Case: 1:15-cv-348 As of: 09/18/2016 10:01 AM CDT 1 of 8
CLOSED,JCG,JURY
U.S. District Court Southern District of Mississippi (Southern) CIVIL DOCKET FOR CASE #: 1:15−cv−00348−HSO−JCG

Kennedy et al v. The City of Biloxi, Mississippi et al Assigned to: District Judge Halil S. Ozerden Referred to: Magistrate Judge John C. Gargiulo Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/21/2015 Date Terminated: 03/07/2016 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Qumotria Kennedy

represented by Charles B. Irvin ACLU OF MISSISSIPPI − Jackson P. O. Box 2242 233 East Capitol Street (39201) Jackson, MS 39225−2242 601/354−3408 Fax: 601/355−6465 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dennis David Parker − PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−New York 125 Broad Street, 17th Floor New York, NY 10004 212/519−7832 Fax: 212/549−2654 Email: dparker@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nusrat Jahan Choudhury − PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−New York 125 Broad Street, 17th Floor New York, NY 10004 212/519−7876 Fax: 212/549−2654 Email: nchoudhury@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anthony R. Simon ANTHONY R. SIMON, PLLC P. O. Box 749 Jackson, MS 39205 601−362−8400 Fax: 601−362−8444 Email: anthonysimonpllc@bellsouth.net ATTORNEY TO BE NOTICED

Pieter Teeuwissen PIETER TEEUWISSEN, PLLC P. O. Box 16787 Jackson, MS 39236 601/420−1188 Fax: 601/366−2292 Email: adwoodard@bellsouth.net ATTORNEY TO BE NOTICED

Case: 1:15-cv-348 As of: 09/18/2016 10:01 AM CDT 2 of 8

Plaintiff Richard Tillery on Behalf of Themselves and All Others Similarly Situated
Plaintiff Joseph Anderson

represented by Charles B. Irvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis David Parker − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nusrat Jahan Choudhury − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony R. Simon (See above for address) ATTORNEY TO BE NOTICED
Pieter Teeuwissen (See above for address) ATTORNEY TO BE NOTICED
represented by Charles B. Irvin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis David Parker − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Nusrat Jahan Choudhury − PHV (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony R. Simon (See above for address) ATTORNEY TO BE NOTICED
Pieter Teeuwissen (See above for address) ATTORNEY TO BE NOTICED

V. Defendant The City of Biloxi, Mississippi

represented by Gerald H. Blessey GERALD BLESSEY LAW P. O. Box 4648 Biloxi, MS 39535 228/806−4755 Fax: 228/388−7434 Email: blesseylaw@me.com

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tere R. Steel PAGE, MANNINO, PERESICH &MCDERMOTT P.O. Drawer 289 Biloxi, MS 39533−0289 228/374−2100 Email: tere.steel@pmp.org ATTORNEY TO BE NOTICED

Defendant
John Miller in his official capacity as Chief of Police of the City of Biloxi

represented by Gerald H. Blessey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tere R. Steel (See above for address) ATTORNEY TO BE NOTICED

Defendant
Judge James Steele in his individual capacity

represented by Corban Gunn CORBAN GUNN, PLLC 175 Lameuse Street, Suite C P. O. Box 1466 (39533) Biloxi, MS 39530 228/284−6805 Fax: 228/284−6806 Email: corban@corbangunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Judicial Correction Services, Incorporated

represented by Larry S. Logsdon − PHV WALLACE, JORDAN, RATLIFF &BRANDT, LLC P. O. Box 530910 800 Shades Creek Parkway, Suite 400 (35209) Birmingham, AL 35253 205/870−0555 Fax: 205/871−7534 Email: llogsdon@wallacejordan.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Michael L. Jackson − PHV WALLACE, JORDAN, RATLIFF &BRANDT, LLC P. O. Box 530910 800 Shades Creek Parkway, Suite 400 (35209) Birmingham, AL 35253 205/870−0555 Fax: 205/871−7534 Email: mjackson@wallacejordan.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Thomas A. McKnight , Jr. WALLACE, JORDAN, RATLIFF &BRANDT, LLC P. O. Box 530910 Birmingham, AL 35253 205/874−0302 Fax: 205/871−7534 Email: tmcknight@wallacejordan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/21/2015 10/21/2015 10/21/2015
10/21/2015 10/21/2015 10/22/2015
10/22/2015 10/22/2015 10/22/2015 10/22/2015 10/22/2015 10/23/2015

# Docket Text
1 COMPLAINT against Judicial Correction Services, Incorporated, John Miller, James Steele, The City of Biloxi, Mississippi (Filing fee $400.00, receipt number 14643007403) filed by Qumotria Kennedy, Richard Tillery, Joseph Anderson. (Attachments: # 1 Civil Cover Sheet)(PKS) (Entered: 10/21/2015)
2 Summons Issued as to Judicial Correction Services, Incorporated, John Miller, James Steele, The City of Biloxi, Mississippi. (PKS) (Entered: 10/21/2015)
3 MOTION to Certify Class by Qumotria Kennedy, Richard Tillery Responses due by 11/5/2015 (Attachments: # 1 Affidavit Declaration of Nusrat Choudhury, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Affidavit Declaration of Laura Huizar, # 9 Affidavit Declaration of Nina Papachristou)(Irvin, Charles) (Entered: 10/21/2015)
4 MEMORANDUM IN SUPPORT re 3 MOTION to Certify Class filed by Qumotria Kennedy, Richard Tillery (Irvin, Charles) (Entered: 10/21/2015)
5 Corporate Disclosure Statement by Joseph Anderson, Qumotria Kennedy, Richard Tillery (Irvin, Charles) (Entered: 10/21/2015)
DOCKET ANNOTATION as to # 3 and # 4. Pursuant to Fed.R.Cr.P. Rule 49(d) and Fed.R.Civ.P. Rule 84, appendix form 2 states that date, signature, address, e−mail address and telephone number are used at the conclusion of pleadings and other papers that require a signature. Documents are undated, but the date will be construed as the date of electronic filing. Attorney is advised to follow this rule in future filings. DOCKET ANNOTATION as to # 3. L.U.Civ.R. 7(b)(2) requires that all supporting exhibits to a document be denominated by an exhibit letter or number and a meaningful description. Attorney is advised to follow this rule in future filings. (JCH) (Entered: 10/22/2015)
6 SUMMONS Returned Executed by Qumotria Kennedy, Richard Tillery, Joseph Anderson The City of Biloxi, Mississippi served on 10/21/2015, answer due 11/12/2015. (Irvin, Charles) (Entered: 10/22/2015)
7 SUMMONS Returned Executed by Qumotria Kennedy, Richard Tillery, Joseph Anderson John Miller served on 10/21/2015, answer due 11/12/2015. (Irvin, Charles) (Entered: 10/22/2015)
8 SUMMONS Returned Executed by Qumotria Kennedy, Richard Tillery, Joseph Anderson James Steele served on 10/21/2015, answer due 11/12/2015. (Irvin, Charles) (Entered: 10/22/2015)
9 SUMMONS Returned Executed by Qumotria Kennedy, Richard Tillery, Joseph Anderson Judicial Correction Services, Incorporated served on 10/22/2015, answer due 11/12/2015. (Irvin, Charles) (Entered: 10/22/2015)
10 MOTION for Nusrat Jahan Choudhury to Appear Pro Hac Vice by Joseph Anderson, Qumotria Kennedy, Richard Tillery (Attachments: # 1 Exhibit Certificate of Good Standing)(Irvin, Charles) (Entered: 10/22/2015)
TEXT ONLY ORDER granting 10 Motion to Appear Pro Hac Vice. That Nusrat Jahan Choudhury be admitted pro hac vice in this case on behalf of Plaintiffs in association with local counsel upon payment of the pro hac admission fees and upon registration for electronic filing. NO FURTHER WRITTEN ORDER SHALL

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10/23/2015 10/23/2015 10/26/2015 10/26/2015 10/28/2015
10/29/2015 10/30/2015 11/02/2015 11/02/2015 11/03/2015 11/03/2015
11/03/2015 11/03/2015
11/09/2015 11/09/2015 11/10/2015

ISSUE FROM THE COURT. Signed by Magistrate Judge John C. Gargiulo on 10/23/2015 (AB) (Entered: 10/23/2015)
11 NOTICE of Appearance by Pieter Teeuwissen on behalf of All Plaintiffs (Teeuwissen, Pieter) (Entered: 10/23/2015)
12 NOTICE of Appearance by Anthony R. Simon on behalf of All Plaintiffs (Simon, Anthony) (Entered: 10/23/2015)
Pro Hac Vice fee paid by Nusrat Choudhury and Dennis Parker $200.00, receipt number 14643007418 (PKS) (Entered: 10/26/2015)
13 MOTION for Dennis David Parker to Appear Pro Hac Vice by Joseph Anderson, Qumotria Kennedy, Richard Tillery (Attachments: # 1 Exhibit Certificate of Good Standing)(Irvin, Charles) (Entered: 10/26/2015)
TEXT ONLY ORDER granting 13 Motion to Appear Pro Hac Vice. That Dennis David Parker be admitted pro hac vice in this case on behalf of the Plaintiffs in association with local counsel upon payment of the pro hac admission fees and upon registration for electronic filing. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by Magistrate Judge John C. Gargiulo on 10/28/2015 (AB) (Entered: 10/28/2015)
14 NOTICE of Appearance by Corban Gunn on behalf of James Steele (Gunn, Corban) (Entered: 10/29/2015)
15 NOTICE of Appearance by Gerald Blessey on behalf of John Miller, The City of Biloxi, Mississippi (Attachments: # 1 Declaration of Technical Difficulties)(PKS) (Entered: 10/30/2015)
16 Letter from Secretary of State regarding the service on Judicial Correction Services, Incorporated. (JCH) (Entered: 11/02/2015)
17 Joint MOTION to Stay Proceedings as to Defendants City of Biloxi, John Miller, and James Steele by Joseph Anderson, Qumotria Kennedy, Richard Tillery (Choudhury − PHV, Nusrat) (Entered: 11/02/2015)
18 NOTICE of Appearance by Thomas A. McKnight, Jr on behalf of Judicial Correction Services, Incorporated (McKnight, Thomas) (Entered: 11/03/2015)
NOTICE of Hearing: TELEPHONIC Status Conference set for 11/30/2015 at 10:30 AM before Magistrate Judge John C. Gargiulo. Counsel for Plaintiff will place the call to Judge Gargiulo's Chambers with all necessary counsel on the line. (AB) (Entered: 11/03/2015)
19 ORDER granting 17 Motion to Stay Proceedings.Signed by Magistrate Judge John C. Gargiulo on 11/3/2015. (TSB) (Entered: 11/03/2015)
DOCKET ANNOTATION as to #18: This document is not signed in compliance with the court's Administrative Procedures for Electronic Case Filing Sec. 3.D.1. which pertains to both civil and criminal pleadings. Attorney is directed to include an appropriate electronic signature of (s/attorney's name) on future filed pleadings. Document does not have to be refiled. (PKS) (Entered: 11/03/2015)
20 MOTION for Larry S. Logsdon to Appear Pro Hac Vice by Judicial Correction Services, Incorporated (Attachments: # 1 Exhibit Cert. of Good Standing)(McKnight, Thomas) (Entered: 11/09/2015)
21 MOTION for Michael L. Jackson to Appear Pro Hac Vice by Judicial Correction Services, Incorporated (Attachments: # 1 Exhibit Cert. of Good Standing)(McKnight, Thomas) (Entered: 11/09/2015)
TEXT ONLY ORDER granting 20 Motion to Appear Pro Hac Vice; granting 21 Motion to Appear Pro Hac Vice. That Larry S. Logsdon and Michael L. Jackson be admitted pro hac vice in this case on behalf of Defendant Judicial Correction Services, Inc. in association with local counsel upon payment of the pro hac admission fee and upon registration for electronic filing. NO FURTHER WRITTEN ORDER SHALL ISSUE FROM THE COURT. Signed by Magistrate Judge John C. Gargiulo on 11/10/2015 (AB) (Entered: 11/10/2015)

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11/10/2015 11/10/2015 11/16/2015 11/30/2015
11/30/2015 01/05/2016 01/08/2016
01/08/2016 01/08/2016 01/08/2016

Pro Hac Vice fee paid for Larry S. Logsdon receipt number 0538−3067200 $ 100 (McKnight, Thomas) (Entered: 11/10/2015)
Pro Hac Vice fee paid for Michael L. Jackson receipt number 0538−3067209 $ 100 (McKnight, Thomas) (Entered: 11/10/2015)
22 Letter to Judicial Correction Services, Inc. from Secretary of State regarding process served on C. Delbert Hosemann, Jr., Secretary of State. (PKS) (Entered: 11/16/2015)
Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: Status Conference held on 11/30/2015. Counsel for Plaintiffs have met with counsel for the City of Biloxi, John Miller and counsel for Judge James Steele and a settlement proposal as to declarative and injunctive relief has been drafted and circulated within the past week. All parties concur that JCS's involvement in settlement discussions would promote efficient global resolution. As such, counsel for JCS and Plaintiffs assert they will proceed with good faith settlement discussions. PARTICIPANTS: Charles B. Irvin, Nusrat Jahan Choudhury − PHV, Anthony R. Simon and Pieter Teeuwissen (counsel for Plaintiffs); Gerald H. Blessey (counsel for Defendants The City of Biloxi, Mississippi and John Miller); Corban Gunn (counsel for Defendant Judge James Steele); and Michael L. Jackson − PHV and Thomas A. McKnight, Jr. (counsel for Defendant Judicial Correction Services, Incorporated). (AB) (Entered: 11/30/2015)
NOTICE of Hearing: TELEPHONIC Status Conference set for 1/8/2016 at 10:00 AM before Magistrate Judge John C. Gargiulo. Counsel for Plaintiffs will place the call to Judge Gargiulo's Chambers with all necessary counsel on the line. (AB) (Entered: 11/30/2015)
23 NOTICE of Appearance by Tere R. Steel on behalf of John Miller, The City of Biloxi, Mississippi (Steel, Tere) (Entered: 01/05/2016)
Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: TELEPHONIC Status Conference held on 1/8/2016. PARTICIPANTS: Charles B. Irvin, Nusrat Jahan Choudhury − PHV, Anthony R. Simon and Pieter Teeuwissen (counsel for Plaintiffs); Gerald H. Blessey and Tere R. Steel (counsel for Defendants The City of Biloxi, Mississippi and John Miller); Corban Gunn (counsel for Defendant Judge James Steele); and Michael L. Jackson − PHV and Thomas A. McKnight, Jr. (counsel for Defendant Judicial Correction Services, Incorporated). Parties indicate substantial progress and have scheduled an in−person conference to take place by the end of the month. Parties further requested an early Settlement Conference for March 4, 2016. (AB) (Entered: 01/08/2016)
JOINT ORE TENUS MOTION to extend Stay of Proceedings by Joseph Anderson, Judicial Correction Services, Incorporated, Qumotria Kennedy, John Miller, James Steele, The City of Biloxi, Mississippi, Richard Tillery. (AB) (Entered: 01/08/2016)
TEXT ONLY ORDER granting JOINT ORE TENUS MOTION to extend Stay of Proceedings. The Stay is extended to February 5, 2016. NO FURTHER WRITTEN ORDER SHALL BE ISSUED BY THIS COURT. Signed by Magistrate Judge John C. Gargiulo on 1/8/2016 (AB) Modified on 1/8/2016 to correct typo (AB). (Entered: 01/08/2016)
NOTICE of Hearing: Settlement Conference set for 3/4/2016 at 9:30 AM before Magistrate Judge John C. Gargiulo. Counsel are instructed to submit to Judge Gargiulo, seven days prior to the conference, a memorandum (3 page maximum in PDF format) setting forth a brief explanation of the case, and a candid appraisal of their respective positions, including possible settlement figures. This document is NOT to be exchanged and will be viewed only by the Court. The settlement memoranda should be sent to Judge Gargiulo via e−mail (gargiulo_chambers@mssd.uscourts.gov). PARTIES AND/OR COMPANY REPRESENTATIVES ARE TO BE PRESENT AT THE CONFERENCE. (AB) (Entered: 01/08/2016)

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01/08/2016 01/14/2016 02/02/2016 02/19/2016
03/01/2016 03/02/2016
03/02/2016 03/02/2016 03/04/2016
03/04/2016 03/04/2016

NOTICE of Hearing: Telephone Conference set for 2/19/2016 at 10:00 AM before Magistrate Judge John C. Gargiulo. Counsel for Plaintiff will place the call to Judge Gargiulo's Chambers with all necessary counsel on the line. (AB) (Entered: 01/08/2016)
24 Corporate Disclosure Statement by Judicial Correction Services, Incorporated identifying Corporate Parent CHC Companies, Inc. for Judicial Correction Services, Incorporated. (Jackson − PHV, Michael) (Entered: 01/14/2016)
TEXT ONLY ORDER granting SECOND JOINT ORE TENUS MOTION to extend Stay of Proceedings. In light of the ongoing settlement negotiations, the Stay is extended to March 4, 2016. NO FURTHER WRITTEN ORDER SHALL BE ISSUED BY THIS COURT. Signed by Magistrate Judge John C. Gargiulo on 2/2/2016. (TSB) (Entered: 02/02/2016)
Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: Telephone Conference held on 2/19/2016. PARTICIPANTS: Charles B. Irvin, Nusrat Jahan Choudhury − PHV, Anthony R. Simon and Pieter Teeuwissen (counsel for Plaintiffs); Gerald H. Blessey and Tere R. Steel (counsel for Defendants The City of Biloxi, Mississippi and John Miller); Corban Gunn (counsel for Defendant Judge James Steele); and Michael L. Jackson − PHV and Thomas A. McKnight, Jr. (counsel for Defendant Judicial Correction Services, Incorporated). Parties indicate continued progress with regard to resolution of claims seeking injunctive and declaratory relief. As this may resolve all bases for class certification, and all claims as to Defendant Steele, the Court will allow the existing Stay to remain in effect in order to facilitate continued settlement negotiations. (AB) (Entered: 02/19/2016)
25 MOTION for Writ of Habeas Corpus ad testificandum by Joseph Anderson, Qumotria Kennedy, Richard Tillery (Choudhury − PHV, Nusrat) (Entered: 03/01/2016)
TEXT ONLY ORDER granting 25 Motion for Writ of Habeas Corpus ad testificandum. The clerk of court is directed to issue a writ of habeas corpus ad testificandum for plaintiff Richard Tillery's appearance at the Settlement Conference scheduled for 3/4/2015 at 9:30 AM at the United States Courthouse, Courtroom 683, 2012 15th Street, Gulfport, MS before the undersigned. NO FURTHER WRITTEN ORDER WILL ISSUE. Signed by Magistrate Judge John C. Gargiulo on 3/2/2016 (AB) (Entered: 03/02/2016)
26 ORDER granting 25 MOTION for Writ of Habeas Corpus ad testificandum filed by Richard Tillery, Qumotria Kennedy, Joseph Anderson. Signed by Magistrate Judge John C. Gargiulo on 3/2/2016 (AB) (Entered: 03/02/2016)
27 Writ of Habeas Corpus ad Testificandum Issued as to Richard Tillery for March 4, 2016. (PKS) (Entered: 03/02/2016)
Minute Entry for proceedings held before Magistrate Judge John C. Gargiulo: Settlement Conference held on 3/4/2016. PARTICIPANTS: Charles B. Irvin, Nusrat Jahan Choudhury − PHV, and Pieter Teeuwissen (counsel for Plaintiffs); Qumotria Kennedy, Joseph Anderson and Richard Tillery (Plaintiffs); Gerald H. Blessey and Tere R. Steel (counsel for Defendants The City of Biloxi, Mississippi and John Miller); Mayor Andrew "Fofo" Gilich (representative for Defendant The City of Biloxi, Mississippi); Corban Gunn (Counsel for Judge James Steele); Judge James Steele (Defendant); Thomas A. McKnight, Jr. (counsel for Defendant Judicial Correction Services, Inc.); John McCauley, John Henry and Mary Palma (representatives for Defendant Judicial Correction Services, Inc.). The case settled at the conference. Court Reporter/Transcriber Kati Vogt, Telephone Number : 228−563−1751. (AB) (Entered: 03/04/2016)
NOTICE of Settlement by Defendant Judicial Correction Services, Incorporated; Plaintiff Joseph Anderson; Plaintiff Qumotria Kennedy; and Plaintiff Richard Tillery. Ready for District Judge's standard closing order with the court retaining jurisdiction for enforcement purposes. (AB) (Entered: 03/04/2016)
NOTICE of Settlement by Plaintiff Joseph Anderson; Plaintiff Qumotria Kennedy; Plaintiff Richard Tillery; Defendant John Miller; Defendant James Steele; and Defendant The City of Biloxi, Mississippi. Ready for District Judge's standard

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03/07/2016 03/07/2016 09/13/2016

closing order with the court retaining jurisdiction for enforcement purposes. (AB) (Entered: 03/04/2016)
28 FINAL JUDGMENT OF DISMISSAL: that the above captioned civil action is dismissed with prejudice as to all parties, and that the Court hereby specifically retains jurisdiction to enforce the settlements. Signed by District Judge Halil S. Ozerden on 3/7/16 (PKS) (Entered: 03/07/2016)
29 ACKNOWLEDGMENT OF Receipt by Warden, Hinds County Penal Farm, re: Writ of Habeas Corpus ad Testificandum Issued as to Richard Tillery.(PKS) (Entered: 03/07/2016)
30 STATUS REPORT on Implementation of Stipulated Settlement Agreement by The City of Biloxi, Mississippi (Blessey, Gerald) (Entered: 09/13/2016)

 
 Case 1:15-cv-00348-HSO-JCG Document 1 Filed 10/21/15 Page 1 of 73

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

SOUTHERN DISTRICT OF MISSISSIPPI
FILE 0
OCT 21 2015
ARTHUR JOHNSTON DE PUTY
BY

QUMOTRIA KENNEDY; RICHARD TILLERY; on Behalf of Themselves and All Others Similarly Situated; JOSEPH ANDERSON,

CaseNo.: l'. l~t"~48Hso~~t&

Plaintiffs,
V.
THE CITY OF BILOXI, MISSISSIPPI; JOHN MILLER, in his official capacity as Chief of Police of the City ofBiloxi; JUDGE JAMES STEELE, in his individual capacity; JUDICIAL CORRECTION SERVICES, INCORPORATED,

CLASS ACTION COMPLAINT
(Violation of Fourth and Fourteenth Amendment Rights)
JURY TRIAL REQUESTED

Defendants.

INTRODUCTION 1. Defendant City of Biloxi ("the City" or "Biloxi") operates a modern-day debtors' prison. The City routinely arrests and jails impoverished people in a scheme to generate municipal revenue through the collection of unpaid fmes, fees, and comt costs imposed in traffic and other misdemeanor cases. As a result, each year, hundreds of poor residents of the City and smTounding areas, including individuals with disabilities and homeless people, are deprived of their liberty in the Han·ison County Adult Detention Center for days to weeks at a time for no reason other than their poverty and in violation of their most basic constitutional rights. 2. Plaintiffs Qumotria Kennedy, Joseph Anderson, and Richard Tillery are victims of this illegal revenue generation scheme. Each is indigent and was arrested and
1

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jailed by Biloxi police pursuant to a warrant charging them with failure to pay fines and court costs they could not afford pay. Plaintiff Kennedy was arrested during a traffic stop and jailed for five nights for unpaid traffic fines. Plaintiff Anderson, a man known by the City to have a disability, was arrested by a police officer, who came to his hotne, and jailed for eight nights for an unpaid speeding fine. Plaintiff Tillery, a man known by the City to be homeless, was arrested and jailed on three separate occasions in 2014 for periods ranging from two to twenty-two days for nonpayment of fines for misdemeanor offenses.
3. The Plaintiffs' arrest and jailing were anything but isolated incidents. The City has chosen to rely increasingly on the collection of fines and fees imposed by the Biloxi Municipal Court ("BMC") as a critical source of 1nunicipal General Fund revenue. It has set ambitious collection targets despite the fact that the percentage of the City's population living under the federal poverty level more than doubled from 13.3% in 2009 to 27.5% in 2013. Under pressure to meet these goals, the City has sustained two policies and practices to coerce fine and fee payments by the indigent.
4. The first policy and practice is the Arrest and Jailing Policy, which is implemented by the Biloxi Municipal Court, the Biloxi Police Department, and for-profit companies enlisted by the City to collect debts from the poor, including Judicial Corrections Services, Incorporated ("JCS"). The Biloxi Municipal Court places defendants, who cannot afford to pay fmes on or before sentencing, on probation with a for-profit company, so the company can collect the City's money and its own $40 monthly fee. From 2010 to 2014, when poor probationers could not pay in the time or
2

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amount required by the Biloxi Municipal Court, JCS employees routinely threatened them with arrest and jail, and petitioned the Court for arrest warrants. In response, the Biloxi Municipal Court issued warrants instructing police officers to arrest and immediately jail debtors for failure to pay. Although the City no longer uses JCS, the Biloxi Municipal Court continues to issue failure-to-pay warrants when notified by a forprofit probation cotnpany, private debt collector, or court clerk that a debtor is delinquent. Biloxi police officers, under the supervision and direction of Biloxi Police Chief John Miller ("Miller"), execute these warrants during traffic and pedestrian stops and at debtors' homes, by arresting, booking, and immediately jailing debtors in the Harrison County Adult Detention Center-unless the debtor can raise enough cash to pay off her debt in full.
5. The second policy and practice is the Prolonged Incarceration Policy, which is implemented by the Biloxi Municipal Court and Biloxi Police Department when they discover that a debtor is already incarcerated in the Harrison County Adult Detention Center. After learning that a debtor is in jail for a different offense or by order of a different court, the Biloxi Municipal Court issues a warrant instructing police officers to arrest and immediately jail the debtor for failure to pay fines and court costs owed to Biloxi. Biloxi police officers, under the supervision and direction of Chief Miller, execute these failure-to-pay warrants by completing arrest and booking reports that purport to shift the basis for the debtor's detention to the Biloxi failure-to-pay warrant-unless the debtor can raise enough cash to pay off her debt in full.
3

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6. The Arrest and Jailing Policy and the Prolonged Incarceration Policy are the City's standard operating procedure. As a result, indigent people are routinely incarcerated for nonpayment of debts owed to Biloxi without being given pre-jail abilityto-pay hearings, court-appointed attorneys to defend thetn against unjustified incarceration, or even information about the charges against thetn or their right to request counsel. Nor are they informed when they will be released from jail or brought before the Biloxi Municipal Coutt. When indigent debtors are finally brought to court for in-jail hearings, they lack representation by counsel and their unlawful incarceration is often further extended by judges, who fail to consider ability to pay, efforts to secure resources, and alternatives to incarceration.
7. Pursuant to policy, practice, and custom, the City has elected to use failureto-pay warrants to coerce payments rather than providing debtors notice of failure-to-pay charges (for example, through probation violation charges), summoning them to court for ability-to-pay hearings, notifying them of their right to request an attorney, and affording court-appointed counsel to represent those for whom there is prima facie evidence of indigence, including evidence of homelessness and receipt of needs-based public assistance. The City's own website advertises that "[fJines are due in full on the day of assessment," "that release on a payment plan is a privilege afforded by the Court," and that "a violation ofthe payment order will result in your immediate arrest" (emphasis supplied).
8. Biloxi's use of arrest and jailing to elicit fine and fee payments has instilled fear and panic amongst the poorest residents of the City and the surrounding region.
4

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Indigent people who owe 1noney to Biloxi, including people who are homeless or disabled, feel pressured to divert funds for basic necessities-food, medication, utilities, and transportation-to avoid jail and the devastating impact of incarceration on their families, loved ones, jobs, and housing.
9. The Plaintiffs' incarceration pursuant to the Arrest and Jailing Policy and the Prolonged Incarceration Policy violated rights that are clearly established by the U.S. Constitution. The Fourteenth Amendment prohibits jailing a debtor for nonpayment of fines, fees, court costs, or restitution without frrst holding a court hearing on ability to pay and alternatives to incarceration, and affording indigent debtors the assistance of courtappointed counsel against possible incarceration for failure to pay. The Fourth Amendment prohibits arrests based on warrants unsupported by probable cause that the person has committed an offense or violated probation. None of the Plaintiffs were provided any hearing or infonned of their right to an attorney before being arrested, jailed, or subjected to prolonged incarceration for failure to pay pursuant to warrants based solely on the nonpayment of debts owed to Biloxi, despite prima facie evidence of their indigence.
10. The Defendants have persisted in using arrest, jailing, and prolonged incarceration to generate municipal revenue despite their awareness of the widespread and pervasive deprivation of the rights of debtors, including the indigent.
11. As a result, Plaintiff Kennedy, who remains indigent and continues to owe debts to Biloxi, and Plaintiff Tillery, a hotneless and indigent man at high risk of future arrest and fmes for misdetneanor offenses related to his homelessness, face not only a
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reasonable likelihood, but a substantial threat, that they will again be arrested, jailed, or subjected to prolonged incarceration for nonpayment of fmes, fees, court costs, or restitution in violation of their Fourth and Fourteenth Amendment rights. By and through their attorneys, and on behalf of classes of similarly situated debtors and impoverished people, Plaintiffs Kennedy and Tillery bring this action under 42 U.S.C. § 1983 to vindicate their rights and to seek declaratory and injunctive relief.
12. The actions, policies, practices, and customs of the City, Police Chief Miller, and JCS directly and proximately caused the deprivation of Plaintiffs' liberty, violated their Fourth and Fourteenth Amendment rights, and caused them to suffer humiliation, anxiety, stress, emotional distress, sleeplessness, disturbed sleep, hunger, and other irreparable injury frotn being incarcerated in unsanitary and cold jail conditions and separated from their families and loved ones. Plaintiff Kennedy additionally suffered the loss of her part-time employment while incarcerated. The named Plaintiffs bring this action under 42 U.S.C. § 1983 to vindicate their rights and to seek damages for the violations they suffered.
PARTIES1 13. PlaintiffQwnotria KeiUledy is a 36-year-old, indigent woman who resides in D'lberville, Mississippi and is the mother and sole provider of two teenagers.
1 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on infonnation and belief as to all other matters.
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14. Plaintiff Joseph Anderson is a 52-year-old, indigent man who resides in Biloxi, Mississippi. Mr. Anderson developed a physical disability following heart attacks and a stroke, and currently lives on disability benefits from the Social Security Administration of less than $800 per month. Mr. Anderson receives Supplemental Security Income, a federal benefit for poor individuals who cannot work because of

disability. 15.

Plaintiff Richard Tillery is a 51-year-old, indigent, homeless man who

resides in Biloxi, Mississippi. 16. Defendant the City of Biloxi, Mississippi is a tnunicipal governmental
entity whose policies, practices, and customs were the moving force behind the constitutional violations described in this Complaint. Biloxi sets ambitious targets for municipal revenue generation through the collection of fines, fees and court costs imposed by the Biloxi Municipal Court, and has acquiesced to the longstanding, well settled, and widespread use of arrest, jailing, and prolonged incarceration of indigent debtors to generate municipal revenue through the collection of unpaid fmes, fees and court costs. Biloxi is sued for damages and declaratory and injunctive relief.
17. Defendant John Miller is the Chief of the Biloxi Police Department. He resides in this District and this Division. Defendant Miller is the chief law enforcement officer for the City and the chief executive officer of the Biloxi Municipal Court pursuant
to Mississippi law. See Miss. Code Ann.§§ 21-21-1,21-23-13. Defendant Miller is the
final policyJ.naker for the City of Biloxi with respect to the participation of Biloxi police officers in implementing the policies, practices, and customs challenged in this

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Cotnplaint. He is sued in his official capacity for damages and declaratory and injunctive relief.
18. Defendant Judge James Steele is a part-time judge of the Biloxi Municipal Court. Judge Steele is a Biloxi employee and was appointed by the Mayor of Biloxi and confirmed by the Biloxi City Council on October 7, 2014. His administrative and executive responsibilities include establishing policies and practices concerning Biloxi Municipal Court probation and the collection of fines, fees, court costs, and restitution from traffic and tnisdemeanor offenders. Judge Steele issues arrest warrants against people who are reported to have failed to pay debts owed to the City. He adjudicates civil contempt proceedings arising from such charges, and routinely fails to inform debtors of their right to request counsel, fails to appoint counsel to represent indigent debtors charged with failure to pay, and fails to ensure that any waivers of the right to counsel are knowing, voluntary, intelligent. He is sued in his individual capacity for prospective, declaratory relief.
19. Defendant Judicial Correction Services, Incorporated, is a Delaware corporation that was registered as a foreign corporation doing business in the State of Mississippi, this District, and this Division from 2010 to 2014. JCS contracted with numerous Mississippi municipalities to provide misdemeanor probation services, conducted business in Mississippi, and filed annual reports with the Mississippi Secretary of State from 2011 to 2014. During that time, JCS performed a public function that was traditionally the exclusive prerogative of the State-the supervision of people on probation for traffic and misdemeanor offenses. Mississippi law empowers Biloxi
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Municipal Court judges to authorize companies like JCS to perform that public function. See Miss. Code Ann.§ 21-23-7(5). In 2014, JCS appointed the Secretary of the State of Mississippi as its agent for service of process in any proceeding based upon any cause of action arising from the titne it was authorized to transact business in Mississippi. JCS conspired and willfully participated with the City, Biloxi Municipal Court judges, and Defendant Miller to deprive Plaintiffs of their constitutional rights. JCS employees acted within the scope of their authority and with the purpose of serving JCS at all times relevant to the allegations in the Complaint. JCS is a person acting under the color of state law and is liable under 42 U.S.C. § 1983.
20. Defendants undertook all of the acts set forth herein under color of state law
and all acts can be fairly attributed to Biloxi. Each Defendant is a "policymaker'' with
respect to the policies, practices, and custo1ns challenged in this lawsuit.
JURISDICTION AND VENUE 21. This is a Complaint for damages and declaratory and injunctive relief based upon past civil rights violations connnitted by Defendants Biloxi, Miller, and JCS, and ongoing civil rights violations committed by Defendants Biloxi, Miller, and Steele, in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution. 22. This Court has subject matter jurisdiction over Plaintiffs' claims, which are brought under 42 U.S.C. § 1983, pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
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23. An actual controversy exists within this Court's jurisdiction. This Court is therefore authorized to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
24. Venue is proper in this Court pursuant to 28 U.S.C. § 139l(b), (c) and (d) because this judicial district is where a substantial part of the events or omissions giving rise to the clailn occurred and where Defendants Biloxi, Miller, and Steele reside.
FACTUAL ALLEGATIONS A. The City's Reliance on Court Fines and Fees for Municipal Revenue 25. Since 2009, the City of Biloxi has increasingly relied on the collection of court fines and fees to generate needed municipal revenue. 26. The City has set ambitious annual targets for General Fund revenue from the collection of Fines and Forfeits, which consist almost entirely offmes and fees collected by the Biloxi Municipal Court in cases involving traffic and misdemeanor criminal violations within Biloxi city limits. 27. The City has increasingly relied on Fine and Forfeits for municipal General Fund revenue despite rising poverty in the City and the region. The City increased the portion of General Fund revenue derived frotn Fines and Forfeits by 26% frotn fiscal year 2008-2009 to fiscal year 2015-2016, even though the percentage of Biloxi's population living below the federal poverty level more than doubled from 13.3% in 2009 to 27.5% in 2013.
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28. According to the 2015-2016 Biloxi budget, the City seeks to generate $1.45 million in Fines in Forfeits revenue to help pay for the Mayor's Office, public works, and other generaltnunicipal expenses.
29. Many of Biloxi's poor struggle with disabilities that prevent them from working. According to 2011-2013 American Community Survey 3-Year Estimate, nearly 14% of people of working age living in Biloxi have disabilities-significantly higher than the national rate of 10.5%. Only 33% of these disabled Biloxi residents are employed, and nearly 34% of them live below the federal poverty line.
30. The City's Legal Department oversees the Biloxi Municipal Court. The Legal Departtnent, in tum, reports to the Mayor and the City Council.
31. Judges of the Biloxi Municipal Court are City employees who are appointed by the Mayor and confirmed by the City Council.
B. The City's Policy and Practice of Arresting and Jailing the Indigent to Coerce Payments Toward Fines and Fees
32. Since at least 2009, the City has sought to maximize municipal revenue generation by authorizing for-profit companies to collect fines and fees through the administration of probation.
33. Mississippi law authorizes municipal court judges ''to establish and operate a probation program" as an exercise of their administrative authority. Miss. Code Ann. § 21-23-7(5). Upon information and belief, Biloxi Municipal Court Judge Eugene Henry established such a program in or around 2010 and elected to refer probation cases to Judicial CotTection Services, Incorporated.
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34. In 2014, JCS stopped doing business in Biloxi. Upon information and belief, Judge Henry authorized Court Programs, Incorporated ("CPI") to administer misdemeanor probation services for the City following JCS's withdrawal.
35. In 2014, the City also contracted with Pioneer Credit Recovery, Incorporated ("Pioneer") to collect past due court fines and fees in certain cases. Pursuant to the terms of their contract, the Mayor of Biloxi and his designees, including BMC judges, "choose the appropriate accounts for collection" by Pioneer. Debtors placed in collection with Pioneer must pay according to the company's terms.
36. By policy and practice, traffic and misdemeanor defendants who cannot afford to pay their fines on, or before, sentencing day in the Biloxi Municipal Court are placed on probation with a for-profit company so that the company can collect their money. Probationers are required to report to the company and to pay it a monthly fee of around $40 for collecting their debt. Monthly service fees paid by probationers, including poor people placed on probation for debt collection, form the sole source of company revenue because neither the City nor the Biloxi Municipal Court pays for-profit probation companies for their services.
37. From 2010 to 2014, JCS employees routinely threatened poor probationers with arrest and jail when they reported for probation "supervision" without money to pay toward their debt or with less than the amount of money required to meet the payment schedule set by the Biloxi Municipal Court. When an impoverished person missed a payment or paid less than ordered, JCS probation officers petitioned the Biloxi Municipal Court for the issuance of an arrest warrant charging the person with failure to pay.
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38. JCS employees acted within the scope of their employment, as probation officers tasked with municipal debt collection, when seeking to elicit payments toward debts owed to Biloxi and service fees for JCS by threatening to jail poor probationers and petitioning the Biloxi Municipal Court for arrest warrants. Because JCS's sole source of revenue consisted of monthly service fee payments, JCS probation officers faced a powerful profit incentive to coerce payments even from those too poor to pay.
39. JCS probation officers conspired and willfully participated with the City, Biloxi Municipal Court judges, and Biloxi police to deprive poor probationers of their constitutional rights when threatening to arrest and jail thetn and when petitioning the Court for arrest warrants.
40. Upon information and belief, since JCS's withdrawal from Biloxi in 2014, CPI probation officers and Pioneer employees have engaged in the same conduct as JCS probation officers to elicit payments toward debts owed to Biloxi, including petitioning the Biloxi Municipal Court for warrants to arrest debtors who have not paid in the time and manner required by the Court or Pioneer.
41. Seeking to tneet municipal revenue targets, the Biloxi Municipal Court, pursuant to notification from JCS, CPI, or Pioneer, or on its own accord, routinely issues arrest warrants against debtors who have not paid in the time or manner set by the Court. The warrants are often called "capias pro finem" or "capias" warrants. They charge debtors with contempt of court for failure to pay, and instruct law enforcement officers to arrest and immediately jail debtors in the Harrison County Adult Detention Center pending the next session of the Biloxi Municipal Court, unless the debtor can pay in cash
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the full amount of the debt owed. The warrants, however, lack legal authority and are not based on probable cause that a debtor has committed a crime or violated the terms of probation.
42. Pursuant to this policy and practice, from 2009 (if not earlier) to July 30, 2015, Judge Hemy routinely issued failure-to-pay warrants, including capias pro fmem and capias warrants, against indigent debtors for nonpayment of debts owed to the City, on his own or pursuant to notification from JCS, CPI, or Pioneer that a debtor had not paid in the thne or 1nanner required by court order. Since he replaced Judge Henry, Judge Tisdale has continued to carry out this policy and practice. Since October 2014, Defendant Judge Steele has also continued to carry out this policy and practice.
43. Biloxi Municipal Court records show that the Court issued 2,681 arrest warrants, including capias pro finetn and capias warrants, during the nine-month period between September 1, 2014 and June 11, 2015, against 1,520 different people charged with failure to pay fines, fees, court costs, or restitution.
44. Pursuant to policy and practice, BMC judges have elected to use failure-topay warrants (e.g., capias and capias pro finem warrants), which result in the arrest and jailing of debtors to coerce payments toward unpaid fines, fees, court costs, and restitution rather than providing debtors notice of failure-to-pay charges (for example, through probation violation charges), summoning them to court for ability-to-pay hearings, notifying them of their right to request an attorney, and affording court· appointed counsel to those for whom there is prima facie evidence of indigence, including evidence of homelessness and receipt of needs-based public assistance.
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45. As a matter of policy and practice, Biloxi police officers under the supervision and direction of Defendant Miller execute these failure-to-pay warrants by arresting, booking, and immediately jailing debtors in the Harrison County Adult Detention Center, unless the debtor can raise enough cash to pay off the full amount of the debt owed, including by making telephone calls from jail.
46. Prior to being jailed, debtors are not brought to court for a hearing on ability to pay, efforts to secure resources, or the adequacy of alternatives to incarceration. Nor are they informed of their right to request counsel or the right of the indigent to representation by court-appointed counsel against charges of failure to pay. Jailed debtors are not even infonned how long they will be jailed or when they will fmally be brought before the Biloxi Municipal Court for a hearing.
47. Debtors are only brought to court for a post-jail hearing at which there is no judicial inquiry into, or findings on, their ability to pay, efforts to secure resources or the adequacy of alternatives to incarceration. Debtors are either sentenced to time served or released to pay and placed on probation for debt collection.
48. Public records released by the Harrison County Adult Detention Center demonstrate that between September 1, 2014 and March 26, 2015, at least 415 people were jailed on capias, capias pro finem, or contempt warrants issued by the Biloxi Municipal Court charging them with failure to pay debts owed to Biloxi. None of these people were able to pay any money toward their debt in order to avoid jail.
49. The Biloxi City Code explicitly sets forth the City's Arrest and Jailing Policy as applied to people sentenced to fines for City ordinance violations. Section 16-
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2-5 of the Code provides: "If any person is sentenced to pay a fine for the violation of any of the ordinances of the city, such person shall stand committed to the city prison until such fine and all costs, including prison fees, are paid, and, in case the fme, costs and prison fees, if any, are not promptly paid, the person so convicted shall retnain in custody until he shall work out the amount thereof in the manner provided by the ordinances of the city."
50. The City's own website discloses its policy and practice of using arrest to coerce the indigent to pay fmes and fees they cannot afford. The City's website offers a page on the Biloxi Municipal Court that addresses the "Payment of Fines." It emphasizes: "Fines are due in full on the day of assesstnent." The City asserts that payment plans are available "only after an initial payment is made," and that "the initial paytnent is $50 or $100 and is due on the date of assessment." The City also threatens: "Retnember that release on a payment plan is a privilege afforded by the Court and a violation ofthe payment order will result in your immediate arrest" (emphasis supplied).
51. Nowhere does the City inform the public, including the indigent, that a person who cannot afford to pay fines, fees, court costs, or restitution for traffic or misdemeanor offenses, including City ordinance violations, have the following rights: (1) a Fourteenth Amendtnent right to a pre-jail ability-to-pay hearing, (2) a Fourth Amendment right to protection from an arrest based on a warrant unsupported by probable cause that they have committed a ctime or probation violation, and (3) a Fourteenth Amendment right to request the appointment of counsel when charged with failure to pay.
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52. The policy and practice described in the preceding paragraphs constitutes City policy because the arrest and hnmediate jailing of debtors for failure to pay fines, fees, court costs, or restitution, without any predeprivation ability-to-pay hearing is persistent, widespread, longstanding, and so common and well settled as to constitute a custom that fairly represents municipal policy.
53. The policy and practice described in the preceding paragraphs also constitutes City policy because the City has delegated to Defendant Miller final policymaking authority concerning arrests and detentions, pursuant to his role as the chief law enforcement officer for Biloxi, and fmal policymaking authority concerning the collection of fmes, fees, court costs, and restitution, pursuant to his role as executive officer of the Biloxi Municipal Court. Defendant Miller knew, or should have known, of the City's longstanding policy, practice, and custom of atTesting and inunediately jailing indigent debtors charged with failure to pay, and that police officers under his command carry out these illegal arrests and detentions unless debtors can pay in cash the full amount of the debts owed. He caused, authorized, condoned, ratified, approved, participated in, and/or knowingly acquiesced in these illegal policies, practices, and customs. Defendant Miller also failed to supervise and train his subordinate officers to execute failure-to-pay warrants with respect for the clearly established Fourth and Fourteenth Amendment rights of debtors and the indigent. His actions and inactions were deliberately indifferent to these clearly established constitutional rights.
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C. The City's Policy and Practice of Prolonging the Incarceration of Jailed Indigent Debtors to Coerce Payments Toward Fines and Fees
54. Since at least 2009, the City has also sustained a policy and practice of prolonging the jailing of indigent people to coerce payments toward fines and fees imposed in traffic and misdemeanor cases.
55. As a matter of policy and practice, after learning that a debtor who has not paid in the time or manner required by the Biloxi Municipal Court is incarcerated in the Harrison County Adult Detention Center for an unrelated offense (e.g., pursuant to a warrantless arrest or by order of a different court), the Biloxi Municipal Court issues an arrest warrant charging the debtor with failure to pay fines and court costs owed to the City. The warrants are often called "capias pro finem, or "capias" warrants. They instruct police officers to arrest and innnediately jail the debtor in the Harrison County Adult Detention Center pending the next session of the Biloxi Municipal Court, unless the debtor can pay in cash the full amount of the debt owed. The warrants, however, are not based on probable cause that a debtor has cotnmitted a crime or probation violation.
56. From 2009 (if not earlier) to July 30, 2015, Judge Henry routinely issued failure-to-pay warrants to prolong the incarceration of indigent debtors pursuant to this policy and practice. Since he replaced Judge Henry, Judge Tisdale has continued to carry out this policy and practice. Since October 2014, Defendant Judge Steele has also continued to carry out this policy and practice.
57. As a matter of policy and practice, Biloxi police officers, under the supervision and direction of Defendant Miller, execute these failure-to-pay warrants by
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completing arrest and booking forms that purport to shift the basis for a debtor's detention to the failure-to-pay warrant. Debtors are not informed that the basis for their detention has shifted, how long they will be jailed, or when they will finally be brought before the Biloxi Municipal Court for a hearing. They are detained for days before being presented to the Biloxi Municipal Court for an in-jail hearing on the charge of failure to pay.
58. By policy and practice, in-jail hearings on failure-to-pay charges are proceedings that last only several minutes. In these hearings, the Biloxi Municipal Court judge fails to inform debtors of their right to request counsel and fails to appoint counsel even where there is prima facie evidence that a debtor is indigent, such as evidence of homelessness or the receipt of need-based public assistance. Judges resolve the charges without considering, or making factual findings on, the debtor's ability to pay and efforts to secure resources, or the adequacy of alternatives to incarceration to further the City's interest in punishment and deterrence, such as community service or a reduction or waiver of fines, fees and court costs. Nor do judges consider a debtor's disability status or homelessness in evaluating their ability to pay or whether they made sufficient efforts to acquire resources to pay.
59. By policy and practice, these procedurally deficient hearings often result in a sentence of incarceration or the issuance of a "pay-or-stay'' sentence, which requires the debtor to pay her debt in full or to sit the fine out in jail at a rate of $25 per day. The U.S. Court of Appeals for the Fifth Circuit outlawed "pay-or-stay'' sentences more than forty years ago. See Frazier vJordan, 457 F.2d 726,728 (1971).
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60. The policy and practice described in the preceding paragraphs constitutes the policy of the City of Biloxi because the prolonged incarceration of indigent debtors based on their failure to pay fines, fees, court costs, or restitution is persistent, widespread, longstanding, and so common and well-settled as to constitute a custom that fairly represents municipal policy.
61. The policy and practice described in the preceding paragraphs also constitutes City policy because the City has delegated to Defendant Miller final policymaking authority concerning arrests and detentions, pursuant to his role as the chief law enforcement officer for Biloxi, and fmal policymaking authority concerning the collection of fines, fees, court costs, and restitution, pursuant to his role as executive officer of the Biloxi Municipal Court. Defendant Miller knew, or should have known, of the City's longstanding policy, practice, and custom of issuing failure-to-pay warrants against incarcerated indigent debtors to prolong their incarceration, absent cash payment of the full amount of the debts owed. Defendant Miller knew, or should have known, that police officers under his command notify the Biloxi Municipal Court of the incarceration of indigent debtors in the Han·ison County Adult Detention Center, and that they execute failure-to-pay warrants by completing arrest and booking reports that purport to shift the basis for the debtor's detention to the failure-to-pay warrant. He caused, authorized, condoned, ratified, approved, participated in, and/or knowingly acquiesced in these illegal policies, practices, and customs. Defendant Miller also failed to supervise and train his subordinate officers to execute failure-to-pay warrants with respect for the clearly established Fourth and Fourteenth Amendment rights of debtors and the indigent.
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His actions and inactions were deliberately indifferent to these clearly established constitutional rights.
D. Application of Defendants' Policies to the Named Plaintiffs a. Qumotria Kennedy
62. Qumotria Kennedy is a 36-year old mother and the sole caregiver and provider for her two teenage children.
63. Ms. Kennedy lives in poverty. She works whenever she can find employment, most often in cleaning motels and homes. Ms. Kennedy struggles to earn enough money to pay for food, clothing, shelter, transportation, and the other basic necessities of life.
64. While living in Los Angeles, Ms. Kennedy's driver's license was suspended.
65. In 2008, Ms. Kennedy moved with her children to Mississippi in order to help care for her ill father.
66. Despite her best efforts to find steady work, since 20 I I, Ms. Kennedy has earned less than $9,000 each year. Although Ms. KelUledy has been the sole provider for herself and her two children, her annual income has been far below $20,090-the 2015 federal poverty guideline for a three-person household.
67. In May 2013, Biloxi police ticketed Ms. Kelllledy for driving without insurance and with a suspended driver's license, and for failure to obey a stop sign. She was assessed fines, fees, and court costs.
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68. Because Ms. Kennedy could not afford to pay at sentencing, Judge Henry placed her on pay-only probation with JCS for twelve months. The judge ordered her to report to JCS and to pay $140 per month toward her fmes, fees, and court costs, which included JCS's $40 monthly fee and a file set up charge of$10.
69. Ms. Kennedy reported to her JCS probation officer and explained that she could not afford to make a payment because she had recently been laid off from her job cleaning rooms at a motel. The JCS probation officer told Ms. Kennedy that she would be jailed if she did not fmd a job and pay.
70. The JCS officer did not ask Ms. Kennedy about her income, assets, or efforts to fmd work or borrow money to pay.
71. Ms. Kennedy tried to earn the money to pay, but she was not able to do so. She remained indigent, supporting herself and her children on food assistance through the Supplemental Nutrition Assistance Program ("SNAP").
72. Upon information and belief, JCS notified the Biloxi Municipal Court that Ms. Kennedy had not paid in the manner required by the Court, and petitioned for a warrant for her arrest.
73. Without Ms. Kennedy's knowledge, on August 23,2013, Judge Henry issued capias pro finem warrants ordering the arrest and immediate jailing of Ms. Kennedy for nonpayment of fines and court costs related to her tickets for driving without insurance and on a suspended driver's license. The warrants instructed law enforcement to keep Ms. Kennedy jailed from the date of arrest until the next session of the Biloxi Municipal Court, at which time she would be given a post-jail "show cause hearing for
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contetnpt of court," unless she paid the "cash fme" specified for her traffic offenses and a $50 "court cost" for each warrant.
74. Ms. Kennedy was not notified of the charges that she had failed to pay, or that the only way to avoid jail was to pay her debts in full and in cash.
75. Almost two years later, on July 30,2015, Ms. Kennedy was a passenger in a car that Biloxi police pulled over for allegedly running a stop sign. The officer checked Ms. Kennedy's name for warrants and discovered the August 23,2013 capias pro finem warrants.
76. The officer handcuffed Ms. Kennedy, took her to the Biloxi Police Station, and booked her for jail pursuant to the August 23,2013 capias pro fmem warrants.
77. After she was booked for jail, police searched Ms. Kennedy, found a marijuana cigarette in her purse, and also charged her with misdemeanor marijuana possession.
78. The Biloxi police took Ms. Kennedy to the Harrison County Adult Detention Center, where she was informed that she could avoid jail only by paying $1000 in cash to cover the full amount of her unpaid traffic fmes, fees, and court costs. Ms. Kennedy did not have the money and had no friends or family who could lend or give it to her.
79. As a result of her inability to pay fines, fees, and court costs, Ms. Kennedy was jailed for five nights. Her jailing was not attributable to the marijuana possession charge.
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80. Ms. Kennedy was devastated to be jailed. She was extremely distressed that her teenage daughter did not know where she was or that she had been arrested and jailed. Ms. Kennedy cried for much of the time she was incarcerated out of concern for her daughter. She also feared that she would lose her part-time job at a cleaning company for missing work due to incarceration.
81. At no point while Ms. Kennedy was incarcerated did anyone inform her when she would be released or brought before a judge.
82. Ms. Kennedy's jail cell was very cold and stnelled of urine because of a clogged toilet. Ms. Kennedy did not have enough food to eat in jail, and was only provided one thin sheet despite the very low temperature.
83. Ms. Kennedy suffered humiliation, anxiety, stress, emotional distress, disturbed sleep and other irreparable injury from being handcuffed, arrested, jailed, separated from her daughter and loved ones, and incarcerated for five nights in unsanitary and cold jail conditions without enough food to eat.
84. After five nights in jail, Ms. Kennedy was finally brought before Judge Steele of the Biloxi Municipal Court for an in-jail hearing on August 4, 2015. The hearing lasted only several minutes. Judge Steele failed to conduct any inquiry into, or make any findings on, Ms. Kennedy's ability to pay the 2013 traffic fines, fees, and court costs for which she had been jailed, her efforts to secure resow·ces to pay, or the adequacy of available alternatives to incarceration. Instead, the judge informed Ms. Kennedy that she was charged with contempt of court and asked for her plea.
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Unrepresented, Ms. Kennedy pled guilty. The judge ordered her to pay $1000 in unpaid

fines, fees, and court costs.

85. Judge Steele also informed Ms. Kennedy that she was charged with

marijuana possession and accepted her guilty plea. The judge ordered her to pay $351 for

the marijuana possession offense, with a $150 credit for time served. 86. Judge Steele issued two orders placing Ms. Kennedy on twelve months of

probation with CPl. The judge required her to pay $140 per month toward the unpaid traffic penalties and $115 per month toward the marijuana possession fine. As a result,

Ms. KeiUledy currently is required to pay $255 each month to CPl.
87. At no point before or during the hearing did anyone, including Judge

Steele, inform Ms. Kennedy that she had a right to request counsel and a right to

representation by court-appointed counsel, as an indigent person charged with failure to pay fines, fees, and court costs. Nor did anyone advise her of the risk of proceeding without counsel. There was no public defender in the courtroom during Ms. Kennedy's

hearing. 88.

The probation officer at court instructed Ms. Kennedy to sign underneath

the following statement on each probation order issued by Judge Steele: "I have counsel or have waived my right to counsel for all proceedings to this date and have received a copy of this Order." Ms. Kennedy did not knowingly, voluntarily, or intelligently waive
her right to counsel. Nor did Judge Steele engage in any colloquy to detennine whether

Ms. Kennedy waived her right to counsel knowingly, voluntarily, or intelligently.

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89. After her release from jail, Ms. Kennedy learned that she had been fired from her part-time job cleaning local baseball fields because she had missed work while incarcerated.
90. Ms. Kennedy has reported to CPI for probation "supervision" meetings at least four times since being released frotn jail. She has explained to CPI probation officers that she cannot afford to make any payments toward her debts, much less the required monthly payment of $255, because she lost her job while incarcerated and is struggling to find paid work. Ms. Kennedy asked for assistance in requesting that her monetary penalties be converted to community service. CPI probation officers have told her that community service is not available until she has been on probation for at least three tnonths.
91. On or around September 16,2015, CPI employee LeArme Womble told Ms. Kennedy that she would have to pay $20 during each probation visit in order to pay CPI for its services, even if her fines, fees, and court costs were converted to community service. Ms. Womble emphasized that Ms. Kennedy already owed the company $80 in fees for the months of August and September. When Ms. Kennedy asked for assistance in requesting that her monetary penalties be converted to coll11nunity service, Ms. Womble threatened to perform a drug test on Ms. Kennedy.
92. Ms. Kennedy is diligently searching for work. Aside from odd jobs and one or two days of cleaning work each week, she has been unable to find paid work since her release from jail. Because she was let go frotn a part-time cleaning job due to her
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incarceration, Ms. Kennedy lost several hundred dollars in income that she could have earned and badly needed.
93. Ms. Kennedy continues to receive public housing and SNAP assistance. She is Medicaid eligible and is the sole provider for her children.
94. Because Ms. Kennedy currently owes at least $1251 in fines, fees, and court costs to Biloxi, but has been unable to pay for two consecutive months, she faces not only a reasonable likelihood, but a substantial threat, that she will again be arrested and immediately jailed pursuant to the City, Chief Miller, and Judge Steele's policies, practices, and customs.
b. Joseph Anderson 95. Joseph Anderson is a 52-year old 1nan who is indigent and disabled. 96. Mr. Anderson lives in poverty. He struggles to pay for food, clothing, shelter, and other basic necessities of life because he suffers from a physical disability and is unable to work. 97. In 2011, Mr. Anderson suffered three heart attacks and a stroke within a one-week period. The stroke paralyzed the left side of Mr. Anderson's body and face. When released from the hospital, Mr. Anderson faced extreme difficulty walking and required the assistance of a walker. 98. Several months later, Mr. Anderson suffered a fourth heart attack, which weakened him even further. He became physically disabled, could no longer work, and continued to face significant difficulty walking.
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99. For around a year following his fourth heart attack, Mr. Anderson could not walk without the assistance of a walker or a cane.
100. Since 2012, Mr. Anderson has struggled to survive on a limited and ftxed
income of Social Security Disability Insurance, Supplemental Security Income, and SNAP food assistance. In 2012, his annual income was less than $9500-far below the 2012 federal poverty guideline of $11,170 for a one-person household. Each year since then, his income has remained far below the federal poverty guideline.
101. In May 2012, Biloxi police ticketed Mr. Anderson for speeding. He was assessed $170 in fines and fees.
102. Because Mr. Anderson could not pay in full on or before sentencing day,
the Biloxi Municipal Court sentenced him to twelve months of probation with JCS and ordered him to pay $90 per month, which included a $40 monthly fee for JCS and a $10 file set up charge.
103. Mr. Anderson reported to JCS on at least three occasions and paid what he could each time, usually around $20. He explained to JCS probation officers that he could not afford to pay the full $90 each month due to his limited income from disability benefits and because he could not work due to his disability. During one meeting, the
JCS probation officer told Mr. Anderson, "You are going to have to come with a little more or I'm going to have to tum it back over to the judge."
104. Upon information and belief, JCS notified the Biloxi Municipal Court that
Mr. Anderson had not paid according to the time and amount required by the Court, and
petitioned for a warrant for his arrest.
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105. Without Mr. Anderson's knowledge, on September 21,2012, Judge Henry issued a capias pro fmem warrant ordering the arrest and jailing of Mr. Anderson for nonpayment of fmes and fees related to his speeding ticket. The warrant instructed law enforcement to keep Mr. Anderson jailed from the date of arrest until the next session of the Biloxi Municipal Court, at which time he would be given a post-jail "show cause hearing for contempt of court," unless he paid in cash a $170 fine and a $50 court cost.
106. On December 27,2012, a Biloxi police officer knocked on Mr. Anderson's front door and asked to speak with him. After Mr. Anderson opened the door, the officer reached into the apartment, and handcuffed Mr. Anderson in front of his girlfriend and her son. Because the left side of Mr. Anderson's body was still affected by the stroke, it was painful and difficult to be handcuffed. As the officer walked Mr. Anderson out to the patrol car, he stated that he had a warrant to arrest Mr. Anderson for nonpayment of a fme.
107. Mr. Anderson was booked in the Biloxi Police station. The City ofBi1oxi Unifonn Arrest/Booking report indicates that Biloxi police arrested Mr. Anderson pursuant to the Septetnber 21, 20 12 capias pro finem warrant, and were aware that Mr. Anderson was "Disabled."
108. Biloxi police took Mr. Anderson to the Harrison County Adult Detention Center, where he was informed that he could secure his release only by paying in cash $220-the full amount of his debt. Mr. Anderson did not have the money and did not have any family or friends who could give or lend it to him.
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l 09. Mr. Anderson was jailed for seven nights. At no point while Mr. Anderson was incarcerated did anyone inform him when he would be released or brought before a judge.
110. While incarcerated, Mr. Anderson was extremely distressed that his loved ones did not know where he was or that he had been arrested and jailed, particularly because he was jailed over the New Year holiday. Mr. Anderson was unable to spend the holiday with his family and loved ones or even to speak with them on the phone.
111. Mr. Anderson's jail cell was cold and unsanitary, and he was not given enough food to eat.
112. During his frrst day in jail, Mr. Anderson did not have access to medication needed to treat his heart condition and other medical conditions from which he suffers.
113. Mr. Anderson suffered humiliation, anxiety, stress, emotional distress, disturbed sleep, sleeplessness, and other irreparable injury from being handcuffed and arrested in his own home, in front of his girlfriend and her teenage son, jailed, separated from his loved ones, and incarcerated for seven nights in unsanitary and cold jail conditions without enough food to eat and without !mowing when his incarceration would end or when he would be presented in front of a judge.
114. After seven nights in jail, Mr. Anderson was fmally brought before Judge Henry for an in-jail hearing on January 3, 2013. At no point before or during the hearing did anyone, including Judge Heruy, inform Mr. Anderson that he had a right to request the assistance of counsel. Nor did anyone inform him that he had a right to
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representation by court-appointed counsel at no cost, as an indigent debtor charged with failure to pay fmes, court costs, and fees.
115. Judge Henry held a hearing that lasted only several minutes in which he did not conduct any inquiry into, or make any findings on, Mr. Anderson's ability to pay the fines, fees, and court costs for which he had been jailed, his efforts to secure resources, or the adequacy of available alternatives to incarceration. Instead, the judge asked Mr. Anderson how long he had been in jail. After Mr. Anderson informed the judge that he had been in jail for seven nights, Judge Henry closed the case for time served.
116. As a result of his incarceration, Mr. Anderson suffered physically and emotionally during his time in jail and after.
c. Richard Tillery 117. Richard Tillery is a 51-year-old, indigent, unetnployed, and homeless tnan who lives on the streets and beaches of Biloxi and Gulfport, Mississippi. 118. Mr. Tillery became homeless around 2009. Since then, he has been desperately poor. 119. There is no homeless shelter in Biloxi or Gulfport where Mr. Tillery can sleep at night. 120. Since becoming homeless, Mr. Tillery has faced constant harassment by Biloxi police. Biloxi patrol officers know Mr. Tillery by name and appearance, and where on the City's streets and beaches Mr. Tillery sleeps and seeks shelter because he has nowhere else to go.
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121. Biloxi police have charged Mr. Tillery with at least 89 misdemeanor offenses since 2010. The vast majority of these charges target conduct related to Mr. Tillery's poverty and homelessness. They include sixteen charges of trespassing and forty-three charges of public drunkenness, as well as charges for littering and loitering.
122. Biloxi police's frequent ticketing of Mr. Tillery for misdemeanor offenses results in the assessment of fines, fees, court costs, or restitution that Mr. Tillery simply cannot afford to pay. When Mr. Tillery does not pay, the Biloxi Municipal Court issues capias or capias pro finem warrants charging him with failure to pay and ordering his arrest and immediate jailing. Biloxi police arrest and jail Mr. Tillery for nonpayment of fines, fees, and court costs based on these warrants without any predeprivation court hearing on Mr. Tillery's ability to pay, efforts to secure resources, or the availability and adequacy of alternatives to incarceration. Nor is Mr. Tillery informed of his right to representation by court-appointed counsel prior to being arrested and jailed on charges of failure to pay.
123. These policies, practices and customs have ensnared Mr. Tillery in a cycle of ticketing for misdemeanor offenses and imprisonment for debt because he is homeless and desperately poor.
124. One such cycle began on Apri14, 2014, when Biloxi police charged Mr. Tillery with public drunkenness and resisting arrest. He pled guilty and was assessed a fine and court costs totaling $450. Mr. Tillery could not afford to pay.
125. Upon information and belief, JCS reported the nonpayment to the Biloxi Municipal Court.
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126. Without Mr. Tillery's knowledge, on June 26,2014, Judge Henry issued a capias warrant that ordered Mr. Tillery's arrest and jailing unless he could pay $450 in cash.
127. On July 1, 2014, Biloxi police arrested Mr. Tillery pursuant to the June 26, 2014 capias warrant. Biloxi police indicated on the City of Biloxi Uniform Arrest/Booking report that Mr. Tillery was homeless. Mr. Tillery was taken to the Harrison County Adult Detention Center, where he was informed that he would not be released unless he paid $450 in cash.
128. Mr. Tillery was jailed in the Harrison County Adult Detention Center for three days. During his incarceration, no one informed hitn when he would be released or brought before a judge.
129. Mr. Tillery was fmally brought before Judge Henry for an in-jailing hearing before the Biloxi Municipal Court on July 3, 2014. Judge Henry asked Mr. Tillery if he could pay $450 that day. When Mr. Tillery responded that he could not, the judge sentenced him to pay $450 or spend 18 days in jail. Judge Hemy did not inquire, or make any fmdings on, Mr. Tillery's ability to pay, his efforts to secure resources, or the availability or adequacy of alternatives to incarceration. Nor did Judge Hemy inform Mr. Tillery of his right to request counsel, afford him court-appointed representation as an indigent debtor charged with failure to pay, or determine whether any oral or written waiver of the right to counsel was knowing, voluntary, and intelligent.
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130. Homeless and unemployed, Mr. Tillery had no money or choice. He remained locked up in the Harrison County Adult Detention Center for another sixteen
days (until July 18, 2014) because he could not afford to pay $450. 131. The City has also used capias warrants charging Mr. Tillery with failure to
pay fines, fees, or court costs to impermissibly prolong his detention following warrantless arrests for unrelated misdemeanor offenses.
132. Following Biloxi police's April4, 2014 warrantless arrest of Mr. Tillery for public drunkenness and resisting arrest, Mr. Tillery was immediately jailed in the
Harrison County Adult Detention Center. The Biloxi Municipal Court scheduled an AprilS, 2014 hearing on those charges, which was subsequently reset to April II, 2014.
133. On Aprill1, 2014, the Biloxi Municipal Court issued a capias warrant
directing law enforcement to arrest and jail Mr. Tillery for failure to pay fines and fees
stetnming from an October 9, 2013 trespassing charge for which Mr. Tillery had been
assessed fmes, fees, and court costs of$610 that he could not afford to pay. Upon infonnation and belief, JCS had reported Mr. Tillery's nonpayment to the Biloxi Municipal Court for the purpose of securing a warrant.
134. It was not until April15, 2014-after he had already been jailed for eleven days-that Mr. Tillery was finally brought before the Biloxi Municipal Court for a probable cause determination relating to the Apri14, 2014 public drunkenness and
resisting arrest charges and for a post-jail hearing on the capias warrant charging him with failure to pay fmes stenuning frotn the October 9, 2013 trespassing offense. As a result, Mr. Tillery was jailed for nine days beyond the generally permissible 48-hours of
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detention that may follow a warrantless arrest prior to a probable cause determination. He was also jailed for four days on a failure-to-pay charge without any predeprivation ability-to·pay hearing or representation by court-appointed counsel.
135. The April15, 2014 hearing before the Biloxi Municipal Court was a proceeding that lasted only several minutes. The court did not inform Mr. Tillery of his right to request counsel, appoint counsel to represent Mr. Tillery against failure-to-pay charges, and did not inquire into, or make any findings on, Mr. Tillery's ability to pay, efforts to secure resources, or the adequacy of available alternatives to incarceration. The Biloxi Municipal Court nevertheless sentenced Mr. Tillery to thirty days in jail on the April11, 2014 capias warrant charging him for failure to pay. Mr. Tillery was jailed until May 3, 2014. He was incarcerated for twenty·two days after issuance of the April 11, 2014 capias warrant.
136. Similarly, between September 3 and September 11,2014, Mr. Tillery was incarcerated in the Harrison County Adult Detention Center for eight days pursuant to two capias warrants charging him with failure to pay fmes, fees, and court costs without being informed of his right to request counsel and his right to representation by courtappointed counsel on charges of failure to pay, and without being afforded a predeprivation hearing on ability to pay, efforts to secure resources, and the adequacy of available alternatives to incarceration.
137. This illegal jailing began on September 3, 2014--three days after Mr. Tillery was jailed in the Harrison County Adult Detention Center on a warrantless arrest for another misdemeanor offense. That day, Judge Hemy issued two capias warrants
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instructing law enforcement to arrest and jail Mr. Tillery for nonpayment of fmes. One was a second warrant charging him with nonpayment of fines and court costs related to the April 4, 2014 charges for public drunkenness and resisting arrest-monetary penalties that Mr. Tillery had already discharged by being incarcerated from July 1, 2014 through July 18,2014. Another warrant charged Mr. Tillery with nonpayment offmes stemming from July 25,2014 charges for public drunkenness and disorderly conduct. Both warrants instructed law enforcement to arrest and jail Mr. Tillery until "the next regular session of the Municipal Court of the City of Biloxi, at which time" he would be granted a show cause hearing for contempt of court, unless Mr. Tillery could pay in cash the entire debt owed. The frrst warrant permitted him to avoid jail if he paid $50 in court costs in cash. The second warrant required hhn to pay $205 in cash for fines and court costs, in order to avoid jail. Both warrants instructed: "*HOLD UNTIL SEES JUDGE*."
138. When the warrants were issued, Mr. Tillery was already incarcerated for an unrelated, minor offense.
139. During his September 4, 2014 in-jail court hearing, Judge Henry ordered that the case be reviewed on September 11, 2014 and that Mr. Tillery be returned on the same bond, but did not resolve the charges of failure to pay. After being jailed for an additional seven days, Mr. Tillery ultimately was released on September 11, 2014.
140. During each of the periods ofjailing described above, Mr. Tillery was jailed in cold and unsanitary jail cells and was not given enough food to eat.
141. Mr. Tillery suffered humiliation, anxiety, stress, emotional distress, sleeplessness, disturbed sleep, and other irreparable injury from being jailed, deprived of
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his liberty, and incarcerated for periods of time ranging from two to twenty-two days in unsanitary and cold jail conditions without enough food to eat and without knowing when his incarceration would end or when he would be presented to court.
142. Mr. Tillery continues to owe fmes, fees, and costs to Biloxi that were assessed in misdemeanor cases handled by the Biloxi Municipal Court since 2010. Because he is destitute, unemployed, and homeless, Mr. Tillery is not able to make any payments toward any of these monetary penalties, and therefore faces not only a reasonable likelihood, but a substantial threat, that he will again be arrested, jailed, and subjected to prolonged incarceration pursuant to failure-to-pay warrants.
143. Mr. Tillery is currently incarcerated in the Harrison County Adult Detention Center. Upon release, Mr. Tillery will return to Biloxi, but will have nowhere to live but the streets and the beach.
144. In February and March 2015, Judge Henry issued at least three orders bamring Mr. Tillery from locations in Biloxi, including the beach and the restricted zone from Gill Avenue to Bean River and Porter Street Pier.
145. Because Mr. Tillery is homeless and unemployed and Biloxi police know and target him, there is not only a reasonable likelihood, but a substantial threat, that Biloxi police will arrest Mr. Tillery for violating Judge Henry's banishment orders or will otherwise charge him with trespassing, public drunkenness and other misdemeanor crimes related to his poverty and homelessness. Such charges will more than likely lead to the assessment of monetary penalties (e.g., fmes, fees, costs, restitution) that Mr. Tillery cannot afford to pay. Consequently, there is not only a reasonable likelihood, but
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a real and substantial threat, that Mr. Tillery will be arrested and immediately jailed for nonpayment in the future without being afforded a predeprivation ability-to-pay hearing or representation by counsel, pursuant to the policies, practices, and customs of Biloxi, Defendant Miller, Biloxi police, the Biloxi Municipal Court, and Judge Steele.
146. Mr. Tillery also faces not only a reasonable likelihood, but a real and substantial threat, that he will be arrested, jailed, and subjected to prolonged incarceration pursuant to capias warrants charging him with contempt of court for the nonpayment of fmes, fees, court costs, and/or restitution that he has already discharged through jail time, as was the case on September 3, 2014.
E. Failure to Train Biloxi Police, Probation Officers, and Private Debt Collectors on Indigent Debtors' Rights
147. Biloxi, Chief Miller, and JCS established a policy, practice, and custom of failing to train, direct, guide, and supervise Biloxi police and JCS employees on how to operate Biloxi's program of generating revenue from fine and fee collection in a manner consistent with federal law. This failure demonstrated deliberate indifference to: debtors' Fourteenth Amendment right to ability-to-pay hearings that satisfy the requirements of Bearden v. Georgia, 461 U.S. 660 (1983), prior to jailing for failure to pay; debtors' Fourth Amendment right to freedom from unreasonable seizures based on warrants lacking probable cause to believe the debtor has committed an offense or probation violation; debtors' Fourteenth Amendment right to request counsel when charged with failure to pay; and indigent debtors' Fourteenth Atnendment right to court-appointed counsel in proceedings concerning failure-to-pay charges.
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148. Biloxi, Chief Miller, and JCS have failed-and Biloxi and Chief Miller continue to fail-to provide any training, direction, guidance, or supervision to for-profit company probation officers, private debt collectors, and Biloxi police officers on the procedures for handling debtors who cannot afford to make fine and fee payments. They have not provided any training, direction, guidance, or supervision on: (1) debtors' right to an ability-to-pay hearing prior to being jailed for failure to pay; (2) debtors' right to request court-appointed counsel in proceedings concerning failure-to-pay charges, whether the proceedings concern charges of probation revocation or civil contempt; (3) indigent debtors' right to court-appointed counsel in proceedings concerning failure-topay charges; (4) the requirement that any waiver of indigent debtors' right to counsel must be knowing, intelligent, and voluntary; and (5) debtors' right to be free from unreasonable seizures based on warrants lacking probable cause.
149. The response by Biloxi and the Biloxi Municipal Court to a December 3, 2014 request under the Mississippi Public Records Act of 1983, Miss. Code Ann.§ 2561-1 ("Public Records Act"), confrrms that the City has failed to train and supervise probation and police officers on the rights of debtors and the indigent. The December 3, 2014 Request sought "[a]11 records setting forth directions, policies, procedures, regulations, forms, or guidelines ... concerning the placement of individuals on misdemeanor probation and the revocation ofprobation for failure to pay or to appear in court." It also sought "[a]ny training materials used to instruct employees of the Biloxi Municipal Court, JCS, Court Programs, and Harrison County Jail on how to determine the indigence status of individuals charged with probation violation for the nonpaytnent
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of legal fmancial obligations." No documents were disclosed in response to these requests.
F. Defendants' Knowledge of Widespread Rights Violations and Failure to Correct
150. At the time that Plaintiffs were arrested and jailed for nonpayment of debts owed to Biloxi, Defendants were on notice that indigent debtors were routinely arrested and jailed by Biloxi police for failure to pay without representation by counsel or predeprivation ability-to-pay hearings in violation of their Fourth and Fourteenth Amendment rights.
151. Defendants were also on notice that JCS employees routinely and customarily notified Biloxi Municipal Court judges when debtors failed to pay in the thne and manner required by the Court, and petitioned the Court for warrants for their arrest.
152. Defendants were also on notice that BMC judges, including Judge Steele, sought to obtain, and did obtain, written waivers of the right to counsel from indigent debtors charged with failure to pay on standard fonns without adequately informing debtors of their rights or engaging in any colloquy to detennine whether any waivers were knowing, voluntary, or intelligent.
153. In 2005, years before the Plaintiffs were improperly and illegally jailed for failure to pay debts owed to Biloxi, the Southern Center for Human Rights filed a federal lawsuit against Gulfport, Mississippi for rwming a debtors' prison in the Harrison County Adult Detention Center. Local media reported extensively on the lawsuit, which challenged the jailing of indigent debtors in violation of their right to counsel and to
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predeprivation ability-to-pay hearings. Local media also reported extensively on the policy reforms adopted by Gulfport in response to the lawsuit, which led to the voluntary dismissal of the suit.
1S4. Because Biloxi is located next to Gulfport and uses the same jail, the City and Chief Miller were aware of the allegations against Gulfport and the subsequent policy reforms.
ISS. In February 2014, before Ms. Kennedy and Mr. Tillery were improperly and illegally jailed for failure to pay, Human Rights Watch issued a report, Profiting from Probation: America's "Offender-Funded'' Probation Industry ("HRW Report"). The HRW Report described threats ofjail by for-profit probation company officers, including officers employed by JCS, to elicit paytnents from the poor for unpaid traffic fines and fees. It also reported on Mississippi courts' failure to afford counsel and predeprivation ability-to-pay hearings to indigent debtors charged with nonpayment of fmes, fees, court costs, or restitution in violation of their rights. Local and national media reported extensively on the HRW Report, including the following news outlets: The Atlanta Journal-Constitution, The Augusta Chronicle, The Atlantic, The Guardian, The Nation, National Public Radio, NBC News, and Salon.cotn.
156. Biloxi and Chief Miller were aware of the HRW Report and its allegations. G. Class Action Allegations 157. Plaintiffs Kelllledy and Tillery bring this class action on behalf of thetnselves, and all others similarly situated, for the purpose of asserting the declaratory and injunctive claims alleged in this Complaint on a cotnmon basis.
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158. A class action is a superior means, and the only practicable means, by which Plaintiffs Kennedy and Tillery and unknown class members can challenge the Defendants' continued implementation of an unlawful revenue generation and debtcollection scheme.
159. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(l)-(4) and Rule 23(b)(2), of the Federal Rules of Civil Procedure.
160. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
161. The Plaintiffs propose a Main Class and a Subclass called the "Indigent Class.,
162. The Main Class is defined as: "All people who currently owe, or in the future will owe, fmes, fees, court costs, or restitution in Biloxi Municipal Court cases."
163. The Indigent Class is defined as: "All indigent people who currently owe, or in the future will owe, fines, fees, court costs, or restitution in Biloxi Municipal Court cases.,
a. Rule 23(a) i. Numerosity
164. The proposed Main Class and Indigent Class are both so numerous that joinder of all members is impracticable.
165. Thousands of people each year are subjected to the policies, practices, and customs discussed in this Complaint. Pursuant to the Defendants' policy, practice, and custom, all people who do not tnake fine, fee, court costs, or restitution payments in the
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amount or frequency required by the Biloxi Municipal Court face a real and substantial tlrreat of being arrested and inunediately jailed, without notice or process, pursuant to failure-to-pay warrants issued by the Biloxi Municipal Court. Similarly, all indigent people who do not make fine, fee, court costs, or restitution payments in the atnount or frequency required by the Biloxi Municipal Court face a real and substantial threat of being incarcerated without representation by court-appointed counsel against failure-topay charges.
166. In response to a June 11, 2015 request made under the Public Records Act, Biloxi and the Biloxi Municipal Court disclosed records showing that 2,681 arrest warrants, including capias pro finetn and capias watTants, were issued during the ninemonth period between September 1, 2014 and June 11, 20 15 charging at least 1,520 different people with failure to pay fines, fees, costs, and/or restitution. Many, if not the majotity, of these people are indigent.
167. The Defendants have jailed hundreds of people, including the indigent, for nonpaytnent of debts owed to Biloxi over the past several years. In response to a request under the Public Records Act for booking reports for people jailed in the Harrison County Adult Detention Center, the Harrison County Sheriffs Office disclosed records showing that at least 415 different people were booked in jail during the seven-month period between September 1, 2014 and March 26,2015, pursuant to capias, capias pro fmem, or contempt warrants charging people for failure to pay debts owed to Biloxi. Many, if not the majority, of these people are indigent.
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168. The names, case numbers, and dates ofhnprisonment of those who currently owe fines, fees, court costs, or restitution in cases handled by the Biloxi Municipal Court are available by consulting records tnaintained by the Defendants.
169. The Defendants followed, and continue to follow, the same revenue generation and debt-collection policies, practices, procedures, and custo1ns to accomplish the arrest and immediate jailing of Plaintiffs Kennedy and Tillery, and the proposed Class members. For example, pursuant to policy, practice and custom, the Biloxi Municipal Court continues to issue arrest warrants-whether on its own accord or pursuant to notification by CPI or Pioneer-commanding law enforcetnent officers to arrest and immediately jail debtors who are unable to make any payments toward their debts, or who cannot pay in the time or amounts required by the Biloxi Municipal Court or Pioneer. The Biloxi police continue to execute such warrants when conducting warrant checks at traffic and pedestrian stops, and at debtors' homes. Pursuant to policy, practice and custom, the warrants are executed with the result that debtors are arrested and immediately jailed for days, unless cash payment of the full amount of the fmes, fees, court costs, and/or restitution owed is paid at the jail. Pursuant to the Defendants' policy and practice, those arrested and jailed for nonpayment by the Defendants' scheme do not receive the notice or process required by law-a predeprivation inquiry into their ability to pay, efforts to secure resources, and alternatives to incarceration-or the appointment of counsel to help defend them against charges of failure to pay, or even infonnation concerning their basic right to request counsel, as required by the Fourteenth Amendment.
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170. People who still owe Biloxi debt payments, including the indigent, will be
subjected to the same ongoing policies, practices, and customs absent the relief sought in
this Complaint.
ii. Commonality
171. The relief sought is common to all members of the proposed Main Class
and Indigent Class, and common questions of law and fact exist as to all members of each
class/subclass. The Plaintiffs seek relief concerning whether the Defendants' policies,
practices, and customs violated their constitutional rights and requiring the Defendants to
change their policies, practices, and customs so that the Plaintiffs' rights will be protected
in the future.
172. Among the most important, but not only, common questions of fact
concerning the Main Class are:
• Whether the City of Biloxi has a policy, practice, and custom of issuing arrest warrants against debtors, including the indigent, for nonpayment offmes, fees, court costs, or restitution during the time and in the marmer required by the Biloxi Municipal Court or Pioneer Credit Recovery and without probable cause that any offense or probation violation has been committed
• Whether JCS probation officers had a policy, practice, and custom of threatening debtors, including the indigent, with incarceration for failure to pay fmes, fees, court costs, or restitution in the time and manner required by the Biloxi Municipal Court without informing them of their constitutional rights.
• Whether CPI probation officers and Pioneer Credit Recovery employees have a policy, practice, and custom of threatening debtors, including the indigent, with incarceration for failure to pay fines, fees, court costs, or restitution in the time and manner required by the Biloxi Municipal Court without informing them of their constitutional rights.
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• Whether JCS probation officers had a policy, practice, and custom of petitioning the Biloxi Municipal Court for warrants to arrest debtors, including the indigent, solely for failure to pay fines, fees, court costs, or restitution in the time and m81Uler required by the Biloxi Municipal Court.
• Whether CPI and Pioneer Credit Recovery employees have a policy, practice, and custom of petitioning the Biloxi Municipal Court for warrants to arrest debtors, including the indigent, solely for failure to pay fines, fees, court costs, or restitution in the time and manner required by the Biloxi Municipal Court.
• Whether Biloxi police arrest and imprison people, including the indigent, pursuant to failure-to-pay warrants, which include capias pro finem and capias warrants, that are based solely on nonpayment of fines, fees, court costs, or restitution.
• Whether Biloxi police execute failure-to-pay warrants by arresting and jailing debtors, including indigent debtors, in the Harrison County Adult Detention Center without any pre-jail court hearing.
• Whether Biloxi police execute failure-to-pay warrants by arresting and jailing debtors, including indigent debtors, in the Harrison County Adult Detention Center without providing thetn notice of their right to request counsel prior to incarceration on such charges.
• Whether the Defendants delay post-jail hearings in the Biloxi Municipal Court concerning charges of failure to pay with the result that debtors, including the indigent, are detained for days prior to being presented to court.
• Whether the Defendants provide notice to debtors, including the indigent, that their ability to pay will be a relevant issue at any hearings held on their charges of failure to pay.
• Whether the Defendants ensure that findings are made concerning ability to pay, efforts to secure resources, and alternatives to incarceration in any post-jail hearings on failure-to-pay charges.
173. Among the most important common questions of law for the Main Class
are:
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• Whether JCS probation officers conspired with the Mayor, City Council, Biloxi Municipal Court judges, and/or Biloxi police to arrest and jail debtors charged with nonpayment of debts owed to Biloxi and/or JCS fees.
• Whether JCS probation officers acted within the scope of their employtnent and with a purpose to serve JCS and Biloxi when threatening to arrest and jail debtors who did not pay in the time or manner required by the Biloxi Municipal Court.
• Whether JCS probation officers acted within the scope of their employment and with a purpose to serve JCS and Biloxi when petitioning the Biloxi Municipal Court to arrest and jail debtors who did not pay in the time or manner required by the Court.
• Whether it is lawful for the Biloxi Municipal Court to issue arrest warrants solely for non-payment of fmes, fees, court costs, or restitution without any predeptivation inquiry into, and factual findings on, debtors' ability to pay and efforts to secure resources, and the adequacy of available alternatives to incarceration.
• Whether it is lawful for the Biloxi Municipal Court to issue arrest warrants solely for nonpayment of fines, fees, and/or court costs in light of the actual knowledge of the Court, JCS, or the Biloxi police that a debtor is indigent and unable to pay.
• Whether failure-to-pay warrants issued by the Biloxi Municipal Court can be used to deprive debtors of their liberty without notice and opportunity to be heard.
• Whether the Fourteenth Amendment permits a person to be jailed following arrest for nonpayment of fines, fees, costs, or restitution, unless they can pay in full the entire amount of any amounts owed.
• Whether due process is violated by proceedings conducted without notice to debtors that their ability to pay will be a relevant issue at the hearings and without findings made concerning ability to pay, efforts to secure resources, and the availability and adequacy of alternatives to incarceration.
• Whether due process is violated by proceedings concerning failure-topay charges conducted without informing debtors of their right to
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request counsel and without informing indigent debtors of their right to court-appointed counsel against charges of failure to pay fmes, fees, costs, and/or restitution.
174. These common legal and factual questions arise from one central scheme and set of policies and practices: the Defendants' unconstitutional scheme of debtcollection through the Arrest and Jailing Policy and the Prolonged Incarceration Policy. The Defendants operate this scheme openly and in materially the same tnanner every day. The material components of the scheme do not vary between members of the Main Class, and the resolution of these legal and factual issues will determine whether members of the Main Class are entitled to the constitutional relief they seek.
175. The questions of fact common to the Main Class are also common to the Subclass. Additional common questions of fact concerning the Indigent Class are:
• Whether Defendants afford indigent people court-appointed counsel to represent them against charges of failure to pay before incarcerating them on such charges.
• What procedural mechanistns, if any, Defendants use as a matter of policy and practice to determine indigence before jailing people on failure-to-pay warrants.
• What procedural mechanistns, if any, Defendants use as a matter of policy and practice to detennine indigence at any post-jail hearings concerning charges that a debtor has failed to pay.
176. The questions of law common to the Main Class are also common to the Indigent Class. Additional common questions of law concerning the Indigent Class are:
• Whether due process is violated by the failure to appoint counsel to represent debtors charged with failure to pay fines, fees, court costs, or restitution prior to their incarceration when there is prima facie evidence
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of indigence, including evidence of homelessness and income limitations due to disability status. 177. The legal and factual questions common to the Indigent Class arise from one central scheme and set of policies and practices: the Defendants' unconstitutional scheme of debt collection through the Arrest and Jailing Policy and the Prolonged Incarceration Policy. The Defendants operate this scheme openly and in materially the same manner every day. The material components of the scheme do not vary between members of the Indigent Class, and the resolution of these legal and factual issues will detennine whether members of the Indigent Class are entitled to the constitutional relief they seek.
iii. Typicality 178. The policies, practices, and customs challenged in this action apply with equal force to Plaintiffs KeiUledy and Tillery and all members of the Main Class and Indigent Class so that the claims of Plaintiffs Kelllledy and Tillery are typical of those of the proposed Main Class and Indigent Class. 179. Ms. KelUledy and Mr. Tillery are indigent people who cannot afford to pay fines, fees, costs, or restitution that they currently owe, or which they face a real, substantial likelihood of owing in the future, to the City of Biloxi for traffic or misdemeanor offenses adjudicated in the Biloxi Municipal Court. Each of them suffered injuries because of their arrest and hnmediate jailing for failure to pay debts owed to Biloxi without representation by counsel and without predeprivationjudicial inquiry into, and factual findings on, their ability to pay, efforts to secure resources, and the adequacy
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of alternatives to incarceration. They both currently face a real and substantial threat of being arrested and jailed in the future for nonpayment of fines, fees, costs, and restitution according to the terms required by the Biloxi Municipal Court without representation by counsel and without any predeprivation ability-to-pay hearing.
180. If Plaintiffs Kennedy and Tillery succeed in their claims that the Defendants' policies and practices concerning debt collection for fines, fees, court costs, and restitution violate the law in the ways alleged in this Complaint, that ruling will likewise benefit every other member of the Main Class and Indigent Class.
iv. Adequacy 181. Plaintiffs and their attorneys will fairly and adequately protect the interests of members of the Main Class and Indigent Class. 182. Plaintiffs Kennedy and Tillery possess the requisite personal interest in the subject matter of the lawsuit and possess no interests adverse to other members of the Main Class or Indigent Class. 183. Plaintiffs are represented by attorneys at the American Civil Liberties Union Foundation ("ACLU"), the American Civil Liberties Union Foundation of Mississippi ("ACLU-MS"), and the law frrm of Simon & Teeuwissen PLLC. The ACLU, ACLU-MS, and Simon & Teeuwissen PLLC are organizations with extensive experience in complex class action litigation and lmowledge of the relevant constitutional and statutory law. 184. Plaintiffs' counsel also have extensive knowledge of the details of Defendants' scheme as a result of a months-long investigation involving court
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observation, review of thousands of pages of records procured through public records requests, and nutnerous interviews with witnesses, jail irunates, and families. Plaintiffs' counsel have studied Biloxi budget documents, City Council resolutions, Biloxi Municipal Court records, Biloxi Police arrest and booking forms, and Harrison County Adult Detention Center inmate listing reports in order to understand Defendants' policies, practices, and customs as they relate to federal constitutional requirements.
185. Plaintiffs' counsel at the ACLU have also served as lead counsel in a similar federal lawsuit bringing constitutional challenges to unlawful municipal debt-collection schemes. See Thompson v. DeKalb County, No. 1:15 cv 280 (N.D. Ga. 2015). Plaintiffs' counsel at the ACLU currently serve as counsel in a lawsuit in Washington state bringing similar constitutional challenges to unlawful municipal debt-collection schemes. See Fuentes v. Benton County, No. 15-202976-1, (Wash. Yakima Superior Court Oct. 7, 2015) (motion for class certification pending).
b. Rule 23(b)(2) 186. Plaintiffs meet the requirements of Rule 23(b)(2) in that the Defendants acted or refused to act on grounds that apply generally to each class, so that final injunctive relief or corresponding declaratory relief is appropriate as to each class as a whole. 187. All of the following declarations will apply equally to all members of the Main Class:
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• A declaration that the City of Biloxi and Chief Miller violate Plaintiff Kennedy and Plaintiff Tillery's Fowieenth Amendment due process and equal protection rights by arresting and imprisoning them for nonpayment of fines, fees, court costs, or restitution without providing a predeprivationjudicial inquiry into, and fmdings of fact on, ability to pay, efforts to secure resources, and the adequacy of available alternatives to incarceration.
• A declaration that the City of Biloxi and Chief Miller violate Plaintiff Kennedy and Plaintiff Tillery's Fourth Amendment rights by arresting and imprisoning them for nonpayment of fines, fees, court costs, or restitution without probable cause that they have committed an offense or probation violation and without notice or a hearing prior to the deprivation of their liberty.
• A declaration that the City of Biloxi, Chief Miller and Judge Steele violate Plaintiff Kennedy and Plaintiff Tillery's Fourteenth Amendtnent due process rights by arresting and imprisoning them for nonpayment of fmes, fees, court costs, or restitution without infonning them of their right to request counsel to represent them against failure-to-pay charges.
188. The following declaration will apply equally to all metnbers of the Indigent
Class:
• A declaration that the City of Biloxi, Chief Miller, and Judge Steele violate Plaintiff Kennedy and Plaintiff Tillery's Fourteenth Amendment due process rights as indigent debtors by arresting and imprisoning them for nonpaynient of fines, fees, court costs, or restitution without the appointment of counsel to represent them against failure-to-pay charges.
189. Injunctive relief cotnpelling the City of Biloxi and Chief Miller to comply
with these constitutional rights will similarly protect each member of the Main Class and
Indigent Class from being subjected to the Defendants' unlawful policies, practices, and
customs with respect to the debts they currently owe, or in the future will owe.
DEMAND FOR JURY TRIAL
190. Plaintiffs request a trial by jury.
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CLAIM ONE FOR DECLARATORY AND INJUNCTIVE RELmF Confmement in Jail Without Predeprivation Ability-to-Pay Hearing in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, and 42 U.S.C. § 1983
Against Defendants Biloxi and Chief Miller 191. Plaintiffs incorporate by reference the allegations in paragraphs 13 to 156. 192. This claim is brought by Plaintiff KelUledy and PlaintiffTillery on behalf of themselves and the members of the proposed Main Class. 193. The Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution have long prohibited the imprisonment of people for the failure to pay court-imposed fines or restitution without a predeprivation inquiry by a judge into the person's ability to pay, efforts to secure resources to pay, and, if the person is found to lack the ability to pay despite having tnade reasonable efforts to acquire resources, the adequacy of any alternatives to incarceration. Courts are prohibited from jailing people for failure to pay without conducting such an inquiry and making at least one of the following fmdings: (I) the debtor's fail1.:1re to pay was willful; (2) the debtor failed to make sufficient efforts to acquire the resources to pay; and/or (3) the individual was unable to pay, despite having made sufficient efforts to acquire resources, but alternative methods of achieving punishment or deterrence are not adequate. 194. Plaintiff Kennedy and PlaintiffTillery suffered violations of their clearly established right to a predeprivation ability-to-pay hearing when Biloxi police atTested and innnediately jailed them, and conditioned their release upon cash paytnent ofthe full amount of their debts to Biloxi. As a result, Plaintiff Kennedy was incarcerated from
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July 30, 2015 to August 4, 2015, and Plaintiff Tillery was incarcerated from July 1, 2014 to July 3, 2014. Plaintiff Tillery also suffered a deprivation of his right to a predeprivation ability-to-pay hearing when his incarceration was prolonged on three separate occasions in 2014-from April II to Aprill5, from July 3 to 18, and September 3 to 11-because he could not afford to pay in cash the full amount of his debts to Biloxi. Prior to each period of incarceration, neither plaintiff was afforded any predeprivation judicial inquiry into, and findings of fact on, ability to pay, efforts to secure resources, and the adequacy of available alternatives to incarceration.
195. For all relevant purposes, all individuals processed for conunitment to jail for unpaid fines, costs, fees, or restitution are similarly situated with respect to their right to due process of law. There exists no legitimate governmental reason to jail individuals who are financially unable to pay in cash the full amount of outstanding monetary penalties for traffic or misdemeanor offenses, while permitting individuals who have the fmancial means to pay such fmes and costs to avoid being jailed for the same offenses.
196. Defendants Biloxi and Miller's policies, practices, and customs directly and proximately caused, and continue to cause, the violations of Plaintiff Kennedy and Plaintiff Tillery's right to a predeprivation ability-to-pay hearing.
197. The City has acquiesced to the well-settled, longstanding, and widespread arrest, jailing, and prolonged incarceration of indigent debtors without predeprivation ability-to-pay hearings. The Arrest and Jailing Policy and the Prolonged Incarceration Policy have therefore become policy, practice, and custom with the force of law, and
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reflect deliberate indifference to the due process and equal protection rights of debtors and the indigent.
198. Defendant Miller also directly and proximately caused the violation of, and continues to violate, Plaintiff Kennedy and Plaintiff Tillery's right to a predeprivation ability-to-pay hearing in his role as the City's chief law enforcement officer and fmal policymaker on carrying out arrests and booking people in jail, as well as the collection of fines, fees, court costs, and restitution from indigent debtors. By supervising, controlling, and directing Biloxi Police Department officers and administrative staff who arrest, process, book, and ultimately confme individuals in the Harrison County Adult Detention Center for nonpayment of fmes, fees, costs, or restitution without necessary ability-to-pay determinations, Defendant Miller directly and proximately caused the violation of, and continues to violate, Plaintiff Kennedy and Plaintiff Tillery's rights to due process and equal protection of the law. Defendant Miller also failed to train and to supervise Biloxi police officers under his command to ensure that they execute failure-topay ·arrest warrants in compliance with debtors' clearly established right to predeprivation ability-to-pay hearings. His actions and inactions were deliberately indifferent to the clearly established constitutional rights of Plaintiffs.
199. Plaintiff Kennedy is indigent, owes debts to Biloxi, and is unable to make the tnonthly payments required by the Biloxi Municipal Court since being released from jail on August 4, 2015. Plaintiff Tillery is indigent, homeless, and incarcerated. He remains in constant and substantial risk of being subjected to prolonged incarceration on charges of failure to pay debts to Biloxi that he has already discharged. He also remains
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in constant and substantial risk of being ticketed by Biloxi police after his release from jail for crimes related to his homelessness and assessed fines he catu1ot afford to pay.
200. Defendant Biloxi and Miller's policies, practices, customs, acts, and otnissions place Plaintiffs Ketu1edy and Tillery at continuing and foreseeable risk of being arrested, jailed, and subjected to prolonged detention for non-payment of fines, fees, costs, or restitution despite their inability to pay these fmancial obligations. Plaintiff Kennedy and Plaintiff Tillery seek prospective declaratory and injunctive relief because they have no plain, adequate, or complete remedy at law to prevent future injury caused by confinetnent in jail in violation of their constitutional rights.
20 1. Defendants Biloxi and Miller's actions in violating Plaintiff Kennedy and Tillery's rights also constituted a violation of 42 U.S.C. § 1983. Defendants act under color of state law when their actions, policies, practices, customs, and omissions create a real, imminent, and substantial threat that Plaintiffs Kennedy and Tillery will be an·ested and jailed in violation of their due process and equal protection rights, and their acts and omissions can be fairly attributed to the City.
CLAIM TWO FOR DECLARATORY AND INJUNCTIVE RELIEF
Failure to Afford Counsel in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, and 42 U.S.C. § 1983 Against Defendants Biloxi, Judge Steele, and Chief Miller 202. Plaintiffs incorporate by reference the allegations in paragraphs 13 to 156.
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203. This claim is brought on behalf of Plaintiff Kennedy, PlaintiffTillery, and the members of the proposed Main Class and Indigent Class.
204. The Fourteenth Amendment to the U.S. Constitution affords all people facing imprisonment on charges of failure to pay fines, fees, court costs, or restitution a due process right to request court-appointed counsel in hearings concerning that charge, whether they arise in the civil contempt or probation revocation context. The Fourteenth Amendment also affords indigent debtors a due process right to court-appointed counsel at no cost when facing failure-to-pay charges, whether in civil contempt or probation revocation proceedings.
205. Plaintiff Kennedy and Plaintiff Tillery suffered violations of their clearly established right to counsel when Biloxi police arrested and immediately jailed them for nonpayment of debts owed to Biloxi without informing them of their right to request counsel or ensuring that they were afforded counsel, as indigent debtors charged with failure to pay fines and court costs, despite prima facie evidence of their indigence. PlaintiffTillery also suffered a deprivation of his right to counsel when Biloxi police prolonged his incarceration on three separate occasions in 2014--frotn April 11 to April 15, July 3 to 18, and September 3 to 11-without infonning hhn of his right to request counsel or his right, as an indigent debtor, to court-appointed counsel to represent him against failure-to-pay charges.
206. Judge Steele directly and proximately caused Plaintiff Kennedy to suffer a deprivation of her right to counsel when he afforded her a post-jail hearing on the charge that she had failed to pay 2013 traffic fines and court costs in which he did not inform her
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of her right to request counsel and did not appoint counsel to represent her at no cost, despite prima facie evidence of her indigence. The judge did not inform Ms. Kennedy of the risk of proceeding without counsel or engage in any colloquy to ensure that her signature underneath the following statement on probation orders issued by him constituted a knowing, voluntary, and intelligent waiver of her right to counsel: "I have counsel or have waived my right to counsel for all proceedings to this date and have received a copy of this Order."
207. The City's policies, practices, and customs directly and proximately caused the violations of Plaintiff Kennedy and Plaintiff Tillery's right to counsel. The City has acquiesced to the well settled, longstanding and widespread arrest, jailing, and prolonged incarceration of debtors without infonning them of their tight to request counsel or affording indigent debtors counsel to represent them against failure-to-pay charges. The Arrest and Jailing Policy and the Prolonged Incarceration Policy have therefore become policy, practice, and custom with the force of law, and reflect deliberate indifference to debtors' and indigent debtors' due process right to counsel.
208. Defendant Miller also directly and proximately caused the violation of Plaintiff Kennedy and Plaintiff Tillery's right to counsel. The City delegated to Defendant Miller, in his roles as the chief law enforcement officer for Biloxi and chief executive officer of the Biloxi Municipal Court, final policymaking authority to carry out arrests, to book people in jail, and to collect fines, fees, court costs, and restitution from indigent debtors. Defendant Miller knew, or should have known, of the City's longstanding policy, practice, and custom of arresting and immediately jailing indigent
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debtors charged with failure to pay and of prolonging the incarceration of indigent debtors already in jail. He also knew, or should have known, that police officers under his conunand carried out these an·ests and detentions without informing indigent debtors of their right to request counsel or affording them counsel to defend against incarceration for failure to pay fines or court costs. Defendant Miller also failed to train and to supervise Biloxi police officers under his command to ensure that they executed failureto-pay arrest warrants in compliance with debtors' and indigent debtors' clearly established right to counsel. His actions and inactions were deliberately indifferent to the clearly established constitutional rights of Plaintiffs.
209. Defendants Biloxi, Steele, and Miller's policies, practices, customs, acts, and omissions place Plaintiffs Keimedy and Tillery at continuing and foreseeable risk of being arrested and committed to the Harrison County Adult Detention Center, and of experiencing an extension of incarceration, for nonpayment of fines, fees, costs, or restitution without the benefit of representation by court-appointed counsel. Plaintiffs Kennedy and Tillery seek prospective declaratory and injunctive relief because they have no plain, adequate, or complete remedy at law to prevent future injury caused by confmetnent in jail in violation of their constitutional rights.
210. Plaintiffs Kennedy and Tillery seek declaratory relief only against Defendant Steele. They seek declaratory and injunctive relief against Defendants Biloxi and Miller.
211. Defendants Biloxi, Steele, and Miller's actions in violating Plaintiff Kennedy's and Tillery's rights also constitute a violation of 42 U.S.C. § 1983.
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Defendants act under color of state law when their actions, policies, practices, customs, and omissions create a real, imminent, and substantial threat that Plaintiffs Kennedy and Tillery will be arrested and jailed in violation of their due process and equal protection rights, and their acts and omissions can be fairly attributed to the City.
CLAIM THREE FOR DECLARATORY AND INJUNCTIVE RELmF
Unconstitutional Seizure in violation of the Fourth Amenchnent to the U.S. Constitution, and 42 U.S.C. § 1983 Against Defendants Biloxi and Chief Miller 212. Plaintiffs incorporate by reference the allegations in paragraphs 13 to 156. 213. This claim is brought on behalf of Plaintiff Kennedy, Plaintiff Tillery, and the members of the proposed Main Class. 214. The Fourth Amendment prohibits unreasonable seizures, including arrest and jailing without probable cause or legal authority. 215. The arrest and jailing of Plaintiff Kennedy from July 30,2014 to August 4, 2014 was an unreasonable seizure. It was carried out pursuant to arrest watTants based on nonpayment of fines and court costs, which were unsupported by probable cause that Plaintiff Kennedy had committed an offense or probation violation. Plaintiff Kennedy was not arrested and jailed following a probation revocation hearing at which she was afforded notice or an opportunity to be heard before being deprived of her liberty. 216. Plaintiff Tillery's numerous arrests andjailings in 2014 were also unreasonable seizures because they were carried out pursuant to capias warrants based on
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his nonpayment of fmes, fees, court costs, or restitution, which were unsupported by probable cause that he had committed an offense or probation violation.
217. The arrests that led to the incarceration of Plaintiff Kennedy and Plaintiff Tillery were arrests for which probable cause was required.
218. The City's policies, practices, and customs directly and proximately caused the violations of Plaintiff Kennedy's and PlaintiffTillery's right to freedom from unreasonable seizures. The City has acquiesced to the well-settled, longstanding, and widespread arrest, jailing, and prolonged incarceration of indigent debtors pursuant to warrants, including capias pro finem and capias watTants, that are based on debtors' nonpayment of debts and are unsupported by probable cause that the debtor has committed a crhne or probation violation. The AtTest and Jailing Policy and the Prolonged Incarceration Policy have therefore become policy, practice, and custom with the force of law, and reflect deliberate indifference to debtors' Fourth Amendment right to protection :frotn unreasonable seizure.
219. Defendant Miller also directly and proxhnately caused the violation of Plaintiff Kennedy and Plaintiff Tillery's right to freedom from unreasonable seizure. The City delegated to Defendant Miller final policymaking authority to carry out arrests and detentions. Defendant Miller knew, or should have known, of the City's longstanding policy, practice, and custom of arresting, jailing, and prolonging the incarceration of debtors pursuant to failure-to-pay warrants that are unsupported by probable cause. Defendant Miller also knew, or should have known, that police officers under his cotnmand execute these warrants by arresting and jailing debtors unless they can pay in
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cash the full amount of their debt. Defendant Miller failed to train and to supervise Biloxi police officers under his command to ensure that they execute failure-to-pay arrest warrants in compliance with debtors' clearly established right to freedom from unreasonable seizure. His actions and inactions were deliberately indifferent to Plaintiff Kennedy and Plaintiff Tillery's clearly established constitutional rights.
220. Defendants Biloxi and Miller's policies, practices, customs, acts, and omissions place Plaintiffs KelUledy and Tillery at continuing and foreseeable risk of being arrested and jailed in the Harrison County Adult Detention Center pursuant to warrants lacking legal authority or probable cause. Plaintiffs Kennedy and Tillery seek prospective declaratory and injunctive relief because they have no plain, adequate, or complete remedy at law to prevent future injury caused by confinement in jail in violation of their constitutional rights.
CLAIM FOUR FOR DAMAGES ON BEHALF OF NAMED PLAINTIFFS Confmement in Jail Without Predeprivation Ability-to-Pay Hearing in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, and 42 U.S.C. § 1983
Against Defendants Biloxi, Chief Miller, and JCS
221. Plaintiffs incorporate by reference the allegations in paragraphs 13 to I 56. 222. The Due Process and Equal Protection Clauses of the Fourteenth Amendment prohibit the incarceration of debtors for failure to pay fines without a predeprivationjudicial inquiry into, and factual fmdings on, the willfulness of their
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failure to pay, the adequacy of their efforts to acquire resources, and the adequacy of alternatives to incarceration, such as a reduction or waiver of the amount to be paid, an extension of time to pay, or community service.
223. Plaintiffs Kennedy, Anderson, and Tillery suffered violations of this clearly established right when Biloxi police officers arrested and ilmnediately jailed them in the Harrison County Adult Detention Center, unless they could pay in cash the entire amount of their debts to Biloxi, without any kind of predeprivation hearing.
224. Plaintiff Tillery also suffered a violation of his clearly established right to a predeprivation ability-to-pay hearing when the City of Biloxi prolonged his detention on two separate occasions in 2014-from April 11 to April 15, and September 3 to September 11-by keeping him jailed pursuant to newly issued failure-to-pay warrants and without any predeprivation hearing.
225. Plaintiff Tillery also suffered violations of his clearly established right to a predeprivation ability-to-pay hearing when he was jailed for eighteen days following an Apri115, 2014 hearing, and sixteen days following a July 3, 2014 hearing. These hearings lasted only several minutes. Although they concerned failure-to-pay charges, neither hearing afforded any judicial inquiry into, or findings on, Mr. Tillery's ability to pay or efforts to secure resources, or the adequacy of alternatives to incarceration.
226. For all relevant purposes, all individuals processed for commitment to jail for unpaid fines, costs, fees, and/or restitution owed to Biloxi are similarly situated with respect to their right to due process of law. There exists no legitimate governmental reason to jail individuals who are financially unable to pay in cash the full amount of
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outstanding monetary penalties for traffic or misdemeanor offenses, while permitting individuals who have the financial means to pay such fines and costs to avoid being jailed for the same offenses.
227. The City of Biloxi, Police Chief Miller, and JCS directly and proximately caused the violation of Plaintiffs' right to a predeprivation ability-to-pay hearing by developing and maintaining policies, practices, and customs that demonstrated deliberate indifference to this right and the liberty interests of indigent people who owe fines, fees, court costs, or restitution to the Biloxi Municipal Court. These policies, practices, and customs include: (1) the widespread and routine request by JCS etnployees that Biloxi Municipal Court judges issue failure-to-pay warrants against debtors who have not paid in the time or manner required by the Court; (2) Biloxi Municipal Court judges' widespread and routine issuance of failure-to-pay warrants, including capias pro fmem and capias warrants, in response to JCS employees' request, or upon other notification that a debtor has been unable to pay; (3) Biloxi police officers' widespread and routine execution of these warrants to arrest and jail debtors following traffic and pedestrian stops and visits to debtors' homes, if debtors cannot pay their debts in cash and in full at jail; (4) the routine issuance of warrants charging indigent debtors with failure to pay fines when the Biloxi Municipal Court discovers that they are already incarcerated on unrelated charges in order to prolong their detention; and (5) the execution of such warrants to purport to shift the basis of a jailed debtors' incarceration to the failure-to-pay warrant.
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228. JCS probation officers willfully participated in a conspiracy with Biloxi officials, including the Mayor, City Council, Biloxi Municipal Court judges, and Biloxi police, to generate municipal revenue and payments toward JCS service fees. In furtherance of this conspiracy, JCS probation officers threatened poor probationers with arrest and jail and petitioned the Biloxi Municipal Court for arrest warrants for probationers w.ho could not pay in the time or manner required by the Court.
229. Through policy, practice, and custom, the City of Biloxi, Police Chief Miller, and JCS persisted in the arrest, immediate jailing, and prolonged incarceration of debtors despite their awareness that such practices violated debtors' right to a predeprivation ability-to-pay hearing and that the violation ofthis right has become longstanding and pervasive.
230. Through policy, practice, and custom, the City of Biloxi, Police Chief Miller, and JCS acted with actual malice and reckless indifference to Plaintiffs' clearly established right to a meaningful ability-to-pay hearing prior to being jailed for failure to pay fines, court costs, State assessments, and JCS fees.
231. Defendants Biloxi, Miller and JCS's actions in violating Plaintiffs' rights also constituted a violation of 42 U.S.C. § 1983. Defendants were acting under color of law when their actions, policies, practices, and customs caused Plaintiffs' incarceration, and their acts and omissions are fairly attributable to the City.
232. Plaintiffs seek damages from Defendants Biloxi, Chief Miller, in his official capacity, and JCS for the humiliation, anxiety, stress, emotional distress, hunger, sleeplessness, disturbed sleep, and other irreparable injury they suffered as a result of
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being handcuffed and taken to jail, forcibly separated from family and loved ones, and detained for periods of time ranging from two to twenty-two days in unsanitary and cold jail conditions without enough food to eat.
CLAIM FIVE FOR DAMAGES ON BEHALF OF NAMED PLAINTIFFS
Failure to Afford Counsel in violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, and 42 U.S.C. § 1983 Against Defendants Biloxi, Miller, and JCS
233. Plaintiffs incorporate by reference the allegations in paragraphs 13 to 156. 234. The Fourteenth Amendment affords all people facing imprisonment on a failure-to-pay charge a due process right to request court-appointed counsel in hearings concerning that charge, whether they are in civil contempt or probation revocation hearings. The Fourteenth Amendment also affords indigent debtors a due process right to court-appointed counsel at no cost in any civil contempt or probation revocation proceedings concerning failure-to-pay charges. 235. Plaintiffs Keimedy, Anderson, and Tillery suffered a violation of their due process right to counsel when Biloxi police officers arrested and immediately jailed them or subjected them to prolonged incarceration without informing them of their right to request court-appointed counsel, and without affording them court-appointed counsel to defend against possible incarceration for nonpaytnent of fines, fees, court costs, or
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restitution, despite prima facie evidence of their indigence, including evidence of homelessness.
236. Each plaintiff further suffered a violation of this right when the Biloxi Municipal Court held post-jail civil contempt proceedings concerning the failure-to-pay charges against them without informing them of their right to request counsel or affording them, as indigent people, court-appointed counsel to assist in their defense. None of the plaintiffs knowingly, voluntarily, or intelligently waived their rights to counsel either orally or in writing. Nor did any Biloxi Municipal Court judge conduct a colloquy to determine whether any plaintiff lmowingly, intelligently, and voluntarily waived the right to counsel.
237. Biloxi, Chief Miller, and JCS directly and proximately caused the violation of Plaintiffs' due process right to counsel by developing and maintaining policies, practices, and customs that demonstrated deliberate indifference to this right. These policies, practices, and customs include: (1) the widespread and routine arrest, jailing, and prolonged incarceration of indigent people by Biloxi police pursuant to failure-to-pay warrants without predeprivation notice of the right to request counsel to help defend against incarceration for failure to pay, and without actual appointment of counsel for indigent debtors; (2) failure to train, direct, guide, and supervise JCS employees and Biloxi police on debtors' right to request court-appointed counsel and indigent debtors' right to court-appointed counsel in proceedings concerning failure-to-pay charges.
238. JCS probation officers willfully participated in a conspiracy with Biloxi officials, including the Mayor, City Council, Biloxi Municipal Court judges, and Biloxi
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police, to generate municipal revenue and paytnents toward JCS service fees. In furtherance of this conspiracy, JCS probation officers: (1) threatened poor probationers with arrest and jail, (2) petitioned the Biloxi Municipal Court for arrest warrants for probationers who could not pay in the time or manner required, and (3) failed to info1m poor probationers of debtors' right to request the assistance of counsel when charged with failure to pay and indigent debtors' right to the appointment of counsel when facing such charges.
239. Through policy, practice, and custom, Biloxi, Chief Miller, and JCS directly and proximately caused the violation of Plaintiffs' right to counsel through their acquiescence to the routine and customary failure to infonn debtors, including the indigent, of their rights concerning counsel, and to the routine and customary failure of BMC judges, including Judges Hemy, Tisdale and Steele, to ensure that any written or oral waiver of the right to counsel was knowing, voluntary, and intelligent. Defendants were aware that these practices, actions, customs, and failures had become so longstanding and pervasive as to constitute the standard operating procedure of Biloxi and the Biloxi Municipal Court.
240. Through policy, practice, and custom, Biloxi, Police Chief Miller, and JCS acted with actual malice and reckless indifference to Plaintiffs' clearly established right to counsel as indigent people charged with conte1npt of court for failure to pay fmes and court costs.
241. Defendants' actions in violating Plaintiffs' due process right to counsel also constitute a violation of 42 U.S.C. § 1983. Defendants were acting under color of law
68

Case 1:15-cv-00348-HSO-JCG Document 1 Filed 10/21/15 Page 69 of 73
when their policies, practices, and customs violated Plaintiffs' right to counsel, and their acts and omissions can be fairly attributed to Biloxi.
242. Plaintiffs seek damages from Defendants Biloxi, Chief Miller (in his official capacity), and JCS for the humiliation, anxiety, stress, emotional distress, hunger, sleeplessness, disturbed sleep, and other irreparable injury they suffered for being jailed, forcibly separated from their family and loved ones, and detained in unsanitary and cold jail conditions without enough food to eat for periods ranging from two to twenty-two days.
CLAIM SIX FOR DAMAGES ON BEHALF OF NAMED PLAINTIFFS
Unconstitutional Seizure in violation of the Fourth Amendment to the U.S. Constitution, and 42 U.S.C. § 1983
Against Defendants Biloxi, Miller and JCS 243. Plaintiffs incorporate by reference the allegations in paragraphs 13 to 156. 244. Without probable cause or legal authority, Defendants caused poor debtors to be arrested, jailed, and subject to prolonged detention in the Harrison County Adult Detention Center when they were unable to make immediate cash payments of the entire amount of the debts owed. 245. Defendants Biloxi, Miller, and JCS had no particularized and objective basis to believe that any of the Plaintiffs they had seized had committed any criminal offense or probation violation.
69

Case 1:15-cv-00348-HSO-JCG Document 1 Filed 10/21/15 Page 70 of 73
246. :fhe detentions of Plaintiffs were unreasonable seizures under the Fourth Amendment.
247. The seizures of Plaintiffs were excessive and unreasonable in their duration and scope.
248. The seizures of Plaintiffs constituted arrests for which probable cause was required. The arrest of the Plaintiffs was unreasonable.
249. It was clearly established before the dates of Plaintiffs' detentions that seizing and detaining Plaintiffs simply because they did not have money would violate the Plaintiffs' clearly established rights. Defendants Biloxi, Miller, and JCS had fair warning that their conduct would violate the Constitution and no reasonable officer could have believed that the seizures or incarceration of Plaintiffs was reasonable.
250. Defendants Biloxi, Miller, and JCS directly and proximately caused the violation of Plaintiffs' right to freedom from unreasonable seizure by developing and maintaining policies, practices, and customs that demonstrated deliberate indifference to this right. These policies, practices, and customs include: (1) the widespread and routine arrest and jailing of indigent people by Biloxi police pursuant to capias pro finem or capias warrants charging them with failure to pay, without probable cause that they had committed an offense or a probation violation; and (2) failure to train, direct, guide, and supervise JCS employees and Biloxi police on debtors' right to freedom frotn unreasonable seizures.
251. JCS probation officers willfully participated in a conspiracy with Biloxi officials, including the Mayor, City Council, Biloxi Municipal Court judges, and Biloxi
70

Case 1:15-cv-00348-HSO-JCG Document 1 Filed 10/21/15 Page 71 of 73
police, to elicit payments toward debts owed to Biloxi and JCS monthly fees, by seeking
and securing warrants to arrest debtors because of their inability to pay, in violation of
debtors' Fourth Amendment rights.
252. Plaintiffs seek damages from the City of Biloxi, Chief Miller (in his official
capacity), and JCS for the humiliation, anxiety, stress, emotional distress, hunger,
sleeplessness, disturbed sleep, and other irreparable injury they suffered for being jailed,
forcibly separated from their family and loved ones, detained in unsanitary and cold jail conditions without enough food to eat for periods ranging from two to twenty-two days.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court:
• Assume jurisdiction over this action;
• Determine by Order pursuant to Rule 23 of the Federal Rules of Civil Procedure that this action be maintained as a class action;
• Award Plaintiffs Kennedy and Tillery, on behalf of themselves and the Main Class, the following relief:
A declaration that the City of Biloxi and Chief John Miller violate Plaintiff Kennedy and Plaintiff Tillery's Fourteenth Amendment due process and equal protection rights by ordering or effecting their arrest and imprisonment, or prolonging their incarceration, for nonpayment of fines, fees, court costs, or restitution without providing a predeprivation judicial inquiry into, and fmdings of fact on, ability to pay, efforts to secure resources, and the adequacy of available alternatives to incarceration.
A declaration that the City of Biloxi, Judge Steele, and Chief Miller violate Plaintiff Kennedy and Plaintiff Tillery's Fourteenth Amendment due process rights by ordering or effecting their arrest and imprisonment, or prolonging their incarceration, for nonpaytnent of
71

Case 1:15-cv-00348-HSO-JCG Document 1 Filed 10/21/15 Page 72 of 73
fmes, fees, court costs, or restitution without informing them of their right to request the appointment of counsel to represent them against failure-to-pay charges and without ensuring that any waiver of this right is knowing, voluntary, and intelligent.
A declaration that the City of Biloxi and Chief Miller violate Plaintiff Kennedy and Tillery's Fourth Amendment right by ordering or effecting their arrest and imprisonment, or prolonging their incarceration, pursuant to warrants based on nonpayment of fines, fees, court costs, or restitution and without probable cause that they have committed an offense or probation violation.
Award Plaintiff Kennedy and Plaintiff Tillery, on behalf of themselves and the Main Class, an order and judgment permanently enjoining the City of Biloxi and Chief John Miller from enforcing the abovedescribed unconstitutional policies and practices.
• Award Plaintiffs Kennedy and Tillery, on behalf of themselves and the Indigent Class, the following relief:
A declaration that the City of Biloxi, Judge Steele, and Chief Miller violate Plaintiff Kennedy and Plaintiff Tillery's Fourteenth Amendment due process right by ordering or effecting their arrest and imprisonment, or prolonging their incarceration, for nonpayment of fines, fees, court costs, or restitution without ensuring the appointment of counsel to represent them against failure-to-pay charges and that any waiver of this right is knowing, voluntary, and intelligent.
Award Plaintiff Kennedy and PlaintiffTillery, on behalf of themselves and the Indigent Class, an order and judgment permanently enjoining the City of Biloxi and Police Chief Miller from enforcing the abovedescribed unconstitutional policies and practices.
• Award the named Plaintiffs compensatory damages in an amount to be determined at trial, including damages for deprivation of liberty, mental anguish, emotional distress, hunger, sleeplessness, disturbed sleep, and loss of income;
• Award the named Plaintiffs punitive damages in an amount to be determined by trial, and to the extent permitted by law;
• Award Plaintiffs attorneys' fees, costs, and expenses of all litigation, pursuant to 42 U.S.C. § 1988;
72

Case 1:15-cv-00348-HSO-JCG Document 1 Filed 10/21/15 Page 73 of 73

• Afford any such other and further relief as the Court may deem just and proper.

DATED this October 20, 2015.

Respectfully submitted by,
N6t~H~
DENNIS D. PARKER (subject to pro hac admission) American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, New York 10004 Tel. (212) 519-7876 Fax (212) 549-2651 nchoudhury@aclu.org dparker@aclu.org
~(Miss: BarNo. 99607)
American Civil Liberties Union Foundation of Mississippi
233 East Capitol Street Jackson, Mississippi 39201 Tel.: (601) 354-3408 Fax: (60 1) 355-6465 cirvin@aclu-ms.org
PIETER TEEUWISSEN (Miss. Bar No. 8777) ANTHONY SIMON (Miss. Bar No. 10009) Simon & Teeuwissen PLLC 621 East Northside Drive Jackson, Mississippi 39206 Tel.: (601) 366-2292 Fax: (601) 362-8444 pteeuwissen@bellsouth.net anthonysimonpllc@bellsouth.net

73

 
 Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 1 of 10

IN THE UNITES STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

QUMOTRIA KENNEDY; RICHARD TILLERY; On Behalf of Themselves and All Others Similarly Situated; and JOSEPH ANDERSON

PLAINTIFFS

VERSUS

Civil Action No. 1:15cv00348 HSO-JCG

THE CITY OF BILOXI, MISSISSIPPI;

JOHN MILLER, in his capacity as Chief of

Police of the City of Biloxi, Mississippi;

JUDGE JAMES STEELE; in his individual

capacity; And JUDICIAL CORRECTION

SERVICES, INCORPORATED

DEFENDANTS

______________________________________________________________________________

STATUS REPORT ON IMPLEMENTATION OF THE STIPULATED SETTLEMENT AGREEMENT AND RETENTION OF JURISDICTION
______________________________________________________________________________

COMES NOW, the City of Biloxi, by and through the undersigned counsel of record, and

enters this Status Report on Implementation of the Stipulated Settlement Agreement and Retention

of Jurisdiction, and would show unto this honorable Court the following:

Pursuant to the Stipulated Settlement Agreement (the “Agreement”) entered in the abovereferenced matter, the City of Biloxi is required to provide a status report to establish that it has substantially complied with all requirements detailed in said Agreement. The following is account of the City of Biloxi’s progress, organized by date and corresponding paragraph numbers of the Settlement Agreement:

March 15, 2016

Paragraph 3: Cease issuing and enforcing any type of warrant that permits law enforcement officers to arrest and jail a person for nonpayment of a fine, fee, state assessment, court cost, or

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 2 of 10
restitution. • The Biloxi Municipal Court ceased issuing all such warrants as of October 22, 2015, the date it was served with the instant matter. From that date, through the current, no one has been jailed by the City of Biloxi for failure to pay any LFO.
Paragraph 3: All provisions of the Bench Card and the Biloxi Municipal Court Procedures for LFO Collection and Community Service and the forms attached thereto take effect for all new matters.
• The Biloxi Municipal Court implemented the provisions of the Bench Card and all procedures established by the Agreement as of March 15, 2016. Currently, the City of Biloxi and the ACLU are working together to establish further refinements and simplification of the procedures.
April 1, 2016 Paragraph 8: Identify and release all persons in the Harrison County Adult Detention
Center on failure-to-pay warrants. • Biloxi Municipal Court Judge James Steele corresponded with ACLU Senior Attorney, Nusrat Choudhury, on April 1, 2016 to convey that he had personally confirmed that there were no persons in the Harrison County Adult Detention Center on failure-to-pay warrants issued by the City of Biloxi or on contempt charges.

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 3 of 10
May 15, 2016 Paragraph 10: Publish and disseminate the Biloxi Municipal Court Procedures for Legal
Financial Obligations and Community Service and the Bench Card and prominently display these documents in the courtroom, Harrison County Adult Detention Center and on the City of Biloxi website.
• The materials were disseminated to all required personnel prior to May 15, 2016. All outside contractors were terminated. The City of Biloxi retained receipts from all personnel to whom the procedures were defined and can provide copies, if necessary. Photographs of the displays and printer’s proofs of posters were delivered to the ACLU on June 24, 2016.
June 1, 2016 Paragraph 2: All private probation companies must be terminated.
• In addition to terminating all probation companies, the City of Biloxi terminated all private collection companies as well. Copies of the termination letters were delivered to the ACLU on June 24, 2016.
June 15, 2016 Paragraph 4: Suspend fines, fees, court costs, and restitution for all cases that remain open
solely because fines, fees, court costs, or restitution imposed before March 15, 2014.
• A copy of the Order Suspending Fines, which included the names and case numbers, was delivered to the ACLU on June 24, 2016.

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 4 of 10
Paragraph 4: Recall and quash all failure-to-pay and failure-to-appear warrants issued before March 15, 2014 and waive any post-sentencing fees and court costs associated with these warrants.
• A copy of the Order Recalling Capiases was delivered to the ACLU on June 24, 2016.
Paragraph 7: Issue an Order Setting Compliance Hearing to each person who is the subject of a recalled/quashed warrant issued between March 15, 2014 and March 15, 2016.
• Copies of all such orders were delivered to the ACLU on June 24, 2016.
Paragraph 7: Post Notice of Reset in English, Vietnamese and Spanish (a) on the window and front door of the Biloxi Municipal Court on 170 Porter Avenue in Biloxi; (b) in the Biloxi Municipal Court’s courtroom in the Harrison County Adult Detention Center; (c) in the Biloxi Police Station at 170 Porter Avenue in Biloxi; (d) on the City of Biloxi website, including on the following page: http://www.biloxi.ms.us/departments/municipal-court/; and (e) in the offices and other spaces used by service providers working with homeless and/or indigent people in Biloxi, as determined by the City, which shall make reasonable efforts to identify such providers.
• All required notices were posted on the specified City of Biloxi property. In addition, the Notices of Reset were posted at the Salvation Army, Back Bay Mission, Gulf Coast Rescue Mission, St. Vincent de Paul Pharmacy, Coastal Family Health, El Pueblo, Moore Community House and Loaves and Fishes, all in the City of Biloxi.
Paragraph 12(a): Provide training to all Biloxi Municipal Court Judges.

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 5 of 10
• By agreement with the ACLU, the City of Biloxi provided such training with the assistance of Leslie Lee, Director of the Mississippi Office of the State Public Defender on June 13, 2016. All training materials have been supplied to the ACLU.
Paragraph 12(b): Provide training to all Biloxi Municipal Court staff. • By agreement with the ACLU, the City of Biloxi provided such training with on June 14, 2016. All training materials have been supplied to the ACLU.
Paragraph 12(c): Provide training to all public defenders and defense counsel appointed to represent indigent defendants in the Biloxi Municipal Court.
• By agreement with the ACLU, the City of Biloxi provided such training with the assistance of Leslie Lee, Director of the Mississippi Office of the State Public Defender on June 13, 2016. All training materials have been supplied to the ACLU.
Paragraph 12(d): Provide training to all City of Biloxi Prosecutors. • By agreement with the ACLU, the City of Biloxi provided such training with on June 14, 2016. All training materials have been supplied to the ACLU.
Paragraph 12(e): Provide training to all Biloxi Police Department staff. • By agreement with the ACLU, the City of Biloxi provided such training with from June 6, 2016 through June 11, 2016. A “make-up” day was held on June 22, 2016 for any officers that were unable to attend. All training materials have been supplied to the ACLU.

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 6 of 10
Paragraph 12(f): Provide training to all employees of private companies, if any, involved in the supervision of Biloxi Municipal Court probationers and/or the collection of legal financial obligations imposed by the Biloxi Municipal Court.
• All such companies were terminated prior to June 15, 2016. Paragraph 13: Establish procedures for the supervision of counsel appointed to represent indigent people charged with failure to pay LFOs.
• The rough outline of such procedures were discussed during the training session on June 13, 2016. A more formal, written set of procedures has been developed (with the assistance of the ACLU) and will soon be implemented. The City of Biloxi shall provide additional training as soon as reasonably possible once these procedures are finalized.
June 30, 2016 Paragraph 6: Recall and quash all failure-to-pay and failure-to-appear warrants issued
between March 15, 2014 and March 15, 2016.
• This task was accomplished by virtue of the Order Recalling Capiases referenced above.
July 15, 2016 Paragraph 14(b): Provide Plaintiffs’ counsel the case numbers for Biloxi Municipal Court
cases in which an individual is placed in jail for nonpayment of an LFO or nonperformance of community service following March 15, 2016.

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 7 of 10
• No one has been jailed by the City of Biloxi for nonpayment of an LFO or nonperformance of community service after October 22, 2015.
Paragraph 14(b): Provide Plaintiffs’ counsel data concerning cases involving the appointment of counsel to represent indigent people in the imposition and/or collection of LFOs: (i) number of cases to which each court appointed attorney is appointed; (ii) amount of time spent on each case; and (iii) number of jail visits, motion filings, trials, and investigation requests handled by the attorney for each case.
• To the extent that such data existed, it was provided to the ACLU on July 16, 2016 (via email) and again in person on August 24, 2016.
July 30, 2016
Paragraph 13: Start collecting data concerning cases involving the appointment of counsel to represent indigent people in the imposition and/or collection of LFOs, including (a) number of cases to which each court-appointed attorney is appointed; (b) amount of time spent on each case (c) number of jail visits, motion filings, trials, and investigation requests handled by the attorney for each case.
• The City of Biloxi has started collecting such data. However, additional training will be conducted to ensure uniformity and proper reporting by the public defenders. As mentioned above, the City of Biloxi has developed a more comprehensive set of procedures, and this matter will be further addressed in additional training to be provided as soon as possible.

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 8 of 10
THIS, the 13th day of September, 2016.
Respectfully submitted,
s/Gerald Blessey GERALD BLESSEY
Gerald Blessey, MSB #3591 City Attorney for the City of Biloxi, Mississippi 140 Lameuse Street (39530) Post Office Box 429 Biloxi, Mississippi 39533-0429 Telephone: (228) 806-4755 Facsimile: (228) 435-6129 blesseylaw@me.com

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 9 of 10
CERTIFICATE OF SERVICE
I, Gerald Blessey, City Attorney for the City of Biloxi, hereby certify that on this day I electronically filed the foregoing Status Report on Implementation of the Stipulated Settlement Agreement and Retention of Jurisdiction with the Clerk of the Court using the Court’s electronic filing system, which sent notification of such filing to the following:
Nusrat J. Choudhury Dennis Parker
American Civil Liberties Union Foundation Racial Justice Program
125 Broad Street, 18th Floor New York, NY 10004 Phone: (212) 519-7876 Fax: (212) 549-2651 nchoudhury@aclu.org dparker@aclu.org Attorneys for Plaintiffs
Charles B. Irvin (Miss. Bar No. 99607) American Civil Liberties Union Foundation of Mississippi
233 East Capitol Street Jackson, MS 39201
Phone: (601) 354-3408 Fax: (601) 355-6465 cirvin@aclu-ms.org Attorney for Plaintiffs
Pieter Teeuwissen (Miss. Bar No. 8777) Anthony Simon (Miss Bar No. 10009)
Simon & Teeuwissen PLLC 621 East Northside Drive Jackson, MS 39206 Phone: (601) 362-8400 Fax: (601) 362-8444 pteeuwissen@bellsouth.net
anthonysimonpllc@bellsouth.net Attorneys for Plaintiffs

Case 1:15-cv-00348-HSO-JCG Document 30 Filed 09/13/16 Page 10 of 10
Tere Steel (Miss Bar No. 3591) Page, Mannino, Peresich & McDermott, P.L.L.C.
759 Vieux Marche' Mall Biloxi, MS 39530
Phone: (228) 374-2100 Fax: (228) 432-5539 tere.steel@pmp.org Attorney for Defendants City of Biloxi, Mississippi and John Miller
Corban Gunn (Miss. Bar No. 101752) Corban Gunn, PLLC
175 Lameuse Street, Suite C Biloxi, MS 39530
Phone: (228) 284-6805 Fax: (228) 284-6806 coban@corbangunn.com Attorney for Defendant James Steele
THIS, the 13th day of September, 2016.
s/Gerald Blessey GERALD BLESSEY

 
 Case 1:15-cv-00348-HSO-JCG Document 28 Filed 03/07/16 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION

QUMOTRIA KENNEDY, et al.

PLAINTIFFS

v.

Civil No. 1:15cv348-HSO-JCG

THE CITY OF BILOXI, MISSISSIPPI, et al.

DEFENDANTS

FINAL JUDGMENT OF DISMISSAL

The parties have announced to the Court a settlement of this case. The

Court, being advised that the parties have an informed understanding of their

rights and the consequences of settlement, desires that this matter be finally closed

on its docket. Defendant Judicial Correction Services, Inc. settled under its own

specific terms and the parties have agreed and stated their desire that the Court

expressly retain jurisdiction over this matter to enforce the terms and conditions of

their settlement. The remaining Defendants, the City of Biloxi, Mississippi, John

Miller, and Judge James Steele also settled under their own separate terms and

conditions and the parties have agreed and stated their desire that the Court

expressly retain jurisdiction over this matter to enforce the terms and conditions of

their settlement.

IT IS, THEREFORE, ORDERED AND ADJUDGED that, the above

captioned civil action is dismissed with prejudice as to all parties, and that the

Court hereby specifically retains jurisdiction to enforce the settlements.

SO ORDERED this the 7th day of March, 2016.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

 
 SUPPLEMENT TO STIPULATED SETTLEMENT AGREEMENT AND RETENTION OF JURISDICTION
THIS, Supplement to the Stipulated Settlement Agreement and Retention of Jurisdiction (hereinafter “Supplement”) is made by and among Counsel for the City of Biloxi (“Biloxi” or “the City”) and John Miller (“Miller”); Counsel for Judge James Steele (“Steele”); and Counsel for Qumotria Kennedy (“Kennedy”), Richard Tillery (“Tillery”), and Joseph Anderson (“Anderson”), (hereinafter referred to individually and collectively as “Plaintiffs”). Biloxi, Miller, Steele, Kennedy, Tillery, and Anderson are from time to time referred to hereinafter individually as a “Party” and collectively as the “Parties.”
WHEREAS, the Parties entered into a Stipulated Settlement Agreement and Retention of Jurisdiction (the “Agreement”), dated the 15th day of March, 2016, to settle the cause of action styled Kennedy, et al v. City of Biloxi, et al; in the United States District Court for the Southern District of Mississippi; Civil Action No. 1:15-cv-00348-HSO-JCG;
WHEREAS, paragraph 31 of the Agreement requires the Parties “to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the basic terms and intent of [the] Agreement”;
WHEREAS, Counsel for Biloxi and Miller provided several status reports on and after August 18, 2016 concerning implementation of the Agreement;
WHEREAS, Counsel for the Parties have discussed measures to improve implementation of the Agreement through one in-person meeting, a telephonic meeting, and numerous correspondence sent my mail and email since August 18, 2016;
NOW, THEREFORE, Counsel, acting on behalf of the Parties, agree to the following in order to give full force and effect to the basic terms and intent of the Agreement:
1

1. Recitals. The recitals set forth above are incorporated herein by reference. The use of any capitalized term not otherwise defined herein shall have the meaning ascribed thereto in the Agreement.
2. Compliance Hearings. a. The Order Setting Compliance Hearing, which is attached as Exhibit A
(Form One) to the Agreement, is hereby amended and replaced by the form labeled Order Setting Compliance Hearing attached hereto as Exhibit 1 (Form One).
b. In order to give full force and effect to Paragraph A(1)(b) of the Agreement, it is agreed that the Biloxi Municipal Court will provide defendants with at least twenty-one (21) days-notice of any Compliance Hearing date.
3. Advisement of Rights. The Biloxi Municipal Court Advisement of Rights and Obligations for Legal Financial Obligations and Community Service, which is attached as Exhibit A (Form Two) to the Agreement, is hereby replaced by the Biloxi Municipal Court Advisement on Payments and Community Service, attached hereto as Exhibit 1 (Form Two).
3. Notice of Change of Address. The Notice of Change of Address form, which is attached as Exhibit A (Form Two A) to the Agreement, is hereby replaced by the form labeled Notice of Change of Address attached hereto as Exhibit 1 (Form Three).
4. Affidavit of Indigence. The Affidavit of Indigence, which is attached as Exhibit A (Form Three) to the Agreement, is hereby replaced by the form labeled Affidavit of Indigence, which is attached hereto as Exhibit 1 (Form Four).
5. LFO Inability to Pay Guide. The LFO Inability to Pay Guide, which is attached as Exhibit A (Form Four) to the Agreement is replaced by the form labeled Affidavit of Indigence, which is attached hereto as Exhibit 1 (Form Four).
2

6. Bench Card. The Bench Card, which is attached as Exhibit B to the Agreement, is hereby revised to incorporate changes to the documents identified above and the revisions addressed in this Supplement. The amended Bench Card is attached hereto as Exhibit 2.
a. Counsel for the Parties have discussed current technological impediments to the Biloxi Municipal Court’s post-sentencing issuance of a written statement to each defendant that itemizes the total amount of fines, fees, court costs, assessments and restitution owed. Counsel for the Parties shall continue to discuss improvements that would permit the Court to provide each defendant with such a statement after sentencing, and to provide such information on any subsequent Orders Setting a Compliance Hearing in the case.
7. Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service. The Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service, which are attached as Exhibit A to the Agreement, are hereby revised to incorporate the improvements addressed in this Supplement. The revised Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service are attached hereto as Exhibit 1.
a. The revised Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service include a form concerning the Compliance Hearing Ability to Pay Inquiry and Determinations, which is attached hereto as Exhibit 1 (Form Five).
8. Bonds. In order to give full force and effect to Paragraph 9 of the Agreement, it is agreed as follows:
Secured Money Bonds will not be used to detain persons arrested for any violation that may be prosecuted by Biloxi in its Municipal Court absent an examination by the Biloxi Municipal Court of the defendants’ substantial risk of non-appearance and ability to pay. People arrested will be released on a Recognizance Bond or an Unsecured Bond as soon as practicable after booking unless:
3

a. The Biloxi Municipal Court finds, based on information in the record and by a preponderance of the evidence, that the defendant has willfully failed to appear, or otherwise willfully violated one or more of the conditions of his or her Recognizance bond, without good cause, in which case the Court may revoke bond and detain the person until his or her case reaches disposition, or may release the individual subject to additional non-financial conditions; or
b. The Biloxi Municipal Court makes a finding, based upon information in the record, that secured money bail is the only pretrial release option that will adequately assure the defendant’s presence at trial, and makes a finding on the record that the defendant is able to pay.
9. Publication and Dissemination of Procedures. On or before November 1,
2016, Biloxi shall publish and disseminate the revised Biloxi Municipal Court Procedures on
Legal Financial Obligations and Community Service, including all revised forms attached
thereto, to all personnel of, or under the control of, the City of Biloxi involved in the imposition
and/or collection of LFOs imposed by the Biloxi Municipal Court, including permanent and
temporary Biloxi Municipal Court Judges, Biloxi Municipal Court staff, Biloxi public defenders
and other defense counsel appointed to represent indigent people in Biloxi Municipal Court
proceedings, Biloxi prosecutors, Biloxi Police Department staff, employees of private
companies, if any, involved in the supervision of Biloxi Municipal Court probationers, or in the
collection of legal financial obligations imposed by the Biloxi Municipal Court. This publication
and dissemination shall include prominent placement of the Advisement of Rights on Payments
and Community Service in the Biloxi Municipal Court located at 170 Porter Avenue in Biloxi,
Mississippi, in the Biloxi Municipal Court courtroom in the Harrison County Adult Detention
Center, and on the City of Biloxi website.
4

10. Changes to the City of Biloxi website. As of the date of this Agreement, Biloxi
shall remove the following language from its website,
http://www.biloxi.ms.us/departments/municipal-court/ Payment of Money and Community
Service:
Payment of fines, state assessments, fees, court costs, and restitution. If you plead guilty or are convicted of a misdemeanor, the Biloxi Municipal Court may impose fines, state assessments, fees, court costs, and/or restitution (“legal financial obligations” or “LFOs”). If you are found NOT GUILTY, the Court will NOT impose an LFO. You may pay the full amount of any LFO imposed upon you for a misdemeanor offense on the day of sentencing. If you are unable to pay in full on sentencing day, the Biloxi Municipal Court may place you on a Payment Plan administered by the Clerk of Court. The Court shall consider your ability to pay when setting the payment schedule.
The U.S. Constitution requires safeguards when collecting LFOs. No person shall be imprisoned for nonpayment of LFOs solely because they are unable to pay. A person may ONLY be jailed for nonpayment of a fine, fee, court cost, state assessment, or restitution following a court hearing where the Court considers the person’s ability to pay, efforts to secure resources, and alternatives to incarceration, and concludes, based on specific evidence, that the person willfully failed to pay, failed to make sufficient efforts to secure money to pay, or that no adequate alternatives to incarceration exist.
Your Rights. Any person who has not paid an LFO according to the terms of a Payment Plan has the right to a Compliance Hearing and the right to be represented by legal counsel for defense against possible incarceration for nonpayment of an LFO. If you are indigent, you also have a right to court-appointed counsel at no cost. The Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service seek to protect these rights and set forth the procedures the Court will follow.
Your Duty. It is your duty to keep the Biloxi Municipal Court informed of your mailing and residence address. As soon as reasonably possible after a change in your mailing and/or residence address, you should complete the Notice of Change of Address and deliver it to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530, by one of the following means:
5

(1) U.S. Mail, (2) hand delivery to the Biloxi Municipal Court

Administrator/Clerk’s office, or (3) email to

coacourt@biloxi.ms.us. You may access the Notice of Change of

Address

form

at

http://www.biloxi.ms.us/

ChangeOfAddressForm.pdf.

On or before November 1, 2016, Biloxi shall replace the aforementioned language on its website
with the following text:
Payment of Money and Community Service
The Biloxi Municipal Court may require you to pay money if you plead guilty or are convicted of an offense. If you are found NOT GUILTY, the Court will NOT require you to pay money.
The Court will consider your ability to pay when setting the amount of money you owe and any payment schedule. If you cannot afford to pay, the Court may require you to do work to help the community instead.
You may pay the full amount that you owe on sentencing day. If you are unable to pay in full, the Court may place you on a Payment Plan. The Court will consider your ability to pay when setting the payment schedule.
YOUR RIGHTS: If you receive a notice that you owe money to the Court or did not complete community service, you have the following legal rights:
You have the right to a court hearing before the court can jail you.
The court will NOT put you in jail if you are not able to pay.
You MUST appear in court. You could be jailed if you do not.
You have the right to have a lawyer help you at the hearing.
A lawyer can help you avoid jail. A lawyer can help you explain that you do not have the money to pay or could not complete community service.
You have the right to ask the Judge to appoint a lawyer to help you at the hearing.
You can ask the Judge to make you pay nothing for the lawyer.

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AT THE COURT HEARING: The Judge will decide whether you can pay. If you cannot pay, the Judge will decide whether you can pay less or nothing at all, whether you can pay later, and whether you can work to help the community instead of paying. If you were not able to complete community service, the Judge will decide whether to require fewer hours or provide another alternative. The Judge may decide that you did not pay even though you had the money. The Judge may decide that you did not work for the community even though you were able. Only then, may the Judge sentence you to jail.
YOUR DUTY: You MUST appear in court on the date set on the notice. FAILURE TO APPEAR may result in your arrest. You must keep the Court informed of your mailing and residence address.
As soon as reasonably possible after a change in address, you should complete the Notice of Change of Address and deliver it to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530, by one of the following means:
(1) U.S. Mail, (2) hand delivery to the Biloxi Municipal Court Administrator/Clerk’s office, or (3) email to coacourt@biloxi.ms.us. You may access the Notice of Change of Address form by clicking here. In the aforementioned text, the “here” shall be hyperlinked to the document attached hereto as Exhibit 1 (Form Three).
11. Ratification of Agreement; Counterparts. Except as modified by the provisions hereof, the Agreement shall remain in full force and effect, fully enforceable as provided therein. This Supplement may be executed in one or more counterparts, all of which
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shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by and delivered to each of the parties.
Signatures on following page
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
No person shall be imprisoned solely because she/he lacks the resources to pay a fine, state assessment, fee, court cost, or restitution (collectively, “legal financial obligation” or “LFO”), or because she/he is unable to perform any required community service.
A person alleged to have not paid an LFO has the right to an ability-to-pay hearing and the right to have legal counsel present for representation to defend against possible incarceration for failure to pay. An indigent person facing possible incarceration for LFO nonpayment has an affirmative right to representation by courtappointed counsel at no cost in LFO collection proceedings.
To protect these and other rights, all Biloxi and private company personnel, if any, involved in LFO collection and evaluation of performance of community service imposed by the Biloxi Municipal Court shall abide by the following policies and procedures.
I) FIRST APPEARANCE - APPOINTMENT OF COUNSEL
The Court may appoint counsel to represent an indigent defendant charged with a misdemeanor offense punishable by confinement. The Court shall determine indigence for purposes of appointing counsel by using the attached Affidavit of Indigence (Form Four) and by considering any other relevant factors.
When the Court determines that representation is required at the plea, trial, sentencing, or post-sentencing stage, it must appoint counsel to represent an indigent defendant, unless there is a knowing, voluntary, and intelligent waiver of the right.
II) SENTENCING
Counsel
A defendant is entitled to representation by counsel prior to the Court’s decision to impose a sentence of incarceration or probation for the collection of a fine, state assessment, fee, court cost, or restitution—absent a knowing, voluntary, and intelligent waiver of the right to counsel, as confirmed by an on-the-record colloquy with the Court. If the Court contemplates imposing incarceration or probation on an unrepresented defendant, or wishes to preserve its right to impose a jail sentence in the future, on an unrepresented defendant, the Court must conduct an indigence determination by using the attached Affidavit of Indigence (Form Four), and by considering any other relevant factors, to evaluate whether the defendant is entitled to court-appointed counsel at no cost.
It is a best practice for the Court to assign a public defender or court staff to help the defendant complete the Affidavit of Indigence.
If the Court determines that the defendant is not indigent, it may provide the defendant a continuance to permit retention of counsel. If the defendant seeks to waive the right to counsel at sentencing, the Court must conduct a colloquy to determine that any waiver is knowing, voluntary, and intelligent.
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
Imposition of Sentence
The Court shall assess ability to pay at sentencing when setting the amount of any fine, fee, court cost, or restitution. The Court’s decision to impose jail time shall not be influenced by any finding that the defendant lacks the resources to pay a fine, state assessment, or restitution.
When the Court imposes a sentence that includes an LFO, the Court shall:
(1) determine whether the defendant can pay in full that day, or needs additional time;
(2) set the terms of a Payment Plan by which LFO payments shall be made to the Biloxi Municipal Court Clerk, if the defendant cannot pay in full on sentencing day;
(3) set forth the sentence, including any Payment Plan terms, in a written order indicating the final date by which LFOs must be paid;
(4) set forth an itemized list of the amounts due for fines, fees, costs, assessments, and restitution; and
(5) provide the defendant the attached Advisement of Rights and Obligations on Payments and Community Service (Form Two).
No person unable to pay LFOs in full on sentencing day will be charged additional fees, costs, or interest for being placed on a Payment Plan with the following exception: a surcharge may be imposed on a defendant who chooses to make an LFO payment by credit card or debit card.
Advisement of Defendant’s Responsibility to Inform the Court of Mailing Address Changes
The Court shall advise the defendant of her/his duty to inform the Court of any future changes to the defendant’s mailing address and that failure to attend any future Compliance Hearings due to non-receipt of a hearing notice by mail may result in the issuance of an arrest warrant for failure to appear.
As soon as reasonably possible after a defendant has a change of mailing address, the defendant shall deliver to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530 the Notice of Change of Address (Form Four). The defendant may deliver the notice by U.S. Mail, by hand delivery to the Biloxi Municipal Court Administrator/Clerk’s office, or by email to coacourt@biloxi.ms.us. The Notice of Change of Address may be accessed at http://www.biloxi.ms.us/ChangeOfAddressForm.
III) COMPLIANCE HEARINGS
The Court shall set a Compliance Hearing, by using the attached Biloxi Municipal Court Order Setting Compliance Hearing (Form One) (the “Order”), for every person who is sentenced to LFOs and/or community service and who is alleged to have failed to meet the requirements of the Court’s imposed sentence.
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
The Order (Form One) will be sent by regular U.S. Mail to the defendant’s last known address with the Advisement of Rights and Obligations on Payments and Community Service (Form Two).
The Order (Form One) will provide the defendant with at least twenty-one (21) days-notice of the Compliance Hearing date and time.
If the Court will impose a jail sentence or wishes to preserve its right to impose a jail sentence in the future, the Court shall appoint counsel at no cost to represent an indigent defendant at a Compliance Hearing unless there is a knowing, voluntary, and intelligent waiver of the right to counsel. The Court shall determine indigence by using the attached Affidavit of Indigence (Form Four) and by considering any other relevant factors.
If the Court determines that the defendant is not indigent, it may provide the defendant a continuance to permit retention of counsel. The Court will document its finding that the defendant was, or was not, indigent and provide evidence in the record to support any finding of non-indigence.
For indigent defendants, the Court will document that a public defender was appointed for the defendant and appeared with the defendant at the Compliance Hearing or that the public defender was offered and that after the Court conducted a colloquy, the defendant knowingly, voluntarily and intelligently waived his/her right to an attorney.
Hearing Procedures and Standards
The Court must advise defendants of the following information set forth in the Bench Card:
1. all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution;
2. all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs;
3. indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning nonpayment of LFOs;
4. that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing;
5. the type of information relevant to determining ability to pay;
6. the potential penalties if a defendant is found to have willfully failed to pay an LFO; and
7. that any waiver of the right to counsel or the right to court-appointed counsel must be knowing, voluntary, and intelligent.
The defendant must be given an opportunity to present evidence that the amount allegedly owed is not accurate, or is not in fact owed, if the defendant believes that the amount is not correct.
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
In Compliance Hearings the Court shall consider, and make findings on, the defendant’s ability to pay, efforts to secure resources, and, if the defendant is found to be unable to pay, the adequacy of alternatives to incarceration.
The Court will document its actions, findings, and evidence in support of its findings, including the Court’s decision on whether the defendant is able to pay LFOs or has willfully failed to pay, whether the defendant made adequate efforts to secure resources, and, if the defendant is found to be unable to pay, whether alternatives to incarceration are adequate to achieve the City’s interests in punishment and deterrence.
Ability to Pay
To determine ability to pay, the Court shall use the Affidavit of Indigence (Form Four) and inquire on the topics set forth in the attached Compliance Hearing Ability to Pay Inquiry and Determinations (Form Five), as well as any other factors considered by the Court to be relevant.
Any determinations that the Court makes regarding ability to pay or willfulness of nonpayment shall be guided by the Bench Card, and applicable law.
If a defendant is represented, the Court shall provide the defendant with adequate time to privately confer with defense counsel on the issue of ability to pay prior to the Court’s ability-to-pay inquiry.
During the hearing, the Court shall carefully consider the defendant’s responses to each question before making any determination regarding ability to pay and whether nonpayment was willful. If a defendant is unable to provide the information requested by the Court during an ability-to-pay inquiry, the Court shall consider allowing the defendant (and, if applicable, counsel) additional time to gather information to respond to the Court’s questions.
The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. There shall be a rebuttable presumption that a person is unable to pay LFOs upon a finding of at least one of the following factors:
1. the defendant’s annual income is at or below 125% of the federal poverty level for his or her household size according to the current Federal Poverty Level (“FPL”) chart;
2. the defendant is homeless;
3. the defendant is incarcerated; or
4. the defendant resides in a mental health facility.
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
Efforts to Secure Resources
In inquiring into, and making a determination on, the reasonableness of a defendant’s efforts to acquire resources to pay LFOs, the Court shall consider the defendant’s efforts to earn money, secure employment, and borrow money, as well as any limitations on the defendant’s ability to engage in such efforts due to homelessness, health and mental health issues, temporary and permanent disabilities, limited access to public transportation, limitations on driving privileges, and other relevant factors.
Alternatives to Incarceration
If the Court determines that a person is unable to pay fines, fees, court costs, restitution, or state assessments, it shall consider alternative methods of achieving the City’s interest in punishment and deterrence as set forth in the Bench Card, and shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration. Bearden v. Georgia, 461 U.S. 670, 671–72 (1983). These alternatives to incarceration shall include the following:
1. Reduction of the amount of fines, fees, court costs, and restitution imposed;
2. Waiver or Suspension of the fines, fees, court costs, and restitution imposed;
3. Community Service credit toward the discharge of fines, fees, state assessments, court costs, or restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed;
4. Extension of the amount of time for payment of the fines, fees, state assessments, court costs, and restitution imposed;
5. Completion of Approved Job Skills Training and Educational, Drug Treatment, Counseling and Mental Health Programs as an alternative or in addition to community service toward the discharge of fines, fees, state assessments, court costs, and restitution owed to Biloxi; and
6. Any other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Imposition of Jail
The Court may not impose jail for failure to pay an LFO without making at least one of the following written findings based on evidence:
1. the defendant’s failure to pay was willful;
2. the defendant failed to make sufficient bona fide efforts to acquire the resources to pay; and/or
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
3. the defendant was unable to pay, despite having made sufficient efforts to acquire resources, but alternative methods for achieving punishment or deterrence, including a reduction or waiver of the fine or restitution, an extension of time to pay, community service, and completion of approved programs are not adequate.
The Court may never impose jail solely because a defendant lacks the resources to pay a fine, fee, court cost, state assessment, or restitution.
Collections By Third Party Contractors
The Court may send a case to collections by a third-party contractor if a defendant has failed to make LFO payments in accordance with a Payment Plan and the Court has determined, after holding a Compliance Hearing in accordance with the procedures described herein, that:
1. the defendant has the ability to pay, but has refused or failed to pay the fine, fee, court costs, restitution, or state assessment owed; or
2. the defendant is unable to pay the LFO, but has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure resources in order to pay a fine, fee, court cost, state assessment or restitution.
In any civil execution, attachment, and/or wage garnishment proceeding to collect unpaid LFOs, the defendant is entitled to the exemptions and exclusions found in Miss. Code Ann. § 85-3-1.
IV. FAILURE TO APPEAR
If a defendant fails to appear for a Compliance Hearing after the Court has mailed twenty-one (21) days notice of the Compliance Hearing to the address provided by the defendant, and the defendant has not previously contacted the Court to request a new date, the Court may issue a capias for failure to appear. It is defendant’s duty and responsibility to notify immediately the Municipal Court of any change in her/his address and to notify the Court of any request for adjournment.
All efforts must be made to serve the capias during business hours on a weekday.
If a person who is the subject of a capias turns himself/herself in, officers shall promptly escort the person to the Biloxi Municipal Court for a determination as to whether counsel is required and for recall of the capias. If a judge is not immediately available, Court staff shall provide in-person service of an Order Setting Compliance Hearing to appear at the next available Compliance Hearing date. The capias shall be recalled and the person will be released on an unsecured bond.
Upon arrest pursuant to a capias, the defendant should be promptly escorted to the Biloxi Municipal Court for a determination as to whether counsel is required and a Compliance Hearing pursuant to the procedures described above and in the Bench Card. If a judge is not immediately available to conduct a Compliance Hearing, the onduty bond officer shall issue an unsecured bond.
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE FORM ONE
BILOXI MUNICIPAL COURT ORDER SETTING COMPLIANCE HEARING 170 Porter Avenue, Public Safety Building, First Floor, Biloxi, MS 39530 CASE NUMBER: DEFENDANT NAME: COMPLIANCE HEARING DATE: TOTAL BALANCE DUE: TOTAL COMMUNITY SERVICE OR PROGRAM HOURS REQUIRED: YOU ARE HEREBY ORDERED to appear before the Biloxi Municipal Court at 9:00 o'clock a.m., on the _____ day of _______________, 20____, to explain why you did not pay, complete community service and/or an approved program as required by the Biloxi Municipal Court. You MUST appear on the date set forth above, if you have not responded before then. The Court will NOT put you in jail if you appear and are NOT ABLE TO PAY. FAILURE TO APPEAR may result in your arrest and a finding of contempt of Court. At the hearing, you may ask the judge to appoint a free lawyer to help you. If you cannot afford a lawyer, the judge will appoint a free lawyer to help you. Please see the attached list of your rights and obligations.
______________________________________ Biloxi Municipal Court Judge
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
Attachments: Form Two: Advisement of Rights Regarding Payments and Community Service Form Three: Notice of Change of Address
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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
FORM TWO
BILOXI MUNICIPAL COURT ADVISEMENT OF RIGHTS AND OBLIGATIONS ON PAYMENTS AND COMMUNITY SERVICE
The Court has required you to pay money or complete community service. The amount you owe and when you must pay are listed on the Order given to you.
If you receive a notice that you owe money to the Court or did not complete community service, you have the following legal rights:
1) You have the right to a court hearing before being jailed for nonpayment.
You can explain that you already paid. You can explain that you owe less than the amount the Court says you owe. You can tell the Court how much money you have. You can tell the Court how much you pay for rent, food, or other important things. You can ask the Court to let you pay the money later. You can ask the Court to let you do work to help the community instead of paying money. You can ask the Court to make you pay less, or nothing at all.
2) You have the right to a court hearing before being jailed for not completing community service.
You can explain that you already completed community service. You can explain why you could not complete it (e.g., work, transportation issues, caring for children).
3) You have the right to have a lawyer help you at the hearing.
A lawyer can help you avoid jail.
A lawyer can help you explain that you do not have money to pay OR cannot do community service.
4) You have the right to ask the Judge to appoint a lawyer to help you at the hearing.
The Judge will decide whether to appoint a lawyer for you. You can ask the Judge to make you pay nothing for the lawyer appointed to help you.
5) Do you want a lawyer? When you arrive in Court, ask the Judge to appoint a lawyer to help you.
6) At the court hearing:
The Judge will decide whether you can pay. The Judge will decide whether you tried to earn the money to pay. The Judge will decide whether you could not earn money because you do not have transportation, need to care for your kids, or are disabled.
If you cannot pay, the Judge will decide whether you can pay less or nothing at all, can pay later, or can do work to help the community instead of paying.
The Judge may decide that you did not pay even though you had the money. Only then, may the Judge sentence you to jail.
The Judge will decide whether you were unable to complete community service.
The Judge may decide that you did not work for the community even though you were able. Only then, may the Judge sentence you to jail.
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EXHIBIT 1
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

FORM THREE

NOTICE OF CHANGE OF ADDRESS

The undersigned defendant hereby gives notice to the Biloxi Municipal Court of the following change of my residential and, if different, mailing addresses:

.............................................................................. ....................................................

Print Full Name

Date of Birth

............................................................................................................................................ Previous Residential Address

............................................................................................................................................ New Residential Address

............................................................................................................................................ Previous Mailing Address

............................................................................................................................................ New Mailing Address

............................................................................................................................................ Telephone Number

............................................................................................................................................ Email Address (if any)

__________________________________________ SIGNATURE

DATE

RETURN THIS FORM TO THE OFFICE OF THE BILOXI MUNICIPAL COURT CLERK AT 170 PORTER AVENUE, BILOXI, MISSISSIPPI 39530 EITHER BY HAND-DELIVERY, BY U.S. MAIL,
OR BY EMAIL TO coacourt@biloxi.ms.us.

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EXHIBIT 1
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

FORM FOUR

AFFIDAVIT OF INDIGENCE In the Municipal Court of the City of Biloxi, Mississippi

CITY OF BILOXI v.
__________________, Defendant

SECTION I. – IDENTIFICATION

Name – Last, First, Middle

Date of Birth

Case No._____________
Spouse Full Name (if married)

Home Address

City

State

Zip

Telephone Number

Driver’s License Number

Social Security Number

Number of People in Household Employer

Occupation

Employer Telephone Number

Employer Address

Length of Employment

SECTION II. – ASSISTANCE BENEFITS

Do you or anyone in your household receive any public assistance benefits (SSI, food stamps, Section 8 housing, etc.)? □ Yes □ No

SECTION III. – INCOME/EXPENSE STATEMENT

MONTHLY GROSS INCOME Monthly Gross Income (before taxes) Spouse’s Monthly Gross Income Other Earnings (Bonuses, Interest, etc.) Contributions from Other People Unemployment, Workers’ Comp, Social Security, Retirement Other Income
TOTAL MONTHLY INCOME

AMOUNT $ $ $ $
$ $ $

INCOME:

$

EXPENSES:

-

$

DISPOSABLE INCOME

$

(Income left over after expenses)

MONTHLY EXPENSES Living Expenses Rent/Mortgage Total Utilities: Gas Electric, Water, etc. Food Clothing Health Care / Medical Loan Payments Credit Card Payments Educational / Employment Expenses Other Child Support / Alimony Payments Exceptional Expenses Transportation (car payment, insurance, etc.) TOTAL MONTHLY EXPENSES

AMOUNT $ $ $ $ $ $ $ $ $ $ $ $
$

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EXHIBIT 1
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

SECTION IV. – LIQUID ASSETS

LIQUID ASSETS Cash on Hand / Bank (or available stocks, bonds, etc) Equity in Real Estate (value of property less what you owe) Equity in Personal Property (such as value of motor vehicles, stereo, furniture, jewelry, etc.) Other Do you own anything else of value?
TOTAL LIQUID ASSETS

AMOUNT
$
$
$
$ $ $

SECTION V. - AFFIDAVIT

I am unable to pay court costs. I verify under penalty of perjury that the statements made in this affidavit are true and correct. I understand the Court may require verification of the information provided above. I agree to immediately report any change in my financial status to the court.

I authorize the Court or its representative(s) to obtain records or information pertaining to my financial status from any source in order to verify information provided by me.

I also understand and agree that the Court may mail important notices to me at the address I provided above and that I have a duty to immediately inform the Court of any change in my address. Failure to do so could result in my failure to receive important notices and lead to the issuance of a warrant for my arrest.

→ _____________________________________ Your Signature

_________________________ Date

IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.

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EXHIBIT 1
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

BILOXI MUNICIPAL COURT 170 Porter Avenue, Public Safety Building, First Floor, Biloxi, MS 39530
COMPLIANCE HEARING DISPOSITION SHEET

FORM FIVE

Defendant’s Name:

Case Number:

Charge(s):

Total Amount Owed: $

or Total Hours of Credit Remaining:

1. The Public Defender □ was or □ was NOT appointed to represent the Defendant.

2. Public Defender’s Name (if appointed)

3. The Defendant □ did or □ did NOT make a knowing, voluntary and intelligent waiver of
the right to counsel.

4. The Defendant □ did or □ did NOT execute an Affidavit of Indigency.

5. The Defendant’s monthly income □ is or □ is NOT below 125% of the relevant Federal

Poverty Guideline for household size.

For 2016, 125% of FPG is:

6. The Defendant □ is or □ is NOT homeless.

$14,850 for an individual; $20,025 for a family of 2;

$25,200 for a family of 3;

7. The Defendant □ is or □is NOT incarcerated.

$30,375 for a family of 4; $35,550 for a family of 5;

8. The Defendant □ does or □ does NOT reside in a

$40,725 for a family of 6.

mental health facility.

9. The Defendant □ has or □ has NOT experienced a change in circumstances since
sentencing.

10. The Defendant □ did or □ did NOT contest the amount owed or remaining hours of
credit.

11. Does the Defendant face limitations on the ability to earn money due to:
□ Lack of access to transportation or limitations on driving privileges? □ Child care requirements? □ Other relevant factors?

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EXHIBIT 1 BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
12. The Court determines that the Defendant □ is able to pay or □ is NOT able to pay.
(Explain)
13. The Court determines that the Defendant □ has or □ has NOT made sufficient bona fide
efforts to secure the resources to pay LFOs or earn other credit. (Explain)
14. The Court determines that the Defendant □ did NOT willfully fail to pay, or □ did
willfully fail to pay and is therefore found to be in contempt of court.” (Explain)
The Court orders:
□ Reduction of the amount of fines, fees, court costs, and restitution imposed; □ Waiver or Suspension of the fines, fees, court costs, and restitution imposed; □ Community Service credit toward the discharge of fines, fees, state assessments, court
costs, and restitution owed to Biloxi;
□ Completion of Approved Job Skills Training and Educational, Drug Treatment,
Counseling, and Mental Health Programs;
□ Extension of the Amount of Time for payment; and/or □ Any Other Disposition deemed just and appropriate, in the discretion of the Court,
pursuant to applicable law. (Specify below)
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EXHIBIT 2 BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
The U.S. Constitution and Mississippi law require safeguards when collecting fines, state assessments, fees, court costs, and restitution (collectively, “legal financial obligations” or “LFOs”).1 All Biloxi Municipal Court (“BMC”) Judges shall abide by the procedures described below.
RIGHT TO COUNSEL
FIRST APPEARANCE:
When a person is brought before the Biloxi Municipal Court, and charged with a misdemeanor, the Court shall provide the defendant an opportunity to sign an Affidavit of Indigence stating that he or she is indigent and unable to employ counsel.2
It is a best practice for the Court to assign a public defender or court staff to help the defendant complete the Affidavit of Indigence.
The court shall use the Affidavit of Indigence, and any other relevant factors, to evaluate whether the defendant is entitled to counsel.
The court may appoint counsel to represent an indigent defendant charged with a misdemeanor punishable by confinement.3
When the court determines that representation is required at the plea, trial, sentencing, or post-sentencing stage of the proceedings, it must appoint counsel to represent an indigent defendant, unless there is a knowing, voluntary, and intelligent waiver of the right to counsel.4
SENTENCING:
A defendant is entitled to the assistance of counsel before being sentenced to incarceration or probation for the collection of a fine, fee, court cost, state assessment, or restitution, unless there is a knowing, voluntary and intelligent waiver of the right to counsel.5
If the Court contemplates imposing incarceration or probation on an unrepresented defendant, or wishes to preserve its right to impose a jail sentence or probation in the future, the Court must conduct an indigence determination by using the Affidavit of Indigence, and considering any other relevant factors, to evaluate whether the defendant is entitled to court-appointed counsel at no cost.
COMPLIANCE HEARING:
The court must inform every person charged with failure to pay an LFO of: (1) all defendants’ right to representation by legal counsel in any proceeding concerning nonpayment; (2) indigent defendants’ right to court-appointed representation at no cost when facing possible incarceration for failure to pay LFOs.
The Court must appoint counsel to represent indigent people who face the possibility of incarceration due to nonpayment of an LFO, including in Compliance Hearings and Probation Revocation Hearings, unless there is a knowing, voluntary, and intelligent waiver of that right.
WAIVER OF RIGHT TO COUNSEL:
The Court may not accept a written or oral waiver of any right to court-appointed counsel without FIRST informing the defendant of the nature of the charges, of the defendant’s right to be counseled regarding her/his plea, and the range of possible punishments, and ensuring that any waiver is knowing, intelligent, and voluntary.
If a defendant/probationer seeks to waive his or her right to counsel, the court must conduct a colloquy on the right to inform the defendant:
(1) that the indigent defendant has a right to a court- appointed attorney or public defender at no cost; (2) that any fee normally charged for representation by a court-appointed attorney shall be waived for indigent
defendants; and (3) the nature of the charges against the defendant, of defendants’ right to be counseled regarding his or her plea, and the
range of possible punishments.
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EXHIBIT 2 BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs
SENTENCING: The Court shall assess ability to pay when setting the amount of any fine, fee, court cost, or restitution.6 The Court should consider:
(1) the defendant’s financial resources and income; (2) the defendant’s financial obligations and dependents; (3) the defendant’s efforts and ability to find and engage in paid work, including any limitations due to disability or residence in a
mental health facility; (4) outstanding LFO obligations in other cases or to other courts; (5) the length of the defendant’s probation sentence, if any; (6) the goals of deterrence, retribution, and rehabilitation; (7) the Affidavit of Indigence; and (8) any other factor or evidence that the Court deems appropriate.
The Court shall also consider the ability to perform community service when setting any community service requirements.
Fines, Fees, Court Costs, and Restitution:
If the defendant is unable to pay, the Court should consider: (1) Reduction of the amount of fines, fees, court costs, and restitution imposed; (2) Waiver or Suspension of the fines, fees, court costs and restitution imposed; (3) Community Service credit toward the discharge of fines, fees, court costs, or restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; (4) Extension of the amount of time for payment of the fines, restitution, fees, and court costs imposed; (5) Completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and (6) Other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Mandatory State Assessments: If the defendant is unable to pay, the Court should consider:
(1) extending the defendant’s time to pay; (2) requiring the defendant to perform community service to satisfy the state assessment fees; (3) requiring the completion of approved educational programs, job skills training, counseling and mental health services, and drug
treatment programs as an alternative to, or in addition to, community service; and (4) imposing any other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
The Court may not reduce or suspend any mandatory state assessments, including those imposed under Miss. Code Ann. § 9919-73.
Jail: The Court’s decision to sentence a defendant to jail shall NOT solely be based on any finding that the defendant is unable to pay a fine, state assessment, court costs, fee, or restitution.
After setting the amount of any LFOs, and Community Service, and Program Requirements the Court shall: (1) Determine whether the defendant can pay LFOs in full, or needs additional time; (2) Set the terms of a Payment Plan by which LFO payments shall be made to the BMC Clerk, if the defendant cannot pay in full on sentencing day; (3) Set forth the sentence in a written order indicating the final date for payment of LFOs and performance of community service, any Payment Plan terms and the total amount of (1) fines, (2) restitution, (2) fees and costs, and (3) state assessments; (4) Provide the defendant the Advisement of Rights Regarding Payments and Community Service and the Notice of Change of Address form.
REPORT OF NONPAYMENT:
Warrants: The court shall not issue any warrant directing arrest for alleged LFO nonpayment absent a Compliance Hearing as described below.
The Court shall hold a Compliance Hearing for defendants who are sentenced to LFOs, community service and/or training, treatment, counseling and mental health programs and who are alleged to have failed to meet the requirements of the Court’s sentence.
The Court shall provide at least 21-days notice of a Compliance Hearing through use of the Biloxi Municipal Court Order Setting Compliance Hearing. The Court shall also provide the Advisement of Rights Regarding Payments and Community Service, and the Notice of Change of Address form when providing notice of a Compliance Hearing.
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EXHIBIT 2 BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs (continued)
COMPLIANCE HEARING:
Compliance Hearings will be audio recorded. In the event audio recording equipment is temporarily not working, the Court shall ensure that the case record includes: 1) the evidence submitted by the defendant, and 2) written documentation of the Court’s findings, supporting evidence, and colloquy concerning ability to pay, efforts to secure resources, alternatives to incarceration, and the right to counsel.
Hearing Procedures and Standards
The Court must advise defendants of:
(1) all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution;
(2) all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs; (3) indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning
nonpayment of LFOs; (4) that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing; (5) the type of information relevant to determining ability to pay; and (6) the potential penalties if a person is found to have willfully failed to pay an LFO.
The Court must provide defendants an opportunity to present evidence that the amount allegedly owed is not accurate or not in fact owed if the defendant believes the amount is not correct.
As part of determining whether the failure to pay was willful and whether incarceration can be imposed, the Court shall:
1. Inquire into, and make a determination on, ability to pay LFOs, by considering the totality of the circumstances, including the defendant’s income, assets, debts, other LFO obligations, and any other information the Court deems appropriate. The Court shall use the Affidavit of Indigence to conduct this inquiry.
The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. The Court shall make a rebuttable presumption that a person is unable to pay LFOs when:
a. the defendant’s annual income is at or below 125% of the federal poverty level for his or her household size according to the
current Federal Poverty Level (“FPL”) chart;
b. the defendant is homeless; c. the defendant is incarcerated; and/or d. the defendant resides in a mental health facility.
2. Inquire into, and make a determination on, the reasonableness of a defendant’s efforts to acquire resources to pay LFOs.
The Court shall take into account efforts to earn money, secure employment and borrow money, as well as any limitations on the defendant’s ability to engage in such efforts due to homelessness, health and mental health issues, temporary and permanent disabilities, limited access to public transportation, limitations on driving privileges, and other relevant factors.
3. If the Court determines that a defendant is unable to pay, the Court will consider and make a determination on the adequacy of alternatives to incarceration for nonpayment of fines or restitution, including:
a. Reduction of the amount of fines, fees, court costs, and restitution imposed; b. Waiver or Suspension of the fines, restitution, fees, and court costs imposed; c. Community Service credit toward the discharge of fines, fees, state assessments, court costs, or restitution owed to Biloxi. Biloxi
Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; d. Extension of the amount of time for payment of the fines, restitution, fees, state assessments, and court costs imposed; e. Completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and f. Imposing other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Judges shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration.7
The Court will document its actions and findings and evidence in the record supporting its findings.
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EXHIBIT 2 BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs (continued)
IMPOSING JAIL FOR FAILURE TO PAY
The Court may impose incarceration following a Compliance Hearing if it makes one of the following findings, supported by evidence:
(1) a defendant has willfully refused to pay the fine, fee, court cost, state assessment, or restitution when she/he has the means to pay;
(2) a defendant has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure resources in order to pay the fine; or
(3) the defendant is unable to pay, despite making sufficient efforts to acquire the resources to pay, and alternative methods for achieving punishment or deterrence are not adequate.8
THIRD PARTY COLLECTIONS
The Court may send a case to collections by a third-party contractor if a defendant has failed to make LFO payments in accordance with a Payment Plan and the Court has determined, after holding a Compliance Hearing in accordance with the procedures described herein, that:
(1) the defendant has the ability to pay, but has refused to pay the L F O (s ) owed; or
(2) the defendant is unable to pay the LFO, but has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure the resources in order to pay a fine, fee, court cost, state assessment, or restitution.
In any civil execution, attachment, and/or wage garnishment proceeding to collect unpaid LFOs, the defendant is entitled to the exemptions and exclusions found in Miss. Code Ann. § 85-3-1.

Collecting Fines, Fees, State Assessments, Court Costs, and Restitution

Permitted Methods of Collection • Voluntary Payment • Payment Plan Administered by Court • Community Service (except restitution owed to a party other than Biloxi) • Execution of Civil Judgment • Collection by Third Party Contractors following Compliance Hearing and Court determination as described above.

Impermissible Methods of Collection
• Imposing Jail at Sentencing • Issuance of Failure-to-Pay Warrants Upon Report of
Nonpayment • Forfeiture of Confiscated Money • Imposing “pay or stay” sentence

1 Bearden v. Georgia, 461 U.S. 670, 672 (1983) (“If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to
do so, the court must consider alternative measures to punishment other than imprisonment.”) (Emphasis added); Miss. Code Ann. §§ 21-23-7;
25-32-9; 63-1-53; 99-15-26; 99-37-11. 2 Miss. Code Ann. § 25-32-9. 3 Miss. Code Ann. §§ 21-23-7; 25-32-9 4 Miss. Code Ann. § 25-32-9. 5 Alabama v. Shelton, 535 U.S. 654, 658 (2002). 6 Bearden v. Georgia, 461 U.S. 660, 669–70 (1983) (“[W]hen determining initially whether the State’s penological interests require imposition
of a term of imprisonment, the sentencing court can consider the entire background of the defendant, including his employment history and
financial resources.”). 7 Bearden v. Georgia, 461 U.S. 670, 671–72 (1983). 8 Id. at 668–69.

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 STIPULATED SETTLEMENT AGREEMENT AND RETENTION OF JURISDICTION
This Stipulated Settlement Agreement and Retention of Jurisdiction (hereinafter “Agreement”) is made by and among the City of Biloxi (“Biloxi” or “the City”), John Miller (“Miller”), and Judge James Steele (“Steele”); and Qumotria Kennedy (“Kennedy”), Richard Tillery (“Tillery”), and Joseph Anderson (“Anderson”), (hereinafter referred to individually and collectively as “Plaintiffs”), on behalf of himself and each of his respective heirs, successors, and assigns. Biloxi, Miller, Steele, Kennedy, Tillery, and Anderson are from time to time referred to hereinafter individually as a “Party” and collectively as the “Parties.”
WHEREAS, each of the named Plaintiffs allege that they were incarcerated—Plaintiff Kennedy for five nights from July 30, 2015 to August 4, 2015; Plaintiff Anderson for seven nights from December 27, 2012 to January 3, 2013; and Plaintiff Tillery for fifty nights in April, July and September 2014—in the Harrison County Adult Detention Center because of inability to pay fines, state assessments, fees, court costs, or restitution (collectively, “legal financial obligations” or “LFOs”) imposed by the Biloxi Municipal Court (“Biloxi Municipal Court”) for traffic or misdemeanor offenses, but allegedly were not afforded ability-to-pay hearings or informed of their right to request counsel prior to being jailed, and were not provided courtappointed counsel as indigent people facing possible incarceration for failure to pay LFOs (the “Incidents”);
WHEREAS, Plaintiffs filed a Complaint on October 21, 2015 in the United States District Court for the Southern District of Mississippi, commencing a proposed class action lawsuit entitled Kennedy, et al., v. The City of Biloxi, Mississippi et al., Civil Action No. 1:15-cv00348-HSO-JCG (the “Lawsuit”), against Biloxi, Miller, Steele, and Judicial Corrections Services, Inc. (“JCS”), which seeks declaratory and injunctive relief, as well as compensatory

damages for the named Plaintiffs, and alleges violations of Plaintiffs’ rights to due process and equal protection of the law under the Fourteenth Amendment to the U.S. Constitution, and right to freedom from unreasonable searches and seizures under the Fourth Amendment as a result of Defendants Biloxi, Miller, and Steele’s alleged policies, practices, and customs that allegedly exhibited deliberate indifference to Plaintiffs’ rights and directly led to Plaintiffs’ jailing for failure to pay LFOs they could not afford;
WHEREAS, on October 21, 2015, Plaintiffs Kennedy and Tillery filed a motion pursuant to Federal Rule of Civil Procedure 23(b)(2) seeking the certification of two proposed classes defined as follows: (1) all people who currently owe, or in the future will owe, fines, fees, court costs, or restitution in Biloxi Municipal Court cases (the “Main Class”); and (2) all indigent people who currently owe, or in the future will owe, fines, fees, court costs, or restitution in Biloxi Municipal Court cases (the “Indigent Class”);
WHEREAS, it is the desire of the Parties to resolve all disputes as between and among them and to settle the Lawsuit;
WHEREAS, the Lawsuit shall be dismissed with prejudice as to Defendants Biloxi, Miller, and Steele, expressly on the basis of no finding and no admission of liability, fault, wrongdoing, or responsibility for any of the claims in the Lawsuit, any such liability, fault, wrongdoing, or responsibility being expressly denied by Defendants Biloxi, Miller, and Steele; and
WHEREAS, the Mayor and City Council of Biloxi by resolution adopted December 29, 2015, have increased the budget for the City of Biloxi’s Legal Department, which includes operation of the Biloxi Municipal Court, in the additional amount of Two Hundred Fifty-Three Thousand Twenty-Four Dollars ($253,024) for Fiscal Year 2016 and Three Hundred Forty-Four
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Thousand Twenty-Four Dollars ($344,024) on an annual basis for subsequent fiscal years, in order to facilitate the additional duties that the City is voluntarily agreeing to perform according to the terms of this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration passing between the Parties, and intending to be legally bound hereby, it is agreed:
DEFINITIONS The Definitions contained herein shall only apply to this Agreement and shall not apply to any other agreement, nor shall the terms defined herein be used as evidence, except with respect to this Agreement, of the meaning of any of them. A. “Claim” shall mean any past, present or future claim, notice, demand, request, inquiry, order, action, right, count, cause of action, lawsuit, cross-complaint, counter-complaint, administrative proceeding, arbitration, mediation, order, judgment, statutory or regulatory obligation, settlement, request for information or allegation of any kind, character or nature arising from or related to the Incidents, whether known, unknown, suspected or unsuspected, whether at law or in equity, and whether sounding in constitutional law, tort, contract, equity, nuisance, trespass, negligence, strict liability or any constitutional, statutory, regulatory, common law or foreign law cause of action of any kind whatsoever, including those which were or could have been asserted in the Lawsuit. B. “Settlement Sum” shall mean Seventy-Five Thousand and no/100ths Dollars ($75,000.00). A. POLICY CHANGES 1. Procedures for Legal Financial Obligations and Community Service. Biloxi shall
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adopt and implement the Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service, attached hereto as Exhibit A, and made part hereof, which furthers the protection of: (a) defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of LFOs; (b) defendants’ right to freedom from unreasonable seizures; (c) defendants’ right to be represented by counsel in LFO collection proceedings; and (d) indigent defendants’ right to court-appointed counsel to defend against possible incarceration for failure to pay LFOs.
a. Payment Plans. Whenever a person sentenced to an LFO cannot pay the LFO in full on sentencing day, the Biloxi Municipal Court may collect the LFO through a payment plan administered by the Clerk of Court pursuant to the Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service. Biloxi agrees to have no minimum for the amount that the Biloxi Municipal Court may order for monthly payments, and to charge no extra fees, costs, or interest upon unpaid LFOs owed by a defendant on a payment plan with the following exception: a surcharge may be imposed on a defendant who chooses to make an LFO payment by credit card or debit card.
b. Compliance Hearings. The Biloxi Municipal Court shall set a Compliance Hearing for every person who is alleged to have failed to meet the requirements of the Court’s imposed sentencing using the Biloxi Municipal Court Order Setting Compliance Hearing, attached hereto as Exhibit A (Form One). The Order will provide the defendant with thirty (30) days notice of the Compliance Hearing date. At all Compliance Hearings concerning nonpayment of LFOs, the Biloxi Municipal Court shall inquire into the defendant’s ability to pay and efforts to secure resources, and if the Court finds that the defendant is unable to pay, it shall consider the adequacy of alternatives to incarceration. The Biloxi Municipal Court shall have a default procedure of audio recording Compliance Hearings. In the event audio recording
4

equipment is temporarily not working, the Court shall ensure that the following is documented in writing: (i) the evidence submitted by the defendant concerning ability to pay and efforts to secure resources, (ii) the Court’s findings and evidence to support those findings, and (iii) the Court’s colloquy concerning ability to pay, efforts to secure resources, alternatives to incarceration, and the right to counsel.
c. Forms and Advisement of Rights. Whenever the Biloxi Municipal Court provides notice of a Compliance Hearing date, it shall also provide the hearing subject a Biloxi Municipal Court Advisement of Rights and Obligations for Legal Financial Obligations and Community Service, attached hereto as Exhibit A (Form Two), and an LFO Inability to Pay Guide, attached hereto as Exhibit A (Form Four).
d. Bench Card. Whenever the Biloxi Municipal Court seeks to impose LFOs or whenever the nonpayment of LFOs or completion of community service will be addressed in a Biloxi Municipal Court hearing, the Biloxi Municipal Court Judge shall follow applicable law, the procedures set forth in the Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service (Exhibit A), and the Bench Card, attached hereto as Exhibit B. In particular, the Biloxi Municipal Court Judge must advise hearing subjects of the following rights and information set forth in the Bench Card: (i) all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution; (ii) all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs; (iii) indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning nonpayment of LFOs; (iv) that any waiver of the right to counsel or the right to court-appointed counsel must be knowing, voluntary, and intelligent; (v) the types of information relevant to
5

determining ability to pay; (vi) the potential penalties that may be imposed if a defendant is found to have willfully failed to pay a fine, fee, court cost, state assessment, or restitution; and (vii) that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing.
e. Determination of Ability to Pay. Whenever the Biloxi Municipal Court is determining the amount of LFOs, establishing an LFO Payment Plan, or addressing the nonpayment of LFOs in a hearing, the Court shall conduct an inquiry regarding the person’s ability to pay. If a defendant is represented, the Court shall provide the defendant with adequate time to privately confer with defense counsel on the issue of ability to pay, prior to the Court’s ability-to-pay inquiry. During this inquiry, the Court shall use the Affidavit of Indigence, attached hereto as Exhibit A (Form Three), and inquire into the topics listed on the LFO Inability to Pay Guide (Form Four), as well as any other factors considered relevant by the Court. The Court shall also carefully consider the person’s responses to each of the questions before making any determination, including a determination regarding ability to pay and whether nonpayment is willful. If a defendant is unable to provide the information requested by the Court during an ability-to-pay inquiry, the Court shall consider allowing the defendant (and, if applicable, counsel) additional time to gather information to respond to the Court’s questions. Any determinations that the Court makes regarding ability to pay or willfulness of nonpayment shall be guided by the Bench Card and shall be in accordance with applicable law, including Bearden v. Georgia, 461 U.S. 660, 672-73 (1983).
f. Alternatives to Incarceration for Fines, Fees, Court Costs, Restitution, and State Assessments. If the Court determines that a defendant is unable to pay fines, fees, court costs, state assessments, or restitution, Biloxi Municipal Court Judges shall consider alternative
6

methods of achieving the City’s interest in punishment and deterrence. Judges shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration. Bearden v. Georgia, 461 U.S. 670, 671-72 (1983). These alternatives shall include the following:
i. Reduction of the amount of fines, fees, court costs, and restitution imposed; ii. Waiver or Suspension of the fines, fees, court costs, and restitution imposed; iii. Community Service credit toward the discharge of fines, fees, state assessments, court costs, and restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; iv. Completion of Approved Job Skills Training and Educational, Drug Treatment, Counseling, and Mental Health Programs as an alternative or in addition to community service, toward the discharge of fines, fees, state assessments, court costs, and restitution owed to Biloxi; v. Extension of the Amount of Time for payment of fines, fees, court costs, state assessments, and restitution owed to Biloxi; and vi. Any Other Disposition deemed just and appropriate, in the
7

discretion of the Court, pursuant to applicable law. g. Pursuant to Miss. Code Ann. § 63-1-53, Biloxi shall report to the Commissioner of Public Safety the failure of any person to pay timely any fine, fee or assessment levied as a result of a violation of Title 63 of the Mississippi Code following a Compliance Hearing concerning the alleged nonpayment. 2. Use of Private Probation Companies for LFO Collection. The City of Biloxi, Mississippi will implement this Agreement without hiring, contracting with, or otherwise using any private probation company after June 1, 2016. 3. Incarcerating Indigent People. The Biloxi Municipal Court shall immediately cease issuing and enforcing any type of warrant that permits law enforcement officers to arrest and jail a person for nonpayment of a fine, fee, state assessment, court cost, or restitution imposed by the Biloxi Municipal Court, without a pre-incarceration hearing on the defendant’s ability to pay, in which defendants’ right to legal representation and indigent defendants’ right to court-appointed counsel are protected. The Biloxi Municipal Court shall not issue so-called “pay-or-stay” sentences, in which a municipal court judge sentences a person to a specific monetary penalty or, in the alternative, a specific number of days in jail for a misdemeanor offense or conviction of contempt of court without a pre-incarceration hearing on ability to pay and protection of the defendants’ right to legal representation and indigent defendants’ right to court-appointed counsel. 4. Suspension of Unpaid LFOs in Cases More Than Two-Years Old. On or before June 15, 2016, the Biloxi Municipal Court shall suspend fines, fees, court costs, and restitution for all Biloxi Municipal Court cases that remain open solely because fines, fees, court costs, or restitution imposed before March 15, 2014 have not been paid in full. The suspension of any
8

LFOs pursuant to this paragraph may only be revoked within two (2) years of the suspension, as set forth in Miss. Code Ann. § 21-23-7(5), and following an individualized determination by the Biloxi Municipal Court that revocation is warranted. If a suspension is revoked pursuant to such procedures, the collection of unpaid LFOs shall be handled in accordance with Paragraphs 5-7 of this Agreement.
5. Recall of Failure-to-Pay Warrants More Than Two-Years Old. On or before June 15, 2016, the Biloxi Municipal Court shall recall and quash all “failure-to-pay warrants,” which consist of: (a) “capias pro finem” warrants issued before March 15, 2014 against people charged with nonpayment of LFOs; (b) “capias” warrants issued before March 15, 2014, that allege that the subject has not paid a fine, fee, state assessment, court cost, or restitution and/or specify a monetary amount that, if paid, would secure release of the subject from jail; and (c) contempt warrants issued before March 15, 2014, that allege that the subject has not paid a fine, fee, state assessment, court cost, and/or restitution or specify a monetary amount that, if paid, would secure release of the subject from jail. On or before June 15, 2016, the Biloxi Municipal Court shall waive any post-sentencing fees and court costs associated with the recalled and quashed warrants.
6. Recall of Failure-to-Pay and Failure-to-Appear Warrants Less Than Two-Years Old. On or before June 15, 2016, Biloxi shall identify all people who owe a fine, state assessment, fee, court cost, or restitution imposed by the Biloxi Municipal Court and have an outstanding failure-to-pay warrant issued between March 15, 2014 and the date of this Agreement, and/or an outstanding arrest warrant issued between March 15, 2014 and the date of this Agreement for having failed to appear for a Biloxi Municipal Court hearing concerning alleged nonpayment of LFOs (“failure-to-appear warrants”). On or before June 30, 2016, Biloxi
9

shall recall and quash the aforementioned failure-to-pay and failure-to-appear warrants, and waive any post-sentencing fees and court costs associated with these warrants.
7. Reset Opportunity for People Subject to Recall of Failure-to-Pay and Failure-toAppear Warrants Less Than Two-Years Old. On or before June 15, 2016, the Biloxi Municipal Court will issue an Order Setting Compliance Hearing to each person who is the subject of a recalled/quashed warrant pursuant to Paragraph 6 of this Agreement in a case that was not suspended pursuant to Paragraph 4 of this Agreement. The Order Setting Compliance Hearing (Form One) will be mailed to the last known address of each person along with an Advisement of Rights and Obligations for Legal Financial Obligations and Community Service (Form Two), an LFO Inability to Pay Guide (Form Four), and the following statement: “You are the subject of a recalled warrant; you have the obligation to appear at the Compliance Hearing set for [DATE]; and when you appear, you will NOT be jailed for nonpayment of a fine, state assessment, restitution, fee, or court cost or for failure to appear at a previously scheduled court hearing concerning nonpayment.” In addition, notice shall be posted in English, Vietnamese and Spanish as follows to indicate that reset letters have been sent: (a) on the window and front door of the Biloxi Municipal Court on 170 Porter Avenue in Biloxi; (b) in the Biloxi Municipal Court’s courtroom in the Harrison County Adult Detention Center; (c) in the Biloxi Police Station at 170 Porter Avenue in Biloxi; (d) on the City of Biloxi website, including on the following page: http://www.biloxi.ms.us/departments/municipal-court/; and (e) in the offices and other spaces used by service providers working with homeless and/or indigent people in Biloxi, as determined by the City, which shall make reasonable efforts to identify such providers. The foregoing provisions of this paragraph notwithstanding, any individuals with outstanding arrest warrants for conduct unrelated to alleged nonpayment or failure to appear for LFO collection proceedings
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may be arrested when they appear at the Biloxi Municipal Court for a Compliance Hearing. The Biloxi Municipal Court shall not charge any subject of a reset LFO with failure to appear at a Compliance Hearing absent proof that she/he was afforded actual notice of the Order Setting Compliance Hearing, Advisement of Rights and Obligations for Legal Financial Obligations and Community Service, and LFO Inability to Pay Guide. Biloxi shall provide Plaintiffs’ counsel with an email copy of each reset notice letter at approximately the same time that notice is provided to the subjects of the warrant recall addressed in Paragraph 6.
8. Release of Individuals Currently in Jail, if any, for Nonpayment of LFOs. On or before April 1, 2016, Biloxi shall identify and release the following individuals, if any currently exist, from confinement: (a) all people currently incarcerated in the Harrison County Adult Detention Center pursuant to a failure-to-pay warrant issued by the Biloxi Municipal Court, including all warrants described in Paragraph 5 (i.e., people who are “sitting out fines”); and (b) all people currently incarcerated in the Harrison County Adult Detention Center pursuant to the issuance of a “pay or stay” sentence by the Biloxi Municipal Court for a misdemeanor offense or finding of civil contempt. Biloxi shall order and effect the release of all such persons unless the Biloxi Municipal Court determines, on or before April 1, 2016, that an individual is properly held pursuant to an arrest warrant or sentence that is unrelated to any alleged nonpayment of LFOs. Biloxi shall provide Plaintiffs’ counsel by email the names and case numbers for all individuals identified for release as described in this paragraph and all individuals whom Biloxi has determined may be held due to the existence of a valid warrant or sentence unrelated to nonpayment of LFOs. Biloxi shall credit each released person with a reduction in the amount of fines, state assessment, fees, court costs, or restitution owed at the rate of Fifty-Eight Dollars and no/100ths ($58.00) per day. Biloxi may set a Compliance Hearing for any released person, but if
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Biloxi does so, it shall provide the person the following information at least thirty (30) days in advance of the Compliance Hearing: (a) notice of the Compliance Hearing date through provision of a Biloxi Municipal Court Order Setting Compliance Hearing (Form One); (b) a Biloxi Municipal Court Advisement of Rights and Obligations For Legal Financial Obligations and Community Service (Form Two); (c) an Affidavit of Indigence (Form Three) to facilitate the gathering of information for purposes of appointing counsel; and (d) an LFO Inability to Pay Guide (Form Four) to facilitate the gathering of information for purposes of determining ability to pay.
9. Secured Money Bonds will not be used to detain persons arrested for any violation that may be prosecuted by Biloxi in its Municipal Court absent an examination by the Biloxi Municipal Court of the defendants’ substantial risk of non-appearance. People arrested will be released on a Release and Recognizance Bond as soon as practicable after booking unless the Biloxi Municipal Court determines that secured money bail is the only pretrial release option that will adequately assure the defendant’s presence at trial.
10. Publication and Dissemination of Procedures. On or before May 15, 2016, Biloxi shall publish and disseminate the Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service and the Bench Card to all personnel of, or under the control of, the City of Biloxi involved in the imposition and/or collection of fines, fees, state assessments, court costs, and restitution imposed by the Biloxi Municipal Court, including permanent and temporary Biloxi Municipal Court Judges, Biloxi Municipal Court staff, Biloxi public defenders and other defense counsel appointed to represent indigent people in Biloxi Municipal Court proceedings, Biloxi prosecutors, Biloxi Police Department staff, employees of private companies, if any, involved in the supervision of Biloxi Municipal Court probationers, or
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in the collection of legal financial obligations imposed by the Biloxi Municipal Court. This
publication and dissemination shall include prominent placement of the Biloxi Municipal Court
Procedures for Legal Financial Obligations and Community Service in the Biloxi Municipal
Court located at 170 Porter Avenue in Biloxi, Mississippi, in the Biloxi Municipal Court
courtroom in the Harrison County Adult Detention Center, and on the City of Biloxi website.
11. Changes to The City of Biloxi Website. As of the date of this Agreement, Biloxi
has removed the following language from its website, http://www.biloxi.ms.us/departments/
municipal-court/:
Payment of fines: Fines are due in full on the day of assessment. This will be either the day you plead guilty or the day you may be found guilty. There is never a fine when you are found not guilty. Tickets must be paid in full so that the outcome can be reported immediately to the Department of Public Safety. Larger misdemeanor fines may be paid according to a payment plan but only after an initial payment is made. Depending on the total fine the initial payment is $50 or $100 and is due on the date of assessment. Remember that release on a payment plan is a privilege afforded by the Court and a violation of a payment order will result in your immediate arrest.
On or before May 15, 2016, Biloxi shall replace the aforementioned language on its
website with the following text:
Payment of fines, state assessments, fees, court costs, and restitution. If you plead guilty or are convicted of a misdemeanor, the Biloxi Municipal Court may impose fines, state assessments, fees, court costs, and/or restitution (“legal financial obligations” or “LFOs”). If you are found NOT GUILTY, the Court will NOT impose an LFO. You may pay the full amount of any LFO imposed upon you for a misdemeanor offense on the day of sentencing. If you are unable to pay in full on sentencing day, the Biloxi Municipal Court may place you on a Payment Plan administered by the Clerk of Court. The Court shall consider your ability to pay when setting the payment schedule.
The U.S. Constitution requires safeguards when collecting LFOs. No person shall be imprisoned for nonpayment of LFOs
13

solely because they are unable to pay. A person may ONLY be jailed for nonpayment of a fine, fee, court cost, state assessment, or restitution following a court hearing where the Court considers the person’s ability to pay, efforts to secure resources, and alternatives to incarceration, and concludes, based on specific evidence, that the person willfully failed to pay, failed to make sufficient efforts to secure money to pay, or that no adequate alternatives to incarceration exist.

Your Rights. Any person who has not paid an LFO according to the terms of a Payment Plan has the right to a Compliance Hearing and the right to be represented by legal counsel for defense against possible incarceration for nonpayment of an LFO. If you are indigent, you also have a right to court-appointed counsel at no cost. The Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service seek to protect these rights and set forth the procedures the Court will follow.

Your Duty. It is your duty to keep the Biloxi Municipal Court

informed of your mailing and residence address. As soon as

reasonably possible after a change in your mailing and/or residence

address, you should complete the Notice of Change of Address and

deliver it to the Biloxi Municipal Court Clerk at 170 Porter

Avenue, Biloxi, Mississippi 39530, by one of the following means:

(1) U.S. Mail, (2) hand delivery to the Biloxi Municipal Court

Administrator/Clerk’s office, or (3) email to

coacourt@biloxi.ms.us. You may access the Notice of Change of

Address

form

at

http://www.biloxi.ms.us/

ChangeOfAddressForm.

The term “Biloxi Municipal Court Procedures for Legal Financial Obligations and

Community Service” shall be bold and shall hyperlink to a page providing the full text of the

Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service and

Bench Card.

12. Training. Within thirty (30) days after Defendants Biloxi, Miller, and Steele

publish and disseminate the Biloxi Municipal Court Procedures for Legal Financial Obligations

and Community Service and Bench Card, Biloxi shall train on these documents and the policies,

procedures and standards set forth therein all personnel involved in the imposition and collection

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of LFOs, including all current Biloxi Municipal Court Judges, Biloxi Municipal Court staff, Biloxi public defenders, defense counsel appointed to represent indigent people in Biloxi Municipal Court proceedings, Biloxi prosecutors, Biloxi Police Department staff, employees of private companies, if any, involved in the supervision of Biloxi Municipal Court probationers and/or the collection of legal financial obligations imposed by the Biloxi Municipal Court. Training shall be conducted by qualified third-parties selected by Biloxi, after consultation with Plaintiffs’ counsel.
a. Judges. Biloxi Municipal Court Judges shall attend training on LFO issues during the initial training period in 2016 and again during the City’s training period in 2017. The training shall address: (i) the standards set forth in Bearden v. Georgia, 461 U.S. 660 (1983); Gagnon v. Scarpelli, 411 U.S. 778 (1973); and Turner v. Rogers, 564 U.S. 431 (2011); (ii) the Bench Card and the Biloxi Municipal Court Procedures for LFO Collection and Community Service, and the forms attached thereto; (iii) the impact of LFOs on indigent people; (iv) procedures required for appointing counsel; (v) standards for evaluating the validity of any waiver of the right to counsel; and (vi) considerations regarding the inclusion of LFOs in plea agreements with indigent defendants. Biloxi shall ensure that copies of all training materials are provided to any new judges, and that new judges are trained on these materials prior to imposing or collecting LFOs.
b. Biloxi Police. For a minimum of two (2) years, Biloxi Police officers involved in the execution of arrest warrants and in booking people for jail shall attend annual trainings on LFO issues. The training shall address: (i) the rights of defendants and indigent people charged with nonpayment of LFOs, including defendants’ right to an ability-to-pay hearing and to be represented by legal counsel prior to jailing for failure to pay, and indigent
15

defendants’ right to court-appointed counsel at no cost to defend against possible incarceration for failure to pay; and (ii) the termination of the use of failure-to-pay warrants described in Paragraph 5. Biloxi shall ensure that copies of training materials are provided to, and reviewed with, all new police officers involved in the in the execution of arrest warrants and in booking people for jail.
c. Employees of Any Private Company Involved in Supervising Probation and/or LFO Collection, and Biloxi Municipal Court Non-Judicial Staff. For a minimum of two (2) years, Biloxi shall annually train on LFO issues: (i) the employees of Pioneer Credit Recovery, Inc. (if it continues to serve the Biloxi Municipal Court); (ii) the employees of any other private company handling the supervision of probationers or the collection of LFOs imposed by the Biloxi Municipal Court; and (iii) all Biloxi Municipal Court staff who are involved in the supervision of probation or the collection of LFOs imposed by Biloxi Municipal Court and who are not judges, prosecutors, or public defenders. The training shall address: (i) the rights of defendants charged with nonpayment of LFOs, including defendants’ right to an ability-to-pay hearing and to be represented by legal counsel prior to being jailed for failure to pay, and indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration for failure to pay; (ii) the standards governing any waiver of the right to counsel; (iii) the impact of LFOs on indigent people; (iv) procedures for imposing LFOs, including Payment Plans; (v) procedures for collecting unpaid LFOs, including Compliance Hearings; (vi) standards for assessing ability to pay including the factors giving rise to a rebuttable presumption of inability to pay; and (vii) alternatives to incarceration for those determined to be unable to pay LFOs, including reduction or waiver of fines, fees, court costs and restitution, as well as community service and approved job skills training and programs in
16

education, counseling, mental health and drug treatment. Biloxi shall ensure that copies of training materials are provided to, and reviewed with, all new probation officers, non-judicial Biloxi Municipal Court staff, and employees Pioneer Credit Recovery, Inc., and any other private company handling collection of LFOs imposed by the Biloxi Municipal Court.
d. Court-Appointed Defense Counsel. For a minimum of two (2) years, the public defender(s) and panel attorneys appointed by the Biloxi Municipal Court to represent indigent defendants shall attend annual trainings on LFO issues. The training shall address: (i) the standards set forth in Bearden v. Georgia, 461 U.S. 660 (1983); Gagnon v. Scarpelli, 411 U.S. 778 (1973); and Turner v. Rogers, 564 U.S. 431 (2011); (ii) the rights of defendants and indigent people charged with nonpayment of LFOs, including defendants’ right to an ability-topay hearing and to be represented by counsel prior to jailing for failure to pay, and indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration for failure to pay; (iii) procedures and standards for assessing ability to pay at the time of imposing LFOs, setting a Payment Plan, and during Compliance Hearings, including the factors giving rise to a rebuttable presumption of inability to pay; (iv) defenses to charges of willful failure to pay LFOs and evidence in support of mitigation; (v) the Bench Card, the Biloxi Municipal Court Procedures for LFO Collection and Community Service and the forms attached thereto; (vi) the importance of meeting with clients in advance of sentencing proceedings and Compliance Hearings in order to prepare defenses against the imposition of LFOs and/or a finding of willful failure to pay, and to provide sufficient time to gather evidence in support of defenses and/or mitigation against failure-to-pay charges; (vii) the impact of LFOs on indigent people; (viii) alternatives to incarceration for those determined to be unable to pay LFOs, including the reduction or waiver of fines, fees, court costs, and restitution, as well as community
17

service and approved job skills training and programs in education, counseling, mental health and drug treatment; and (ix) considerations regarding the inclusion of LFOs in plea agreements with indigent defendants. Biloxi shall ensure that copies of training materials are provided to, and reviewed with, all new public defenders and counsel added to the list of panel attorneys for appointment by the Biloxi Municipal Court.
e. Prosecutors. For a minimum of two (2) years, prosecutors operating in the Biloxi Municipal Court shall attend annual trainings on LFO issues. The training shall address: (i) the standards set forth in Bearden v. Georgia, 461 U.S. 660 (1983); Gagnon v. Scarpelli, 411 U.S. 778 (1973); and Turner v. Rogers, 564 U.S. 431 (2011); (ii) the rights of defendants and indigent people charged with nonpayment of LFOs, including defendants’ right to an ability-topay hearing and to be represented by counsel prior to jailing for failure to pay, and indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration for failure to pay; (iii) the Bench Card, the Biloxi Municipal Court Procedures for LFO Collection and Community Service and the forms attached thereto; (iv) procedures and standards for assessing ability to pay at the time of setting a Payment Plan, including the factors giving rise to a rebuttable presumption of inability to pay; (v) the impact of LFOs on indigent people; (vi) considerations regarding the inclusion of LFOs in plea agreements with indigent defendants; and (vii) alternatives to incarceration for those determined to be unable to pay LFOs, including the reduction or waiver of fines, fees, court costs, and restitution, as well as community service and approved job skills training and programs in education, counseling, mental health and drug treatment. Biloxi shall ensure that copies of training materials are provided to, and reviewed with, all new prosecutors.
13. Public Defense and Appointment of Counsel to the Indigent. Since the filing of
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this lawsuit, Biloxi has voluntarily provided additional funding to the Biloxi Legal Department and Biloxi Municipal Court and intends to continue providing funding needed to ensure: (a) that every defendant charged with failure to pay LFOs is provided a competent indigence determination using the Affidavit of Indigence for purposes of evaluating whether the Biloxi Municipal Court must appoint counsel to represent the defendant in any Compliance Hearing; (b) that all court-appointed counsel, whether a panel attorney or public defender, provide competent representation (including appeals and habeas corpus motions, as allowed by law) to indigent defendants charged with failure to pay LFOs; and (c) sufficient supervision of panel attorneys and public defenders; and (d) data collection.
a. Public Defense Contracts. Any professional services agreements with public defenders or panel attorneys working on a contract basis and representing indigent people in the Biloxi Municipal Court shall make clear: (i) that the attorney may be appointed to represent indigent people solely with respect to the issue of nonpayment of LFOs imposed by the Biloxi Municipal Court; (ii) that the attorney is expected and obligated to provide competent representation on LFO issues to any indigent person to whom the attorney is appointed, regardless of whether appointment was specifically in relation to nonpayment of LFOs; (iii) that such representation shall cover the imposition of LFOs, setting of a Payment Plan, and charges of nonpayment of LFOs; that such representation shall be continuing in nature (including appeals and habeas motions, as allowed by law); (iv) that the attorney is expected and obligated to participate in training on LFO issues and review related materials; (v) that the attorney will be supervised by Biloxi regarding the representation of indigent people in relation to LFO issues; and (vi) that the attorney is obligated to provide information, as defined in Paragraph (c) below, to Biloxi regarding such representation.
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b. Supervision. No later than June 15, 2016, Biloxi shall establish procedures for the supervision of counsel appointed to represent indigent people charged with failure to pay LFOs. The supervision shall ensure that: (i) court-appointed attorneys are providing competent representation to indigent people regarding LFO issues, including LFO imposition and alleged nonpayment; (ii) that such representation shall be continuing in nature (including all appeals and habeas motions, as allowed by law); (iii) that adequate data is collected; and (iv) that each court-appointed attorney’s caseload does not impede competent representation of indigent defendants.
c. Data Collection. No later than July 30, 2016, Biloxi shall start collecting the following data concerning cases involving the appointment of counsel to represent indigent people in the imposition and/or collection of LFOs: (i) number of cases to which each courtappointed attorney is appointed; (ii) amount of time spent on each case; and (iii) number of jail visits, motion filings, trials, and investigation requests handled by the attorney for each case.
14. Monitoring and Settlement Compliance. a. Within sixty (60) days of implementing the requirements set forth in
Paragraphs 1 through 13 above, Biloxi shall provide the U.S. District Court for the Southern District of Mississippi, Southern Division, and Plaintiffs’ counsel with a status report sufficient to establish that Biloxi has substantially complied with the requirements detailed above.
b. Biloxi shall provide the following information to Plaintiffs’ counsel on or about the following dates: July 15, 2016; November 15, 2016; March 15, 2017; July 15, 2017; November 15, 2017; and March 15, 2018:
i. The case numbers for Biloxi Municipal Court cases in which an individual is placed in jail for nonpayment of an LFO or nonperformance
20

of community service following the Effective Date of this Agreement; ii. All data collected, as defined above in Paragraph 13c, regarding court-appointed counsels’ representation of clients in LFO imposition and/or collection proceedings in the Biloxi Municipal Court; and iii. All new public defender contracts entered into within the prior six (6) months, whether with new public defenders or renewals. B. FINANCIAL TERMS 15. In full and complete satisfaction, compromise, and settlement of the Plaintiffs’ claims for damages, attorneys’ fees and expenses, and without admitting any liability or fault or wrongdoing, the City and Miller have agreed, in addition to promulgating the policies and procedures stated in this Agreement and attached as Exhibits “A” and “B”, to pay a one-time, total sum of Seventy-Five Thousand and no/100ths Dollars ($75,000.00) for all damages, attorneys’ fees and expenses. The City will deliver the Settlement Sum by check made payable to “The American Civil Liberties Union Foundation, Inc.” Said check will be delivered by overnight mail to Plaintiffs’ attorney, Nusrat Choudhury at the ACLU, 125 Broad Street, 18th Floor, New York, New York, 10004, within thirty (30) business days after the Biloxi City Council adopts a resolution approving all terms of this Agreement at its open meeting on March 15, 2016. Plaintiffs’ counsel shall distribute the Settlement Sum as follows: $14,286 for Plaintiff Kennedy; $18,367 for Plaintiff Anderson; $17,347 for Plaintiff Tillery; and $25,000 for attorneys’ fees and expenses. The payment of the above-stated total amount is the entire and only monetary consideration for this Agreement. Each Defendant shall likewise be responsible for his or its own attorneys’ fees and legal expenses in connection with the Incidents and the Lawsuit. Plaintiffs made no claim against Judge Steele for damages, attorneys’ fees and
21

expenses. C. TIME PERIOD 16. Unless otherwise stated, Biloxi, Miller, and Steele shall comply with the terms of
this Agreement for a minimum of three (3) years. D. DISMISSAL OF LAWSUIT 17. On March 4, 2016, Magistrate Judge John Gargiulo of the U.S. District Court for
the Southern District of Mississippi held a Settlement Conference concerning the Lawsuit at which the Parties reported their agreement upon the policy reforms and financial terms addressed above. On March 7, 2016, the U.S. District Court issued a Final Judgment of Dismissal, which stated in full: “FINAL JUDGMENT OF DISMISSAL: that the above captioned civil action is dismissed with prejudice as to all parties, and that the Court hereby specifically retains jurisdiction to enforce the settlements.”
18. The Parties understand the U.S. District Court’s March 7, 2016 Final Judgment to indicate that the Court has retained jurisdiction to enforce the terms of this Agreement and the Parties’ obligations hereunder.
19. In the event any discrepancy exists between the Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service (Exhibit A), the Bench Card (Exhibit B) and this Stipulated Settlement Agreement, the terms, conditions, and procedures in the Biloxi Municipal Court Procedures for Legal Financial Obligations and Community Service (Exhibit A) shall govern.
20. If Plaintiffs’ counsel finds or believes that Defendants Biloxi, Miller, or Steele are not in substantial compliance with any term of this Agreement, Plaintiffs’ counsel shall bring the issue to the attention of Defendants’ counsel prior to filing a motion seeking appropriate relief
22

with the U.S. District Court for the Southern District of Mississippi, Southern Division. The Parties agree to use their reasonable best efforts to resolve any disputes that may arise.
E. RELEASE OF DEFENDANTS BILOXI, MILLER, AND STEELE BY PLAINTIFFS
21. In consideration of the policy reforms and the other covenants contained herein, Plaintiffs do for themselves and for their successors and assigns fully, finally and forever release, acquit, indemnify and hold harmless, and discharge each of the City of Biloxi, Mississippi, and all of its present and former agents, servants, employees, judges, law enforcement officers, departments, elected and non-elected officials, both individually and officially, including, but not limited to, John Miller, James Steele, Mayor Andrew “FoFo” Gilich, all present and former Biloxi City Council members, mayors, judges, and/or employees, subsidiaries, partnerships, successors or predecessor corporations, associations, insurers, attorneys, present and former members, owners, employers, supervisors, superiors, subordinates, coworkers, officers, directors, parents, subsidiaries, underwriters, consultants, subcontractors, and any and all other legal entities (“Releasees”), and covenants not to prosecute or sue Releasees for or on account of any and all Claims, as defined in this Agreement, including, but not limited to, claims of constitutional violations, as well as any actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, in admiralty or in equity, that Plaintiffs, their successors and assigns ever had, now have, or hereafter can, shall or may have, for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of the world to the date of this Agreement, including without limitation any Claims under any federal or state regulation, statute or
23

constitution, or any foreign law, including common law, which were raised or could have been raised in the Lawsuit.
22. It is intended by Plaintiffs and by Defendants Biloxi, Miller, and Steele that this Release shall be complete and shall not be subject to any claim of mistake of fact or law by Kennedy, Tillery, or Anderson, and that it expresses a full and complete settlement of liability claimed and denied, as against Defendants Biloxi, Miller, and Steele, and this Release is intended to avoid litigation and to be final and complete.
23. This Release is the result of a compromise of a disputed claim and is not a finding or an admission of liability, fault, wrongdoing, or responsibility on the part of the parties hereby released, who deny and disclaim such liability, fault, wrongdoing, or responsibility.
24. This Agreement is intended to, and Plaintiffs represent and warrant that each of them will, and hereby do, release and dispose of all liability of Defendants Biloxi, Miller, and Steele, and each of them, to Plaintiffs, and to any of his or her successors, assigns, or immediate family members, that might now or in the future have a claim as a result of any injury sustained by Plaintiffs, or any one of them, as a result of the Incidents, and that Plaintiffs will, and hereby do, release the Releasees from any such claims. Should any such further claim be made by any person or entity specified in this paragraph for which Defendants Biloxi, Miller, and Steele, or any of them might be liable, directly or indirectly, Plaintiffs agree to defend, hold harmless and indemnify Defendants Biloxi, Miller, and Steele, and each of them, from such claims.
F. RELEASE OF PLAINTIFFS BY DEFENDANTS BILOXI, MILLER, AND STEELE
25. In consideration of the General Release and the other covenants contained herein, each of Defendants Biloxi, Miller, and Steele does for itself or himself, and for its or his
24

successors and assigns, fully and forever release and discharge Plaintiffs, and covenants not to prosecute or sue Plaintiffs and any of their successors and assigns for or on account of any and all Claims, as defined in this Agreement, including, but not limited to, claims of constitutional violations, as well as any actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law, in admiralty or in equity, that Defendants Biloxi, Miller, or Steele, ever had, now have, or hereafter can, shall or may have, for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of the world to the date of this Agreement, including without limitation any Claims under any federal, state, or municipal regulation, statute or constitution, or any foreign law, including common law, which were raised or could have been raised in the Lawsuit; provided however, that the provisions of this release do not bar prosecution and disposition of future violations of criminal law, if any, and provided further as to Plaintiff Kennedy, that enforcement of the Biloxi Municipal Court sentence imposed for the 2015 charge of driving under a suspended license shall be handled according to the new Biloxi Municipal Court Procedures for LFOs and Community Service (attached hereto as Exhibit A).
26. It is intended by Defendants Biloxi, Miller, and Steele, and by Plaintiffs Kennedy, Tillery, and Anderson that this Release shall be complete and shall not be subject to any claim of mistake of fact or law by Defendants Biloxi, Miller, or Steele, and that it expresses a full and complete settlement of liability claimed and denied, as against Plaintiffs and, that this Release is intended to avoid litigation and to be final and complete.
27. This Agreement is intended to, and Defendants Biloxi, Miller, and Steele, each
25

represent and warrant that it or he will, dispose of all liability of Plaintiffs Kennedy, Tillery, and Anderson to it or him, and to any of its or his successors or assigns, that might now or in the future have a claim as a result of any injury sustained by it or him as a result of the Incidents.
G. MISCELLANEOUS 28. This Agreement will be binding upon and will inure to the benefit of the signatories hereto and their respective successors and assigns. 29. No amendments of this Agreement will be valid unless made in writing and signed by all of the signatories hereto. 30. This Agreement may be executed in duplicate counterparts, each of which will be deemed an original, with the same effect as if the signatures thereto were on the same instrument. Each signatory to the Agreement may execute this agreement by telefax or email of a scanned copy of the signature page, which shall have the same force and effect as if executed on an original copy. 31. The Parties further agree to cooperate fully and to execute any and all supplementary documents and to take all additional actions that may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. 32. The Parties represent and warrant that they are not relying on the advice of any other Party, or anyone associated with them, as to legal, tax (income, estate, gift, or otherwise), or other consequences of any kind arising out of this Agreement; that they have not relied on any representations or statements, written or oral, of any other Party, including, but not limited to, any factual representation regarding the Incident, except insofar as those representations or statements are set forth in this Agreement; and that they are knowingly and voluntarily signing this Agreement and are not subject to duress, coercion, or undue influence by any other Party or
26

by anyone else.

33. The Parties understand that they have the right to obtain legal counsel to review

and evaluate this Agreement, and attest that they have done so or else have agreed to waive this

right.

34. If, after the date hereof, any provision of this Agreement is held to be illegal,

invalid, or unenforceable, the remaining provisions shall continue in full force and effect.

35. It is the intent of the signatories that no part of this Agreement is to be

presumptively construed either against or in favor of any signatory because of the identity of the

drafter.

36. Paragraph headings contained herein are for purposes of organization only and do

not constitute a part of this Agreement.

37. Any communications or notices to be provided to legal counsel for the parties

pursuant to this Agreement will be sent in writing via email or addressed, via commercial

overnight delivery service, to the attention of the persons identified below (or as the signatories

may subsequently direct in writing):

Qumotria Kennedy:

c/o Nusrat Choudhury, Esq.

American Civil Liberties Union 125 Broad Street, 18th Floor

New York, NY 10004

Telephone: (212) 519-7876

Fax:

(212) 549-2654

Email: nchoudhury@aclu.org

Richard Tillery:

c/o Nusrat Choudhury, Esq.
American Civil Liberties Union 125 Broad Street, 18th Floor
New York, NY 10004

27

Telephone: (212) 519-7876

Fax:

(212) 549-2654

Email: nchoudhury@aclu.org

Joseph Anderson:

c/o Nusrat Choudhury, Esq.

American Civil Liberties Union 125 Broad Street, 18th Floor

New York, NY 10004

Telephone: (212) 519-7876

Fax:

(212) 549-2654

Email: nchoudhury@aclu.org

The City of Biloxi:

City of Biloxi

c/o Gerald Blessey, City Attorney

140 Lameuse Street

Biloxi, Mississippi 39530

Telephone: (228) 435-6254

Fax:

(228) 435-6129

Email: gblessey@biloxi.ms.us

John Miller:

City of Biloxi

c/o Gerald Blessey, City Attorney

140 Lameuse Street

Biloxi, Mississippi 39530

Telephone: (228) 435-6254

Fax:

(228) 435-6129

Email: gblessey@biloxi.ms.us

James Steele:

c/o Corban Gunn

CORBAN GUNN, PLLC

175 Lameuse Street, Suite C

Biloxi, Mississippi 39530

Telephone: (228) 284-6805

Cell:

(228) 697-4866

corban@corbangunn.com

38. The Parties further agree to cooperate fully and in good faith to draft and release

28

jointly to the public and press a reasonable and mutually agreeable joint press release that will summarize the basic terms and intent of this Agreement and the court procedures that the City has agreed to implement. The Parties agree to issue the joint press release simultaneously on March 15, 2016, the date of the regular Biloxi City Council meeting at which this Agreement will be approved.
39. This Agreement constitutes the entire agreement and understanding between and among the signatories with respect to the subject matter hereof and supersedes all other prior or contemporaneous oral agreements, understandings, undertakings and negotiations of the Parties.
SIGNATURE PAGE FOLLOWS
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
No person shall be imprisoned solely because she/he lacks the resources to pay a fine, state assessment, fee, court cost, or restitution (collectively, “legal financial obligation” or “LFO”), or because she/he is unable to perform any required community service.
A person alleged to have not paid an LFO has the right to an ability-to-pay hearing and the right to have legal counsel present for representation to defend against possible incarceration for failure to pay. An indigent person facing possible incarceration for LFO nonpayment has an affirmative right to representation by court-appointed counsel at no cost in LFO collection proceedings.
To protect these and other rights, all Biloxi and private company personnel, if any, involved in LFO collection and evaluation of performance of community service imposed by the Biloxi Municipal Court shall abide by the following policies and procedures.
I) FIRST APPEARANCE - APPOINTMENT OF COUNSEL
The Court may appoint counsel to represent an indigent defendant charged with a misdemeanor offense punishable by confinement. The Court shall determine indigence for purposes of appointing counsel by using the attached Affidavit of Indigence (Form Three) and by considering any other relevant factors.
When the Court determines that representation is required at the plea, trial, sentencing, or postsentencing stage, it must appoint counsel to represent an indigent defendant, unless there is a knowing, voluntary, and intelligent waiver of the right.
II) SENTENCING
Counsel
A defendant is entitled to representation by counsel prior to the Court’s decision to impose a sentence of incarceration or probation for the collection of a fine, state assessment, fee, court cost, or restitution—absent a knowing, voluntary, and intelligent waiver of the right to counsel, as confirmed by an on-the-record colloquy with the Court. If the Court contemplates imposing incarceration or probation on an unrepresented defendant, or wishes to preserve its right to impose a jail sentence in the future, on an unrepresented defendant, the Court must conduct an indigence determination by using the attached Affidavit of Indigence (Form Three), and by considering any other relevant factors, to evaluate whether the defendant is entitled to court-appointed counsel at no cost.
If the Court determines that the defendant is not indigent, it may provide the defendant a continuance to permit retention of counsel. If the defendant seeks to waive the right to counsel at sentencing, the Court must conduct a colloquy to determine that any waiver is knowing, voluntary, and intelligent.
1

EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
Imposition of Sentence
The Court shall assess ability to pay at sentencing when setting the amount of any fine, fee, court cost, or restitution. The Court’s decision to impose jail time shall not be influenced by any finding that the defendant lacks the resources to pay a fine, state assessment, or restitution.
When the Court imposes a sentence that includes an LFO, the Court shall:
(1) determine whether the defendant can pay in full that day, or needs additional time;
(2) set the terms of a Payment Plan by which LFO payments shall be made to the Biloxi Municipal Court Clerk, if the defendant cannot pay in full on sentencing day;
(3) set forth the sentence, including any Payment Plan terms, in a written order indicating the final date by which LFOs must be paid;
(4) provide the defendant the attached Advisement of Rights and Obligations Related to Legal Financial Obligations and Community Service (Form Two); and
(5) provide the defendant the attached LFO Inability to Pay Guide (Form Four).
No person unable to pay LFOs in full on sentencing day will be charged additional fees, costs, or interest for being placed on a Payment Plan with the following exception: a surcharge may be imposed on a defendant who chooses to make an LFO payment by credit card or debit card.
Advisement of Defendant’s Responsibility to Inform the Court of Mailing Address Changes
The Court shall advise the defendant of her/his duty to inform the Court of any future changes to the defendant’s mailing address and that failure to attend any future Compliance Hearings due to non-receipt of a hearing notice by mail may result in the issuance of an arrest warrant for failure to appear (FTA).
As soon as reasonably possible after a defendant has a change of mailing address, the defendant shall deliver to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530 the Notice of Change of Address (Form Two A). The defendant may deliver the notice by U.S. Mail, by hand delivery to the Biloxi Municipal Court Administrator/Clerk’s office, or by email to coacourt@biloxi.ms.us. The Notice of Change of Address may be accessed at http://www.biloxi.ms.us/ChangeOfAddressForm.
III) COMPLIANCE HEARINGS
The Court shall set a Compliance Hearing, by using the attached Biloxi Municipal Court Order Setting Compliance Hearing (Form One), for every person who is sentenced to LFOs and/or community service and who is alleged to have failed to meet the requirements of the Court’s imposed sentence.
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
The Order (Form One) will be sent by regular U.S. Mail to the defendant’s last known address with the Advisement of Rights and Obligations for LFOs and Community Service (Form Two) and the LFO Inability to Pay Guide (Form Four).
The Order (Form One) will provide the defendant with thirty (30) days notice of the Compliance Hearing date and time.
If the Court will impose a jail sentence or wishes to preserve its right to impose a jail sentence in the future, the Court shall appoint counsel at no cost to represent an indigent defendant at a Compliance Hearing unless there is a knowing, voluntary, and intelligent waiver of the right to counsel. The Court shall determine indigence by using the attached Affidavit of Indigence (Form Three) and by considering any other relevant factors.
If the Court determines that the defendant is not indigent, it may provide the defendant a continuance to permit retention of counsel. The Court will document its finding that the defendant was, or was not, indigent and provide evidence in the record to support any finding of nonindigence.
For indigent defendants, the Court will document that a public defender was appointed for the defendant and appeared with the defendant at the Compliance Hearing or that the public defender was offered and that after the Court conducted a colloquy, the defendant knowingly, voluntarily and intelligently waived his/her right to an attorney.
Hearing Procedures and Standards
The Court must advise defendants of the following information set forth in the Bench Card:
1. all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution;
2. all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs;
3. indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning nonpayment of LFOs;
4. that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing;
5. the type of information relevant to determining ability to pay;
6. the potential penalties if a defendant is found to have willfully failed to pay an LFO; and
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
7. that any waiver of the right to counsel or the right to court-appointed counsel must be knowing, voluntary, and intelligent.
The defendant must be given an opportunity to present evidence that the amount allegedly owed is not accurate, or is not in fact owed, if the defendant believes that the amount is not correct.
In Compliance Hearings the Court shall consider, and make findings on, the defendant’s ability to pay, efforts to secure resources, and, if the defendant is found to be unable to pay, the adequacy of alternatives to incarceration.
The Court will document its actions, findings, and evidence in support of its findings, including the Court’s decision on whether the defendant is able to pay LFOs or has willfully failed to pay, whether the defendant made adequate efforts to secure resources, and, if the defendant is found to be unable to pay, whether alternatives to incarceration are adequate to achieve the City’s interests in punishment and deterrence.
Ability to Pay
To determine ability to pay, the Court shall use the Affidavit of Indigence (Form Three) and inquire on the topics set forth in the LFO Inability to Pay Guide (Form Four), as well as any other factors considered by the Court to be relevant.
Any determinations that the Court makes regarding ability to pay or willfulness of nonpayment shall be guided by the Bench Card, and applicable law.
If a defendant is represented, the Court shall provide the defendant with adequate time to privately confer with defense counsel on the issue of ability to pay prior to the Court’s ability-to-pay inquiry.
During the hearing, the Court shall carefully consider the defendant’s responses to each question before making any determination regarding ability to pay and whether nonpayment was willful. If a defendant is unable to provide the information requested by the Court during an ability-to-pay inquiry, the Court shall consider allowing the defendant (and, if applicable, counsel) additional time to gather information to respond to the Court’s questions.
The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. There shall be a rebuttable presumption that a person is unable to pay LFOs upon a finding of at least one of the following factors:
1. the defendant’s annual income is at or below 125% of the federal poverty level for his or her household size according to the current Federal Poverty Level (“FPL”) chart;
2. the defendant is homeless;
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
3. the defendant is incarcerated; or
4. the defendant resides in a mental health facility.
Efforts to Secure Resources
In inquiring into, and making a determination on, the reasonableness of a defendant’s efforts to acquire resources to pay LFOs, the Court shall consider the defendant’s efforts to earn money, secure employment, and borrow money, as well as any limitations on the defendant’s ability to engage in such efforts due to homelessness, health and mental health issues, temporary and permanent disabilities, limited access to public transportation, limitations on driving privileges, and other relevant factors.
Alternatives to Incarceration
If the Court determines that a person is unable to pay fines, fees, court costs, restitution, or state assessments, it shall consider alternative methods of achieving the City’s interest in punishment and deterrence as set forth in the Bench Card, and shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration. Bearden v. Georgia, 461 U.S. 670, 671–72 (1983). These alternatives to incarceration shall include the following:
1. Reduction of the amount of fines, fees, court costs, and restitution imposed;
2. Waiver or Suspension of the fines, fees, court costs, and restitution imposed;
3. Community Service credit toward the discharge of fines, fees, state assessments, court costs, or restitution owed to Biloxi. Biloxi Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed;
4. Extension of the amount of time for payment of the fines, fees, state assessments, court costs, and restitution imposed;
5. Completion of Approved Job Skills Training and Educational, Drug Treatment, Counseling and Mental Health Programs as an alternative or in addition to community service toward the discharge of fines, fees, state assessments, court costs, and restitution owed to Biloxi; and
6. Any other disposition deemed just and appropriate, in the discretion of the Court, pursuant
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to applicable law.
Imposition of Jail
The Court may not impose jail for failure to pay an LFO without making at least one of the following written findings based on evidence:
1. the defendant’s failure to pay was willful;
2. the defendant failed to make sufficient bona fide efforts to acquire the resources to pay; and/or
3. the defendant was unable to pay, despite having made sufficient efforts to acquire resources, but alternative methods for achieving punishment or deterrence, including a reduction or waiver of the fine or restitution, an extension of time to pay, community service, and completion of approved programs are not adequate.
The Court may never impose jail solely because a defendant lacks the resources to pay a fine, fee, court cost, state assessment, or restitution.
Collections By Third Party Contractors
The Court may send a case to collections by a third-party contractor if a defendant has failed to make LFO payments in accordance with a Payment Plan and the Court has determined, after holding a Compliance Hearing in accordance with the procedures described herein, that:
1. the defendant has the ability to pay, but has refused or failed to pay the fine, fee, court costs, restitution, or state assessment owed; or
2. the defendant is unable to pay the LFO, but has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure resources in order to pay a fine, fee, court cost, state assessment or restitution.
In any civil execution, attachment, and/or wage garnishment proceeding to collect unpaid LFOs, the defendant is entitled to the exemptions and exclusions found in Miss. Code Ann. § 85-3-1.
IV. FAILURE TO APPEAR
If a defendant fails to appear for a Compliance Hearing after the Court has mailed thirty (30) days notice of the Compliance Hearing to the address provided by the defendant, the Court may issue a warrant for failure to appear (FTA). It is defendant’s duty and responsibility to notify immediately the Municipal Court of any change in her/his address.
All efforts must be made to serve the FTA warrant during business hours on a weekday. Upon arrest pursuant to an FTA warrant, the defendant should be brought directly to Municipal Court instead of being taken to the Harrison County Adult Detention Center. At that time, the Court will
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE have the defendant complete an Affidavit of Indigence (Form Three) to determine whether the defendant is entitled to court-appointed counsel at no cost. On traffic tickets and other misdemeanor charges that will be fine only, if a defendant is arrested on a weekend, weekday night, holiday, or any other time when Court is not in session, the arresting officer will contact a Biloxi Municipal Court Judge by telephone before transporting the defendant to Harrison County Adult Detention Center, at which time the Judge will authorize release of the defendant on his or her own recognizance until the next Biloxi Municipal Court plea or hearing date.
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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

FORM ONE

BILOXI MUNICIPAL COURT ORDER SETTING COMPLIANCE HEARING 170 Porter Avenue, Public Safety Building, First Floor, Biloxi, MS 39530

CASE NUMBER:

DEFENDANT NAME:

COMPLIANCE HEARING DATE:

TOTAL BALANCE DUE:

Fines:

State Assessments:

Fees:

Court Costs:

Restitution:

PAYMENT PLAN SCHEDULE:

COMMUNITY SERVICE HOURS REQUIRED AND COMPLETION DATE:

OTHER PROGRAM HOURS REQUIRED AND COMPLETION DATE:

You have been charged with the failure to pay and/or the failure to complete community service and/or an approved program as required by the Biloxi Municipal Court.

Payment Options

You may pay the Biloxi Municipal Court Clerk the full amount of your fines, fees, state assessments, court costs, or restitution (“legal financial obligations” or “LFOs”) today or at any point prior to your Compliance Hearing. You may also make installment payments according to the Payment Plan Schedule set forth above.

Compliance Hearing

The Court has set the above date for a Compliance Hearing when it will review the status of your payment of any LFOs and your completion of any community service or approved program imposed as part of your sentence.

You will be expected to explain to the Court the reason why you have not complied with the Court’s Order.

If you are unable to pay the Total Balance Due identified above, the Compliance Hearing offers an opportunity for you to discuss your financial situation and explain why you are unable to pay.

If you are unable to complete the community service or approved program in job skills training, education, counseling, mental health, or drug treatment, required by the specified date, you may explain why you are unable to do so.

You may ask the Court to reduce or waive any fine, fee, court cost, or restitution that you were ordered to pay, or to convert any LFO (fine, fee, court cost, state assessment, restitution) to

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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE community service or participation in an approved job skills training, education, counseling, mental health, or drug treatment. If the Court determines you are indigent and cannot afford an attorney, an attorney will be appointed to represent you. Your ability to pay is a critical issue in this hearing. You should bring with you any records to help explain the reasons for your nonpayment or non-completion of community service, including, but not limited to, pay stubs, utility bills, expenses, federal and state tax returns, documentation of disability status and/or any medical conditions, medical bills, and evidence of efforts to earn or borrow money to satisfy your obligations to the Court and/or to gain paid employment.
______________________________________ Biloxi Municipal Court Judge
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.

Attachments: Form 2:
Form 2A: Form 4:

Advisement of Rights and Obligations for Legal Financial Obligations and Community Service Notice of Change of Address LFO Inability to Pay Guide

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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
FORM TWO
BILOXI MUNICIPAL COURT ADVISEMENT OF RIGHTS AND OBLIGATIONS FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
What is a “Legal Financial Obligation” or “LFO”?
Any fine, fee, state assessment, court cost, or restitution imposed on you by the Court.
Do I have to attend the Compliance Hearing?
THIS HEARING IS MANDATORY. According to the Court records, you have failed to meet the requirements of the Court’s imposed sentence.
You MUST attend if you are unable to pay the Total Balance Due or complete the community service hours or participation in any job skills, education, counseling, mental health, or drug treatment required on your Biloxi Municipal Court Order Setting Compliance Hearing before the hearing date identified on the Order.
What will happen if I do not attend?
A warrant may be issued for your arrest for failure to appear in court.
Do I have a right to a lawyer?
Anyone may be represented by a lawyer at this Court proceeding. If you are found to be indigent, you have the RIGHT TO A COURT-APPOINTED ATTORNEY TO REPRESENT YOU AT NO COST at your Compliance Hearing.
The Court will use an Affidavit of Indigence to determine whether you are indigent and have the right to be represented by a court-appointed attorney at no cost.
The Court will provide you the form at the hearing.
What is the benefit of being represented by a lawyer at my Compliance Hearing?
A lawyer can help you assert your rights, prepare and present financial hardship documentation to the Court, and argue against jail and for alternatives to incarceration, if you are unable to pay any fine, fee, state assessment, court cost, or restitution.
Do I have to pay for a lawyer to represent me at the Compliance Hearing?
Yes, unless you are found to be indigent by the Court. If the Court finds you are indigent, the Court will appoint a lawyer to represent you at no cost to you.
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If the Court appoints an attorney to represent me, when will the attorney prepare my case?
If the Court appoints an attorney to represent you at the Compliance Hearing, it will set a new date and time for the Compliance Hearing. Before that date, your attorney can help you complete the enclosed LFO Inability to Pay Guide and any other forms that the Court deems necessary, and to gather supporting documents. It is your responsibility to contact your appointed attorney for preparation and conference purposes.
You MUST attend the Compliance Hearing at the new date and time.
What will happen at my Compliance Hearing?
You will be expected to explain to the Court the reason why you have not complied with the Court’s Order.
If you report that you are unable to pay LFOs, the Court will use the LFO Inability to Pay Guide and the Affidavit of Indigence, and will consider any other relevant information to inquire and make a decision about your finances.
This inquiry may include, among other things, asking you about your income, bank accounts, expenses (for example: rent, childcare, utilities, food, clothing, medical bills, transportation, etc.), and your property and other assets.
The Court may also inquire about your efforts to obtain money to pay, including your efforts to borrow money, your job search efforts and job skills, and any relevant limitations to your ability to work or secure work, including your disability, homeless status, health and mental health conditions, driving, and transportation limitations.
You should be prepared to present any DOCUMENTS showing your income, efforts to find work, expenses, disability or homeless status, receipt of needs-based public assistance, residence in a mental health facility, other LFOs, health conditions, driving, and transportation limitations.
Based on your ability to pay, you may be ordered to perform community service or be placed on a monthly Payment Plan with the Court.
Can I be JAILED for not being able to pay?
Yes, but there are protections to ensure that you are NOT JAILED solely because you are unable to pay LFOs.
1. The Court MAY IMPOSE JAIL for nonpayment of a FINE, FEE, COURT COST, or RESTITUTION ONLY IF it concludes, based on evidence, that:
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
you ARE ABLE TO PAY, BUT WILLFULLY FAILED to pay;
you FAILED TO MAKE SUFFICIENT EFFORTS to secure money to pay; or
there are NO ADEQUATE ALTERNATIVES to incarceration.
2. The Court CANNOT jail you for LFO nonpayment if you are indigent and you are not represented by a lawyer and have not validly waived your right to counsel.
Can I be jailed for not being able to complete my community service or a required job skill training or program in education, counseling, mental health, or drug treatment?
Yes, but you CANNOT be jailed for non-completion of community service or a program UNLESS you WILLFULLY failed to perform community service or complete the program despite having the ability to do so.
If the Court determines that you have a disability, illness, or other circumstances that would prevent you from performing community service or completing the program, you will not be required to complete it.
What if the terms of my probation require me to pay LFOs or to complete community service or a required program?
Your probation may be revoked and you may be jailed for failing to comply with these terms of your probation ONLY IF the Court determines that:
• you have the ability to pay the LFO, or the ability to complete community service and/or the required program, but failed to do so;
• you failed to make sufficient efforts to acquire the resources to pay or perform community service and/or complete the required program;
• even though you are unable to pay, and you made sufficient efforts to acquire resources, the alternatives to incarceration are not adequate.
What if I am unable to pay?
If the Court determines that you are unable to pay fines, fees, court costs, or restitution, the Court will consider alternatives to incarceration including reducing, suspending or waiving the amount owed, extending the time to pay, or any other disposition deemed just and appropriate, in the discretion of the Court. The Court will also consider converting fines, fees, state assessments, court costs, and restitution owed to Biloxi to community service or the requirement to complete a training treatment or other program.
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE What if the “Total Balance Due” amount on my Biloxi Municipal Court Order Setting Compliance Hearing is incorrect? You may ask the Biloxi Municipal Court Clerk to provide you with a balance history that shows the amount of fines, state assessments, fees, court costs or restitution imposed and the application of any payments you have made. If you believe the information provided to you is incorrect, you may discuss this with your attorney and raise it with the judge at your Compliance Hearing. What if I change my mailing address before I pay my LFO in full or complete my required program? As soon as reasonably possible after a change of mailing address, you should complete the Notice of Change of Address (Form Two A) and deliver it to the Biloxi Municipal Court Clerk at 170 Porter Avenue, Biloxi, Mississippi 39530, either by U.S. Mail, by hand delivery to the Biloxi Municipal Court Administrator/Clerk’s office, or by email to coacourt@biloxi.ms.us. The Notice of Change of Address may be accessed at http://www.biloxi.ms.us/ChangeOfAddressForm.
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE FORM TWO A
NOTICE OF CHANGE OF ADDRESS The undersigned defendant hereby gives notice to the Biloxi Municipal Court of the following change of my residential and, if different, mailing addresses:
............................................................................................................................................................ Previous Residential Address
............................................................................................................................................................ New Residential Address
............................................................................................................................................................ Previous Mailing Address
............................................................................................................................................................ New Mailing Address
............................................................................................................................................................ Telephone Number
............................................................................................................................................................ Email Address (if any)

__________________________________________ SIGNATURE

DATE

RETURN THIS FORM TO THE OFFICE OF THE BILOXI MUNICIPAL COURT CLERK AT 170 PORTER AVENUE, BILOXI, MISSISSIPPI 39530 EITHER BY HAND-
DELIVERY, BY U.S. MAIL, OR BY EMAIL TO coacourt@biloxi.ms.us.

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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE
FORM THREE

AFFIDAVIT OF INDIGENCE In the Municipal Court of the City of Biloxi, Mississippi

CITY OF BILOXI v.
__________________ Defendant

Case No._____________

Name:________________________________________________________________________ Residential Address:_____________________________________________________________ City:______________________________State:_________________ZIP:__________________

1. Public Benefits/ Government Assistance received based on indigence:

□ SSI

□ WIC

□ Food Stamps/SNAP

□ TANF □ Medicaid

□ CHIP

□ AABD □ Needs-based VA Pension □ Pregnant Women Assistance

Benefits □ LIS in Medicare (“Extra Help”) □ Refugee Settlement Benefits

□ Emergency Assistance □ County Assistance, County Healthcare, or General Assistance (GA)

□Public Housing □ Community Care via DADS □ Low-Income Energy Assistance

□ LIS in Medicare (“Extra Help”) □ Child Care Assistance under Child Care and

Development Block Grant □ Other _______________

2. Employment Status: a. Do you have a job?_______ b. How much do you make per hour? $_____.____ c. How many hours do you work per week?______

Employer’s Name:______________________________________________________________ Employer’s Address:____________________________________________________________ City:______________________________State:_________________ZIP:__________________

d. If you don’t have a job, how long have you been unemployed? ____________________

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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

3. Monthly Income Total Work Income (salary, $_____________ wages, tips, commissions, overtime, allowances) (pretax)

Spousal Work Income $_____________

Alimony Received

$_____________

Child Support Received $_____________

Unemployment Compensation

$_____________

Social Security/ Pension / $_____________ Retirement

Trusts

$_____________

Other Income not on list $_____________

Total Monthly Income à $______________
_

3a. Other Income Not Received

Monthly

Type of Income

$_____________

____________________

Total Other Income à
4. Assets Cash on Hand

$______________ _
$_____________

Real Property (home/land)

$_____________

Veteran’s Benefits
Other Income from Family Members (not spousal income or child support)

$_____________ $_____________

Non-Homestead Real Property
Dividends, Interest, Royalties
Motor Vehicle(s) Value

$_____________ $_____________ $_____________

Dividends or Interest Payments Life Insurance Payments Rental Income Worker’s Compensation Disability Union Payments Gifts Inheritance Income Tax Refund

$_____________
$_____________ $_____________ $_____________ $_____________ $_____________ $_____________ $_____________ $_____________
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Certificates of Deposit $_____________

Boats

$_____________

Stocks/Bonds

$_____________

Savings Accounts

$_____________

Checking Accounts

$_____________

Money Market Accounts $_____________

Trusts

$_____________

Other Assets Not on List $_____________

Total Assets à

$______________ _

EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

5. Liabilities and Debts Motor Vehicle Home Other Real Property Child Support Paid

$_____________ $_____________ $_____________ $_____________

LFOs in other cases (fines $_____________ fees, state assessments, court costs, or restitution)
Total Monthly Expenses à $______________
_

Student Loans

Credit Cards

$_____________

Medical Bills

$_____________

Other

$_____________

Total

Liabilities

and

Debts

à$______________
_

6. Monthly Expenses Rent/ House Payments

$_____________

Food and Supplies

$_____________

Utilities

$_____________

Clothing

$_____________

Medical and Dental

$_____________

Insurance

$_____________

School and Child Care $_____________

Vehicle Payments

$_____________

Travel/ Commute

$_____________

Wages Withheld by Court $_____________

Debt Payments (student $_____________ loan, credit card, etc.)

Other Expenses (Describe) $_____________

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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

8. Family and Dependents

a. Do you have any children residing with you?

Yes_____

No

If so, how many? _____________ Age(s)? __________________________________

b. Including yourself, how many people in your household do you support? ___________

c. Marital Status (check one) __Married __Single __Separated ____Widowed __Divorced

Spouse’s Name:__________________________________________________________

Spouse’s Address:_________________________________________________________

City:______________________________State:_________________ZIP:_____________

d. Does your spouse have a job? ____________ Where? _____________________________

e. Are you less than 18 years old? ____________ If yes, please provide the following:

Father’s name:_________________________ His monthly income $________________

Mother’s name:________________________ Her monthly income $________________

9. Please Read and Sign the Following:

I am unable to pay court costs. I verify under penalty of perjury that the statements made in this affidavit are true and correct. I understand the Court may require verification of the information provided above. I agree to immediately report any change in my financial status to the court.

I also understand and agree that the Court may mail important notices to me at the address I provided above and that I have a duty to immediately inform the Court of any change in my address. Failure to do so could result in my failure to receive important notices and lead to the issuance of a warrant for my arrest.

→ _____________________________________ Your Signature

_________________________ Date

IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.

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EXHIBIT A
BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

FORM FOUR LFO INABILITY TO PAY GUIDE
Name:________________________________________________________________________ Attorney Name:_________________________________________________________________ Case Number: __________________________________________________________________ Address:______________________________________________________________________ City:______________________________State:_________________ZIP:__________________

INCOME
Do you have a job? Your wages/salary: How much do you make per hour?
How many hours do you work per week? Occupation: Employer’s name, address and phone number:

Approximate Monthly Amount $__________

How long worked there: Spouse/partner’s monthly wages/salary: Unemployment Compensation Received: If you don’t have a job, how long have you been unemployed? Social Security/Pension/Retirement Received: Worker’s Compensation: Disability: Union Payments: Gifts: Trusts: Alimony Received: Child Support Received: Income from Family Members: Stocks/Bonds: Rental Income: Dividends or Interest: Life Insurance Payments: Inheritances: Income Tax Refund:

$__________ $__________
$__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________

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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

Monthly amount received from public assistance programs:

$__________

o Basic Food (SNAP) o WIC o SSI o Pregnant Women Assistance Benefits o

Medicaid o CHIP

o Poverty-Related Veterans’ Benefits o Temporary Assistance for Needy Families o

Refugee Settlement Benefits o Aged, Blind or Disabled Assistance Program o Public

Housing o Other: _______________

Other sources of income:

$ __________

APPROXIMATE TOTAL MONTHLY INCOME: $ __________

MONTHLY EXPENSES

Wages (garnishments) taken from your paycheck:

Approximate Monthly Amount $__________

Rent/mortgage (your share):

$__________

Utilities (electricity, water, garbage, telephone, etc.):

$__________

Food:

$__________

Travel/Commute:

$__________

Health care (out-of-pocket medical/dental costs, prescriptions,

insurance, debt payments)

$__________

Child support, spousal maintenance, and loan payments:

$__________

Child Care and School:

$__________

Vehicle Payments:

$__________

Court-ordered fines, fees, and restitution – monthly payment amount:

$__________

Credit cards and other debt payments:

$__________

Other basic living costs (diapers, clothing, etc.)

Describe: ________________________________________________

$ __________

APPROXIMATE TOTAL MONTHLY EXPENSES: $ __________

ASSETS
Cash on Hand: Checking Accounts: Savings Accounts: Money Market Accounts: Dividends, Interest, Royalties: Certificates of Deposit: Stocks/Bonds: Trusts: Other:

Approximate Monthly Amount $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________

APPROXIMATE TOTAL ASSETS: $ __________

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BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE

OTHER ASSETS
Real Property (home/land): Non-Homestead Real Property: Motor Vehicle(s): Boat(s):

Approximate Value $__________ $__________ $__________ $__________

APPROXIMATE TOTAL OTHER ASSETS: $ __________

CURRENT OUTSTANDING DEBTS
Credit cards, personal loans, and other installment debt: Motor Vehicle: Home: Other Real Property: Outstanding legal financial obligations (LFOs), including other cases: Outstanding medical care debt: Child support arrears: Outstanding Student Loans: Other outstanding debt (describe):

Approximate Amount $__________ $__________ $__________ $__________ $__________ $__________ $__________ $__________ $ __________

APPROXIMATE TOTAL CURRENT DEBT: $ __________

PERSONAL INFORMATION

Are you less than 18 years old? ______________________ If yes, please provide the following:

Father’s Name: ______________________ His monthly income?

$__________

Mother’s Name: ______________________ Her monthly income?

$__________

Incarceration for this and/or other offenses: __________________________________________

Anticipated length of incarceration for this and/or other offenses: ______________________

In addition to myself, I financially support ____ person/people. Age(s): ____________________

Marital Status (Check One) Married ___ Single ___ Separated ___ Widowed ___ Divorced ___

Spouse’s Name:________________________________________________________________

Spouse’s Address:_______________________________________________________________ Does your spouse have a job? ___________

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EXHIBIT A BILOXI MUNICIPAL COURT PROCEDURES FOR LEGAL FINANCIAL OBLIGATIONS AND COMMUNITY SERVICE Your highest level of education or vocational training, area of study: Brief description of employment history and approximate salary/wages over the past three years:
Description of the impact of LFO payments on your immediate family (include any information regarding housing, employment, child care, transportation, and any additional information you believe to be relevant):
Impact of incarceration or jail time on your ability to pay your LFOs:
Your efforts to borrow money:
If unemployed, what efforts have you made to obtain employment upon being assessed with the fines, fees, state assessments, court costs, and/or restitution?
When was the last time you looked for a job?
Why didn’t you pay the fine and costs from any money received?
Other facts the court should know regarding future ability to pay fees and fines (if a disability or health or mental health condition has impeded your ability to secure employment or earn money, please request permission to approach the bench and tell the judge, if you would like judge to know).
IT IS YOUR DUTY AND RESPONSIBILITY TO NOTIFY IMMEDIATELY THE MUNICIPAL COURT OF ANY CHANGE IN YOUR ADDRESS.
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EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
The U.S. Constitution and Mississippi law require safeguards when collecting fines, state assessments, fees, court costs, and restitution (collectively, “legal financial obligations” or “LFOs”).1 All Biloxi Municipal Court (“BMC”) Judges shall abide by the procedures described below.
RIGHT TO COUNSEL
FIRST APPEARANCE:
When a person is brought before the Biloxi Municipal Court, and charged with a misdemeanor, the Court shall provide the defendant an opportunity to sign an Affidavit of Indigence stating that he or she is indigent and unable to employ counsel.2
The court shall use the Affidavit of Indigence, and any other relevant factors, to evaluate whether the defendant is entitled to counsel.
The court may appoint counsel to represent an indigent defendant charged with a misdemeanor punishable by confinement.3
When the court determines that representation is required at the plea, trial, sentencing, or post-sentencing stage of the proceedings, it must appoint counsel to represent an indigent defendant, unless there is a knowing, voluntary, and intelligent waiver of the right to counsel.4 SENTENCING:
A defendant is entitled to the assistance of counsel before being sentenced to incarceration or probation for the collection of a fine, fee, court cost, state assessment, or restitution, unless there is a knowing, voluntary and intelligent waiver of the right to counsel.5
If the Court contemplates imposing incarceration or probation on an unrepresented defendant, or wishes to preserve its right to impose a jail sentence or probation in the future, the Court must conduct an indigence determination by using the Affidavit of Indigence, and considering any other relevant factors, to evaluate whether the defendant is entitled to court-appointed counsel at no cost.
COMPLIANCE HEARING:
The court must inform every person charged with failure to pay an LFO of: (1) all defendants’ right to representation by legal counsel in any proceeding concerning nonpayment; (2) indigent defendants’ right to court-appointed representation at no cost when facing possible incarceration for failure to pay LFOs.
The Court must appoint counsel to represent indigent people who face the possibility of incarceration due to nonpayment of an LFO, including in Compliance Hearings and Probation Revocation Hearings, unless there is a knowing, voluntary, and intelligent waiver of that right.
WAIVER OF RIGHT TO COUNSEL:
The Court may not accept a written or oral waiver of any right to court-appointed counsel without FIRST informing the defendant of the nature of the charges, of the defendant’s right to be counseled regarding her/his plea, and the range of possible punishments, and ensuring that any waiver is knowing, intelligent, and voluntary.
If a defendant/probationer seeks to waive his or her right to counsel, the court must conduct a colloquy on the right to inform the defendant:
(1) that the indigent defendant has a right to a court- appointed attorney or public defender at no cost; (2) that any fee normally charged for representation by a court-appointed attorney shall be waived for indigent
defendants; and (3) the nature of the charges against the defendant, of defendants’ right to be counseled regarding his or her plea, and the
range of possible punishments.
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EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs
SENTENCING:
The Court shall assess ability to pay when setting the amount of any fine, fee, court cost, or restitution.6 The Court should consider:
(1) the defendant’s financial resources and income; (2) the defendant’s financial obligations and dependents; (3) the defendant’s efforts and ability to find and engage in paid work, including any limitations due to disability or residence in a
mental health facility; (4) outstanding LFO obligations in other cases or to other courts; (5) the length of the defendant’s probation sentence, if any; (6) the goals of deterrence, retribution, and rehabilitation; (7) the Affidavit of Indigence; and (8) any other factor or evidence that the Court deems appropriate.
The Court shall also consider the ability to perform community service when setting any community service requirements.
Fines, Fees, Court Costs, and Restitution:
If the defendant is unable to pay, the Court should consider:
(1) Reduction of the amount of fines, fees, court costs, and restitution imposed; (2) Waiver or Suspension of the fines, fees, court costs and restitution imposed; (3) Community Service credit toward the discharge of fines, fees, court costs, or restitution owed to Biloxi. Biloxi Municipal Court
Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; (4) Extension of the amount of time for payment of the fines, restitution, fees, and court costs imposed; (5) Completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and (6) Other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Mandatory State Assessments: If the defendant is unable to pay, the Court should consider:
(1) extending the defendant’s time to pay; (2) requiring the defendant to perform community service to satisfy the state assessment fees; (3) requiring the completion of approved educational programs, job skills training, counseling and mental health services, and drug
treatment programs as an alternative to, or in addition to, community service; and
(4) imposing any other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
The Court may not reduce or suspend any mandatory state assessments, including those imposed under Miss. Code Ann. § 99-19-73.
Jail: The Court’s decision to sentence a defendant to jail shall NOT solely be based on any finding that the defendant is unable to pay a fine, state assessment, court costs, fee, or restitution.
After setting the amount of any LFOs, and Community Service, and Program Requirements the Court shall:
(1) Determine whether the defendant can pay LFOs in full, or needs additional time; (2) Set the terms of a Payment Plan by which LFO payments shall be made to the BMC Clerk, if the defendant cannot pay in full on
sentencing day; (3) Set forth the sentence in a written order indicating the final date for payment of LFOs and performance of community service, and any
Payment Plan terms; (4) Provide the defendant the Advisement of Rights and Obligations Related to LFOs and Community Service, Notice of Change
of Address form, and LFO Inability to Pay Guide. REPORT OF NONPAYMENT:
Warrants: The court shall not issue any warrant directing arrest for alleged LFO nonpayment absent a Compliance Hearing as described below.
The Court shall hold a Compliance Hearing for defendants who are sentenced to LFOs, community service and/or training, treatment, counseling and mental health programs and who are alleged to have failed to meet the requirements of the Court’s sentence.
The Court shall provide at least 30 days notice of a Compliance Hearing through use of the Biloxi Municipal Court Order Setting Compliance Hearing. The Court shall also provide the Advisement of Rights and Obligations Related to LFOs and Community Service and the LFO Inability to Pay Guide when providing notice of a Compliance Hearing.
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EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs (continued)
COMPLIANCE HEARING:
Compliance Hearings will be audio recorded. In the event audio recording equipment is temporarily not working, the Court shall ensure that the case record includes: 1) the evidence submitted by the defendant, and 2) written documentation of the Court’s findings, supporting evidence, and colloquy concerning ability to pay, efforts to secure resources, alternatives to incarceration, and the right to counsel.
Hearing Procedures and Standards
The Court must advise defendants of:
(1) all defendants’ right to an ability-to-pay hearing prior to jailing for nonpayment of fines, fees, state assessments, court costs, or restitution;
(2) all defendants’ right to be represented by legal counsel for defense against possible incarceration for failure to pay LFOs; (3) indigent defendants’ right to court-appointed counsel at no cost to defend against possible incarceration in proceedings concerning
nonpayment of LFOs; (4) that ability to pay, efforts to secure resources, and alternatives to incarceration are critical issues in a Compliance Hearing; (5) the type of information relevant to determining ability to pay; and (6) the potential penalties if a person is found to have willfully failed to pay an LFO.
The Court must provide defendants an opportunity to present evidence that the amount allegedly owed is not accurate or not in fact owed if the defendant believes the amount is not correct.
As part of determining whether the failure to pay was willful and whether incarceration can be imposed, the Court shall:
1. Inquire into, and make a determination on, ability to pay LFOs, by considering the totality of the circumstances, including the defendant’s income, assets, debts, other LFO obligations, and any other information the Court deems appropriate. The Court shall use the Affidavit of Indigence and the LFO Inability to Pay Guide to conduct this inquiry.
The Court shall find that a defendant is unable to pay LFOs when, in consideration of the totality of the circumstances, it finds that the payment of LFOs would impose substantial hardship on the defendant or the defendant’s dependents, including children and elderly parents. The Court shall make a rebuttable presumption that a person is unable to pay LFOs when:
a. the defendant’s annual income is at or below 125% of the federal poverty level for his or her household size according to the current Federal Poverty Level (“FPL”) chart;
b. the defendant is homeless; c. the defendant is incarcerated; and/or d. the defendant resides in a mental health facility.
2. Inquire into, and make a determination on, the reasonableness of a defendant’s efforts to acquire resources to pay LFOs.
The Court shall take into account efforts to earn money, secure employment and borrow money, as well as any limitations on the defendant’s ability to engage in such efforts due to homelessness, health and mental health issues, temporary and permanent disabilities, limited access to public transportation, limitations on driving privileges, and other relevant factors.
3. If the Court determines that a defendant is unable to pay, the Court will consider and make a determination on the adequacy of alternatives to incarceration for nonpayment of fines or restitution, including:
a. Reduction of the amount of fines, fees, court costs, and restitution imposed; b. Waiver or Suspension of the fines, restitution, fees, and court costs imposed; c. Community Service credit toward the discharge of fines, fees, state assessments, court costs, or restitution owed to Biloxi. Biloxi
Municipal Court Judges shall not impose a fee for those who participate in community service. Biloxi Municipal Court Judges will attempt to provide sufficient variety of opportunities for community service to accommodate individuals who have physical or mental limitations, who lack private transportation, who are responsible for caring for children or family members, or who are gainfully employed; d. Extension of the amount of time for payment of the fines, restitution, fees, state assessments, and court costs imposed; e. Completion of approved educational programs, job skills training, counseling and mental health services, and drug treatment programs as an alternative to, or in addition to, community service; and f. Imposing other disposition deemed just and appropriate, in the discretion of the Court, pursuant to applicable law.
Judges shall be guided by the Supreme Court’s recognition that the government’s “interest in punishment and deterrence can often be served fully by alternative means” to incarceration.7
The Court will document its actions and findings and evidence in the record supporting its findings.
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EXHIBIT B BENCH CARD Biloxi Municipal Court Procedures for Legal Financial Obligations & Community Service
IMPOSITION AND COLLECTION OF LFOs (continued)
IMPOSING JAIL FOR FAILURE TO PAY
The Court may impose incarceration following a Compliance Hearing if it makes one of the following findings, supported by evidence:
(1) a defendant has willfully refused to pay the fine, fee, court cost, state assessment, or restitution when she/he has the means to pay;
(2) a defendant has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure resources in order to pay the fine; or
(3) the defendant is unable to pay, despite making sufficient efforts to acquire the resources to pay, and alternative methods for achieving punishment or deterrence are not adequate.8
THIRD PARTY COLLECTIONS
The Court may send a case to collections by a third-party contractor if a defendant has failed to make LFO payments in accordance with a Payment Plan and the Court has determined, after holding a Compliance Hearing in accordance with the procedures described herein, that:
(1) the defendant has the ability to pay, but has refused to pay the fine, fee, court costs, restitution, or state assessment owed; or
(2) the defendant is unable to pay the LFO, but has failed to make sufficient bona fide efforts to seek employment, borrow money, or otherwise secure the resources in order to pay a fine, fee, court cost, state assessment, or restitution.
In any civil execution, attachment, and/or wage garnishment proceeding to collect unpaid LFOs, the defendant is entitled to the exemptions and exclusions found in Miss. Code Ann. § 85-3-1.

Collecting Fines, Fees, State Assessments, Court Costs, and Restitution

Permitted Methods of Collection  Voluntary Payment  Payment Plan Administered by Court  Community Service (except restitution owed to a party other than Biloxi)  Execution of Civil Judgment  Collection by Third Party Contractors following Compliance Hearing and Court determination as described above.

Impermissible Methods of Collection
 Imposing Jail at Sentencing  Issuance of Failure-to-Pay Warrants Upon Report of
Nonpayment  Forfeiture of Confiscated Money  Imposing “pay or stay” sentence

1 Bearden v. Georgia, 461 U.S. 670, 672 (1983) (“If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures to punishment other than imprisonment.”) (Emphasis added); Miss. Code Ann. §§ 21-23-7; 25-32-9; 63-1-53; 99-15-26; 99-37-11. 2 Miss. Code Ann. § 25-32-9. 3 Miss. Code Ann. §§ 21-23-7; 25-32-9 4 Miss. Code Ann. § 25-32-9. 5 Alabama v. Shelton, 535 U.S. 654, 658 (2002). 6 Bearden v. Georgia, 461 U.S. 660, 669–70 (1983) (“[W]hen determining initially whether the State’s penological interests require imposition of a term of imprisonment, the sentencing court can consider the entire background of the defendant, including his employment history and financial resources.”). 7 Bearden v. Georgia, 461 U.S. 670, 671–72 (1983). 8 Id. at 668–69.
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