The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Plaintiffs in this action are Laura Elkins and John Robbins, wife and husband. They obtained building permits and approvals from the D.C. Department of Consumer and Regulatory Affairs ("DCRA") and the D.C. Historic Preservation Office ("HPO") for construction at their historic home on Capitol Hill. After construction began, city officials believed that Plaintiffs were building in violation of their permits, and they obtained a warrant to conduct an administrative search of Plaintiffs' home in order to find evidence of illegal construction. Although the warrant did not authorize it, officials seized various documents during the search. The legality of both the search and the seizure were litigated before the D.C. Office of Administrative Hearings ("OAH"), and the Hearing Officer found that while the search was valid, the seizure of documents was not constitutionally permissible because it was not expressly authorized by the search warrant. This Court held that collateral estoppel precluded the relitigation of this issue and thus that Plaintiffs' Fourth Amendment rights were violated due to the unreasonable seizure of documents. See Elkins v. District of Columbia, 527 F. Supp. 2d 36, 46- 47 (D.D.C. 2007). As a result, Plaintiffs seek damages against the District of Columbia and the individually named defendants in this matter.
Defendants move for summary judgment, asserting that (1) the District should be dismissed because the constitutional violation was not caused by any District custom or policy; (2) there is no evidence that the constitutional violation caused any actual damages; and (3) there is no evidence of willfulness or recklessness that would give rise to punitive damages. As explained below, the District of Columbia will be dismissed as a party and summary judgment will be granted in favor of Defendants on Plaintiffs' claim for damages that were not caused by the illegal seizure alone. In all other respects, Defendants' request for summary judgment will be denied.
This case arises from Plaintiffs' applications for six building permits for renovations to their home, applications they filed in 2001. Plaintiffs' home is located in the Capitol Hill Historic District, a designated historic district under the D.C. Historic Landmark and Historic District Protection Act, D.C. Law § 2-144. The permit applications were reviewed and approved by the HPO and DCRA. Plaintiffs planned to build a sloped roof over the middle and rear portions of the house, but the applicable historic preservation requirements prohibited a second story and neighbors complained about the construction. After the permits had been approved, some officials second-guessed the original approvals and sought to stop the project, asserting that Plaintiffs' construction was inconsistent with the historic character of the neighborhood.
DCRA issued various stop-work orders in 2002. Then, on March 10, 2003, the District sent Plaintiffs a letter requesting inspection of the property due to complaints of ongoing construction in violation of a stop-work order. Plaintiffs refused to consent to inspection, and the DCRA filed an application for an administrative search warrant, together with an affidavit alleging probable cause. The warrant application and affidavit alleged that:
(1) On April 24, 2002, a stop-work order was issued, pursuant to 12 D.C.M.R. § 117.1, because Plaintiffs were performing structural work without an appropriate permit in violation of the Construction Codes;
(2) On May 17, 2002, the District issued a Notice of Violation for failure to comply with the April 24 stop-work order;
(3) On November 13, 2002, a stop-work order was issued because Plaintiffs failed to comply with the May 17 notice; and
(4) On March 4, 7, and 10, 2003, DCRA inspectors visited the premises and were either denied entry or were told that no work was being performed, despite the presence of workmen, work vehicles, and construction supplies.
The affidavit concluded that the District had reason to believe that Plaintiffs were violating the Construction Codes and such violations posed an imminent threat to the health, safety, and welfare of the community. On March 26, 2003, a D.C. Superior Court judge approved the search warrant.
The warrant authorized a search of the property, but did not describe any items to be seized. The next day, the District executed the search warrant. The officials went throughout the home, opening drawers, observing, and taking photos. Officials seized documents, including a notebook belonging to Ms. Elkins that contained permit and construction records, checking statements, financial records, and construction loan documents. The seized documents included construction plans that varied from those approved by DCRA and HPO. Defs.' Mem., Ex. 5 (Maloney Dep. at 51). District officials believed that Plaintiffs were renovating their home pursuant to these unapproved plans. Id.
The District issued a notice of proposed revocation of the six building permits issued to Plaintiffs on December 17, 2003.*fn1 Plaintiffs challenged the proposed revocation, and that matter came before OAH. In the OAH proceedings, Plaintiffs moved to suppress evidence resulting from the administrative search of the property, alleging that the search was without probable cause and the seizure exceeded the scope of the authorized search.
On November 22, 2005, the Hearing Officer found that the search warrant was valid and supported by probable cause - the District had probable cause to believe that Plaintiffs were altering an historic property without proper approval and in violation of a stop-work order. Pls.' Opp'n, Ex. 7 (OAH Order on Mot. to Suppress at 13-15). However, the seizure of documents was not constitutionally reasonable because it was not expressly authorized by the search warrant and the consent and plain view exceptions to the warrant requirement did not apply. Id. at 15 & 20-21. This Court found that the parties were collaterally estopped from relitigating the issues that had been decided by the OAH. Elkins, 527 F. Supp. 2d at 46.
Thus, the Hearing Officer suppressed the illegally seized documents but not the photographs of the home or the testimony and reports of officials as to their observations of the home. OAH held evidentiary hearings, and on March 20, 2007, OAH issued a final order denying and dismissing the proposed permit revocation.*fn2 See Pls.' Opp'n, Ex. 11 (OAH Final Order). The OAH also found that the Plaintiffs were not in compliance with their permits and ordered construction to bring the property into compliance. Id. at 460.
In sum, Plaintiffs' Fourth Amendment right to be free from unreasonable seizure was violated when documents were illegally seized during a search of their home on March 27, 2003. At this juncture it has not yet been determined which, if any, Defendant may be liable for Plaintiffs' damages caused by the illegal seizure of documents, nor have the extent of Plaintiffs' damages been determined. Defendants include the District and the following individuals in their personal capacity (collectively the "Individual Defendants"): Denzil Noble, the Administrator of the DCRA Building and Land Regulation Administration ("BLRA"); J. Gregory Love, former BLRA Administrator and Mr. Noble's predecessor; David Maloney, Historic Preservation Officer; and Inspector Toni Williams-Cherry, an employee of HPO and contract worker for DCRA who was present at the March 2003 search. Defendants move for summary judgment, asserting that (1) the District should be dismissed because the constitutional violation was ...