Lawsuit to Reform S.F. Bail System Hits Snag -- But Will Continue

A federal judge in Oakland has dismissed a host of motions that would have fast-tracked a constitutional challenge to the use of monetary bail in San Francisco, but she allowed a Washington, D.C., group to continue a civil rights lawsuit that could have a nationwide impact.

The organization Equal Justice Under Law brought the lawsuit in October on behalf of two low-income women arrested in San Francisco but never formally charged. The lawsuit alleges Riana Buffin's $30,000 bail and Crystal Patterson's $150,000 bail amounted to a punishment that unequally hits poor people, in violation of the 14th Amendment guarantees of due process and equal protection under the law.

"If you're very rich, you can purchase your freedom, even if you're rich and dangerous," plaintiffs' lead attorney Phil Telfeyan said. "In fact, it's better to be rich and dangerous in San Francisco than poor and have no risk."

"I understand your big-picture argument," U.S. District Court Judge Yvonne Gonzalez Rogers told Telfeyan. "Your job as the plaintiffs' attorney is to figure out how to get there."

Here's the procedural rub: When people are arrested under suspicion of most crimes in California, as well as most other states, they're held in custody unless they can pay an amount of money as collateral that they'll show up in court and answer the charges against them.

Those amounts are determined by what's called a bail schedule, and state law requires each county to have one (here's San Francisco's).

But the state can't be sued in federal court unless it consents, under a legal doctrine called sovereign immunity. The city and county of San Francisco can be sued, but the city doesn't set the bail schedule. Superior Court judges do, and they are part of the state's system of trial courts.

"The judges of the San Francisco Superior Court are not county officials," San Francisco Deputy City Attorney Jeremy Goldman said. He echoed Judge Gonzalez Rogers' frustration that plaintiffs hadn't clearly argued how San Francisco should change its system.

"Are we going to have tribunals inside the jail where sheriff's deputies decide who can be released?" Goldman asked.

"Every official's obligation is first to the federal Constitution," Telfeyan said. "A county cannot violate the federal Constitution, even if ordered to do so by a state judge."

Gonzalez Rogers appeared unmoved.

"You want me to issue an order to all of the judges of San Francisco telling them all of their orders are unconstitutional?" she asked Telfeyan. "It is fundamentally unclear to me the legal theory under which you are proceeding."

The judge dismissed the state of California as a defendant in the case, but allowed the federal suit against San Francisco to go forward. Telfeyan promises it will.

"Can San Francisco detain people based on their wealth status?" he said after the hearing. "Is it OK for the county jail to keep people locked up solely because they can't afford a monetary payment? We'll keep pressing the issue. We believe the equal protection clause is clear. No person's trial should be different simply based on the amount of money they have."