Case 2:17-cv-06197-EEF-MBN Document 158 Filed 06/13/19 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE and BRIAN GISCLAIR,
on behalf of themselves and all others
similarly situated,
Plaintiffs,

Case No. 2:17-CV-06197-EEF-MBN
Judge Eldon E. Fallon
Magistrate Judge Michael B. North

v.
(Class Action)
HARRY E. CANTRELL, Magistrate Judge of
Orleans Parish Criminal District Court,
Defendant.

ORDER
Considering the Parties’ Joint Motion for Entry of Consent Judgment filed in the abovecaptioned matter;
It is hereby ORDERED that, by agreement of the Parties, Magistrate Harry E. Cantrell
will use the following protocol when determining the conditions of pretrial release for arrestees
appearing before him and that use of the following protocol complies with this Court’s August
14, 2018 Declaratory Judgment:
During preliminary instructions to all arrestees the judicial officer shall: Notify
arrestees of their constitutional right to pretrial liberty. State that if a secured money
bail is considered as a condition of release, then judicial officer will ask questions
about their finances. If the Court intends to collect this information via sworn
declaration (see step #4), then introduce the form and notify arrestees that defense
counsel will assist them in completing the form or if the form has already been
completed by the defendant in a meeting with pretrial services, inform the arrestees
that they will have an opportunity to review the completed form with defense counsel.
Representation by Counsel: All arrestees have a right to be represented by counsel
when a judicial officer determines conditions of release. If an arrestee has not been
brought to Court for a First Appearance hearing due to an apparent mental or physical

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incapacity—e.g., detoxification or placement on suicide watch—the judicial officer
will appoint counsel if the arrestee has not already retained counsel to appear on their
behalf. The judicial officer may order release of the person and set conditions of
release in the person’s absence. If setting a secured bail in an arrestee’s absence, the
judicial officer will ensure that the arrestee’s name is placed on the docket for the next
day’s First Appearance Hearing, not to exceed 24 hours from the missed appearance.
If the arrestee remains in custody at the time of the next day’s First Appearance
Hearing, the person will be brought before the judicial officer at that time, unless the
mental or physical incapacity persists and prevents the arrestee’s appearance in court.
In such instance, the arrestee’s name will again be placed on the docket for the nextin-time First Appearance Hearing, until he has regained capacity or has consented to a
waiver of his appearance. If the next day’s first appearance hearing for an initially
absent arrestee will be held before a different section of Magistrate Court, e.g., a
commissioner’s hearing on a Saturday, Sunday, or court Holiday then the arrestee
shall also be placed on Magistrate Cantrell’s next available docket for consideration
of the conditions of release imposed in the event the arrestee continues in custody.
The judicial officer will then proceed with the following steps to determine conditions
of release.
1.

Judicial officer hears argument and evidence from the government and
defense counsel concerning the charged offense(s) and the need for conditions
of pretrial release or pretrial detention, including the arrestee’s potential
danger to the community or risk of flight, and any conditions of release that
could mitigate any risk posed. The arrestee or their counsel shall have the
opportunity to confront the government’s evidence and to present their own.

2. For those arrestees who are present, first determine whether the person should
be released from custody with only the standard conditions in La. Code Crim.
Proc. art. 320(B) (2019).
• If Yes—End inquiry and order release
• If No—Continue
3. Determine whether a nonfinancial condition of release, or combination of
nonfinancial conditions, would satisfy the judicial officer’s concerns for
public safety and/or future appearance at court.
• If nonfinancial condition(s) are sufficient to satisfy judicial officer’s
concerns, order arrestee’s release on such conditions.
• If judicial officer is considering a financial condition to satisfy judicial
officer’s concerns, continue.

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4. Remind arrestee that accurate answers to the Court’s questions are important
to the Court deciding whether to require secured bail and, if so, the amount of
bail. Then inquire into:
• Income
• Assets
• Expenses
i. Rent or mortgage
ii. Utilities
iii. Dependents
iv. Medical expenses
v. Transportation costs
vi. Payments on loans, credit cards, or other debts
vii. Other expenses
• Amount of bail defendant states he can afford
In place of an oral inquiry, the arrestee’s counsel may also proffer or the
court may choose to obtain this financial information through a written form
sworn by the arrestee and entered into the record.
5.

Considering the financial information obtained in the preceding step,
determine whether a financial condition of release is a necessary component of
the individual’s conditions of release, and if so, set a financial condition. If
the person cannot pay the financial condition that the court determines
necessary, then the court must explain by clear and convincing evidence on
the record why the government has demonstrated that no other alternative
conditions of release are sufficient to reasonably guard against the person’s
flight from prosecution or to reasonably ensure the safety of the community
during the pretrial period.2

6. If the defendant objects to the bail set, ask counsel for arrestee whether the
arrestee may have additional evidence relevant to dangerousness, flight risk or
alternative conditions of release that is currently unavailable to them.
• If yes, offer arrestee more time to present his evidence by holding the
hearing open until their attorney notifies the Court that they are able to
present such evidence after the current hearing. Defense counsel shall have
72 hours within which to so notify the Court; on a showing of good cause,
the Court may allow an additional 48 hours to collect such evidence. The
arrestee’s case shall be reset for hearing no later than 48 hours after notice
is received from counsel.
2

The “clear and convincing” evidence must be individualized. The following factors, standing alone, cannot
comprise clear and convincing evidence of dangerousness or flight risk: (a) the statute for which the arrestee’s
alleged violation resulted in their arrest, (b) the location of the arrestee’s primary residence, or (c) the arrestee’s
homelessness or lack of a permanent physical address.

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•

If no, conclude the hearing.

It is ORDERED that Plaintiffs’ previously filed motion for injunctive relief, R. Doc.
138, be DISMISSED WITHOUT PREJUDICE AS MOOT.
It is further ORDERED that this case shall be administratively closed subject to the
continuing jurisdiction of this Court to enforce compliance with the terms of this Order.

New Orleans, Louisiana this 13th day of June, 2019

__________________________________
The Honorable Eldon E. Fallon
United States District Court Judge

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