs
seek a declaration from the Court that Defendants’ policies and practices violate Plaintiffs’
equal protection, substantive due process, and procedural due process rights, as well as
4 See, e.g., Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 786-87 (2017). 5 PRETRIAL JUSTICE INSTITUTE, The Pretrial Services Agency for the District of Columbia: Lessons From Five Decades of Innovation and Growth 2 (2018), https://perma.cc/8KADTY5H (“The high nonfinancial release rate [in Washington, DC] has been accomplished without sacrificing the safety of the public or the appearance of people in court. Agency data show that 90 percent of released people make all court appearances and that 91 percent complete the pretrial release period without any new arrests.”). See also CINDY REDCROSS, ET AL., MDRC CENTER FOR CRIMINAL JUSTICE RESEARCH, Evaluation of Pretrial Justice System Reforms that Use the Public Safety Assessment: Effects in Mecklenburg County, North Carolina (March 2019) at 28, https://www.mdrc.org/sites/default/files/ PSA_Mecklenburg_Brief1.pdf (policy changes that increased the number of people released pretrial had no effect on the number of people who failed to appear in court),.
4
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their right to counsel. Plaintiffs further request that the Court issue appropriate injunctive and declaratory relief that will ensure that individuals in Alamance County do not remain in jail solely because of their poverty.
11. Plaintiffs further ask that this Court immediately take up their Motion for Temporary Restraining Order and order Defendant Sheriff to release Named Plaintiffs unless Defendants provide him with orders including a finding, made after the required procedural safeguards have been provided, that Named Plaintiffs’ pretrial detention is necessary.
JURISDICTION AND VENUE 12. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 13. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
PARTIES 14. Plaintiff Lea Allison is a 30-year-old white woman. She is currently incarcerated in the Alamance County Detention Center solely because she cannot afford a $3,500 money bail, set by a magistrate. 15. Plaintiff Antonio M. Harrell is a 36-year-old Black man. He has been incarcerated for more than 2 days solely because he cannot afford a $1,500 money bail, set by a magistrate.
5
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16. Plaintiff Katherine Guill is a 42-year-old white woman. She is currently incarcerated in the Alamance County Detention Center solely because she cannot afford a $2,500 money bail, set by a magistrate.
17. Defendant Chief District Judge Allen is responsible under state law for administrative supervision and authority over the operation of the district court and the magistrates in his district. N.C. Gen. Stat. § 7A-146. This supervision includes assigning matters to magistrates, prescribing the times and places at which magistrates are available for the performance of their duties, and designating magistrates to appoint counsel and accept waivers of counsel. Id. Chief District Judge Allen also has the authority to suspend magistrate judges and to set a hearing before Senior Resident Superior Court Judge Lambeth to remove a magistrate. N.C. Gen. Stat. § 7A-173. Chief District Judge Allen is authorized to consult with Senior Resident Superior Court Judge Lambeth in setting the county bond policy. N.C. Gen Stat. § 15A-535. Chief District Judge Allen is sued in his official capacity for declaratory relief.
18. Defendant Alamance County magistrates’ duties include making probable cause and bail determinations. The magistrates determine conditions of release for people arrested on non-domestic violence charges. When determining conditions of release, magistrates do not provide notice of critical issues at the proceeding, an opportunity to be heard or to confront evidence, findings by any legal or evidentiary standard concerning arrestees’ ability to pay money bail or the necessity of pretrial detention, or an explanation
6
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of reasons on the record. They also do not provide counsel before the proceedings or at the proceedings. The magistrates are sued in their official capacity for declaratory relief.
19. Defendant Senior Resident Superior Court Judge Lambeth is responsible under state law for promulgating, in consultation with the chief district judge, the bond policy for Superior Court District 15A, in which Alamance County is located. See N.C. Gen Stat. § 15A-535. Judge Lambeth has general administrative, rulemaking, and supervisory authority over the superior court district. Judge Lambeth appoints magistrates, fills magistrate vacancies, and may remove magistrates from office after conducting a hearing. N.C. Const. Art. IV § 10; N.C. Gen. Stat. §§ 7A-171(b), (c), and (d); 7A-173(a), (c). Judge Lambeth is sued in his official administrative capacity for injunctive and declaratory relief.
20. Defendant Sheriff Terry Johnson is the head of the Alamance County Sheriff’s Office and the keeper of the Alamance County Detention Center. Sheriff Johnson has custody of individuals in Alamance County during their booking into the jail and for the duration of their pretrial detention. The Sheriff’s Office detains people who have been arrested and cannot pay the secured money bail required by the magistrates. He is the final policymaker for the jail in Alamance County. Sheriff Johnson is sued in his official capacity for injunctive and declaratory relief.
7
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THE NAMED PLAINTIFFS ARE IN JAIL BECAUSE THEY ARE UNABLE TO PAY THE FINANCIAL CONDITION REQUIRED FOR THEIR RELEASE 21. Plaintiff Lea Allison is a 30-year-old white woman who is currently detained
in the Alamance County Detention Center. She would be able to leave the jail if she could afford to pay a $3,500 cash bail.
22. Ms. Allison has a 6-year-old daughter who relies on her support. 23. Ms. Allison is indigent and struggles to pay for basic necessities; she recently lost her cell phone service and her car insurance will lapse because she cannot pay the bill. 24. After five months of unemployment and one month of underemployment, Ms. Allison was finally able secure a job, which she was scheduled to begin the day following her incarceration. Ms. Allison fears she will lose her new job and only path to financial stability for her and her daughter if she remains incarcerated. 25. Ms. Allison lives with her boyfriend and his family because she cannot afford her own place. Ms. Allison worries that she will lose her housing at her boyfriend’s mother’s house if she is not able to contribute to the rent. 26. Ms. Allison worries that, unless released from jail, she will not have access to the six daily medications she needs to take. 27. At the jail, Ms. Allison is sleeping on the floor of her jail cell, alongside many other women, because her housing unit is overcrowded. 28. Ms. Allison has not been before a magistrate judge. Rather, at the jail, a sheriff’s deputy handed her a piece of paper entitled “Conditions of Release and Release
8
Case 1:19-cv-01126-NCT-LPA Document 1 Filed 11/12/19 Page 8 of 33

Order” signed by a magistrate. The Order stated that she would have to pay $3,500 secured money bail in order to be released.
29. Plaintiff Antonio Harrell is a 36-year-old Black man who lives in Burlington, North Carolina.
30. Mr. Harrell lives in a supportive housing group home for people with disabilities, where he usually speaks with a peer support person daily to manage mental health and substance abuse challenges.
31. Mr. Harrell relies on a limited social security check, on which his mother is the representative payee. He supplements that fixed income with part-time work busing tables at a local restaurant, Smithfield Chicken and Barbeque, for $7.75 per hour, but still struggles to meet his basic necessities. At the time of filing, Mr. Harrell has only $2.00 to his name, and he is waiting for his next paycheck.
32. On the morning of Saturday, November 9, 2019, Mr. Harrell was arrested and charged with second degree trespassing and larceny, both of which are misdemeanor charges.
33. The police officer who arrested Mr. Harrell took him to the Alamance County Detention Center, where he arrived around 12:30 p.m. The police officer told Mr. Harrell that he would see a magistrate. Mr. Harrell asked the police officer if he could ask the magistrate for a written promise to appear, and the police officer told Mr. Harrell that he could.
9
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34. When Mr. Harrell went before the magistrate for an initial appearance, the magistrate was behind glass and the only other person in the room with him was the arresting officer. Mr. Harrell did not have a lawyer during the proceeding before the magistrate, but he would have preferred to have the assistance of an attorney to help him understand what was happening to him.
35. The magistrate told Mr. Harrell his charges and that he would need to pay a $1,500 secured bail in order to be released from jail. Mr. Harrell then asked the magistrate if he could be released on a written promise to appear instead of a money bail, to which the magistrate said, “no.”
36. The proceeding before the magistrate only lasted one or two minutes. The magistrate asked Mr. Harrell no questions about how much he could afford to pay, whether he had a job, how much his rent was, or how long he had lived in the area.
37. The magistrate gave Mr. Harrell a piece of paper with a $1,500 money bail amount and a court date for his first appearance in district court. The magistrate did not tell Mr. Harrell the reasons for the $1,500 bond amount, or that there are alternative conditions of release that he could have set other than money bond. The paper said that Mr. Harrell’s first appearance in district court is scheduled for December 5, 2019, which is more than 3 weeks from the date of Mr. Harrell’s appearance before the magistrate.
38. Mr. Harrell cannot not afford to pay the $1,500 secured money bail required for his release or the cost to hire a private attorney.
10
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39. Since being booked into the jail, Mr. Harrell has not received the four medications that he takes on a daily basis, and which he has relied on for years and are critical to his health. He also has not been able to speak to his peer support person since entering the jail, which he usually does daily to manage his mental health and substance abuse challenges.
40. Mr. Harrell waited six months to get into the supporting housing group home where he has lived for the past year. He is extremely worried that if he remains in jail because he cannot make the payment required for his release, he could lose his room at the group home, as well as his job and possibly his social security check.
41. Plaintiff Katherine Guill is a 42-year-old white woman who is currently detained in the Alamance County Detention Center. She would be able to leave the jail if she could afford to pay a $2,500 cash bail.
42. Ms. Guill works at a restaurant where she makes $8 per hour plus tips. 43. She was arrested on November 11, 2019 and charged with several misdemeanor offenses. She was taken to the Alamance County Detention Center where she saw a magistrate. At the proceeding before the magistrate, Ms. Guill was not represented by counsel. The magistrate told Ms. Guill not to speak and that she would get in trouble if she spoke. 44. At this proceeding, the magistrate did not ask Ms. Guill any questions about her ability to pay or her ties to the community. The magistrate informed Ms. Guill that the
11
Case 1:19-cv-01126-NCT-LPA Document 1 Filed 11/12/19 Page 11 of 33

money bail amount she would have to pay for her release was $2,500. Ms. Guill attempted to ask for an attorney but the magistrate would not let her speak.
45. Ms. Guill cannot afford to pay the secured money bail required for her release. She lives in a sober living facility where she had to wait a month for a bed. She takes medication that she has not been receiving in jail.
46. If she stays in jail, she is afraid that she will lose her job, her bed in the sober living facility, and that her physical and mental health will deteriorate.
47. Because her housing unit in the jail is overcrowded, she is sleeping on a thin mat on the floor.
48. Ms. Guill’s first appearance in district court is not until December 10, 2019, which is nearly one month from the date of her arrest.
DEFENDANTS FAIL TO PROVIDE ANY CONSTITUTIONALLY MEANINGFUL PRETRIAL RELEASE PROCESS AND INDIVIDUALS REMAIN
INCARCERATED DUE TO THEIR POVERTY 49. Defendants, as a matter of practice, impose secured financial conditions of release on almost all people arrested in Alamance County. In 2017, Alamance County judges required a secured bond in 93 percent of felony release orders and 85 percent of misdemeanor release orders, representing 88 percent of all release orders.6 In 2018, out of 100 North Carolina counties, Alamance County ranked second—nearly the highest rate in
6 Josh Shaffer & David Raynor, Pay $500 on a panhandling charge or sit in jail for five days. Should NC find a better way? THE NEWS & OBSERVER (Feb. 21, 2019), https://www.newsobserver.com/news/state/north-carolina/article224673805.html.
12
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the state—in terms of the percentage of misdemeanor defendants with secured money bond.7
50. Alamance County has a written policy, published in 1995, that provides recommended bail guidelines. Ex. A, Judicial District 15A Official Policies on Pretrial Release. Pursuant to state law, this policy is promulgated by the senior resident superior court judge, in consultation with the chief district court judge. The policy was issued in 1995 by the then-senior resident superior court judge, and neither Senior Resident Lambeth nor any other senior resident superior court judge has updated the policy since then.
51. Although the written policy states that state law is designed to impose the least restrictive non-monetary form of release that will reasonably assure court appearance, see Ex. A, Official Policies at 4, the policy does not establish a procedure that is sufficient to protect arrestees’ constitutional rights. The policy does not require any affirmative inquiry or findings regarding ability to pay. Id. at 6. While the policy lists “Defendant’s financial resources” as a factor that judicial officials must consider when setting bail, a judicial official need only consider that fact insofar as that information is available to them. Id. at 3. The policy also requires magistrates to impose secured money bail absent extraordinary circumstances in many cases. For example, magistrates must set secured money bail in felony cases “unless the magistrate has personal knowledge of outside confirmation of a sufficient number of favorable circumstances . . . to justify another form
7 Jessica Smith, How Big a Role Does Money Play in North Carolina’s Bail System, UNC School of Government (July 2019), available at https://nccriminallaw.sog.unc.edu/howbig-a-role-does-money-play-in-north-carolinas-bail-system/.
13
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of release.” Id. at 6. The policy also requires “extraordinary circumstances” for setting any condition other than secured money bail in a number of other cases, including where the individual has been convicted of multiple larceny or shoplifting offenses or has possessed professional larceny equipment. Id. The policy does not outline the procedures that must be followed to determine the amount of secured money bail that an individual can pay, or the procedures to follow if the magistrate requires unaffordable secured money bail, nor does it require access to appointed counsel during bail setting.
52. With some exceptions, such as individuals who are arrested for domestic violence charges and thus must have their conditions of pretrial release set by a judge, see N.C. Gen. Stat. § 15A-534.1(a), people who are arrested in Alamance County have their conditions of release determined by magistrates.
53. Within a few hours of arrest, individuals are brought before a magistrate in the jail for an initial appearance. The initial appearance is a very brief proceeding at which the magistrate informs the person of the charges against them, their conditions of release, and their next court date. Individuals are not represented by counsel at this proceeding.
54. Magistrates set conditions of release without making any inquiry into the individuals’ ability to pay secured money bail, their ties to the community, or other relevant factors. Despite not knowing an individual’s financial circumstances, the magistrates have a practice of setting monetary conditions of release in the vast majority of cases. The magistrates sometimes determine the conditions of release without even seeing the individual. Individuals sometimes receive a preprinted form with the secured money bail
14
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amount already printed on it. Even when the magistrates set bail after the person is brought before them, they do so without asking any relevant questions of the individual. Magistrates thus set money bail without any knowledge of the individual circumstances of the arrested person, other than the charges on which the person has been booked and, sometimes, prior convictions, the contents of the police report, and/or cooperation with law enforcement.
55. For many people, these money bail orders operate as de facto detention orders because they cannot obtain the amount of money required for their release.
56. Magistrates routinely issue these de facto detention orders without any individualized assessment of the risk a person may pose, and without considering nonmonetary conditions that might sufficiently mitigate such risks. Furthermore, the magistrates issue these de facto detention orders without any meaningful process, let alone the detailed procedures required by due process, including: notice of the critical issues to be decided; the assistance of counsel; the right to present evidence and confront evidence offered by the government; the requirement that any findings be made by clear and convincing evidence; and an on-the-record statement of reasons for any decision to detain.
57. Once a financial condition of release is imposed by the magistrates at the initial appearance, those who can pay will be released immediately while those who cannot access the money required for release remain jailed for days, weeks, or possibly even a month or longer before they have any opportunity to request alternative conditions of release.
15
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58. After the initial appearance before a magistrate, individuals have a first appearance before a district court judge. This appearance is the first opportunity to request and receive court-appointed counsel for individuals who cannot afford to hire an attorney. For individuals without counsel who remain jailed because they cannot afford to pay money bail, there is no mechanism to request review of conditions of release until after the judge appoints counsel, or they waive their right to counsel, at their first appearances.
59. Individuals charged with felony offenses are entitled under state law to a first appearance within 96 hours of arrest. N.C. Gen. Stat. § 15A-601(c). Individuals charged only with misdemeanor offenses, however, are not entitled to a first appearance within 96 hours of arrest and often must wait significantly longer before they see a judge. Typically, magistrates schedule first appearances in cases involving only misdemeanors for the next date on which the arresting officer is scheduled to be in court. This means that individuals charged with misdemeanors who cannot afford to pay money bail can be jailed for days, weeks, and possibly a month or more, before they see a judge, are appointed counsel, or have an opportunity to request alternative conditions of release.
60. Defendants do not provide an opportunity to request bail review at the first appearance. The district court judges at first appearances refuse to hear requests from arrestees to change the conditions of pretrial release. Individuals are not represented by counsel and are not permitted to speak to the judge except to inform the judge whether they plan to retain counsel or would like appointed counsel, and to answer any questions from
16
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the judge about the affidavit of indigency used to determine eligibility for appointed counsel.
61. At the first appearance, the district court judge informs individuals of the maximum sentence possible for each charge, informs them of their right to counsel, and asks whether they would like to have counsel appointed to them. Before appointing counsel, the judge reviews the individual’s affidavit of indigency and has them attest to their indigency under oath. Arrestees are also informed that court-appointed attorneys are not necessarily free and that they will have to pay their appointed counsel $55 an hour for misdemeanor cases and $60-65 an hour for felony cases, plus an additional $60 “appointment fee” if their cases result in conviction. Even when the judge learns through the appointment-of-counsel process that the individual before them is indigent, the judge does not address conditions of release. This first appearance proceeding typically lasts no more than a few minutes and is not on the record.
62. Prosecutors from the Alamance County District Attorney’s Office are present at first appearances. They read the allegations against arrestees and calendar cases. Defense counsel are not present at first appearances unless the arrestee has retained private counsel.
63. If individuals attempt to request a change to their conditions of release, the judge informs them that the first appearance is not the appropriate time to talk about their pretrial release conditions, and that if they would like to challenge their pretrial release conditions, they should wait for their attorney to contact them and then request that their attorney file a motion for review of their pretrial release conditions.
17
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64. Alamance County does not have a public defender office. Individuals who are entitled to a court-appointed attorney are assigned counsel from a list of eligible private attorneys that is maintained by the clerk of court pursuant to the County’s “Approved NonPublic Defender County Plan.”
65. After an individual has had a first appearance and the judge has appointed counsel, the clerk of court notifies defense counsel of the appointment. Appointed counsel must then go to the courthouse to obtain a copy of their client’s case file. The appointment form includes a box that is checked if the client is in custody. If the box is checked, appointed counsel are supposed to visit their client in the jail within 72 hours. Unless individuals have waived their right to counsel, that meeting is their first opportunity to ask their attorney to file a motion for bond reduction.
66. It is the policy and practice in Alamance County that defendants must give prosecutors at least 24 hours’ notice before judges will hear a motion for bond reduction.
67. Indigent individuals who seek court-appointed counsel therefore have no opportunity to challenge or request modification of their release conditions until counsel is appointed in their cases at first appearance, makes contact with them, agrees to request a modification of pretrial release conditions, and then enters an appearance in their case and files a bail motion. Even after a bond motion is filed, the district court judges will not hear the motion for at least a day after it is filed because of the 24-hour-notice policy. Thus, indigent individuals charged with felonies remain incarcerated for a minimum of several days and often more than a week before they are given any opportunity to modify the
18
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conditions of release set in their case. Indigent individuals charged with misdemeanors may remain incarcerated for weeks before they have their first appearance and even longer before they meet their appointed counsel and have an opportunity to seek modification of their conditions of release.
68. Conversely, wealthier individuals can, immediately after their initial appearance before a magistrate, pay the required secured money bail or hire an attorney to quickly challenge their release conditions.
69. As a result of Defendants’ policies and practices, indigent individuals are subject to extended periods of wealth-based pretrial detention before being provided a hearing on conditions of release. ALAMANCE COUNTY’S UNCONSTITUTIONAL PRETRIAL POLICIES AND
PRACTICES HARM INDIVIDUALS AND COMMUNITIES 70. Due to Defendants’ unconstitutional policies and practices, presumptively innocent individuals are detained in Alamance County every day solely because they are too poor to pay the monetary release conditions imposed without any hearing, let alone a hearing that meets constitutional standards. 71. Pretrial incarceration harms individuals’ lives far beyond their loss of liberty and the conditions they face in jails. Collateral consequences of pretrial incarceration include:
● Loss of income and wages when individuals lose their jobs because of their incarceration;
● Loss of housing and missed payments on bills because individuals cannot work or pay bills while incarcerated;
● Loss of physical and/or legal custody of children; 19
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● An increase of mental illness symptoms because conditions in jail can put an individual under extreme stress and restrict access to needed medications, exacerbating or even causing mental illness; and
● Increased risk of assault, including sexual assault, especially in the first few days of incarceration.
72. In addition, being detained pretrial can have a significant impact on the legal
outcome of a person’s case. Detained people have a harder time preparing for their defense,
gathering evidence and witnesses, and meeting with their lawyers. Being detained pretrial
decreases a person’s plea bargaining power and increases the likelihood of a plea to time
served, even if the person is innocent. Those detained pretrial face worse outcomes at trial
and sentencing than those released pretrial, even when charged with the same offenses.
Individuals incarcerated pretrial have a 13 percent increased chance of being found guilty,
have a 25 percent increased chance they will plead guilty, are four times more likely to be
sentenced to jail time, and have three times longer jail sentences (an average of 4.6 months
longer) than those free while waiting for their trial.8
73. A large body of empirical evidence shows that many people who are initially
jailed for just two or three days after arrest and then released are much more likely than
8 See CHRISTOPHER LOWENKAMP ET AL., INVESTIGATING THE IMPACT OF PRETRIAL DETENTION ON SENTENCING OUTCOMES, LAURA & JOHN ARNOLD FOUNDATION 12, 14 (2013), https://university.pretrial.org/viewdocument/investigating-the-im (finding that “defendants detained for the entire pretrial period were 4.44 times more likely to be sentenced to jail” than those released pretrial, and that defendants detained pretrial faced 2.78 times longer jail sentences); Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. ECON. & ORG. 18 (2018), https://www.econ.pitt.edu/sites/default/files/Stevenson.jmp2016.pdf (finding that individuals jailed pretrial are 13 percent more likely to be convicted); Paul Heaton, et al., 69 STAN. L. REV. at 744.
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similarly-situated people who are not detained pretrial to be re-arrested, and they are also more likely to miss court dates in the future, all because of the destabilizing effects of short periods in jail.9
74. Thus, Defendants’ practice of issuing de facto detention orders by setting unaffordable monetary bail without process or requisite findings results in significant collateral consequences to individuals based solely on their economic status.
75. Conditions within the jail additionally put arrestees’ health and safety at risk. The jail is overcrowded and the housing units often have so many individuals housed in them that it leaves many to sleep on the floor. This crowding can result in unsanitary and dangerous conditions.
Class Action Allegations 76. The Named Plaintiffs bring the Claims in this action, on behalf of themselves and all others similarly situated, as a class action under Federal Rules of Civil Procedure 23(a)(1)-(4) and 23(b)(2). 77. Under Federal Rule of Civil Procedure 23(a), certification of a class is appropriate where: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the
9 See, e.g., Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization, 21-23 (2016), http://www.columbia.edu/ ~cjh2182/GuptaHansmanFrenchman.pdf
21
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representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).
78. Plaintiffs request that the Court certify a class composed of all people who are arrested and charged with non-domestic violence offenses who are or will be detained in the Alamance County Detention Center because they are unable to pay monetary conditions of pretrial release.
Numerosity and Impracticability of Joinder 79. Joinder of the proposed class is impracticable because of the numerosity of the class and their impoverished economic status. 80. Of the nearly 350 individuals locked in Alamance County Detention Center, approximately 78 percent are in pretrial custody.10 Similarly, the Alamance County Sheriff’s Office reported that in 2017 the average daily detention center population was 438 people, of which 315, or approximately 71 percent were held pretrial, including those held on federal charges.11 The vast majority of individuals who are incarcerated pretrial in Alamance County are impoverished. The number of current and future individuals subject to Defendants’ policies and practices who will remain incarcerated numbers well into the hundreds every year.
10 Supra note 2. 11 Supra note 3.
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Commonality 81. Common questions of law and fact exist as to all members of the class. The Named Plaintiffs seek common declaratory and injunctive relief concerning whether Defendants’ wealth-based policies and practices violate the rights of the class members, and relief mandating that the Defendants cease these constitutional violations. 82. The Plaintiffs’ claims raise common legal and factual questions arising from one central set of policies and practices: Defendants’ post-arrest procedurally-deficient bail setting and wealth-based detention system. Defendants operate this system in materially the same manner every day with respect to all individuals arrested and held in Alamance County’s pretrial custody. Resolution of these legal and factual issues will determine whether all of the members of the class are entitled to the constitutional relief that they seek. 83. Among the most important common questions of fact for the class are:
a. Whether Defendants have a policy and practice of setting pretrial release conditions without process or a hearing;
b. Whether, when, and how any official determines what conditions of pretrial release should be and whether, for example, any judicial official considers ability to pay, makes findings concerning ability to pay, and offers nonmonetary release conditions for those unable to pay;
c. What standard post-arrest procedures created, implemented, and enforced by the Defendants apply to people booked in the Alamance County jail;
d. How long individuals booked in the Alamance County jail must wait in detention before they have an opportunity to challenge pretrial release conditions, raise their inability to pay for their release, or request alternative, non-monetary conditions;
23
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e. How long individuals arrested must wait to be appointed an attorney who may challenge their pretrial detention;
f. The role of the magistrates in the setting of bail and conditions of release, whether any individualized analysis occurs, and whether and how inability to pay is considered;
g. Any supervision or training given to magistrates and used to help determine release conditions.
84. Among the most important common questions of law are:
a. Whether requiring an individual to pay money to secure release from pretrial detention without an inquiry into or findings concerning the individual’s present ability to pay the amount required, the need for detention, and less restrictive alternative release conditions, violates the Fourteenth Amendment’s Due Process and Equal Protection clauses;
b. Whether imposing a monetary release condition that operates as a de facto order of pretrial detention because of a person’s inability to pay without making substantive findings, or complying with the legal standards and procedures required for issuing and enforcing a de facto order of preventive detention, violates the class members’ substantive and procedural due process rights;
c. Whether the setting of pretrial release conditions without an individual’s ability to consult and be represented by counsel violates the Fourteenth Amendment’s Due Process clause; and
d. Whether the bail hearing before the magistrate is a critical stage of the criminal case, such that class members are entitled to a state-provided attorney under the Sixth Amendment.
Typicality
85. The Named Plaintiffs’ claims are typical of the claims of the other members
of the class. Each class member is or will be incarcerated in Alamance County custody
pretrial and remains incarcerated based on the same lack of due process, suffering the same
injury because Defendants refuse to comply with basic due process constitutional 24
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requirements. Class members all remain confined in jail because they cannot afford to pay the Defendants’ secured money bail. The answer to whether the Defendants’ policies and practices are unconstitutional will determine the specific claims and specific relief sought by the Named Plaintiffs and every other class member. All class members seek the same declaratory and injunctive relief.
Adequacy 86. The Named Plaintiffs are adequate representatives of the class because their interests in the vindication of their legal claims are entirely aligned with the interests of the other class members, each of whom has the same basic constitutional claims. The Named Plaintiffs are members of the class, and their interests do not conflict with those of the other class members. 87. There are no known conflicts of interest among members of the proposed class. All of the members of the class have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom and no-process post-arrest detention system. 88. Plaintiffs are represented by attorneys from the American Civil Liberties Union of North Carolina Legal Foundation, Civil Rights Corps, and the American Civil Liberties Union Foundation. Plaintiffs’ counsel have experience litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ unconstitutional actions and the relevant law. Counsels’ relevant qualifications are more
25
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fully set forth in the contemporaneously filed Motion for Class Certification and its accompanying memorandum and exhibits.
89. The combined efforts of class counsel have so far included extensive investigation into money bail schemes and pretrial release condition processes over the last year, including interviews with individuals in pretrial detention in Alamance County’s jail, conversations with attorneys practicing in state courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and consultation with national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
90. Counsel have devoted significant time and resources to becoming knowledgeable about Defendants’ unconstitutional pretrial incarceration system and related laws. The interests of the members of the class will be fairly and adequately protected by the Plaintiffs and their attorneys.
Injunctive or Declaratory Relief – Rule 23(b)(2) 91. Class-action status is appropriate because Defendants, through the policies, practices, and procedures that make up their wealth-based post-arrest detention system, have acted in the same unconstitutional manner with respect to all class members. 92. The class therefore seeks declaratory relief, requesting that this Court find that current policies and practices relating to the conditions of pretrial release in Alamance County violate individuals’ rights.
26
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93. The class also seeks injunctive relief to institute a constitutional pretrial system and to prevent Defendant Sheriff from detaining individuals pretrial who cannot afford cash payments and for whom the judges have failed to consider their ability to pay or the availability of less restrictive pretrial release conditions.
94. Because the putative class challenges Defendants’ system as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the class, Rule 23(b)(2) is appropriate and necessary.
95. Further, a class action is a superior means, and the only practicable means, by which the Named Plaintiffs and unknown class members can challenge Defendants’ unconstitutional actions and obtain the necessary immediate declaratory and injunctive relief sought for themselves and all other members of the class.
Appointment of Class Counsel – Rule 23(g) 96. Federal Rule of Civil Procedure 23(g) requires that the court appoint class counsel for any class that is certified. Fed. R. Civ. P. 23(g)(1). Class counsel must “fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(4). 97. For reasons fully set forth in the Memorandum in Support of Motion for Class Certification, undersigned counsel meet the factors the court must consider under Rule 23(g): (1) “the work counsel has done in identifying or investigating potential claims in the action”; (2) “counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action;” (3) “counsel’s knowledge of the applicable law;” and (4) “the resources that counsel will commit to representing the class.”
27
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CLAIMS FOR RELIEF COUNT I
Defendants Violate Plaintiffs’ Fourteenth Amendment Rights to Equal Protection and Due Process through a Policy and Practice that
Jails Individuals Based on their Wealth under 42 U.S.C. § 1983 98. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 99. Plaintiffs have a right against wealth-based detention. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit jailing individuals because of their inability to make a monetary payment. 100. Because Plaintiffs have a fundamental substantive right to liberty prior to trial, Defendants’ wealth-based post-arrest scheme is subject to heightened scrutiny. 101. Defendants violate Plaintiffs’ substantive rights by enforcing against them a system of wealth-based detention that keeps them in jail solely because they cannot afford to make a monetary payment. 102. Defendants do not inquire into an individual’s ability to pay monetary release conditions or consider less restrictive alternatives, nor do they make findings regarding the necessity of detention before requiring unaffordable monetary conditions of release that function as de facto detention orders. 103. Defendants’ policies and practices violate the equal protection and due process guarantees of the Fourteenth Amendment because they result in poor arrestees being detained when similarly situated but wealthier arrestees are allowed to go free.
28
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COUNT II Defendants Violate Plaintiffs’ Fourteenth Amendment Substantive Due Process Right to Liberty under 42 U.S.C. § 1983 104. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 105. Defendants deny pretrial detainees their fundamental liberty interest in a manner that is not narrowly tailored to serve the state’s compelling interests in releasing individuals prior to trial, ensuring that released individuals appear for trial, and protecting the public from danger. 106. Defendants violate substantive due process by failing to consider any detainee’s likelihood to appear or whether that individual poses any danger to the community, and by making no findings regarding the necessity of detention before requiring unaffordable monetary conditions of release that function as de facto detention orders through imposition of unaffordable monetary conditions of release.
COUNT III Defendants Violate Plaintiffs’ Fourteenth Amendment
Right to Procedural Due Process 42 U.S.C. § 1983
107. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
108. Before an individual may be detained pretrial, procedural due process requires an individual be given a prompt opportunity to be heard in a meaningful manner before being deprived of liberty.
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109. Defendants’ total lack of procedures—including: no notice that a proceeding will occur; no notice that the issues at the proceeding will be the individual’s ability to pay a money bond and whether the individual arrested is a flight risk or poses a danger to the community; no proceeding with the opportunity to present evidence and cross-examine witnesses; no proceeding at which findings pertaining to these issues are made on the record and by a clear-and-convincing-evidence standard; and no proceeding with counsel present—violates the Fourteenth Amendment.
110. Defendants’ failure to provide any process until an individual retains an attorney, combined with the setting of bond amounts unrelated to an individual’s ability to pay, denies Plaintiffs’ their fundamental right to liberty without procedural due process.
COUNT IV Defendants Violate Plaintiffs’ Sixth Amendment Right to Counsel
by Not Providing Them with Counsel for Bail Determinations 42 U.S.C. § 1983
111. Plaintiffs incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
112. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel at each post-attachment critical stage of the criminal process. Bail determinations are post-attachment critical stages for which counsel must be provided.
30
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113. Defendants’ failure to provide counsel results in pretrial detention that
prejudices both Plaintiffs’ immediate liberty interests and the ultimate outcomes of their
cases.
114. Defendants violate the Sixth Amendment by conducting critical bail
determinations without providing counsel.
Requests for Relief
WHEREFORE, Plaintiffs and the other class members request this Court issue the
following relief:
A. A declaratory judgment that Defendants violate the Named Plaintiffs’ and class members’ constitutional rights by issuing detention orders without due process;
B. A declaratory judgment that Defendants violate the Named Plaintiffs’ and class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail because they cannot afford to pay monetary conditions of release without an inquiry into or findings concerning ability to pay, without consideration of non-financial alternatives, and without findings that a particular release condition—or pretrial detention—is necessary to meet a compelling government interest;
C. A declaratory judgment that when Defendants are determining conditions of release, an individualized determination on release conditions must occur promptly and with the following procedures:
● Defendants must provide notice to the individual arrested that financial information will be collected and must explain the significance of the financial information to be collected;
● Defendants must determine each individual’s ability to pay money bail and the amount of money they can afford;
● The individual arrested must be given an opportunity to be heard at the first opportunity concerning their ability to afford money bail and what nonmonetary release conditions, if any, are necessary. The individual must have the opportunity to present evidence, make arguments concerning those 31
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issues, and to contest any evidence or arguments offered by the government concerning those issues;
● The judicial official conducting the hearing must make substantive findings on the record by clear and convincing evidence about why an individual’s continued incarceration is warranted and that no less restrictive alternatives to detention address the state’s concerns;
● The individual must be provided free counsel at the hearing;
D. A declaratory judgment that Defendants violate Plaintiffs’ and class members’ right to counsel under the Sixth Amendment by failing to provide counsel to indigent people at an individualized bail determination hearing;
E. An order preliminarily and permanently enjoining the Sheriff from enforcing pretrial detention without written notice that a constitutionally valid process that complies with the above outlined process has been followed in each individual’s case;
F. An order requiring Senior Resident Lambeth, in his role as policymaker, to issue a new policy mandating a bail-setting process that meets constitutional requirements;
G. A temporary restraining order requiring the Sheriff to release the Named Plaintiffs unless they are provided the procedures stated above;
H. Any other order and judgment this Court deems necessary to permanently enjoin the Sheriff from enforcing a system of wealth-based pretrial detention that keeps arrestees in jail because they cannot afford a monetary release condition without an inquiry into or findings concerning ability to pay, without consideration of non-financial alternatives, and without any findings that a particular release condition—or pretrial detention—is necessary to meet a compelling government interest;
I. An order certifying the class defined above;
J. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and
K. Any other relief this Court deems just and proper.
32
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Dated: November 12, 2019

Respectfully submitted,

/s/ Katherine Hubbard Katherine Hubbard (D.C. Bar 1500503)* Eric Halperin (D.C. Bar 491199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6124 Fax: 202-609-8030 Email: katherine@civilrightscorps.org
eric@civilrightscorps.org

/s/ Irena Como Irena Como (N.C. Bar 51812) Leah J. Kang (N.C. Bar 51735) Ann C. Webb (N.C. Bar 44894) AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION P.O. Box 28004 Raleigh, NC 27611 Tel: 919-834-3466 Email: icomo@acluofnc.org
lkang@acluofnc.org awebb@acluofnc.org

/s/ Twyla Carter Twyla Carter (WA Bar 39405)* Brandon Buskey (AL Bar ASB2753-A50B)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LEGAL REFORM PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212-284-7364 Email: tcarter@aclu.org
bbuskey@aclu.org
*Appearing by special appearance in accordance with Local Rule 83.1(d).
Attorneys for Plaintiffs

33 Case 1:19-cv-01126-NCT-LPA Document 1 Filed 11/12/19 Page 33 of 33

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

LEA ALLISON, et al., on behalf of

)

themselves and those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRADLEY R. ALLEN, SR., in his official )

capacity as Chief District Court Judge, et al., )

)

Defendants.

)

Case No. 19-cv-1126 (Class Action)

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER Plaintiffs Lea Allison, Antonio Harrell, and Katherine Guill respectfully move the Court for an entry of a temporary restraining order (“TRO”) under Federal Rule of Civil Procedure 65. Plaintiffs are presumptively innocent individuals who are currently unconstitutionally jailed in Alamance County solely because they do not have enough money to pay the secured bond that was set in their cases, without any individualized inquiry, as a condition of their pretrial release. Plaintiffs seek a TRO requiring Defendant Sheriff Johnson to release Plaintiffs unless they are provided, within 24 hours from the time of this Court’s Order, the procedures listed in ¶ 6 below. Plaintiffs file this Motion for TRO today along with their Complaint, Motion for Preliminary Injunction, and Motion for Certification of Class. Plaintiffs have provided electronic notice of the Complaint, Motion for Certification of Class, and this Motion for

Case 1:19-cv-01126-NCT-LPA Document 5 Filed 11/12/19 Page 1 of 5

Temporary Restraining Order to Ms. Tina Crasner, General Counsel of the North Carolina Office of the Courts, and Alamance County Attorney Clyde Albright, and have made arrangements to serve all Defendants with the same via certified, overnight mail.
As more fully presented in their brief in support of their Motions for TRO and Preliminary Injunction, and its accompanying evidentiary attachments,1 Plaintiffs state the following in support of their Motion:
1. Plaintiffs are likely to succeed on the merits of their claims that Defendants’ bail and pretrial detention polices violate their right to be free of wealth-based detention under the equal protection and due process clauses of the Fourteenth Amendment (Count I); their substantive due process right to pretrial liberty (Count II); their procedural due process rights (Count III); and their Sixth Amendment Right to Counsel (Count IV).
2. Without immediate injunctive relief from this Court, Plaintiffs will continue to suffer immediate, irreparable harm in the form of deprivation of their constitutional right to pretrial liberty and right to be free from wealth-based detention. They will also suffer resulting additional harms, including loss of jobs, loss of homes, and disruption to family life, as well as the hindering of their ability to prepare for their own defense.
3. Entry of an injunction poses no harm to Defendants, as it would release individuals who are unconstitutionally held in Defendant Sheriff’s custody.
1 For purposes of efficiency and the Court’s convenience, Plaintiffs file, simultaneously with the instant motion and their Motion for Preliminary Injunction, a single, combined memorandum in support of both motions.
2
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4. An injunction serves the public interest because it prevent the continued violation of constitutional rights, including such fundamental rights as the right to pretrial liberty and the right to be free of wealth-based detention.
5. Plaintiffs respectfully request that the Court exercise its discretion in waiving the security permitted under Federal Rule of Evidence 65(c) because no harm, pecuniary or otherwise, will result to Defendants if an injunction is granted, and Plaintiffs are indigent.
6. Accordingly, Plaintiffs respectfully request that this Court issue a TRO requiring Defendant Sheriff to release them, unless he is provided, within 24 hours of the date of this Court’s Order, with bail orders that include a finding that Plaintiffs’ detention is necessary because less restrictive conditions of release are inadequate and notice that Plaintiffs have received an individualized hearing regarding their pretrial release conditions, at which Defendants provide, at a minimum, the following procedures:
(a) Notice to the individual that financial information will be collected and the significance of such information;
(b) An inquiry into and findings on the record regarding each individual’s ability to pay money bail and the amount of money they can afford;
(c) An opportunity for the individual to present evidence, make arguments concerning those issues, and to contest any evidence or argument offered by the government concerning those issues;
(d) Substantive findings on the record about why an individual’s continued incarceration is warranted and that no less restrictive alternatives to detention address the state’s concerns; and
(e) Representation of counsel free of charge.
3
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Dated: November 12, 2019

Respectfully submitted,

/s/ Katherine Hubbard Katherine Hubbard (D.C. Bar 1500503)* Eric Halperin (D.C. Bar 491199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6124 Fax: 202-609-8030 Email: katherine@civilrightscorps.org
eric@civilrightscorps.org

/s/ Leah Kang Irena Como (N.C. Bar 51812) Leah J. Kang (N.C. Bar 51735) Ann C. Webb (N.C. Bar 44894) AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION P.O. Box 28004 Raleigh, NC 27611 Tel: 919-834-3466 Email: icomo@acluofnc.org
lkang@acluofnc.org awebb@acluofnc.org

/s/ Twyla Carter Twyla Carter (WA Bar 39405)* Brandon Buskey (AL Bar ASB2753-A50B)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LEGAL REFORM PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212-284-7364 Email: tcarter@aclu.org
bbuskey@aclu.org
*Appearing by special appearance in accordance with Local Rule 83.1(d).
Attorneys for Plaintiffs

4 Case 1:19-cv-01126-NCT-LPA Document 5 Filed 11/12/19 Page 4 of 5

CERTIFICATE OF SERVICE I certify that on November 12, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system. I further certify that arrangements have been made to deliver a true and correct courtesy copy of the foregoing to the following via Certified U.S. Mail, Return Receipt Requested.
/s/ Irena Como Counsel for Plaintiffs

Bradley Allen, Sr., Chief District Court Judge Judge J.B. Allen Jr. Criminal Courthouse 212 W Elm St., Ste. 120 Graham, NC 27253

D. Thomas Lambeth, Senior Resident Superior Court Judge Judge J.B. Allen Jr. Criminal Courthouse 212 West Elm Street, Suite 245 Graham, NC 27253

Brenda Brown, Magistrate Kelly Councilman, Magistrate David Crabbe, Magistrate Rhonda Crisp, Magistrate Bertram Heathcote, Magistrate Wendy Hunter, Magistrate Amelia Knauff, Magistrate Bobbie Nance, Magistrate Helena Rodgers, Magistrate Kimesha Thorpe, Magistrate John Watterson, Magistrate Susan Wortinger, Magistrate Judge J.B. Allen Jr. Criminal Courthouse 212 W. Elm St. Graham, NC 27253

Terry S. Johnson, Sheriff Alamance County Detention Center 109 S Maple St. Graham, NC 27253

5 Case 1:19-cv-01126-NCT-LPA Document 5 Filed 11/12/19 Page 5 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

LEA ALLISON, et al., on behalf of

)

themselves and those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRADLEY R. ALLEN, SR., in his official )

capacity as Chief District Court Judge, et al., )

)

Defendants.

)

Case No. 19-cv-1126 (Class Action)

[PROPOSED] TEMPORARY RESTRAINING ORDER The Court having considered the Plaintiffs’ Motion for Temporary Restraining Order, Memorandum in Support of Motions for Temporary Restraining Order and Preliminary Injunction, and the attached Declarations and Exhibits, hereby ORDERS that Plaintiffs’ Motion for Temporary Restraining Order is GRANTED. The Court FINDS that Plaintiffs have shown that immediate and irreparable injury will result unless a temporary restraining order is granted. Plaintiffs will face irreparable injury without a preliminary injunction because they will remain unconstitutionally jailed for an additional period of time in violation of equal protection and due process. The Court further FINDS that Plaintiffs are likely to prevail on Counts I, II, III, and IV, that the balance of interests shifts in favor of Plaintiffs, and that the interest of the public favors granting a temporary restraining order.

Case 1:19-cv-01126-NCT-LPA Document 5-1 Filed 11/12/19 Page 1 of 2

Accordingly, Defendant Sheriff is ENJOINED from continuing to jail Plaintiffs
due solely to their inability to pay a secured monetary amount as a condition of release,
unless Defendant Sheriff is notified in writing that there has been, within 24 hours from
the time of this Court’s Order, an individualized determination on pretrial release
conditions, at which a judicial officer provided, at a minimum, the following procedural
safeguards:
1. Notice to the individual that financial information will be collected and explanation of the significance such information;
2. An inquiry into and findings on the record regarding each individual’s ability to pay money bail and the amount of money they can afford;
3. An opportunity for the individual to present evidence and make arguments concerning the individual’s ability to afford money bail and what nonmonetary release conditions, if any, are necessary , and to contest any evidence or argument offered by the government concerning those issues;
4. Substantive findings on the record about why an individual’s continued incarceration is warranted and that no less restrictive alternatives to detention address the state’s concerns; and
5. The individual must be provided counsel free of charge at the hearing.

Time:

Date:

_________________________________ UNITED STATES DISTRICT JUDGE

2 Case 1:19-cv-01126-NCT-LPA Document 5-1 Filed 11/12/19 Page 2 of 2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

LEA ALLISON, et al., on behalf of

)

themselves and those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRADLEY R. ALLEN, SR., in his official )

capacity as Chief District Court Judge, et al., )

)

Defendants.

)

Case No. 19-cv-1126 (Class Action)

MOTION FOR CLASS-WIDE PRELIMINARY INJUNCTION AND REQUEST FOR HEARING
Plaintiffs Lea Allison, Antonio Harrell, and Katherine Guill respectfully move this Court for entry of a preliminary injunction under Federal Rule of Civil Procedure 65. Plaintiffs bring this action individually and on behalf of a prospective class of presumptively innocent individuals who are or will be unconstitutionally jailed in Alamance County solely because they do not have enough money to pay the secured bond that was set in their cases, without any individualized inquiry, as a condition of their pretrial release.1 Plaintiffs seek a preliminary injunction requiring that Defendant Sheriff Terry

1 As defined in Plaintiffs’ Motion for Certification of Class, filed simultaneously with their Complaint and the instant motion, the purported class is defined as:
All people who are arrested and charged with non-domestic violence offenses who are or will be detained in the Alamance County Detention Center post-arrest because they are unable to pay the monetary release conditions.

Case 1:19-cv-01126-NCT-LPA Document 6 Filed 11/12/19 Page 1 of 6

Johnson not enforce a secured financial condition of pretrial release upon an individual unless the bail order includes a finding pretrial detention is necessary because less restrictive conditions of release are inadequate and includes notice that the individual has received an individualized hearing that meets, at a minimum, the procedures laid out in paragraph 5 below. As more fully presented in their brief in support of their Motions for Temporary Restraining Order and Preliminary Injunction, and its accompanying evidentiary attachments,2 Plaintiffs state the following in support of their Motion:
1. Plaintiffs and the proposed class are likely to succeed on the merits of their claims that Defendants’ bail and pretrial detention polices violate their right to be free of wealth-based detention under the equal protection and due process clauses of the Fourteenth Amendment (Count I); their substantive due process right to pretrial liberty (Count II); their procedural due process rights (Count III); and their Sixth Amendment Right to Counsel (Count IV).
2. Without immediate injunctive relief from this Court, Plaintiffs and the proposed class will continue to suffer immediate, irreparable harm in the form of deprivation of their constitutional right to pretrial liberty and right to be free from wealthbased detention. They will also suffer resulting additional harms, including loss of jobs,
Individuals who are charged with domestic violence offense receive a different process for bail under state law. See N.C. Gen. Stat. §15A-534.1. 2 For purposes of efficiency and the Court’s convenience, Plaintiffs file, simultaneously with their Motion for Temporary Restraining Order and the instant motion, a single, combined memorandum in support of both motions.
2
Case 1:19-cv-01126-NCT-LPA Document 6 Filed 11/12/19 Page 2 of 6

loss of homes, disruption of medical care, and disruption to family life, as well as hindering individuals’ ability to prepare for their own defense.
3. Entry of an injunction poses no harm to Defendants, as it would release individuals who are unconstitutionally held in Defendant Sheriff’s custody and prevent the future unconstitutional pretrial detention of similarly situated individuals.
4. An injunction serves the public interest because it prevents the continued violation of constitutional rights, including such fundamental rights as the right to pretrial liberty and the right to be free of wealth-based detention.
Accordingly, Plaintiffs respectfully ask the Court to issue class-wide preliminary injunctive relief against the system of wealth-based detention that keeps Plaintiffs and proposed class members in jail because they cannot afford to pay a monetary release condition without an inquiry into or findings concerning ability to pay, without consideration of non-financial alternatives, and without any findings that a particular release condition—or pretrial detention—is necessary to meet a compelling government interest. Specifically, Plaintiffs request that the Court enjoin Defendant Sheriff from enforcing a secured financial condition of pretrial release upon an individual, unless Defendant Sheriff is notified in writing that the individual has received an individualized hearing that meets the following minimum requirements:
(a) Notice was provided to the individual at the individualized bail hearing of: i. The federal constitutional rights at issue: specifically the right against wealth-based detention and the right to pretrial liberty;
3
Case 1:19-cv-01126-NCT-LPA Document 6 Filed 11/12/19 Page 3 of 6

ii. The applicable legal standard, which is that these rights cannot be infringed unless the government proves that there are no alternative conditions of release that could adequately serve the government’s interests in court appearance or public safety; and
iii. Notice of the facts being relied on to make the decision.
(b) Notice was provided to the individual that financial information will be collected at the individualized bail hearing, including an explanation of the significance of the financial information to be collected.
(c) The individual was provided an opportunity to be heard before a neutral factfinder and to present and confront evidence and argument on appropriate conditions of release or detention.
(d) If an order resulting in an arrestee’s de facto or transparent detention is entered, there must be a finding that pretrial detention is necessary because there are no alternative conditions of release adequate to serve a compelling government interest in court appearance or public safety. This provision requires that, if a secured financial condition of release is required, there be either an individualized finding that the person can afford to pay it (such that it will not result in detention) or that the pretrial detention of the person is necessary.
(e) An order of de facto or transparent detention must be accompanied by on-therecord findings setting forth the reasons for the decision and made available to the individual.
(f) The individual was provided counsel free of charge at the hearing.
Under Local Rule 65.1(b), Plaintiffs request oral argument on this motion and leave
to present the testimony of witnesses, including experts, as may be appropriate depending
on the arguments Defendants may raise in their opposition to Plaintiffs’ Motion for
Preliminary Injunction.
4
Case 1:19-cv-01126-NCT-LPA Document 6 Filed 11/12/19 Page 4 of 6

Dated: November 12, 2019

Respectfully submitted,

/s/ Katherine Hubbard Katherine Hubbard (D.C. Bar 1500503)* Eric Halperin (D.C. Bar 491199)* CIVIL RIGHTS CORPS 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Tel: 202-894-6124 Fax: 202-609-8030 Email: katherine@civilrightscorps.org
eric@civilrightscorps.org

/s/ Leah Kang Irena Como (N.C. Bar 51812) Leah J. Kang (N.C. Bar 51735) Ann C. Webb (N.C. Bar 44894) AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION P.O. Box 28004 Raleigh, NC 27611 Tel: 919-834-3466 Email: icomo@acluofnc.org
lkang@acluofnc.org awebb@acluofnc.org

/s/ Twyla Carter Twyla Carter (WA Bar 39405)* Brandon Buskey (AL Bar ASB2753-A50B)* AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LEGAL REFORM PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212-284-7364 Email: tcarter@aclu.org
bbuskey@aclu.org
*Appearing by special appearance in accordance with Local Rule 83.1(d).
Attorneys for Plaintiffs

5 Case 1:19-cv-01126-NCT-LPA Document 6 Filed 11/12/19 Page 5 of 6

CERTIFICATE OF SERVICE I certify that on November 12, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system. I further certify that arrangements have been made to deliver a true and correct courtesy copy of the foregoing to the following via Certified U.S. Mail, Return Receipt Requested.
/s/ Irena Como Counsel for Plaintiffs

Bradley Allen, Sr., Chief District Court Judge Judge J.B. Allen Jr. Criminal Courthouse 212 W Elm St., Ste. 120 Graham, NC 27253

D. Thomas Lambeth, Senior Resident Superior Court Judge Judge J.B. Allen Jr. Criminal Courthouse 212 West Elm Street, Suite 245 Graham, NC 27253

Brenda Brown, Magistrate Kelly Councilman, Magistrate David Crabbe, Magistrate Rhonda Crisp, Magistrate Bertram Heathcote, Magistrate Wendy Hunter, Magistrate Amelia Knauff, Magistrate Bobbie Nance, Magistrate Helena Rodgers, Magistrate Kimesha Thorpe, Magistrate John Watterson, Magistrate Susan Wortinger, Magistrate Judge J.B. Allen Jr. Criminal Courthouse 212 W. Elm St. Graham, NC 27253

Terry S. Johnson, Sheriff Alamance County Detention Center 109 S Maple St. Graham, NC 27253

6 Case 1:19-cv-01126-NCT-LPA Document 6 Filed 11/12/19 Page 6 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

)

LEA ALLISON, et al., on behalf of

)

themselves and those similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

BRADLEY R. ALLEN, SR., in his official )

capacity as Chief District Court Judge, et al., )

)

Defendants.

)

Case No. 19-cv-1126 (Class Action)

[PROPOSED] ORDER GRANTING CLASS-WIDE PRELIMINARY INJUNCTION The Court having considered the Plaintiffs’ Motion for Preliminary Injunction, Plaintiffs’ Brief in Support of Motion for Preliminary Injunction, and the attached Declarations and Exhibits, hereby ORDERS that Plaintiffs’ Motion for Class-Wide Preliminary Injunction is GRANTED. The Court FINDS that Plaintiffs have shown that immediate and irreparable injury to the class will result unless a preliminary injunction is granted. Plaintiffs and class members will face irreparable injury without a preliminary injunction because they will remain jailed without the prerequisites of equal protection and due process. The Court further FINDS that Plaintiffs are likely to prevail on Claims I, II, III, and IV, that the balance of hardships favor granting Plaintiffs’ request for preliminary injunction, and that the interest of the public favors granting preliminary injunctive relief.

Case 1:19-cv-01126-NCT-LPA Document 6-1 Filed 11/12/19 Page 1 of 4

The following relief is ordered against Defendant Alamance County Sheriff. Fed.
R. Civ. P. 65(d)(2). The injunction covers and is binding on those “who are in active
concert or participation” with the parties or the parties’ officers, agents, servants,
employees, or attorneys. Id.
To remedy the constitutional violations found by the Court, the Court ORDERS as
follows:
(1) The Sheriff must not enforce a secured financial condition of pretrial release upon an
individual, unless the individual first receives an individualized hearing that meets the
following minimum requirements:
(a) Notice is provided to individuals at the individualized bail hearing of:
i. The federal constitutional rights at issue: specifically the right against wealth-based detention and the right to pretrial liberty;
ii. The applicable legal standard, which is that these rights cannot be infringed unless the government proves that there are no alternative conditions of release that could adequately serve the government’s interests in court appearance or public safety; and
iii. Notice of the facts being relied on to make the decision.
(b) Notice is provided to the individuals that financial information will be collected at the individualized bail hearing, and the notice includes an explanation of the significance of the financial information to be collected.
(c) Individuals are provided an opportunity to be heard before a neutral factfinder and to present and confront evidence and argument on appropriate conditions of release or detention.
(d) If an order resulting in an arrestee’s de facto or transparent detention is entered, there must be a finding that pretrial detention is necessary because there are no alternative conditions of release adequate to serve a compelling government interest in court appearance or public safety. This provision requires that, if a secured financial condition of release is required, there be
2
Case 1:19-cv-01126-NCT-LPA Document 6-1 Filed 11/12/19 Page 2 of 4

either an individualized finding that the person can afford to pay it (such that it will not result in detention) or that the pretrial detention of the person is necessary. (e) An order of de facto or transparent detention must be accompanied by onthe-record findings setting forth the reasons for the decision and made available to the individual. (f) Individuals must be provided counsel free of charge at the hearing. (2) Defendant Sheriff must not enforce any de facto or transparent order of pretrial detention that is not accompanied by a record demonstrating that the substantive findings and procedural safeguards listed in above in paragraph 1 of this Order have been provided. Specifically, this provision requires that, if a secured financial condition of release is required, the Sheriff may not enforce that condition unless there is a finding on the record that the person can afford the amount of money required (such that it will not result in detention) or that the pretrial detention of the person is necessary. The Court further ORDERS that the Sheriff abide by the following REPORTING mechanism. The Sheriff shall make weekly public reports to this Court that include: (a) A list of all individuals who were required to pay a secured financial condition of pretrial release and a copy of the on-the-record findings showing that the individual either could afford the amount required or that detention was necessary; and (b) A list of all arrestees who were detained prior to an individualized hearing and the reason for detention. For purposes of ensuring transparency and effective monitoring, Defendants must produce additional relevant data to Class counsel upon reasonable request.
3
Case 1:19-cv-01126-NCT-LPA Document 6-1 Filed 11/12/19 Page 3 of 4

The Parties may move the Court for modification or clarification of these reporting requirements by written motion served on all parties and counsel and on a showing of good cause.

Dated:

_________________________________ UNITED STATES DISTRICT JUDGE

4 Case 1:19-cv-01126-NCT-LPA Document 6-1 Filed 11/12/19 Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LEA ALLISON, et al., on behalf of themselves and those similarly situated,
Plaintiffs, v.
BRADLEY R. ALLEN, SR., in his official capacity as Chief District Court Judge, et al.,
Defendants.

Case No. 19-cv-1126 (Class Action)

CONSENT ORDER FOR PRELIMINARY INJUNCTION

1. On November 12, 2019, Plaintiffs filed suit against Defendants Chief District Judge Allen, Senior Resident Superior Court Judge Lambeth, Magistrates, and Sheriff of Alamance County, alleging that Defendants’ pretrial release practices violated their Fourteenth Amendment rights to equal protection and due process, and their Sixth Amendment right to counsel. ECF No. 1. Plaintiffs simultaneously filed a Motion of Class Certification, ECF No. 2, and Motion for Preliminary Injunction against Defendant Sheriff, ECF No. 16, seeking an injunction requiring that Defendant Sheriff not enforce a secured financial condition of pretrial release upon a person that results in that person’s detention unless the bail order includes a finding, made pursuant to the required constitutional protections—including appointed counsel if the individual cannot afford private counsel—that pretrial

Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 1 of 8

detention is necessary because less restrictive conditions of release are inadequate. Id.
2. Although the parties continue to make good faith efforts to reach a final resolution, to avoid unnecessary and costly litigation over whether a preliminary injunction should be entered, they have agreed to the entry of this Consent Order of Preliminary Injunction (“Order”).
3. IT IS THEREFORE ORDERED that, pursuant to Rule 65 of the Federal Rules of Civil Procedure, a Preliminary Injunction shall be immediately entered as described herein.
FINDINGS THE PARTIES AGREE AND THE COURT FINDS THAT:
4. This Court has jurisdiction over the subject matter of this action and the Defendant hereto pursuant to 28 U.S.C. §§ 1331 and 1343.
5. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. 6. Defendants waive the entry of findings of facts and conclusions of law for the purposes of this Order pursuant to Federal Rule of Civil Procedure 52.
RELIEF GRANTED IT IS ORDERED THAT:
7. The Judicial Defendants shall put in place administrative orders and provide the necessary training to appropriate staff to ensure that the following procedures are applied and findings made before individuals entitled to those
2
Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 2 of 8

procedures and findings are ordered detained in the Alamance County Detention Center.
a. Individuals who are in custody shall have their hearing before a judge in the appropriate trial division within forty-eight (48) hours of arrest or at the next available session of court in the event that court is not in session within forty-eight (48) hours of the defendant’s arrest.
b. Prior to the individualized bail hearing, notice shall be provided to individuals of the federal constitutional rights at issue and the type of facts being relied on to make the decision.
c. Notice shall be provided to the individuals that financial information will be collected at the individualized bail hearing, and the notice must include an explanation of the significance of the financial information to be collected.
d. Individuals shall be provided a meaningful opportunity to be heard before a neutral fact-finder and to present and confront evidence and argument on appropriate conditions of release or detention.
e. Prior to setting or modifying a condition of release that includes secured monetary bail, the judicial officer must conduct an inquiry into the individual’s ability to pay the full amount of the monetary bail.
f. There is a rebuttable presumption that a person is unable to pay any secured bond amount that exceeds 2 percent of that person’s monthly income.
3
Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 3 of 8

g. There is a rebuttable presumption that any person is unable to afford any amount of secured bond if he or she: i. Is eligible for appointment of counsel; ii. Is, or within the past six months has been, homeless; iii. Has income at or below 200% of the federal poverty guidelines; iv. Is a full-time student; v. Has been incarcerated pursuant to an active sentence within the past 6 months, vi. Is residing in a mental health or other treatment program, or has resided in such a program in the past 6 months; or vii. Is or has dependents who are eligible to receive SNAP benefits (food stamps), Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, Social Security Disability Income, public housing, or any other federal or state public assistance
h. If a secured financial condition of release is required, there shall be either an individualized finding that the person can afford to pay the amount (such that it will not result in detention), or that the pretrial detention of the person is necessary. A judicial officer may issue a de facto or transparent order of pretrial detention only if clear and convincing evidence shows that there are no alternative conditions of release adequate to reasonably assure the appearance of the defendant
4
Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 4 of 8

as required; prevent a danger of injury to any person; or prevent the likely destruction of evidence, subornation of perjury, or intimidation of potential witnesses. i. A de facto or transparent order of pretrial detention must be accompanied by written findings setting forth the reasons for the decision and be made available to the individual and counsel. j. For the limited purpose of representation at the first appearance, individuals must be provided counsel free of charge. 8. The Defendant Sheriff must not enforce a secured financial condition of pretrial release that results in an individual’s detention unless the individual first receives an individualized hearing that meets the requirements of Paragraph 7 above. In the event of a dispute about the provisions of this order, the parties shall follow the procedures set forth in Paragraph 14.
REPORTING 9. The parties agree that monitoring and evaluation is an important component of implementing system-wide change, and Defendants agree that they will provide relevant information to Plaintiffs or the Court as reasonably necessary to ensure compliance with this Order. Defendants agree to provide the information outlined below upon implementation of the written policies to effectuate this consent preliminary injunction. Such information includes:
a. The Sheriff’s Office shall provide:
5
Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 5 of 8

i. Complete electronic In-custody Reports that are automatically generated by the Sheriff’s Office jail population management system, provided on a daily basis; and

ii. Electronic reports, generated and provided no less frequently than each month, that include the following data for every person booked in the Alamance County Detention Center during the preceding month:

1. ID Number

2. Name

3. Booking Date and Time

4. Date of Birth

5. Race

6. Ethnicity

7. Sex

8. Charge Level

9. Charge

10.

Bond Type

11.

Bond Amount

12.

Release Date and Time

13.

Reason for Release

14.

Status (e.g. Pre-trial, sentenced, federal)

b. The Judicial Defendants shall provide:

i. Electronic copies of all “Written Findings for Secured Bond” Forms, provided on a weekly basis; and

ii. Electronic copies of all AOC-CR-200 and AOC-CR-201 Forms, provided on a weekly basis.

c. In addition, the Judicial Defendants shall:
i. Request that the Alamance County Clerk’s Office provide Plaintiffs, on a monthly basis, access to review a representative sample of paper case files to be identified in advance of each visit; and
ii. Request that the Administrative Office of the Courts (“AOC”) provide Plaintiffs at least every 6 months, electronically generated statistical raw data extracts of criminal court records from the Automated Criminal/Infractions System (ACIS) System for Alamance County for no greater a time period than the 24 months preceding each extract.

6

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10. Defendants will begin to provide the above information upon implementation of the written policies to effectuate this consent preliminary injunction and will continue to do so until (i) final resolution of the above-captioned action, (ii) agreement by the parties that the above information is no longer needed, or (iii) by order of the Court, whichever comes first.
TRAINING 11. The parties agree that adequate training is an important component of implementing system-wide change, and Defendants agree that they will provide information to Plaintiffs or the Court regarding the training of its staff and employees, including information about the training curriculum used.
IMPLEMENTATION TIMELINE 12. Defendants agree that implementation of the written policies to effectuate this consent preliminary injunction and training of the relevant stakeholders, including district judges, magistrates, and other court and jail staff, shall occur by July 1, 2020, unless the parties agree, for good cause, that the deadline must be extended.
FORCE AND EFFECT 13. The injunction in this Order covers and is binding on those “who are in active concert or participation” with the parties or the parties’ officers, agents, servants, employees, or attorneys. Fed. R. Civ. P. 65(d)(2).
7
Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 7 of 8

14. The mechanism for enforcement of this preliminary injunction shall be as follows: In the event Plaintiffs’ Counsel determine that there has been a violation of any terms of this Order, the Parties must confer in a good-faith attempt to resolve the issue. If the Parties are unable to resolve an issue involving Defendants’ categorical or material breach of responsibilities under the terms of the consent preliminary injunction, they may submit the dispute to the Court for resolution. Absent an order from either the state or federal court, the Sheriff shall not be required to release any individual under the terms of this Order.
15. This Order shall become effective upon entry by the Court and shall remain in effect until further order of the Court. The Court shall retain jurisdiction over this action to ensure compliance with this Order and for all other purposes related to this action.
This the 8th day of May, 2020. /s/ N. Carlton Tilley, Jr.
Senior United States District Judge
8 Case 1:19-cv-01126-NCT-LPA Document 56 Filed 05/08/20 Page 8 of 8