MacArthur Amicus Brief in Bonin

Case: 21-30620 Document: 00516150111 Page: 1 Date Filed: 12/30/2021
No. 21-30620
United States Court of Appeals

for the Fifth Circuit
_________________________
H AKEEM MEADE, on behalf of himself and all others similarly situated;
MARSHALL SOOKRAM,
Plaintiffs - Appellants,
v.
P AUL A. BONIN, Judge of the Orleans Parish Criminal District Court;

ETOH M ONITORING , L.L.C.,
Defendants - Appellees.
_________________________
Appeal from the United States District Court

for the Eastern District of Louisiana
Case No. 2:20-cv-01455 (H ON. CARL J. B ARBIER )
__________
BRIEF OF AMICUS CURIAE
THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER
IN SUPPORT OF PLAINTIFFS-APPELLANTS
__________
SEAN H. SUBER CHAD B. W ALKER
KATHERINE L. KYMAN Counsel of Record
TYREE M. PETTY -W ILLIAMS W INSTON & STRAWN LLP
W INSTON & STRAWN LLP 2121 N. Pearl Street, Suite 900
35 W. Wacker Drive Dallas, TX 75201
Chicago, IL 60601 (214) 453-6500
[email protected]
Counsel for Amicus Curiae

No. 21-30620
United States Court of Appeals

for the Fifth Circuit
_________________________
H AKEEM MEADE, on behalf of himself and all others similarly situated;
MARSHALL SOOKRAM,
Plaintiffs - Appellants,
v.
P AUL A. BONIN, Judge of the Orleans Parish Criminal District Court;

ETOH M ONITORING , L.L.C.,
Defendants - Appellees.
_________________________
Appeal from the United States District Court

for the Eastern District of Louisiana
Case No. 2:20-cv-01455 (H ON. CARL J. B ARBIER )
__________
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed per-
sons and entities as described in the fourth sentence of Rule 28.2.1 have an in-
terest in the outcome of this case. These representations are made in order that
the judges of this court may evaluate possible disqualification or recusal.
Plaintiffs-Appellants
1. Hakeem Meade
2. Marshall Sookram
–i–
Counsel for Plaintiffs-Appellants
3. William R. Maurer
4. Jaba Tsituashvili
5. Institute for Justice
6. William Brock Most
7. Most & Associates
Defendants-Appellees
8. ETOH Monitoring, L.L.C.

9. Paul A. Bonin
Counsel for Defendants-Appellees
10. Leonard Louis Levenson

11. Christian Wayne Helmke
12. Donna R. Barrios
13. Leonard L. Levenson & Associates
14. Clare Roubio
15. Dane S. Ciolino
16. Louisiana Legal Ethics LLC
Amicus Curiae
17. Roderick and Solange MacArthur Justice Center
18. Chad B. Walker

19. Sean H. Suber
20. Katherine L. Kyman
21. Tyree M. Petty-Williams
Dated: December 30, 2021 /s/ Chad B. Walker

CHAD B. W ALKER
– ii –
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS ............................................. i
IDENTITY AND INTEREST OF AMICUS CURIAE ................................. 1
INTRODUCTION AND SUMMARY OF THE ARGUMENT .................... 1
ARGUMENT................................................................................................ 4
Plaintiffs raised a viable § 1983 claim given the “serious

constitutional questions” about corruption in ETOH’s
administration of its ankle monitoring system in Judge
Bonin’s courtroom. .............................................................................4
Dismissing this case with prejudice, without leave to amend,
and without explaining how any amendment was futile, was
contrary to law. .................................................................................10
Dismissing this case was contrary to the role that federal
courts are supposed to play when adjudicating cases brought
under § 1983. .....................................................................................14
CONCLUSION ........................................................................................... 25
CERTIFICATE OF COMPLIANCE .......................................................... 27
CERTIFICATE OF SERVICE .................................................................... 28
– iii –
TABLE OF AUTHORITIES
Page(s)
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................. 12
Ayo v. Dunn,
No. 3:17-cv-526 (M.D. La. filed Aug. 7, 2017) ................................... 24, 25
Baxter v. Bracey,
140 S. Ct. 1862 (2020) ....................................................................... 17, 18
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ................................................................................. 12
Bell v. State of Md.,

378 U.S. 226 (1964) ................................................................................. 15
Brown v. Thompson,
430 F.2d 1214 (5th Cir. 1970) .................................................................. 11
Brown v. Vance,
637 F.2d 272 (5th Cir. 1981) .............................................................. passim
Caliste v. Cantrell,
937 F.3d 525 (5th Cir. 2019) ...................................................................... 5
Cates v. Int’l Tel. & Tel. Corp.,
756 F.2d 1161 (5th Cir. 1985) .................................................................. 13
Dennis v. Higgins,
498 U.S. 439 (1991) ................................................................................. 20
Durgin v. Graham,
372 F.2d 130 (5th Cir. 1967) .................................................................... 11
Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale,
11 F.4th 1266 (11th Cir. 2021) ................................................................. 20
– iv –
GE Capital Corp. v. Posey,

415 F.3d 391 (5th Cir. 2005) .............................................................. 12, 13
Gibson v. Berryhill,
411 U.S. 564 (1973) ................................................................................... 9
Harper v. Pro. Prob. Servs. Inc.,

976 F.3d 1236 (11th Cir. 2020) .................................................................. 5
Hart v. Bayer Corp.,
199 F.3d 239 (5th Cir. 2000) .................................................................... 11
Hicks v. Miranda,
422 U.S. 332 (1975) ................................................................................. 19
Hitt v. Pasadena,
561 F.2d 606 (5th Cir. 1977) .............................................................. 10, 12
Hollis v. Itawamba Cty. Loans,
657 F.2d 746 (5th Cir. 1981) .................................................................... 20
Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of
Ga., Inc.,
892 F.3d 719 (5th Cir. 2018) .............................................................. 13, 14
Jacquez v. Procunier,
801 F.2d 789 (5th Cir. 1986) ...........................................................4, 10, 11
Jamison v. McClendon,
476 F. Supp. 3d 386 (S.D. Miss. 2020) .......................................... 17, 18, 19
Marshall v. Jerrico, Inc.,
446 U.S. 238 (1980) ......................................................................... 3, 4, 10
Means v. Chicago,
535 F. Supp. 455 (N.D. Ill. 1982) ............................................................. 26
Mitchum v. Foster,
407 U.S. 225 (1972) .................................................................. 4, 14, 18, 22
Monell v. Dep’t of Soc. Svcs.,

436 U.S. 658 (1978) ................................................................................. 14
–v–
Monroe v. Pape,
365 U.S. 167 (1961) ................................................................................. 17
Morrison v. City of Baton Rouge,
761 F.2d 242 (5th Cir. 1985) .................................................................... 11
Schultea v. Wood,
27 F.3d 1112, 1118 (5th Cir. 1994), on reh’g en banc, 47 F.3d
1427 (5th Cir. 1995) ................................................................................. 12
St. Paul Mercury Ins. Co. v. Williamson,

224 F.3d 425 (5th Cir. 2000) .................................................................... 12
Timbs v. Indiana,
139 S. Ct. 682 (2019) ......................................................................... 15, 21
Tumey v. Ohio,
273 U.S. 510 (1927) ........................................................................... 5, 6, 9
Turner v. Pleasant,
663 F.3d 770 (5th Cir. 2011) .................................................................... 12
Valenzuela v. City of Anaheim,

6 F.4th 1098 (9th Cir. 2021) ..................................................................... 21
Ward v. Vill. of Monroeville,
409 U.S. 57 (1972) ......................................................................... 3, 5, 6, 9
Wilson v. Garcia,
471 U.S. 261 (1985) ................................................................................. 19
Statutes
42 U.S.C. § 1983 .................................................................................... passim
A Bill Continuing and Amending the Act Establishing the

Freedmen’s Bureau, c. 200, 14 Stat. 173 (July 16, 1866) ........................... 16
An Act to Protect All Persons in the United States in Their Civil

Rights and Liberties, and Furnish the Means of Their
Vindication, § 1, 14 Stat. 27 (Apr. 9, 1866) ......................................... passim
Civil Rights Act of 1871 ......................................................................... 14, 17
– vi –
ERISA ......................................................................................................... 13
La. Code Crim. P. art. 659 ........................................................................... 24

La. R.S. § 13:1346 ........................................................................................ 24
La. R.S. § 13:1347 ........................................................................................ 24
La. R.S. § 13:1373 ........................................................................................ 24

La. R.S. § 13:1373.1 ..................................................................................... 23
La. R.S. § 13:1383 ........................................................................................ 24
La. R.S. § 13:3053 ........................................................................................ 24
Mississippi Vagrant Law, Laws of Miss. § 2 (1865) ....................................... 22
RICO ........................................................................................................... 25
Other Authorities
1 W. Fleming, Documentary History of Reconstruction 283–285
(1950) ...................................................................................................... 22
Cong. Globe, 39th Cong., 1st Sess. ............................................................... 16
Cong. Globe, 42nd Cong., 1st Sess. ........................................................ 18, 19

Edward Coke, 1 Institutes of the Laws of England 141 (12th ed. 1738) ................. 5
Fed. R. App. P. 29(a)(4)(E) ............................................................................ 1

Fed. R. Civ. P. 8 .......................................................................................... 12
Fed. R. Civ. P. 8(a) ...................................................................................... 12
The Federalist No. 10 (J. Cooke ed. 1961) ........................................................ 4
Paul Finkelman, John Bingham and the Background to the

Fourteenth Amendment, 36 AKRON L. REV 671, 681–685
(2003) ...................................................................................................... 22
– vii –
Matt Sledge, In New Orleans, Ankle Monitors, Fees, Donations to Judge

Raise Concerns, Watchdog Says, THE ADVOCATE (May 15, 2019),
available at
https://www.nola.com/news/courts/article_e013fdc1-56a7-
5f2e-9813-fc969d45c17b.html .................................................................. 24
Matthew Trudeau, Instead of Treated They Get Fees: A Hard Knock

Life for Indigent Criminal Defendants and the Need for Unbiased
Determinations of Indigent Status, 47 Hofstra L. Rev. 1433, 1452
(2019) ...................................................................................................... 22
Ron Chernow, GRANT 568 (2017) ................................................................ 17
U.S. Const., amend. IV ................................................................................ 25
U.S. Const., amend. XIV .............................................................. 5, 12, 16, 22
U.S. Const., amend. XIV, § 1 ....................................................................... 16
– viii –
IDENTITY AND INTEREST OF AMICUS CURIAE 1
The Roderick and Solange MacArthur Justice Center (RSMJC) is a public
interest law firm founded in 1985 by the family of J. Roderick MacArthur to
advocate for human rights and social justice through litigation. RSMJC has of-
fices at Northwestern Pritzker School of Law, at the University of Mississippi
School of Law, in New Orleans, in St. Louis, and in Washington, D.C.
RSMJC’s attorneys have led civil rights battles in areas that include police mis-
conduct, compensation for the wrongfully convicted, and the treatment of incar-
cerated men and women. RSMJC litigates appeals related to civil rights through-
out the federal circuits and the Supreme Court of the United States.
INTRODUCTION AND SUMMARY OF THE ARGUMENT

Appellants have alleged systematic due process violations stemming from
the implementation of a corrupt ankle monitoring fee system. Appellants plau-
sibly allege the existence of the following unconstitutional system: the judge was
ordering and/or steering criminal defendants to electronic home monitoring by
a company run by the former law partner of the judge without disclosing that
relationship or potential alternative monitoring providers; the favored company
1
Pursuant to Rule 29(a)(4)(E) of the Federal Rules of Appellate Proce-
dure, RSMJC states that no party’s counsel authored the brief in whole or in
part; no party’s counsel contributed money intended to fund preparing or sub-
mitting the brief; and no person contributed money that was intended to fund
preparing or submitting the brief.
–1–
gave the judge a $1,000 campaign loan that was never repaid, which the judge
did not disclose; the ankle monitoring company generated income by charging
the criminal defendants exorbitant daily fees for the monitoring; the company
sent the judge payment status reports with “detailed information about each in-
dividual defendant’s payment history and status”—with notations that some de-
fendants are “‘highlighted’ solely because they are behind on payments;” and
the judge coerced the defendants into paying the excessive fees in collaboration
with his favored company. ROA.64, 70–71, 73–74. This structure creates a sys-
tem in which it reasonably appears to onlookers that both the judge and the pri-
vate actor will be tempted not to act in the public interest, because of the undue
influence of the potential for improper personal or financial gain.
The district court below, however, disagreed. Despite the Appellants’
well-pleaded allegations of this conduct, the district court dismissed this case on
the pleadings after finding that Appellants’ “allegations depend on the specific
relationship between Judge Bonin and ETOH and therefore fail to state an insti-
tutional incentives claim.” ROA.960. Focusing on this relationship between the
judge and ETOH, and addressing an argument that the district court even
acknowledged Appellants “do not argue,” the district court summarily dis-
missed the due process claim, stating: “To find that Plaintiffs have stated an in-
stitutional incentives claim would require the Court to hold that OPCDC’s use
–2–
of private companies for ankle-monitoring services who could donate to the
judges’ reelection campaigns violates due process because the judges would face
a possible temptation to order more defendants to ankle monitoring with hopes
of garnering more campaign contribution.” ROA.961. This was error.
As discussed below, this was a clear-cut case of “an inherent vice” in a
“fee system” that “creates a possible temptation for judges to be biased against
defendants” due to “the psychological attitude it engenders; namely, a conscious
or unconscious prejudice” from “a biased tribunal.” Brown v. Vance, 637 F.2d
272, 281–82 (5th Cir. 1981). The Due Process Clause forbids any interest that
“offer[s] a possible temptation to the average man as a judge” to forsake his ob-
ligation of impartiality. See Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972)
(quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Thus, at a minimum, this
case presents a situation that “raise[s] serious constitutional questions” due to
“[a] scheme injecting a personal interest, financial or otherwise, into the enforce-
ment process.” Marshall v. Jerrico, Inc., 446 U.S. 238, 249–50 (1980).
Given the constitutional concerns presented by this case, the district court
committed a serious, reversible error by dismissing this case with prejudice and
not permitting the Appellants to amend the complaint. As this Court has ex-
plained in the § 1983 context and elsewhere, “[d]ismissing an action after giving
the plaintiff only one opportunity to state his case is ordinarily unjustified.”
–3–
Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). “The very purpose of §
1983 was to interpose the federal courts between the States and the people, as
guardians of the people’s federal rights—to protect the people from unconstitu-
tional action under color of state law, ‘whether that action be executive, legisla-
tive, or judicial.’” Mitchum v. Foster, 407 U.S. 225, 242 (1972) (citation omitted).
The district court’s dismissal with prejudice sets a dangerous precedent for plain-
tiffs attempting to shed light on corrupt judicial systems using § 1983 claims—
an already herculean task. For these reasons, the RSMJC respectfully submits
that this Court should reverse the decision below, and, at a minimum, remand
with instructions to permit Appellants to plead their “best case.”
ARGUMENT
Plaintiffs raised a viable § 1983 claim given the “serious constitutional

questions” about corruption in ETOH’s administration of its ankle
monitoring system in Judge Bonin’s courtroom.
The Appellants here pleaded a due process violation after alleging in detail
the corruption in ETOH’s fee system for court-ordered ankle monitoring as im-
plemented. The Due Process Clause “entitles a person to an impartial and dis-
interested tribunal in both civil and criminal cases” and imposes a “requirement
of neutrality in adjudicative proceedings.” Marshall v. Jerrico, Inc., 446 U.S. 238,
242 (1980); see also The Federalist No. 10, at 59 (J. Cooke ed. 1961) (“No man is
allowed to be a judge in his own cause; because his interest would certainly bias
–4–
his judgment, and, not improbably, corrupt his integrity.”); Edward Coke, 1 In-
stitutes of the Laws of England 141 (12th ed. 1738). Indeed, “it is by now well-
settled that any judge,” or “anyone discharging a judicial function must be im-
partial.” Harper v. Pro. Prob. Servs. Inc., 976 F.3d 1236, 1241 (11th Cir. 2020).
“It certainly violates the Fourteenth Amendment, and deprives a defend-
ant in a criminal case of due process of law, to subject his liberty or property to
the judgment of a court the judge of which has a direct, personal, substantial,
pecuniary interest in reaching a conclusion against him in his case.” Tumey, 273
U.S. at 523. Under the Tumey standard, according to the Supreme Court, a vio-
lation occurs if there is “a possible temptation to the average man as a judge to
forget the burden of proof required to convict the defendant, or which might lead
him not to hold the balance nice, clear and true between the State and the ac-
cused.” Ward, 409 U.S. 57, 60 (1972) (citing Tumey, 273 U.S. at 532). This Cir-
cuit applies the Tumey standard to “cases addressing incentives that a court’s
structure creates in every case.” Caliste v. Cantrell, 937 F.3d 525, 530 (5th Cir.
2019) (holding system where money raised from pretrial release bonds funded
various judicial expenses violated due process). In these structural cases, the
standard is that “the mere threat of impartiality” violates due process. Id.
This Court has explained that there is “an inherent vice” in a “fee system”
that “creates a possible temptation for judges to be biased against defendants”
–5–
because of “the psychological attitude it engenders; namely, a conscious or un-
conscious prejudice” from “a biased tribunal.” Brown v. Vance, 637 F.2d 272, 281
(5th Cir. 1981); Tumey, 273 U.S. at 523. That is why the Supreme Court has said
that the Due Process Clause forbids any interest that “offer[s] a possible tempta-
tion to the average man as a judge” to forsake his obligation of impartiality. See
Ward, 409 U.S. at 60 (quoting Tumey, 273 U.S. at 532).
Here, the district court incorrectly found that Appellants did not present a
case challenging structural incentives—particularly given this Court’s opinion in
Brown. According to the Appellants, they were ordered to ankle monitoring by
a judge who had extensive undisclosed personal, political, and financial ties to
the company that provided the judge a $1,000 loan that was never repaid, and
charged them $238 to $310 per month, on top of the requirement that they pay
a $100 installation fee. Appellants alleged that Judge Bonin exercised his author-
ity over defendants’ pretrial status by ordering them to ankle monitoring, specif-
ically steering defendants to ETOH as provider despite potential alternative
companies that did not have the same undisclosed ties with Judge Bonin. In
addition to ordering defendants placed on ankle monitoring, and steering them
to ETOH, Judge Bonin was found by a third-party organization to have made
some defendants’ “release from ankle monitoring contingent on ‘financial obli-
gations owed to the ankle monitoring company.’” ROA.72. ETOH, for its part,
–6–
instructed the judge which defendants were behind on fees. Indeed, Appellants
detailed how, “[e]very month, [Appellee] ETOH” would send the judge “a Pay-
ment Status Report” with “detailed information about each individual defend-
ant’s payment history and status, including each individual defendant’s latest
payment to ETOH and outstanding fees due to ETOH,” and how “ETOH’s
Payment Status Reports” would “include notations such as ‘Please note that the
highlighted clients need attention’”—with some defendants being “‘highlighted’
solely because they are behind on payments.” ROA.73. This structure created a
clear temptation for Judge Bonin and ETOH to make decisions based on finan-
cial, personal, and political relationships, informed by maximizing money paid
by defendants.
This case is on all fours with this Court’s decision in Brown. In Brown, as
is the case here, the due process violation also was not specific to each individual
judge within the system; rather, the institutional bias existed in how the system
influenced the decision-making in all cases before select judges. 637 F.2d at 274–
75, 281. There, as should have been the case here, this Court found unconstitu-
tional as applied a statutory fee system under which judges were tempted to mis-
use their judicial power because, even though they were paid for cases regardless
of the outcome, convicting curried favor with law enforcement or other individ-
uals choosing a judge. Id. And there, as should have been the case here, this
–7–
Court recognized that while many judges would be “pure in heart and resistant
to the effect their actions may have on arresting officers and litigating creditors,”
the incentives of the system violated the due process right of “every accused person
and every civil litigant,” as defendants are entitled to “a system that is not only
fair on its face but in practical operation is free of temptation to the trial judge to
enhance his income by leaning” against defendants. Id. (emphasis added).
The standard of temptation, applied in Brown, is the standard the district
court should have applied here. The temptation for bias by Judge Bonin and
ETOH stems from a system plagued by the incentive to keep individuals on an-
kle monitoring “solely because they are behind on payments,” ROA.73—not
because they were a flight risk or presented a threat to the community. In Brown,
a higher rate of convictions per arrest benefitted police, and judges benefitted
from more cases in their courts. Here, the judge benefitted by currying favor with
ETOH (from which he received undisclosed campaign donations and outstand-
ing loans and which was owned by his former law partner) and ETOH benefited
financially from criminal defendants being ordered to submit to ankle monitor-
ing or remain on ankle monitoring.
Here, the district court failed to account for how the Supreme Court’s de-
cisions in “Tumey and Ward make it clear that a violation of due process occurs
when the system creates the possibility that judges will fail to hold ‘the balance
–8–
nice, clear and true.’” Brown, 637 F.2d aet 284 (emphasis added). The district
court took a narrow view and found that there was no institutional claim because
it thought that Appellants’ “allegations depend on the specific relationship be-
tween Judge Bonin and ETOH and therefore fail to state an institutional incen-
tives claim.” ROA.960. But this narrow, hyper-technical approach is not the
correct standard. The Supreme Court has stated that “[i]t is sufficiently clear
from our cases that those with substantial pecuniary interest in legal proceedings
should not adjudicate these disputes,” and “that the financial stake need not be
as direct or positive as it appeared to be in Tumey.” Gibson v. Berryhill, 411 U.S.
564, 579 (1973) (citing Tumey, 273 U.S. 510, and Ward, 409 U.S. 57). Under this
broad approach, the Supreme Court affirmed a decision that applied the Tu-
mey “possible temptation” standard to disqualify members of an optometry
Board from revoking non-member optometry licenses given “the pecuniary in-
terest of the members of the Board.” Id. It should therefore certainly apply here.
The district court’s approach ignores the fact that the Supreme Court has
set a baseline for constitutional violations and explained that “[a] scheme inject-
ing a personal interest, financial or otherwise, into the enforcement process may
bring irrelevant or impermissible factors into the prosecutorial decision and in
some contexts raise serious constitutional questions.” Marshall, 446 U.S. at 249–
50 (citation omitted). The fee system as implemented by Judge Bonin plainly
–9–
crosses that line, as institutional bias from ETOH’s financial motives and Judge
Bonin’s undisclosed ties infected all cases before him. It was therefore error for
the district court to have dismissed this § 1983 case on such narrow grounds.
Dismissing this case with prejudice, without leave to amend, and with-
out explaining how any amendment was futile, was contrary to law.
Given the serious constitutional questions outlined by the conduct alleged
by Appellants, the district court erred by dismissing this case and plainly erred
by doing so with prejudice—particularly given the broad sweep of § 1983.
As this Court has explained in the § 1983 context elsewhere, “[d]ismissing
an action after giving the plaintiff only one opportunity to state his case is ordi-
narily unjustified.” Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). A
complaint should not be dismissed with prejudice unless “it appears to be a cer-
tainty that the plaintiff cannot possibly be entitled to relief under any set of facts
which could be proved in support of its allegations.” Hitt v. Pasadena, 561 F.2d
606, 608 (5th Cir. 1977) (quoting Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955)).
And, “[e]ven then,” this Court has explained that “a court ordinarily should not
dismiss the complaint except after affording every opportunity [for] the plaintiff
to state a claim upon which relief [can] be granted.” Ibid.
In the § 1983 context, this Court has explained that dismissal with preju-
dice is only warranted when the pleadings do not state a cognizable claim and,
when “viewed under the individual circumstances of the case, demonstrate that
– 10 –
the plaintiff has pleaded his best case.” Jacquez, 801 F.3d at 793; cf. Morrison v. City
of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (upholding the dismissal of a §
1983 action where “the specific allegations of the amended complaint constitute
the plaintiffs’ best case for demonstrating that [the defendant] acted outside the
scope of . . . immunity”). This is consistent with the general principle that,
“[a]lthough a court may dismiss the claim, it should not do so without granting
leave to amend, unless the defect is simply incurable or the plaintiff has failed to
plead with particularity after being afforded repeated opportunities to do so.” Hart v.
Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (emphases added).
This only makes sense given the stakes: “The sanction of dismissal is the
most severe sanction that a court may apply, and its use must be tempered by a
careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (5th
Cir. 1967). This Court has explained that “the dismissal of a case with prejudice
is a drastic remedy to be used only in those cases where a lesser sanction would
not better serve the interests of justice.” Brown v. Thompson, 430 F.2d 1214, 1216
(5th Cir. 1970). And that is because justice for plaintiffs is a paramount concern
given that a dismissal with prejudice “may well deny them the opportunity to
those claims altogether, in any forum”—a result “contrary to accepted interpre-
tation of the Federal Rules of Procedure.” Hitt, 561 F.2d at 609.
– 11 –
It also makes sense given the low bar Appellants must meet because a suf-
ficiently pled complaint “need not contain detailed factual allegations.” Turner
v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011). Rather, a claim need only have
“facial plausibility,” or “factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the misconduct alleged.” Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). “The notice pleading requirements of Federal Rule of Civil Proce-
dure 8 and case law do not require an inordinate amount of detail or precision.”
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000); see also
GE Capital Corp. v. Posey, 415 F.3d 391, 396 (describing Rule 8(a) as a “low bar”).
Keeping all this in mind, there was plainly no basis to dismiss Appellants’
Amended Complaint with prejudice because “there is no intimation that [Ap-
pellants]’ complaint constitutes [their] best case,” so it is proper to “remand the
case to the district court so that [Appellants] may amend [the] complaint, if pos-
sible, to plead sufficient facts supporting a claim under the Fourteenth Amend-
ment.” Schultea v. Wood, 27 F.3d 1112, 1118 (5th Cir. 1994), on reh’g en banc, 47
F.3d 1427 (5th Cir. 1995). Nothing in the record shows that the district court
exercised this discretion before imposing such a severe outcome on Appellants.
And even if Appellants did not satisfy the pleading requirements of § 1983, “such
– 12 –
deficiencies do not normally justify dismissal of the suit on the merits and with-
out leave to amend, at least not in the absence of special circumstances.” Cates
v. Int'l Tel. & Tel. Corp., 756 F.2d 1161, 1180 (5th Cir. 1985).
Here, the district court identified no special circumstances that could jus-
tify dismissal with prejudice. If anything, the district court erroneously required
Plaintiffs to plead a heightened level of facts, inconsistent with the standard
enunciated by the Supreme Court in Twombly and Iqbal. A complaint’s statement
of facts “must simply ‘give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.’” GE Capital Corp., 415 F.3d at 396 (5th
Cir. 2005). And when judging such notice, the court should consider the parties’
relative access to evidence. The district court’s dismissal directly contradicts “the
principle that when discoverable information is in the control and possession of
a defendant, it is not necessarily the plaintiff's responsibility to provide that in-
formation in her complaint.” Innova Hosp. San Antonio, Ltd. P'ship v. Blue Cross &
Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018) (reversing dismissal of
ERISA claim for failure to state a claim when relevant plan provisions were in
possession of defendants). Like Innova, the district court wrongly required Plain-
tiffs to plead facts it could not possess to even reach discovery—an impossible
task. And similar to the ERISA context, in this § 1983 action, “the remedial
scheme of the statute will fail, and the crucial rights secured . . . will suffer.”
– 13 –
Innova Hosp. San Antonio, Ltd. P'ship, 892 F.3d at 731 (5th Cir. 2018) (quoting
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 598 (2009)). The district court’s
requirement that Plaintiffs—individuals attempting to navigate a state judicial
system designed to infringe their constitutional rights—plead facts presently un-
knowable to them does injustice to the history and purpose of § 1983.
Dismissing this case was contrary to the role that federal courts are sup-
posed to play when adjudicating cases brought under § 1983.
Finally, dismissing this case about an inherently suspect “fee system” set
up by a judge and ETOH, while ostensibly acting under color of state law, would
be anathema to the drafters of § 1983 because, in enacting § 1983, Congress “in-
tended to give a broad remedy for violations of federally protected civil rights,”
and the Supreme Court has instructed us that “Congress intended § [1983] to be
broadly construed.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685–686 (1978).
“The very purpose of § 1983 was to interpose the federal courts between the
States and the people, as guardians of the people’s federal rights—to protect the
people from unconstitutional action under color of state law, ‘whether that ac-
tion be executive, legislative, or judicial.’” Mitchum v. Foster, 407 U.S. 225, 242
(1972) (quoting Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 (1879)).
Section 1983 was enacted as part of the Civil Rights Act of 1871, but even
before the Civil Rights Act of 1871, Congress had enacted the Civil Rights Act
of 1866 to reform corrupt state criminal justice systems after the Southern states
– 14 –
subjugated Black Americans to unequal treatment under the law by passing the
Black Codes. “Following the Civil War, Southern States enacted Black Codes
to subjugate newly freed slaves and maintain the prewar racial hierarchy.” Timbs
v. Indiana, 139 S. Ct. 682, 688 (2019). “The Black Codes were a substitute for
slavery[.]” Bell v. State of Md., 378 U.S. 226, 247 (1964) (Douglas, Goldberg, JJ.,
concurring in part); see also id. at 688 n. 3 (“The penal codes provided harsher
and more arbitrary punishments for blacks than for whites, and some states per-
mitted individual masters to administer corporal punishment to ‘refractory serv-
ants.’ Negroes were not allowed to bear arms or to appear in all public places,
and there were special laws governing the domestic relations of the blacks. . . .
[I]n such states as South Carolina and Mississippi there was clearly evident a
desire to keep the freedmen in a permanent position of tutelage, if not of peon-
age.’” (quoting Samuel Morison and Henry Commager, THE GROWTH OF THE
AMERICAN REPUBLIC 17–18 (1950))).
“The 39th Congress focused on these abuses during its debates over the
Fourteenth Amendment, the Civil Rights Act of 1866, and the Freedmen’s Bu-
reau Act.” Timbs, 139 S. Ct. at 697 (Thomas, J., concurring). Given the oppres-
sive conditions for millions of previously enslaved Black Americans in the
South, Congress passed the Fourteenth Amendment and guaranteed that any-
– 15 –
one “born or naturalized in the United States” is a citizen entitled to all “privi-
leges and immunities” that such citizenship afforded. U.S. Const., amend. XIV,
§ 1. Then, Congress passed the Civil Rights Act of 1866, which like the Freed-
man’s Bureau Bill of 1866, 2 guaranteed that “citizens[] of every race and color,
without regard to any previous condition of slavery or involuntary servitude, . .
. shall have the same right . . . to full and equal benefit of all laws and proceedings
for the security of person and property.” An Act to Protect All Persons in the
United States in Their Civil Rights and Liberties, and Furnish the Means of
Their Vindication, § 1, 14 Stat. 27 (Apr. 9, 1866).
It was universally known that the Civil Rights Act of 1866 would permit
federal courts to step in and remedy the corrupt judicial systems perpetrating the
Black Codes—even if it meant holding judges and similar actors accountable.
Indeed, Senator Lyman Trumbull, drafter of the Civil Rights Act, stated une-
quivocally “that a ministerial officer or a judge, if he acts corruptly or viciously
in the execution or under color of an illegal act, may be and ought to be pun-
ished.” Cong. Globe, 39th Cong., 1st Sess. 1758 (Sen. Trumbull).
The Civil Rights Act of 1866 was not enough, however, as the Ku Klux
Klan unleashed a reign of unprecedented American terrorism against Black
2
A Bill Continuing and Amending the Act Establishing the Freedmen’s
Bureau, c. 200, 14 Stat. 173 (July 16, 1866)
– 16 –
Americans in the South. The Klan orchestrated a “huge wave of murder and
arson.” Ron Chernow, GRANT 568 (2017). And the most pernicious aspect
about the Klan’s violence was that it was effectively state-sanctioned, as “[m]any
of the perpetrators of racial terror were members of law enforcement,” though
“[i]t was a twisted law enforcement,” “as it prevented the laws of the era from
being enforced.” Jamison v. McClendon, 476 F. Supp. 3d 386, 399 (S.D. Miss.
2020) (collecting authority).
Given this state-sanctioned terrorism, the 42nd Congress considered a sec-
ond Civil Rights Act and decided to take action in the face of Southern judges
and juries simply refusing to address unspeakable discrimination and violence
against Black Americans. Cf. Monroe v. Pape, 365 U.S. 167, 174 (1961) (“The
debates are replete with references to the lawless conditions existing in the South
in 1871.”). By passing the Civil Rights Act of 1871, “Congress sought to respond
to ‘the reign of terror imposed by the Klan upon black citizens and their white
sympathizers in the Southern States.’” Baxter v. Bracey, 140 S. Ct. 1862 (2020)
(Thomas, J., dissenting) (quoting Briscoe v. LaHue, 460 U.S. 325, 337 (1983)). In
relevant part, “Section 1 of the Ku Klux Act, now codified as 42 U.S.C. § 1983,
uniquely targeted state officials who ‘deprived persons of their constitutional
rights,’” and “the doors to the courthouse were opened to ‘any person who ha[d]
been deprived of her federally protected rights by a defendant acting under color
– 17 –
of state law.’” Jamison, 476 F. Supp. 3d at 400. “Put in simpler terms, § 1 gave
individuals a right to sue state officers for damages to remedy certain violations
of their constitutional rights.” Baxter, 140 S. Ct. 1862 (Thomas, J., dissenting).
With this backdrop, it was well-understood that § 1983 empowered federal
courts to play an active role in reforming corrupt state criminal justice systems.
“Proponents of the legislation noted that state courts were being used to harass
and injure individuals, either because the state courts were powerless to stop
deprivations or were in league with those who were bent upon abrogation of
federally protected rights.” Mitchum, 407 U.S. at 240. Members of Congress
were cognizant of the corruption that festered in the state court system at the
expense of the constitutional rights of American citizens. See, e.g., Cong. Globe,
42nd Cong., 1st Sess. at 394 (Rep. Rainey) (“[T]he courts are in many instances
under the control of those who are wholly inimical to the impartial administra-
tion of law and equity.”); id. at 429 (Rep. Beatty) (referencing “bribed judges”);
id. at 481 (Rep. Wilson) (noting the “corruption of courts”). And so § 1983 rep-
resented a “vast transformation from the concepts of federalism that had pre-
vailed in the late 18th century.” Mitchum, 407 U.S. at 242.
“The Act’s mandate was expansive.” Jamison, 476 F. Supp. 3d at 399.
Section 1983 was passed to provide federal courts the power to remedy conduct
by state officials and actors—including judges. Cf. Cong. Globe, 42nd Cong., 1st
– 18 –
Sess. 501 (Sen. Frelinghuysen) (“when the courts of a State violate the provisions
of the Constitution or the law of the United States there is now relief afforded
by a review”). “The Act reflected Congress’s recognition that – to borrow the
words of today’s abolitionists – ‘the whole damn system [was] guilty as hell.’”
Jamison, 476 F. Supp. 3d at 400.
Thus, when faced with unique unconstitutional state action like the cor-
ruption alleged here, more scrutiny is required by our federal courts—not less.
Accord Wilson v. Garcia, 471 U.S. 261, 271–72 (1985) (“[Section] 1983 provides a
‘uniquely federal remedy against incursions under the claimed authority of state
law upon rights secured by the Constitution’ . . . [that] make[s] it appropriate to
accord the statute ‘a sweep as broad as its language.’”) (internal citation omit-
ted)). This is because federal courts hold a unique, and important role, in vindi-
cating our fundamental constitutional rights. Cf. Hicks v. Miranda, 422 U.S. 332,
355 (1975) (“The duty of the federal courts to adjudicate and vindicate federal
constitutional rights is, of course, shared with state courts, but there can be no
doubt that the federal courts are ‘the primary and powerful reliances for vindi-
cating every right given by the Constitution, the laws, and treaties of the United
States.’”) (quoting F. Frankfurter & J. Landis, THE B USINESS OF THE SUPREME
COURT: A STUDY IN THE F EDERAL JUDICIAL SYSTEM 65 (1927)).
– 19 –
Indeed, when as here, a plaintiff has alleged that he has been deprived of
his federal due process right through the improper use of state power, it should
generally be held that the plaintiff has a “presumptively valid section 1983
claim[.]” Hollis v. Itawamba Cnty. Loans, 657 F.2d 746, 749–50 (5th Cir. 1981)
(noting that the plaintiff had “stated a presumptively valid section 1983 claim
for damages based . . . upon the improper abuse of the statutory procedure (even
if presumptively constitutional) so as to deprive him of federal due process rights
through improper use of state power.”).
The district court tried to fit Appellants’ § 1983 claim into a specific box
based on specific fact-patterns from prior Supreme Court cases. ROA.959–960.
That narrow and overly technical interpretation of § 1983 was improper given
that § 1983 was meant to be a remedial statute that is “broadly construed” to
provide a remedy “against all forms of official violation of federally protected
rights.” Dennis v. Higgins, 498 U.S. 439, 445 (1991) (citation omitted). The dis-
trict court’s narrow, hyper-technical approach to the § 1983 claim here “re-
strict[ed] the scope of § 1983” and should have therefore “come[] with a heavy
burden of justification” for doing so—“a burden that is both constitutional and
historical.” Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th
1266, 1283 (11th Cir. 2021) (quoting Harry A. Blackmun, Section 1983 and Fed-
eral Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?,
– 20 –
60 N.Y.U. L. REV. 1, 28 (1985)). But there was—and is—no justification for the
district court’s approach because “Section 1983’s goals include compensation
for those injured by a deprivation of federal rights and deterrence to prevent fu-
ture abuses of power.” Valenzuela v. City of Anaheim, 6 F.4th 1098, 1102 (9th Cir.
2021) (citing Robertson v. Wegmann, 436 U.S. 584, 591 (1978)).
At bottom, this Court should not lose sight of how the facts presented here
involve a case where a judge and a judicial actor had significant undisclosed ties
and corruptly charged and enforced the collection of draconian fees. As the Su-
preme Court has noted, excessive fees were a key focus of Congress during the
passage of the Civil Rights Act of 1866. Cf. Timbs, 139 S. Ct. at 688–89 (discuss-
ing the Black Codes and explaining: “Among these laws’ provisions were dra-
conian fines for violating broad proscriptions on ‘vagrancy’ and other dubious
offenses. When newly freed slaves were unable to pay imposed fines, States of-
ten demanded involuntary labor instead. Congressional debates over the Civil
Rights Act of 1866, the joint resolution that became the Fourteenth Amend-
ment, and similar measures repeatedly mentioned the use of fines to coerce in-
voluntary labor.”) (citing, among other things, Mississippi Vagrant Law, Laws
of Miss. § 2 (1865), in 1 W. Fleming, Documentary History of Reconstruction
283–285 (1950)); see also Paul Finkelman, John Bingham and the Background to the
Fourteenth Amendment, 36 AKRON L. REV 671, 681–685 (2003) (describing Black
– 21 –
Codes' use of fines and other methods to “replicate, as much as possible, a sys-
tem of involuntary servitude”).
A state court system that imposes harsh fines and fees on indigent criminal
defendants is problematic enough, but when those harsh fines are levied and
enforced by a judge and private company with significant undisclosed ties and
incentives, the system becomes even more constitutionally problematic. Indeed,
while these fees are theoretically meant to serve a deterrent effect to dissuade
defendants from committing crimes in the future, “expensive court costs can
steer indigent defendants to commit additional crimes and take extraordinary
measures to evade the authorities,” only ensuring them another day in court. See
Matthew Trudeau, Instead of Treated They Get Fees: A Hard Knock Life for Indigent
Criminal Defendants and the Need for Unbiased Determinations of Indigent Status, 47
Hofstra L. Rev. 1433, 1452 (2019). This is what § 1983 is meant to prevent—
corrupt state action against the indigent to cement a permanent underclass.
The decision below not only harms Appellants, but does violence to the
purpose of § 1983 by making it harder for future plaintiffs to seek justice from
federal courts. Future plaintiffs will not only struggle to gleam guidance from
the district court’s opinion, but will also have to distinguish this case without
insight into the district court’s rationale. This abdicates the federal courts’ role
as “guardians of the people's federal rights.” Mitchum, 407 U.S. at 242.
– 22 –
This is especially problematic because the conflict of interest highlighted
by this case is not unique to Judge Bonin’s court, nor is it unique to the Orleans
Parish Criminal District Court given the fact that the Louisiana’s legislature has
systematically underfunded the courts for decades. The state’s general fund sub-
sidizes a miniscule portion of a court’s overall operating costs. There is little of
a court’s budget, apart from the salaries of the judiciary, that the state is required
to pay. 3 Similarly, the cities and parishes hosting the district courts are respon-
sible to pay for few expenses apart from the space for the court to operate. 4
In light of this endemic underfunding, state law is unsurprisingly silent as
to funding pretrial supervision in the district courts. As a result, judges must
either hope that the cities or parishes deign pretrial supervision a service worthy
to provide, or they must rely on user-funded third parties. For example, the City
of New Orleans had contracted with the Sheriff’s Office to provide monitoring
3
The state’s funding obligations appear to be limited to a travel and ex-
pense stipend for each judge, and the partial salaries of a court reporter, deputy
court reporter, and minute clerk for each chambers. La. R.S. § 13:1373.1 (requir-
ing state payment of $12,478 annual salary each for one court reporter and one
deputy reporter and $15,791 annual salary for each minute clerk).
4
The city of New Orleans is required to pay small portions of the salaries
of court reporters and minute clerks (La. R.S. §§ 13:1346, 1347, 1373); partial
salaries of the jury commissioner and her clerks (La. R.S. §§ 13:3053); and the
cost of sanity commissions (La. Code Crim. Proc. art. 659); and must provide a
building for the court (La. R.S. § 13:1383).
– 23 –
of pretrial defendants between 2010 and 2016, only to have the agreement col-
lapse over budget disputes and performance concerns. 5 The court then turned to
private contractors, setting the stage for the present case.
Indeed, this is not the first case to arise from this misplaced reliance on
unfunded private contractors to provide ankle monitoring. In 2017, a lawsuit
was filed in the Middle District of Louisiana against Rehabilitation Home In-
carceration (“RHI”), an entity that provided pretrial supervision services to de-
fendants in the 19th Judicial District Court, among others. See Ayo v. Dunn, No.
3:17-cv-526 (M.D. La. filed Aug. 7, 2017). The suit alleged that Judge Trudy
White of the 19th Judicial District Court was a close political ally of—and ben-
eficiary of campaign donations from—RHI’s CEO, Dunn, and that Judge White
allowed only RHI to provide pretrial supervision services in her courtroom. The
plaintiffs in Ayo did not raise a due process conflict-of-interest claim as plaintiffs
here do, instead relying on RICO, Fourth Amendment seizure, and state con-
tract claims. Nonetheless, the case is relevant in its demonstration of the preva-
lence of similar funding arrangements throughout Louisiana’s district courts that
may, as in Judge Bonin’s court, violate the constitutional rights of defendants.
5
See, e.g., Matt Sledge, In New Orleans, Ankle Monitors, Fees, Donations to
Judge Raise Concerns, Watchdog Says, THE ADVOCATE (May 15, 2019), available at
https://www.nola.com/news/courts/article_e013fdc1-56a7-5f2e-9813-
fc969d45c17b.html.
– 24 –
That is why this case is so important: Plaintiffs raise serious questions of sys-
temic violations of Constitutional rights, yet the trial court cut Appellants off at
the knees by dismissing—on a judgment on the pleadings—the claims with prej-
udice. At a minimum, given this Court’s precedent and the purpose of § 1983,
Plaintiffs should be afforded an opportunity to amend their complaint.
CONCLUSION
In sum, in cases like this one, where the plaintiff has plausibly alleged an
objective appearance of bias due to an inherently suspect fee system against
criminal defendants, proper review under § 1983 is critical. Otherwise, it is un-
clear “how any plaintiff, including a civil rights plaintiff, is supposed to allege
with specificity prior to discovery acts to which he or she personally was not
exposed, but which provide evidence necessary to sustain the plaintiff's claim.”
Means v. Chicago, 535 F. Supp. 455, 460 (N.D. Ill. 1982). Thus, to give sufficient
attention to § 1983’s remedial purpose, the RSMJC respectfully submits that this
Court should reverse the decision below.
– 25 –
Dated: December 30, 2021 Respectfully submitted,
/s/ Chad B. Walker

CHAD B. W ALKER
COUNSEL OF R ECORD
W INSTON & STRAWN LLP
2121 N. PEARL STREET
SUITE 900
DALLAS , TX 75201
(214) 453-6500
CBW ALKER @WINSTON.COM
SEAN H. SUBER
KATHERINE L. KYMAN
TYREE M. PETTY -W ILLIAMS
35 W. W ACKER DRIVE
CHICAGO, IL 60601
– 26 –
CERTIFICATE OF COMPLIANCE
Counsel for amicus curiae certifies that this brief complies with Rules
29(a)(5) and 32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure because
it contains 6,141 words, based on the “Word Count” feature of Microsoft Word
2016. As required by Rule 32(a)(7)(B)(iii), this word count does not include the
words in the Corporate Disclosure Statement, Table of Contents, Table of Au-
thorities, and Certificates of Counsel. Counsel also certifies that this document
complies with Rules 32(a)(5) and (a)(6) because it has been prepared in a pro-
portionally spaced typeface using 14-point Calisto MT in Microsoft Word 2016.
Dated: December 30, 2021 By: /s/ Sean H. Suber

– 27 –
CERTIFICATE OF SERVICE
I electronically filed the foregoing with the Clerk of Court for the United
States Court of Appeals for the Fifth Circuit on December 30, 2021, by using the
appellate CM/ECF system, and service was accomplished on all counsel of
record by the appellate CM/ECF system.
Dated: December 30, 2021 By: /s/ Sean H. Suber

– 28 –

MacArthur Amicus Brief in Bonin

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MacArthur Amicus Brief in Bonin

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Case: 21-30620 Document: 00516150111 Page: 1 Date Filed: 12/30/2021

United States Court of Appeals

P AUL A. BONIN, Judge of the Orleans Parish Criminal District Court;

Appeal from the United States District Court

Counsel for Amicus Curiae

United States Court of Appeals

P AUL A. BONIN, Judge of the Orleans Parish Criminal District Court;

Appeal from the United States District Court

the judges of this court may evaluate possible disqualification or recusal.

Counsel for Plaintiffs-Appellants

8. ETOH Monitoring, L.L.C.

Counsel for Defendants-Appellees

10. Leonard Louis Levenson

17. Roderick and Solange MacArthur Justice Center

Counsel for Amicus Curiae

18. Chad B. Walker

Dated: December 30, 2021 /s/ Chad B. Walker

CERTIFICATE OF INTERESTED PERSONS ............................................. i

IDENTITY AND INTEREST OF AMICUS CURIAE ................................. 1

INTRODUCTION AND SUMMARY OF THE ARGUMENT .................... 1

Plaintiffs raised a viable § 1983 claim given the “serious

CERTIFICATE OF SERVICE .................................................................... 28

Bell Atl. Corp. v. Twombly,

Bell v. State of Md.,

GE Capital Corp. v. Posey,

Harper v. Pro. Prob. Servs. Inc.,

Monell v. Dep’t of Soc. Svcs.,

St. Paul Mercury Ins. Co. v. Williamson,

Valenzuela v. City of Anaheim,

42 U.S.C. § 1983 .................................................................................... passim

A Bill Continuing and Amending the Act Establishing the

An Act to Protect All Persons in the United States in Their Civil

Civil Rights Act of 1871 ......................................................................... 14, 17

La. Code Crim. P. art. 659 ........................................................................... 24

La. R.S. § 13:1347 ........................................................................................ 24

La. R.S. § 13:1373 ........................................................................................ 24

La. R.S. § 13:1383 ........................................................................................ 24

La. R.S. § 13:3053 ........................................................................................ 24

Mississippi Vagrant Law, Laws of Miss. § 2 (1865) ....................................... 22

Cong. Globe, 39th Cong., 1st Sess. ............................................................... 16

Cong. Globe, 42nd Cong., 1st Sess. ........................................................ 18, 19

Fed. R. App. P. 29(a)(4)(E) ............................................................................ 1

Fed. R. Civ. P. 8(a) ...................................................................................... 12

The Federalist No. 10 (J. Cooke ed. 1961) ........................................................ 4

Paul Finkelman, John Bingham and the Background to the

Matt Sledge, In New Orleans, Ankle Monitors, Fees, Donations to Judge

Matthew Trudeau, Instead of Treated They Get Fees: A Hard Knock

U.S. Const., amend. IV ................................................................................ 25

U.S. Const., amend. XIV .............................................................. 5, 12, 16, 22

U.S. Const., amend. XIV, § 1 ....................................................................... 16

IDENTITY AND INTEREST OF AMICUS CURIAE 1

The Roderick and Solange MacArthur Justice Center (RSMJC) is a public

interest law firm founded in 1985 by the family of J. Roderick MacArthur to

fices at Northwestern Pritzker School of Law, at the University of Mississippi

School of Law, in New Orleans, in St. Louis, and in Washington, D.C.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

the implementation of a corrupt ankle monitoring fee system. Appellants plau-

ordering and/or steering criminal defendants to electronic home monitoring by

relationship or potential alternative monitoring providers; the favored company

influence of the potential for improper personal or financial gain.

The district court below, however, disagreed. Despite the Appellants’

tutional incentives claim.” ROA.960. Focusing on this relationship between the

of private companies for ankle-monitoring services who could donate to the