[Eugene Volokh] The Bail Project Isn't Liable for Crimes by People It Bailed Out

From Troutt v. The Bail Project, Inc., decided Friday by the Kentucky Court of Appeals (opinion by Judge Pamela Goodwine, joined by Judge Christopher McNeill):

On February 24, 2022, the Troutts filed a complaint against TBP alleging TBP was negligent in posting a bail bond for Michael DeWitt …, loss of consortium of their daughter, and punitive damages. The suit arose out of a fatal accident between DeWitt and the Troutts' daughter Madelynn. According to the complaint, DeWitt has a criminal history dating back to 2012. Relevant to this appeal, on February 16, 2021, DeWitt was arrested in Louisville and charged with receiving stolen property (motor vehicle), public intoxication (controlled substance), criminal trespass, disorderly conduct, resisting arrest, and assault on a police officer resulting in physical injury.

On February 24, 2021, TBP posted a bond for DeWitt, and he was released from custody. Five days later, on March 1, 2021, DeWitt, while under the influence of amphetamines and benzodiazepines, drove a stolen vehicle and crossed the centerline of Dixie Highway in Jefferson County, causing a head-on collision with a vehicle driven by Madelynn, a 17-year-old. DeWitt was allegedly traveling 58 miles per hour one second before the impact, which occurred in a 45-mile-per-hour zone. Additionally, the Troutts alleged DeWitt was driving a stolen car containing six stolen guns. Tragically, Madelynn died at the hospital about forty-five minutes after the accident.

The Troutts claimed TBP was negligent in failing "to reasonably investigate DeWitt's criminal history and propensity to re-offend before posting his bail bond thereby permitting him to be released from jail." They also alleged TBP failed to comply with duties it undertook "to ensure DeWitt attended the drug rehabilitation program and other terms and conditions of bond," and "breached other duties of care not yet known" to the Troutts and other duties that "were the proximate cause" of the accident that resulted in Madelynn's death.

No, said the majority, because posting bail for someone doesn't create a duty to control his behavior:

The mere act of paying bail for a criminal defendant does not require a surety to control the criminal defendant while out of custody on bond. It would be unsound public policy to require a bail surety to assume an affirmative duty to supervise a criminal defendant's actions.

If we accepted the Troutts' argument, then any individual, often a family member, who paid bail on behalf of a criminal defendant would be civilly liable to victims of crimes committed while the defendant was out of custody on bond. This is undoubtedly why the Supreme Court of Kentucky and the Kentucky General Assembly have never created a civil cause of action to hold a bail surety liable for a criminal defendant's actions. To do so would needlessly open the floodgates and overburden our courts' civil dockets….

Judge Annette Karem dissented, concluding that a surety should have the same duties as an employer, which might be liable for negligent hiring:

In negligent hiring/retention claims the law imposes a duty upon the employer to use reasonable care in the selection or retention of its employees…. Using [a similar] analysis, TBP owed a … duty of care to Madelyn Troutt and a finding of summary judgment for TBP by the trial court was premature.

All three judges agreed that TBP's actions weren't protected by the First Amendment, relying on The Bail Project, Inc. v. Commissioner, Indiana Department of Insurance (7th Cir. 2023), which held,

[T]he First Amendment protects conduct only when it is "inherently expressive." Rumsfeld v. FAIR (2006). To be inherently expressive, "the conduct in question must comprehensively communicate its own message without additional speech." That is, "the conduct itself must convey a message that can be readily 'understood by those who view[] it.'" Otherwise, "an apparently limitless variety of conduct [could] be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." …

The Bail Project's act of paying cash bail does not inherently express any message. On its own, paying bail for a pretrial defendant does not communicate even the most general version of The Bail Project's message – its opposition to cash bail. Without knowledge of The Bail Project's mission and repeat-player status, a reasonable observer would not understand its payment of cash bail at the clerk's office as an expression of any message about the bail system. A person could be paying bail to secure a loved one's freedom pending trial, or they could be performing a purely charitable act to help an indigent defendant. But whatever their motivation for doing so, the point is that nothing about the act itself inherently expresses any view on the merits of the bail system….

The post The Bail Project Isn't Liable for Crimes by People It Bailed Out appeared first on Reason.com.