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Frederick Simms v. District of Columbia

July 6, 2012


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Pending before the Court is the Motion for Preliminary Injunction of Plaintiff Frederick Simms ("Simms"). Plaintiff's car was seized by the Metropolitan Police Department ("MPD") on May 29, 2011, when he was accused of weapons violations. Plaintiff was acquitted of all charges in December 2011; nevertheless, the District of Columbia ("District") continues to maintain possession of the car in the hope of eventually getting title to it by prevailing in civil forfeiture litigation. The forfeiture proceedings were not commenced until June 1, 2012 and according to the District, could last another year, until June 2013.

In the nearly seven months following his acquittal, Mr. Simms has been unable to challenge the validity of the initial seizure and continuing retention of his vehicle prior to judgment in the forfeiture proceeding, nor will he have any opportunity to do so for the next year while those proceedings are pending. He contends that the District's failure to provide him with the opportunity for a prompt post-deprivation hearing to challenge the seizure and subsequent retention of his car, prior to judgment in his civil forfeiture case, violates his Fifth Amendment procedural due process rights. He seeks an order enjoining the MPD from holding his vehicle, pending the conclusion of the forfeiture proceedings, without providing him notice and an opportunity to be heard.

Upon consideration of the plaintiff's motion, the opposition and reply, the parties' arguments during the June 13, 2012 motions hearing, the supplemental briefs submitted by the parties both before and after the hearing, and for the reasons set forth below, the Court finds that the District's failure to provide Mr. Simms with a post-seizure hearing to challenge the deprivation of his vehicle pending the conclusion of civil forfeiture proceedings violates his constitutionally-protected due process rights. Accordingly, the plaintiff's motion for a preliminary injunction is GRANTED.


A.Statutory Background: Forfeiture Procedures in the District of Columbia Forfeiture of vehicles in the District is governed by the procedures set forth in D.C. Code § 48-905.02.*fn1 Police are authorized to seize a conveyance which, inter alia, law enforcement officials have probable cause to believe is being used to transport, possess, or conceal any firearm in violation of District law. D.C. Code § 7-2507.06a(b); § 48-905.02(d)(3)(A). Police officers need not obtain a warrant before seizing a conveyance.

After seizing a vehicle, the MPD provides notice to any person having "a right of claim to the seized property." Id. § 48-905.02(d)(3)(A). In order to assert a claim to the seized property, a person must, within thirty days from the date of receipt of notice of seizure, "file a claim with [the MPD] stating his [] interest in the property. Upon filing of a claim, the claimant shall give a bond to the District government in the penal sum of $2500 or 10% of the fair market value of the claimed property (as appraised by the Chief of the MPD), whichever is lower, but not less than $250[.]" Id. § 48-905.02(d)(3)(B). According to District Municipal Regulations, a claimant may apply for a waiver or reduction of the bond. The MPD determines whether a claimant "is financially unable to give any bond or to give a bond in the required amount." 6-A D.C.M.R. § 806.6 (1991). Neither the statute nor the regulations requires the MPD to make that determination within a specified period of time, however, nor do they provide a standard set of criteria for determining whether and to what extent a claimant is able to give a bond.*fn2

Payment of the bond does not enable property owners to have their property returned pending litigation. Instead, the District holds the property until it institutes forfeiture proceedings against the property in Superior Court. D.C. Code § 48-905.02(d)(3)(E). Although the statute provides that proceedings be instituted "promptly," id. § 48-905.02(c), there is no specified period of time in which the District must act; in Mr. Simms's case, the District initiated forfeiture proceedings over a year after the seizure, and the District admitted that the process was hastened as a direct result of the Complaint and Motion for Preliminary Injunction plaintiff filed in this Court. See, e.g., Defs.' Opp'n to Mot. for Prelim. Inj. ("Opp'n") at 3, Ex. 1, Decl. of Lt. Derek Gray ("Gray Decl.") at ¶¶ 22-25. The forfeiture proceeding is the first opportunity in which an owner of the vehicle may challenge the District's probable cause for the seizure of the vehicle or its continued custody of the vehicle. See § 48-905.02(d)(2) (property owners may not seek return of seized property through an action for replevin).*fn3

B.Factual & Procedural Background

On May 29, 2011, MPD officers seized Mr. Simms's car after they claimed to find a firearm in a bag inside the vehicle. Compl. ¶ 34. The car was taken to the MPD's impound lot in Southwest D.C. Id. Mr. Simms was charged with several criminal counts relating to the alleged possession of the firearm, found indigent, appointed counsel from the Public Defender Service, and, after a jury trial, was acquitted of all charges on December 7, 2011. Id. ¶¶ 35-37. The same day, he went to the MPD impound lot seeking return of his car, a 2007 Saturn Aura sedan. Mot. for Prelim. Inj. ("Pl.'s Mot.") at 3, n.2. A police officer informed him that he would be required to pay a bond of over $1200 in order to challenge MPD's decision to take possession of his vehicle. Compl. ¶ 38. Plaintiff independently learned that he could apply to get the bond reduced or waived; he was not informed by the District. Compl. Ex. A, Decl. of Frederick Simms ("Simms Decl.") ¶ 8. He attempted to submit the application for waiver with the MPD, but was told to get his application notarized and return with three years of tax returns. Id. He did, and submitted his application on March 19, 2012. Id., see also Opp'n, Ex. 1, Gray Decl. ¶ 19. On March 26, 2012, Lieutenant Derek Gray, the MPD's Property Clerk, reviewed the application for a waiver and reduced the bond to $800. Gray Decl. ¶ 20. Mr. Simms did not pay the $800 bond which, as described in Section I.A supra, would enable the start of adversarial forfeiture proceedings (at a time entirely within District's control) but would not permit him to seek the use of his car in the interim. Mr. Simms states that having a vehicle is central to his ability to commute to work, to perform his job, and to transport himself, his fiancee, and his 11-month-old daughter to doctors' appointments, daycare, and visits to family members. Simms Decl. ¶¶ 3-4, 10. However, he states, "I cannot afford to pay $800 to try to get my car back. All of the money I make from my wages ($12 an hour at AAA Storage, in Sterling, Virginia) goes to transportation, rent, daycare, utilities, groceries, car insurance, and the $360 a month I pay on the car loan to Andrews Federal Credit Union for a car I can't even use." Id. ¶ 9.*fn4 Because Mr. Simms did not pay the bond, the District was not obligated to commence forfeiture proceedings, and did not do so.

Plaintiff filed this action on May 1, 2012, and simultaneously filed a motion for preliminary injunction. Apparently in response to the litigation, on May 15, 2012, Lieutenant Gray waived the bond on Mr. Simms's vehicle. Opp'n at 6, see also Gray Decl. ¶ 22. As a result of the waiver of the bond, on May 15, 2012, MPD forwarded the forfeiture file to the District's Office of Attorney General. Id. ¶ 23. On May 18, 2012, the District filed a notice stating that "the civil forfeiture matter concerning the subject vehicle will be assigned to an attorney for further investigation." Defs.' Praecipe Regarding Status of the Att'y Gen.'s Decision on Civil Forfeiture. On June 1, 2012, the District commenced forfeiture proceedings in Superior Court by filing a Libel of Information for in rem civil forfeiture of Mr. Simms's car. During oral argument on the preliminary injunction motion, counsel for the District stated that unless the forfeiture case settles, it will take about a year to litigate, until June 2013.

Since the Motion for Preliminary Injunction was filed in May, the parties have completed briefing, each filed two supplemental briefs, and the Court heard oral argument on June 13, 2012. Plaintiff's motion for a preliminary injunction is now ripe for determination by the Court.


"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Because it is "an extraordinary remedy," a preliminary injunction "should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) (citations omitted).

These four factors have typically been evaluated on a "sliding scale," whereby if the movant makes an unusually strong showing on one of the factors, then he does not necessarily have to make as strong a showing on another factor. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (citing Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)). While it is unclear whether the "sliding scale" is still controlling in light of the Supreme Court's decision in Winter, the Court need not decide this issue today because plaintiff has carried the burden of persuasion as to all four factors.*fn5


Mr. Simms argues that he has satisfied all four criteria necessary to obtain a preliminary injunction, while the defendants argue that none of the criteria have been met. The Court will begin by addressing the likelihood of success on the merits.

A.Likelihood of Success on the Merits

To maintain a procedural due process claim, the plaintiff first must establish that the government deprived him of a constitutionally protected property interest, and then must establish that the government's procedures in doing so do not satisfy procedural due process. Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010).

The District does not contest the first step of the analysis, namely, that Mr. Simms's interest in having access to and use of his car is a property right protected by the Due Process Clause, and that by seizing the car, the District affected a deprivation of this property interest. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 85, 89-90 (1972) (due process protection applies to pre-judgment deprivation of household goods such as beds and stoves, even if deprivation is only temporary); see also United States v. James Daniel Good, 510 U.S. 43, 48-49 (1993) (same, real property); Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir. 1982) (due process protections apply to the temporary detention of private automobiles); Coiknos v. Dist. of Columbia, 728 F.2d 502 (D.C. Cir. 1983) (following Sutton). Accordingly, due process applies.

"Once it is determined that due process applies, the question remains what process is due." Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240 (1988) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). As a threshold matter, the Court must determine the appropriate test to apply in considering what post-seizure process is required for owners whose vehicles are seized pursuant to forfeiture laws. Mr. Simms urges the Court to follow two circuit court decisions: Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) and Smith v. City of Chicago, 524 F.3d 834 (7th Cir. 2008) (vacated as moot by Alvarez v. Smith, 130 S. Ct. 576 (2009)). Both of these decisions, in turn, rely heavily on Good, 510 U.S. 43. Defendants, for their part, contend that the appropriate test is set forth in United States v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555 (1983) and United States v. Von Neumann, 474 U.S. 242 (1986).

i. Krimstock and Smith*fn6

In Krimstock, the Second Circuit considered a forfeiture scheme under New York City law, which was very similar to the District's. Police officers in the field could seize a vehicle based on the officer's determination that probable cause existed to believe the vehicle was subject to forfeiture because it had been used as an instrumentality of crime. In Krimstock, the crime at issue was drunk driving. 306 F.3d at 45. New York City law did not provide a prompt, independent hearing for an owner to challenge the validity of the initial seizure or the City's continued custody of the vehicle. Id. Finally, although the City's law required the City to initiate a civil forfeiture proceeding within twenty-five days from an owner's demand for the vehicle, in practice the City commonly held ...

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