Case: 9:17-cv-2759 As of: 03/03/2020 11:12 AM EST 1 of 6

CLOSED,JURY
U.S. District Court District of South Carolina (Beaufort) CIVIL DOCKET FOR CASE #: 9:17−cv−02759−RMG

Bairefoot et al v. Beaufort South Carolina, City of et al Assigned to: Honorable Richard M Gergel Cause: 42:1983pr (Other)
Plaintiff

Date Filed: 10/11/2017 Date Terminated: 07/09/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Tina Renee Bairefoot

represented by Benjamin Rush Smith , III Nelson Mullins Riley and Scarborough PO Box 11070 Columbia, SC 29211 803−799−2000 Fax: 803−256−7500 Email: rush.smith@nelsonmullins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ezekiel Reifler Edwards American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Email: eedwards@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stuart Murray Andrews , Jr Nelson Mullins Riley and Scarborough PO Box 11070 Columbia, SC 29211 803−255−9461 Fax: 803−255−5506 Email: stuart.andrews@nelsonmullins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan King Dunn American Civil Liberties Union of SC Foundation PO Box 20998 Charleston, SC 29413 843−282−7953 Fax: 843−720−1428 Email: sdunn@aclusc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Twyla Carter American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004 212−549−2500 Email: tcarter@aclu.org LEAD ATTORNEY PRO HAC VICE

Case: 9:17-cv-2759 As of: 03/03/2020 11:12 AM EST 2 of 6

Plaintiff Dae'Quandrea Trevell Nelson
Plaintiff Nathan Lee Fox individually and on behalf of a class of all others similarly situated
V. Defendant Beaufort South Carolina, City of
Defendant

ATTORNEY TO BE NOTICED
represented by Benjamin Rush Smith , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Murray Andrews , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Benjamin Rush Smith , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stuart Murray Andrews , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth Paul Woodington Davidson Wren and Plyler PA 1611 Devonshire Drive Second Floor PO Box 8568 Columbia, SC 29204 803−806−8222 Fax: 803−806−8855 Email: kwoodington@dml−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II Davidson Wren and Plyler PA 1611 Devonshire Drive Second Floor PO Box 8568 Columbia, SC 29204 803−806−8222 Fax: 803−806−8855 Email: wdavidson@dml−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 9:17-cv-2759 As of: 03/03/2020 11:12 AM EST 3 of 6

Bluffton South Carolina, Town of

represented by Kenneth Paul Woodington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Henry Davidson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/11/2017 10/11/2017 10/11/2017 10/18/2017
10/18/2017
10/24/2017
10/25/2017 10/25/2017
10/26/2017 11/27/2017
12/04/2017

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0420−7404633.), filed by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson. Service due by 1/9/2018(sshe, ) (Entered: 10/12/2017)
2 Local Rule 26.01 Answers to Interrogatories by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson.(sshe, ) (Entered: 10/12/2017)
3 Summons Issued as to All Defendants. (sshe, ) (Entered: 10/12/2017)
5 MOTION to Appear Pro Hac Vice by Ezekiel Edwards ( Filing fee $ 250 receipt number 0420−7417785) by Tina Renee Bairefoot. Response to Motion due by 11/1/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Affidavit PHV application for Edwards, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 10/18/2017)
6 MOTION to Appear Pro Hac Vice by Twyla Carter ( Filing fee $ 250 receipt number 0420−7417786) by Tina Renee Bairefoot. Response to Motion due by 11/1/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Affidavit PHV application for Carter, # 2 Exhibit Certificate of Good Standing Carter)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 10/18/2017)
7 Consent MOTION for Extension of Time to File Answer re 1 Complaint by Beaufort South Carolina, City of, Bluffton South Carolina, Town of. Response to Motion due by 11/7/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Woodington, Kenneth) (Entered: 10/24/2017)
8 TEXT ORDER granting 7 Motion for Extension of Time to Answer. All Defendants answers are due 12/6/17. Entered at the direction of the Honorable Richard M Gergel on 10/25/17.(ltap, ) (Entered: 10/25/2017)
9 ACCEPTANCE OF SERVICE OF COMPLAINT by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson. All Defendants. (Attachments: # 1 Supporting Documents 2017.10.16 Acceptance of Service − City of Beaufort by William Harvey, # 2 Supporting Documents 2017.10.17 Acceptance of Service − Town of Bluffton by Terry Finger)(Smith, Benjamin) (Entered: 10/25/2017)
10 ORDER granting 5 Motion for Ezekiel Edwards to Appear Pro Hac Vice for Tina Renee Bairefoot; granting 6 Motion for Twyla Carter to Appear Pro Hac Vice for Tina Renee Bairefoot. Signed by Honorable Richard M Gergel on 10/26/2017.(sshe, ) (Entered: 10/26/2017)
12 Consent MOTION for Extension of Time to File Answer re 1 Complaint (Second motion) by Beaufort South Carolina, City of, Bluffton South Carolina, Town of. Response to Motion due by 12/11/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Woodington, Kenneth) (Entered: 11/27/2017)
13 TEXT ORDER : For good cause shown, the time for Defendants to answer or otherwise plead is extended to 12/15/17. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/4/17.(ltap, ) (Entered: 12/04/2017)

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12/13/2017 12/13/2017 12/21/2017 12/21/2017 01/22/2018 01/22/2018 01/23/2018 01/25/2018 01/25/2018 02/01/2018 02/02/2018
02/02/2018 02/12/2018

14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Beaufort South Carolina, City of, Bluffton South Carolina, Town of. Response to Motion due by 12/27/2017. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support)No proposed order.(Woodington, Kenneth) (Entered: 12/13/2017)
15 Local Rule 26.01 Answers to Interrogatories by Beaufort South Carolina, City of, Bluffton South Carolina, Town of.(Woodington, Kenneth) (Entered: 12/13/2017)
16 Consent MOTION for Extension of Time for filing by Plaintiffs of a Response in Opposition to Defendants' Motion to Dismiss by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson. Response to Motion due by 1/4/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, Benjamin) (Entered: 12/21/2017)
17 TEXT ORDER granting 16 Motion for Extension of Time to file Response to 14 Motion to Dismiss. Response must be filed on or before January 22, 2018. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/21/17.(ltap, ) (Entered: 12/21/2017)
18 MOTION for Leave to File Excess Pages by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson. Response to Motion due by 2/5/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, Benjamin) (Entered: 01/22/2018)
19 RESPONSE in Opposition re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Response filed by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson.Reply to Response to Motion due by 1/29/2018 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Smith, Benjamin) (Entered: 01/22/2018)
20 TEXT ORDER granting 18 Motion for Leave to File Excess Pages. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 1/23/18.(ltap, ) (Entered: 01/23/2018)
21 Consent MOTION for Extension of Time to File Response/Reply as to 19 Response in Opposition to Motion, by Beaufort South Carolina, City of, Bluffton South Carolina, Town of. Response to Motion due by 2/8/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Woodington, Kenneth) (Entered: 01/25/2018)
22 TEXT ORDER granting 21 Motion for Extension of Time to File Response/Reply. Replies due by 2/5/2018. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 1/25/18.(ltap, ) (Entered: 01/25/2018)
23 NOTICE of Hearing on 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 3/13/2018 at 10:00 AM in J. Waties Waring Judicial Cntr, 83 Meeting St, Charleston, Courtroom TBD before Honorable Richard M Gergel. (ltap, ) (Entered: 02/01/2018)
24 Consent MOTION for Extension of Time to File Response/Reply as to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 19 Response in Opposition to Motion, by Beaufort South Carolina, City of, Bluffton South Carolina, Town of. Response to Motion due by 2/16/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Woodington, Kenneth) (Entered: 02/02/2018)
25 TEXT ORDER granting 24 Consent Motion for Extension of Time to File Response/Reply. Response to Motion due by 2/12/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 2/2/18.(ltap, ) (Entered: 02/02/2018)
26 REPLY to Response to Motion re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Response filed by Beaufort South Carolina, City of, Bluffton South Carolina, Town of. (Woodington, Kenneth) (Entered: 02/12/2018)

Case: 9:17-cv-2759 As of: 03/03/2020 11:12 AM EST 5 of 6

03/09/2018 03/09/2018 03/09/2018 03/12/2018 04/09/2018 04/24/2018
05/16/2018 06/14/2018 06/14/2018
07/16/2018

27 MOTION to Continue Hearing by Tina Renee Bairefoot, Nathan Lee Fox, Dae'Quandrea Trevell Nelson. Response to Motion due by 3/23/2018. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, Benjamin) (Entered: 03/09/2018)
28 TEXT ORDER granting 27 Motion to Continue Hearing. Plaintiff has moved for a continuance of the hearing on Defendants' motion to dismiss because of a sudden family illness. (Dkt. No. 27). Defendants have consented to the continuance. For good cause shown, the continuance is granted. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 03/09/2018. (egra, ) (Entered: 03/09/2018)
29 NOTICE of Cancellation of Hearing: on 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 3/13/2018 at 10:00 AM in J. Waties Waring Judicial Cntr, 83 Meeting St, Charleston, Courtroom TBD before Honorable Richard M Gergel. (egra, ) (Entered: 03/09/2018)
30 NOTICE of Hearing on 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 4/9/2018 at 10:00 AM in Charleston Courtroom #1, J. Waties Waring Judicial Center, 83 Meeting St, Charleston before Honorable Richard M Gergel. (ltap, ) (Entered: 03/12/2018)
31 Minute Entry. Proceedings held before Honorable Richard M Gergel: Motion Hearing held on 4/9/2018 re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. Court to issue an order. Court Reporter Tana Hess. (erav, ) (Entered: 04/09/2018)
32 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Motion to Dismiss held on April 9, 2018, before Judge Richard M. Gergel. Court Reporter/Transcriber Tana J. Hess, Telephone number/E−mail tana_hess@scd.uscourts.gov 843.779.0837. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 5/15/2018. Redacted Transcript Deadline set for 5/25/2018. Release of Transcript Restriction set for 7/23/2018. (thes, ) (Entered: 04/24/2018)
33 ORDER AND OPINION denying 14 Defendants' Motion to Dismiss Signed by Honorable Richard M Gergel on 5/16/2018.(sshe, ) (Entered: 05/16/2018)
34 ANSWER to 1 Complaint by Beaufort South Carolina, City of, Bluffton South Carolina, Town of.(Woodington, Kenneth) (Entered: 06/14/2018)
35 SCHEDULING ORDER Rule 26(f) Conference Deadline 7/5/2018, 26(a) Initial Disclosures due by 7/19/2018, Rule 26 Report due by 7/19/2018, Motions to Amend Pleadings due by 9/12/2018, Plaintiffs ID of Expert Witness due by 10/12/2018, Defendants ID of Expert Witnesses Due by 11/13/2018, Records Custodian Affidavit due by 11/19/2018, Discovery due by 12/11/2018, Motion in Limine due by 15 business days prior to jury selection, Motions due by 12/27/2018, Rule 26(a)(3) Disclosures due by 21 business days prior to jury selection, Pretrial Briefs due by 5 business days prior to jury selection, Case ready for Jury Selection and/or Trial Deadline on or after 4/1/2019 Signed by Honorable Richard M Gergel on 6/14/2018. (sshe, ) (Entered: 06/14/2018)
36 TEXT ORDER The Court has been advised by Judge Duffy, serving as the mediator in this matter, that the parties are making constructive progress in their settlement negotiations and request the Court stay the present scheduling order while the parties devote their efforts to fashioning a settlement that meets state and federal legal requirements. For good cause shown, the motion to stay is granted. The parties are directed to file a joint report every 60 days from this date concerning the status of the case and to promptly advise the Court if a proposed settlement has been reached. AND IT IS SO ORDERED. Entered at the Direction of Honorable Richard M Gergel on 7/16/2018. (sshe, ) (Entered: 07/17/2018)

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07/09/2019 09/06/2019 09/09/2019 09/27/2019 10/07/2019

41 ORDER DISMISSING CASE without costs and without prejudice to the right of either party, upon good cause shown within sixty (60) days, to reinstate the action if settlement is not consummated. Signed by Honorable Richard M Gergel on 7/9/2019. (sshe, ) (Entered: 07/09/2019)
42 Consent MOTION for Extension of Time to Consumate Settlement by Tina Renee Bairefoot. Response to Motion due by 9/20/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Dunn, Susan) (Entered: 09/06/2019)
43 TEXT ORDER The Court GRANTS the Consent Motion for an Extension (Dkt. No. 42 ) and EXTENDS the time to consummate settlement through September 27, 2019. Except for this extension of time, the Order of Dismissal (Dkt. No. 41) is not otherwise amended or changed. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/9/2019.(sshe, ) (Entered: 09/09/2019)
44 Consent MOTION for Settlement by Tina Renee Bairefoot. Response to Motion due by 10/11/2019. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 09/27/2019)
45 ORDER granting 44 Motion for Settlement Signed by Honorable Richard M Gergel on 10/7/2019.(sshe, ) (Entered: 10/07/2019)

 
 9:17-cv-02759-RMG Date Filed 10/11/17 Entry Number 1 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

TINA RENEE BAIREFOOT,

*

*

DAE’QUANDREA TREVELL NELSON and *

*

NATHAN LEE FOX, individually and on behalf *

of a class of all others similarly situated,

*

*

Plaintiffs,

*

*

v.

*

*

CITY OF BEAUFORT, SOUTH CAROLINA; *

*

TOWN OF BLUFFTON, SOUTH CAROLINA, *

*

*

*

Defendants.

*

*

Case No: 9:17-cv-2759-RMG (Class Action) Jury Trial Requested

CLASS ACTION COMPLAINT INTRODUCTION
1. It is unconstitutional to deny counsel to poor people facing criminal prosecution and then incarcerate them upon conviction. Yet each week in South Carolina’s municipal courts, defendants are prosecuted, convicted, and jailed without having a lawyer appointed to their case, or ever even being advised of their right to counsel. Most of these defendants – potentially thousands – are incarcerated in local jails every year, while some serve their unlawful sentences in state prison. If South Carolina municipalities choose to create municipal courts, they have no choice but to comply with the Constitution.
2. Upon information and belief, the majority of the 212 municipalities in South Carolina deprive indigent defendants of counsel in municipal courts, including the City of Beaufort
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and the Town of Bluffton. Despite the total absence of public defenders in their municipal courts, these cities and towns continue to prosecute, convict, and impose jail sentences on uncounseled defendants. It is the policy, practice, and custom of Defendants City of Beaufort and Town of Bluffton to exclude indigent defense from municipal courts. Doing so is a direct and proximate cause of Plaintiffs’ and class members’ unlawful incarceratory sentences and consequent injury. Such consequences include separating parents and children, harming physical and emotional health, and adversely affecting housing, employment, child custody, and immigration status.
3. In December 2016, Plaintiff Tina Renee Bairefoot was stopped at the door of Walmart, allegedly having put candy bars, a dog collar, and hair care product in her coat pockets without paying. She never removed the items from the store premises, and all items were returned to Walmart. Nonetheless, Ms. Bairefoot was charged with shoplifting in Beaufort Municipal Court before the Honorable Ralph “Ned” Tupper. Judge Tupper did not advise Ms. Bairefoot of her right to counsel and did not appoint her an attorney. Judge Tupper did not allow Ms. Bairefoot to present evidence in her defense and did not afford her meaningful process in the adjudication of her guilt. Instead, Judge Tupper accepted the state’s evidence at face value, convicted Ms. Bairefoot, and sentenced her to 30 days in the Beaufort County Detention Center (“BCDC”). During the 14 days she served in jail, Ms. Bairefoot was deprived of her medications and her mental health declined rapidly. Ms. Bairefoot’s wrongful incarceration caused her physical pain and suffering, mental anguish, emotional distress, and loss of income opportunity and earning capacity. Ms. Bairefoot never spoke to a lawyer during her entire case.
4. In January 2016, Plaintiff Dae’Quandrea Trevell Nelson was charged with disturbing the schools and assault and battery third degree, his first criminal case. Mr. Nelson had a bench trial on his nineteenth birthday before the Honorable Dustin Lee in Bluffton
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Municipal Court. Judge Lee did not advise Mr. Nelson of his right to counsel and did not appoint him an attorney. Mr. Nelson did not have the legal knowledge, training, or experience to defend himself and was convicted and sentenced to two concurrent terms of 30 days in Beaufort County Detention Center. He served 14 days in jail. As a result of this case, Mr. Nelson lost his job and the opportunity for a college football scholarship. Mr. Nelson’s wrongful incarceration caused him physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity. Mr. Nelson never spoke to a lawyer during his entire case.
5. In February 2017, Plaintiff Nathan Lee Fox pled guilty before the Honorable Mary Sharp in Beaufort Municipal Court on five traffic-related charges. Judge Sharp did not advise Mr. Fox of his right to counsel and did not appoint him an attorney. Judge Sharp sentenced Mr. Fox to five consecutive terms of 10 days in Beaufort County Detention Center on each charge, for a total of 50 days in jail, including for speeding not more than 10 miles per hour above the speed limit (an offense for which South Carolina law does not contemplate jail time). Mr. Fox spent a total of 38 days in Beaufort County Detention Center, during which time his health declined significantly. Mr. Fox’s wrongful incarceration caused him physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity. Mr. Fox never spoke to a lawyer during his entire case.
6. Beaufort County records indicate that municipal courts are responsible for 16.7 percent of the jail population in Beaufort County. Put otherwise, one out of six people in jail in Beaufort County is incarcerated on municipal charges only. None of them have public defenders. Records also indicate that over a 90-day period in early 2017, uncounseled convictions in Beaufort and Bluffton Municipal Courts resulted in over 50 jail sentences served in Beaufort County Detention Center. There was no defense attorney in any of these cases. Plaintiffs Tina Bairefoot,
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Dae’Quandrea Nelson, and Nathan Fox bring this class action suit under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated who have been convicted and sentenced to incarceration in Beaufort and Bluffton Municipal Courts without the assistance of counsel as a direct consequence of the City of Beaufort and Town of Bluffton’s policy, practice, and custom of denying counsel to indigent defendants in violation of their Sixth and Fourteenth Amendment rights. Plaintiffs seek, for themselves and the putative class members, general monetary damages against the City of Beaufort and the Town of Bluffton to compensate them for each day of their wrongful confinement. Plaintiffs Tina Bairefoot, Dae’Quandrea Nelson, and Nathan Fox also seek for themselves and the putative class members additional monetary damages against the City of Beaufort and the Town of Bluffton to compensate Plaintiffs and putative class members for additional injuries, including but not limited to physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity as a result of their wrongful incarceration.
JURISDICTION AND VENUE 7. Plaintiffs’ claims arise under the Constitution and laws of the United States. This Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). 8. The federal rights asserted by Plaintiffs are enforceable under 42 U.S.C. § 1983. 9. Venue is proper in the District of South Carolina under 28 U.S.C. § 1391(b). All Defendants reside in this judicial district. All of the acts and omissions by Defendants giving rise to this action occurred in this judicial district.
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PARTIES Named Plaintiffs
10. Plaintiff Tina Renee Bairefoot is a 39-year-old female who resides in Beaufort, South Carolina. On February 6, 2017, Ms. Bairefoot was convicted and sentenced to jail without a lawyer and without valid advisement of her right to counsel in Beaufort Municipal Court. Ms. Bairefoot served 16 days in Beaufort County Detention Center. During her unlawful confinement she was deprived of various medications for several days. Ms. Bairefoot’s wrongful incarceration caused her physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity.
11. Plaintiff Dae’Quandrea Trevell Nelson is a 19-year-old male who resided in Bluffton, South Carolina, with his mother at all relevant times to this lawsuit. On February 21, 2017, Mr. Nelson was convicted and sentenced to jail without a lawyer and without valid advisement of his right to counsel in Bluffton Municipal Court. Mr. Nelson served 16 days in Beaufort County Detention Center causing him to lose his job. Mr. Nelson’s wrongful incarceration caused him physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity.
12. Plaintiff Nathan Lee Fox is a 31-year-old male who resides in Mauldin, South Carolina. On February 20, 2017, Mr. Fox was convicted and sentenced to 50 days in jail without a lawyer and without valid advisement of his right to counsel in Beaufort Municipal Court. Mr. Fox’s wrongful incarceration caused him physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity.
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Defendants 13. Defendant City of Beaufort and Defendant Town of Bluffton are municipal
governmental entities in the state of South Carolina, geographically located within Beaufort County. Beaufort and Bluffton have chosen to establish Beaufort Municipal Court and Bluffton Municipal Court, respectively, as optional courts pursuant to S.C. Code Ann. § 14-25-5(a).
14. Pursuant to Proviso 61.12 to the South Carolina 2017-2018 Appropriations Act, first enacted for Fiscal Year 2015-2016 and renewed annually, the City of Beaufort and Town of Bluffton are responsible for “provid[ing] adequate funds for representation of indigents” in their courts through agreement with the public defenders or other counsel. H. 3720, 122nd Sess., at § 61.12 (2017).
15. However, Beaufort and Bluffton have a policy, practice, and custom not to provide counsel to indigent defendants in their municipal courts.
FACTS The Municipal Court System
16. Under South Carolina Code § 14-25-5(a), municipal courts are optional. Municipal courts hear low-level misdemeanor and traffic offenses occurring within city or town limits. Municipal courts have overlapping jurisdiction with county magistrate courts. Therefore, if municipalities do not establish their own courts, the same criminal offenses can be prosecuted in magistrate courts. Out of a total of 270 incorporated municipalities in South Carolina, 212 cities or towns have elected to create municipal courts.
17. Municipal courts’ dockets are voluminous. In Fiscal Year 2015-2016, at least 427,273 cases were filed in municipal courts statewide, of which 81,344 were criminal, 6,695 DUI, 321,892 traffic, and 17,342 ordinance violations. Because not all municipalities reported, the total
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municipal caseload may be substantially higher. By contrast, in the same year there were 120,678 cases filed in General Sessions Courts throughout the state, less than one-third of the municipal courts’ caseloads.
18. With a state adult population of approximately 3.8 million, the minimum 427,273 municipal cases filed in Fiscal Year 2015-2016 means approximately one municipal case filed for every nine adults in South Carolina.
19. Beaufort Municipal Court has “criminal/traffic court” twice a week. For Fiscal Year 2015-2016, the City reported a total of 10,175 municipal cases filed in Beaufort Municipal Court. With the City of Beaufort’s adult population in 2015 at approximately 10,472, the City’s 10,175 municipal cases means approximately one municipal case for every adult resident – nine times the rate statewide.
20. Bluffton Municipal Court has “criminal/traffic court” once a week. For Fiscal Year 2015-2016, the City reported a total of 4,680 municipal cases filed in Bluffton Municipal Court. With the Town of Bluffton’s adult population in 2015 at approximately 11,894, the Town’s rate of approximately two municipal cases filed for every five adult residents is almost four times the rate statewide.
21. Criminal, DUI, and some traffic offenses carry statutory jail sentences under South Carolina law, and a few carry mandatory jail sentences. South Carolina’s Requirements for Indigent Defense in Municipal Courts
22. South Carolina Appellate Court Rule 602, Defense of Indigents, provides “(a) . . . In cases involving criminal charges within the jurisdiction of . . . municipal courts . . . if a[n incarceration] sentence is likely to be imposed following any conviction, the presiding judge of the court in which the matter is to be determined shall inform the accused as provided in Rule 2
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when the case is called for disposition. . . . [The court shall:] Advise the accused of his right to counsel and his right to the appointment of counsel by the court, if the accused is financially unable to employ counsel.”
23. South Carolina law of criminal procedure provides that “[a]ny person entitled to counsel under the Constitution of the United States shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge unless such person voluntarily and intelligently waives his right thereto.” S.C. Code Ann. § 17-3-10.
24. The Constitution of the State of South Carolina is silent as to the right to counsel. 25. In 2015 South Carolina General Assembly passed Proviso 61.12, “Optional Courts and Indigent Representation.” Proviso 61.12 reads as follows: “If a municipality has or elects to have an optional municipal court system, it must provide adequate funds for representation of indigents. No public defender shall be appointed in any such court unless the municipality and the office of the circuit public defender have reached an agreement for indigent representation and no funds allocated to the [South Carolina] [C]ommission [on Indigent Defense] shall be used to provide compensation for appointed counsel in municipal courts.” 26. Proviso 61.12 has been renewed each year since 2015, most recently as part of South Carolina’s 2017-2018 Appropriations Act, approved by the General Assembly and enacted on June 21, 2017. 27. The Municipal Association of South Carolina (“MASC”), which represents and serves the state’s 270 incorporated municipalities, including the City of Beaufort and Town of Bluffton, issued a feature in its October 2015 newsletter entitled “Indigent defense costs are municipal responsibility.” In it, the MASC legislative and public policy advocate Scott Slatton
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explained that municipalities have four potential courses of actions in light of the Proviso: (1) Contract with the public defender; (2) Contract with a private attorney; (3) “Remove the threat of jail time for indigents, although this makes it more difficult to collect any fines that might be imposed on the defendant[;]” or (4) “Close the municipal court and negotiate an agreement with the county to have municipal cases tried in magistrate court.” Citing Mr. Slatton, the MASC website adds, “Failure to provide indigents with counsel could expose cities to liability.”
28. Upon information and belief, only a fraction of South Carolina’s municipal courts have entered into agreements with public defenders or private attorneys. Defendants City of Beaufort and Town of Bluffton have not entered into such agreements.
29. Upon information and belief, in the municipal courts for the majority of municipalities that have not entered into agreements with public defenders or private attorneys, court-appointed counsel is entirely unavailable. In those courts, poor people have no possibility of obtaining a lawyer.
Absence of Public Defenders in Municipal Courts in Beaufort County 30. Prior to 2009, the Beaufort County Public Defender’s Office, a part of the
Fourteenth Circuit Public Defender system, did represent indigent defendants in the four municipal courts in the county: Beaufort, Bluffton, Port Royal and Hilton Head. In 2009, then-Fourteenth Circuit Public Defender Gene Hood sent requests to municipalities for funding to cover the provision of indigent defense services in their courts. When those requests were declined or otherwise ignored, Mr. Hood notified the Beaufort County Clerk of Court and all municipal court judges that the Fourteenth Circuit Public Defender’s Office could no longer be assigned as counsel for indigent defendants in municipal court. Mr. Hood advised the municipalities that in order to
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comply with state and federal requirements to provide indigent defense, the municipalities would need to contract with private attorneys, as they could no longer rely on public defender services.
31. Upon information and belief, at all relevant times since Mr. Hood’s withdrawal of the Public Defender’s Office from municipal courts, and notwithstanding the requirements of Proviso 61.12, it has been the policy, practice, and custom of Defendants City of Beaufort and Town of Bluffton not to enter into an agreement with the Fourteenth Circuit Public Defender’s Office, the Beaufort County Public Defender’s Office, or any private attorney for provision of indigent defense in their municipal courts.
32. In General Sessions and Magistrate Court matters, the Beaufort County Clerk of Court appoints the Public Defender’s Office. Conversely, neither the Municipal Court Clerks nor any other City or Town employee provides, accepts, or processes public defender application forms from municipal court defendants. Since 2009, upon information and belief, the Public Defender’s Office has not been appointed to a single municipal case.
33. In South Carolina, indigent defendants must pay a $40 public defender application fee. Each year, the South Carolina Court Administration collects information from municipalities for its Municipal Judicial Survey. The municipalities of Beaufort, Bluffton, and Port Royal in Beaufort County reported fully for Fiscal Year 2015-2016. Their combined reporting for the “public defender application fee $40.00” was $0.
34. As a direct and proximate cause of Defendants’ Beaufort and Bluffton’s policy, practice, and custom not to enter into an agreement to provide indigent defense in their municipal courts, hundreds of indigent defendants each month in the City of Beaufort and Town of Bluffton are prosecuted for offenses for which jail time is authorized by statute, and several are subsequently convicted and sentenced to periods of incarceration, without ever being provided an attorney by
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Defendants in violation of the Sixth Amendment right to counsel and the Fourteenth Amendment rights to due process and equal protection.
35. Further, Defendants knew or should have known that many if not most defendants in their municipal courts are indigent and that those defendants routinely receive jail sentences as authorized by state law. Yet, in the face of known and foreseeable constitutional violations in the municipal courts that the Defendants have chosen to create, Defendants have acted with deliberate indifference to their duty to provide indigent defense by maintaining a policy, practice, and custom of denying indigent defendants appointed counsel.
36. By contrast, wealthier defendants who can afford to retain private counsel enjoy the assistance of counsel through the entirety of their criminal cases.
37. Additionally, criminal defendants in Beaufort and Bluffton Municipal Courts are not sufficiently or individually advised of their right to counsel, or of the numerous risks of selfrepresentation, when they appear on their individual cases.
38. Upon information and belief, the Beaufort County Clerk of Court, the Clerk of Beaufort Municipal Court, as an employee of the City of Beaufort, and the Clerk of Bluffton Municipal Court, as an employee of the Town of Bluffton, do not keep records of requests for public defenders made by defendants in municipal courts.
39. The BCDC Inmate Handbook describes the right to a public defender for indigent defendants in General Sessions Court and explains that those defendants may apply for and receive jail visits from public defenders. Specifically, pages 38 to 39 of the Inmate Handbook contain the following: “APPLICATION FOR APPOINTED COUNSEL. When you are brought before the Magistrate on general sessions charges or general sessions bench warrants, you will be advised of your right to apply for a court appointed attorney or public defender, if you cannot afford your
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own. You will be required to pay a one-time $40.00 application fee, pursuant to Section 17-330(B) of the South Carolina Code of Laws….” Beaufort County Detention Center, Inmate Handbook 38-39 (2013). By contrast, the Handbook makes no mention of the right to a courtappointed lawyer or public defender for indigent defendants in municipal courts. Jail Sentences in Municipal Courts in Beaufort County
40. Despite the absence of public defenders and the absence of any advisement of the right to counsel, defendants in Beaufort and Bluffton Municipal Courts are routinely sentenced to jail.
41. Available records indicate that during a 90-day period between March 21 and June 19, 2017, there were over 50 sentences of incarceration in Beaufort and Bluffton Municipal Court served in BCDC. These uncounseled jail sentences included sentences of time served and sentences of additional jail time.
42. Indeed, Beaufort County records indicate that on June 1, 2017, of the sentenced population at BCDC, 35.7 percent was incarcerated solely because of municipal charges. None of them had public defenders.
43. Six months prior, on December 1, 2016, the figures at BCDC were similar: 29.4 percent of the sentenced population was incarcerated solely because of municipal charges. Again, none of them had public defenders.
44. Most offenses in municipal court carry a maximum sentence of 30 days in jail, although a few carry longer terms of 60 or 90 days. Because some municipal court judges sentence defendants to jail time on multiple charges and order those sentences to run consecutively, indigent defendants across the state, including in Beaufort County, receive sentences of 90 days or more in jail. And since county jails in South Carolina, including BCDC, will only hold inmates with
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sentences of up to 90 days, municipal defendants may be transferred to state prison if their sentences exceed this limit – even when they were sentenced without a lawyer at their side.
45. According to records from the South Carolina Department of Corrections, between January 1, 2015 and March 30, 2017, there were 274 admissions to state prison of defendants sentenced by municipal courts across the state, 209 of which were for municipal sentences only.
46. Upon information and belief, because the majority of municipal courts do not provide public defenders, most of the individuals serving prison time were uncounseled, including all of those sentenced out of municipal courts in Beaufort County.
47. Whether in county jail or state prison, the time that uncounseled defendants spend incarcerated has devastating consequences, including family separation, lost wages and earning capacity, physical pain and suffering, and mental and emotional distress. During and after incarceration, indigent defendants continue to suffer or to be at imminent risk of suffering numerous collateral consequences from their uncounseled convictions and sentences, including in the areas of education, housing, employment, child custody, and immigration.
48. Uncounseled convictions in municipal court may also expose indigent defendants to prosecution under habitual offender felony laws and, because judges look to criminal history in making sentencing decisions, may otherwise result in harsher sentences in future cases. Publicity about the Absence of Public Defenders in Municipal Courts
49. On October 5, 2013, Beaufort County’s local news source The Island Packet ran a story entitled “ACLU: Equal justice for poor remains unfulfilled in SC municipal courts.” The first sentence read, “Fifty years after the U.S. Supreme Court’s landmark right-to-counsel decision, poor residents in many places in South Carolina – including Beaufort County – still are tried without a lawyer.” Tom Barton, ACLU: Equal Justice for Poor Remains Unfulfilled in SC
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Municipal Courts, ISLANDPACKET.COM, (Oct. 05, 2013, 7:51 PM), http://www.islandpacket.com/news/local/article33534186.html.
50. In April 2016, the ACLU of South Carolina, the American Civil Liberties Union (“ACLU”), and the National Association of Criminal Defense Lawyers (“NACDL”) catalogued the deficiencies in indigent defense in South Carolina’s lower courts and specifically highlighted the lack of counsel for indigent defendants in municipal courts in Beaufort County. See ACLU of South Carolina, et. al., Summary Injustice: A Look at Constitutional Deficiencies in South Carolina’s Summary Courts, 13-19 (2016) (“Summary Injustice Report”). The Summary Injustice Report received media coverage in South Carolina and in Beaufort County in particular, including in The Post and Courier and The Island Packet.
51. In January 2017, NACDL issued a follow-up report that further confirmed the findings of the Summary Injustice Report. See National Association of Criminal Defense Lawyers, et al., Rush to Judgment: How South Carolina’s Summary Courts Fail to Protect Constitutional Rights (2017) (“Rush to Judgment Report”). On January 21, 2017, the Post and Courier published an article detailing the findings of the Rush to Judgment Report as a “Top Story.”
52. Notwithstanding the two reports and local news articles, the City of Beaufort and Town of Bluffton continued to maintain a policy, practice, and custom of depriving indigent defendants of access to public defenders in municipal court while those defendants continued to be convicted and sentenced to jail. By doing so, Defendants City of Beaufort and Town of Bluffton have shown deliberate indifference to their duty to provide indigent defense and to the constitutional rights of defendants in their municipal courts.
53. Indeed, the denial of indigent defendants’ right to counsel in municipal courts is so pervasive that on September 15, 2017, South Carolina Supreme Court Chief Justice, Donald W.
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Beatty, issued a memorandum to all magistrate and municipal court judges stating that, “[I]t has continually come to my attention that defendants, who are neither represented by counsel nor have waived counsel, are being sentenced to imprisonment.” Memorandum from Donald W. Beatty, Chief Justice, Supreme Court of South Carolina, to Magistrates and Municipal Judges (Sept. 15, 2017). Chief Justice Beatty made clear that “[t]his is a clear violation of the Sixth Amendment right to counsel and numerous opinions of the Supreme Court of the United States.” Consequently, Justice Beatty demanded that “[a]ll defendants facing criminal charges in your courts that carry the possibility of imprisonment must be informed of their right to counsel and, if indigent, their right to court-appointed counsel prior to proceeding with trial.” Plaintiff Tina Bairefoot
54. Plaintiff Tina Renee Bairefoot is a 39-year-old white female who lives in Beaufort, South Carolina. Ms. Bairefoot completed a two-year online program with the University of Phoenix and received her Associate’s Degree in Information Technology in 2012.
55. At all relevant times, Ms. Bairefoot’s estimated annual income has been at or below the Federal Poverty Guideline.
56. On December 16, 2016, Ms. Bairefoot went shopping at Walmart. Upon information and belief, she was still under the influence of the anesthesia and pain medications following gall bladder surgery and was also taking prescription psychiatric medications for bipolar disorder.
57. Ms. Bairefoot was stopped at the inner door by a Walmart employee. Ms. Bairefoot had allegedly taken candy bars, a dog collar, and hair care product valued at $163.27 and put them into her coat pockets. Upon being stopped, Ms. Bairefoot apologized to the store
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employee and returned the items to her. Walmart immediately recovered its property in full. Ms. Bairefoot has no recollection of the incident.
58. Ms. Bairefoot was arrested and charged in Beaufort Municipal Court with misdemeanor shoplifting a value of merchandise of $2000 dollars or less under South Carolina Code § 16-13-110, an offense punishable by up to 30 days of imprisonment or a $1000 fine.
59. On December 17, 2016, Ms. Bairefoot appeared before Judge Tupper in bond court at Beaufort County Detention Center and was released on a personal recognizance bond with instructions to appear in Beaufort Municipal Court on January 9, 2017. Ms. Bairefoot was not informed of her right to court-appointed counsel or provided with a public defender application form.
60. Judge Tupper or his designee completed Form SCCA-507, Checklist for Magistrate and Municipal Judges (revised July 2014) for bail proceedings. Item 5 on the form requires that “in all magistrate or municipal cases in which a[n incarceration] sentence is likely to be imposed, defendant was informed of the following: a. Charges against the defendant and nature of the charges[;] b. Right to counsel and right to court-appointed counsel if financially unable to employ counsel[;] c. Defendant was informed orally and provided a copy of this form advising him of his right to obtain court appointed counsel if indigent (must meet federal poverty guidelines) and instructions on how to obtain court appointed counsel.”
61. On Ms. Bairefoot’s Form SCCA-507, Judge Tupper or his designee checked 5(a), indicating she had been informed of the charge against her during her bail proceeding. Items 5(b) and (c) were unchecked, indicating she had not been informed of her right to courtappointed counsel. A copy of this checklist is required to be attached to the charging document.
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62. On January 9, 2017, Ms. Bairefoot appeared before Judge Tupper in Beaufort Municipal Court. Judge Tupper did not advise Ms. Bairefoot of her right to court-appointed counsel, did not advise her of the risks of self-representation, and did not make any effort to appoint counsel in her case.
63. Ms. Bairefoot pled not guilty. The Beaufort Police officer who had arrested Ms. Bairefoot at Walmart prosecuted the case against her. The officer gave testimony, followed by a Walmart employee. Ms. Bairefoot did not have the legal knowledge, experience, or training to cross-examine the officer or employee, so their testimonies went unchallenged and unquestioned.
64. Without a lawyer to defend her, Ms. Bairefoot attempted to explain to the judge that she did not intend to take items from Walmart. She explained that she had just had surgery and was on pain medications as well as various prescription medications for her mental health. Judge Tupper interrupted her to ask, “Any of those medications have side effects that make you steal?” Ms. Bairefoot clarified that she meant she had no memory of the incident or the details to which the Walmart employee had testified and that she did not have the intention to remove items from the store. Although Ms. Bairefoot did not know the statutory elements of the offense of shoplifting, one is that the defendant must have “the intention of depriving the merchant of the possession, use, or benefit of the merchandise.” S.C. Code Ann. § 16-13-110(A)(1).
65. Judge Tupper told Ms. Bairefoot that if before he “pass[ed] judgment” she brought a note from her doctor that her medication could “cause you to shoplift,” then he would “work with” her. Then, under his breath, Judge Tupper said, “good luck with getting that.” Judge Tupper continued Ms. Bairefoot’s case until February 6, 2017.
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66. On February 6, 2017, Ms. Bairefoot appeared again in Beaufort Municipal Court with paperwork. Ms. Bairefoot attempted to advocate for herself numerous times, saying “I do have some evidence that I would like to….” But each time Judge Tupper interrupted her, telling her that he did not care what she had to say and to “go sit down.” Judge Tupper refused to let Ms. Bairefoot speak, declaring: “No, I’m giving you 30 days. In jail. Stop stealing.”
67. Ms. Bairefoot was booked into Beaufort County Detention Center that evening. She served 14 days of her 30-day sentence, in addition to her one day pretrial, because of good time credits given her low-level charge.
68. Ms. Bairefoot could not have practicably sought habeas relief while in custody because of the length of her actual confinement.
69. For nearly the first week in jail, Ms. Bairefoot was deprived of her medication. It took approximately six days before she received any of her medications, including mental health medications. During her entire period of incarceration, she never received her blood pressure medication.
70. Ms. Bairefoot’s mental health declined drastically during her time in jail. She was paranoid and extremely depressed. Ms. Bairefoot’s mental health would not have declined as precipitously had she been given access to her prescribed medications.
71. Since Ms. Bairefoot’s release from jail, her incarceration continues to haunt her. She has difficulty sleeping and has nightmares about returning to jail. She is anxious she will again end up in Beaufort Municipal Court and Beaufort County Detention Center.
72. Despite her fears, Ms. Bairefoot has attempted to obtain employment since her release from jail because of her unstable financial situation. She was considered for several jobs, but was informed that she would not be hired because she had a recent conviction for shoplifting.
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Plaintiff Dae’Quandrea Nelson 73. Plaintiff Dae’Quandrea Trevell Nelson is 19-year-old Black male who lived with
his mother in Bluffton, South Carolina, at all relevant times to this lawsuit. As a result of his uncounseled municipal case in Bluffton Municipal Court, Mr. Nelson lost his job and the opportunity for a college scholarship.
74. At all relevant times, Mr. Nelson’s estimated annual income has been at or below the Federal Poverty Guideline.
75. Mr. Nelson graduated from Bluffton High School in 2016, where he played on the football team. Mr. Nelson applied for and was accepted to a South Carolina college that had scouted him, and the coaches made him a verbal offer to try out for a two-year full scholarship to play on their team. If Mr. Nelson played well and kept his grades up, he would receive a full scholarship for the remaining two years of his education towards a bachelor’s degree. Mr. Nelson would have been the first member of his direct family to attend college.
76. After the end of the school day on January 20, 2016, when Mr. Nelson was 17 years old, a fight in which he and approximately five other students participated occurred in the school hallway. Mr. Nelson was not arrested that day in connection with the fight. Until this time, Mr. Nelson’s limited involvement with the criminal justice system was for a speeding ticket the previous December, for which he had received a summons and paid a fine.
77. Mr. Nelson knew or believed that fights on school property were treated by school and law enforcement officials as criminal matters rather than matters of student discipline. So on January 21, 2016, Mr. Nelson called Beaufort County Clerk of Court and informed the County employee that he had been involved in a fight at Bluffton High School and asked if there was a
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warrant for his arrest. The County employee informed him there was no warrant but said he could check with the Bluffton Police Department.
78. The next day, Mr. Nelson went to Bluffton Police Department and said he had been involved in a fight at Bluffton High School and wanted to know if there was a warrant for his arrest. The Town of Bluffton employee said his name was not in the system and told Mr. Nelson to take a seat.
79. Approximately thirty minutes later, two Bluffton Police officers came to where Mr. Nelson was seated and arrested and handcuffed him.
80. Mr. Nelson was transferred by Bluffton Police Department and booked into the Beaufort County Detention Center later that afternoon on two municipal charges: disturbing the schools and assault and battery third degree.
81. Mr. Nelson spent the night of January 21, 2016, at the Beaufort County Detention Center. On January 22, 2016, Mr. Nelson appeared before Magistrate Mark Fitzgibbons in bond court at Beaufort County Detention Center and was released on a personal recognizance bond with instruction to appear in Bluffton Municipal Court on February 2, 2016. He was not informed of his right to court-appointed counsel or provided with a public defender application form.
82. Magistrate Fitzgibbons or his designee completed Form SCCA-507, Checklist for Magistrate and Municipal Judges. As in Ms. Bairefoot’s case, item 5(a) on Mr. Nelson’s form was checked, indicating he had been informed of the charges against him during his bail proceedings. Items 5(b) and (c) were unchecked, indicating he had not been informed of his right to court-appointed counsel.
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83. Mr. Nelson arrived at Bluffton Municipal Court on his scheduled February 2nd court date and spoke with a Bluffton Police Officer. The officer told Mr. Nelson that he could do Pretrial Intervention (“PTI”) or wait to see the judge. The officer said Mr. Nelson would have to apply for PTI with the municipal court clerk and pay $100. The police officer did not explain PTI or its requirements.
84. Mr. Nelson was afraid of going back to Beaufort County Detention Center, so he told the officer that he wanted PTI.
85. The Clerk of Bluffton Municipal Court, a Town employee, gave Mr. Nelson a PTI application form on which he had to list his name, date of birth, social security number, and charges. The only additional information the clerk gave Mr. Nelson was that he would have to provide a $100 money order to be accepted into the program and $250 during the program. The application form did not explain the requirements of the program.
86. Mr. Nelson left the courtroom that day without ever seeing the judge or a defense attorney, without being advised of his right to court-appointed counsel, without being asked how he wished to plead or actually pleading guilty, and without being informed of the implications of the pretrial program he had been offered.
87. On or around February 17, 2016, Mr. Nelson delivered a $100 money order to the Town of Bluffton Solicitor’s office for his application to PTI. On or around March 22, 2016, Mr. Nelson was informed by mail that he had been accepted into PTI and that he would need to bring another money order for $250 to the Bluffton Solicitor’s office in April, which he did.
88. Sometime in April 2016, Mr. Nelson went back to the Bluffton Solicitor’s office, where a Town of Bluffton employee informed him that he had to complete four days of community service at BCDC, scheduled for the last two weekends in July, and pay $30 to BCDC
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for that service. He would also need to attend a mandatory prison tour as part of his PTI requirements. He was never provided legal advice about PTI program requirements or his participation therein.
89. Mr. Nelson forgot about his scheduled community service for PTI and the $30 community service fee. When he realized his oversight, Mr. Nelson went to the Bluffton Solicitor’s office to explain his mistake and to inquire about next steps. He was not told when his community service would be rescheduled. Mr. Nelson appeared for the mandatory prison tour at Allendale Correctional Center.
90. Mr. Nelson did not believe he was in violation of his PTI requirements, given that he had paid $350 in fees, attempted to reschedule his community service, and attended the prison tour.
91. Mr. Nelson was therefore surprised to receive notices at the end of January 2017 that he had failed PTI and was required to appear in Bluffton Municipal Court on February 21, 2017.
92. On February 21, 2017, Mr. Nelson’s nineteenth birthday, he arrived at Bluffton Municipal Court with his cousin for the 2 p.m. session. At or around 3 p.m., Judge Lee took the bench.
93. When Mr. Nelson’s case was called, Judge Lee did not advise Mr. Nelson of his right to court-appointed counsel, did not advise him of the risks of self-representation, and did not make any effort to appoint counsel in his case.
94. A Bluffton Police officer, who also acted as the “school resource officer” at Bluffton High School, prosecuted the case against Mr. Nelson. Judge Lee asked the officer and Mr. Nelson whether there was any plea deal worked out. When they indicated there was not,
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Judge Lee did not ask Mr. Nelson whether he pled guilty or not guilty or whether he wished to waive his right to a jury and receive a bench trial. All the same, a bench trial was held.
95. The only evidence presented against Mr. Nelson was a cell phone video that the officer played in court and said had come from a student. The officer did not authenticate the video or explain its chain of custody or how the police came to have it in their possession. The officer narrated the cell phone video, although he had not been present at the scene at the time it was filmed and testified that he had only spoken to the alleged victim after the fact.
96. The officer misidentified Mr. Nelson among several students shown in the video, correcting himself only when Mr. Nelson pointed himself out in the video. Defendant Judge Lee did not question the officer about his misidentification of Mr. Nelson.
97. After watching the video, Judge Lee asked Mr. Nelson whether he had any questions for the officer. Mr. Nelson lacked the legal knowledge, training, or experience to cross-examine the police officer or to make any objection to the video evidence being played in court. The officer’s testimony and the video evidence therefore went unchallenged and unquestioned.
98. Judge Lee then asked Mr. Nelson whether he wanted to present any witnesses or testify on his behalf. Mr. Nelson lacked the legal knowledge, training, or experience to present a defense. Mr. Nelson did not to say anything in his defense.
99. Judge Lee placed Mr. Nelson under oath and asked him whether he had failed to complete PTI and, if so, why. Mr. Nelson said that he had forgotten his scheduled community service but, despite that, had still completed the prison tour afterward.
100. Judge Lee found Mr. Nelson guilty of assault and battery third degree and disturbing the schools. He explained that because Mr. Nelson had been given a chance and
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failed to complete PTI, he had already showed that he did not care. Judge Lee never announced the basis on which he found Mr. Nelson guilty of the crimes charged. Judge Lee sentenced him to “30 days in the Beaufort County Detention Center with those charges to run concurrent, meaning at the same time.”
101. Before being handcuffed by a Bluffton Police officer, Mr. Nelson gave his wallet, watch, and cell phone to his cousin. Mr. Nelson was booked into Beaufort County Detention Center that evening.
102. At no point in the entire process was Mr. Nelson afforded an attorney. 103. Mr. Nelson spent 16 days in jail on his 30-day sentence, because he received good time credits given his low-level charges. During his incarceration, he was scared and suffered emotionally and physically and was often unable to sleep. As a direct result of his incarceration, Mr. Nelson lost his job at a chain restaurant where he had worked around 40 hours per week at $10 an hour. 104. Mr. Nelson could not have practicably sought habeas relief while in custody because of the length of his actual confinement. 105. Mr. Nelson was released from Beaufort County Detention Center at 5 a.m. on March 9, 2017. 106. As a result of his municipal case, Mr. Nelson lost the opportunity for a football scholarship to a four-year college. Because he cannot afford tuition, as of October 2017, Mr. Nelson is not pursuing a college education.
Plaintiff Nathan Fox 107. Plaintiff Nathan Lee Fox is a 31-year-old white male who lives in Mauldin, South
Carolina, where he moved in early 2017. Mr. Fox is a high school graduate and attended in-
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person classes at several colleges and universities. Between 2011 and 2016, Mr. Fox was a resident of Beaufort County. During this time, Mr. Fox had intermittent employment at various restaurants in Beaufort County that at most paid $11 per hour. At all relevant times, his estimated annual income has been at or below the Federal Poverty Guideline.
108. On January 29, 2017, Mr. Fox was driving in the City of Beaufort when a Beaufort Police officer pulled him over and arrested him on five charges that South Carolina law and Beaufort Municipal Court classify as misdemeanor traffic offenses: speeding, no proof of insurance, driving under a suspended license third or subsequent offense, use of a license plate other than for the vehicle for which it was issued, and defacement of a license plate. He was booked into BCDC that morning.
109. Other than the speeding charge under South Carolina Code § 56-5-1520(G), which authorizes punishment by fine only, the other charges Mr. Fox faced are all punishable by up to between 30 and 90 days of imprisonment or fines of between $100 and $1,000. South Carolina Judicial Department Court Administration, Fees and Assessments Memorandum (June 6, 2014), https://masc.sc/SiteCollectionDocuments/Municipal%20Court/court_financials_101.pdf.
110. On January 30, 2017, Mr. Fox appeared before Judge Tupper in bond court at Beaufort County Detention Center on all five charges. Judge Tupper set cash bonds at $128.75 (speeding), $2,100 (driving under suspension), $232.50 (no proof of insurance), $232.50 (misuse of a license plate), and $232.50 (license plate defacement), for a total cash bond of $2,926.25. Upon information and belief, these are the same amounts typically imposed as fine-sentences, with court costs, for conviction upon each of these charges.
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111. Mr. Fox was not informed of his right to court-appointed counsel or provided with a public defender application form.
112. Judge Tupper or his designee completed Form SCCA-507, Checklist for Magistrate and Municipal Judges. As in Ms. Bairefoot’s and Mr. Nelson’s cases, item 5(a) on Mr. Fox’s form was checked, indicating he had been informed of the charges against him during his bail proceeding. Items 5(b) and (c) were unchecked, indicating he had not been informed of his right to court-appointed counsel.
113. Mr. Fox could not afford his $2,926.25 bond and remained in jail for three weeks until his court date. Mr. Fox was not given access to a lawyer at BCDC during his three weeks of pretrial detention.
114. On February 20, 2017, Mr. Fox was transported from jail to Beaufort Municipal Court and appeared without a lawyer before Judge Sharp. Judge Sharp did not advise him of his right to court-appointed counsel, did not advise him of the risks of self-representation, and did not make any effort to appoint counsel in his case.
115. Mr. Fox pled guilty to all five charges. Judge Sharp did not seek separate pleas per charge or otherwise distinguish between the five charges in accepting Mr. Fox’s guilty plea. Judge Sharp did not advise Mr. Fox of the rights he was waiving by pleading guilty, did not question him about his understanding of those rights, and did not otherwise inquire into whether his plea was knowing, intelligent, and voluntary. Despite the absence of a formal plea colloquy and without any findings of fact, and despite the deprivation of counsel, Judge Sharp convicted Mr. Fox of all five charges and sentenced him to 10 days in jail on each, to run consecutively for a total of 50 days. Among the charges on which Mr. Fox was convicted and sentenced to jail
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was speeding not more than 10 mph above the speed limit, which cannot carry jail time under South Carolina law.
116. Mr. Fox did not consult a lawyer at any time during his municipal court case or in conjunction with his guilty plea. Indeed, in each of Mr. Fox’s prior appearances in Beaufort Municipal Court on earlier cases (in November 2014, January 2015, March 2015, May 2015, and September 2015) – all before Judge Tupper and on all of which he pled guilty to jail sentences of time served – Judge Tupper did not advise him of his right to court-appointed counsel, advise him of the risks of self-representation, or make any effort to appoint counsel in his case. In none of these municipal court cases did Mr. Fox consult a lawyer at any time or specifically in conjunction with his guilty pleas, nor was he ever advised about, or questioned by Judge Tupper about, his understanding of the rights he was waiving through his guilty pleas.
117. After Judge Sharp sentenced Mr. Fox to incarceration on February 20, 2017, he returned to BCDC. He also had two bench warrants from magistrate court for driving under suspension first offense and possession of marijuana, for which he had been sentenced to 30 days total. These magistrate sentences were run consecutively to his 50-day municipal court sentence, for a total of 80 days in jail.
118. Mr. Fox spent 38 days in Beaufort County Detention Center from the date of his arrest on the five municipal charges. Mr. Fox could not have practicably sought habeas relief while in custody because of the length of his actual confinement.
119. Mr. Fox suffers from a number of health conditions. During his confinement in Beaufort County Detention Center, his health declined drastically. He also suffered mental and emotional distress and experienced anxiety and feelings of depression.
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120. Mr. Fox submitted several medical request/complaint forms to the BCDC doctor and made informal complaints to nursing staff. After approximately two weeks, he was finally given prednisone pills and anti-itch cream, but despite his serious symptoms received none of the other medications he had received from previous emergency room visits at the hospital.
121. Mr. Fox was released from Beaufort County Detention Center at 5 a.m. on March 8, 2017. As a result of his experiences with Beaufort Municipal Court and Beaufort County Detention Center, Mr. Fox moved out of Beaufort County after his release from jail.
CLASS ACTION ALLEGATIONS 122. Plaintiffs Tina Bairefoot, Dae’Quandrea Nelson, and Nathan Fox propose a class seeking damages pursuant to Fed. R. Civ. P. 23(a) and (b)(3). The Class is defined as: (a) all indigent individuals who were incarcerated in jail or prison upon conviction in Beaufort and Bluffton municipal courts (b) without having been afforded their right to appointed counsel and without having been advised of their right to appointed counsel and (c) who could not have practicably sought habeas relief while in custody because of the brief periods of actual confinement. 123. Numerosity (Fed. R. Civ. P. 23(a)(1)): The class is so numerous that joinder of all members is impracticable. 124. The precise size of the proposed Class is unknown by Plaintiffs, but it is substantial given the number of people who receive sentences of incarceration in Beaufort and Bluffton Municipal Courts on a monthly basis. 125. Available records suggest that during a 90-day period between March 21 and June 19, 2017, over 50 uncounseled jail sentences were served out of Beaufort and Bluffton Municipal
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Courts. Records indicate that not one defendant who served a jail sentence during this 90-day period had counsel.
126. Beaufort County records indicate that on June 1, 2017, of the sentenced population, 35.7 percent were serving municipal sentences only. On December 1, 2016, 29.4 percent of the sentenced population were incarcerated only because of municipal charges. None had public defenders.
127. The members of the proposed Class are indigent individuals who lack the financial resources to bring an independent action. Joinder of every member of the proposed Class would be impracticable.
128. Commonality (Fed. R. Civ. P. 23(a)(2)): The relief sought is common to all members of the proposed Class, and there are questions of law and fact common to the Class. Among the most important common questions of fact are:
a. whether the City of Beaufort and the Town of Bluffton have made any attempts to provide adequate funding for public defenders in municipal court;
b. whether the City of Beaufort and Town of Bluffton have responded to complaints and/or other publicity about the absence of indigent defense in their courtrooms and whether they have taken any measures to correct their failure to provide indigent defense to Beaufort and Bluffton Municipal Courts;
c. whether any effort was made by the City of Beaufort and the Town of Bluffton to provide appointed counsel to Plaintiffs and putative class members before sentences of incarceration were ultimately imposed;
d. whether the City of Beaufort and the Town of Bluffton responded to requests by indigent defendants for appointed counsel;
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e. whether public defender application forms are made available by Beaufort County and BCDC, the City of Beaufort, the Town of Bluffton, the Municipal Court Clerks, and the Municipal Court Judges to municipal court defendants at their bond settings in Beaufort County Detention Center or at any other critical stage of their proceedings in municipal court;
f. whether municipal court defendants receive an individual advisement of the right to counsel or inquiry into waiver of that right in municipal court proceedings; and
g. whether municipal court defendants in Beaufort Municipal Court and Bluffton Municipal Court who can afford to hire private attorneys have the opportunity to be represented through the completion of their cases while indigent defendants are prosecuted, convicted, and routinely jailed without counsel.
129. Among the most important common questions of law for the proposed Class are: a. whether failure to provide indigent defense in municipal court violates Plaintiffs’ and class members’ rights to counsel, equal protection, and procedural due process under Sixth and Fourteenth Amendments; b. whether jail sentences obtained in courtrooms in which no appointed counsel is available violate the right to counsel under the Sixth and Fourteenth Amendments and to due process and equal protection under the Fourteenth Amendment; and c. whether, in the absence of appointed counsel, the failure to advise defendants of their constitutional right to counsel, violates the Sixth and Fourteenth Amendment right to the assistance of counsel.
130. Typicality (Fed. R. Civ. P. 23(a)(3)): Named Plaintiffs’ claims or defenses are typical of the claims or defenses of the proposed class, and they have the same interests in this case
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as all other proposed Class members that they represent. Named Plaintiffs, like other class members, were subjected to the City of Beaufort and Town of Bluffton’s policy, practice, and custom of depriving indigent defendants who received sentences of incarceration in municipal court of their right to counsel.
131. Adequacy (Fed. R. Civ. P. 23(a)(4)): Named Plaintiffs will fairly and adequately represent and protect the interests of the Class members.
132. Adequacy of counsel (Fed. R. Civ. P. 23(g)): The Named Plaintiffs’ attorneys will fairly and adequately protect the interests of the class. Named Plaintiffs have no interests antagonistic to the proposed class, and they are represented by attorneys with significant expertise in criminal procedure and complex civil litigation. Plaintiffs’ counsel intends to commit the necessary resources to prosecute this action vigorously for the benefit of all class members.
133. Predominance and superiority (Fed. R. Civ. P. 23(b)(3)): Class certification is appropriate pursuant to Federal Rule of Civil Procedure 23(b)(3) because common questions of fact and law predominate over any questions affecting only individual members of the class, and because a class action is superior to other available methods for the fair and efficient adjudication of this litigation. The class members have been damaged and are entitled to recovery as a result of the City of Beaufort and the Town of Bluffton’s unconstitutional policy, practice, and custom. The propriety and amount of compensatory damages are based on the Defendants’ conduct, through their unconstitutional policy, practice, and custom, making these issues common to the class. Damages, common to all class members, can be calculated based on the number of days of unlawful incarceration due to the Defendants’ unconstitutional policy, practice, and custom. Plaintiffs and the class will rely on common evidence to resolve their legal
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and factual questions. There are no pending actions raising similar claims. There will be no undue difficulty in the management of this litigation as a class action.
134. The proposed class seeks damages against Defendants City of Beaufort and Town of Bluffton for maintaining a policy, practice, and custom of denying indigent defendants incarcerated in jail or prison upon conviction in Beaufort and Bluffton municipal courts of their right to appointed counsel, of which they are never advised at any point in their cases, and for being deliberately indifferent to their duty to provide indigent defendants with counsel in their municipal courts.
135. The Requirements of Rule 23(g): Plaintiffs are represented by attorneys from the American Civil Liberties Union Foundation, the American Civil Liberties Union Foundation of South Carolina, and Nelson Mullins LLP, who have experience litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ practices and the relevant constitutional and statutory law. Counsel has the resources, expertise, and experience to prosecute this action.
CLAIMS FOR RELIEF CLAIM ONE
Violation of the Sixth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 (Right to Counsel)
Plaintiffs and Proposed Class against City of Beaufort and Town of Bluffton
202. Plaintiffs incorporate and adopt Paragraphs 1 through 135 of this Complaint. 203. Defendants City of Beaufort and Town of Bluffton maintain a policy, practice, and custom of failing to contract with the Fourteenth Circuit Public Defender, Beaufort County Public
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Defender’s Office, or private attorneys for the provision of indigent defense in municipal courts. The City and Town also maintain a policy, practice, and custom of refusing to provide counsel to indigent defendants facing incarceration in municipal courts.
204. By failing to make court-appointed counsel available to indigent defendants who have been sentenced to incarceration in Beaufort Municipal Court and Bluffton Municipal Court, respectively, the City of Beaufort and the Town of Bluffton have violated Plaintiffs’ and putative class members’ Sixth and Fourteenth Amendment right to the assistance of counsel.
205. Through their policy, practice, and custom of refusing to provide public defenders in municipal courts, the City and Town have also been deliberately indifferent to their duty to provide counsel to indigent defendants facing incarceration in municipal courts and to the foreseeable risk of constitutional violations resulting from such a policy, practice, and custom.
206. As a direct and proximal result of Defendants’ failure to provide Plaintiffs and putative class members with counsel, Plaintiffs and class members were wrongfully incarcerated, suffered injury and, upon information and belief, are entitled to general damages as compensation.
207. As a direct and proximal result of Defendants’ failure to provide Plaintiffs and putative class members with counsel, Plaintiffs and putative class members experienced additional injuries and are entitled to damages as compensation for the same, including but not limited to physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity as a result of their wrongful incarceration.
CLAIM TWO Violation of the Fourteenth Amendment to the United States Constitution and 42
U.S.C. § 1983 (Right to Equal Protection) Plaintiffs and Proposed Class against City of Beaufort and Town of Bluffton
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202. Named Plaintiffs and putative class members have a constitutional right to equal protection of the laws as guaranteed by the Fourteenth Amendment.
203. Plaintiffs and putative class members have a fundamental right to the assistance of appointed counsel because they are too poor to afford private counsel. As indigent defendants, Plaintiffs and putative class members have a fundamental right to fair access to the courts and the adversarial criminal justice system.
204. Defendants City of Beaufort and Town of Bluffton, by their policy, practice, and custom described above of refusing to provide counsel to indigent defendants facing incarceration in municipal courts, invidiously discriminated against Plaintiffs and putative class members by depriving them of their rights to counsel and fair access to the courts solely because they are indigent, while those able to pay for private counsel benefit from the assistance of counsel during all critical stages of their criminal case.
205. By failing to make court-appointed counsel available to indigent defendants who have been sentenced to incarceration in Beaufort Municipal Court and Bluffton Municipal Court, respectively, the City of Beaufort and the Town of Bluffton have violated Plaintiffs’ and putative class members’ Fourteenth Amendment right to equal protection of the laws.
206. Through the City and Town’s policy, practice, and custom of refusing to provide public defenders in municipal courts, the City and Town have also been deliberately indifferent to their duty to provide counsel to indigent defendants facing incarceration in municipal courts and to the foreseeable risk of constitutional violations resulting from such a policy, practice, and custom.
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207. As a direct and proximal result of Defendants’ failure to provide Plaintiffs and putative class members with counsel, Plaintiffs and class members were wrongfully incarcerated, suffered injury and, upon information and belief, are entitled to general damages as compensation.
208. As a direct and proximal result of Defendants’ failure to provide Plaintiffs with counsel, Plaintiffs and class members experienced additional injuries and are entitled to damages as compensation for the same, including but not limited to physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity as a result of their wrongful incarceration.
CLAIM THREE Violation of the Fourteenth Amendment to the United States Constitution and 42
U.S.C. § 1983 (Right to Procedural Due Process) Plaintiffs and Proposed Class against City of Beaufort and Town of Bluffton
209. Named Plaintiffs and putative class members have a liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
210. The Due Process Clause of the Fourteenth Amendment also protects Plaintiffs and putative class members’ right to a fundamentally fair adjudicative process.
211. Defendants City of Beaufort and Town of Bluffton maintain a policy, practice, and custom of failing to contract with the Fourteenth Circuit Public Defender, Beaufort County Public Defender’s Office, or private attorneys for the provision of indigent defense in municipal courts. The City and Town also maintain a policy, practice, and custom of refusing to provide counsel to indigent defendants facing incarceration in municipal courts.
212. By failing to make court-appointed counsel available to indigent defendants who have been sentenced to incarceration in Beaufort Municipal Court and Bluffton Municipal Court,
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respectively, the City of Beaufort and the Town of Bluffton have violated Plaintiffs’ and putative class members’ procedural due process rights as guaranteed by the Fourteenth Amendment.
213. This policy, practice, and custom also infringed upon Plaintiffs and the putative class members’ right to a fundamentally fair adjudicative process in violation of their Fourteenth Amendment due process right.
214. Through its policy, practice, and custom of refusing to provide public defenders in municipal courts, the City and Town have also been deliberately indifferent to their duty to provide counsel to indigent defendants facing incarceration in municipal courts and to the foreseeable risk of constitutional violations resulting from such a policy, practice, and custom.
215. As a direct and proximal result of Defendants’ failure to provide Plaintiffs and class members with counsel, Plaintiffs and class members were wrongfully incarcerated, suffered injury and, upon information and belief, are entitled to general damages as compensation.
216. As a direct and proximal result of Defendants’ failure to provide Plaintiffs with counsel, Plaintiffs and class members experienced additional injuries and are entitled to damages as compensation for the same, including but not limited to physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity as a result of their wrongful incarceration.
RELIEF REQUESTED WHEREFORE, Named Plaintiffs and the Class pray for relief as follows: a. That the Court assume jurisdiction over this action; b. Certify the Class under Fed. R. Civ. P. 23(a) and (b)(3); c. Designate Plaintiffs Tina Bairefoot, Dae’Quandrea Nelson, and Nathan Fox as representatives of the class;
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d. Designate Representative Plaintiffs’ counsel of record as class counsel; e. Award damages against the City of Beaufort and Town of Bluffton to compensate Named Plaintiffs and putative class members for all of the time they spent wrongfully confined, in violation of their rights to counsel, equal protection, and procedural due process (Claims 1, 2, and 3); f. Award damages against the City of Beaufort and Town of Bluffton to compensate Named Plaintiffs and putative class members for additional injuries, including but not limited to physical pain and suffering, mental anguish, emotional distress, and loss of income and earning capacity as a result of their wrongful incarceration (Claims 1, 2, and 3); g. Award costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and h. Grant or award any other relief this Court deems just and proper.
DATED this the 12th day of October, 2017.
Respectfully submitted by, s/ Susan K. Dunn SUSAN K. DUNN (Fed. Bar #647) American Civil Liberties Union Foundation of South Carolina P.O. Box 20998 Charleston, South Carolina 29413-0998 Telephone: (843) 282-7953 Facsimile: (843) 720-1428 Email: sdunn@aclusc.org EZEKIEL R. EDWARDS* TWYLA CARTER* American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor
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New York, NY 10004 Telephone: (212) 549-2610 Facsimile: (212) 549-2651 eedwards@aclu.org tcarter@aclu.org STUART M. ANDREWS, JR. (Fed. Bar #1099) B. RUSH SMITH, III (Fed. Bar #5031) NELSON MULLINS RILEY & SCARBOROUGH LLP 1320 Main Street / 17th Floor Post Office Box 11070 (29211-1070) Columbia, SC 29201 (803) 799-2000 stuart.andrews@nelsonmullins.com rush.smith@nelsonmullins.com Attorneys for Plaintiffs and the Proposed Class * Application for pro hac vice admission to be submitted
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 9:17-cv-02759-RMG Date Filed 05/16/18 Entry Number 33 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA BEAUFORT DIVISION

Tina Renee Bairefoot, et al. ,

)

)

Plaintiffs,

)

)

v.

)

)

City of Beaufort, South Carolina, et al., )

)

Defendants.

)

Civil Action No. 9:17-2759-RMG ORDER AND OPINION

This matter is before the Court on Defendants' motion to dismiss. For the reasons set

forth below, the Court denies the motion.

I. Background

A. Plaintiffs Plaintiff Tina Bairefoot was convicted of shoplifting miscellaneous merchandise worth
approximately $163 from a Walmart. (Dkt. No. 1 if 57.) She was not represented by an attorney and she was not advised of her right to counsel. (Id. iii! 59-66.) Beaufort Municipal Judge Ned

Tupper sentenced her to pay a fine and court costs of $2,220, or to serve thirty days in jail. See

Beaufort

County,

Public

Index,

available

at

http://publicindex.sccourts.org/Beaufort/Publiclndex/PISearch.aspx [hereinafter "Beaufort County Judicial Records"]. 1 Ms. Bairefoot's income is below the federal poverty guidelines.2
(Dkt. No. 1 if 55 .) Although Beaufort court records appear to indicate that Ms. Bairefoot was

incarcerated because she was unable to pay that fine, Plaintiffs allege with specificity that Ms.

1 This Court "may properly take judicial notice of matters of public record" when considering a motion to dismiss. Philips v. Pitt Cty. Mem 'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). 2 In South Carolina courts, income below the federal poverty guidelines creates a presumption of indigency for purposes of appointing defense counsel. Rule 602(b), SCACR.
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Bairefoot was sentenced to incarceration immediately upon conviction on February 6, 2017. (Id. ~ 66.) She served 15 days. (Id.~ 67.)
Plaintiff Dae'Quandrea Nelson was convicted of third-degree assault and battery and disturbing the schools. (Id. ~ 100.) The charges arose from a fight between students at a high school that occurred when Mr. Nelson was a 17-year-old student. (Id. ~ 76.) He was not represented by an attorney and he was not advised of his right to counsel. (Id. ~~ 86, 93 , 102.) When he first appeared in Bluffton Municipal Court on February 2, 2016, he applied for pretrial intervention and his application was accepted. (Id. ~ 83-88.) Mr. Nelson however failed to complete required weekend community service and he failed to pay a required $30 fee (although he had already paid $350 to apply to pretrial diversion), so he appeared again in Bluffton Municipal Court on February 21 , 2017. (Id. ~~ 87- 89, 93.) Judge Dustin Lee sentenced him to pay a fine and court costs of $3,212.50, or to serve two concurrent 30-day jail sentences. See Beaufort County Judicial Records. Mr. Nelson's income is below the federal poverty guidelines. Mr. Nelson was incarcerated immediately upon sentencing. (Dkt. No. 1 ~ 101.) Mr. Nelson served 16 days injail. (Id.~ 103.)
Plaintiff Nathan Fox was convicted of speeding (10 mph or less), no proof of insurance, driving under a suspended license (third or subsequent offense), use of a license plate issued for a different vehicle, and defacement of a license plate. (Id. ~ 108.) Judge Ned Tupper set a cash bond of $2,926.25 , an amount apparently calculated to equal the expected fine and court costs of the charges. (Id.~ 110.) Mr. Fox's income is below the federal poverty guidelines. (Id. ~ 107.) He was unable to post the cash bond and remained in jail for three weeks awaiting trial. (Id. ~ 113.) He appeared before Beaufort Municipal Judge Mary Sharp on February 20, 2017. He was not represented by an attorney and he was not advised of his right to counsel. (Id. ~~ 114, 116.)
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He pleaded guilty to the charges. (Id. ~ 115.) Judge Sharp did not hold a plea colloquy with Mr. Fox. (Id.) She sentenced him to a fine and court costs of $2,879.38 and five consecutive 10-day jail sentences for the five charges, even though South Carolina law does not authorize imprisonment for one of those charges (speeding less than 10 mph). See S.C. Code § 56-51520(0); Beaufort County Judicial Records; (Dkt. No. 1 ~ 115). After sentencing, he returned to the Beaufort County Detention Center under two bench warrants from magistrate court. (Dkt. No. 1 ~ 117.) Ultimately, Mr. Fox spent 38 days in jail on the five municipal charges. Beaufort County records indicate that may have been sentenced to jail on the traffic charges for inability to pay the $2,879.38 fine, see Beaufort County Judicial Records, but that is unclear because of the warrants for Mr. Fox's arrest on other charges. B. The municipal court system
In South Carolina, municipal courts are optionally created by municipalities to hear petty criminal cases. See S.C. Code § 14-25-5. Where there is no municipal court, such cases are heard by magistrate courts. The municipal judges often are lawyers in private practice who serve in a part time capacity, but they are not required to be lawyers.3 They are part of the unified state judicial system under the supervision of the Chief Justice of South Carolina, S.C. Code § 14-255(a), but the municipalities appoint and reappoint the judges for terms of two to four years and the municipalities set the judges' compensation, S.C. Code§ 14-25-15(A).
Before 2009, the Public Defender for the Fourteenth Judicial Circuit provided representation to indigent defendants in Beaufort and Bluffton Municipal Courts. (Id. ~ 30.) In 2009, Defendants ignored requests from the public defender for funding to cover those services. Consequently, the public defender notified the municipal judges that the public defender would
3 The judges relevant to the complaint allegations-Ned Tupper, Mary Sharp, and Dustin Leeare lawyers in private practice. Dustin Lee is no longer a municipal judge.
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no longer provide representation and the municipalities that they needed to contract with private
attorneys to provide indigent defense they needed to contract with private attorneys. (Id. if 30.)
Thereafter, in 2015, the state legislature required municipalities that elect to have a municipal court to provide adequate funds for representation of indigent defendants. Act No. 91 , 2015 S.C. Acts 429, 884 (2015) [hereinafter "Proviso 61.12"]. The legislature has reenacted that requirement each subsequent fiscal year. The Municipal Association of South Carolina's October 2015 newsletter, under the banner headline "Indigent defense costs are municipal responsibility," informed South Carolina' s municipalities that this law gave them "four potential courses of action":
1. Negotiate an agreement for indigent defense with the circuit public defender. Several cities and towns have already taken this option. 2. Contract with an independent attorney for a fee or pro bono. Before contracting with the attorney, the town should ensure the attorney has malpractice insurance. 3. Remove the threat of jail time for indigents, although this makes it more difficult to collect any fines that might be imposed on the defendant. 4. Close the municipal court and negotiate an agreement with the county to have municipal cases tried in magistrate court. Mun. Ass 'n of S.C., Indigent def ense costs are municipal responsibility, Uptown, Oct. 2015
(cited at Dkt. No. 1 if 27). It also warned, "Failure to provide indigents with counsel could
expose cities to liability" and "advocacy groups around the country are seeking opportunities to sue cities that violate the indigent defendant' s right to counsel." Id.
Defendants nonetheless failed to provide counsel for indigent defendants before Plaintiffs were sentenced to jail in 2017. At an April 25 , 2017 Beaufort City Council meeting, city operations manager Linda Roper discussed with the city council a request for $10,000 in fiscal year 2018 to contract with a private attorney to provide municipal court indigent defense, which
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she described as "a mandate from the state." Beaufort City Council, Minutes, April 25, 2017, at 2. The Beaufort Municipal Court annual budget is approximately $500,000 and the court generates about $220,000 in revenue. Id. at 2-3. Ms. Roper recommended contracting with a private attorney rather than the public defender because the public defender has a case backlog and because Beaufort would get more "bang for the buck" from a local attorney retained by the council than from the public defender for the Fourteenth Judicial Circuit, who operates beyond the control of the City of Beaufort. Id. at 2. Councilman Philip Cromer asked if Beaufort could simply pay a fine rather than provide counsel for indigent defendants as required by law. Id. Councilman Mike Mcfee noted that course of action could result in litigation brought by the American Civil Liberties Union ("ACLU"). Id. 4
Around the time of those discussions, at least fifty unrepresented persons were sentenced to incarceration in Beaufort and Bluffton municipal courts (Dkt. No. 1 ~ 41 (period March 21 to June 19, 2017)) and 36% of the inmates in the Beaufort County Detention Center were incarcerated on municipal court charges without the assistance of counsel (Id. 1 ~ 42 (as of July 1, 2017)). On September 15, 2017, the Chief Justice of South Carolina issued a memorandum to all municipal court judges instructing them that " [a]ll defendants facing criminal charges in your courts that carry the possibility of imprisonment must be informed of their right to counsel and,
4 The Town of Bluffton's actions are more opaque. Its fiscal year 2017 budget included " [p]rovide counsel for indigents per new State law" under a list of "Current Performance Initiatives" for its Finance and Administration Department, which includes the municipal court. Town of Bluffon Adopted Consolidated Municipal Budget, Fiscal Year 2018, June 14, 2016, at 77. Whether that meant actually providing counsel for indigent defendants in 2017 is unclear, especially since the FY 2017 municipal court budget was only $2,955 higher than the revised FY 2016 budget (a less-than-inflation increase). Id. at 79. The FY 2018 municipal court budget, however, was $14,720 higher than the revised FYE 2017 budget. Town of Bluffon Adopted Consolidated Municipal Budget, Fiscal Year 2018, June 13, 2017, at 48.
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if indigent, their right to court-appointed counsel prior to proceeding with trial" and that failure to do so would be a "clear violation" of the United States Constitution. (Id. 53.) C. Procedural History
The ACLU filed the present putative class action on behalf of named Plaintiffs Tina Bairefoot, Dae ' Quandrea Nelson, Nathan Fox, and all other persons similarly situated, on October 11 , 2017. Plaintiffs assert claims under 42 U.S .C. § 1983 for alleged violations of the Sixth and Fourteenth Amendments. They seek compensatory damages, attorney' s fees, and "any other relief' the Court deems proper. Defendants moved to dismiss the complaint for failure to state a claim on December 17, 2017. The Court held a hearing on the motion on April 9, 2018. II. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts , the merits of the claim, or the applicability of defenses. . . . Our inquiry then is limited to whether the allegations constitute ' a short and plain statement of the claim showing that the pleader is entitled to relief."' Republican Party of N. C. v. Martin , 980 F.2d 943 , 952 (4th Cir. 1992) (quotation marks and citation omitted). In a Rule 12(b)(6) motion, the Court is obligated to "assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P 'ship, 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in a light most favorable to the non-moving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.
To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face. " Bell Atl. Corp. v. Twombly, 550 U.S . 544, 570 (2007).
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Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. III. Discussion
Under the Sixth Amendment to the Constitution, "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. " Argersinger v. Hamlin , 407 U.S. 25 , 37 (1972). The constitutional requirement only applies to the actual imposition of a sentence of imprisonment. It does not apply where the statute under which the defendant is charged provides for imprisonment as a possible sentence. See Scott v. Illinois, 440 U.S. 367, 373 (1979). The right, however, does apply to a suspended or contingent sentence of imprisonment. Alabama v. Shelton, 535 U.S. 654, 662 (2002).
Independently, under the Equal Protection Clause of the Fourteenth Amendment, it is unconstitutional for a state to sentence a person to any period of imprisonment for inability to pay a fine. " [T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. " Tate v. Short, 401U.S.395, 398 (1971).
Under those well-established constitutional rules, sentencing Plaintiffs to incarcerationeither immediately or for inability to pay a fine- without assistance of counsel was a clear violation of federal law. Indeed, Defendants do not argue otherwise. Rather, they argue municipalities like themselves cannot be liable for the constitutional violations alleged. They argue that the duty to provide counsel for indigent criminal defendants is a judicial duty, not a
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municipal duty, that any municipal failure to comply with state law requiring appropriations for indigent defense is not actionable under§ 1983, that they could not have proximately caused the alleged constitutional violations, and that the alleged facts are insufficient to show actual causation. They also argue the present suit seeks direct review of a state court judgment in violation of the Rooker-Feldman doctrine or is a collateral attack on criminal convictions impermissible under Heck v. Humphrey, 512 U.S. 477 (1994). As explained below, Defendants' arguments are without merit. A. Defendants were required to provide counsel for Plaintiffs
Defendants argue Reed v. Town of Lexington, 902 F.2d 1566 (4th Cir. 1990) (unpublished) holds that South Carolina municipalities have no legal duty to provide legal counsel for indigent defendants in municipal courts. (Dkt. No. 14-1 at 3-4.) In Reed, the plaintiffs sued the Town of Lexington, South Carolina, alleging, inter alia, that they were tried in Lexington municipal courts without assistance of counsel and sentenced to imprisonment. The Fourth Circuit reasoned the Town had no control over the Lexington municipal judge because "the municipal courts in South Carolina are, by statute, a part of the state's unified judicial system" and "[u]nder South Carolina law, administration of the unified judicial system is the responsibility of the judicial branch pursuant to Article V of the state constitution and is not a matter of local concern." 902 F.2d 1566, at *2. For the same reason, the court determined the Town could not provide any relief for a municipal judge' s wrongdoing.
Plaintiffs correctly argue Reed is inapplicable because state law enacted after Reed was decided makes counsel for indigent defendants "a matter of local concern" by requiring municipalities to providing funding for such counsel in their municipal courts. See Proviso 61.12. The other case Defendants cite in support of their no-duty-to-provide-counsel argument, Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir. 1989), is inapplicable for the same reason. In
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Hamill, the Fifth Circuit held, "Texas law makes only state court judges responsible for appointing attorneys for indigent criminal defendants." 870 F.2d at 1037. South Carolina law, however, clearly makes municipalities responsible for providing for indigent defense in municipal courts.
Further, Reed's holding regarding municipal courts relies solely upon Kramer v. County Council for Dorchester County, 282 S.E.2d 850 (S.C. 1981 ). Kramer concerned a master-inequity's pay dispute with Dorchester County. The "matter of local concern" language in Reed comes from the statement in Kramer that delegations of legislative authority to local governments are limited to "local matters." Id. at 852 (citing Gaud v. Walker, 53 S.E.2d 316, 321 (S.C. 1949) ("[T]he general doctrine prohibiting the delegation of legislative authority has no application to the vesting in political subdivisions of powers to govern matters which are local in scope.")). The South Carolina Supreme Court held that delegating to counties the power to fix compensation of masters-in-equity, who are appointed by the Governor and who hold office in courts established by the legislature, "clearly exceeds the scope of 'local concerns"' and so is an unconstitutional delegation of legislative authority. Kramer does not suggest that municipalities have no control over the municipal courts that they create. To the contrary, South Carolina municipalities have considerable control over their municipal courts. Municipalities appoint and reappoint the municipal judges and set their salaries. S.C. Code § 14-25-15(A).
Moreover, City Council, as noted above, possesses broad discretion in generally administering the Municipal Court System. Council determines the number of municipal judges, full-time and part-time. Council also has broad authority with respect to ministerial recorders. Moreover, Council, as the funding authority for the city, has broad authority to establish by ordinance the Municipal Court System. Accordingly, Council possesses considerable discretion in the structure, make-up, organization and administration of the court system through the local legislative process. Again, I would reiterate that the authority given by the General Assembly in this area is ample to remedy the situation [excessive caseloads]. Council possesses
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clear authority over the municipal judges and ministerial recorders in the sense of creation of positions, funding, appointment, reappointment, etc. Council also retains broad legislative policy-making authority in terms of the structure and organization of its Municipal Court System as well as the authority to contract with the other municipalities or the county to assist it. Letter from Assistant Deputy Attorney General Robert D. Cook to Senator Robert W. Hayes, Jr. , 1996 WL 549582, at *5 (S.C.A.G. Aug. 27, 1996). B. Defendants' failure to provide counsel for Plaintiffs is actionable under federal law Defendants argue that even if the Proviso 61.12 does require municipalities to provide for indigent defense in municipal courts (as it indeed does), municipal failure to comply with a state law is not actionable under § 1983. But Proviso 61.12 merely means the municipalities are the public authorities designated by state law to provide for indigent defense in municipal courtsProviso 61.12 even prohibits the South Carolina Commission on Indigent Defense from providing indigent defense in municipal courts unless municipalities agree to pay for such services. A deliberate decision to create criminal courts that operate without providing counsel to indigent defendants is a violation of the Sixth Amendment, which certainly is actionable under § 1983 . See Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (holding the right to counsel "is made obligatory upon the States by the Fourteenth Amendment"); Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1134 (W.D. Wash. 2013) ("Having chosen to operate a municipal court system, however, defendants are obligated to comply with the dictates of the Sixth Amendment . . . ."). Here, as in Wilbur, "Plaintiffs have shown that the constitutional deprivations at issue here were the direct and predictable result of the deliberate choices of City officials charged with the administration of the public defense system." 989 F. Supp. 2d at 1132. C. Causation Defendants further argue the failure to fund defense counsel did not proximately cause the violation of Plaintiffs' rights because Defendants have no control over the municipal judge.
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They argue the municipal judge should have ordered some member of the bar to represent indigent defendants. 5 According to Defendants, that lawyer could then sue the municipalities for fees pursuant to Proviso 61.12. (Dkt. Nos. 26 at 8-9, 32 at 31- 34.) An alternative would be for the municipal judge simply not to sentence unrepresented persons to a term of imprisonment. Either way, there would be no constitutional violation.
Those arguments imply the municipal judge' s decision to violate the Constitution is a superseding cause of the alleged violation, relieving the municipalities of liability. The Fourth Circuit addressed superseding causes and proximate causation in constitutional torts in Evans v. Chalmers, holding "an alleged officer-prosecutor conspiracy does not alter the rule that a prosecutor's independent decision to seek an indictment breaks the causal chain unless the officer has misled or unduly pressured the prosecutor" because "subsequent acts of independent decision-makers (e.g. , prosecutors, grand juries, and judges) may constitute intervening superseding causes that break the causal chain"). 703 F.3d 636, 647, 649 (4th Cir. 2012). But the Evans court also held that "even when, as here, a prosecutor retains all discretion to seek an indictment, [ l police officers may be held to have caused the seizure and remain liable to a wrongfully indicted defendant under certain circumstances." Id. at 647. That is because superseding causation "is usually a rule allowing a defendant to avoid liability where damages have been caused by a third party or a force that was entirely unforeseeable, so much so that it
5 It is unclear whether municipal judges have authority to appoint counsel. In 2013, Beaufort city attorney Bill Harvey told a local newspaper that municipal judges lack the authority to appoint counsel. Tom Barton, ACLU: Equal justice for poor remains unfulfilled in SC municipal courts, The Island Packet (October 5, 2013). Rule 608, SCACR ("Appointment of lawyers for indigents") expressly applies only to circuit and family courts. Rule 602, SCACR ("Defense of indigents") requires the appointment of counsel in municipal court cases where a prison sentence is likely, but the rule can be read as requiring the municipal judge to forward an approved application for appointed counsel to a circuit judge for an order of appointment. For present purposes, this Court assumes a municipal judge could appoint counsel for an indigent criminal defendant.
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could hardly be said that the injury was the result of the defendant's negligence." Rawl v. United States, 778 F.2d 1009, 1015 (4th Cir. 1985).
Here, it was foreseeable that Defendants' failure to provide for indigent defense in courts of their own creation, as required by state law, would result in a violation of the Sixth Amendment. Defendants were on notice that their courts had been sentencing unrepresented
persons to incarceration for years and in large numbers. (Dkt. No. 1 iii! 25-27, 30-33, 35, 41-43,
49.) They were also on notice that they had a duty to provide counsel. (Id.) Indeed, in 2013years before Plaintiffs were denied counsel-the ACLU brought the issue to Defendants'
attention. (Id. if 49.) A counterfactual hypothesis that the municipal judges appointed by
Defendants might have intervened to prevent an ongoing constitutional violation known to Defendants does not make the violation unforeseeable. See, e.g., Malley v. Briggs, 475 U.S. 355, 345-46 (1986).
Defendants also argue that even if damages are recoverable "in theory," they cannot show their alleged damages arising from incarceration were actually caused by the deprivation of counsel, because Plaintiffs cannot show that they would have avoided incarceration but for the absence of counsel. (See Dkt. No. 26.) A structural error like denial of counsel does not require a showing of prejudice when reviewing a criminal conviction for legal error, but some actual harm must be shown to establish liability for compensatory damages. But the alleged deprivation of counsel certainly suffices to support a claim for nominal damages. See Via v. Cliff, 470 F.2d 271, 275 (3d Cir. 1972) (holding a plaintiff"can maintain this cause of action" under § 1983 for infringement of his right to counsel "without alleging or proving prejudice to his defense at trial by the alleged actual infringements"). The proper measure of damages in the
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event Plaintiffs are unable to show the alleged constitutional violations caused prejudice to their defenses in their criminal cases is not an issue before this Court at this time. See id. at n.3. D. Heck v. Humphrey
Defendants argue Heck v. Humphrey bars this § 1983 action because success "would necessarily imply the invalidity" of Plaintiffs' underlying criminal convictions. See 512 U.S. 477, 486-87. That argument is without merit. Heck does not bar this case because Plaintiffs have plausibly pleaded that habeas relief was unavailable due to the short periods of
imprisonment involved. (Dkt. No. 1 iii! 68, 104, 118); see Wilson v. Johnson, 535 F.3d 262, 268
(4th Cir. 2008) ("If a prisoner could not, as a practical matter, seek habeas relief, and after release, was prevented from filing a § 1983 claim, § 1983 's purpose of providing litigants with 'a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nations,' would be severely imperiled." (citation omitted)). Whether habeas relief was available is a question of fact. See Covey v. Assessor of Ohio Cty., 777 F.3d 186, 197- 98 (4th Cir. 2015). Plaintiffs' allegations that habeas was in fact unavailable are quite plausible-indeed, it is difficult to imagine how federal habeas relief possibly could have been available to an unrepresented indigent person serving a two- or fourweek sentence in a county jail. E. The Rooker-Feldman doctrine
Defendants argue the Rooker-Feldman doctrine prohibits Plaintiffs' claims because they seek redress for injuries allegedly caused by a state court decision. " [T]he Rooker-Feldman doctrine applies only when the loser in state court files suit in federal district court seeking redress for an injury allegedly caused by the state court's decision itself." Davani v. Virginia Dep 't of Transp., 434 F.3d 712, 713 (4th Cir. 2006). "The Rooker-Feldman doctrine bars consideration not only of issues actually presented to and decided by a state court, but also of
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constitutional claims that are inextricably intertwined with questions ruled upon by a state court, as when success on the federal claim depends upon a determination that the state court wrongly decided the issues before it." Plyler v. Moore, 129 F.3d 728, 731 (4th Cir. 1997) (internal quotation marks omitted). "However, the Rooker-Feldman doctrine does not bar review of a ruling of a state court in habeas corpus proceedings." Id.
Defendants essentially argue this Court lacks jurisdiction over the alleged constitutional violations because after Plaintiffs were convicted in municipal court without counsel and sentenced to short jail sentences, they failed to litigate their convictions pro se all the way to the United States Supreme Court. That argument is directly contradicted by the Fourth Circuit's holding that where "a prisoner could not, as a practical matter, seek habeas relief," he may file a § 1983 claim to vindicate his constitutional rights "against incursions under the claimed authority of state law upon rights secured by the Constitution." Wilson , 535 F.3d at 268. Obviously, no such § 1983 claim could be filed if Rooker-Feldman barred federal district courts from considering any constitutional defect in a state criminal proceeding not presented through a petition for a writ of habeas corpus. Moreover, if a criminal defendant were denied counsel and sentenced to incarceration in state court for a term of incarceration long enough to allow a habeas petition, but he could not exhaust state remedies precisely because he was denied counsel, habeas relief could be available under 28 U.S.C. § 2254(b)(l)(B). It would be illogical to read RookerFeldman as holding that in an otherwise identical case, there can be no federal jurisdiction over an alleged violation of the Constitution merely because a federal filing during the period of incarceration was factually impossible. That is exactly the result Wilson prohibits: "we do not believe that a habeas ineligible former prisoner seeking redress for denial of his most precious right- freedom-should be left without access to a federal court." 535 F.3d at 268.
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Moreover, that result would also be inconsistent with the Fourth Circuit's narrow reading
of Rooker-Feldman :
To emphasize the narrow role that the Rooker-Feldman doctrine is to play, the Supreme Court has noted repeatedly that, since the decisions in Rooker and Feldman , it has never applied the doctrine to deprive a district court of subject matter jurisdiction. Similarly, since Exxon, we have never, in a published opinion, held that a district court lacked subject matter jurisdiction under the Rooker-Feldman doctrine.
To be sure, the distinction between preclusion principles and the Rooker-Feldman doctrine can sometimes be subtle, but it is nonetheless important to maintain. Preclusion principles are designed to address the tension between two concurrent, independent suits that results when the two suits address the same subject matter, claims, and legal principles. Whereas the Rooker-Feldman doctrine, by contrast, assesses only whether the process for appealing a state court judgment to the Supreme Court under 28 U.S.C. § 1257(a) has been sidetracked by an action filed in a district court specifically to review that state court judgment. Thus, if a plaintiff in federal court does not seek review of the state court judgment itself but instead ''presents an independent claim, it is not an impediment to the exercise of federal jurisdiction that the same or a related question was earlier aired between the parties in state court."
Thana v. Bd. of License Comm 'rs for Charles Cty., Md., 827 F.3d 314, 320 (4th Cir. 2016)
(emphasis in original). Here, Plaintiffs' claims under § 1983 are not an attempt to "sidetrack"
the direct appeal process for state convictions for shoplifting, assault, or motor vehicle violations,
but, rather, are claims independent of the underlying state criminal judgments. The complaint
does not ask this Court to review state-court findings of fact or conclusions of law supporting
Plaintiffs' criminal convictions. Plaintiffs seek to force two South Carolina municipalities to
comply with the Constitution' s requirement to provide counsel for indigent defendants appearing
in criminal courts created and managed by those municipalities, and to remedy the
municipalities' past failure to meet that basic constitutional requirement. In Skinner v. Switzer,
the Supreme Court held that "a state-court decision is not reviewable by lower federal courts, but
a statute or rule governing the decision may be challenged in a federal action." 562 U.S. 521,
532 (2011). If Rooker-Feldman does not bar lower federal court review of the statute governing
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a state court's judgment, then it surely does not bar lower federal court review of a municipal policy merely because that policy governs some aspect of a state court's administrative practices. IV. Conclusion
For the foregoing reasons, the Court DENIES Defendants' motion to dismiss (Dkt. No. 14).
AND IT IS SO ORDERED.

May ]l, , 2018 Charleston, South Carolina

Richard Mark Gergel United States District Court Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

TINA RENEE BAIREFOOT, et al., Plaintiffs,
v. CITY OF BEAUFORT, SOUTH CAROLINA; TOWN OF BLUFFTON, SOUTH CAROLINA,

Civil Action No. 9: 17-2759-RMG

Defendants. COURT ORDER

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TABLE OF CONTENTS I. INTRODUCTION....................................................................................................................... 1 II. DEFINITIONS ............................................................................................................................ 2 III. MUTUAL RECOGNITION OF PRINCIPLES ................................................................. 2 IV.POLICIES AND PRACTICES .................................................................................................. 2 V. PUBLICATION AND DISSEMINATION OF PROCEDURES ............................................ 6 VI. TRAINING .................................................................................................................................. 7 VII. PAYMENTS, ATTORNEY FEES, COSTS ........................................................................ 8 VIII. TERM, EFFECT, MONITORING, COMPLIANCE, AND ENFORCEMENT ......... 9 IX.RELEASE OF CLAIMS .......................................................................................................... 10 X. ADDITIONAL TERMS ........................................................................................................... 11

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The Parties in this matter- Defendants City of Beaufort, South Carolina, Town of Bluffton, South Carolina, ("Municipalities"), and Plaintiffs Tina Renee Bairefoot, Dae'Quandrea Trevell Nelson, and Nathan Lee Fox (collectively, "Plaintiffs")-have reached a Settlement Agreement ("Settlement" or "Agreement") in this matter. The Parties have asked the Court to enter an order approving and incorporating their Settlement as more fully detailed herein. With the benefit of the Parties' agreement together with the record as a whole, the Court approves the Settlement and related Exhibits, incorporates the parties' proposed settlement into this order, and will retain jurisdiction over this matter for purposes of enforcing this Order.
I. INTRODUCTION
1. Each of the named Plaintiffs allege that they were prosecuted, convicted and incarcerated in the Beaufort County Detention Center-Plaintiff Tina Bairefoot for 16 days, Plaintiff Dae'Quandrea Nelson for 14 days, and Plaintiff Nathan Fox for 39days-without being provided court-appointed counsel as indigent people facing incarceration upon conviction of a crime and were not informed of their right to counsel prior to receiving a sentence of incarceration (the "Incidents").
2. Plaintiffs Bairefoot, Nelson, and Fox filed a Complaint on October 12, 2017 in the United States District Court for the District of South Carolina (the "Court"), commencing a proposed class action lawsuit entitled Bairefoot v. City of Beaufort, Case No. 9: 17-2759RMG (D.S.C.) (the "Lawsuit"), against Defendants City of Beaufort and Town of Bluffton, which sought declaratory and injunctive relief on behalf of the proposed Class and compensatory damages for the named Plaintiffs, and alleges violations of several constitutional rights of the Plaintiffs and proposed Class members, including the right to counsel under the Sixth Amendment and the right to due process and equal protection of the law under the Fourteenth Amendment to the U.S. Constitution, as a result of alleged policies, practices, and customs of the Municipalities that Plaintiffs maintain exhibited deliberate indifference to the rights of Plaintiffs and proposed Class members and directly led to the unconstitutional sentences of incarceration imposed upon Plaintiffs and other proposed Class members.
3. On May 16, 2018, the Court denied Defendant's Motion to Dismiss Plaintiffs Complaint under F.R.C.P. 12(b)(6).
4. Following mediation before the Honorable Patrick Michael Duffy, the Parties hereby agree to resolve all Claims brought in and to settle the Lawsuit. Upon entry of this Order approving and incorporating the Parties' Settlement and retaining jurisdiction, the Lawsuit shall be dismissed with prejudice as to Defendants.
5. The Court recognizes that the Settlement Agreement between the parties does not constitute an admission by Defendants of a violation of any federal, state, or local laws, or any admission of any wrongdoing whatsoever, that the Settlement Agreement is a compromise of a real or potential dispute and that the promises of Defendants are not to be construed as an admission of liability, but rather that liability is expressly denied.
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II. DEFINITIONS
The Court hereby incorporates by reference the Definitions as set forth in the Section III of the Settlement.
III. MUTUAL RECOGNITION OF PRINCIPLES
The Court hereby adopts the following Mutual Recognition of Principles as agreed to by the Parties and as set forth in Section IV of the Settlement:
1. The Municipalities and their agents and employees shall not deprive Indigent people facing prosecution in their Municipal Courts of the right to counsel. As such, no Indigent person shall be charged with criminal, non-criminal traffic, or ordinance violations that carry the possibility of a Sentence of Incarceration without being advised of their right to counsel and provided with such Counsel unless the individual defendant knowingly, voluntarily, and intelligently waives such right.
2. It is contrary to the principles of due process and equal treatment enshrined in the Constitution of South Carolina and the U.S. Constitution to deprive people of their constitutional rights simply because they are indigent.
IV. POLICIES AND PRACTICES
The Court hereby adopts and incorporates into this order the following Policies and Practices as agreed to by the Parties and set forth in Section V of the Settlement:
1. Within thirty (30) days of the Effective Date, the Municipalities agree to implement the following changes to their policies and practices in Municipal Courts:
1. An Indigent person has a right to court-appointed representation by Counsel in all proceedings concerning criminal, non-criminal 1traffic, or ordinance violations that may be punishable by a Sentence of Incarceration, whether that incarceration is immediate, for time served, or suspended, and regardless of denomination as misdemeanors, municipal offenses, or traffic offenses, and regardless of whether a uniform traffic ticket or custodial arrest initiated the case.
11. The Municipalities and their agents and employees, shall appoint Counsel to every Indigent defendant facing charges that carry the possibility of a Sentence of Incarceration. Counsel shall be appointed unless, upon being advised of the right to counsel, an Indigent defendant knowingly and intelligently waives such right. Indigent defendants are those that meet the requisite financial qualifications under South Carolina state law or court rules. The Municipalities shall ensure that any application Fee for Counsel is waived or reduced from the outset for Indigent defendants who cannot pay to apply for court appointed counsel. The Municipalities may use the Financial Status Affidavit attached as Exhibit A in the Settlement to determine whether a defendant is eligible for appointed counsel pursuant to S.C. Code§ 17-3-30 and South Carolina
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Criminal Rule 602 (Defense of Indigents) unless or until a revised Financial Status Affidavit is adopted.
ui. The Municipalities shall enter into a contract with the Beaufort County Public Defender Office in the 14th Judicial Circuit to provide Indigent defense in their Municipal Courts. The Municipalities' contract with the Public Defender Office will ensure that Indigent defendants facing charges that carry the possibility of a Sentence of Incarceration in their Municipal Courts will have appointed Counsel present at every stage of the legal proceedings, including first appearance, motion hearings, trial, sentencing, show cause hearings and other post-sentencing proceedings. Where a conflict exists as to the Public Defender providing representation in a given case, the Municipalities shall appoint Counsel other than the Public Defender. This section adopts by incorporation the terms of the prospective Tupper/Bush Orders discussed further in Paragraph IV(l)(xi).
iv. The Municipalities shall appropriate sufficient funding to engage the Public Defender Office for the delivery of legal services to Indigent defendants according to terms set forth in an annual contract between the Municipalities and the Public Defender Office, which shall include, among other things, costs related to representation, including an investigator, administrator, and funds to hire social workers and experts when appropriate (the "Public Defender Contract"). The terms of the Public Defender Contract shall ensure that no Public Defender is assigned more than 400 cases per calendar year. Traffic offenses shall not count towards the case limit unless a defendant faces the possibility of a Sentence of Incarceration. For purposes of tracking Public Defender caseloads, cases will be counted by case number, not by the number of charged offenses.
v. The Municipalities and the Public Defender Office will provide a draft of the annual Public Defender Contract to Plaintiffs for input for the duration of the Monitoring Period as defined herein in Section XI of the Agreement. Such terms shall include the process for appointment of Counsel for all Indigent defendants eligible for the appointment of Counsel.
v1. The Municipalities will provide written notice as well as oral advisement of the right to counsel to every person charged with an offense that carries with it the possibility of a Sentence of Incarceration. When each person charged with an offense that carries the possibility of a Sentence of Incarceration stands before the court when their case is called, whether at the initial appearance for defendants summoned to court or at the bond hearing for defendants detained upon arrest, the Municipalities, referencing the earlier advisement, will require the court to ask each defendant whether they want a lawyer. The Municipalities may use either of the Advisement of Rights attached as Exhibit Band C to the Settlement unless or until the Office of Court Administration promulgates a revised Advisement of Rights.
VIL The Municipalities will ensure that when any individual who indicates a preference to proceed without Counsel at any proceeding at which Counsel is required, there is a determination on the record whether the waiver of the right to counsel has been made voluntarily, intelligently, and with full knowledge of the direct and collateral
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consequences. As part of the determination on the record, the Municipalities will ensure-through the issuance of a directive to its agents and employees-that when any individual who has indicated a preference to proceed without Counsel at any proceeding at which Counsel is required, a colloquy must be conducted with the defendant about the pending charge(s), maximum sentence(s), and potential collateral consequence(s) of a conviction. A defendant who waives their right to counsel upon advisement may assert their right to counsel at any subsequent point during the pendency of their case. The Municipalities may use either of the Waiver of Rights Forms attached as Exhibit D and E to the Settlement unless or until Office of Court Administration promulgates a revised Waiver of Rights.
vni. If and when there is a revised set of forms from the South Carolina Office of Court Administration regarding Advisement of Rights, Financial Status, Waiver of Rights, or Ability to Pay, the Municipalities shall use such forms and will incorporate such forms into the Tupper/Bush Orders. Until then, the Parties agree to use the Forms attached as Exhibits A-F to the Settlement.
ix. Trials in Absentia without Counsel are strongly disfavored by federal and South Carolina courts. Waiver of the right to counsel and the right to be present at trial requires adequate advisement and notice on the part of the court, and willful action on the part of the defendant. A defendant does not waive his or her right to counsel and right to be present at his or her trial, and therefore cannot be Tried in Absentia, simply due to a failure to appear absent additional advisement or notice by the Municipalities, including when the defendant has previously been present in court for appearances on the same matter. Each defendant must, at minimum, receive actual notice of the right to counsel and to be present in court when a trial date is set, including at a bond hearing, and must receive actual notice of future court appearances, including the trial date. If a defendant who received actual notice does not appear for trial, and the Municipal Court has determined that the defendant is not in custody, a warrant shall issue and, upon arrest or appearance, a bond hearing shall be conducted as soon as practicable and the individual's counsel shall be notified. 1 If the individual is Indigent and does not have Counsel, the individual shall be advised of his or her right to counsel and, ifthe Indigent individual requests Counsel, Counsel shall be appointed. The Municipalities shall not conduct any trial or sentencing proceedings without the defendant in court when that defendant is facing charges that carry the possibility of a Sentence of Incarceration. If and when there is explicit guidance from the Chief Justice of the South Carolina Supreme Court and/or the Office of Court Administration regarding Trials in Absentia, the Municipalities will incorporate such guidance into this Agreement and conform their practices accordingly.
x. For any Indigent defendant arrested and detained pretrial, Counsel shall be provided to them at the bond hearing or as soon as practicable after the bond hearing, and thereafter if the defendant remains detained. This section incorporates by reference the terms of.the
1For defendants who are in custody, the Municipal Court shall reschedule the court appearance and provide notice to the defendant in the facility in which the defendant is incarcerated.
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Municipalities' joint contract with the Public Defender Office, referenced above in Paragraph IV(l)(iii) and (iv).
XI. Pursuant to the written directives from Beaufort Presiding Judge Ralph E. Tupper and Bluffton Presiding Judge Clifford Bush III (hereinafter the "Tupper Order" and the "Bush Order," respectively) issued to all Municipal Court judges, and as the official policy for the Municipalities: for any Indigent defendant, whether in or out of custody, who may face the possibility of a Sentence of Incarceration, the Municipalities, and their agents and employees, shall (1) provide notice to the defendant at the initial appearance (if summoned to court) or at the bond hearing (if detained upon arrest) of the potential Sentence of Incarceration; (2) provide written as well as oral advisement to the defendant of their right to counsel (consistent with Paragraph IV(l)(vi) of this Agreement); (3) upon request, provide the Indigent defendant with Counsel; (4) continue the defendant's case for 30 days to allow Counsel to begin representation of the defendant and (5) never impose a Sentence of Incarceration on any defendant at their first appearance. Only when the Municipal Court judge makes a finding on the record that a defendant will not receive a Sentence of Incarceration shall the Municipalities have the option of not appointing Counsel to an Indigent defendant.
x1I. At the time of imposition of any Monetary Penalty, a Municipal Court or its staff shall assess an individual's Ability to Pay any Fines, Fees, and Restitution imposed for an offense. Upon this assessment, if the Municipal Court or its staff determines that a defendant is unable to currently pay the Monetary Penalty, the court may either (1) consider alternatives to imposing the full Monetary Penalty, including a reduction in Fines or Fees, a waiver or suspension of Fines or Fees, community service, completion of a program (job skills, drug treatment, etc.), or any other disposition deemed just and appropriate in the discretion of the Municipal Court, pursuant to applicable law; (2) offer an extension of the amount of time to pay; or (3) offer an installment payment agreement, necessary and sufficient to fit the individual's financial circumstances. If a Municipal Court offers an extension or an installment payment agreement and, thereafter, upon assessment the court finds that the individual is still unable to pay the Monetary Penalty, the court shall, pursuant to applicable law, consider alternatives to imposing the full Fine, Fee, or Restitution, including a reduction in Fines or Fees, a waiver or suspension in Fines or Fees, community service, completion of a program (job skills, drug treatment, etc.), or any other disposition deemed just and appropriate, in the discretion of the Municipal Court. The Municipalities will use the Ability to Pay Form attached as Exhibit F to the Settlement unless or until Office of Court Administration promulgates a revised Ability to Pay form.
xm. The Municipalities will provide solicitors in Municipal Courts to prosecute charges that carry the possibility of a Sentence of Incarceration when requested by the Police Department.
xiv. The Municipalities will submit a letter to Chief Justice Beatty of the South Carolina Supreme Court requesting that all municipalities in the State of South Carolina be given
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the authority to implement and oversee pretrial diversion programs through their municipal courts.

xv. The Municipalities will ensure, through the issuance of a directive to its agents and employees, that at the bail hearing for every individual facing charges in Municipal Court, the presumption shall be release upon recognizance.

xv1. The Parties agree to work with the Public Defender Office, Beaufort County Magistrate Courts and Beaufort County in the collective effort and goal to provide Counsel for Indigent defendants at their initial bond hearing as soon as this can be accomplished.

xvn. The Municipalities will collect, document, and report to Plaintiffs data from their Municipal Courts specifically requested by Plaintiffs every month from the Effective Date of this Agreement until the end of this Agreement. The data will be provided to Plaintiffs in electronic format. See Section X(5) of this Agreement for a summary of the data to be collected, documented, and reported by the Municipalities to Plaintiffs.

xvm.

All Municipal Court proceedings shall be audio recorded. Municipal Courts shall ensure that advisement of the right to counsel, colloquies concerning waiver of the right to counsel, trials, and sentencings, are audio recorded and that records are retained for a minimum of three years from the date of the recording.

xix. The Municipalities will invite the Town of Port Royal to become a party to the Public Defender Contract.

xx. Upon the execution of this Agreement, the Municipalities shall release from the Beaufort County Detention Center any individual who is serving a Sentence of Incarceration imposed in the absence of counsel and valid waiver.

V. PUBLICATION AND DISSEMINATION OF PROCEDURES

1. Within thirty (3 0) days of the Effective Date, the Municipalities shall publish and disseminate all policies, procedures, and guidelines promulgated to effect this Agreement to all personnel involved in the appointment and provision of Indigent defense in their Municipal Courts, and the sentencing of Indigent defendants, including: Municipal Court judges; court clerks; solicitors/prosecutors; Public Defenders; other Counsel appointed to represent Indigent defendants in Municipal Court proceedings; and Beaufort County corrections officers and staff.

2. The Municipalities shall make available to the public an easy-to-understand explanation of the individual rights and procedures concerning the provision of Indigent defense in their Municipal Courts. The explanation shall be written in easy-to-understand language and shall be provided to all defendants in Municipal Court and made available to members of the public who come to Municipal Court.

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3. The Municipalities shall ensure that all Municipal Court web pages explain to the public, in accessible and easy-to-understand language, the individual rights and procedures concerning the provision of Indigent defense.
i. This shall include revisions to the following webpages and any new webpages that may be created during the period in which this Agreement is in effect:
a) https://www.cityofbeaufort.org/218/Municipal-Court
b) https://www.townofbluffton.sc.gov/municipal-court-department/home
c) https://www.bcgov.net/departments/Public-Safety/detentioncenter/index.php
11. The Municipalities shall revise the aforementioned web pages to include at least the following information using a format and language that is easily understood.
a) A plain language description of the rights of defendants that relate to the right to counsel and the provision of Indigent defense:
1. The right of Indigent people to representation by court-appointed Counsel, at no cost to defendant, when facing charges that carry the possibility of a Sentence of Incarceration.
b) Notice of the procedure for requesting counsel and a continuance of a court date in order that Counsel be appointed.
c) Rules and procedures of Municipal Courts relating to Indigent defense.
VI. TRAINING
1. General. The Municipalities and Plaintiffs will work together to ensure that Municipal Courts (Municipals and court clerks), all Public Defenders, police officers who appear in Municipal Court, and Beaufort County Detention Center employees who may process requests for counsel, shall participate in training on issues as set forth below, including by incorporating these issues into the trainings provided by the Office of Court Administration.
2. Right to Counsel. The Municipal Courts and their personnel, Public Defenders, and police officers who appear in Municipal Court, and Beaufort County Detention Center employees who may process requests for counsel, shall attend periodic trainings on issues related to the right to counsel. The first such training shall occur within two (2) months of the Effective Date. Thereafter, training shall be consistent with the training schedules of the Office of Court Administration, the Municipalities, and the Public Defender Office. Copies of all training materials shall be made available to all new Municipal Court judges within their first month of taking office and to all new Municipal Court, Public Defender
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Office, and Police Department personnel within their first month of employment. The trainings shall address at least the following topics:
a. Critical stages of proceedings requiring the appointment of counsel as set forth in: Argersinger v. Hamlin, 407 U.S. 25, 40 (1972); Scott v. Illinois, 440 U.S. 367, 373 (1979); Alabama v. Shelton, 535 U.S. 654, 674 (2002); and Turner v. Rogers, 564 U.S. 431 , 441 (2011) (citing United States v. Dixon, 509 U.S. 688, 696 (1993), and Cooke v. United States, 267 U.S. 517, 537 (1925));
b. The right of Indigent people to Counsel when facing incarceration (immediate, suspended, or time served);
c. Standards and procedures for appointing Counsel to represent Indigent defendants, including reduction or waiver of any application Fee to enable defendants who cannot pay for counsel to apply for representation by courtappointed Counsel as early as possible in the case;
d. Standards for evaluating the validity of a waiver of the right to counsel;
e. The procedures for promptly bringing an individual arrested on a Municipal Court failure-to-appear warrant promptly to the Municipal Court for a bond hearing; and
f. The procedures for releasing an individual arrested on a Municipal Court failureto-appear warrant on an appearance bond if the arrestee cannot be brought before the Municipal Court on the next business day or as soon as practicable.
VII. PAYMENTS, ATTORNEY FEES, COSTS
The Court hereby incorporates the following provisions regarding Payments, Attorneys Fees, and Costs as agreed to by the Parties and set forth in Section IX of the Settlement.
1. In full and complete satisfaction, compromise, and settlement of the Plaintiffs' claims for damages, attorneys' fees and expenses, the Municipalities have agreed, in addition to promulgating the policies and procedures stated in this Agreement and attached as Exhibits "A-F", to pay a one-time, total sum of Two Hundred Fifty Thousand and no/ lOOths Dollars ($250,000.00) for all damages, attorneys ' fees and expenses (the "Settlement Sum"). The Municipalities will deliver the Settlement Sum by one or more checks in the total amount of the Settlement Sum made payable to "The American Civil Liberties Union Foundation, Inc." Said checks will be delivered by overnight mail to Plaintiffs' attorney, Ezekiel R. Edwards, at the ACLU, 125 Broad Street, 18th Floor, New York, New York, 10004, within thirty (30) business days after the Effective Date of this Agreement.
2. The payment of the Settlement Sum is the entire and only monetary consideration for this Agreement. Each Defendant shall likewise be responsible for its own attorneys ' fees and legal expenses in connection with the Incidents and the Lawsuit.
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VIII. TERM, EFFECT, MONITORING, COMPLIANCE, AND ENFORCEMENT
The Court hereby incorporates the following provisions regarding Term, Effect, Monitoring, Compliance, and Enforcement as agreed to by the Parties and set forth in Section X of the Settlement.
1. Duration of the Settlement
Unless otherwise stated, the Municipalities shall comply with the terms of this Agreement for four (4) years following the Effective Date. The Lawsuit shall be considered closed on the Effective Date.
2. Compliance
i. To achieve compliance with this Agreement, the Municipalities must demonstrate that they have:
a. incorporated all substantive requirements of this Agreement into policy;
b. appropriated sufficient funds to ensure that such requirements are met;
c. hired and trained relevant personnel as necessary to fulfill their responsibilities pursuant to the requirements.
3. Enforcement
1. For a period of four (4) years following the Effective Date, the United States District Court for the District of South Carolina shall retain jurisdiction over the Lawsuit to enforce the terms of this Agreement and the Parties' obligations hereunder and to oversee all matters that relate to the performance of this Agreement. As such, the Parties shall be and remain subject to the jurisdiction of this court for purposes of the enforcement of such settlement agreement and subject to the contempt powers of this court in the event of a violation thereof, and in dismissing the suit, the court approved this stipulation and did retain jurisdiction to enforce the settlement agreement through contempt.
11. If Plaintiffs believe the Municipalities are not in substantial compliance with any term of this Agreement, Plaintiffs may file a motion for appropriate relief with the Court. Prior to filing such a motion, Plaintiffs shall (1) notify the Municipalities in writing of any allegation of violations of this Agreement; and (2) provide the Municipalities with (30) thirty days to cure such violations.
111. If the Municipalities fail to cure alleged violations within thirty (30) days, the Parties shall meet and confer in an attempt to resolve the alleged violations. The Municipalities shall make their counsel available for such a conference within ten (10) working days of
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Plaintiffs' counsel' s request. The Parties agree to use their reasonable best efforts that may be necessary or appropriate to resolve disputes.
iv. If Plaintiffs file a motion for relief and demonstrate that the Municipalities have failed to substantially comply with one or more of the material terms of this Agreement, this Court may enforce compliance, including through the use of the Court' s contempt authority.
v. If Plaintiffs file a motion for relief and demonstrate that Defendants have failed to substantially comply with one or more of the material terms of this Agreement, Plaintiffs' counsel shall be entitled to an award ofreasonable attorneys' fees and costs in addition to any relief the Court imposes.
4. Standing of Individual Plaintiffs
i. The Parties further agree that this Agreement shall be enforceable by the named individual Plaintiffs as well as by the American Civil Liberties Union (ACLU) or the American Civil Liberties Union of South Carolina on behalf of indigent defendants charged in Beaufort or Bluffton municipal court with criminal, non-criminal traffic, or ordinance violations that carry the possibility of a Sentence of Incarceration as defined in this agreement during the time set forth above for the continuing jurisdiction of the Court to enforce this agreement.
5. Data Collection and Sharing
1. Each month from the Effective Date until the end of this Agreement, for a period of four (4) years in total, the Municipalities shall provide Plaintiffs' counsel, in aggregate format, all Municipal Court and Public Defender Office records pertaining to the appointment and provision of indigent defense, including those as agreed to by the Parties and set forth in greater detail in Section X(5)(i) of the Settlement.
11. On the 15th day of every month Beaufort and Bluffton will provide to the ACLU their complete municipal court dockets for the prior month.
ni. On the first Friday of each month from the Effective Date until the end of this Agreement, for a period of four (4) years in total, the Public Defender, pursuant to its contract with the Municipalities to provide indigent defense in Municipal Court, shall provide the ACLU with records pertaining to the appointment and provision of indigent defense, specifically those agreed to by the Parties and set forth in greater detail m Section X(5)(iii) of the Settlement.
vi. The Parties shall work together to determine what data should be collected on an ongoing basis to assure compliance with the provisions of this agreement and to inform the monthly Reports.
IX. RELEASE OF CLAIMS
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The Court hereby adopts the following provisions regarding Release of Claims as agreed to by the Parties and set forth in Section XI of the Settlement.

X. ADDITIONAL TERMS

The Court hereby incorporates the following provisions regarding Additional Terms as agreed to by the Parties and set forth in Section XII of the Settlement.

The foregoing be and the same is hereby APPROVED and ORDERED by the Court; and

IT IS FURTHER ORDERED that the Clerk of the Court shall administratively close this

action.

n odQGr

Dated at Charleston, South Carolina, this_ day of

, 2019.

·chard Gergel U.S. District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

TINA RENEE BAIREFOOT, et al., Plaintiffs,
v. CITY OF BEAUFORT, SOUTH CAROLINA; TOWN OF BLUFFTON, SOUTH CAROLINA,

Civil Action No. 9: 17-2759-RMG

Defendants.

SETTLEMENT AGREEMENT

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TABLE OF CONTENTS
I.INTRODUCTION ...................................................................................................................... 2 II.CONDITIONAL AGREEMENT ............................................................................................ 3 III.DEFINITIONS ........................................................................................................................ 3 IV. MUTUAL RECOGNITION OF PRINCIPLES................................................................... 4 V.POLICIES AND PRACTICES ................................................................................................ 4 VI.PUBLICATION AND DISSEMINATION OF PROCEDURES........................................ 8 VII.TRAINING ............................................................................................................................. 9 VIII. PUBLIC DEFENDER OFFICE FUNDING, CONTRACTING, AND
SUPERVISION ..................................................................................................................... 10 IX.PAYMENTS, ATTORNEY FEES, COSTS ....................................................................... 10 X.TERM, EFFECT, MONITORING, COMPLIANCE, AND ENFORCEMENT .............. 10 XI. RELEASE OF CLAIMS ...................................................................................................... 13 XII.ADDITIONAL TERMS ...................................................................................................... 14 EXHIBIT A: MODEL FINANCIAL STATUS AFFIDAVIT.. .............................. .........17 EXHIBIT B: EXPLANATION OF RIGHTS................ . .................. ........ . .. . .. . .. . .. ....... 21 EXHIBIT C: MODEL EXPLANATION OF RIGHTS......................... ... ..................... 23 EXHIBIT D: WAIVER OF RIGHTS TO COUNSEL. ......................... ................. ......26 EXHIBIT E: MODEL WAIVER OF RIGHT TO COUNSEL................... .....................28 EXHIBIT F: ABILITY TO PAY FORM................................................. . ...............32

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The Parties have reached a settlement in this matter. This Settlement Agreement ("Settlement" or "Agreement") is made by and among Defendants City of Beaufort, South Carolina, Town of Bluffton, South Carolina, ("Municipalities"), and Plaintiffs Tina Renee Bairefoot, Dae'Quandrea Trevell Nelson, and Nathan Lee Fox (collectively, "Plaintiffs"). With the benefit of the Parties ' agreement together with the record as a whole, the Parties now ask the Court to approve the Settlement as more fully detailed herein, incorporate the Parties ' proposed settlement into a court order, and retain jurisdiction over this matter for purposes of enforcing this Agreement.
I. INTRODUCTION
1. Each of the named Plaintiffs allege that they were prosecuted, convicted and incarcerated in the Beaufort County Detention Center-Plaintiff Bairefoot for 16 days, Plaintiff Nelson for 14 days , and Plaintiff Fox for 39 days-without being provided court-appointed counsel as indigent people facing incarceration upon conviction of a crime and were not informed of their right to counsel prior to receiving a sentence of incarceration (the "Incidents").
2. Plaintiffs filed a Complaint on October 12, 2017 in the United States District Court for the District of South Carolina (the "Court"), commencing a proposed class action lawsuit entitled Bairefoot v. City ofBeaufort, Case No. 9:17-2759-RMG (D.S.C.) (the "Lawsuit"), against the Municipalities, which sought declaratory and injunctive relief on behalf of the proposed Class and compensatory damages for the Plaintiffs, and alleges violations of several constitutional rights of the Plaintiffs and proposed Class members, including the right to counsel under the Sixth Amendment and the right to due process and equal protection of the law under the Fourteenth Amendment to the United States Constitution, as a result of alleged policies, practices, and customs of the Municipalities that Plaintiffs maintain exhibited deliberate indifference to the rights of Plaintiffs and proposed Class members and directly led to the unconstitutional sentences of incarceration imposed upon Plaintiffs and other proposed Class members.
3. On May 16, 2018, the Court denied the Municipalities ' Motion to Dismiss Plaintiff's Complaint under F.R.C.P. 12(b)(6).
4. Following mediation before the Honorable Patrick Michael Duffy, the Parties hereby agree to resolve all Claims brought in and to settle the Lawsuit. Upon the Court' s approval of this Settlement and entry of an Order retaining jurisdiction, the Lawsu it shall be dismissed with prejudice as to the Municipalities.
5. What follows is the Parties ' agreement, in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration passing between the Parties, and the Parties intend to be legally bound hereby.
6. This Agreement does not constitute an admission by Defendants of a violation of any federal , state, or local laws, or any admission of any wrongdoing whatsoever. It is further understood and agreed that this settlement is a compromise of a real or potential di spute and that the promises of Defendants are not to be construed as an admission of liability, but rather that liability is expressly denied.
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II. CONDITIONAL AGREEMENT
I. This Agreement is subject to (1) entry of an order by the Court approving and incorporating the Agreement; and (2) passage of the date for appealing from the approval order or, if there is an appeal, the date of final resolution of the appeal (the "Effective Date"). On the Effective Date, the Claims of Plaintiffs and the proposed Class shall be settled and dismissed with prejudice. Any other individual claims of the named Plaintiffs that could have been brought in this Action shall also be settled and dismissed with prejudice on the Effective Date.
2. As soon as practicable after the execution of this Agreement, the Parties will ask the Court to dismiss all proceedings in the Action except those contemplated or required by this Agreement, including proceedings related to approval of the Settlement. In the event the Court does not approve the Agreement, the dismissal shall be vacated, and this Agreement shall be null and void and of no force or effect whatsoever.
III. DEFINITIONS
The Definitions set forth in this section and elsewhere shall apply only 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.
1. "Indigent" means any person who is financially unable to employ counsel.
2. "Public Defender Office" means the entity that exists to provide representation to indigent defendants in the City of Beaufort and the Town of Bluffton.
3. "Public Defender" is any attorney from the Public Defender Office appointed to represent an indigent person in a Municipal Court case.
4. "Counsel" is any attorney appointed to represent an indigent person in a Municipal Court case.
5. " Municipal Courts" shall mean the municipal courts of the City of Beaufort and Town of Bluffton, South Carolina, and the employees in those courts, including judges and court clerks.
6. "Sentence of Incarceration" means any sentence that includes a deprivation of liberty, including a sentence of credit for time served or a sentence for any offense punishable by a fine or other court obligation should the Municipalities seek to preserve the ability to incarcerate for failure to comply.
7. "Fees" shall mean a monetary amount-including, but not limited to, costs, surcharges, assessments, user fees , warrant fees , and fees for applications for a Public Defender-that seek to recoup justice system expenses.
8. "Fine" shall mean a monetary amount imposed for punishment.
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9. "Restitution" shall mean a monetary amount imposed to compensate a victim for loss, damage, or injury caused by an offense.
10. "Monetary Penalty" shall mean Fines, Fees, and/or Restitution.
11. "Ability to Pay" means an individual ' s current capacity to pay a monetary penalty without consideration of access to credit or potential gifts or contributions from others.
12. "Trial in Absentia" shall mean a trial (and accompanying sentence imposed, if any) conducted without the defendant' s presence in Municipal Court.
13. " Warrant" shall mean any document authorizing law enforcement to arrest, detain, and/or secure an individual for a court appearance, including bench warrants.
14. "Claims" as to the Plaintiffs shall mean all claims for general , special, exemplary and punitive damages that were or could have been asserted based on the allegations in the Lawsuit.
15. "Claims" as to the Class shall mean those claims for injunctive and declaratory relief that were brought in the Lawsuit.
IV. MUTUAL RECOGNITION OF PRINCIPLES
1. The Municipalities and their agents and employees shall not deprive Indigent people facing prosecution in their Municipal Courts of the right to counsel. As such, no Indigent person shall be charged with criminal, non-criminal traffic, or ordinance violations that carry the possibility of a Sentence of Incarceration without being advised of their right to counsel and provided with such Counsel unless the individual defendant knowingly, voluntarily, and intelligently waives such right.
2. It is contrary to the principles of due process and equal treatment enshrined in the Constitution of South Carolina and the U.S. Constitution to deprive people of their constitutional rights simply because they are Indigent.
V. POLICIES AND PRACTICES
I. Within thirty (30) days of the Effective Date, the Municipalities agree to implement the following changes to the policies and practices in their Municipal Courts:
1. An Indigent person has a right to court-appointed representation by Counsel in all proceedings concerning criminal , non-criminal traffic, or ordinance violations that may be punishable by a Sentence of Incarceration, whether that incarceration is immediate, for time served, or suspended, and regardless of denom ination as misdemeanors, municipal offenses, or traffic offenses, and regardless of whether a uniform traffic ticket or custodial arrest initiated the case.
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11. The Municipalities and their agents and employees, shall appoint Counsel to every Indigent defendant facing charges that carry the possibility of a Sentence of Incarceration. Counsel shall be appointed unless, upon being advised of the right to counsel, an Indigent defendant knowingly and intelligently waives such right. Indigent defendants are those that meet the requisite financial qualifications under South Carolina state law or court rules. The Municipalities shall ensure that any application Fee for Counsel is wai ved or reduced from the outset for Indigent defendants who cannot pay to apply for court appointed counsel. The Municipalities may use the Financial Status Affi.davit attached as Exhibit A to determine whether a defendant is eligible for appointed counsel pursuant to S.C. Code§ 17-3-30 and South Carolina Criminal Rule 602 (Defense of Indigents) unless or until a revised Financial Status Affidavit is adopted .
iii. The Municipalities shall enter into a contract with the Beaufort County Public Defender Office in the 141h Judicial Circuit to provide Indigent defense in their Municipal Courts. The Municipalities' contract with the Public Defender Office will ensure that Indigent defendants facing charges that carry the possibility of a Sentence of Incarceration in their Municipal Courts will have appointed Counsel present at every stage of the legal proceedings, including first appearance, motion hearings, trial, sentencing, show cause hearings and other postsentencing proceedings. Where a conflict exists as to the Public Defender providing representation in a given case, the Municipalities shall appoint Counsel other than the Public Defender. This section adopts by incorporation the terms of the prospective "Tupper/Bush Orders" discussed further in Paragraph V(l)(xi).
1v. The Municipalities shall appropriate sufficient funding to engage the Public Defender Office for the delivery of legal services to Indigent defendants according to terms set forth in an annual contract between the Municipalities and the Public Defender Office, which shall include, among other things, costs related to representation, including an investigator, administrator, and funds to hire social workers and experts when appropriate (the "Public Defender Contract"). The terms of the Public Defender Contract shall ensure that no Public Defender is assigned more than 400 cases per calendar year. Traffic offenses shall not count towards the case limit unless a defendant faces the possibility of a Sentence ofincarceration. For purposes of tracking Public Defender caseloads, cases will be counted by case number, not by the number of charged offenses .
v. The Municipalities and the Public Defender Office will provide a draft of the annual Public Defender Contract to Plaintiffs for input for the duration of the Monitoring Period as defined herein in Section XI of this Agreement. Such terms shall include the process for appointment of Counsel for all Indigent defendants eligible for the appointment of Counsel.
v1. The Municipalities will provide written notice as well as oral advisement of the right to counsel to every person charged with an offense that carries with it the possibility of a Sentence of Incarceration. When each person charged with an offense that carries the possibility of a Sentence of Incarceration stands before the court when their case is called, whether at the initial appearance for defendants summoned to court or at the bond hearing for defendants detained upon arrest, the Municipalities, referencing the earlier advisement, will require the court to ask each defendant whether they want a lawyer. The Municipalities may
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use either of the Advisement of Rights attached as Exhibit B and C unless or until the Office of Court Administration promulgates a revised Advisement of Rights.
v11 . The Municipalities will ensure that when any individual who indicates a preference to proceed without Counsel at any proceeding at which Counsel is required, there is a determination on the record whether the waiver of the right to counsel has been made voluntarily, intelligently, and with full knowledge of the direct and collateral consequences. As part of the determination on the record, the Municipalities will ensure-through the issuance of a directive to its agents and employees-that when any individual who has indicated a preference to proceed without Counsel at any proceeding at which Counsel is required, a colloquy must be conducted with the defendant about the pending charge(s), maximum sentence(s), and potential collateral consequence(s) of a conviction. A defendant who waives their right to counsel upon advisement may assert their right to counsel at any subsequent point during the pendency of their case. The Municipalities may use either of the Waiver of Rights Forms attached as Exhibit D and E unless or until Office of Court Administration promulgates a revised Waiver of Rights.
v111. If and when there is a revised set of forms from the South Carolina Office of Court Administration regarding Advisement of Rights, Financial Status, Waiver of Rights, or Ability to Pay, the Municipalities shall use such forms and will incorporate such forms into the Tupper/Bush Orders. Until then, the Parties agree to use the Forms attached as Exhibits A-
F.
1x. Trials in Absentia without Counsel are strongly disfavored by federal and South Carolina courts. Waiver of the right to counsel and the right to be present at trial requires adequate advisement and notice on the part of the court, and willful action on the part of the defendant. A defendant does not waive his or her right to counsel and right to be present at his or her trial, and therefore cannot be Tried in Absentia, simply due to a failure to appear absent additional advisement or notice by the Municipalities, including when the defendant has previously been present in court for appearances on the same matter. Each defendant must, at minimum, receive actual notice of the right to counsel and to be present in court when a trial date is set, including at a bond hearing, and must receive actual notice of future court appearances, including the trial date. If a defendant who received actual notice does not appear for trial, and the Municipal Court has determined that the defendant is not in custody, a warrant shall issue and, upon arrest or appearance, a bond hearing shall be conducted as soon as practicable and the individual's counsel shall be notified. 1 If the individual is Indigent and does not have Counsel and is facing charges that carry the possibility of a sentence of incarceration, the individual shall be advised of his or her right to counsel and, if the Indigent individual requests Counsel, Counsel shall be appointed. The Municipalities shall not conduct any trial or sentencing proceedings without the defendant in court when that defendant is facing charges that carry the possibility of a Sentence of Incarceration. If and when there is explicit guidance from the Chief Justice of the South Carolina Supreme Court and/or the
1 For defendants who are in custody, the Municipal Court shall reschedule the court appearance and provide notice to the defendant in the facility in which the defendant is incarcerated.
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Office of Court Administration regarding Trials in Absentia, the Municipalities will incorporate such guidance into this Agreement and conform their practices accordingly.
x. For any Indigent defendant arrested and detained pretrial, Counsel shall be provided to them at the bond hearing or as soon as practicable after the bond hearing, and thereafter if the defendant remains detained. This section incorporates by reference the terms of the Municipalities' joint contract with the Public Defender Office, referenced above in Paragraph V(l)(iii) and (iv).
xi . Pursuant to the written directives from Beaufort Presiding Judge Ralph E. Tupper and Bluffton Presiding Judge Clifford Bush III (hereinafter the "Tupper Order" and the "Bush Order," respectively) issued to all Municipal Court judges, and as the official policy for the Municipalities: for any Indigent defendant, whether in or out of custody, who may face the possibility of a Sentence of Incarceration, the Municipalities, and their agents and employees, shall (1) provide notice to the defendant at the initial appearance (if summoned to court) or at the bond hearing (if detained upon arrest) of the potential Sentence of Incarceration; (2) provide written as well as oral advisement to the defendant of their right to counsel (consistent with Paragraph V(l)(vi) of this Agreement); (3) upon request, provide the Indigent defendant with Counsel ; (4) continue the defendant's case for 30 days to allow Counsel to begin representation of the defendant and (5) never impose a Sentence oflncarceration on any defendant at their first appearance. Only when the Municipal Court judge makes a finding on . the record that a defendant will not receive a Sentence of Incarceration shall the Municipalities have the option of not appointing Counsel to an Indigent defendant.
x11. At the time of imposition of any Monetary Penalty, a Municipal Court or its staff shall assess an individual ' s Ability to Pay any Fines, Fees, and Restitution imposed for an offense. Upon this assessment, if the Municipal Court or its staff determines that a defendant is unable to currently pay the Monetary Penalty, the court may either (1) consider alternatives to imposing the full Monetary Penalty, including a reduction in Fines or Fees, a waiver or suspension of Fines or Fees, community service, completion of a program Gob skills, drug treatment, etc.), or any other disposition deemed just and appropriate in the discretion of the Municipal Court, pursuant to applicable law; (2) offer an extension of the amount of time to pay; or (3) offer an installment payment agreement, necessary and sufficient to fit the individual ' s financial circumstances. If a Municipal Court offers an extension or an installment payment agreement and, thereafter, upon assessment the court finds that the individual is still unable to pay the Monetary Penalty, the court shall , pursuant to applicable law, consider alternatives to imposing the full Fine, Fee, or Restitution, including a reduction in Fines or Fees, a waiver or suspension in Fines or Fees, community service, completion of a program Gob skills, drug treatment, etc.), or any other disposition deemed just and appropriate, in the discretion of the Municipal Court. The Municipalities will use the Ability to Pay Form attached as Exhibit F unless or until Office of Court Administration promulgates a revised Ability to Pay form.
x111. The Municipalities will provide solicitors in Municipal Courts to prosecute charges that carry the possibility of a Sentence of Incarceration when requested by the Police Department.
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xiv. The Municipalities will submit a letter to Chief Justice Beatty of the South Carolina Supreme Court requesting that all municipalities in the State of South Carolina be given the authority to implement and oversee pretrial diversion programs through their municipal courts.

xv. The Municipalities will ensure, through the issuance of a directive to its agents and employees, that at the bail hearing for every individual facing charges in Municipal Court, the presumption shall be release upon recognizance.

xv1. The Parties agree to work with the Public Defender Office, Beaufort County Magistrate Courts and Beaufort County in the collective effort and goal to provide Counsel for Indigent defendants at their initial bond hearing as soon as this can be accomplished.

xvii. The Municipalities will collect, document, and report to Plaintiffs data from their Municipal Courts specifically requested by Plaintiffs every month from the Effective Date of this Agreement until the end of this Agreement. The data will be provided to Plaintiffs in electronic format. See Section X(5) of this Agreement for a summary of the data to be collected, documented, and reported by the Municipalities to Plaintiffs.

xv111.

All Municipal Court proceedings shall be audio recorded. Municipal Courts shall ensure that advisement of the right to counsel, colloquies concerning waiver of the right to counsel, trials, and sentencings, are audio recorded and that records are retained for a minimum of three years from the date of the recording.

xix. The Municipalities will invite the Town of Port Royal to become a party to the Public Defender Contract.

xx. Upon the execution of this Agreement, the Municipalities shall release from the Beaufort County Detention Center any individual who is serving a Sentence of Incarceration imposed in the absence of counsel and valid waiver.

VI. PUBLICATION AND DISSEMINATION OF PROCEDURES

I . Within thirty (30) days of the Effective Date, the Municipalities shall publish and disseminate all policies, procedures, and guidelines promulgated to effect this Agreement to all personnel involved in the appointment and provision of Indigent defense in their Municipal Courts, and the sentencing of Indigent defendants, including: Municipal Court judges; court clerks; solicitors/prosecutors; Public Defenders; other Counsel appointed to represent Indigent defendants in Municipal Court proceedings; and Beaufort County corrections officers and staff.

2. The Municipalities shall make available to the public an easy-to-understand explanation of the individual rights and procedures concerning the provision of Indigent defense in their Municipal Courts. The explanation shall be written in easy-to-understand language and shall be provided to all defendants in Municipal Court and made available to members of the public who come to Municipal Court.

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3. The Municipalities shall ensure that all Municipal Court web pages explain to the public, in accessible and easy-to-understand language, the individual rights and procedures concerning the provision of Indigent defense.
1. This shall include revisions to the following webpages and any new webpages that may be created during the period in which this Agreement is in effect:
a) https://www.cityofbeaufort.org/218/Municipal-Court
b) https://www.townofbluffton.sc.gov/municipal-court-department/home
c) https ://www.bcgov.net/departments/Pu bl ic-Safety/detention-center/index.php
11. The Municipalities shall revise the aforementioned web pages to include at least the following information using a format and language that is easily understood .
a) A plain language description of the rights of defendants that relate to the right to counsel and the provision of Indigent defense:
1. The right of Indigent people to representation by court-appointed Counsel, at no cost to defendant, when facing charges that carry the possibility of a Sentence of Incarceration.
b) Notice of the procedure for requesting counsel and a continuance of a court date in order that Counsel be appointed .
c) Rules and procedures of Municipal Courts relating to Indigent defense.
VII. TRAINING
I. General. The Municipalities and Plaintiffs will work together to ensure that Municipal Courts (Municipals and court clerks), all Public Defenders, police officers who appear in Municipal Court, and Beaufort County Detention Center employees who may process requests for counsel, shall participate in training on issues as set forth below, including by incorporating these issues into the trainings provided by the Office of Court Administration.
2. Right to Counsel. The Municipal Courts and their personnel, Public Defenders, and police officers who appear in Municipal Court, and Beaufort County Detention Center employees who may process requests for counsel , shall attend periodic trainings on issues related to the right to counsel. The first such training shall occur within two (2) months of the Effective Date. Thereafter, training shall be consistent with the training schedules of the Office of Court Administration, the Municipalities, and the Public Defender Office. Copies of all training materials shall be made available to all new Municipal Court judges within their first month of taking office and to all new Municipal Court, Public Defender Office, and Police Department personnel within their first month of employment. The trainings shall address at least the following topics:
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1. Critical stages of proceedings requiring the appointment of counsel as set forth in: Argersinger v. Hamlin, 407 U.S. 25 , 40 (1972) ; Scott v. Illinois, 440 U.S . 367, 373 (1979); Alabama v. Shelton, 535 U.S. 654, 674 (2002) ; and Turner v. Rogers, 564 U.S. 431 , 441 (2011) (citing United States v. Dixon, 509 U.S. 688, 696 (1993), and Cooke v. United States, 267 U.S. 517, 537 (1925));
11. The right of Indigent people to Counsel when facing incarceration (immediate, suspended, or time served);
111. Standards and procedures for appointing Counsel to represent Indigent defendants, including reduction or waiver of any application Fee to enable defendants who cannot pay for counsel to apply for representation by court-appointed Counsel as early as possible in the case ;
1v. Standards for evaluating the validity of a waiver of the right to counsel;
v. The procedures for promptly bringing an individual arrested on a Municipal Court failure-to-appear warrant promptly to the Municipal Court for a bond hearing; and
v1. The procedures for releasing an individual arrested on a Municipal Court failure-toappear warrant on an appearance bond if the arrestee cannot be brought before the Municipal Court on the next business day or as soon as practicable.
VIII. PUBLIC DEFENDER OFFICE FUNDING, CONTRACTING, AND SUPERVISION
[This section is included as a placeholder pending a final contract between the Municipalities and the Public Defender Office.]
IX. PAYMENTS, ATTORNEY FEES, COSTS
1. In full and complete satisfaction, compromise, and settlement of the Plaintiffs' claims for damages, attorneys ' fees and expenses, the Municipalities have agreed, in addition to promulgating the policies and procedures stated in this Agreement and attached as Exhibits "A-F", to pay a total sum of Two Hundred Fifty Thousand and no/I OOths Dollars ($250,000.00) for all damages, attorneys ' fees and expenses (the " Settlement Sum"). The Municipalities will deliver the Settlement Sum by one or more checks in the total amount of the Settlement Sum made payable to "The American Civil Liberties Union Foundation, Inc. " Said checks will be delivered by overnight mail to Plaintiffs' atto_rney, Ezekiel R. Edwards, at the ACLU, 125 Broad Street, 18th Floor, New York, New York, 10004, within thirty (30) business days after the Effective Date of this Agreement.
2. The payment of the Settlement Sum is the entire and only monetary consideration for this Agreement. Each Municipality shall likewise be responsible for its own attorneys ' fees and legal expenses in connection with the Incidents and the Lawsuit.
X. TERM, EFFECT, MONITORING, COMPLIANCE, AND ENFORCEMENT 10

9:17-cv-02759-RMG Date Filed 10/07/19 Entry Number 45 Page 25 of 48
1. Duration of the Settlement
Unless otherwise stated, the Municipalities shall comply with the terms of this Agreement for four (4) years following the Effective Date. The Lawsuit shall be considered closed on the Effective Date.
2. Compliance
i. To achieve compliance with this Agreement, the Municipalities must demonstrate that they have:
a) incorporated all substantive requirements of this Agreement into policy;
b) appropriated sufficient funds to ensure that such requirements are met;
c) Hired and trained relevant personnel as necessary to fulfill their responsibilities pursuant to the requirements.
3. Enforcement
i. For a period of four (4) years following the Effective Date, the Court (with its approval) shall retain jurisdiction over the Lawsuit to enforce the terms of this Agreement and the Parties' obligations hereunder and to oversee all matters that relate to the performance of this Agreement. As such, the Parties shall be and remain subject to the jurisdiction of the Court for purposes of the enforcement of this Agreement and subject to the contempt powers of the Court in the event of a violation thereof, and in dismissing the suit, the Court approved this stipulation and did retain jurisdiction to enforce this Agreement through contempt.
ii. If Plaintiffs believe the Municipalities are not in substantial compliance with any term of this Agreement, Plaintiffs may file a motion for appropriate relief with the Court. Prior to filing such a motion, Plaintiffs shall (1) notify the Municipalities in writing of any allegation of violations of this Agreement; and (2) provide the Municipalities with (30) thirty days to cure such violations.
iii. If the Municipalities fail to cure alleged violations within thirty (30) days, the Parties shall meet and confer in an attempt to resolve the alleged violations. The Municipalities shall make their counsel available for such a conference within ten (10) business days of Plaintiffs' counsel's request. The Parties agree to use their reasonable best efforts that may be necessary or appropriate to resolve disputes.
iv. If Plaintiffs file a motion for relief and demonstrate that the Municipalities have failed to substantially comply with one or more of the material terms of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs in addition to any relief the Court may impose.
4. Standing of Individual Plaintiffs
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1. The Parties further agree that this Agreement shall be enforceable by the named individual Plaintiffs as well as by the American Civil Liberties Union (ACLU) or the American Civil Liberties Union of South Carolina on behalf of indigent defendants charged in Beaufort or Bluffton municipal court with criminal, non-criminal traffic, or ordinance violations that carry the possibility of a Sentence of Incarceration as defined in this agreement during the time set forth above for the continuing jurisdiction of the Court to enforce this agreement.
5. Data Collection and Sharing
1. Each month from the Effective Date until the end of this Agreement, for a period of four (4) years in total , the Municipalities shall provide Plaintiffs' counsel, in aggregate format, all Municipal Court and Public Defender Office records pertaining to the appointment and provision of indigent defense, including:
a) Name of each defendant in Municipal Court (i.e., unique identifier);
b) All charges for a single defendant on the same date (i .e., unique identifier for each case);
c) Charge code;
d) Date of arrest/charge;
e) Whether or not the defendant requested Counsel, and whether or not such request was granted;
f) Disposition of every charge (including cases that were dismissed or that concluded "nolle prosequi");
g) For charges that result in conviction, the sentence imposed upon conviction (i.e., x days in jail, time served, fine, etc.); and
h) Total number of Municipal Court cases by month and annually, preferably by charge category (e.g., traffic, criminal, DUI, municipal ordinance, "failure to pay legal financial obligations").
11. By the l 51h day of every month Beaufort and Bluffton will provide to the ACLU their complete municipal court dockets for the prior month.
111. On the first Friday of each month from the Effective Date until the end of this Agreement, for a period of four (4) years in total , the Public Defender, pursuant to its contract with the Municipalities to provide indigent defense in Municipal Court, shall provide the ACLU with records pertaining to the appointment and provision of indigent defense, specifically:
a) Total number of Public Defender cases (i.e., caseload) for the preceding month; and
12

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b) The number of closed cases from the preceding month which were tried, and whether trial was by jury or by a judge. 1v. The Parties shall work together to determine what data should be collected on an ongoing basis to assure compliance with the provisions of this agreement and to inform the monthly Reports. XI. RELEASE OF CLAIMS 1. As of the Effective Date, the Plaintiffs release and forever discharge the Municipalities in relation to all Claims for monetary, injunctive and declaratory relief in connection with the Lawsuit. 2. As of the later of either the Effective Date or the payments of the Settlement Funds and Attorneys' Fees and Costs, the Plaintiffs also release and forever discharge the Municipalities in relation to all Claims for general, special, exemplary, punitive damages, and attorneys' fees and costs that were or could have been asserted based on the allegations in the Lawsuit.
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XII. ADDITIONAL TERMS
1. 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.
2. Notice. 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 to this Agreement may subsequently direct in writing).
3. Execution. 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.
4. Amendment. No amendments of this Agreement will be valid unless made in writing and signed by all of the signatories hereto.
5. State Law. This Agreement shall be deemed to have been executed in, and shall be construed under, the laws of South Carolina.
6. Headings. Any headings to articles, sections or paragraphs appearing herein are not part of the terms of this Agreement and shall not be interpreted as such.
7. Construction. None of the Parties hereto shall be considered to be the drafter of this Agreement or any provision hereof for the purpose of any statute, case law, or rule of construction that would or might cause any provision to be construed against the drafter.
8. Severability. If any term or provision of this Agreement, or the application thereof to any person or circumstances, shall to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. Further, the Parties shall negotiate in good faith regarding amendments to this Agreement that would, to the maximum extent possible, effectuate the intent of any provision determined to be invalid or unenforceable.
9. Complete Agreement. This Agreement contains an entire, complete, and integrated statement of each and every term and provision agreed to by and between the Parties, and this Agreement cancels and supersedes all prior written and unwritten agreements and understandings pertaining to the Settlement of the Lawsuit.
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THE PARTIES HEREBY AGREE TO THE ABOVE SETTLEMENT AGREEMENT BY THE FOLLOWING SIGNATURES
Counsel:
s/ Ezekiel R. Edwards EZEKIEL R. EDWARDS* TWYLA CARTER* American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2610 Facsimile: (212) 549-2651 eedwards@aclu.org tcarter@aclu.org
s/ Susan K. Dunn SUSANK. DUNN (Fed. Bar #647) American Civil Liberties Union Foundation of South Carolina P.O. Box 20998 Charleston, South Carolina 29413-0998 Telephone: (843) 282-7953 Facsimile: (843) 720-1428 Email : sdunn@aclusc.org
s/ Stuart M Andrews, Jr. STUART M. ANDREWS, JR. (Fed. Bar #1099) B. RUSH SMITH, III (Fed. Bar #5031) CAROLINE GIMENEZ (Fed. Bar#12743) NELSON MULLINS RILEY & SCARBOROUGH LLP 1320 Main Street I 17th Floor Post Office Box 11070 (29211-1070) Columbia, SC 29201 (803) 799-2000 stuart.andrews@nelsonmullins.com rush.smith @nelsonmullins.com caroline.gimenez@nelsonmullins.com
s/ Kenneth P. Woodington KENNETH P. WOODINGTON, Fed. I.D. No. 4741 WILLIAM H. DAVIDSON, II, Fed. l.D. No. 425 DAVIDSON & LINDEMANN, P.A. 161 1 DEVONSHIRE DRIVE, 2nct FLOOR POST OFFICE BOX 8568 COLUMBIA, SOUTH CAROLINA 29202-8568 wdavidson @ dml-law .c o m kwoodington@dml-law.com
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T: 803-806-8222 F: 803-806-8855 s/ William Harvey WILLIAM HARVEY Harvey & Battey P.O. Drawer 1107 Beaufort, SC 29901 (843) 524-3109 T: (843) 379-3645 F: (843) 524-6973 bharvey@ harveyandbattey .com www.harveyandbattey.com sl Terry Finger TERRY FINGER Finger, Melnick & Brooks, P.A. Post Office Box 24005 Hilton Head Island, South Carolina 29925-4005 T: (843) 681-7000 F: (843) 681-8802 tfinger@fingerlaw.com w w w .fingerlaw.com
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EXHIBIT A
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FINANCIAL STATUS AFFIDAVIT

State of South Carolina
v.

Case No._ _ _ _ __

Defendant
This form asks for information about your finances and will be used by the judge who sets your bail. It cannot be used against you as evidence in your criminal case (i.e., if you are unemployed or have no income, it cannot be used to show a "motive" to commit a crime). However, if you lie, it is possible that you could be charged with perjury.
Please check one of the following boxes: 0 I can read and understand English, and I have read and can understand each question and instruction on this form, OR 0 An interpreter read every question on this form to me, my answer to every question was given in _ _ _ __, a language I am fluent in, and I understood each question and instruction on this form, OR 0 I did not understand each question or instruction on this form, because: - - - - - - - -

SECTION I. - IDENTIFICATION Name - Last, First, Middle Home Address Telephone Number

IDate of Birth
ICity

I

Number of People in Household Employer (If any)

[ State

IZip

IOccupation

SECTION II. -ASSISTANCE BENEFITS Do you or anyone in your household receive any public assistance benefits (like disabil ity, food stamps, housing vouchers)? D Yes D No
SECTION Ill. - EMPLOYMENT lam [ ) currently employed as a _ _ _ _ _ _ _ _ earning$_ _ _ _ hour.
[ ] currently unemployed; last worked as a _ _ __ _ __ in _ _ _ (month and year).
{continued on next page)

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SECTION IV. - INCOME/EXPENSE STATEMENT

MONTHLY GROSS INCOME Monthly Gross Income (before taxes) Spouse's Monthly Gross Income Other Ea rnings (Bonuses, Interest, etc.) Unemployment, Workers' Comp, Social Security, Retirement Other Income
TOTAL MONTHLY INCOME

AMOUNT
$ $ $
$
$
$

MONTHLY INCOME:

$"_ _ _ __

MONTHLY EXPENSES: $_ _ _ __

MONTHLY DISPOSABLE INCOME$_ __

MONTHLY DISCRETIONARY INCOME

(10% of Disposable Income)

$ _ _ _ __

MONTHLY EXPENSES Living Expenses Rent/Mortgage Total Utilities (gas, electric, water, etc.) Food Clothing
Health Care I Medical/ Dental
Loan Payments Credit Card Payments Educational/ Employment Expenses Transportation (car, insurance, gas, etc.)
Child Care/ Child Support I Alimony
Occasional Expenses (taxes, etc.) Fines, fees, restitution in other cases Other TOTAL MONTHLY EXPENSES

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

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SECTION IV. - LIQUID ASSETS

LIQUID ASSETS

AMOUNT

Cash on Hand I 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

$

DEBT Outstanding Credit Card Debt Outstanding Mortgage Outstanding Student Loans
Outstanding Car loan Other TOTAL OUTSTANDING DEBTS

AMOUNT
$ $ $
$ $ $

Section V. -AFFIDAVIT I verify under penalty of perjury that the statements made in this affidavit are true and correct.

~ ---------------

Ye>ur Signa ture

Dote

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EXHIBIT B
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INFORMATION REGARDING YOUR RIGHTS

You have been charged with a criminal offense and if you are found guilty, you are facing serious

consequences which may include payment of a fine, loss of your driver's license, and the possibility of ajail

sentence. In addition, you may face increased penalties for later convictions, the Joss of your right to possess

fireanns and/or ammunition, and your immigration status will be affected. You have important

constitutional rights, including the right to representation by an attorney, but you may lose these rights or

waive them if you do not act to protect these rights.

·

You have the right to hire an attorney to represent you in every case. If you cannot afford an attorney, you may be eligible for a free attorney. If you want a detenninatfon made as to whether you are qualified for a free lawyer, then it is your obligation to be screened at the location identified in Paragraph 5(c) of the Bond Checklist Form that you received after your Bond Hearing. If you do not hire an attorney or go to be screened, then you may be found to have waived your right to an attorney at your trial.

You also have the right to represent yourself. However, you should be aware thS;t self-representation
the can be dangerous. For example, there may be certain factual or legal defenses to your charge that you are
not aware of or legal issues related to conduct of your trial or guilty plea that ati attorney would know how to preserve for an appeal. If you exercise your right to proceed without a lawyer, then you are responsible for complying with all applicable rules of court, including rules of evidence, procedural rules, and proper behavior before the Judge and/or Jury.
If convicted on the charge(s) filed against you and ordered to pay a fine, you may request a reasonable scheduled payment plan to pay the fine .

. It is your obligation to keep up with your trial date and to obtain an attorney, either by hiring one or by being screened and found eligible for a court-appointed attorney prior to your trial date. If you do not appear at your trial with your attorney, you may be deemed to have waived your right to have an attorney represent you.

You are required to keep the court notified of any change of address until the completion of the case.

Signature of Defendant ~~~~~~~~~~~-
D Defendant Refused to Sign

MC126 SCCA 5078 (1112017)
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EXHIBITC
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STATEMENT OF DEFENDANT'S RIGHTS AT FIRST APPEARANCE (BAIL PROCEEDING OR FIRST COURT APPEARANCE)
You are charged with a criminal offense(s) set forth in the complaint. You have the following legal rights:
I. You are presumed innocent of any charge unless and until the charge is proven beyond a reasonable doubt.
2. The first right you have when you are charged with a crime is the right to a lawyer. You have the right to be represented by a lawyer of your own choosing at all stages of the criminal proceedings, including first appearance, all hearings, and trial. If, after you are screened, it is detennined that you cannot afford an attorney, one will be appointed for you. If you do not have an attorney at first appearance, you do not waive your right to an attorney at any later hearing. You do not have to handle this case by yourself and you should not feel pressured to handle the case yourself if you want a lawyer to help you. A lawyer can go over the evidence against you, listen to your side of the story, and then help you decide which options may be .best for you. A lawyer may be able to tell you whether you have a defense to the crime or whether you should have been charged with a less serious offense to begin with. If you want to try to settle your case, a lawyer may be better skilled at negotiating with the prosecutor than you on your own. Also, a lawyer may help you understand other consequences of a conviction, such as problems in areas of immigration or eligibility for public benefits like housing or student loans. If you do not have a lawyer, no one else in the court system has the job of helping you with these matters or acting only in your interest.
3. There is a $40 application fee to have a lawyer appointed to you. This fee may be waived or reduced if you cannot afford to pay it. If you cannot afford to pay it, the Court shall waive the fee or reduce the fee to an amount you are able to pay pursuant to S.C. Code§ 17-3-30.
4. You have the right to a speedy trial. This protects you from unnecessary or unreasonable delays. If you feel that your right to a speedy trial has been violated, you or your attorney may bring a motion before the court asking for dismissal of the charges. The court will review the motion and make a decision.
5. You have a constitutional right to a jury trial unless you specifically give up that right by signing a jury trial waiver.
6. You have the right to see, hear and question all witnesses who testify against you.
7. You have the right to call witnesses on your behalf. You may have the Court subpoena witnesses to appear and testify at no prior expense to you.
8. You have the right to testify on your own behalf. You also have the right to remain silent and not give testimony or present any evidence in your defense. Your silence cannot be used against you.
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9. If you feel you cannot have a fair trial because of the bias or prejudice of a particular judge, you have the right to ask for a different judge.
10. Ifyou plead guilty, you give up or waive all of the rights listed above except the right of representation by an attorney.
11 . You have the right to appeal any judgment entered by this Court. To begin the appeal you must file a written Notice of Appeal in this Court within 30 days of the judgment.
12. If you are not a United States citizen, a guilty finding to an offense punishable as a crime under state law may be grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.
13. If you are not a United States citizen, you have the right to speak to someone from the Consulate of the nation where you are a citizen before being arraigned on any criminal offense.
14. If you are not a United States citizen, and are being held in jail, you have the right to request the prosecuting attorney notify the Consulate from the nation where you are a citizen that you are in jail.
I have read the above rights and understand them.

Defendant's Signature

Date

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EXHIBITD
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STATE OF SOUTH CAROLJNA

)

)

. City Of BLUFFTON

)

)

STATE OF SOUTH CAROLINA

)

)

vs

)

)

)
~~~~~- -~~~~~~~~~~~~~

IN THE SUMMARY COURT WAIVER OF RIGHT TO COUNSEL TICKET #(,s): OFFENSE(s): DATE OFVIOLATION:

MAXIMUM POSSIBLE INCARCERATION TIME (JAIL TIME): - - - - - - - - - - -
I understand that I have been charged with the above offense and that:

1. I have a right to counsel at Pretrial Hearings, Trials, Show Cause H'.earings or Conditional Sentencing Hearings, Contempt Hearl~, or any other proceedings in this case.

2. If I cannot afford counsel, one will be appointed for me upon request by me at this time and upon determination that I am unable to pay for counsel.

3. A conviction for this charge may result in imprisonment.

4. IfI try this case without counsel, I will be e~ted to comply with Rules ofCourt which will be made available to me upon request.

5. I have been explained the nature o(the charges against me.

6. I am knowingly, that is consciously and intentionally, waiving my right to counsel.

7. I do so intelligently, that is with an understanding ofthe above, and have had all ofthe questions that I have asked, answered to my satisfaction.

8. I do so voluntarily, that is by intention and not accidentaJly or under any pressure or duress.

9. I have had ample time to consider this and need no further time or infonnation to make this statement.

l 0. I am not under the influence of alcohol, other intoxicants or medicines which would in anyway affect my ability to understand what I am doing at this time.

11. I understand that this waiver extends to any further Hearings in this matter and until such time as it is revoked in writing to the Judge then handling the matter'.

12. I have read and understand alI ofthe above, and ifI cannot read I have bad this read to me to my satisfactiOn.

Signed:

Witness: - - - - - -- -- - -

CERTIFICATION OF JUDGE: I hereby certify that the aboye.-named Defendant bas been fully infonned ofthe above, including his right to appointed counsel, that he has elected to proceed without counsel, and that be has validly executed the above waiver in this matter.

This _ _ day of_ _ _ _ ___, 20__. Judge: - - - - - - -- - - - - -

DO NOT SIGN 1BIS FORM IF YOU ARE GOING TO APPLYING FOR A PUBUC DEFENDER OR HAVE INDEPENDENT COUNSEL REPRESENT YOU.

MC27

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EXHIBITE
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MUNICIPAL COURT WAIVER OF THE RIGHT TO COUNSEL

Any waiver of the right to counsel must be made voluntarily, intelligently, and with full knowledge of the consequences. See S.C. Code § 17-3- l 0. If a defendant chooses to proceed without counsel at any proceeding at which counsel is required (see Section § II.A-C above)-City of Beaufort and Town of Bluffton, and Municipal Court judges, shall ensure that, before proceeding with the hearing, there is a determination on the record whether the waiver of counsel is made voluntarily, intelligently, and with full knowledge of the consequences. A thorough colloquy shall be conducted with the defendant their counsel about the pending charge(s), maximum sentence(s), and potential collateral consequence(s).

Advisement

1 ;

A lawyer is available free of charge to assist you. I must advise you that in my opinion, a trained lawyer would defend you far better than you could defend yourself. I think it is unwise of you to try to represent yourself. I will now ask you some questions to determine whether you understand what might happen if you represent yourself.

1. Have you ever studied law?

2. Have you ever represented yourself in an action concerning a criminal/non-criminal traffic/ordinance violation [choose appropriate category]?

3. Do you understand that you are charged with these crimes/non-criminal traffic offenses/ordinance violations: [state the crimes, traffic offense, and ordinance violations with which the defendant is charged]?

4. What offenses are you charged with?
[Please elicit the defendant's response. If the defendant cannot identify each specific charge against the defendant, walk through the following, additional questions:]
Do you understand that you are charged with these crimes/traffic offenses/ordinance violations: [state the crimes, traffic offense, and ordinance violations with which the defendant is charged]?
5. What is the maximum sentence if you are found guilty of the violation of [state first charge against the defendant]?

[If there are additional charges, proceed with each charge separately.]

1 See Benchbook for U.S. District Court Judges (March 2013).
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9:17-cv-02759-RMG Date Filed 10/07/19 Entry Number 45 Page 44 of 48
6. [..lfthe defendant did not accurately state the maximum sentence under law for each ofthe offenses charged, proceed to question #6.]
Do you understand that if you are found guilty of the violation of [state the crimes, traffic offenses, ordinance violations with which the defendant is charged], the Cow1 must impose a [identifY any mandatoryfees. costs, surcharges, and assessments] and could sentence you to as many as _ _ days/years in jail, order you to pay fines and fees up to $_ _, and direct you to pay restitution?
[Ask the defendant a similar question for each crime, traffic offense, and ordinance violation charged on the ticket or other charging document.]
7. Do you understand that if you are found guilty of more than one of these violations, this court can order that the sentences be served consecutively, that is, one after another?
8. Do you understand that if you are found guilty of one or more of these violations, you can face additional consequences on your housing, employment, education, and parental rights?
9. Do you know if you are not a citizen of the United States, this conviction can cause you to be detained, deported or excluded from the United States, or denied naturalization or other immigration benefits, depending on the specific facts and circumstances of your case?
10. Do you understand that if you represent yourself, you are on your own? I cannot tell you or even advise you how you should proceed in your case.
11 . Are you familiar with the South Carolina Rules of Evidence2?
12. Do you understand that the South Carolina Rules of Evidence govern what evidence may or may not be introduced at trial, that in representing yourself, you must abide by those very technical rules, and that they will not be relaxed for your benefit?
13. Are you familiar with the South Carolina Criminal Rules3? 2 South Carolina Rules of Evidence, https://www.sccourts.org/courtReg/indexEvd.cfm. 3 South Carolina Criminal Rules, https://www.sccourts.org/whatsnew/SouthCarolinaCriminalRulesWithRule106Change.pdf Rule I00 ("These rules govern the procedure in all actions preliminary to, during, or subsequent to proceedings in the Court of General Sessions. They shall also apply insofar as practicable in summary and family courts to the extent they are not inconsistent with the statutes and rules governing those courts. In any case where no provision is made by statute or these rules, the procedure shall be according to the practice as it has heretofore existed in the courts of this State.").
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14. Do you understand that the South Carolina Criminal Rules govern the way your case is tried in municipal court, that you are bound by those rules, and that they will not be relaxed for your benefit? [Then say to the defendant something to this effect:]
15 . I must advise you that in my opinion, a trained lawyer would defend you far better than you could defend yourself. I think it is unwise of you to try to represent yourself. You are not familiar with the law. You are not familiar with court procedure. You are not familiar with the rules of evidence in this court. I strongly urge you not to try to represent yourself.
16. Given everything that we've just talked about, do you have any questions? 17. Given everything that we've talked about, including all of the difficulties ofrepresenting
yourself, do you still want to represent yourself? 18. Do you make this decision with full knowledge of the consequences? 19. Is your decision entirely voluntary? 20. Are you making this decision intelligently?
[If the answers to three preceding questions are yes, and credible, say something to the following effect:] 21 . I find that the defendant has knowingly, voluntarily, and intelligently waived the right to counsel. I will therefore pennit the defendant to represent [himself/herself7themselves]. 22. I am advising you that you can also change your mind about representing yourself at any point in this case and a lawyer will be appointed to represent you.
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EXHIBIT F
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9:17-cv-02759-RMG Date Filed 10/07/19 Entry Number 45 Page 47 of 48

ABILITY-TO-PAY DETERMINATION SHEET
ANtatmoren= ey's-Na-me-:_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_- _ - _ - -_-_-_-_-_-_-_-_-_-_-_-_ Case Number: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Address= - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - City: _ _ _ _ _ _ _ _ _ _ _ _ _ _ State:_ _ _ _ _ _ _ _ _ _ _ Zip:_ _ _ _ _ _ _ __ Total Amount of Bail Imposed (if any): $_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
1. The Public Defender o was or o was NOT appointed to represent the defendant. If not, explain whether defendant requested counsel and whether instructions as to how to apply were
given. If this is a subsequent bail review hearing if counsel was not appointed for review purposes, the
defendant must be released on recognizance.

2. Public Defender's Name (if appointed/appeared),_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

3. The defendant o did or o did NOT execute a Financial Status Affidavit.

If the Defendant answers affirmatively to categories #4-8, they are currently unable to pay any amount.

4. The defendant o does or o does NOT have a mental disability.
5. The defendant o has been or o has NOT been homeless during the previous six months.
6. The defendant o is or o is NOT presently or recently incarcerated.
7. The defendant's annual income o is or o is NOT below 125% of the relevant Federal Poverty Guideline for the individual's household size.

For 2019. 125% ofFPG is: $15,600 for an individual $21,130 for a family of 2
$26,660 for a family of 3 $32,190 for a family of 4 $37,720 for a family of 5 $43,250 for a family of 6 $48,780 for a family of 7 $54,310 for a family of 8

8. The defendant o does or o does NOT receive Temporary Assistance to Needy Families, Supplemental Security Income, Social Security Disability Insurance, or Veteran's Disability benefits.

Assess hardship by consulting the Financial Status Affidavit and inquiring about the following:

9. The defendant o does or o does NOT receive any other type of state or federal assistance?

10. Does the defendant face limitations on the ability to earn money due to:
o Lack of access to transportation, driver's license suspension, etc. o Disability o Child care responsibilities o Health condition o Other relevant factors_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

11. The defendant o has o does NOT have child support obligations.
12. The defendant o does or o does NOT owe fines, fees, or restitution to other courts.
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9:17-cv-02759-RMG Date Filed 10/07/19 Entry Number 45 Page 48 of 48
Questions to make sure to ask: 1. How much money do you have after paying all of your bills? 2. How many people do you support in addition to yourself? 3. Are you able to pay the preset bail amount?
If defendant responds "yes," ask: Are you certain you can pay?
4. If ordered to pay, what would be the impact on you? Your family? 5. Is there anything else that the Court should know about your ability to pay? The Court determines that the defendant o is able to pay or o is NOT able to pay. (Explain)
The Court determines that the defendant o has or o has NOT made sufficient bona fide efforts to secure the resources to pay or earn other credit prior to this hearing. (Explain)
The Court orders: o Release on recognizance without conditions o Release without bond requirement, with the following conditions:
Reason for ordering these conditions: - - - - - - - - - - - - - - - - - - - - - -
o Bond amount without other conditions: - - - - - - secured I unsecured (circle one)
o Bond amount _ _ _ _ _ secured/ unsecured (circle one) with other conditions: Reason for ordering these conditions: - - - - - - - - - - - - - - - - - - - - --
o Any other release condition deemed just and appropriate pursuant to applicable law. (Explain)
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