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SECTION IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE THE NASHVILLE COMMUNITY BAIL FUND, SECTION PlaintiffSECTION, v. THE HONORABLE HOWARD GENTRY, in his official capacity as Criminal Court Clerk, SECTION DefendantSECTION. ) ) ) ) Case No. 3 ) ) Judge Trauger ) Magistrate Judge Holmes ) ) ) ) ) CONSENT JUDGMENT AND DECREE The parties, by the signatures of their counsel below, stipulate to the following court- ordered judgment and decree 1. The Nashville Community Bail Fund (“NCBF”) brought this action against the Honorable Howard Gentry, in his official capacity as Criminal Court Clerk (“Gentry” or the “Criminal Court Clerk”), to challenge the constitutionality of Davidson County Local Rule Governing Bail Bonds 10(B) (“Rule under the Eighth and Fourteenth Amendments to the United States Constitution. 2. The judges of the Davidson County Criminal Court enact the Local Rules, including Rule 10(B), and Gentry’s office is tasked with enforcing them. 3. Gentry has publicly voiced his disagreement with Rule 10(B). Nevertheless, because he was sued in his official capacity as Criminal Court Clerk, he defended Rule 10(B) as part of his duties as an officer of the Davidson County Criminal Court. 4. Gentry, through counsel, filed two Motions to Dismiss this action. The first Motion to Dismiss challenged whether Gentry was acting in his capacity as an official of the State of Case 3 Document 77 Filed Page 1 of 9 PageID # 1099 Tennessee or the Metropolitan Government of Nashville and Davidson County, whether service of process was sufficient, and whether Gentry was a proper defendant. (ECF No. 18.) The Court concluded that the actions challenged in this litigation implicate Gentry as an officer of the State and denied the Motion to Dismiss. (ECF Nos. 5. The Court also granted NCBF a preliminary injunction, enjoining Gentry from enforcing Rule 10(B) against NCBF during the pendency of this action. (ECF No. 23.) Gentry has fully complied with the Court’s preliminary injunction order. 6. On May 22, 2020, Gentry filed a second Motion to Dismiss. (ECF No. 47.) In it, Gentry challenged NCBF’s standing to bring this lawsuit, asserted that he is entitled to judicial immunity, and argued that NCBF fails to state a claim under any of the three counts in the Complaint. 7. On October 26, 2020, the Court issued a Memorandum Opinion (ECF No. 65) and Order (ECF No. 66), denying Gentry’s Second Motion to Dismiss. In it, the Court ruled a. NCBF has Article III standing to bring this lawsuit because it suffered an injury-in-fact caused by Rule 10(B) that is redressable by the Court. It holds its own right not to be deprived of property without appropriate procedural safeguards, as guaranteed by the Fourteenth Amendment to the U.S. Constitution. It also has “prudential” standing to bring claims because the relationship it has with its participants is close and NCBF participants are hindered from bringing the lawsuit themselves. b. Gentry is not entitled to judicial immunity because the challenged actions are clerical in nature and the parties paying bail have no expectation of interacting with a judicial officer. 2 Case 3 Document 77 Filed Page 2 of 9 PageID # 1100 c. Rule 10(B) violates the excessive bail clause of the Eighth Amendment because it requires bail posters to provide something of value in excess of the amount of bail set—their consent to potential garnishment at the conclusion of the case—which bears no relationship to the legitimate purposes of bail. d. Rule 10(B) violates the substantive due process clause of the Fourteenth Amendment because Gentry has not identified any relationship between the policy of mandatory consent to garnishment and the interests of public safety or ensuring appearance, and the policy therefore unduly infringes upon the individual right to pretrial liberty. e. NCBF plausibly pleaded a violation of the procedural due process clause of the Fourteenth Amendment because third parties are not given notice or an opportunity to be heard by a neutral decision-maker prior to garnishment under Rule 10(B). 8. Gentry acknowledges that he has no evidence to contest NCBF’s material facts, as alleged in the Complaint. Gentry further acknowledges that he has no additional factual proof that will satisfy the legal standards set forth by the Court in the Memorandum Opinion. 9. Thus, the parties agree that the Court’s ruling on Gentry’s second Motion to Dismiss is dispositive in this matter, and NCBF is entitled to judgment as a matter of law. 10. In its Order granting the preliminary injunction, the Court held that NCBF was likely to succeed on the merits and that a preliminary injunction was appropriate based on the risk of irreparable harm to NCBF and the arrestees it serves in the absence of an injunction; the low risk of harm to the Clerk’s Office if an injunction was granted; and the strong public interest in favor of an injunction. (ECF 22 at The parties hereby agree that, given the Court’s rulings 3 Case 3 Document 77 Filed Page 3 of 9 PageID # 1101 in this matter, Gentry cannot contest that without a permanent injunction, NCBF and the arrestees it serves will suffer irreparable injury for which there is no adequate remedy at law; the balance of hardships between the parties warrants an equitable remedy; and the public interest would be served by a permanent injunction. The parties thus agree that the Preliminary Injunction should become a permanent injunction, and the permanent injunction should prohibit the Criminal Court Clerk from enforcing Rule 10(B) against any third-party attempting to post a cash bail bond in Davidson County. As a result, the Criminal Court Clerk is prohibited from conditioning a thirdparty’s payment of cash bonds on any agreement acknowledging future payment of criminal debts. 11. In accordance with Raceway Properties, Inc. v. Emprise Corporation, 613 F.2d 656, 567 (6th Cir. 1980), and its progeny, Gentry explicitly preserves his right to appeal the Court’s decision on his Motions to Dismiss. This right is purely on the legal issues presented, and Gentry is prohibited from introducing any new factual evidence that he may have entered at the summary judgment stage. 12. This Consent Decree shall inure to the benefit of and be binding upon the parties and their respective heirs, successors or assigns. Additionally, this decree shall inure to the benefit of and be enforceable by any third-party attempting to post a cash bail bond in Davidson Count. 13. The parties to this Order shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this Order before bringing such matters to the Court for resolution. However, in the event that the Criminal Court Clerk acts in violation of any provision of this Order, NCBF or any affected third party,-present or futurewho alleges a violation may then move the Court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance or non-performance of 4 Case 3 Document 77 Filed Page 4 of 9 PageID # 1102 certain acts and sanctions including cost and attorney’s fees associated with any enforcement action. 14. Pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54, the Court concludes that NCBF is the prevailing party on all claims filed in this matter. In accordance with the parties’ agreement, NCBF shall file any Motion for Attorney’s Fees within 45 days of the date this Judgment is entered. Because the attorney’s fees judgment will be against the Criminal Court Clerk in his official capacity, the judgment will be a suit against the “entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citing reference omitted). Thus, there is still an outstanding question of which entity—the State of Tennessee or the Metropolitan Government of Nashville and Davidson County, Tennessee (“Metro”)—is responsible for the satisfaction of any award of attorney’s fees. If NCBF has any position on whether the State or Metro is responsible for the attorney’s fee judgment, it should so state in its Motion. 15. Gentry, Metro, and/or the State may file a response within 21 days of NCBF’s Motion. Any response shall indicate (1) whether NCBF is entitled to an award of their requested fees and (2) whether the award of attorney’s fees is collectable from Metro or the State. 16. NCBF may file an optional reply in accordance with the Local Rule 17. The Clerk is DIRECTED to send a copy of this Stipulated Judgment to Herbert Slatery III, the Attorney General and Reporter for the State of Tennessee, and Bob Cooper, the Director of Law for Metropolitan Government of Nashville and Davidson County. 18. The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58. 5 Case 3 Document 77 Filed Page 5 of 9 PageID # 1103 19. It is hereby ORDERED that the preliminary injunction ordered by this Court on March 17, 2020 (Dkt. 23) shall be permanent. The Court retains jurisdiction for the purpose of enforcing the terms of the consent decree. It is so ordered this day of _D_e_c_e_m_b_er_, 2020. Aleta A. Trauger United States District Court Judge 6 Case 3 Document 77 Filed Page 6 of 9 PageID # 1104 APPROVED FOR ENTRY s/ Angela L. Bergman Angela L. Bergman Briana T. Sprick Schuster BASS BERRY & SIMS, PLC 150 Third Avenue South, Suite 2800 Nashville, Tennessee Telephone (615) Facsimile (615) abergman@bassberry.com briana.sprick.schuster@bassberry.com Andrea Woods (pro hac vice) Brandon Buskey (pro hac vice) AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) awoods@aclu.org bbuskey@aclu.org Thomas H. Castelli Stella Yarbrough ACLU FOUNDATION OF TENNESSEE, INC. P.O. Box 120160 Nashville, Tennessee 37212 (615) Ext. 303 tcastelli@aclu-tn.org syarbrough@aclu-tn.org Dawn Deaner CHOOSING JUSTICE INITIATIVE 1623 Haynes Meade Circle Nashville, Tennessee 37207 (615) dawndeaner@cjinashville.org Charles Gerstein CIVIL RIGHTS CORPS 1601 Connecticut Avenue NW, Suite 800 Washington, D.C. 20009 (202) charlie@civilrightscorp.org Counsel for The Nashville Community Bail Fund 7 Case 3 Document 77 Filed Page 7 of 9 PageID # 1105 and s/ Ryan P. Loofbourrow Kevin C. Klein Ryan P. Loofbourrow KLEIN SOLOMON MILLS, PLLC 1322 4th Avenue North Nashville, Tennessee 37208 (615) kevin.klein@kleinpllc.com ryan.loofbourrow@kleinpllc.com Counsel for Howard Gentry 8 Case 3 Document 77 Filed Page 8 of 9 PageID # 1106 CERTIFICATE OF SERVICE I certify that a true and exact copy of the foregoing has been forwarded via the Court’s CM/ECF system on this 8th day of December, 2020, to Angela L. Bergman Briana T. Sprick Schuster BASS BERRY & SIMS, PLC 150 Third Avenue South, Suite 2800 Nashville, Tennessee Andrea Woods Brandon Buskey AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 Thomas H. Castelli Stella Yarbrough ACLU FOUNDATION OF TENNESSEE, INC. P.O. Box 120160 Nashville, Tennessee 37212 Dawn Deaner CHOOSING JUSTICE INITIATIVE 1623 Haynes Meade Circle Nashville, Tennessee 37207 Charles Gerstein CIVIL RIGHTS CORPS 1601 Connecticut Avenue NW, Suite 800 Washington, D.C. 20009 s/ Ryan P. Loofbourrow Ryan P. Loofbourrow 9 Case 3 Document 77 Filed Page 9 of 9 PageID # 1107

Summary: 


In 2020, the Nashville Community Bail Fund filed this lawsuit in the U.S. District Court for the Middle District of Tennessee. The plaintiff alleged that a local rule which required it to agree to garnishment of judgment fees from bail bonds before it could post bail for indigent arrestees violated the Eighth and Fourteenth Amendments of the Constitution and threatened its ability to operate as a non-profit. The District Judge granted a preliminary injunction in March 2020 enjoining the County Criminal Court Clerk from garnishing fees from bonds posted by the Bail Fund. In December 2020, the District Judge approved a consent decree where the Bail Fund and the County Government agreed to make the injunction permanent. The matter is ongoing as the parties are litigating over who should pay attorneys fees and how much.

