Nashville Community Bail Fund v. Howard Gentry

In Davidson County, Tennessee, hundreds of people await trial in jail because they cannot pay an upfront money bail. Under Davidson County Local Rule Governing Bail Bonds 10(B), Defendant Criminal Court Clerk Howard Gentry garnishes cash bond deposits to collect court costs, fines, and restitution. The policies created by Gentry’s office require people to remain incarcerated until their trial unless the person(s) posting cash bonds on their behalf sign a form acknowledging, in writing, notice of and agreement to garnishment of the cash bond deposit. In sum, Gentry’s office conditions pretrial release on the garnishment of cash bail deposits.

Plaintiff Nashville Community Bail Fund (NCBF), a charitable organization established to secure the release of persons who cannot afford to pay a money bond from pretrial detention, alleges the sole purpose of the garnishment policy is to maximize revenue for the court system. It alleges that Rule 10(B) and Gentry’s garnishment policy violate the Eighth and Fourteenth Amendment rights of those arrested, as well as the NCBF, which sustains its operation by using a revolving fund. The fund relies on recovering posted bond money at the conclusion of participants’ cases. Plaintiff alleges that Rule 10(B) and Gentry’s garnishment policies and practices violate the rights of arrested persons and injure the NCBF by: (1) rendering money bail unconstitutionally “excessive”; (2) improperly burdening the constitutional right to pretrial release; and (3) depriving the NCBF of property without due process. Plaintiff seeks, inter alia, a preliminary and permanent injunction halting the enforcement of Rule 10(B) and Gentry’s policies, as well as declarations that Rule 10(B) and Gentry’s policies violate: (1) the Eighth Amendment prohibition on excessive bail; (2) the Fourteenth Amendment right to due process by placing unnecessary conditions on the exercise of a protected liberty interest; and (3) the Fourteenth Amendment right to due process by depriving third parties of their property without notice and an opportunity to be heard prior to garnishment.

You can find a link to the complaint here.

On March 17, 2020 the court granted in part and denied in part NCBF’s motion for preliminary injunction, and denied Gentry’s motion to dismiss. In reaching its determinations, the court analyzed each of  the questions that follow:

1. Whether the Tennessee Attorney General should have been given notice of this suit.

The court determined that NCBF was not required to give notice because the Clerk’s Office is an “arm of the State of Tennessee, and Gentry is an officer or employee.” Rule 5.1(a) of the Federal Rules of Civil Procedure requires that a party filing papers drawing into question the constitutionality of a state statute must also promptly file notice with the state’s attorney general, unless the parties to the case already “include the state, one of its agencies, or one of its officers or employees in an official capacity.” To assess whether Genty was an “officer” or “employee” of the State in his role as Clerk of Court for the Criminal Court of the Twentieth Judicial District, the court considered and balanced: “(1) the State’s potential liability for a judgement against the entity; (2) the language by which state statutes and state courts refer to the entity and the degree of state control and veto power over the entity’s actions; (3) whether state or local officials appoint the board members of the entity; and (4) whether the entity’s functions fall within the traditional purview of state or local government.” (citing Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc). 

The court determined that the Clerk’s Office is an arm of the state because the Tennessee Supreme Court “has emphasized its inherent power to oversee the courts of the state” (citing State v. Mallard, 40 S.W.3d 473, 480 (Tenn. 2001)) and the Supreme Court’s supervisory control over inferior state courts is prescribed by statute. The court further explained that vacancies are filled by a state-level process and the Tennessee General Assembly has the power to remove judges. Therefore, because the Criminal Court — and by extension, the Clerk’s Office — is an arm of the State of Tennessee, the court held that Gentry is an officer or employee of the state and notice to the Tennessee Attorney General was not required. 

2.  Whether Gentry was served under the correct method in light of the nature of his office.

The court determined that Gentry was properly served. Pursuant to Rule 4(j)(2), “[a] state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process for such a defendant.” The court held that NCBF did not effect service properly under Rule 4(j)(2)(B) because a copy of the summons and of the complaint were not delivered to the attorney general as required by Tennessee Rule of Civil Procedure 4.04(6). However, NCBF adequately served the summons under Rule 4(j)(2)(A) because Gentry is the chief executive officer of the clerk’s office, and the summons was served in person on Cynthia Gross, attorney for Metro-Nashville Government Department of Law, who was acting as an agent of Gentry.

3. Whether Gentry is an appropriate defendant in this case, rather than some other, presumably state-level official.

The court denied Gentry’s motion to dismiss finding that in his capacity as the Clerk of Criminal Court of the Twentieth Judicial District, he is plainly an appropriate defendant.

4. Whether NCBF has established that it is entitled to a preliminary injunction.

The court granted in part and denied in part NCBF’s motion for preliminary injunction, limiting the preliminary injunction to cases in which NCBF posted or will post bond. 

First,  the court addressed NCBF’s likelihood of success on the merits. The court concluded that NCBF established at least a sufficient likelihood of success because NCBF “set forth persuasive constitutional grounds for concluding that the Clerk’s Office garnishment scheme fails constitutional muster in at least two ways, and the Clerk’s Office itself has offered no reason to disagree.” The court found that  NCBF’s argument that bail conditioned on the payment of a fine is “excessive” in violation of the Eighth Amendment is supported by the the Supreme Court”s decision in Cohen v. United States, 82 S. Ct. 526 (1962) (Douglas, J., in chambers): “[B]ail conditioned on the payment of a fine is ‘excessive’ in the sense of the Eighth Amendment because it would be used to serve a purpose for which bail was not intended.” The court also accepted NCBF’s argument that, by conditioning release on acceptance of a particular collection mechanism, Tennessee imposes conditions of release that are not justified by a sufficiently strong government purpose to survive United v. Salerno, 481, U.S. 739 (1987), which requires a heightened level of scrutiny for the review of pretrial release conditions because requiring a defendant to submit to post-conviction bail garnishment has no connection to the strong interest in ensuring a defendant’s return to court. The court concluded that “while this argument is an extension of Salerno, . . .  at this stage, that it is, at the very least, a coherent, rational, and [persuasive argument].” The court concluded that this factor favored a granting of the preliminary injunction. 

Second, the court addressed whether there would be irreparable injury to NCBF and the population it serves. 

The court explained that while “‘[m]onetary or economic harm by itself’ typically ‘does not constitute irreparable harm’” (quoting Ratcliff v. Moore, 614 F. Supp. 2d 880,898 (S.D. Ohio 2009)) (citations omitted), the harm to NCBF would be  a threat to its entire model of operation. The court additionally explained the risk of irreparable harm to the defendants whom NCBF serves is apparent because they stand to be potentially deprived of their liberty and to face overall worse outcomes in their criminal cases. The court held that in light of the concrete injuries and constitutional considerations at stake, the risk of harm to NCBF and the defendants it assists weighs strongly in favor of granting the preliminary injunction.

Third, with respect to any potential harm to the Clerk’s Office and the public interest, the court found that the risk of harm to the Clerk’s Office — no longer being able to rely on bail garnishment in order to collect other fines, fees, and costs — is minimal because some defendants may pay what they owe from their own pockets and for those that don’t, the state has a number of other collection options. (citations omitted.) Most importantly, the court noted that there is no evidence that whatever net loss in revenue may occur without garnishment will put any undue strain on the state or the Criminal Court. The court found  that there is great public interest in allowing NCBF to continue to pursue its mission. Moreover, the court noted that “as always, ‘the public interest is served by preventing the violation of constitutional rights.’” (quoting Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004)). The court therefore concluded that harm to the Clerk’s Officer and the public interest also strongly counseled in favor of  a preliminary injunction. 

For these reasons, the court granted NCBF’s  motion for a preliminary injunction. However, the court instead limited the preliminary injunction to cases in which NCBF posted or will post bond and declined to enjoin Gentry’s garnishment policies with regard to all defendants and third-party sureties. 


ACLU Foundation of Tennessee; American Civil Liberties Union Foundation; Civil Rights Corps; Choosing Justice Initiative
February 5, 2020