District Judge Lee H. Rosenthal dismissed the sheriff and county judges from the lawsuit in their personal, but not official, capacities; and the five county bail hearing officers remain sued in their personal capacities, but not official capacities.
The lawsuit was filed in May by attorneys from the national organization Civil Rights Corps and the Houston firm Susman Godfrey on behalf of all indigent misdemeanor defendants. Attorneys allege that Harris County and its county judges have created a bail system that, through its use of a stringent bail schedule, fails to consider poor people's ability to pay bail while wealthier people charged with the same crime go free. The bail hearing officers, the suit alleges, ultimately put this policy into practice, and the sheriff is liable for detaining the defendants who are unconstitutionally jailed before trial simply because they are poor.
While the county had tried to argue county officials were immune from this suit under various policymaking grounds, Judge Rosenthal rejected the argument outright.
"Multiple and overlapping authorities may contribute to a policy of denying freedom from pretrial detention to those accused in misdemeanor cases solely because they are too poor to pay a bail bond," Rosenthal wrote. "Or [authorities may contribute to] a policy of releasing wealthier misdemeanor defendants while detaining the indigent for days without a hearing on their inability to pay or eligibility for release on nonfinancial conditions. But the existence of multiple and overlapping authorities cannot, on its own, shield officers or official bodies from liability."
Though he will soon become a party to the lawsuit in his official capacity once he assumes office, Sheriff-elect Ed Gonzalez had actually filed an affidavit in support of the plaintiffs, saying he should continue to be sued and calling the bail system unconstitutional. His statement, presented to Judge Rosenthal at a recent hearing, led the county to raise ethical questions about the sheriff's appearing to take sides with the plaintiffs. But attorneys from Susman Godfrey instead said the real ethical concern is that county attorneys will soon be representing a sheriff who does not appear to agree with his views.
Here is Gonzalez's statement, in part:
"The County's widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety. ... I believe that the current operation of the money bail system, including the Sheriff's active participation in that system, violates the United States Constitution. ...A person's access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.”
In explaining why the plaintiffs have reason to bring the suit, Rosenthal wrote that the lawsuit had raised important questions about why the government would have any legitimate interest in detaining people charged with low-level crimes, who are not a threat to public safety and could otherwise be released. Quoting a Supreme Court case, Rosenthal wrote: “Liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” That exception, she went on, would include people charged with violent crimes who would threaten public safety.
As the case goes on, Rosenthal wrote, the dispute will be whether the government has a reason to detain poor misdemeanants who can't pay bail before trial.
For now, she wrote, "The plaintiffs have alleged sufficient facts to support plausible claims that their constitutional rights have been, are, and likely will be violated."