The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This case concerns the seizure of documents at the home of Laura Elkins and John Robbins pursuant to a search warrant that authorized only a search of the home. The parties have litigated the legality of both the search and the seizure of documents since 2004, and this Court held that the search was valid, but that Plaintiffs' Fourth Amendment rights were violated due to the unreasonable seizure of documents. Trial was scheduled for April 2010 to determine whether Plaintiffs were entitled to compensatory and/or punitive damages. However, at the pretrial conference on March 8, 2010, Plaintiffs moved for entry of judgment for nominal damages against the remaining defendants (Toni Williams-Cherry, Denzil Noble, and Gregory Love) in furtherance of Plaintiffs' plan to appeal this Court's ruling that the search was valid.*fn1 Plaintiffs believe that their claim that Defendants conducted an illegal search of their home supports compensatory and punitive damages. As explained below, Plaintiffs' motion for entry of judgment will be granted in part and judgment for nominal damages will be entered against Toni Williams-Cherry and Denzil Noble.
Gregory Love will be dismissed as a defendant.
Plaintiffs obtained building permits and approvals from the D.C. Historic Preservation Office and the Building and Land Regulation Administration of the D.C. Department of Consumer and Regulatory Affairs ("DCRA") 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 a search of Plaintiffs' home in order to find evidence of illegal construction. The officers inspected the residence and took photos. Also, although the warrant did not authorize it, officials seized certain documents during the search.
In the context of proceedings on the District of Columbia's notice to Plaintiffs of proposed revocation of the building permits, Plaintiffs and the District litigated the legality of both the search and seizure before the D.C. Office of Administrative Hearings ("OAH"). On November 22, 2005, 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, citing Groh v. Ramirez, 540 U.S. 551, 559 (2004). See Pls.' Mot. for Partial Summ. J. [Dkt. # 42], Ex. 21 ("OAH Order on Mot. to Suppress") at 13-16, 21. This Court held that collateral estoppel precluded the relitigation of these issues and thus that Plaintiffs' Fourth Amendment rights were violated due to the unreasonable seizure of documents. See Elkins I,527 F. Supp. 2d at 46. This Court explained:
The collateral estoppel doctrine applies to Plaintiffs' Fourth Amendment claim because the parties have already litigated and OAH has already decided, without appeal, the question of the legality of the search of the Property and the seizure of documents. Plaintiffs contend that their Fourth Amendment right to be free from unreasonable search and seizure was violated when Defendants conducted an administrative search of their Property and seized documents. In support of their motion to suppress, Plaintiffs litigated this very issue before OAH. After an evidentiary hearing on the issue, the Hearing Officer held that the search was reasonable as it was based on probable cause, but that the seizure of documents was not reasonable. The Fourth Amendment provides "no warrants shall issue, but upon probable cause... and particularly describing the place to be searched and the persons or things to be seized." See Groh v. Ramirez, 540 U.S. 551, 557 (2004) (warrant itself must particularly describe the things to be seized). Because the warrant did not specify any documents to be seized, the seizure of the documents was outside the scope of the warrant and in violation of Plaintiffs' Fourth Amendment rights.
Defendants argue that they had probable cause to seize physical evidence that they found when searching Plaintiffs' home, citing Texas v. Brown, 460 U.S. 730, 742 (1983) (probable cause "merely requires that the facts available to the officer would warrant a [person] of reasonable caution in the belief that certain items may be... useful as evidence.") As explained above, OAH found that the District had probable cause to search the property. Further, with regard to the seizure, the critical issue was not whether there was probable cause to seize evidence. The issue was whether the warrant was properly "particularized," which it was not.
Defendants do not address Plaintiffs' claim that the seizure was invalid because the warrant was not particularized; thus, this issue is conceded. See FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997) (on summary judgment, a court may treat those arguments that the plaintiff failed to address as conceded); LCvR 7.1(b) (same)....
In sum, Defendants are correct that Plaintiffs are collaterally estopped from asserting liability based on the alleged unreasonable search, as that matter was litigated and decided in Defendants' favor. Further, Plaintiffs are correct that Defendants are estopped from contesting liability based on the unreasonable seizure, as that issue was litigated and decided in Plaintiffs' favor.
Subsequently, this Court determined that Plaintiffs are entitled to recover nominal damages for the unconstitutional seizure and at trial they might recover compensatory and/or punitive damages caused by the document seizure alone. Elkins v. District of Columbia, 610 F. Supp. 2d 52, 63-64 (D.D.C. 2009) ("Elkins II").*fn3 This Court clarified in a later opinion that "Plaintiffs may not proceed on any claim for damages caused by actions other than the seizure alone, for example, on any claim for damages caused by the search of their home including the entering of children's rooms and the opening of drawers, damages caused by the permit revocation proceeding, damages caused by the April 24, 2002 stop-work order, or damages caused by any other stop-work order." Elkins v. District of Columbia, 636 F. Supp. 29, 32 (D.D.C. 2009) ("Elkins III").*fn4
Plaintiffs sought reconsideration of both Elkins I and Elkins III, and reconsideration was denied. See Elkins v. District of Columbia, Civ. Action No. 04-480, 2010 WL 517410 (D.D.C. Feb. 12, 2010) (Elkins IV). In Elkins IV, the Plaintiffs argued that this Court should not have applied collateral estoppel in Elkins I because the underlying decision of the Hearing Officer was patently erroneous. See Winder v. Erste, 511 F. Supp. 2d 160, 176 (D.D.C. 2007) (refusing to apply collateral estoppel due to manifest error in underlying administrative proceeding), aff'd in part and rev'd in part on other grounds, 566 F.3d 209 (D.C. Cir. 2009). The Hearing Officer relied on Groh, 540 U.S. at 558, in finding that the seizure of documents was not constitutionally permissible because the seizure was not expressly authorized by the warrant. Under Groh,a search warrant's lack of particularity regarding the items to be seized caused the Supreme Court to find that the ...