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 post-
and-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-and-
forfeit 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 post-
and-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-and-
forfeit 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 post-
and-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 open-
ended 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 post-
and-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-and-
forfeit 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-and-
forfeit 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-and-
forfeit 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-and-
forfeit 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-and-
forfeit 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-for-
vagueness 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.