Smith, Herbert v. City of Hammond ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-1260
HERBERT SMITH,
Plaintiff-Appellant,
v.
CITY OF HAMMOND, INDIANA, et al.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 03 C 542—Rudy Lozano, Judge.
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ARGUED SEPTEMBER 10, 2004—DECIDED NOVEMBER 3, 2004
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Before FLAUM, Chief Judge, and POSNER and ROVNER,
Circuit Judges.
POSNER, Circuit Judge. A woman named Leatrice Warren
was arrested by the Hammond police and charged with a
variety of relatively minor (as these things go) offenses, in-
cluding battery, intimidation, possession of marijuana, dis-
orderly conduct, and resisting arrest, all probably arising
from the same incident and eventually resolved by a plea
agreement the terms of which we do not know. When she
was arrested, Judge Harkin of the Hammond City Court set
2 No. 04-1260
bail at $6,800 “cash only.” This meant that to get out of jail
Warren would have to deposit 10 percent of the amount of
the bail—$680—with the court. Ind. Code § 35-33-8-3.2(a)(2).
If she complied with the conditions of bail (which is to say
if she didn’t skip town), the money would be returned to
her, minus certain offsets (administrative fees, restitution if
ordered, fines if imposed). Id.; Obregon v. State, 703 N.E.2d
695 (Ind. App. 1998). Warren’s family had paid our plaintiff,
Herbert Smith, a bail bondsman licensed by the State of
Indiana, a $680 premium for a $6,800 surety bond, but the
police, at the judge’s direction, refused to accept the bond,
instead insisting on the cash bond in the same amount. This
meant that Smith—assuming he returned the premium to his
client—was out the $680.
One wonders why Warren’s family would pay Smith a
nonrefundable $680 when the same $680, deposited with the
court, would (depending on the outcome of the criminal
proceeding) be largely refundable. Because the family didn’t
know any better, perhaps being misled by Smith? Or did the
family perhaps want Smith to be on the hook for the rest of
the bond when Warren skipped? But then, if Smith had the
same thought about the likely outcome, he would not have
agreed to underwrite a bond.
Even more mysterious is that Warren originally was a co-
plaintiff with Smith in this lawsuit, though she later dropped
out.
Upset that the bond had been refused, Smith brought this
suit under 42 U.S.C. § 1983 against the judge, the city clerk
and the city police chief, the judge’s court, and the City
itself, contending that the defendants have a policy of re-
fusing to accept surety bonds and that this policy violates
the U.S. Constitution by depriving Smith of a property
interest consisting of his license. His license is worthless, he
contends, if he cannot write surety bonds in Hammond
No. 04-1260 3
because the court will accept only cash bonds. The suit seeks
damages but his appeal is from the denial of his motion for
a preliminary injunction, which he sought on the ground
that damages will be difficult to determine and that there-
fore he is incurring irreparable harm.
Not only has the appeal no merit, but it is evident that the
entire suit should be dismissed. Three of the four defen-
dants—the City, the clerk, and the police chief—do not belong
in the case at all. None of them has, or is claimed to have
asserted, any authority over the setting of bonds. (Regarding
the City’s liability, see, e.g., Pembaur v. City of Cincinnati, 475
U.S. 469, 478-80 (1986).) Smith might just as well have sued
the Governor of New Mexico. In Indiana as elsewhere, “the
power to establish bail is exclusively judicial.” Board of
County Commissioners v. Farris, 342 N.E.2d 642, 644 (Ind. App.
1976); see also Ind. Code §§ 35-33-8-3.2(a), -4; cf. Walden v.
Carmack, 156 F.3d 861, 874 (8th Cir. 1998); Franceschi v.
Schwartz, 57 F.3d 828, 830 (9th Cir. 1995) (per curiam). And
though an official who lacked legal authority over some
matter might nevertheless use his official status (“color of
law”) to influence the officials who did have the relevant
jurisdiction, Smith doesn’t indicate what role he thinks the
clerk or the police chief plays in Judge Harkin’s bail deci-
sions except to execute them. As mere executants they
would be sheltered by the judge’s absolute immunity (of
which more shortly), Snyder v. Nolen, 380 F.3d 279, 287 (7th
Cir. 2004) (per curiam); Richman v. Sheahan, 270 F.3d 430, 435
(7th Cir. 2001); In re Foust, 310 F.3d 849, 855 (5th Cir. 2002);
Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001), and even as
collaborators they would be sheltered by the absence of any
established Fourteenth Amendment entitlement to issue a
surety bond. We can even delete “established.” The decision
to require either a cash bond or a surety bond is a discre-
tionary judicial act, Mott v. State, 490 N.E.2d 1125, 1129 (Ind.
App. 1986), and therefore no bondsman has a sufficiently
4 No. 04-1260
firm and definite interest in the issuance of a surety bond to
be adjudged a Fourteenth Amendment property holder.
Baldwin v. Daniels, 250 F.3d 943, 946-47 (5th Cir. 2001) (per
curiam)
As for Judge Harkin, he has, of course, absolute immunity
from liability for damages arising from judicial acts, and the
setting of bail is one of them. Mireles v. Waco, 502 U.S. 9, 11-
13 (1991) (per curiam); Stump v. Sparkman, 435 U.S. 349, 362-
64 (1978); Brokaw v. Mercer County, 235 F.3d 1000, 1015 (7th
Cir. 2000); Tucker v. Outwater, 118 F.3d 930, 932-33 (2d Cir.
1997); Franceschi v. Schwartz, supra, 57 F.3d at 830; King v.
Love, 766 F.2d 962, 968 (6th Cir. 1985). It is true that the core
concern animating absolute immunity for judges is the
prospect of malicious suits by disappointed litigants, and
Smith was not a party to the suit in which Judge Harkin
issued the order of which Smith is complaining. But that is
not a saving grace when one considers how common it is for
judicial rulings to have adverse effects on nonparties that
might prompt them to seek judicial revenge against the
judge.
Smith also seeks injunctive relief against the judge, but
here he runs up against a 1996 amendment to 42 U.S.C.
§ 1983 that provides “that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless
a declaratory decree was violated or declaratory relief was
unavailable.” Federal Courts Improvement Act of 1996, Pub.
L. No. 104-317, § 309(c), 110 Stat. 3847, 3853. Setting bail is
a judicial act, as we said, and the exception involving
declaratory relief is inapplicable to this case. Declaratory re-
lief is not unavailable just because it is not an award of
damages—yet that is Smith’s argument.
What is more, we don’t see how a motion for a prelimi-
nary injunction can be premised on the difficulty of deter-
No. 04-1260 5
mining damages—Smith’s only ground—when the defendant
is absolutely immune from damages liability. It would be
beyond odd to argue for preliminary relief on the ground
that one had no legal right to permanent relief, when it is
only the existence of a probability of eventually prevailing
that entitles a plaintiff to seek preliminary relief to protect
his expectation. Similarly, while in some cases it might be
argued that a defendant’s immunity from damages liability
might constitute irreparable harm entitling the plaintiff to
preliminary relief, Hillhaven Corp. v. Wisconsin Dept. of Health
& Social Services, 733 F.2d 1224, 1226 (7th Cir. 1984) (per
curiam); Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353,
361-62 (4th Cir. 1991), this argument won’t fly in a case such
as this in which the defendant (by virtue of the 1996 amend-
ment to section 1983) is immune from being enjoined as well
as from having to pay damages. As Smith is not entitled to
obtain a final judgment awarding him either monetary or
equitable relief against Judge Harkin, he cannot obtain
preliminary relief, which is merely a way station to final
relief. (He comes perilously close to arguing that the weaker
the case, the stronger the argument for preliminary relief.)
Nor can the absolute immunity of a judge be got round by
suing his employer (in this case the Hammond city court) on
a theory of respondeat superior, which is not a basis of
liability authorized by section 1983.
So everywhere Smith might turn, relief is blocked; and
anyway his theory of liability—that by insisting on cash
bonds Judge Harkin is arbitrarily depriving him of his li-
cense in violation of the due process clause of the Fourteenth
Amendment—has no merit even on its own grounds, that is,
even ignoring issues of immunity. Judge Harkin is not
depriving Smith of his license, but merely reducing Smith’s
income from it. A provider of services to a court has no
standing to challenge judicial rulings that reduce the de-
mand for his services and hence his income. He is injured
6 No. 04-1260
but he is not within the protected class. If a judge who is
“soft” on crime releases arrested persons on their own re-
cognizance, a bail bondsman cannot challenge the judge’s
ruling on the ground that it will reduce the bondsman’s
business. Manufacturers of shackles cannot sue when a
judge decides that criminal defendants shall not be shackled
in his courtroom. Smith could not sue the prosecutor for not
bringing enough charges for violent crime (the sort that lead
to surety bonds), or for charging too many poor defendants
on the theory that the public fisc does not pay as handsomely
as solvent defendants do. When the Federal Reserve juices
up the economy, pawnbrokers cannot head to court to stop
the undermining of their livelihoods.
As if this weren’t enough to demonstrate the frivolous
nature of this suit, Smith is claiming a violation of the
Fourteenth Amendment, which requires that he show an
entitlement that can be characterized as property or liberty
to issue surety bonds, and we saw earlier that he cannot
show that.
We add unnecessarily that Judge Harkin’s policy is not
arbitrary. The difference between cash bonds and surety
bonds is, as we mentioned, that if the defendant has a cash
bond and complies with its terms he has a shot at getting his
money back, but if he has a surety bond he doesn’t get the
premium back, typically, as in this case, 10 percent of the
face amount of the bond. Lake County Clerk’s Office v. Smith,
766 N.E.2d 707, 709-10 (Ind. 2002); Holly J. Joiner, Note,
“Private Police: Defending the Power of Professional Bail
Bondsmen,” 32 Ind. L. Rev. 1413, 1417 (1999). If the defen-
dant is a substantial flight risk, the judge, as an alternative
to increasing the amount of bail and thus the amount of a
cash bond, may require the posting of a surety bond, to get
the bondsman’s assessment of the risk (which will deter-
mine the premium) and also his aid in assuring compliance
No. 04-1260 7
with the terms of bail, since the bondsman will have to pay
if they are violated. Id. at 1422-27. But this is a judgment for
the judge to make—not the bondsman by suing the judge.
It is, moreover, a discretionary judgment, as we noted
earlier.
The denial of the motion for a preliminary injunction is
affirmed, and in view of the plainly meritless character of
the underlying suit we suggest that the district judge dismiss
it without further ado. If Smith persists in this hopeless
litigation, he—and his lawyer—are courting sanctions.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-3-04