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Brown v. District of Columbia

United States District Court, D. Columbia.

July 21, 2015

KIMBERLY KATORA BROWN, et al., Plaintiffs,

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[Copyrighted Material Omitted]

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For KIM KATORA BROWN, Plaintiff: William Charles Cole Claiborne, III, LEAD ATTORNEY, LAW OFFICES OF WILLIAM CLAIBORNE III, Washington, DC.



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CHRISTOPHER R. COOPER, United States District Judge.

Civil asset forfeiture laws--which enable law enforcement agencies to seize property they believe has been involved in criminal activity--have generated considerable controversy in recent years. Citing a dramatic rise in the value of seizures, critics assert that police departments are using the laws not to legitimately fight crime, but to generate revenue for dubious expenditures, often at the expense of innocent property owners. Defenders of the laws counter that seizures have crippled drug and other criminal organizations while the proceeds of the forfeitures enhance the ability of financially-strapped police departments to protect the public from other crimes. In either event, evidence has emerged suggesting that at least some police departments have abused the civil forfeiture process, see, e.g., Michael Sallah, Robert O'Harrow Jr., & Steven Rich, Stop and Seize, Wash. Post, (Sept. 6, 2014), , which in turn has led to public debate and legislative reforms in many jurisdictions, including the District of Columbia. The controversy has also generated lawsuits across the country challenging the constitutionality of municipal forfeiture laws. This is one such case.

The twenty-two Plaintiffs in this case are owners of cars or currency that they allege were improperly seized and retained by the District of Columbia Metropolitan Police Department (" MPD" ). The seizures were effected under a prior version of Washington D.C.'s civil forfeiture statute, D.C. Code § 48-905.02 (2012). Plaintiffs contend that various aspects of the former law, and MPD's implementation of it, violated their constitutional rights under both the Fourth and Fifth Amendments. In sixteen separate counts, they generally allege (1) that they did not receive requisite notice that their property was subject to forfeiture, either at the time of or after the seizure; (2) that the law denied them a prompt and meaningful opportunity to be heard to challenge the seizure and continued retention of their property pending the ultimate forfeiture determination; (3) that the law impermissibly conditioned a judicial hearing on posting a bond and that MPD systematically denied waivers of this bond requirement to eligible claimants; (4) that MPD allowed some claimants, but not others, to challenge forfeiture of their property through informal " secret" procedures; and (5) that MPD routinely failed to return seized property that was no longer subject to forfeiture. Plaintiffs bring their claims as a putative class action on behalf of themselves and others whom they allege have been harmed in similar ways.

The District moves to dismiss the amended complaint. Upon consideration

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of the motion, the opposition and reply, the parties' arguments during the hearing on the motion, and for the reasons set forth below, the Court finds as follows: It will dismiss Plaintiffs' Fourth Amendment claims because their challenges to the adequacy of the District's forfeiture procedures--as opposed to the propriety of the underlying seizures--are properly brought under the Fifth Amendment, not the Fourth. The Court will also dismiss Plaintiffs' claim that the Constitution requires a prompt hearing after seizures of cash, as it finds that any relief an interim hearing could provide is outweighed by the government's interest in retaining seized currency. The Court will dismiss as well Plaintiffs' challenge to the statute's lack of a requirement that MPD give notice at the time of seizure, which it finds is consistent with due process, and Plaintiffs' claim that the content of the notice MPD sent to claimants is insufficiently detailed. Finally, the Court will dismiss Plaintiffs' facial challenge to the statute's requirement that claimants post a bond--subject to an income-based waiver or reduction--in order to invoke judicial review.

The Court will deny the District's motion to dismiss in all other respects. It finds--consistent with the reasoning of the Second Circuit, the Seventh Circuit, and this court in Simms v. District of Columbia, 872 F.Supp.2d 90 (2012)--that the government must provide a prompt opportunity for owners of seized automobiles to challenge the reasonableness of the seizure and propose means to protect the government's interest short of retaining their cars until the conclusion of forfeiture proceedings. The Court further finds that while the MPD notices comport with due process, certain Plaintiffs have plausibly alleged that the District does not issue the notices (or follow up on returned notices) in a manner reasonably calculated to reach claimants. The complaint also alleges plausible due process violations resulting from MPD's purported " secret" procedures for challenging forfeitures and its retention of property that is not deemed forfeitable or needed as evidence in a criminal case. Finally, although the statute's bond requirement does not facially violate due process, certain Plaintiffs have sufficiently pled that the District denied them bond waivers and reductions in violation of their due process rights. The Court will therefore deny the District's motion to dismiss as to these claims.[1]

I. Background

A. Civil Forfeiture Procedures in the District of Columbia

In February 2015, the Council of the District of Columbia enacted sweeping changes to the city's asset forfeiture statute. See Civil Asset Forfeiture Amendment Act of 2014, 62 D.C. Reg. 1,920 (Feb. 13, 2015) (imposing stricter notice and reporting provisions; requiring the MPD to inventory and catalogue seized property; reducing the bond requirement; giving owners an opportunity to request interim release of their property; shifting the burden of proof from the owner to the government; and providing that drug possession is no longer a forfeitable offense). The new legislation addresses many of the infirmities in the prior version of the law alleged by the Plaintiffs in this case. Id. The Court must nevertheless decide the merits of this motion to dismiss, as Plaintiffs claim damages stemming from the District's past conduct under the pre-amendment asset forfeiture regime.

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The seizures and forfeitures at issue in this case were governed by former D.C. Code § 48-905.02 (2012). That statute authorized MPD to seize, without a warrant, vehicles, currency, or other property if police had probable cause to believe that the property was the proceeds of or used in a crime or infraction. Id. § § 48-905.02(a), (d)(3)(A). After a seizure, the statute required the Mayor to provide notice to any person having " a right of claim to the seized property." Id. § 48-905.02(d)(3)(A). If an owner received notice, he or she needed to file a claim and pay a bond of the lower of $2,500 or 10 percent of the appraised value of the property, but not less than $250, in order to assert an interest in the property. Id. § 48-905.02(d)(3)(B). The claimant could request a waiver or reduction of the bond requirement from MPD's Property Clerk. D.C. Mun. Regs. 6-A § 806.6-7.

If a claimant paid the bond, the District did not return the property. Rather, it initiated judicial forfeiture proceedings in the District of Columbia Superior Court. D.C. Code § 48-905.02(d)(3)(E) (2012). If a claimant did not trigger judicial proceedings by paying the bond or obtaining a waiver, the property became subject to administrative forfeiture. The statute required the Mayor to then determine whether the property was forfeitable. Id. § 48-905.02(d)(3)(C). The Mayor in turn delegated authority over those administrative forfeiture determinations to the MPD Property Clerk. D.C. Mun. Regs. 6-A § 805. The Property Clerk's decision was made ex parte ; claimants had no formal opportunity to challenge the rationale for the original seizure, assert their rights as innocent owners, or suggest reasons they should be able to recover their property. If the Property Clerk did not deem the property forfeitable or it was not needed as evidence in a criminal case, the statute required the District to return it. D.C. Code § 48-905.02(d)(3)(C) (2012).

B. Factual Allegations

As noted above, the Plaintiffs in this putative class action are owners of either vehicles or cash that was seized by the police incident to traffic stops or other arrests. While the specifics of their allegations differ, all generally claim that the District's civil forfeiture regime was designed and implemented without regard for their constitutional rights. The following allegations are illustrative of Plaintiffs' contentions.

Kelly Hughes alleges that her vehicle was seized merely because she had an " air freshener hanging from the rear view window and heavy tint." Compl. ¶ 165. Hughes says she spent hours calling the police and District agencies to recover her vehicle. Id. ¶ 171. When the police finally directed her to the impound lot, she claims the officer would not show her the copy of the seizure warrant. Id. ¶ 173. According to Hughes, she struggled to get to work and to a truck driving course in Baltimore without her car, yet still had to make all the loan and insurance payments. Id. ¶ ¶ 179-80.

Another plaintiff, Takia Jenkins, claims her Mercedes was taken from the parking lot behind her house because someone (whom the police would not identify) had allegedly driven it in an illegal manner. Id. ¶ 184. She contends the officers told her she would never recover her car, or that it would be prohibitively expensive to do so. Id. ¶ 187. Jenkins says she repeatedly phoned the police, but was shunted from one department to another without being given any helpful information. Id. ¶ 188. Jenkins was pregnant at the time and had difficulty getting around without her car. Id. ¶ 200. When the police finally released the car to her after

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the authorities declined to prosecute the alleged driver, Jenkins alleges that the windows were broken, the interior was moldy, and she had to have it towed back home from the impound lot. Id. ¶ ¶ 194, 196-97.

Some members of the purported class contend they never received notice of the seizure of their property. Id. ¶ ¶ 138, 290, 375, 407. Julius Gordon, for example, claims he gave his correct address to the MPD when he was arrested and booked after a controlled substance stop but the police never sent a notice of any kind. Id. ¶ ¶ 300, 303. Jarrett Acey says he did not receive his notice until after the statute of limitations for filing a claim had expired. Id. ¶ 324.

Many Plaintiffs describe having to undertake Herculean efforts to retrieve their property amid police resistance. Ishebekka Beckford, for example, claims she asked the police for information about her vehicle and was given a non-working number to call. Id. ¶ 134. Beckford cared for her grandmother and needed the car to take her to medical appointments. Id. ¶ 143. Beckford says she called the police and made several trips to the station before the District of Columbia Public Defender Service convinced the police to release her vehicle. Id. ¶ ¶ 134-40.

Muslimah Taylor alleges she called MPD for weeks and visited the U.S. Attorney's office in an effort to locate her seized Chevy Tahoe. Id. ¶ ¶ 271-72. A police detective purportedly refused to give her the case number because he did not want her " getting [a] stor[y] together." Id. ¶ 273. Without her car, Taylor claims she could not take her children to summer camp and struggled to get to work, shop for food, and attend job interviews. Id. ¶ ¶ 275-76.

Plaintiffs assert that none of them were given an in-person opportunity to convince the MPD Property Clerk to return their property. Id. ¶ ¶ 466-68. They further allege the police thwarted their efforts to recover their property. Several Plaintiffs contend that the police discouraged them from applying for waivers of the bond requirement. Dorian Urquart, for example, alleges that after police seized his car from a private parking lot without a warrant, he was told that his bond waiver application would be rejected and he would never recover his vehicle. Id. ¶ ¶ 248, 259. Urquart claims that the loss of his car for over a year made it significantly more difficult to transport his hemophiliac son to and from the hospital. Id. ¶ 266.

C. Plaintiffs' Legal Claims

Out of these and similar factual allegations, Plaintiffs fashion a variety of alleged constitutional violations of the Fourth and Fifth Amendments, spanning a total of sixteen separate counts. Some counts are joined by all Plaintiffs; others are asserted by a subset. Counts One and Two challenge the statute's lack of any requirement that MPD give notice to property owners--in the form of a receipt or some other notification--at the time of the seizure. Counts Three and Four challenge the absence of a prompt hearing after the seizure. Counts Five and Six allege that MPD, following a practice of insufficient notification efforts, failed to notify certain Plaintiffs of the seizure and potential forfeiture of their property. Counts Seven and Eight contend that MPD, again based on policy and practice, failed to notify certain owners that their property was deemed not forfeitable and could be retrieved. Count Nine challenges the adequacy of the written notices that are sent to property owners. Counts Ten and Eleven allege that MPD allowed some claimants, but not others, to challenge forfeiture of their property through " secret"

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procedures. Counts Twelve and Thirteen facially challenge various aspects of the administrative forfeiture process. Count Fourteen challenges the statutory requirement that claimants post a bond to obtain a judicial forfeiture hearing and alleges that MPD routinely denied bond waivers to eligible claimants. Finally, Counts Fifteen and Sixteen allege that the aggregate effect of the District's former forfeiture regime violated both the Fourth and Fifth Amendment. Plaintiffs seek judgment in their favor, declaratory judgments, injunctive relief, damages, and attorney's fees.

II. Legal Standards

The District's motion to dismiss should be granted if the complaint does not " contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly,550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard " does not require 'detailed factual allegations,' but it demands more than" bare accusations against the defendant. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). In deciding the District's Rule 12(b)(6) motion, the Court " must accept as true all of the facts in the complaint." Erickson v. Pardus,551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Twombly, 550 U.S. at 555-56). Further, any ambiguities must be viewed in a light most favorable to the Plaintiffs, giving them the benefit of every reasonable inference drawn from the facts and allegations in the complaint. In re Interbank Funding Corp. Sec. Litig.,668 F.Supp.2d 44, 47 (D.D.C. 2009) (citing Scheuer v. Rhodes,416 U.S. 232, 236, 94 S.Ct. 1683, 40 ...

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