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Case Name Bairefoot v. Beaufort PD-SC-0001
Docket / Court 9:17-cv-02759-RMG ( D.S.C. )
State/Territory South Carolina
Case Type(s) Indigent Defense
Attorney Organization ACLU Chapters (any)
Case Summary
On October 11, 2017, three indigent defendants convicted and sentenced to incarceration without the assistance of counsel filed this putative class action, in the U.S. District Court for the District of South Carolina, under 42 U.S.C. § 1983 against the City of Beaufort and the Town of Bluffton ... read more >
On October 11, 2017, three indigent defendants convicted and sentenced to incarceration without the assistance of counsel filed this putative class action, in the U.S. District Court for the District of South Carolina, under 42 U.S.C. § 1983 against the City of Beaufort and the Town of Bluffton. The plaintiffs alleged that the defendants’ policy, practice, and custom of denying counsel to indigent defendants in municipal courts violated their rights to counsel, equal protection, and procedural due process under the Sixth and Fourteenth Amendments to the Constitution. Specifically, the plaintiffs claimed that the defendants failed to contract with the Fourteenth Circuit Public Defender, Beaufort County Public Defender’s Office, or private attorneys for the provision of indigent defense in municipal courts and also failed to advise the plaintiffs of their rights to counsel. The plaintiffs, represented by the American Civil Liberties Union (both the South Carolina affiliate and the national Criminal Law Reform Project), sought monetary damages to compensate for their wrongful confinement and additional injuries, including physical pain and suffering, emotional distress, and loss of income.

In the complaint, the plaintiffs also sought class certification for all indigent individuals incarcerated in jail or prison upon conviction in Beaufort and Bluffton municipal courts without having been afforded their right to appointed counsel and advised of their right to appointed counsel, and who could not have sought habeas relief while in custody due to the brief period of actual confinement.

The case was assigned to Judge Richard Gergel.

On December 13, 2017, the defendants filed a motion to dismiss for failure to state a claim. The dismissal motion was based on three grounds: 1) the defendants, both of which are municipalities, had no authority under state law or duty under federal law to ensure that the plaintiffs were provided with counsel; 2) failure to make appropriation for appointed counsel under state law does not give rise to a federal cause of action; 3) the plaintiff’s claims were barred for lack of causation because a municipal judge was able to appoint counsel for indigent persons; and 4) the plaintiffs’ claims were barred by the principles set forth in Heck v. Humphrey, 512 U.S. 477 (1994), and the Rooker-Feldman doctrine.

On May 16, 2018, Judge Gergel denied the defendant’s motion to dismiss and ruled that: 1) the defendants were required to provide counsel for the plaintiffs pursuant to Proviso 61.12 to the South Carolina 2017-2018 Appropriations Act, requiring the defendants to provide “adequate funds for representation of indigents;” 2) defendants’ failure to provide counsel for the plaintiffs is actionable under federal law due to violation of the Sixth Amendment; 3) it was foreseeable that the defendants’ failure to provide for indigent defense would result in a violation of the Sixth Amendment despite the ability of municipal judges to provide representation, among others.

The case entered mediation, and on July 16, 2018, the Mediator (Judge Dutty) informed the court that the parties were making constructive progress in their settlement negotiations and requested a stay of the scheduling order. Judge Gergel granted the motion to stay.

On September 27, 2019, the plaintiffs filed a consent motion for settlement, to resolve the plaintiffs’ claims for relief without certification of a settlement class. The settlement agreement stipulated the following agreements among the parties:

1. Mutual recognition of principles: the defendants shall not deprive indigent people of their constitutional right to counsel.
2. Policies and practices: the defendants will contract with the 14th Circuit Public Defender’s Office to provide defense attorneys in municipal court for indigent defendants facing possible incarceration; the defendants will appropriate sufficient funding to engage the Public Defender Office for legal service to indigent defendants; waiver of the right to counsel by indigent defendants must be made voluntarily, intelligently, and with full knowledge of the consequences.
3. Publication and dissemination of procedures: the defendant will publish and disseminate all policies, procedures, and guidelines to affect this agreement to all people involved in indigent defense and the public.
4. Training: municipals courts, public defenders, police officers, and other people who may process requests for counsel shall participate in training on the issue of right to counsel.
5. Payment: the defendants will pay a one-time total of $250,000 for all damages, attorneys’ fees, and expense.
6. Term & enforcement: the defendants shall comply with the agreement for 4 years, during which time the U.S. District Court for the District of South Carolina shall retain jurisdiction over the lawsuit.

Judge Gergel granted the settlement agreement on October 7, 2019; it was to be enforced for four years, until 2023.

The case is therefore open for enforcement of the agreement.

Sichun Liu - 02/23/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Assistance of counsel (6th Amendment)
Due Process: Procedural Due Process
Equal Protection
Content of Injunction
Goals (e.g., for hiring, admissions)
Monitoring
Other requirements regarding hiring, promotion, retention
Reporting
Training
General
Access to lawyers or judicial system
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) City of Beaufort
Town of Bluffton
Plaintiff Description Indigent individuals who were incarcerated in jail or prison upon conviction in Beaufort and Bluffton municipal courts without having been afforded their right to appointed counsel and advised of their right to appointed counsel, and who could not have sought habeas relief while in custody due to the brief period of actual confinement.
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Damages
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2019 - 2023
Filed 10/11/2017
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Securing Reasonable Caseloads: Ethics and Law in Public Defense
Date: 2011
By: Norman Lefstein (Indiana University--Indianapolis Faculty)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Date: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
Date: 2009
By: Cara Drinan (Columbus School of Law, Catholic University Faculty)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

  Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Date: May 7, 2007
By: Vidhya K. Reddy (Washington University in St. Louis Law Student)
[ Detail ] [ PDF ]

Docket(s)
9:17-cv-02759 (D.S.C.)
PD-SC-0001-9000.pdf | Detail
Date: 10/07/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
PD-SC-0001-0001.pdf | Detail
Date: 10/11/2017
Source: PACER [Public Access to Court Electronic Records]
Order and Opinion [ECF# 33] (312 F.Supp.3d 503) (D.S.C.)
PD-SC-0001-0002.pdf | WESTLAW| LEXIS | Detail
Date: 05/16/2018
Source: PACER [Public Access to Court Electronic Records]
Court Order [ECF# 45] (D.S.C.)
PD-SC-0001-0003.pdf | Detail
Date: 10/07/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Gergel, Richard Mark (D.S.C.) show/hide docs
PD-SC-0001-0002 | PD-SC-0001-0003 | PD-SC-0001-9000
Plaintiff's Lawyers Andrews, Stuart M Jr, (South Carolina) show/hide docs
PD-SC-0001-0001 | PD-SC-0001-0003 | PD-SC-0001-9000
Carter, Twyla (New York) show/hide docs
PD-SC-0001-0001 | PD-SC-0001-0003 | PD-SC-0001-9000
Dunn, Susan K. (South Carolina) show/hide docs
PD-SC-0001-0001 | PD-SC-0001-0003 | PD-SC-0001-9000
Edwards, Ezekiel (New York) show/hide docs
PD-SC-0001-0001 | PD-SC-0001-0003 | PD-SC-0001-9000
Gimenez, Caroline (South Carolina) show/hide docs
PD-SC-0001-0003
Smith, Benjamin Rush (South Carolina) show/hide docs
PD-SC-0001-0001 | PD-SC-0001-0003 | PD-SC-0001-9000
Defendant's Lawyers Davidson, William Henry II (South Carolina) show/hide docs
PD-SC-0001-0003 | PD-SC-0001-9000
Woodington, Kenneth P. (South Carolina) show/hide docs
PD-SC-0001-0003 | PD-SC-0001-9000

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