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Avila v. Dailey

United States District Court, District of Columbia

March 30, 2017

ERLIN EVER MENCIAS AVILA Plaintiff,
v.
MATTHEW DAILEY, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE

         Plaintiff brings this case pursuant to 42 U.S.C. § 1983, alleging that Defendant violated his Fourth and Fifth Amendment rights. Plaintiff has moved for partial summary judgment as to liability on the Fourth Amendment claim, and Defendant cross-moved for summary judgment as to all counts. For the reasons below, Plaintiff's motion for partial summary judgment will be GRANTED, and Defendant's cross motion for summary judgment on all counts will be DENIED.

         I. BACKGROUND

         Plaintiff Erlin Ever Mencias Avila is a home improvement contractor. He was present at the scene of an altercation on September 6, 2014 between a day laborer who went by the name Luis, who had been working with Plaintiff that day, and the owner of the restaurant El Torogoz, where they went after work. The incident concluded with Plaintiff driving his white work van, with Luis as a passenger, away from the restaurant. Later that evening the police seized Plaintiff's van, and, pursuant to a search warrant, searched it days later. The police kept possession of the van for over a year, until January 13, 2016. Plaintiff concedes that the original seizure of the van was lawful, but alleges that the length of the seizure violated the Fourth Amendment, and that he was denied due process in violation of the Fifth Amendment. He seeks to hold Defendant Matthew Dailey, the Metropolitan Police Department (MPD) officer who was the lead detective on the case, liable for the violations pursuant to 42 U.S.C. § 1983.[1]

         The parties dispute the specifics of the altercation at El Torogoz, but for the most part the exact details of the altercation do not impact the claims or the appropriateness of summary judgment. While there are three video clips of different security cameras' footage of the incident, the court does not find, as Defendant asserts, that the videos “speak for themselves” or are particularly enlightening as to the specific details of what happened. Plaintiff and Luis went to El Torogoz on the evening of September 6. (Pl. Reply to Def. Suppl. Resp. to Pl. Statement of Undisputed Material Facts ¶ 5, ECF No. 36-1). The parties agree that at one point Plaintiff was inside the restaurant while Luis went outside and began to argue with the restaurant's owner and the owner's wife. (Id. ¶ 7). The video footage clearly depicts, and the parties agree, that the argument escalated and Luis threw a stanchion and a chair toward the restaurant owner and some other people, one of whom was struck by the chair. (Id. ¶ 8). Plaintiff, having left the restaurant at some point during the escalation of the argument, was “a spectator to the assault.” (Id. ¶ 7). He contends that he intervened in the situation “in an effort to stop the fight and prevent any further violence, ” while Defendant claims that Plaintiff “interven[ed] on the assailant's behalf.” (Id. ¶¶ 7, 12).

         Plaintiff states that he then “ushered Luis into his van and told him to stop fighting, ” and then got into the driver's seat, after which Luis exited the van with a metal object and scraped it across the sidewalk, creating sparks. (Id. ¶ 13). Defendant contends that the security footage shows “Plaintiff still standing next to the assailant when he scraped a metal object across the sidewalk, creating sparks.” (Id.) The court finds the video footage unclear; therefore a dispute exists about whether or not Plaintiff was standing next to Luis while Luis scraped an object on the sidewalk. Plaintiff states that he did know what the metal object was, while Defendant argues that he must have known because he was next to Luis when Luis used the object. (Id. ¶ 14). Because the footage is unclear, there is a dispute as to whether Plaintiff knew what the metal object was. Ultimately, though, that dispute is not material here.

         Defendant asserts that after Luis scraped the metal object on the sidewalk, he “opened the passenger's door to Plaintiff's van, retrieved an open case of beer, and slammed the case onto the sidewalk, ” after which he “picked up a full can from the ground and threw it back down, causing the can to burst before he climbed in the van.” (Pl. Am. Resp. to Def. Statement of Undisputed Facts ¶¶ 19-20, ECF No. 36-2). Plaintiff admits that the footage depicts a person engaging in that conduct “at the top of the frame, ” but does not concede that it was Luis. (Id.) It is undisputed that after the scraping incident and the beer incident, Plaintiff and Luis drove away in Luis's white van. (Pl. Reply to Def. Suppl. Resp. to Pl. Statement of Undisputed Material Facts ¶ 15).

         Plaintiff then parked his van near Ache Lounge on Kennedy Street NW, and entered Ache Lounge by himself. (Id. ¶¶ 17, 19-20). Defendant suggests that Plaintiff may not have “entered Ache Lounge without noticing the assailant leave or without any information about the assailant's whereabouts, ” (id.), but it is undisputed that Plaintiff went to Ache alone. His van was seized that night by MPD, under Dailey's direction as lead detective. (Id. ¶ 30). When Plaintiff left Ache lounge, he encountered and spoke with several MPD members, including Detective Dailey and Detective Xanten and Officer Jordan. (Id. ¶ 33). The MPD officers told Plaintiff that his van was going to be towed. (Id. ¶ 36). There is a dispute as to the remainder of the conversation. Defendant states that the MPD “told him that the van was towed because it was evidence in the criminal investigation, ” while Plaintiff maintains that he was not told specifically why the van was being seized or where it was being taken. (Id.). Plaintiff also maintains that the police implied that he could retrieve his van if he helped identify Luis, while Defendant disputes “that MPD Officers offered a strict quid pro quo” involving “the release of Plaintiff's van in exchange for information about Luis.” (Id. ¶ 37).

         The van, containing Plaintiff's construction tools, was towed and taken to the Fourth District, and Officer Jordan filled out a PD Form 81 indicating that the van had been seized as evidence. (Id. ¶¶ 40, 43). Detective Xanten made an entry in the Fourth District property book asking to be contacted if Plaintiff visited the station to inquire about his van and tools. (Id. ¶ 44). It is undisputed that Plaintiff was not provided any written notice regarding the van. (Id. ¶ 41).

         Five days later, on September 11, 2014, Plaintiff asked Officer Jordan about his van at the Park Road substation, and then went to the Fourth District station to be questioned by Officer Jordan and some other MPD officers. (Id. ¶¶ 49, 50). Defendant was not present. Officer Jordan stated at one point during the questioning that “any assistance you can give us to close out the case would be helpful in getting your van back.” (Jordan Dep. 62-63, ECF 24-1 Ex. F). Officer Timlick, who was involved in the interrogation, told Plaintiff: “You need your van; we need the suspect ID'ed. That's a small price to pay to get your van back to tell us who this suspect is.” (Llewellyn Decl. ¶ 16(a), ECF No. 24-1 Ex. A).[2] He also said, “The best thing you can do, sir, is help yourself out. The Metropolitan Police Department has your van, I believe, most likely, as evidence. It's a procedure that the police department has to go through to get your van back.” Officer Timlick told Plaintiff that his van could be held pending a trial, which could be a long time, and said, “if you're not trying to work with us, that might make things very complicated for you to get your van back . . . [unless] your friend is more important than your van, you need to tell us who your friend is.”[3]

         On September 23, 2014, Defendant searched the van pursuant to a search warrant that stated he had probable cause to believe the van contained evidence that would assist MPD in identifying and locating the suspect in the incident at El Torogoz. (Pl. Am. Resp. to Def. Statement of Undisputed Facts ¶¶ 55-56). The affidavit in support of the warrant stated that Defendant intended to look for “personal items of [the suspect in the assault], clothing, mail matter, identification and DNA evidence.” (Def. Ex. L). The warrant authorized a search of the entire vehicle. (Id.). Defendant removed from the van a passport, 4 beer cans, and a knife. (Pl. Am. Resp. to Def. Statement of Undisputed Facts ¶ 57).

         According to the U.S. Attorney's Office, the procedure for release of seized property is as follows: the MPD officer “makes the decision to release the seized property, ” and then presents a Form 81C to a supervisor at the USAO to sign “indicating that the USAO-DC has no objection to that release and that said property is not needed to be retained as evidence.” The USAO's determination is “handled on a case by case basis.” (Giovannelli Decl. ¶¶ 3-7). Defendant does not dispute the USAO's description of the process, only states that “MPD does not have the authority to release property until the USAO confirms that it no longer needs it for the criminal prosecution.” (Pl. Am. Resp. to Def. Statement of Undisputed Facts ¶ 70). With regard to the return of property, it is undisputed that: (1) it is MPD that initiates the process; and (2) the USAO must sign off on it before the property can be released. MPD General Order 601.1 also describes MPD procedures for dealing with property and states that, in cases where property is classified as evidence or suspected proceeds of a crime but no arrest is made, “the member first taking the property into custody shall be responsible for obtaining a PD Form 81-C from the appropriate prosecuting attorney and delivering it to the Court Property Control Office.” (Pl. Ex. I). Otherwise, “[i]n all other cases where release is required, the member handling the case in court shall be responsible for obtaining and preparing the PD Form 81-C.” (Id.).

         Plaintiff and Defendant spoke on the phone through an interpreter on March 3, 2015. (Id. ¶ 78). Part of the conversation related to whether Plaintiff knew the identity and whereabouts of Luis. (Id. ¶ 79). Dailey asked Plaintiff to come to the Fourth District station, where he was served with a subpoena to appear before a grand jury on March 13, later rescheduled to May 2015. (Id. ¶ 80). The subpoena was issued by AUSA Bruckmann, at Defendant's request. (Dailey Dep. At 96; Def. Ex. N). Plaintiff appeared on March 13[4] in accordance with the subpoena and completed an application for the appointment of counsel. (Pl. Am. Resp. to Def. Statement of Undisputed Facts ¶ 81). He was never asked to return to testify before the grand jury. (Id. ¶ 82).

         AUSA Kara Traster took over the case in May 2015. (Def. Reply to Pl. Resp. to Def. Statement of Undisputed Facts ¶ 56, ECF No. 33-1). On September 15, 2015, Defendant emailed Traster asking for updates on four cases, one of which he referred to as the “ADW Knife from the Latino restaurant.” (Def. Ex. P). She responded asking if they could speak on the phone, and wrote, “I definitely want to move forward with these cases.” (Id.).

         Plaintiff's counsel contacted Defendant in November 2015 regarding return of the van, and Defendant referred counsel to Traster. (Id. ¶ 85). On November 19, 2015, Traster informed Defendant that the case was closed and asked him to initiate the process to release the van. (Id. ¶ 86). On November 27, Defendant emailed AUSA John Giovannelli, copying Traster, stating that Plaintiff was his “only avenue at identifying the suspect in this investigation, ” that Plaintiff had “been uncooperative from the start, ” and asked if the prosecutors would obtain an arrest warrant for Plaintiff as “an accessory to the crime.” (Pl. Mot. for Part. Summ. J. Ex. O). Defendant indicated that he “had no reason to believe that Plaintiff would return to the police station after his property was released from evidence, given Plaintiff's apparent attitude toward the investigation.” (Pl. Am. Resp. to Def. Statement of Undisputed Facts ¶ 88). Traster declined to seek an arrest warrant for Plaintiff. (Id. ¶ 89). Defendant prepared form 81-C for release of the van on November 26 and sent it to the USAO, where it was signed, (id. ¶ 90), but Plaintiff did not learn that his property was available for retrieval until January 7, 2016, after this lawsuit was filed. Defense counsel ultimately informed Plaintiff's counsel that the van was available, and Plaintiff retrieved his van on January 13, 2016. (Id. ¶¶ 94, 95).

         II. LEGAL STANDARD

         Summary judgment is appropriate where there is no disputed genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The movant must rely on materials in the record to demonstrate the absence of any genuinely disputed issues of material fact. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 332. The nonmoving party, in response, must present her own evidence beyond the pleadings to demonstrate specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324. A fact is material if “a dispute over it might affect the outcome of a suit, ” and an issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)) (internal quotation marks omitted). The non-movant is “required to provide evidence that would permit a reasonable jury to find” in his or her favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (citations omitted).

         III. ANALYSIS

         Plaintiff has moved for summary judgment on his Fourth Amendment claim. Defendant has moved for summary judgment on both Plaintiff's Fourth Amendment and Fifth Amendment claims, on grounds specific to each claim and because of qualified immunity, which Defendant argues bars both claims.

         A. Fourth Amendment Claim

         Section 1983 provides a remedy where a person acting under color of state law, including District of Columbia law, deprives a person of their Constitutional rights. 42 U.S.C. § 1983. If a local law enforcement officer conducts a search or seizure that violates the Fourth Amendment, the person searched or seized unreasonably or who had their property searched or seized unreasonably may bring a section 1983 claim against the officer. See Monroe v. Pape, 365 U.S. 167, 187 (1961), overruled on other grounds by Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

         Plaintiff concedes that it was “likely reasonable for Det. Dailey to seize the van the night of the incident and hold it until a search warrant could be obtained and a search conducted, ” but argues that the subsequent duration of the continued seizure-the van was held by MPD for 15 months after it was searched-was unreasonable. (Pl. Mot. for Summ. J. at 13-14). In assessing the reasonableness of a seizure, a court “must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Johnson v. District of Columbia, 528 F.3d 969, 974 (D.C. Cir. 2008) (internal quotation marks and citation omitted). The balancing inquiry applies to the seizure of persons as well as property. A seizure that is reasonable at the outset can become unreasonable because of duration. Segura v. United States, 468 U.S. 796, 812-13 (1984) (noting that “a seizure reasonable at its inception because based upon probable cause may become unreasonable as a result of its duration or for other reasons, ” but finding no unreasonable seizure in the exclusionary rule context where law enforcement officers occupied apartment for 19 hours awaiting warrant, in part because “[t]he actual interference with [the] possessory interests in the apartment and its contents” of the tenants, who were already in police custody elsewhere, “was, thus, virtually nonexistent.”).

         Plaintiff maintains that after Defendant conducted a warranted search of the van, the continued seizure of the van and its contents became unreasonable, because “neither the van nor the tools had any evidentiary value.” (Pl. Mot. for Summ. J. at 14). Defendant responds that it was not he but the USAO who determined the length of the seizure because Defendant “was not responsible for prosecuting the underlying [assault with a deadly weapon], and thus did not have the legal authority to control the duration of the seizure.” (Opp'n at 9). He also asserts that the van continued to have evidentiary value after the date of the search, that his original search was “limited . . . to the passenger compartment, ” that he could have been subject to sanctions under D.C. Superior Court Criminal Rule 16 for not preserving and retaining the vehicle for inspection by a potential criminal defendant, and that precedent suggests that the 15-month seizure was reasonable. (Id. at 10-13).

         Defendant has not identified any legitimate basis for holding the van after he conducted the search, nor pointed to a government interest to balance against Plaintiff's interest in having and using his van. While MPD officers suggested during interrogation that they needed to hold the van until Luis was found in order to match his fingerprints with prints on the van, that explanation defies common sense. Not only could MPD have checked Luis's fingerprints against prints on the items seized from the car, but they also could have obtained prints from the van itself during the execution of the search warrant. See, e.g., United States v. Alexander, 761 F.2d 1294, 1302 (9th Cir. 1985) (finding seizure of items and dusting for fingerprints within the scope of a warrant ÔÇťauthorizing the officers to search for items ...


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