Case 1:12-cv-00701-EGS Document 1 Filed 05/01/12 Page 1 of 12

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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FREDERICK SIMMS,

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2904 7th Street, SE

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Washington, DC 20032

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Plaintiff,

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MAY- 1 2012

CClerk.
ourts

U.s. oI·stn·et &
for the District

oBfaCnkorluu~tcb~

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V.

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THE DISTRICT OF COLUMBIA,

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Office of the Attorney General

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441 4th Street, NW

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Washington, DC 20001

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CATHY LANIER, CHIEF OF POLICE, )

300 Indiana Avenue NW

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Washington, DC 20001

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VINCENT GRAY, MAYOR

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1350 Pennsylvania Avenue, NW, Suite 316 )

Washington, DC 20004

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Case: 1.12-cv-00701 Ass~gned To : Sullivan, Emmet G.
Ass1gn. Date : 5/112012 Description: TRO/PI

Defendants.

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--------------------------- )

COMPLAINT

1. Plaintiff Frederick Simms, by and through his attorneys, brings this action for

injunctive and declaratory relief against Defendants the District of Columbia, the Chief of Police

of the Metropolitan Police Department ("MPD"), and the Mayor of the District of Columbia

from their unconstitutional policy of seizing private vehicles and retaining them indefinitely

pending potential civil forfeiture proceedings, without providing property owners with a prompt,

post-deprivation hearing before a neutral arbiter.

2. Mr. Simms alleges as follows, based on personal knowledge as to matters in

which he has personal involvement and information and belief as to all other matters.

Case 1:12-cv-00701-EGS Document 1 Filed 05/01/12 Page 2 of 12
Nature of the Action 3. Mr. Simms is a D.C. resident whose car was seized by MPD officers after MPD officers claimed to find a firearm in a bag inside the vehicle on May 29, 2011. 4. Mr. Simms was acquitted by a jury of all charges arising out of the incident on December 7, 2011. When Mr. Simms sought to retrieve his vehicle at the impoundment lot, he was informed by the MPD that police intended to attempt to take legal ownership of his car through the District's civil forfeiture laws. 5. D.C.'s civil forfeiture scheme does not provide for a prompt, post-deprivation hearing in which property owners can test the validity of the District's warrantless seizure of their vehicles, and can challenge the validity of the District's continued retention of the vehicle pending a determination on the merits of any forfeiture action. In accordance with MPD and District policy, Mr. Simms has received no such hearing since the seizure and impoundment of his car. 6. Mr. Simms was instead told that in order merely to challenge the forfeiture of his car, he must pay a bond of over $1,200 dollars to the MPD. Mr. Simms applied for a waiver of the bond on account of indigence, submitting extensive financial records in support of his request. An MPD official reduced the bond to $800-an amount Mr. Simms cannot afford. 7. As a matter of District policy, payment of that sum is required before the District will even file its initial civil suit formally to forfeit the vehicle in Superior Court. Because Mr. Simms cannot pay the bond, he is afforded no opportunity to challenge the ultimate forfeiture of his car by the District. Under D.C.'s statutory civil forfeiture scheme and District policy, the MPD may sell the car at auction if the bond is not paid within 30 days of the owner receiving notice of the forfeiture.
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8. Mr. Simms has suffered and continues to suffer grave hardships flowing from the loss of his car. He is experiencing difficulty taking his 11-month-old daughter to daycare and appointments. He was forced to move away from his mother's home in D.C. in order to rent an apartment nearer to his job in Sterling, Virginia. Eventually, he moved back to D.C. and now faces a daily commute of between one-and-a-half to two hours each way. And that job, which requires him to travel to several geographic locations, is in jeopardy because his employer requires employees to have a reliable vehicle. Moreover, he is forced to continue making loan payments on a car that is not is in his possession while paying additional costs associated with obtaining alternate transportation.
9. The District's policy of seizing vehicles pursuant to D.C's civil forfeiture statute without a prompt, post-deprivation opportunity to challenge the District's initial seizure and continued retention of the vehicle pending any potential forfeiture litigation violates Mr. Simms's right to procedural due process under the Fifth Amendment to the United States Constitution.
10. The District's policy that forces indigent property owners to pay a "penal sum" before even being able to commence the legal process to challenge the police seizure of their property violates Mr. Simms's right to due process under the Fifth Amendment to the United States Constitution.
11. Mr. Simms seeks declaratory and injunctive relief. Jurisdiction and Venue
12. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fifth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
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13. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. Parties
14. Plaintiff Frederick Simms is a 26-year-old resident of the District of Columbia. 15. Mr. Simms was determined to be indigent and was represented by the Public Defender Service of the District of Columbia in his criminal matter. Mr. Simms was acquitted of all charges after a jury trial. 16. Mr. Simms is employed by AAAA Storage in Sterling, Virginia. He has worked there for nearly four years. 17. Mr. Simms has a 11-month-old daughter, whom he raises with his fiancee. 18. Defendants did not provide Mr. Simms with a prompt, post-deprivation hearing to challenge the validity of the initial seizure of Mr. Simms's car. Moreover, at no time did Mr. Simms have the opportunity to ask a neutral decisionmaker for the return of his car pending the forfeiture proceedings, and at no point was the District required to justify continued retention of the car pending any potential litigation. 19. Defendants have required that Mr. Simms pay the police an $800 bond in order to challenge the forfeiture of his car despite the fact that he cannot afford that requirement. Defendants' policy is to refrain from beginning forfeiture proceedings until an owner pays the bond, and the statute permits defendants to dispose of the vehicle if the bond is not paid within 30 days. 20. Vincent Gray is the Mayor of the District of Columbia and is responsible for implementing the policies of the District of Columbia as they relate to property seized by District police officers pursuant to the District's statutory civil forfeiture scheme. He is sued in his official capacity.
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21. Cathy Lanier is the Chief of the Metropolitan Police Department of the District of Columbia and is responsible for executing the policies of the District of Columbia as they relate to property seized by District police officers pursuant to the District's statutory civil forfeiture scheme. She is sued in her official capacity.
22. The District of Columbia is the municipal entity employing the Mayor and the Chief of the Metropolitan Police Department.
Factual Background A. Civil Forfeiture in the District of Columbia 23. Over the last several years, the MPD has seized and forfeited millions of dollars in private property. D.C. law allows the MPD to keep much of the financial proceeds of the forfeitures that its officers pursue. D.C. Code§ 48-905.02(d)(4)(B). 24. Civil forfeiture in the District of Columbia is governed by the procedures set forth in D.C. Code § 48-905.02. 1 25. Under the civil forfeiture statute, seized property "shall not be subject to replevin, but is deemed to be in the custody of the Mayor." D.C. Code§ 48-905.02(d)(2). 26. Pursuant to District policy, after the MPD seizes a piece of private property, the MPD notifies the owner of the seized property that he or she is not permitted to challenge the seizure and forfeiture in court unless the person pays to the MPD a "bond" in the amount of 10% of the value of the property (as that value is determined by the police). The bond, which the District calls a "penal sum," must be no less than $250 and no greater than $2,500. D.C. Code§ 48-905.02( d)(3)(B).
1 There are several other statutory provisions pertaining to forfeiture. Each of those employs the procedures outlined in § 48-905.02, which is part of the District's laws pertaining to "controlled substances." Forfeiture of firearms is additionally covered by D.C. Code§ 7-2507.06a.
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27. It is the policy and practice of the District of Columbia to begin no legal process until the bond is paid.
28. It is the policy and practice of the District of Columbia to make no initial showing of probable cause before a neutral and independent decisionmaker that the property is forfeitable, and to offer no justification before a neutral and independent decisionmaker for retaining possession of the vehicle during the pendency of the proceedings, notwithstanding the hardships suffered by owners deprived of their vehicles for months and the availability of alternative, less restrictive means to protect the District's interests.
29. It is the policy and practice of the Metropolitan Police Department to require claimants to pay the "penal" bond. Though a claimant may apply for waiver or reduction of the bond if he or she is indigent, it is wholly within the discretion of individual officers of the Metropolitan Police Department whether to grant a waiver or reduction in the bond. According to FOIA disclosures, the MPD does not have any standard procedures requiring officers to notify owners that the bond can be waived or reduced for the indigent. Nor does MPD have any formal standards regarding how indigence is to be determined.
30. Once the bond is paid, the District of Columbia will wait months before initiating the legal process in Superior Court to forfeit the vehicle.
31. Once the District of Columbia initiates proceedings by filing a Libel of Information seeking forfeiture, the claimant, who is not provided with an attorney, is forced to litigate the civil action on his or her own if he or she cannot afford a lawyer, including filing an answer, engaging in civil discovery and, ultimately, conducting a trial. At trial, the evidentiary burden is placed on the individual property owner to prove that his or her property is not subject to forfeiture by a preponderance of the evidence. D.C. Code§ 48-905.02(d)(3)(G).
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32. Although D.C. law provides that "[a]n innocent owner's interest in a conveyance which has been seized shall not be forfeited ...",D.C. Code§ 7-2507.06a(c); D.C. Code§ 48905.02(a)(7)(A), at no point before the civil forfeiture trial-which can take place months or years after the seizure-are owners given any opportunity to demonstrate that they are "innocent." An innocent owner in D.C. thus cannot promptly challenge the judgment of the police officer who decided on the scene that his or her car should become property of the District.
33. The MPD has a direct financial stake in erecting obstacles in front of claimants seeking return of their property. The proceeds from seizing private property go to paying the MPD's expenses, including seizure operations themselves. D.C. Code§ 48-905.02(d)(4)(B). Moreover, the leftover proceeds "shall be used, and shall remain available until expended regardless of the expiration of the fiscal year in which they were collected, to finance law enforcement activities of the Metropolitan Police Department ...." /d.
B. The Seizure of Mr. Simms's Vehicle 34. Officers seized Mr. Simms's car after they claimed to find a firearm in a bag inside the vehicle on May 29, 2011. The car was taken to the MPD's impound lot in Southwest D.C. 35. Mr. Simms was charged with one count of Unlawful Possession of a Firearm pursuant to D.C. Code § 22-4503(a)(l), one count of Carrying a Pistol Without a License pursuant to D.C. Code § 22-4504(a), one count of Possession of an Unregistered Firearm pursuant to D.C. Code§ 7-2502.01, and one count of Unlawful Possession of Ammunition pursuant to D.C. Code§ 7-2506.01(3).
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36. Mr. Simms was determined by the court to be indigent, and he was appointed a trial attorney from the Public Defender Service.
37. Mr. Simms was acquitted of all charges on December 7, 2011, after a jury trial in the Superior Court for the District of Columbia.
38. That same day, Mr. Simms went to the MPD impound lot seeking return of his car. A police officer informed Mr. Simms that he would be required to pay a bond of over $1,200 in order to challenge the MPD's decision to take possession of his car. However, payment of this bond, he was told, would not actually result in return of his vehicle because his vehicle was subject to civil forfeiture.
39. No officer informed Mr. Simms that the bond would be waived or reduced if he were indigent.
40. After finding out that he could file for a waiver of the bond on the ground of indigence, Mr. Simms submitted an application for waiver with the MPD. When he arrived at the impound lot, he was told by an MPD officer to get his application notarized and to return with three years of tax returns. Mr. Simms got the application notarized and obtained and attached copies of his tax returns from 2009, 2010, and 2011. He submitted the required documents on March 19, 2012. For about two weeks he heard nothing. Finally, he went back to the police station and was informed that his bond would be reduced to $800.
41. Because Mr. Simms cannot afford either amount, the civil proceedings to determine whether his vehicle is forfeitable under the statute cannot begin, and his vehicle is in danger of being declared forfeited. See D.C. Code§ 48-905.02(d)(3)(C).
C. Mr. Simms's Reliance on His Vehicle
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42. Mr. Simms depended on his vehicle in order to fulfill his obligations to his job and to his family. In the absence of his vehicle, he has been forced to rent cars, use public transportation, and take taxicabs in order to fulfill those obligations, at great personal difficulty and financial cost.
43. Before his car was seized, Mr. Simms lived in Southeast D.C. with his mother. The deprivation of his car forced him temporarily to relocate to Northern Virginia, in order to be closer to work. He has now had to move back to Southeast D.C. and again confronts a daily commute that involves taking a bus to the Anacostia Metro station, a train to L'Enfant Plaza, a bus to a Park & Ride in Herndon, VA near Dulles Airport, and then a ride from a coworker or a cab to his job in Sterling, VA. This commute takes a total of an hour-and-a-half to two hours each way every day and can cost a total of $40.
44. Mr. Simms is an assistant manager at AAAA Storage. His job, which requires him to travel to various AAAA Storage locations, is threatened by his lack of access to a vehicle. On days on which he is required to travel to a location not readily accessible by public transportation, he has had to rent cars to keep his job, despite the fact that the car rental fees often approximate his daily wages. Mr. Simms earns $12 per hour.
45. Mr. Simms has also experienced difficulties raising his 11-month-old child, including being able to take her to daycare every day, as she requires, being able to take her to medical and other necessary appointments, and being able to buy groceries and other necessities for the family.
D. Mr. Simms's Financial Hardship and Application for A Waiver of the Bond 46. Mr. Simms cannot afford to pay the "penal sum" of $800. Between child care costs, transportation costs, payments on his car loan, rent, and other monthly expenses, he is
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unable to afford the sum required before the District may even begin legal proceedings in his potential civil forfeiture case.
47. The decision by an MPD officer not to waive Mr. Simms's bond was not explained or justified.
E. No Avenue of Relief is Available to Mr. Simms 48. Because Mr. Simms cannot pay the bond, the District of Columbia may treat his vehicle as forfeited under the statute. 49. Mr. Simms has no other legal remedy to seek the return of his car. The asset forfeiture statute bars all actions for replevin. D.C. Code§ 48-905.02(d)(2). 50. The asset forfeiture statue provides no process for claimants seeking to challenge the seizure of their property or its continued retention, other than the proceedings instituted by the Attorney General upon the payment of the "penal sum."
Claims for Relief One: The Seizure and Continued Retention of Mr. Simms's Vehicle Without a Prompt, Post-Deprivation Hearing Before A Neutral Decision-Maker Violates Procedural Due Process. 51. Plaintiff incorporates by reference the allegations in paragraphs 1-50 above.
52. The District of Columbia has deprived Mr. Simms of procedural due process
under the Fifth Amendment to the United States Constitution by failing to provide a prompt postdeprivation hearing at which the District is required to make before a neutral decisionmaker the statutory showing of probable cause to seize the vehicle, and at which the District is required to justify the MPD' s continued retention of the vehicle pending any potential civil forfeiture proceedings.
Two: Requiring Mr. Simms, Who is Indigent, To Pay A Sum In Order to Challenge the Seizure of His Vehicle Violates Due Process.
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53. Plaintiff incorporates by reference the allegations in paragraphs 1-52 above.

54. The District of Columbia deprived Mr. Simms of his rights under the Fifth

Amendment to the United States Constitution by requiring him, an indigent claimant, to pay a

substantial "penal sum" in order to commence a challenge to the taking of his vehicle by police.

Three: The Mayor and the MPD's Financial Conflict of Interest in Asset Forfeitures Violates Due Process.

55.

Plaintiff incorporates by reference the allegations in paragraphs 1-54 above.

56.

Because the Metropolitan Police Department and the Mayor have a financial

stake in the outcome of asset forfeiture proceedings, their decisionmaking power over Mr.

Simms's indigence and bond determination, as well as their decision to seize and retain his

vehicle pending any civil forfeiture proceedings, violates due process under the Fifth

Amendment to the United States Constitution.

Request for Relief

WHEREFORE, Plaintiff requests that this Court issue a judgment against Defendants:

a. Preliminarily and permanently enjoining Defendants from retaining Mr. Simms's vehicle unless and until Defendants provide the process required by the Fifth Amendment;
b. Declaring that due process requires a vehicle owner like Mr. Simms to be provided a prompt post-seizure hearing at which the owner can contest the validity of the initial seizure and the validity of the District's continued retention of the vehicle pending any forfeiture litigation;
c. Declaring that the District's policy resulting in requiring indigent property owners to pay a "penal sum" before the District initiates any civil forfeiture proceedings violates the Fifth Amendment;
d. Declaring that Defendants' financial interest in civil forfeiture renders Defendants' decisionmaking with respect to the seizure and retention of private property constitutionally infirm under the Fifth Amendment; and
e. Granting any other relief this Court deems just and proper.

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Respectfully submitted,
J~ g_ Mioe__ TM
Sandra K. Levick (D.C. Bar No. 358630) Tara Mikkilineni (D.C. Bar No. 997284) Alec Karakatsanis (D.C. Bar No. 999294) Public Defender Service for the District of Columbia Special Litigation Division 633 Indiana Ave. N.W. Washington, D.C. 20004 (202)-628-1200 Attorneys for Plaintiff
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FREDERICK SIMMS Plaintiff,
v. DISTRICT OF COLUMBIA, et al.,
Defendants.

) ) ) ) ) Civil Action No. 12-701 (EGS) ) ) ) ) ) )

MEMORANDUM OPINION

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.
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I. BACKGROUND
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 § 48-905.02.1 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); § 48905.02(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),
1 There are several other statutory procedures pertaining to forfeiture, but each employs the procedures outlined in § 48905.02. Forfeiture of property seized in connection with alleged firearms offenses, which is at issue in this case, is covered by D.C. Code § 7-2507.06a.
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whichever is lower, but not less than $250[.]” Id. § 48905.02(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.2
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
2 If the person does not file a claim and pay the bond (or apply for a waiver of the bond) within thirty days of receipt of notice, the District, “after determining that the property is forfeitable under this chapter, shall declare the property forfeited and shall dispose of the property” by retaining it for official use or selling it. D.C. Code § 48-905.02(d)(3)(C); § 48-905.02(d)(4).
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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).3
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
3 A person with “an interest in forfeited property” may file with the Mayor a petition for remission or mitigation of the forfeiture, D.C. Code § 48-905.02(d)(3)(F), but the statute suggests, and District counsel confirmed during the motions hearing, that this administrative option is not available until after the property has been declared forfeited. Id.
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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 fiancée, 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
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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. ¶ 9.4 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
4 Property owners must continue to make any loan payments while the property is impounded; otherwise, the MPD will return the vehicle to the lender. D.C. Code § 48-905.02(a)(4)(D).
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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.
II. LEGAL STANDARD FOR INTERIM INJUNCTIVE RELIEF “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)
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(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.5
III. ANALYSIS
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
5 The District claims that Mr. Simms seeks a mandatory, as opposed to a prohibitory, injunction “that requires an even greater showing.” Opp’n at 8. Some courts have held the movant for a mandatory injunction to a higher burden: the movant must show “clearly” that he is entitled to relief or that extreme or very serious damage will result. Vietch v. Danzig, 135 F. Supp. 2d 32, 35 n.2 (D.D.C. 2001) (citations omitted). The D.C. Circuit, however, has yet to address this question. See, e.g., Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 834 n. 31 (D.C. Cir. 1984) (“In this circuit, however, no case seems to squarely require a heightened showing, and we express no view as to whether a heightened showing should in fact be required.”).
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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
10

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 Smith6
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
6 The Supreme Court granted certiorari and received briefing in Smith, however, the Court subsequently learned that “there was no longer any dispute about the ownership or possession of the relevant property.” Alvarez v. Smith, 130 S. Ct. at 580. As a result, the Court declared the case moot and vacated the lower court opinion in accordance with its standard practice. Id. at 583. Smith’s analysis and reasoning, as well as the forfeiture scheme (Chicago’s) before it, are substantially identical to Krimstock’s. See generally Smith, 524 F.3d 834.
11

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 owners’ cars for months or years before providing any hearing on the forfeiture. Id. 46. The holds on the vehicles continued long after any underlying criminal proceeding had concluded. Id. at 45-46.
Writing for the panel, then-Judge Sotomayor found unconstitutional New York City’s continued retention of private vehicles seized incident to arrests, without providing vehicle owners a prompt post-seizure hearing at which the owners could challenge the legitimacy of the initial seizure and the City’s continued retention of the vehicle pending forfeiture proceedings. The Krimstock court relied on Mathews v. Eldridge, 424 U.S. 319 (1976), and Good. Mathews holds that the Due Process Clause requires, in general, that when the government seeks to deprive an individual of property, it must provide a hearing before an impartial decision maker where the individual may be heard “at a meaningful time and in a meaningful manner.” 424 U.S. at 333 (citations omitted). In order to determine what process is required, three factors must be weighed: (1) the nature and weight of the private interest affected by the challenged official action; (2) the risk of erroneous
12

deprivation given the procedures currently employed, and the probable value of additional safeguards; and (3) the government’s interest in avoiding additional procedural safeguards. Id. at 335. In Good, the Court applied Mathews to the realm of civil forfeiture. Property owner James Daniel Good challenged the government’s attempt to seize his house, which had been used in connection with a drug offense, for civil forfeiture without prior notice and a hearing. The Supreme Court invalidated the seizure, holding that, absent exigent circumstances, “individuals must receive notice and an opportunity to be heard before the government deprives them of property.” 510 U.S. at 48 (emphasis added). When the forfeitable property is a vehicle connected with suspected criminal activity, however, the Court recognized that the property’s mobility combined with the Government’s interest in the property may create a “special need for very prompt action that justifie[s] the postponement of notice and hearing until after the seizure.” Id. at 52 (citations omitted).
The Krimstock court applied Good to just such a situation – the seizure and retention of vehicles pendente lite, until the conclusion of civil forfeiture proceedings. Noting that even “temporary deprivation of real or personal property pendente lite in a forfeiture action must satisfy the demands of” procedural due process, the Second Circuit found that the
13

government’s failure to provide a prompt post-seizure hearing to owners of impounded automobiles violated the Due Process Clause. 306 F.3d at 51. Turning to the first Mathews factor, the court found that the private interest affected, the deprivation of an automobile, is significant in light of the centrality of the automobile to modern life. Id. at 61-62. The court found the private interest at stake particularly significant given the length of time owners could be without their cars under New York City’s forfeiture scheme – months, if not years. Id. at 54-55.
The court found the second factor, the risk of erroneous deprivation, weighed narrowly in favor of the City because “the risk of erroneous seizure and retention of a vehicle is reduced in the case of a DWI owner-arrestee, because a trained police officer’s assessment of the owner-driver’s state of intoxication can typically be expected to be accurate.” Id. at 62-63. However, the court also found a significant risk of erroneous deprivation, because the statute allowed the City to take custody of automobiles suspected of use in criminal conduct without regard to whether the owner of the property was innocent of any wrongful activity. Id. at 56-57. Moreover, the City had a pecuniary interest in the outcome of the proceeding; forfeited property could, at the discretion of the police, be used or sold by the government. Id. at 63. The risk of erroneous deprivation was further enhanced because it was irreparable: an
14

owner’s loss of his car for months or years could not be recompensed if he prevailed at a later hearing. Id. at 64.
Finally, the Second Circuit found the last Mathews factor, the government’s interest in preventing the vehicles from being sold or destroyed, did not trump property owners’ due process rights because the government could protect its interests by other measures short of continued seizure. Specifically, the government could require claimants to post bonds before reclaiming their vehicles, or ask a court to issue a restraining order prohibiting the car from sale or destruction pending forfeiture proceedings. Id. at 65. The Krimstock court concluded that protection of owners’ due process rights required that owners be permitted to challenge the probable cause for the initial warrantless seizure, as well as the probable validity of the continued retention of the seized vehicle pendente lite, promptly after seizure and prior to the ultimate resolution of the forfeiture action in court. Id. at 49. The hearing would be “limited” and would not involve “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Id. at 69-70; see also Smith, 524 F.3d at 839 (“The point is to protect the rights of both an innocent owner and anyone else who has been deprived of property and . . . to see whether a bond or an order can be fashioned to allow the
15

legitimate use of the property while the forfeiture proceeding is pending.”).
ii. $8,850 and Von Neumann In $8,850 and Von Neumann, the Supreme Court considered challenges by property owners to the length of time between the seizure of their property and the forfeiture trials. Both cases involved property seized by the United States Customs Service under the same statutory scheme. Under the statute, owners of seized property had two options: petition the Secretary of the Treasury for remission or mitigation of the forfeiture within 60 days of the seizure, or challenge the seizure in a judicial forfeiture action by the government. $8850, 461 U.S. at 557; Von Neumann, 474 U.S. at 243. In $8,850, claimant Mary Josephine Vasquez’s currency was seized by Customs at the airport. Ms. Vasquez elected to file a petition, but it was delayed pending the resolution of her criminal proceedings, which included a forfeiture count. $8850, 461 U.S. at 558-60. Three months after she was acquitted of the criminal charges relating to the forfeiture, the government initiated civil forfeiture proceedings. Id. at 560. Ms. Velasquez moved to dismiss the forfeiture action, arguing that “the government’s delay in filing a civil forfeiture proceeding,” for eighteen months after the initial seizure, “violated her due process right to a hearing at a meaningful time.” Id. at 562 (citations
16

omitted). In Von Neumann, claimant John Von Neumann’s car was seized at the Canadian border. Mr. Von Neumann also elected to file a petition for remission. 474 U.S. at 245. Two weeks after filing, he posted a bond for the value of the car, which was released to him. Id. at 245-46. He then filed a supplement to the remission petition. Less than two weeks thereafter, and a total of 36 days after the initial seizure, the government reduced his penalty from $24,500 to $3,600. Id. Mr. Von Neumann challenged the seizure and remission procedure on several grounds, including that the government’s “36-day delay in acting on his remission petition denied [him] due process of law.” Id. at 247.
The Supreme Court found that neither delay violated the property owners’ constitutional rights. The Court framed the issue as the delay between seizure and the outcome of the judicial forfeiture proceeding, and found that the property owners’ due process rights were analogous to “a defendant’s right to a speedy trial once an indictment or other process has issued.” $8850, 461 U.S. at 564; Von Neumann, 474 U.S. at 247. The Court used the four factor balancing test in Barker v. Wingo, 407 U.S. 514 (1972), which provides the framework for determining when a criminal defendant’s case should be dismissed for a violation of the Sixth Amendment’s right to a speedy trial. The four factors to be considered are: length of delay,
17

reasons for delay, defendant’s assertion of his right to speedy
trial, and prejudice to the defendant. 407 U.S. at 530.7 The
Court did not consider, nor was it asked to consider, whether
process was due to protect the owners’ property rights pendente
lite, between the seizure and the conclusion of judicial
forfeiture proceedings.8
Analyzing the Barker factors, the $8850 court found that
the government had shown diligence and given reasonable
7 Under Barker, delays of less than a year are, as a general matter, constitutionally adequate, thus, the four factor test is not triggered. Dogett v. United States, 505 U.S. 647, 651 (1992).
8 Although the District has not made the argument, the Court has nevertheless considered whether Von Neumann addressed claimants’ due process rights pendente lite with the statement: “[i]mplicit in this Court’s discussion of timeliness in $8,850 was the view that the forfeiture proceeding, without more, provides the postseizure hearing required by due process to protect Von Newmann’s property interest in the car.” 474 U.S. at 249. This statement does not affect the outcome in this case for the following reasons. First, as discussed throughout, $8,850 and Von Neumann addressed when forfeiture proceedings had to be abandoned altogether for lack of due process, not what interim process must be provided pending an otherwise valid proceeding. Second, the Court in $8,850 and Von Newmann was faced with a different statutory scheme than the District’s, one which provided claimants opportunities to trigger a rapid filing of a forfeiture action. The Court in both cases relied on the availability of these opportunities, which do not exist in the District’s forfeiture scheme, in determining what process was due. Finally, both $8,850 and Von Neumann predate Good, which applied the Mathews factors to property seized pending civil forfeiture proceedings and determined that temporary deprivations of property in the forfeiture context require due process pendente lite. This Court finds Good is the most recent as well as the most closely applicable binding precedent in this case.
18

explanations for the delay, that Ms. Vasquez had not consistently asserted her rights to speedy judicial proceedings, and that the delay did not prejudice her ability to present a claim on the merits of the forfeiture. 461 U.S. at 569. The Von Neumann court found that Mr. Von Neumann’s speedy trial rights did not apply to elective remission proceedings, which, if chosen, “supply both the Government and the claimant a way to resolve [their] dispute informally rather than in judicial forfeiture proceedings.” 474 U.S. at 249. Instead, his speedy trial rights applied solely to the length of time between seizure and institution of judicial forfeiture proceedings. As the seizure of his vehicle was resolved, within 36 days, via the remission proceedings, no judicial forfeiture proceedings began and there was therefore no basis for a Barker inquiry. Id. In the alternative, the Von Neumann court applied the Barker factors and found that, under Barker, a 36-day delay between seizure and final disposition of his remission petition did not violate his speedy trial rights. Id. at 250-51. Both Courts also observed that, notwithstanding any delays in the administrative or judicial proceedings, “a claimant is able to trigger rapid filing of a forfeiture action if he desires it,” by, inter alia, filing an equitable action seeking an order compelling the return of the seized property or, if the claimant believes the initial seizure was improper, filing a motion for
19

return of the seized property under Federal Rule of Criminal
Procedure 41(e). 461 U.S. at 569; 474 U.S. at 244, n.4.
iii. Krimstock and the Mathews factors apply in this case.
Plaintiff urges the Court to apply Krimstock and the
Mathews v. Eldridge factors in this case. He argues that the
speedy trial test articulated in Barker v. Wingo and applied in
$8,850 and Von Neumann addresses a question of law which is
irrelevant to the issues in this case.
Barker and its progeny involve an individual claiming that the legal process has taken so long that the Constitution mandates that the government should no longer be able to maintain its criminal prosecution (or, in this case, civil forfeiture) at all. . . . But Mr. Simms seeks something entirely different. He seeks—recognizing that the Constitution allows civil legal proceedings to take a very long time—a prompt post-seizure hearing at which a neutral decision maker can determine whether the initial seizure was valid and whether continued retention of his vehicle pending lengthy forfeiture proceedings is justified in light of the circumstances brought to the neutral arbiter’s attention.
Reply at 2. Defendants, for their part, assert that $8,850 and
Von Neumann limit a property owner’s due process rights in a
civil forfeiture context to a Barker analysis. Opp’n at 9.
They do not, however, explain why Mathews protections do not
apply to protect the owner’s property rights pendente lite.9
9 Defendants also cite a 2011 case from the Illinois Supreme Court, People v. One 1998 GMC, 960 N.E.2d 1071 (Ill. 2011) in support of their argument that Barker, not Mathews, provides all the process that is due in civil forfeiture proceedings. The Court finds this case to be of limited value for several
20

The Court agrees with plaintiff. The question in this case
is what process is due when the government seeks to deprive a
person of a property interest pending a final decision on the
deprivation. The Supreme Court has consistently answered this
question by applying the Mathews factors, balancing the parties’
interests to determine what constitutes an individual’s
procedural due process right to be heard “at a meaningful time
and in a meaningful manner” when the government acts to deprive
a person of his property, even when the deprivation is temporary
and pending the outcome of further proceedings.10 Barker does
reasons. First and most important, by the time One 1998 GMC was decided, the civil forfeiture law that the court upheld was no longer the law; the state had amended it to provide more interim process, specifically, to “allow for a timely probable cause hearing in vehicle-forfeiture proceedings going forward.” 960 N.E.2d at 1093. Second, the trial court in that case provided a Barker remedy, namely, dismissing all of the forfeiture claims with prejudice instead of confining its relief to the interim status of the vehicles pending forfeiture proceedings. Third, the Illinois law, even pre-amendment, provided significantly more interim process for car owners to promptly challenge state retention of their vehicles than New York City’s or the District’s. See id. at 1084 (owner, on his own, may file motion challenging unlawful seizure and moving for return of property without waiting for forfeiture proceedings; owner may also file early motion to dismiss challenging State’s allegation of probable cause).
10 See, e.g., Good, 510 U.S. 43 (applying Mathews factors, concluding prior hearing is required before pre-judgment seizure of real property); Connecticut v. Doehr, 501 U.S. 1 (1991) (Mathews factors require prior hearing before pre-judgment attachment of real property); Barry v. Barchi, 443 U.S. 55 (1979) (Mathews requires prompt post-deprivation hearing when
21

not address this issue. Rather, it asks how long a government
may keep open a case before it is fundamentally unfair to allow
it to continue. The Barker test, therefore, does not apply.
iv. Under the Mathews factors, a Prompt PostDeprivation Hearing is Required
Applying the Mathews factors to the facts and circumstances
of this case, the Court concludes, for many of the reasons
stated in Krimstock and Smith, that Mr. Simms is likely to
prevail on his claim that the District violated his rights under
the Due Process Clause by failing to provide him with notice and
a prompt post-seizure opportunity to contest the validity of the
initial seizure, as well as the validity of the government’s
continuing retention of the vehicle pending judicial forfeiture
horse trainer’s license was suspended); United States v. E-Gold, 521 F.3d 411 (D.C. Cir. 2008) (Mathews requires prompt postdeprivation hearing after assets seized on a warrant pending trial on merits, where defendants assert access to assets is necessary to pay counsel of their choice); Coleman v. Watt, 40 F.3d 255, 260 (8th Cir. 1994) (prompt post-deprivation hearing required after car towed and impounded); Breath v. Cronvich, 729 F.2d 1006 (5th Cir. 1984) (prompt post-seizure hearing required after automobile is towed; hearing may be delayed only if owner is permitted to regain the use of the automobile in the interim). Even before Mathews was decided, the Supreme Court engaged in a similar balancing test to determine what interim process was due. See, e.g., Fuentes, 407 U.S. at 80-81 (hearing required before ex parte, pre-judgment seizure of household goods, finding plaintiff had an important interest in items such as a stove or a bed and the risk of unfair or mistaken deprivation of property was great); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) (considering same and requiring hearing before pre-judgment garnishment of bank account); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) (considering same factors and finding hearing is necessary before pre-judgment garnishment of wages).
22

proceedings. An individual has a strong interest in his car. Our
society is “for good or not, highly dependent on the automobile.” Smith, 524 F.3d at 838. It is often an individual’s “most valuable possession,” as well as his or her primary “mode of transportation, and for some, the means to earn a livelihood.” Krimstock, 306 F.3d at 61 (citations omitted); cf. City of Los Angeles v. David, 538 U.S. 715, 717-18 (2003) (temporary deprivation of the use of money does not give rise to a strong private interest, as opposed to the temporary deprivation of the use of an automobile, which does). In addition, the length of the deprivation increases the weight of the individual’s interest in possessing the vehicle. Krimstock at 61-62 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982)). Unlike many other jurisdictions, which provide some opportunity for owners of seized vehicles to mount interim challenges to the seizure and retention of their cars, the District provides an individual no opportunity to lessen the length of the deprivation by, for example, filing a remission petition or an action for replevin, or seeking a hardship exception to indefinite seizure.11
11 See, e.g., One 1998 GMC, 960 N.E.2d at 1084 (explaining Illinois statutory scheme enabling owners to move for return of property or file early motion to dismiss based on lack of probable cause); Civil Asset Forfeiture Reform Act (CAFRA), 18
23

The District argues that Mr. Simms cannot prevail on the
first Mathews factor because, regardless of “the generalized
interest that other people may have in the use of their own
cars,” Mr. Simms himself can “get to work and carry on his usual
activities using public transportation and other means,” Opp’n
at 12, “with little more than inconvenience,” id. at 15. The
Court is not convinced. As an initial matter, as plaintiff
correctly points out, the District’s argument “misunderstands
the level of generality at which Mathews operates.” Reply at 9.
Mathews and its progeny involve the “weighing of fiscal and
administrative burdens against the interest of a particular
category of claimants,” to determine what process is due.
Mathews, 424 U.S. at 348 (analyzing the importance of Social
Security disability benefits to all recipients as a category);
see also Good, 510 U.S. at 43 (analyzing property owners’
interest in their real property regardless of whether they lived
in the property or, like Mr. Good, rented it to tenants).
Moreover, contrary to the District’s representations, Mr. Simms
U.S.C. § 983(f) (permitting immediate release of property pending forfeiture litigation if government retention would cause serious hardship); Kan. Stat. Ann. § 60-4112 (c),(d) (interest holder can obtain a preliminary probable cause hearing within thirty five days of seizure; can also apply for interim return of property if it is necessary for the defense of the person’s criminal charge); Minn. Stat. Ann. § 609.531(5a)(a)(b) (owner may post bond to have seized property returned before forfeiture action is determined, and can gain possession in the interim by surrendering the vehicle’s certificate of title).
24

has shown that he, personally, has a strong interest in his vehicle. Plaintiff states that without his car it takes him over three hours per day to commute to and from work via public transportation, costs the equivalent of three-and-a-third hours of his wages to do so, has resulted in reprimands for tardiness which could lead to termination of his employment, and has severely impeded his ability to transport his family to necessary life events such as day care and doctors’ appointments. Simms Decl. ¶¶ 3, 4, 10.
Turning to the second factor, the Court finds there is at least some risk of erroneous deprivation when the District seizes a vehicle pursuant to a traffic stop. Moreover, the probable value of additional procedural safeguards is high.
First, there is an inherent risk of error when a seizure is based a traffic stop: namely, its validity rests solely on the arresting officer’s unreviewed probable cause determination. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 112-13 (1975) (requiring prompt probable cause determination before a neutral magistrate following a warrantless arrest, because of the risk of unfounded charges of crime when arrest is based solely on evidence interpreted “by the officer engaged in the often competitive enterprise of ferreting out crime”(citations omitted)).
25

Second, with respect to innocent owners, the danger of
erroneous deprivation is particularly high. “In the due process
context, the Supreme Court has shown special concern for the
risk of erroneous deprivation posed to innocent owners.”
Krimstock, 306 F.3d at 55-56 (citing Good, 510 U.S. at 55). The
D.C. Code provides an absolute defense to forfeiture of vehicles
for innocent owners. It provides:
(c) An innocent owner’s interest in a conveyance which has been seized shall not be forfeited under this section.
(1) A person is an innocent owner if he or she establishes, by a preponderance of the evidence:
(A) That he or she did not know that a person or persons in the conveyance was transporting, possessing, or concealing any firearm or that the conveyance was involved in or was being used in the commission of any illegal act involving any firearm; or (B) That, upon receiving knowledge of the presence of any illegal firearm in or on the conveyance or that the conveyance was being used in the commission of an illegal act involving a forfeiture, he or she took action to terminate the presence in or on the conveyance of the person, persons, or firearms.
D.C. Code § 7-2507.06a(c). In the rush of a traffic stop, it
may be particularly difficult for a police officer to accurately
assess whether a vehicle owner knew about any firearms or other
contraband concealed in the vehicle. See, e.g., D.C. Code § 48-
905.02(a)(4)(B) (no forfeiture of vehicle used to transport
drugs if the vehicle was used for this purpose without the
owner’s knowledge or consent). Under the District’s current
26

forfeiture scheme, however, innocent owners are given no opportunity to test the probable validity of the District’s continued impoundment of their vehicles after the seizure and pending forfeiture proceedings.
The District argues that there is no compelling risk of erroneous deprivation in this case because the District conducted investigations leading to Mr. Simms’s arrest, making a probable cause determination for the forfeiture, and preparing for the judicial forfeiture proceedings. Opp’n at 15. The District ignores, however, that all three of these investigations are ex parte by the District and contemplate no involvement of the owner or a neutral arbiter. See D.C. Code §§ 48-905.02(b), (c), (d)(3)(E). “Fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.” Good, 510 U.S. at 55 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 170-72 (1951) (Frankfurter, J., concurring)). Likewise, the District’s argument that Mr. Simms will ultimately lose his civil forfeiture case is unpersuasive. The strength of an individual’s case at the ultimate forfeiture proceeding does not diminish his “possessory interest post seizure and prejudgment.” Krimstock, 306 F.3d at 62. “Fair procedures are not
27

confined to the innocent. The question before us is the
legality of the seizure,” as well as the continuing interim
retention, “not the strength of the Government’s case.” Good,
510 U.S. at 62.
Finally, the risk of erroneous deprivation is cause for
heightened concern when the deprivation “cannot be recompensed
by the claimant’s prevailing in later proceedings.” Krimstock
at 63. Unlike certain deprivations such as Social Security
Disability benefits, which are not based on financial need and
for which full retroactive relief can be awarded if plaintiff
later prevails, see Mathews, 424 U.S. at 340, “an owner cannot
recover the lost use of a vehicle by prevailing in a forfeiture
proceeding. The loss is felt in the owner’s inability to use a
vehicle that continues to depreciate in value as it stands idle in the police lot,” Krimstock, 306 F.3d at 64.12
For the foregoing reasons, the Court finds that there is at
least some risk of erroneous deprivations for vehicle owners
12 Plaintiff also claims the MPD’s pecuniary interest in the outcome of the forfeiture proceedings (specifically, the fact that the MPD receives a portion of the revenue from forfeiture sales), further increases the risk of erroneous deprivation. Mot. at 18-20. In response, the District has provided information that, in Fiscal Year 2011, the net revenue MPD received from forfeiture sales amounted to less than one tenth of one percent of MPD’s budget. Supp’l Opp’n at 4 (citing Ex. 2, Decl. of Leroy Clay). At this stage of the proceedings, the Court does not rely on MPD’s pecuniary interest in finding a risk of erroneous deprivation.
28

like Mr. Simms, whose vehicles have been seized pursuant to
traffic stops and are not needed as evidence in the underlying criminal proceeding.13
These risks could be mitigated by additional procedural
safeguards. Plaintiff requests a hearing before a neutral
arbiter at which owners would be able to challenge both “the
validity of the initial seizure and the validity of the
continued impoundment of the car pending any forfeiture
litigation.” Mot. at 2. At such a hearing, the owner would be
able to, in some form or fashion, (1) obtain review of the
arresting officer’s probable cause determination; (2) if
appropriate, assert an innocent owner or other defense to
forfeiture; and (3) seek conditions from the arbiter under which
the vehicle could be returned on an interim basis pending
forfeiture proceedings while still protecting the District’s
interest in the vehicle. For example, the arbiter could order
the owner to give bond or surrender title, or could issue an
order restraining the owner from selling or disposing of the
vehicle pending the outcome of forfeiture proceedings. See,
13 The District claims, wrongly, that granting Mr. Simms’s preliminary injunction would give him “the opportunity to drive off with the evidence in the criminal proceeding.” Defs.’ Supp’l Opp’n at 3. As plaintiff makes clear, his motion addresses only “whether Mathews requires certain procedures to be followed when the District, after that evidence is no longer needed (i.e., after the criminal prosecution is over) seeks to continue depriving the owner of the property.” Pl.’s Resp. to Defs.’ Supplement at 3-4.
29

e.g., Good, 510 U.S. at 62; Smith, 524 F.3d at 836 (additional procedures such as a temporary restraining order preventing the sale or destruction of the property or bond would allow owners to retain their property pendente lite, thus mitigating the risk of erroneous deprivation).
Finally, the third Mathews factor, the District’s interest in avoiding additional procedural safeguards, also weighs in Plaintiff’s favor. The District claims it has an interest in “avoiding additional procedures that would greatly increase the cost of forfeiture,” Opp’n at 12, but it presents no evidence regarding the potential burden of alternative procedural measures to ensure that accurate determinations regarding deprivation of property are made. In supplemental filings, the District also cites its interest in removing instrumentalities of crime from the streets, thereby preventing future crime. Supp’l Opp’n at 7. This Court finds, however, that this interest is somewhat attenuated since Mr. Simms was acquitted of misconduct in the criminal proceeding, and since his misconduct has yet to be established in a civil proceeding. Until that time comes, his motor vehicle can serve many legitimate purposes. See Krimstock, 306 F.3d at 66-67 (rejecting the government’s interest in preventing offending vehicles from being used in future crime).
30

Finally, although the District does not argue that it has an interest in protecting its interest in the vehicles in the event they are ultimately subject to forfeiture, the alternative procedural safeguards outlined above (such as requiring owners to give bond to obtain interim release of their vehicles, or obtaining orders prohibiting them from selling or disposing of the vehicles pending judicial forfeiture proceedings) would protect these interests.
Based on the foregoing, the Court finds that Mr. Simms is likely to succeed on the merits of his claim: the Due Process Clause requires that a vehicle owner whose vehicle has been seized, and is not being held as evidence, be given a prompt post-seizure opportunity to test the validity of the initial seizure and of the District’s continuing retention during the pendency of forfeiture proceedings.
B. Irreparable Harm Mr. Simms argues that he will suffer irreparable harm if the Court does not provide him with his car until either the conclusion of the forfeiture proceedings or until the District can provide him with notice and an opportunity to be heard pendente lite. He alleges that as result of the loss of his car, his employment is in jeopardy, he is unable to spend time with his infant daughter, and he is unable to take her as well
31

as his fiancée to doctors’ appointments, daycare, and family gatherings. In addition, he asserts that deprivation of his due process rights alone constitutes irreparable harm. The District has argued that the loss of Mr. Simms’s automobile does not constitute irreparable harm for him specifically, as he is still able to get to work and take care of his family. The District does not address plaintiff’s argument that deprivation of his constitutional rights is per se irreparable harm.
This Circuit has set a high standard for irreparable injury. First, the injury “must be both certain and great; it must be actual and not theoretical.” Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam). The plaintiff must show “[t]he injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm.” Id. (citations, brackets, and internal quotation marks omitted). Second, the injury must be beyond remediation. Id. “It has long been established that the loss of constitutional freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’” Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
As explained above, Mr. Simms is likely to succeed on the merits of his claim that the District’s forfeiture scheme violates his Fifth Amendment right to due process by failing to
32

provide him with a prompt post-seizure hearing to challenge the validity of the seizure of his vehicle, and the District’s indefinite retention of the vehicle, pending forfeiture proceedings. This injury is certain, because it has already occurred, and is ongoing, because the District has held his car for over a year and has yet to provide plaintiff with any type of hearing. Accordingly, the Court finds this deprivation of plaintiff’s constitutional rights constitutes irreparable harm. See Gordon v. Holder, 826 F. Supp. 2d 279, 296 (D.D.C. 2011) (violation of plaintiff’s procedural due process rights creates irreparable harm); Goings v. Court Services and Offender Supervision Agency, 786 F. Supp. 2d 48, 78-79 (D.D.C. 2011) (same).
C. Balancing of the Equities and the Public Interest The plaintiff argues that the District will not be harmed by the narrow remedy he seeks, namely, permitting the plaintiff to recover his car, on condition that he maintain insurance and refrain from selling or otherwise disposing of it, pending a final decision on the merits. Reply at 15-17; Pl.’s Response to Defs.’ Supp’l Mem. at 10. Mr. Simms further argues that the public interest weighs in favor of protecting a party’s constitutional rights. Pl.’s Response to Defs.’ Supp’l Mem. at 10-15; Pl.’s Supp’l Mem. at 5-10. The District, for its part,
33

claims that granting the preliminary injunction would “call into question the entire forfeiture scheme, undermining the District’s ability to seize property for any and all purposes.” Opp’n at 15; see also Supp’l Opp’n at 7 (“The District would effectively be blocked from using civil forfeiture as a law enforcement tool, since the Court’s decision would undoubtedly be asserted by claimants in one way or another in every forfeiture unless and until there is a legislative solution along the lines of an order issued by the Court.”); Defs.’ Supp’l Filing of June 22, 2012 at 4-5 (same). Defendants also argue that requiring them to implement notice and hearing procedures would cause an administrative and financial burden. Opp’n at 15.
After careful consideration, the Court concludes that the balance of the equities and the public interest tip in favor of the plaintiff. Mr. Simms has demonstrated that the loss of his vehicle harms his ability to go about the necessities of daily life, and the District’s continued retention of his vehicle without the opportunity to be heard deprives him of his constitutionally-protected rights. “It is always in the public interest to prevent the violation of a party’s constitutional rights.” Abdah v. Bush, No. Civ. A. 04-1254, 2005 U.S. Dist. LEXIS 4942, *22 (D.D.C. Ma. 29, 2005) (quoting G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir.
34

1994)); see also Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.
2012); Freedberg v. U.S. Dep’t of Justice, 703 F. Supp. 107, 111
(D.D.C. 1988) (citation omitted).
The harms predicted by the District, on the other hand, are
overstated. Defendants claim that a preliminary injunction
would bring the entire forfeiture system to a grinding halt.
Plaintiff, however, does not seek to enjoin the statute in
general. He seeks, for the time being, only to prevent the
District from continuing to hold one vehicle in particular. The
preliminary injunction he requests is narrowly tailored to (1) a
single individual, (2) whose vehicle was seized and continues to
be held by the District pending forfeiture proceedings, (3) who
has made a claim for his vehicle in accordance with the
governing statute, and (4) whose vehicle is neither needed as
evidence in a criminal proceeding, nor subject to criminal forfeiture or any other holds.14
Defendants also claim that requiring them to implement
notice and hearing procedures would cause an administrative and
financial burden; however, the preliminary injunction does not
14 According to the District’s own numbers, provided at the Court’s request, there are, at maximum, eight to ten people per month who are similarly situated. Supp’l Opp’n at Ex. 3; Supp’l Decl. of Lt. Derek Gray at ¶ 5.b. Even if the injunction reached beyond plaintiff himself, which it does not, these numbers contradict any claim that the District’s interest in continuing to exercise its forfeiture powers – an interest the Court recognizes - will be much affected by the preliminary injunction.
35

require these measures. As Mr. Simms points out, Defendants “make no arguments as to why the process sought here would be costly, let along why those costs would overwhelm the other constitutional considerations.” Reply at 16; see also Smith, 524 F.3d at 838 (“[D]ue process always imposes some burden on a governing entity.”).
The District relies on two cases which the Court raised with the parties during briefing -- Allina Health Svcs. v. Sebelius, 756 F. Supp. 2d 61 (D.D.C. 2010) and Goings v. Court Services and Offender Supervision Agency for the Dist. of Columbia, 786 F. Supp. 2d 48 (D.D.C. 2011) –- in support of its public interest argument. Both are distinguishable. In Allina, plaintiff hospitals asked the court to grant a preliminary injunction which would have required the Department of Health and Human Services to create a separate method of calculating Medicare reimbursement for them and to change the government’s payment processing system for plaintiff hospitals accordingly. As Judge Collyer correctly noted, this would create a tremendous administrative burden for the government at the preliminary injunction stage. She found that imposing this “disruptive remedy” would not be in the public interest, particularly since the D.C. Circuit was in the process of deciding another case on precisely the same grounds, which would control the outcome of the case before her and potentially create competing,
36

inconsistent reimbursement requirements. 756 F. Supp. 2d at 7071. In this case, unlike Allina, the preliminary injunction does not force the defendants to craft a new procedure. Nor, as far as the Court is aware, are there any pending cases which would control the outcome of this one.
Goings is likewise distinguishable. Mr. Goings, a convicted sex-offender who was on probation and who was transferred from Florida to the District through an interstate compact, claimed certain conditions of probation were imposed on him in the District without due process, and sought to enjoin the conditions. While Judge Howell found plaintiff was likely to succeed on the merits, she found that the preliminary injunction was not in the public interest because the Court had no information on how conditions of probation were imposed either in the District or in other states whose probationers were transferred throughout the country under the interstate compact. Accordingly, given the possibility that an injunction would cast doubt “on non-judicial modifications of probation conditions placed upon offenders transferred under [the interstate compact] across the country,” and in light of “the current incomplete record before the Court and the lack of any constructive input from the parties about the scope or impact” of a preliminary injunction, Judge Howell declined to grant plaintiff’s request. 786 F. Supp. 2d at 79-80. In this case,
37

on the other hand, no laws beyond the District’s forfeiture scheme are implicated and no other states’ processes are at issue. Moreover, the Court has before it precise information, provided by the District, about the number of people similarly situated to Mr. Simms. See supra n.14. Accordingly, Judge Howell’s concerns in Goings lack force here.
The Court therefore finds that Plaintiff has demonstrated that the balance of the equities and the public interest tip in his favor.
D. Security
Pursuant to Federal Rule of Civil Procedure 65(c), “the court may issue a preliminary injunction . . . only of the movant gives security in an amount that the court considers proper to pay the costs and damages substained by any party found to have been wrongfully enjoined or restrained.” Courts in this Circuit have found the Rule “vest[s] broad discretion in the district court to determine the appropriate amount of an injuction bond,” DSE, Inc. v. Uniter States, 169 F.3d 21, 33 (D.C. Cir. 1999), including the discretion to require no bond at all. Council on American-Islamic Rels. v. Gaubatz, 667 F. Supp. 2d 67, 80 (D.D.C. 2009).
In this case, the costs or damages sustained by the District would be modest -- the loss of the amount for which Mr. Simms’ car could be sold at forfeiture. Moreover, as discussed above, plaintiff has extremely limited financial resources, and is unable to post security in any significant amount. Courts regularly take both of
38

these factors into account when exercising their discretion to require a bond. See Id. at 80 (requiring no bond where the defendant would not be substantially injured by the issuance of an injunction); Swanson v. Univ. of Hawaii Prof. Assembly, 269 F. Supp. 2d 1252 (D. Haw. 2003) (bond requirement for public employees waived based on ability to pay, and also because injunction sought enforcement of constitutional rights); see also 11A Charles A. Wright, Arthur R. Miller, Mary K. Kane, Richard L. Marcus, Federal Pracrtice and Procedure § 2954 (2d ed.) (same). Accordingly, based on the record in this case, in particular the District’s interest in the value of the car as compared with plaintiff’s limited ability to pay a bond and the constitutional rights he seeks to protect, the Court will exercise its discretion in this case to impose a minimal security requirement. Plaintiff shall give security in the amount of $1,000.
IV. CONCLUSION Accordingly, for the foregoing reasons, plaintiff’s motion
for a preliminary injunction is GRANTED. It is hereby ORDERED that the District shall forthwith release Mr.
Simms’s vehicle to him pending the outcome of the forfeiture proceedings which were instituted in the Superior Court of the District of Columbia, District of Columbia v. One 2007 Saturn Aura V.I.N. 1G8ZS57N17F291738, Civ. Action No. 4742-12 (Libel); it is further
39

ORDERED that Mr. Simms shall not sell or otherwise dispose of the vehicle pending the outcome of the forfeiture proceedings; it is further
ORDERED that Mr. Simms shall maintain insurance on his vehicle pending the outcome of the forfeiture proceedings; it is further
ORDERED that Mr. Simms shall give security as required by Federal Rule of Civil Procedure 65(c) in the amount of $1000.00.

An appropriate Order accompanies this Memorandum Opinion.

Signed:

Emmet G. Sullivan United States District Judge July 6, 2012

40

 
 Case 1:12-cv-00701-EGS Document 30 Filed 10/19/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

)

FREDERICK SIMMS,

)

)

Plaintiff,

)

)

v.

)

)

THE DISTRICT OF COLUMBIA,

)

)

CATHY LANIER, Chief of Police,

)

)

VINCENT GRAY, Mayor

)

)

Defendants.

)

___________________________________ )

Case No. 12-cv-701-EGS

STIPULATION OF SETTLEMENT AND DISMISSAL

Plaintiff Frederick Simms, and defendants, the District of Columbia, Cathy Lanier, and

Vincent Gray, have agreed to a settlement in this case. The parties agree to dismiss this action

with prejudice, and each party will bear its own costs and attorneys’ fees.

Respectfully submitted,

/s/ Alec Karakatsanis
Sandra K. Levick (D.C. Bar No. 358630) Tara Mikkilineni (D.C. Bar No. 997284) Alec Karakatsanis (D.C. Bar No. 999294)
Public Defender Service for the District of Columbia
Special Litigation Division 633 Indiana Ave. N.W. Washington, D.C. 20004 (202) 628-1200
Attorneys for Plaintiff

IRVIN B. NATHAN Attorney General for the District of Columbia
ELLEN EFROS Deputy Attorney General Public Interest Division
/s/ Grace Graham GRACE GRAHAM, D.C. Bar No. 472878 Chief, Equity Section
/s/ Chad Copeland CHAD COPELAND, D.C. Bar No. 982119 Assistant Attorney General, DC 441 Fourth Street, NW Sixth Floor South

Case 1:12-cv-00701-EGS Document 30 Filed 10/19/12 Page 2 of 2 Washington, DC 20001 Telephone: (202) 724-6623 Facsimile: (202) 727-3625 Email: chad.copeland@dc.gov Attorneys for Defendants
2

 
 Case: 1:12-cv-701 As of: 09/18/2016 11:42 AM EDT 1 of 6
CLOSED,TYPE−D
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:12−cv−00701−EGS

SIMMS v. DISTRICT OF COLUMBIA et al Assigned to: Judge Emmet G. Sullivan Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/01/2012 Date Terminated: 10/22/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

FREDERICK SIMMS

represented by Alec George Karakatsanis Civil Rights Corps 916 G Street, NW Suite 701 Washington, DC 20001 (202) 681−2409 Email: alec@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sandra Kay Levick PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA 633 Indiana Avenue, NW Washington, DC 20004 (202) 824−2383 Fax: (202) 824−2983 Email: slevick@pdsdc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara Mikkilineni PUBLIC DEFENDER SERVICE FOR THE DISTRICT OF COLUMBIA 633 Indiana Avenue, NW Washington, DC 20004 (202) 824−2502 Fax: (202) 824−2682 Email: tmikkilineni@pdsdc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DISTRICT OF COLUMBIA

represented by Chad Wayne Copeland OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 441 4th Street, NW Suite 630 South Washington, DC 20001 (202) 724−6623 Fax: (202) 741−8880 Email: chad.copeland@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jacques P. Lerner OFFICE OF THE ATTORNEY

Case: 1:12-cv-701 As of: 09/18/2016 11:42 AM EDT 2 of 6

GENERAL FOR THE DISTRICT OF COLUMBIA Civil Litigation Division 441 4th Street, NW One Judiciary Square− 6th Floor South Washington, DC 20001 (202) 724−1342 Fax: (202) 741−5908 Email: jacques.lerner@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
CATHY L. LANIER Chief of Police

represented by Chad Wayne Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacques P. Lerner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
VINCENT C. GRAY Mayor

represented by Chad Wayne Copeland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacques P. Lerner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/01/2012
05/01/2012 05/01/2012 05/03/2012 05/03/2012 05/04/2012

# Docket Text
1 COMPLAINT against DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER ( Filing fee $350, receipt number 4616047891) filed by FREDERICK SIMMS. (Attachments: # 1 Civil Cover Sheet)(jf, ) (Additional attachment(s) added on 5/3/2012: # 2 Exhibit A) (dr). (Entered: 05/02/2012)
SUMMONS (3) Issued as to DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER, District of Columbia Attorney General, and the District of Columbia Mayor. (jf, ) (Entered: 05/02/2012)
2 MOTION for Preliminary Injunction by FREDERICK SIMMS (jf, ) (Entered: 05/02/2012)
MINUTE ORDER; Telephone Conference is set for 5/4/2012 at 02:00 PM in Courtroom 24A before Judge Emmet G. Sullivan.. Signed by Judge Emmet G. Sullivan on 5/3/12. (clv, ) (Entered: 05/03/2012)
3 NOTICE of Appearance by Jacques P. Lerner on behalf of DISTRICT OF COLUMBIA, VINCENT GRAY (Lerner, Jacques) (Entered: 05/03/2012)
MINUTE ORDER. In light of the parties' agreement during the telephonic status conference held on the record on May 4, 2012, the parties are hereby directed to comply with the following briefing schedule for plaintiffs motion for preliminary injunction. The parties shall file a joint status report containing their positions on consolidation on the merits under Federal Rule of Civil Procedure 65(a)(2), as well as the likelihood of settlement, by no later than May 9, 2012. Defendants opposition to the motion for preliminary injunction shall be filed by no later than May 16, 2012. Plaintiffs reply shall be filed by no later than May 23, 2012. A hearing on the motion will be held on June 6, 2012 at 2:00 PM in Courtroom 24A. The parties are further

Case: 1:12-cv-701 As of: 09/18/2016 11:42 AM EDT 3 of 6

05/04/2012 05/07/2012
05/09/2012 05/09/2012
05/09/2012 05/09/2012 05/10/2012 05/11/2012 05/16/2012 05/17/2012
05/18/2012 05/18/2012 05/21/2012 05/23/2012
05/23/2012

directed to deliver to the chambers of the Honorable Emmet G. Sullivan two copies of their pleadings and exhibits as well as binders containing one copy of the principal points and authorities relied upon by the parties (i.e., counsel should provide copies of principal cases, statutes, regulations, etc., but need not provide copies of cases relied upon merely for the standard of review or other well−established principles). Signed by Judge Emmet G. Sullivan on May 4, 2012. (lcegs4) (Entered: 05/04/2012)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Telephone Conference held on 5/4/2012. (Court Reporter: Catalina Kerr) (tth) Modified on 5/8/2012 (clv, ). (Entered: 05/04/2012)
Set/Reset Deadlines/Hearings: defendant's opposition to motion for preliminary injunction due by 5/16/2012; plaintiff's reply due by 5/23/2012; Status Report due by 5/9/2012; Preliminary Injunction Hearing set for 6/6/2012 02:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 05/07/2012)
4 STATUS REPORT (Joint Status Report) by FREDERICK SIMMS. (Karakatsanis, Alec) (Entered: 05/09/2012)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the District of Columbia Attorney General. Date of Service Upon District of Columbia Attorney General 5/2/2012. Answer due for ALL D.C. DEFENDANTS by 5/23/2012. (Karakatsanis, Alec) (Entered: 05/09/2012)
6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on the Mayor of the District of Columbia. Date of Service Upon the Mayor for the District of Columbia on 05/02/2012. (Karakatsanis, Alec) (Entered: 05/09/2012)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CATHY LANIER served on 5/2/2012 (Karakatsanis, Alec) (Entered: 05/09/2012)
NOTICE OF ERROR re 4 Status Report; emailed to akarakatsanis@pdsdc.org, cc'd 6 associated attorneys −− The PDF file you docketed contained errors: 1. Invalid attorney signature (jf, ) (Entered: 05/10/2012)
8 NOTICE of Appearance by Jacques P. Lerner on behalf of CATHY LANIER (Lerner, Jacques) (Entered: 05/11/2012)
9 Memorandum in opposition to re 2 MOTION for Preliminary Injunction filed by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER. (Attachments: # 1 Exhibit)(Lerner, Jacques) (Entered: 05/16/2012)
MINUTE ORDER directing both parties to immediately comply with the minute order dated May 4, 2012 directing the parties to deliver certain pleadings and authorities to chambers. The plaintiff and the defendant shall comply with the Court's May 4, 2012 Minute Order as to the motion for preliminary injunction and the opposition by no later than 4pm on Friday, May 18, 2012. SO ORDERED.Signed by Judge Emmet G. Sullivan on May 17, 2012. (lcegs4) (Entered: 05/17/2012)
Set/Reset Deadlines: opposition due by 4:00 p.m. on 5/18/2012 (clv, ) (Entered: 05/18/2012)
10 NOTICE Status of D.C. Office of Attorney General's Decision on Civil Forfeiture by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER (Lerner, Jacques) (Entered: 05/18/2012)
11 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER (Lerner, Jacques) (Entered: 05/21/2012)
MINUTE ORDER granting 11 consent motion for extension of time to respond to complaint. The defendants shall answer or otherwise respond to the complaint by no later than June 29, 2012. Signed by Judge Emmet G. Sullivan on May 23, 2012. (lcegs4) (Entered: 05/23/2012)
12 REPLY to opposition to motion re 2 MOTION for Preliminary Injunction filed by FREDERICK SIMMS. (Karakatsanis, Alec) (Entered: 05/23/2012)

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06/01/2012
06/04/2012 06/04/2012
06/04/2012 06/05/2012 06/06/2012
06/09/2012
06/11/2012 06/11/2012 06/13/2012 06/15/2012
06/18/2012 06/22/2012 06/22/2012

MINUTE ORDER. The Court is currently presiding over a civil jury trial which is expected to last through June 6. Accordingly, the hearing scheduled for June 6, 2012 at 2:00 pm is moved to June 6, 2012 at 4:30 pm in Courtroom 24A. PLEASE NOTE THE TIME CHANGE. Signed by Judge Emmet G. Sullivan on June 1, 2012. (lcegs4) (Entered: 06/01/2012)
Set/Reset Hearings: Preliminary Injunction Hearing set for 6/6/2012 04:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (clv, ) (Entered: 06/04/2012)
MINUTE ORDER. The Court, sua sponte, schedules a telephonic status hearing in this matter today, Monday, June 4, 2012, at 4:45 PM. Counsel are instructed to jointly call Courtroom 24A at 202 354 3171 at 4:45 PM. The Court regrets any inconvenience to the parties. Signed by Judge Emmet G. Sullivan on June 4, 2012. (lcegs4) (Entered: 06/04/2012)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Telephone Conference held on 6/4/2012, Status Conference set for 6/6/2012 04:30 PM in Courtroom 24A before Judge Emmet G. Sullivan. (Court Reporter CATALINA KERR.) (clv, ) (Entered: 06/04/2012)
13 NOTICE of Filing by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER (Attachments: # 1 Exhibit Libel of Information)(Lerner, Jacques) (Entered: 06/05/2012)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Conference held on 6/6/2012; Districts Supplemental Memorandum due by 6/9/2012; Preliminary Injunction Hearing set for 6/13/2012 02:00 PM in Courtroom 24A before Judge Emmet G. Sullivan. (Court Reporter CATALINA KERR.) (clv, ) (Entered: 06/07/2012)
14 Memorandum in opposition to re 2 MOTION for Preliminary Injunction filed by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER. (Attachments: # 1 Exhibit Exhibit 1 − Criminal docket, # 2 Exhibit Exhibit 2 − Declaration of Leroy Clay, # 3 Exhibit Exhibit 3 − Supplemental Declaration of Lt. Derek Gray)(Lerner, Jacques) . (Entered: 06/09/2012)
NOTICE OF ERROR re 14 Supplemental Memorandum; emailed to jacques.lerner@dc.gov, cc'd 6 associated attorneys −− The PDF file you docketed contained errors: 1. document not linked to correct event (jf, ) (Entered: 06/11/2012)
15 RESPONSE re 14 Supplemental Memorandum, filed by FREDERICK SIMMS. (Karakatsanis, Alec) (Entered: 06/11/2012)
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Preliminary Injunction held on 6/13/2012. Order to be presented. (Court Reporter CATALINA KERFR.) (clv, ) (Entered: 06/14/2012)
MINUTE ORDER. During the motions hearing on Wednesday, June 13, 2012, the court invited the parties to submit supplemental filings regarding the following issues: (1) whether a lienholder on an automobile must pay a bond as a claimant to start the forfeiture process, (2) the relevance of a Sup. Cr. Crim. R. Rule 41(g) motion to the civil forfeiture proceedings; (3) a lienholder's rights to an automobile if the owner stops paying the car note while the car is being held pending forfeiture, and (4) the public interest factor of the preliminary injunction inquiry. The parties shall file any supplemental pleadings, which shall not exceed 10 pages, by no later than June 22, 2012. Signed by Judge Emmet G. Sullivan on June 15, 2012. (lcegs4) (Entered: 06/15/2012)
Set/Reset Deadlines: Supplemental Memorandum due by 6/22/2012. (clv, ) (Entered: 06/18/2012)
16 SUPPLEMENTAL MEMORANDUM to re 2 MOTION for Preliminary Injunction Pursuant to the Minute Order of June 15, 2012 filed by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER. (Lerner, Jacques) (Entered: 06/22/2012)
17 SUPPLEMENTAL MEMORANDUM to 2 Motion for Preliminary Injunction filed by FREDERICK SIMMS. (Mikkilineni, Tara) Modified to add link on 6/25/2012 (znmw, ). (Entered: 06/22/2012)

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06/29/2012
06/29/2012
07/06/2012 07/06/2012 07/09/2012 07/12/2012
07/12/2012 07/25/2012 07/25/2012
07/26/2012 08/29/2012
08/29/2012
08/30/2012 08/30/2012 08/31/2012 09/03/2012 09/21/2012

18 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction or in the Alternative, MOTION for Summary Judgment by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER (Attachments: # 1 Exhibit Exhibits to Motion)(Lerner, Jacques) (Entered: 06/29/2012)
19 NOTICE of Filing re 18 MOTION to Dismiss , MOTION to Dismiss for Lack of Jurisdiction or in the Alternative, MOTION for Summary Judgment by DISTRICT OF COLUMBIA, VINCENT GRAY, CATHY LANIER (Attachments: # 1 Exhibit)(Lerner, Jacques) Modified on 7/2/2012 (jf, ). (Entered: 06/29/2012)
20 ORDER granting 2 Motion for Preliminary Injunction. Signed by Judge Emmet G. Sullivan on July 6, 2012. (lcegs4) (Entered: 07/06/2012)
21 MEMORANDUM AND OPINION. Signed by Judge Emmet G. Sullivan on July 6, 2012. (lcegs4) (Entered: 07/06/2012)
22 Unopposed MOTION for Extension of Time to File Response/Reply Defendants' Dismissal and Summary Judgment Motions by FREDERICK SIMMS (Karakatsanis, Alec) (Entered: 07/09/2012)
MINUTE ORDER granting 22 unopposed motion for extension of time to respond to Defendants' dismissal and summary judgment motion. Plaintiff shall respond to the motion by no later than July 30, 2012; defendants shall reply by no later than August 10, 2012. Signed by Judge Emmet G. Sullivan on July 12, 2012. (lcegs4) (Entered: 07/12/2012)
Set/Reset Deadlines: Response to Dispositive Motions due by 7/30/2012. Reply to Dispositive Motions due by 8/10/2012. (clv, ) (Entered: 07/12/2012)
23 Joint MOTION for Extension of Time to File Response/Reply to Defendants' Motion to Dismiss by FREDERICK SIMMS (Karakatsanis, Alec) (Entered: 07/25/2012)
MINUTE ORDER granting 23 joint motion for enlargement of time. Plaintiff shall file his response to the motion to dismiss or, in the alternative, for summary judgment by no later than August 30, 2012, and defendants shall file their reply by no later than September 12, 2012. Signed by Judge Emmet G. Sullivan on July 25, 2012. (lcegs4) (Entered: 07/25/2012)
Set/Reset Deadlines: Response to Dispositive Motions due by 8/30/2012. Reply to Dispositive Motions due by 9/12/2012. (clv, ) (Entered: 07/26/2012)
24 Joint MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or in the Alternative MOTION for Summary Judgment by DISTRICT OF COLUMBIA, VINCENT C. GRAY, CATHY LANIER, FREDERICK SIMMS (Mikkilineni, Tara) (Entered: 08/29/2012)
MINUTE ORDER granting 24 joint motion for an additional enlargement of time. Plaintiff shall respond to Defendants' Motion to dismiss or, in the alternative for Summary Judgment, by no later than October 1, 2012. Defendants shall file their reply by no later than October 10, 2012. Signed by Judge Emmet G. Sullivan on August 29, 2012. (lcegs4) (Entered: 08/29/2012)
25 Emergency MOTION to Substitute Rule 65(c) Security by FREDERICK SIMMS (Attachments: # 1 Exhibit Receipt for cashier's check)(Mikkilineni, Tara) (Entered: 08/30/2012)
DEPOSIT of Funds on July 9, 2012 as required by Federal Rule of Civil Procedure 65 by FREDERICK SIMMS in the amount of $ $1,000.00, Receipt Number 4616049872. (rdj) (Entered: 08/31/2012)
26 ORDER granting 25 Motion to Substitute Rule 65(c) Security. Signed by Judge Emmet G. Sullivan on August 31, 2012. (lcegs4) (Entered: 08/31/2012)
Set/Reset Deadlines: Response to Dispositive Motions due by 10/1/2012. Reply to Dispositive Motions due by 10/10/2012. (clv, ) (Entered: 09/03/2012)
27 NOTICE of Appearance by Chad Wayne Copeland on behalf of All Defendants (Copeland, Chad) (Entered: 09/21/2012)

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10/01/2012 10/01/2012
10/01/2012 10/15/2012 10/17/2012 10/19/2012

28 Joint MOTION for Extension of Time to File Response/Reply as to 18 MOTION to Dismiss MOTION to Dismiss for Lack of Jurisdiction or in the Alternative MOTION for Summary Judgment by FREDERICK SIMMS (Mikkilineni, Tara) (Entered: 10/01/2012)
MINUTE ORDER granting 28 joint motion for an additional enlargement of time. Plaintiff shall respond to Defendants' Motion to dismiss or, in the alternative for Summary Judgment, by no later than November 1, 2012. Defendants shall file their reply by no later than November 10, 2012. Signed by Judge Emmet G. Sullivan on October 1, 2012. (lcegs4) (Entered: 10/01/2012)
Set/Reset Deadlines: Response to Dispositive Motions due by 11/1/2012. Reply to Dispositive Motions due by 11/10/2012. (clv}, (Entered: 10/01/2012)
29 Joint MOTION for Release of Funds Rule 65(c) Security by FREDERICK SIMMS (Mikkilineni, Tara) (Entered: 10/15/2012)
MINUTE ORDER granting 29 joint motion for release of Rule 65(c) funds. The Clerk of the Court is directed to forthwith release Rule 65(c) security funds in the amount of $1000 to Julia L. Leighton. Signed by Judge Emmet G. Sullivan on October 17, 2012. (lcegs4) (Entered: 10/17/2012)
30 NOTICE of Settlement and Dismissal by All Parties (Karakatsanis, Alec) (Entered: 10/19/2012)