Appeals court: Bond isn’t lost if feds take defendant first

Published 7:58 am Wednesday, August 19, 2020

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By Gary D. Robertson, Associated Press

A North Carolina bail bond company should not lose the bond money it put up for a defendant who missed a court date because federal immigration agents had already taken him away, a state appeals court ruled Tuesday.

The unanimous opinion of the three-judge panel favored 1st Atlantic Surety Co., which had posted the $100,000 bond in April 2018 for the release of David Lemus. He faced an assault charge from an incident months before inside a state prison.

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Despite the bond, local authorities chose not to release Lemus immediately. Within 24 hours, Immigration and Customs Enforcement agents came to the Granville County jail and took him into custody. ICE told a county clerk in May that it was enforcing a removal order and deporting Lemus to Mexico, which happened later that month.

With Lemus absent from a July court hearing, a trial judge declared the bond money be forfeited. The Raleigh-based bond company challenged the decision, and in 2019 another judge refused to cancel the forfeiture. The Granville County Board of Education pushed for the forfeited funds, which the state constitution says go to public schools.

Court of Appeals Judge Richard Dietz said such a legal situation had never come before the appeals court. But he wrote it was clear the forfeiture never should have been initiated because Lemus was never actually released as described in the state’s bail laws.

“The ordinary understanding of the word release in this context is to be physically set free from custody and confinement,” Dietz wrote. He suggested that state authorities were never serious about prosecuting him, noting they did not take up ICE’s offer to return Lemus for the state charge.

A bond requires an upfront premium from defendants or their families. In this case, according to documents, the premium was $8,000.

“This was never a case in which the $100,000 secured bond served any purpose other than to exploit Lemus and his family,” Dietz wrote, adding that in these matters a bond functions “only as a tax on undocumented immigrants and their families — often among the poorest and most vulnerable people in our state.”

Appeals Judges Donna Stroud and Toby Hampson concurred in the opinion. A 3-0 decision raises the legal hurdle that must be passed over before the state Supreme Court would hear any appeal.