When Fred Berry was arrested and booked into the Lucas County jail last August, he left a few hours later with a court date and $100 less in his pocket.
Now, with only a day to go before his Toledo Municipal Court trial, he continues to question why jail staff took money from him on the night he was taken in for a misdemeanor charge.
Mr. Berry, 61, of Put-in-Bay, filed a lawsuit in late December against Lucas County, saying his constitutional rights were violated when his money was taken from him. But the lawsuit, filed in U.S. District Court in Toledo, is puzzling to county officials who say the issue has already been litigated - and a settlement reached.
"I'm surprised to see another lawsuit," said Assistant County Prosecutor John Borell, who helped to negotiate a settlement when a similar lawsuit was filed in 2002 against the counties in the federal court's northern district.
"We take a booking fee," he added. "That's the cost of being processed into the jail."
People being brought to the jail are first taken through the booking process, during which they are photographed and fingerprinted and information is gathered. There, if they have money on them, a $100 booking fee is collected; the rest is put into a commissary account if they are not released on bond.
A lawsuit filed by James Koltiska in 2002 challenged jails that took the money, saying that property was being seized without a proper hearing. In a settlement that was reached several years later, it was decided that jail personnel could take booking fees from those entering the facilities with the understanding that the money would be reimbursed if the charges were dismissed or the defendant was acquitted.
This process, Mr. Borell said, allows counties to collect fees without having to use the collection process and has been employed by the jail ever since.
Lawyers Jeffrey Zilba and Corey Tomlinson, of Holland, who are representing Mr. Berry, said that, although the settlement outlined a way for the system to work, the court never specifically addressed the constitutional issues involved.
Specifically, the lawsuit alleges a violation of the Fifth and 14th Amendments. The latter guarantees the right to be free of unlawful takings of property without due process of law.
"You're settling people's constitutional rights without getting to the merits of the issues," Mr. Zilba said. "I think they are still taking people's money without due process. They never got to the merits as far as I can see."
The settlement was signed by Judge Solomon Oliver of the federal court in Cleveland. Mr. Borell said that the judge's signature means he believed the settlement did not violate future inmates' constitutional rights.
If that's the case, said Mr. Berry, he asks why he did not know what was happening when his money was taken from him.
"They didn't ask me for $100. They said this is what we charge, and I was not in the position to argue or anything like that," he said. "I was not informed of what was going on and why."
The county has long contracted with an Ohio-based company, Intellitech Corp., to keep track of its Pay for Stay program. The contract involves company employees keeping track of any money that is taken from defendants when they are booked as well as collecting from those who do not have money with them when first coming to the jail.
The company also makes refunds to those who were booked but not convicted.
A company representative could not be reached for comment.
Kevin Helminski, finance director for the sheriff's office, said the county is given 70 percent of all the money collected on site from those being booked and Intellitech is awarded the remaining 30 percent. If the collection process must be used afterward, 30 percent goes to the county and 70 percent to the company.
Between $18,000 and $25,000 is collected every month in booking fees at the jail, he said. An additional $800 to $2,000 is forwarded to the county as its share of what is collected by Intellitech, Mr. Helminski said.
And on average over a three-month period, a few thousand dollars is returned to people who were arrested, he said. From October through December, 22 people requested and received refunds, totaling $1,985, from the county.
"I don't think there are a whole lot of people out there who are not going to make that call," he said of the refund.
Mr. Helminski added that the most recent figures showed that housing one person in the jail for one day costs about $144.
"Even at $100, we're not collecting our real cost," he said.
The lawsuit, which has been assigned to Judge James Carr, asks that the court classify the case as a class action and order the jail to stop collecting the money. It asks also that money collected be returned and fair monetary relief be awarded.
Mr. Borell said the county will respond to the lawsuit.
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