United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2017 Decided April 25, 2017

No. 16-7066

PATRICK KINCAID, ON BEHALF OF HIMSELF AND ALL OTHERS 

SIMILARLY SITUATED, ET AL.,

APPELLANTS

v.

GOVERNMENT OF THE DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-00838)

Jeffrey Light argued the cause for appellants. With him on 

the briefs were William Claiborne and Lynn E. Cunningham.

Jason Lederstein, Assistant Attorney General, Office of 

the Attorney General for the District of Columbia, argued the 

cause for appellee. With him on the brief were Karl A. Racine, 

Attorney General, Todd S. Kim, Solicitor General, and Loren 

L. AliKhan, Deputy Solicitor General.

Before: KAVANAUGH, Circuit Judge, and SENTELLE and 

RANDOLPH, Senior Circuit Judges.
2

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: This case concerns the 

District of Columbia’s post-and-forfeit statute. Under that law, 

certain individuals arrested for misdemeanor crimes receive an 

opportunity to resolve their criminal charges immediately by 

paying a relatively small sum of money, typically $25 to $50. 

An arrestee who chooses to use the post-and-forfeit procedure 

is released without the need to attend any criminal proceedings

and without any admission of fault or record of conviction. An 

arrestee who declines to use the post-and-forfeit procedure is 

entitled to all criminal due process protections, including an 

initial hearing before a judicial officer and a trial on the merits.

In this case, a group of individuals who resolved their 

misdemeanor charges using the post-and-forfeit procedure

later filed suit, challenging the procedure and the statute 

authorizing it as unconstitutional. They argue that the postand-forfeit procedure deprives arrestees of their property in 

violation of the Due Process Clause of the Fifth Amendment. 

They also contend that the statute authorizing the post-andforfeit procedure is void for vagueness under the Due Process 

Clause. The District Court dismissed those claims, concluding 

that the post-and-forfeit statute is consistent with the Due 

Process Clause. We affirm.

I

A

In 2004, the Council of the District of Columbia adopted

the First Amendment Rights and Police Standards Act. The 

Act took effect in 2005 following a 30-day period of 

congressional review. See 52 D.C. Reg. 5417 (June 10, 2005). 

Among other things, the Act codified D.C.’s longstanding
3

“post-and-forfeit” procedure. See D.C. CODE § 5-335.01.

1

 

That procedure has been used to resolve low-level criminal 

charges in the District for more than 50 years. Under the postand-forfeit procedure, police officers may offer a misdemeanor 

arrestee the opportunity to “obtain a full and final resolution of 

the criminal charge” by posting and simultaneously forfeiting 

an amount of money associated with the charge. Id. § 5-

335.01(a)(3). In other words, the post-and-forfeit procedure 

allows an arrestee to pay a sum of money to resolve his or her 

criminal charge without having to proceed through the 

traditional criminal process. The post-and-forfeit amounts are 

pre-determined by the Superior Court of the District of 

Columbia and are available online. Those amounts typically 

range from $25 to $50, but may in some cases extend up to 

$500 or $1,000 for certain misdemeanor offenses. See Superior 

Court Bond and Collateral List, Non-Traffic Offenses (June 11, 

2014).

An arrestee who chooses to use the post-and-forfeit 

procedure must pay the amount associated with his or her 

misdemeanor charge. Following payment, the arrestee’s 

charge is fully resolved and the arrestee need not attend any 

further criminal proceedings. The statute makes clear that an 

arrestee’s choice to use the post-and-forfeit procedure “is not a 

conviction of a crime and shall not be equated to a criminal 

conviction.” D.C. CODE § 5-335.01(b). The statute similarly 

specifies that resolution of a charge using the post-and-forfeit

procedure “may not be relied upon by any District of Columbia

court or agency in a subsequent criminal, civil, or 

 1 In 2014, the Council approved amendments to the post-andforfeit statute. See Post-Arrest Process Clarification Amendment 

Act, 61 D.C. Reg. 8320 (Aug. 15, 2014). The amended version of 

the statute took effect in 2015. See 62 D.C. Reg. 5432 (May 1, 2015). 

Nothing in this case turns on the changes that were made. For ease 

of reference, we refer to the version in effect now.
4

administrative proceeding or administrative action to impose 

any sanction, penalty, enhanced sentence, or civil disability.” 

Id. 

By statute, an arrestee who receives a post-and-forfeit 

offer must also be provided with a form that explains the postand-forfeit process. The form must make clear, among other 

things, that the arrestee has “the right to choose” whether to 

“[a]ccept the post-and-forfeit offer and terminate the criminal 

case” or, alternatively, “[p]roceed with the criminal case and a 

potential adjudication on the merits of the criminal charge.” Id.

§ 5-335.01(e)(2); see also id. § 5-335.01(e)(1), (3)-(7). In 

order to accept a post-and-forfeit offer, an arrestee must 

indicate his or her understanding and approval of the process 

by signing the required form. Id. § 5-335.01(g).

An arrestee may choose to decline a post-and-forfeit offer 

and instead contest the criminal charges. If an arrestee does so, 

the criminal process moves forward as usual. The arrestee is

afforded all of the traditional due process protections 

associated with the criminal process. Those protections may

include, among other things, a hearing before a judicial officer. 

Pending that hearing, an arrestee is released “on citation” with 

instructions to return to court. See id. § 5-335.01(e)(3); id. 

§ 23-584. If the Government chooses to proceed with its case 

against an arrestee, the arrestee is entitled to contest the 

relevant charges at a trial on the merits.

If an arrestee uses the post-and-forfeit procedure but later 

decides to contest the criminal charges, the statute provides a 

mechanism to do so. Any person who uses the post-and-forfeit 

procedure may seek, within 90 days of the forfeiture, to “set 

aside the forfeiture and proceed with the criminal case.” Id.

§ 5-335.01(e)(4).
5

B

In 2014, Metropolitan Police officers arrested Patrick 

Kincaid and charged him with possession of an open container 

of alcohol. The officers transported Kincaid to the local station 

house. At the station house, the officers offered Kincaid the 

opportunity to resolve his misdemeanor charge through the 

post-and-forfeit procedure. Kincaid accepted. Kincaid signed 

a form acknowledging that, by accepting the post-and-forfeit 

offer, he was making the choice to forfeit both the sum of $25 

and his “right to a hearing in court.” Kincaid Collateral/Bond 

Receipt Form, J.A. 37. The form that Kincaid signed also 

stated that Kincaid could seek to set aside the forfeiture and 

proceed with the criminal case within 90 days. Id.

Although Kincaid chose to resolve his charge through the 

post-and-forfeit procedure, he maintains that his arrest was 

improper. But Kincaid declined to file a motion to set aside his 

forfeiture and challenge his arrest in a criminal court

proceeding. Instead, Kincaid filed a class action lawsuit in the 

District Court on behalf of himself and other individuals who 

used the post-and-forfeit procedure to resolve misdemeanor 

criminal charges. The suit challenged the post-and-forfeit 

statute as unconstitutional on a number of grounds.

As relevant here, Kincaid’s complaint asserted that the 

post-and-forfeit procedure violates arrestees’ due process 

rights because it deprives them of their money without a 

hearing. In addition, Kincaid claimed that the post-and-forfeit 

statute is unconstitutionally vague because it grants too much 

enforcement discretion to law enforcement officials. The

District of Columbia moved to dismiss Kincaid’s complaint for 

failure to state a claim. The District Court granted the District 

of Columbia’s motion and dismissed Kincaid’s constitutional 
6

claims. See Kincaid v. District of Columbia, 177 F. Supp. 3d 

548 (D.D.C. 2016). 

Kincaid now appeals the District Court’s dismissal of his 

procedural due process and vagueness claims. We review the 

District Court’s decision de novo.

II

A

We first address Kincaid’s claim that the post-and-forfeit 

procedure violates due process because it deprives individuals 

of their money without a hearing. The Due Process Clause of 

the Fifth Amendment bars D.C. officials from depriving any

person “of life, liberty, or property, without due process of 

law.” U.S. CONST. amend. V. As a general matter, the Due 

Process Clause requires the Government to provide certain 

“procedural protections” before depriving individuals of their 

property interests. Mathews v. Eldridge, 424 U.S. 319, 334

(1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 

(1972)). The due process test set forth by the Supreme Court 

in Mathews v. Eldridge requires a judicial balancing of the 

Government’s interests against the individual’s interests. See 

id. at 334-35. 

“In the field of criminal law,” however, the Bill of Rights 

“speaks in explicit terms to many aspects of criminal 

procedure.” Medina v. California, 505 U.S. 437, 443 (1992). 

For that reason, the Supreme Court has stated that “the Due 

Process Clause has limited operation” beyond the “specific 

guarantees enumerated in the Bill of Rights.” Id. (internal 

quotation mark omitted). According to the Supreme Court, 

“expansion of those constitutional guarantees under the openended rubric of the Due Process Clause invites undue 
7

interference with both considered legislative judgments and the 

careful balance that the Constitution strikes between liberty and 

order.” Id. 

Therefore, when examining due process claims in the 

realm of criminal procedure, courts apply a test that is 

somewhat more deferential than the Mathews v. Eldridge test: 

A rule of criminal procedure usually does not violate the Due 

Process Clause unless it (i) “offends some principle of justice 

so rooted in the traditions and conscience of our people as to 

be ranked as fundamental,” or (ii) “transgresses any recognized 

principle of ‘fundamental fairness’ in operation.” Id. at 445, 

448 (quoting Patterson v. New York, 432 U.S. 197, 202 (1977); 

Dowling v. United States, 493 U.S. 342, 352 (1990)). 

Here the post-and-forfeit procedure is a procedural rule

that is a “part of the criminal process.” Nelson v. Colorado, 

No. 15-1256, slip op. at 5 (U.S. 2017) (internal quotation mark 

omitted). Indeed, the post-and-forfeit procedure is the process 

for resolving a criminal charge for arrestees who choose to use 

it. So the Medina test applies. But Kincaid has failed to show 

that the post-and-forfeit procedure violates either prong of the 

Medina test.

We first assess whether the post-and-forfeit procedure 

offends any fundamental “principle of justice” that is deeply 

rooted “in the traditions and conscience of our people.” 

Medina, 505 U.S. at 445. Historical practice and, to a lesser 

extent, contemporary practice are relevant to that inquiry. Id. 

at 446-47; see also Herrera v. Collins, 506 U.S. 390, 408, 410 

(1993). The District of Columbia has used the post-and-forfeit 

procedure for more than 50 years. See, e.g., Henderson v. 

District of Columbia, 169 A.2d 759 (D.C. 1961). That said,

D.C. has failed to identify any history of post-and-forfeit 

statutes beyond that time period or in other jurisdictions. But 
8

many jurisdictions have long employed similar procedures 

through which individuals may pay a fine to resolve minor 

offenses without the need to appear at a hearing – as can be 

confirmed by anyone who has opted to pay a speeding ticket

rather than challenge it in court. See, e.g., District of Columbia 

v. Franklin Investment Co., 404 A.2d 536, 539 n.7 (D.C. 1979)

(To enforce municipal parking regulations in “large cities, the 

bail in a small and usually standard amount is waived and 

forfeited without further proceedings.”) (quoting 7 EUGENE 

MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 24:651 

(3d ed. 1968)); see also CAL. VEHICLE CODE § 40510.5 

(vehicle code infractions); S.C. CODE ANN. § 56-5-6220 

(criminal traffic violations); TEX. CODE CRIMINAL PROCEDURE 

ANN. arts. 27.14, 45.044 (select misdemeanors); UTAH CODE

ANN. § 77-7-21 (select misdemeanors and infractions); LePage 

v. Bumila, 552 N.E.2d 80, 82 (Mass. 1990) (the decision to pay 

a “traffic citation and forgo a judicial appeal” is often “but a 

convenient method of concluding the criminal action, 

convenient both to the person charged and to the administrators 

of traffic law enforcement”) (internal quotation mark omitted).

Moreover, the “voluntary exchange” enabled by the postand-forfeit procedure is akin to the practice of plea bargaining, 

through which individuals may opt out of a criminal hearing or 

trial in exchange for certain resolution of a charge or a reduced 

sentence. Fox v. District of Columbia, 851 F. Supp. 2d 20, 23 

(D.D.C. 2012); see District of Columbia v. Baylor, 125 Wash. 

Law Rptr. 1665, 1676 (1997) (post-and-forfeit procedure “is a 

set of mutual agreements” that “is, in short, an implicit plea 

bargain”). Plea bargaining is a longstanding and prevalent part 

of our federal and state criminal justice systems. See generally 

GEORGE FISHER, PLEA BARGAINING’S TRIUMPH: A HISTORY OF 

PLEA BARGAINING IN AMERICA (2003); see also Lafler v. 

Cooper, 566 U.S. 156, 170 (2012) (“[C]riminal justice today is 

for the most part a system of pleas, not a system of trials.”); 
9

Chaffin v. Stynchcombe, 412 U.S. 17, 31 n.18 (1973) (“The 

legitimacy of the practice of ‘plea bargaining’” has “not been 

doubted and where properly administered it is to be encouraged 

as an essential and desirable component of the administration 

of justice.”) (internal quotation marks omitted).

Given all of the above, we cannot say that the post-andforfeit procedure “offends some principle of justice so rooted 

in the traditions and conscience of our people as to be ranked 

as fundamental.” Medina, 505 U.S. at 445.

We next examine whether the post-and-forfeit procedure 

“transgresses any recognized principle of fundamental fairness 

in operation.” Id. at 448 (internal quotation marks omitted). It 

does not. Kincaid’s central contention is that the post-andforfeit procedure unfairly deprives arrestees of their forfeited

funds without a hearing. But that argument does not accurately 

describe how the post-and-forfeit procedure works. The 

procedure does not require any arrestee to forfeit funds without 

a hearing. An arrestee may have a hearing – and, for that 

matter, all other criminal due process protections – if he or she 

chooses to contest the charge. The post-and-forfeit procedure

provides an arrestee with an additional opportunity to resolve 

the charge by forfeiting funds without the need to attend a 

criminal hearing. Even an arrestee who initially decides to use 

the post-and-forfeit procedure, moreover, may upon further 

consideration seek to set aside the forfeiture and proceed with 

the criminal case. See D.C. CODE § 5-335.01(e)(4). Offering 

arrestees an option to participate in the voluntary post-andforfeit procedure does not unfairly deprive any arrestee of an 

opportunity for a hearing.

Kincaid counters that the post-and-forfeit procedure, 

although voluntary on paper, presents a coercive “Hobson’s 

choice” in practice. According to Kincaid, the option to resolve 
10

a charge using the post-and-forfeit procedure is so superior to 

the alternative of proceeding through the traditional criminal 

process that arrestees are left with little practical choice but to 

forfeit their funds and due process rights. But the Supreme 

Court’s precedents in analogous situations reject that kind of 

argument. For example, the Supreme Court has long 

sanctioned law enforcement practices, including plea 

bargaining, that may exert “pressure” on defendants to waive 

“a series of fundamental rights” in exchange for the 

“substantial benefits” of leniency. United States v. Mezzanatto, 

513 U.S. 196, 210 (1995) (quoting Corbitt v. New Jersey, 439 

U.S. 212, 219 (1978)). Such “difficult choices,” according to 

the Court, are an “inevitable – and permissible – attribute of 

any legitimate system which tolerates and encourages the 

negotiation of pleas.” Corbitt, 439 U.S. at 220 (internal 

quotation marks omitted). We decline Kincaid’s invitation to 

deviate from that established precedent by adopting a novel 

“unconstitutional conditions” rule that would call into question 

the traditional practices of police departments, prosecutors, and

law enforcement agencies across the country.

We recognize the possibility that a police officer may 

arrest someone on a bogus charge and then offer the post-andforfeit option. In those circumstances, an arrestee may think it 

is easier to just pay the money rather than go through the hassle 

of contesting the officer’s improper action. But the fact that 

the post-and-forfeit procedure may be abused in certain cases 

does not warrant wholesale invalidation of the post-and-forfeit 

statute. Cf. Mezzanatto, 513 U.S. at 210 (“The mere potential 

for abuse of prosecutorial bargaining power is an insufficient 

basis for foreclosing negotiation altogether.”). If there is police 

abuse of this process, there are other, more targeted tools –

including the ability of an arrestee to file a lawsuit claiming 

wrongful arrest – to deter, detect, and punish such police 

misconduct. 
11

In short, the post-and-forfeit statute does not deprive 

arrestees of their procedural due process rights under the Due 

Process Clause. Kincaid obviously believes that the post-andforfeit statute is bad policy. The District disagrees, arguing that 

the post-and-forfeit statute is beneficial to both the city and the 

many arrestees who have used the post-and-forfeit procedure 

to avoid criminal convictions. The proper forum for that policy 

debate is the D.C. City Council or Congress, not this Court. 

B

Kincaid’s vagueness challenge to the post-and-forfeit 

statute is likewise unavailing. The Due Process Clause

“prohibits the Government from taking away someone’s life, 

liberty, or property under a criminal law so vague that it fails 

to give ordinary people fair notice of the conduct it punishes, 

or so standardless that it invites arbitrary enforcement.” 

Beckles v. United States, 137 S. Ct. 886, 892, slip op. at 4 

(2017) (internal quotation marks omitted) (quoting Johnson v. 

United States, 135 S. Ct. 2551, 2556, slip op. at 3 (2015)). 

Kincaid contends that the post-and-forfeit statute violates that 

principle because it vests police with too much discretion. That 

is so, according to Kincaid, because the police have the 

discretion to determine whether an arrestee can resolve the 

charge through the post-and-forfeit procedure, or instead 

whether the arrestee must adjudicate the charge through the 

normal criminal process and thus be exposed to the requisite 

statutory punishment.

As a threshold matter, it is not clear that the void-forvagueness doctrine applies to the post-and-forfeit statute. The 

Supreme Court has applied the vagueness doctrine to two kinds 

of laws: those that “define criminal offenses” and those that 

“fix the permissible sentences for criminal offenses.” Id., slip 
12

op. at 5 (emphasis omitted). The post-and-forfeit statute, which 

offers a procedure to resolve a charge without a criminal 

conviction, does not fit neatly into either category. 

In any event, we need not decide whether the vagueness 

doctrine applies here. Even assuming that it does, Kincaid’s 

vagueness challenge fails. Contrary to Kincaid’s argument, the 

fact that the post-and-forfeit statute gives police the discretion 

to offer an arrestee an opportunity to post and forfeit does not 

render the statute unconstitutionally vague.

To begin with, police discretion under the post-and-forfeit 

statute is not as broad as Kincaid claims. The post-and-forfeit 

statute does not give police “absolute discretion” to “decide 

what activities” constitute criminal offenses. Chicago v. 

Morales, 527 U.S. 41, 61 (1999) (internal quotation marks 

omitted). Offenses are defined by the individual misdemeanor 

statutes, which Kincaid does not contest. Nor do police have 

the power to decide the amount of money required to resolve a 

charge. Those amounts are determined by the Superior Court 

of the District of Columbia. D.C. CODE § 5-335.02; Kincaid v. 

District of Columbia, 177 F. Supp. 3d 548, 550 (D.D.C. 2016).

To be sure, police have discretion to determine whether to 

offer the post-and-forfeit option to an arrestee. But Supreme 

Court precedent teaches that the presence of enforcement 

discretion alone does not render a statutory scheme

unconstitutionally vague. In United States v. Batchelder, 442 

U.S. 114 (1979), for example, the Court confronted a statutory 

scheme under which prosecutors had discretion to prosecute

the same offense under two different statutes – one carrying a 

five-year prison term and one carrying a two-year prison term. 

The defendant, who had been convicted under the statute 

carrying the five-year term, argued that the statutory scheme 

was void for vagueness. The Supreme Court disagreed. The 
13

Court rejected the argument that the statutes “impermissibly 

delegate to the Executive Branch the Legislature’s 

responsibility to fix criminal penalties.” Id. at 125-26. No such 

impermissible delegation was present, according to the Court, 

because the provisions at issue “plainly demarcate the range of 

penalties” to which a defendant may be subject. Id. at 126. The 

Court further noted that the prosecutor’s broad discretion to 

determine which charge and sentence to pursue did not alter

that analysis. On the contrary, the Court stated that its

precedent has “long recognized that when an act violates more 

than one criminal statute, the Government may prosecute under 

either so long as it does not discriminate against any class of 

defendants.” Id. at 123-24.

2

In its recent decision in Beckles v. United States, the 

Supreme Court reiterated that a penalty scheme is not 

unconstitutionally vague merely because it confers “discretion 

to select an appropriate sentence from within a statutory 

range.” 137 S. Ct. at 893, slip op. at 6. That is true, the Court 

stated, “even when that discretion is unfettered.” Id., slip op.

at 6-7. Citing Batchelder, the Court noted that so long as a 

statutory scheme specifies the conduct prohibited and the range 

of “penalties available,” the fact that there may be 

“uncertainty” about “what penalties may be imposed” does not 

render the statutory scheme void for vagueness. Id., slip op. at 

7 (internal quotation marks omitted).

 2 “Selectivity in the enforcement of criminal laws is, of course, 

subject to constitutional constraints.” Batchelder, 442 U.S. at 125. 

Individuals may therefore seek to challenge enforcement decisions 

made on the basis of “an unjustifiable standard such as race, religion, 

or other arbitrary classification.” Id. at 125 n.9 (internal quotation 

mark omitted). Kincaid has not alleged that kind of discrimination 

here.
14

The Supreme Court’s decisions in Batchelder and Beckles

are on point here: The fact that the post-and-forfeit statute 

grants police “discretion to select” whether to offer arrestees 

the opportunity to post and forfeit does not render the statute 

unconstitutionally vague. Id., slip op. at 6; Batchelder, 442 

U.S. at 125-26. The Supreme Court has long allowed 

discretionary decisions by police, prosecutors, and regulators 

as part and parcel of the exercise of executive power. See, e.g.,

Town of Castle Rock v. Gonzales, 545 U.S. 748, 760-61 (2005); 

Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); Batchelder, 

442 U.S. at 124; Bordenkircher v. Hayes, 434 U.S. 357, 364-

65 (1978); Confiscation Cases, 74 U.S. 454, 457-59 (1868); cf.

Marbury v. Madison, 5 U.S. 137, 165-66 (1803). Under 

Kincaid’s vagueness theory, a countless number of those 

discretionary decisions – from whether to make an arrest to 

whether to offer a plea to whether to enforce a statute against a 

regulated party – would run afoul of the vagueness doctrine. 

Kincaid’s theory is not the law. 

* * *

We have considered all of Kincaid’s arguments. We 

conclude that the District of Columbia’s post-and-forfeit 

statute complies with the Due Process Clause of the Fifth 

Amendment to the Constitution. We therefore affirm the

judgment of the District Court.

So ordered.