IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NORTH CAROLINA

Wake Division

M. EMMET BRYANT, captain, ret., ) )

)Plaintiff, )

)vs. ) Civil Action No. 130325

)THE STATE OF NORTH CAROLINA, by )and through the Wake County )Board of Education, )

)Defendant. )

)

PLAINTIFF M. EMMET BRYANT’S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION OF RELIEF FROM

FINAL JUDGMENT OF BAIL FORFEITURE

TABLE OF CONTENTS

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TABLE OF AUTHORITIES...........................................................................................................3

STATEMENT OF THE ISSUE…...................................................................................................4

STATEMENT OF FACTS..............................................................................................................4

SUMMARY OF ARGUMENT…...................................................................................................5

ARGUMENT...................................................................................................................................5

I. M. Emmet Bryant is entitled to remittance of forfeited bail money because his due process rights were violated by the Wake County Superior Court when an order of final judgment of bail forfeiture was enforced 10 days prior to the expiration of the statute…...5

II. M. Emmet Bryant is entitled to remittance of the forfeited bail boney by public policy because when the surety expends money, time, and effort to recover the principal, some incentive and remedy must exist to ensure the return of forfeited bond money……….…..7

CONCLUSION……………………………………………………………………………….........8

CERTIFICATE OF SERVICE….....................................................................................................9

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TABLE OF AUTHORITIES

CASES:

Slaughter v. Mayor and City Council of Baltimore, 682 F.3d 317, 321 (4th Cir.2012)……………6

State v. Edwards, 172 N.C.App. 821, 828-829, 616 S.E.2d 634, 638 (2005)….............................7

State v. Escobar, 187, N.C.App. 267, 270, 652 S.E.2d 694, 697 (2007)…....................................6

State v. Fowler, 197 N.C.App.1, 20, 676 S.E.2d 523, 540 (2009)…..............................................6

State v. Locklear, 363 N.C. 438, 448-449, 681 S.E.2d 293, 302-303 (2009)………….…………..6

State v. McCarn, 151 N.C.App. 742,745, 566 S.E.2d 751, 753 (2002)…………………………....6

STATUTES:

N.C. Gen. Stat. § 15A-544.3 (2009)...............................................................................................4

N.C. Gen. Stat. § 15A-544.6 (2001)........................................................................................5, 6, 8

N.C. Gen. Stat. § 15A-544.8(b)(2)(2011)........................................................................................6

LAW REVIEW COMMENTARIES

Jonathan Drimmer, When Man Hunts Man: the Rights and Duties of Bounty Hunters in the American Criminal Justice System, 33 Hous. L. Rev. 731, 759 (1996)..........................................7

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STATEMENT OF THE ISSUES

I. Whether the plaintiff’s due process rights were violated when the court ordered the final

judgment of bail forfeiture prematurely?

II. Whether denial of the remittance of the plaintiff’s forfeited bond could incite other

sureties and runners in the country to reconsider capturing bail-jumpers?

STATEMENT OF FACTS

Plaintiff is a bail bondsman who issued a bond for the release of Rutger Batty who was

charged for felony assault and battery. Mr. Batty failed to appear at his arraignment on October

13, 2012 and pursuant to N.C. Gen. Stat. § 15A-544.3, (2009), an entry for forfeiture of bail was

ordered against the principal and the plaintiff. The plaintiff’s two runners began looking for Mr.

Batty and in January 2012, Mr. Batty’s girlfriend informed the plaintiff that Mr. Batty was

incarcerated in Texas because of a prior illegal gun possession charge.

The plaintiff informed the Wake County Sheriff’s Department of Mr. Batty’s incarceration

and the Wake County Sheriff’s Department called the Harris County Jail in Houston, Texas to

discover that Mr. Batty had been released in December 2012. After 58 days of delay, the Wake

County Sheriff’s Department informed the plaintiff of Mr. Batty’s release and one of the runners

was sent to locate Mr. Batty.

On March 2, 2013, the Wake County Superior Court ordered the final forfeiture of the

bail bond. The plaintiff’s attorney discovered on March 6, 2013 that 140 days had elapsed since

the entry of forfeiture of bail was ordered and not 150 as ordered by N.C. Gen. Stat. § 15A-544.6

(2001). The plaintiff is moving for the final judgment of bail forfeiture to be set aside as the

premature order of final bail forfeiture violated his due process rights.

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SUMMARY OF THE ARGUMENT

Plaintiff M. Emmet Bryant moves this court to grant his motion for remittance of final

judgment of bail forfeiture because Wake County Superior Court’s abuse of discretion violated

the Plaintiff’s due process rights when the Court ignored N.C. Gen. Stat. § 15A-544.6 (2001),

and ordered the final judgment of bail forfeiture against the surety and plaintiff at 140 days and

not 150.

The Plaintiff M. Emmet Bryant also moves this Court to grant his motion for remittance of

final judgment of bail forfeiture for public policy. The plaintiff did expend additional time, money,

and effort trying to locate Mr. Batty because the Wake County Sheriff Department failed to notify

the plaintiff of Mr. Batty’s release in a timely manner. The violation of the plaintiff’s constitutional

rights, and the premature order of the final judgment of bail forfeiture could mar the criminal

court system that relies heavily on sureties to ensure that bail-jumpers appear at court on time or

when captured. An unprecedented violation of a surety’s constitutional rights and irrevocable

forfeiture of bail could incite other sureties runners across the nation to reconsider capturing bail-

jumpers because additional time, money, and effort is lost. Therefore, as a matter of law and

fairness, this court should grant Mr. Bryant’s motion for remittance of the final judgment of bail

forfeiture.

ARGUMENT

I. M. Emmet Bryant is entitled to remittance of forfeited bail money because his due process rights were violated by the Wake County Superior Court when the order of final judgment of bail forfeiture was enforced 10 days prior to the expiration of the statute.

The final judgment of bail forfeiture is invalid because the court prematurely ordered the

final judgment of bail forfeiture, violating the plaintiff’s due process rights. The enforcement of

the final judgment of bail forfeiture occurs on the 150th day after the entry of forfeiture is

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ordered. N.C. Gen. Stat. § 15A-544.6 (2001). On March 2, 2013 only 140 days had passed.

When extraordinary circumstances exist, the court, in its discretion, determines if the final

judgment of forfeiture should be remitted. N.C. Gen. Stat. § 15A-544.8(b)(2)(2011). The

determination of extraordinary circumstances relies upon a heavily fact-based inquiry and is

reviewed on a case by case basis. State v. Escobar, 187, N.C.App. 267, 270, 652 S.E.2d 694, 697

(2007). The plaintiff argues that the extraordinary circumstance is the violation of his due process

rights via the court’s abuse of discretion. The touchstone of due process is the protection of the

individual against arbitrary government action, especially government action that shocks the

conscious. Slaughter v. Mayor and City Council of Baltimore, 682 F.3d 317, 321 (4th Cir. 2012).

Also an abuse of discretion results when an act is done according to the will alone and without

reason. State v. McCarn, 151 N.C.App. 742,745, 566 S.E.2d 751, 753 (2002). Such an act is

manifestly unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision. State v. Locklear, 363 N.C. 438, 448-449, 681 S.E.2d 293, 302-303 (2009).

Though the remittance of the final judgment of bail forfeiture for extraordinary cause is within the

court’s discretion, the final judgment of bail forfeiture may be reversed upon showing that the

order was so arbitrary that it could not have been the result of a reasoned decision. Escobar at

271. Had the final judgment of bail forfeiture been ordered at 150 days instead of 140, then the

court’s action would have been implemented in a fair and reasoned manner. State v. Fowler, 197

N.C.App.1, 20, 676 S.E.2d 523, 540 (2009). The final judgment of bail forfeiture should be

remitted.

II. M. Emmet Bryant is entitled to remittance of the forfeited bail money by public policy because when the surety expends money, time, and effort to recover the principal, some incentive and remedy must exist to ensure the return of forfeited bond money.

The plaintiff’s efforts to locate Mr. Batty were suboptimal because the Wake County 6

Sheriff Department did not notify the plaintiff of Mr. Batty’s release for 58 days. Before, during,

and after the notification, the plaintiff expended considerable time, money, and effort in locating

Mr. Batty. The unprecedented violation of the plaintiff’s constitutional rights, plus the irrevocable

loss of additional monies while searching for Mr. Batty could cause sureties and runners

nationwide to reconsider recapturing bail-jumpers.

The country’s crime rate already costs the nation hundreds of billions of dollars each year.

Jonathan Drimmer, When Man Hunts Man: the Rights and Duties of Bounty Hunters in the

American Criminal Justice System, 33 Hous. L. Rev. 731, 759 (1996). Because of the cost

effectiveness of the private bail system in pretrial detention, states increasingly rely on bondsmen

and runners to help relieve costs associated with incarceration. Id. at 760. Based on their expertise

and economic incentives, bounty hunters are significantly more effective at retrieving fugitives

than the police, returning 99.2% of suspects committed to the custody of bondsmen. Id. at 762.

Consider the economic consequence of the police absorbing into their daily duties the burden of

locating and capturing all of the nation’s bail-jumpers. Id.at 759-760. There must be some

continued incentive to assure sureties that a viable remedy for the return of forfeited bond money

exists if the surety expends money, time, and effort to recover the principal. State v. Edwards, 172

N.C.App. 821, 828-829, 616 S.E.2d 634, 638 (2005). Therefore, as a matter of law and fairness,

this court should grant Mr. Bryant’s motion for remittance of the final judgment of bail forfeiture.

CONCLUSION

For the reasons set forth above, Plaintiff M. Emmet Bryant respectfully requests that

remittance be granted. The Court failed to follow N.C. Gen. Stat. § 15A-544.6 (2001) and

violated the plaintiff’s due process. Furthermore, public policy demands that the plaintiff’s bail be

returned to avoid a potential chilling effect in the operation of the criminal court system.

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CERTIFICATE OF SERVICES

I hereby certify that on this 25th day of March, 2013 a true and correct copy of the foregoing PLAINTIFF M. EMMET BRYANT’s MEMORANDUM OF LAW IN SUPPORT OF REMITTANCE OF FINAL JUDGMENT OF BAIL FORFEITURE was served via U.S. mail, postage prepaid, upon Defendant’s counsel as follows:

Dated: March 25, 2013 Respectfully submitted,

By: _____El v i s H a s s

W e f t ________Elvis Haas Weft (No. 007069)Weft and Wright, P.L.L.C.11 Middle Street Raleigh, NC 27604Telephone: (919) 723-2820Facsimile: (919) 723-2825ATTORNEY FOR PLAINTIFF Capt. M. Emmet Bryant, ret.

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