BROWN v. GOVERNMENT OF THE DISTRICT OF COLUMBIA

Filing 234

MEMORANDUM OPINION to accompany 233 Order denying in part 176 Plaintiffs' Motion for Partial Summary Judgment; granting in part and denying in part 192 Defendant's Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 08/12/2019. (lccrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NICOYA HOYTE, et al.,
Plaintiffs,
v.

Case No. 13-cv-569 (CRC)

DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION
In 2015, Mayor Muriel Bowser signed a bill reforming the District of Columbia’s civil
asset forfeiture regime. The new law was designed to better protect property owners and
included a variety of procedural and substantive safeguards to achieve that goal. This case, filed
in 2013, is about the old law. Plaintiffs are a group of individuals whose property was seized and
held for potential forfeiture under the prior regime. They seek damages under 42 U.S.C. § 1983
for purported violations of their constitutional due process rights. After the better part of a
decade, the dismissal of myriad claims, certification of two classes, and extensive discovery, the
case has arrived at the summary judgment stage. As it stands, four claims remain: two that have
been certified for class-wide resolution and two that have not.
This Opinion deals only with the two non-class claims. In the first of those claims
(Claim Seven in Plaintiffs’ complaint), all ten remaining Plaintiffs allege that the District
unconstitutionally failed to return their property promptly after determining it was not subject to
forfeiture. The Court will grant the District’s motion for summary judgment as to five of those
Plaintiffs who did not lay claim to the property. For the remaining five Plaintiffs, however, the
Court will deny both parties’ motion for summary judgment and allow the case to proceed to
trial. As for the second non-class claim (Claim Fourteen)—which alleges that the District

arbitrarily denied or dissuaded property owners from seeking waivers of a bond requirement to
challenge the forfeiture—the Court will grant the District’s motion for summary judgment
because, on the facts presented, no reasonable jury could find in Plaintiffs’ favor.
I.

Background
A. Legal Background
In 2015, the Council of the District of Columbia reformed the city’s civil asset forfeiture

law, adding protections for owners of seized property. See Civil Asset Forfeiture Amendment
Act of 2014, 62 D.C. Reg. 1,920 (Feb. 13, 2015). Until then, the District’s forfeiture scheme had
been largely unaltered since 1981. The revamped law has changed many of the aspects of the
prior version that gave rise to this case. Nevertheless, the District remains liable for damages
stemming from any constitutional infirmities in the law’s prior iteration.
The seizures and forfeitures of Plaintiffs’ property were governed by former D.C. Code
§ 48-905.02 (2012). Under this statute, the Metropolitan Police Department (“MPD”) had
authority to seize vehicles, currency, or other property if there were probable cause to believe the
property was the proceeds of a crime or used to commit a crime. Id. §§ 48-905.02(a), (d)(3)(A).
Once property was seized, the Mayor was obligated to provide notice to those persons having “a
right of claim to the seized property.” Id. § 48-905.02(d)(3)(A). Upon receiving notice, the
property owner could assert an ownership interest in the property by paying a bond—either
$2,500 or ten percent of the appraised property value (whichever was lower). Id. § 48–
905.02(d)(3)(B). A claimant could request a bond reduction or waiver. D.C. Mun. Regs. 6-A §
806.6-7.
If the claimant paid the bond (or received a waiver), the District could initiate judicial
forfeiture proceedings in District of Columbia Superior Court. D.C. Code § 48-905.02(d)(3)(E)

2

(2012). Absent a bond or waiver, the property was subject to administrative forfeiture. To
pursue administrative forfeiture, the Mayor’s delegee, the MPD Property Clerk, had to first
determine whether the property was forfeitable. Id. § 48-905.02(d)(3)(C); D.C. Mun. Regs. 6-A
§ 805. If the property was deemed forfeitable, the owner was permanently dispossessed of the
property. D.C. Code § 48-905.02(d)(4) (2012). If it was deemed not forfeitable, the District was
obligated to return it to the owner. Id. § 48-905.02(d)(3)(C).
B. Factual Background
The Court has discussed the facts of this case at length in two previous opinions. See
Hoyte v. District of Columbia, 325 F.R.D. 485 (D.D.C. 2017); Brown v. District of Columbia,
115 F. Supp. 3d 56 (D.D.C. 2015). Here, the Court will briefly outline the facts relevant to each
Plaintiff’s non-class claims.
1. Nicoya Hoyte
In May 2012, Nicoya Hoyte was arrested at her Washington, D.C. home along with two
roommates after police executed a search warrant and found marijuana and weapons. See Pls.’
Response to Def.’s Statement of Undisputed Material Facts (“SUMF”), ECF No. 208-1, ¶ 11. 1
MPD seized her 2000 Mercury Grand Marquis—valued at $5,350—and $1,540 cash incident to
the arrest. Id.; Declaration of Jerrell Carter Supp. Def.’s Opp’n to Pls.’ Mot. Partial Summ. J.
and Cross-Mot. Summ J. (“Carter Decl.”), ECF No. 192-8, at 69–76, ¶ 6(a). 2 MPD placed the
car and currency under a civil forfeiture hold. Carter Decl. ¶ 6(c). Hoyte was criminally
processed but prosecutors dropped the charges against her. SUMF ¶¶ 12–13. The MPD
1

Citations to “SUMF” refer to the Plaintiffs’ Response to Defendant’s Statement of
Undisputed Material Facts. Unless otherwise noted, the Plaintiffs indicate no dispute with the
facts cited in this section.
2

Citations to exhibits accompanying Defendant’s Motion for Summary Judgment reflect
the page numbers generated by ECF.
3

Evidence Control Branch’s (“ECB”) database, EvidenceOnQue, indicates that a notice of intent
to forfeit the car was generated May 24, 2012. Id. ¶ 15; Carter Decl. ¶ 6(b). 3 The parties dispute
whether this notice was mailed to Hoyte or, if so, whether she received it. 4 See SUMF ¶ 15.
What is clear is that she went to the ECB on July 7, 2012 and signed a note indicating she was
“in receipt” of the notice. Def.’s Mot. Summ. J. Ex. LL, ECF No. 192-8, at 62. Hoyte paid a
bond on the vehicle. SUMF ¶ 16. On April 11, 2013, D.C.’s Office of the Attorney General
released its hold on the property, indicating it would not pursue civil forfeiture proceedings.
Def.’s Mot. Summ. J. Ex. MM, ECF No. 192-8, at 66. Eight days later, the United States
Attorney for the District of Columbia released any evidentiary hold on the vehicle, id. at 67,
whereupon Hoyte retrieved the vehicle on April 29, 2013, see Carter Decl. ¶ 6(d). The Office of
the Attorney General did not release the hold on the currency until over two years later, on
August 17, 2015, and Hoyte retrieved it two days later. See ECF No. 220-3, at 46–48 (MPD
property release documentation).
2. Kelly Hughes
MPD seized Kelly Hughes’s 2006 Dodge Magnum—valued at $9,825—on February 28,
2013. SUMF ¶ 17; Carter Decl. ¶ 7(a). According to police records, an MPD drug sniffing dog
“got a hit on the vehicle.” Def.’s Mot. Summ. J. Ex. A, ECF No. 192-5, at 3. MPD placed
evidentiary and forfeiture holds on the vehicle. SUMF ¶ 18. Ms. Hughes was never charged
with a crime related to the incident. See Affidavit of Kelly Hughes (“Hughes Aff.”), ECF No.
220-3, at 24–28, ¶ 16. EvidenceOnQue shows a notice of intent to forfeit was generated on
3

The Court understands Plaintiffs to dispute whether notice was actually mailed or
received but not the fact that the database reflects its existence. See, e.g., SUMF ¶ 15 (“The
mere fact of administrative forfeiture notice in EvidenceOnQue does not mean it was mailed.”).
4

This dispute is central to Claim Five, which alleges a failure to provide adequate notice,
but not the other claims.
4

March 21, 2013. SUMF ¶ 19; see also supra note 3. On April 2, 2013, Hughes went to the ECB
to inquire about her vehicle and received in-person notice of the intent to forfeit. SUMF ¶ 20.
The notice required Hughes to pay a $982 bond; she avers that, instead of paying, she contacted
the D.C. Public Defender Service, which helped her recover her vehicle. Hughes Aff. ¶¶ 28–29.
The holds were lifted on May 1, 2013. Carter Decl. ¶ 7(c). Hughes retrieved her vehicle on May
24, 2013. SUMF ¶ 21.
3. Jarrett Acey
On October 30, 2010, MPD officers arrested Jarrett Acey for possession with intent to
distribute MDMA. Officers seized $1,516 in cash from Mr. Acey for forfeiture. SUMF ¶ 39;
Def.’s Mot. Summ. J. Ex. R, ECF No. 192-7, at 49–52. MPD sent a notice to administratively
forfeit the property to Acey’s mother’s home, which was the address on his arrest report. SUMF
¶ 40. The parties dispute whether the address was listed on his arrest report because he provided
it to MPD when arrested or because officers took it from his driver’s license. Id. In any case,
Acey saw the notice at his mother’s home when visiting her in 2013, prompting him to call MPD
to update his address. Id. ¶¶ 41–42. MPD sent a second notice to Acey at the address he
provided. By the time he received that notice, the property had already been forfeited. Id. ¶ 42.
4. Julius Gordon & Marilyn Langley
In February 2011, MPD officers arrested Julius Gordon and Marilyn Langley for
distribution and possession of Suboxone, respectively. See ECF No. 220-5, at 79–81 (arrest
report). They seized $49 in connection with the arrest, $44 from Mr. Gordon and $5 from Ms.
Langley. 5 SUMF ¶¶ 43–44, 47. Prosecutors declined to prosecute either individual. Carter

5

At the motions hearing, Defense counsel suggested that the full $49 may have been
seized from Mr. Gordon, or at least that the arrest records reflect as much. Hr’g Tr. 60:22–61:11
(Jan. 22, 2019). The record shows clearly, however, that all MPD documents indicate that $44
5

Decl. ¶¶ 12(d), 13(c). Two years later, ECB sent a notice to Gordon at the address he gave
MPD. See ECF No. 220-5, at 82–83 (notice dated March 5, 2012). He did not pay a bond or
apply for a waiver and maintains he never received notice. No notice was sent to Langley. The
$49 was forfeited. SUMF ¶¶ 46, 49.
5. Terrence Thomas
MPD executed a search warrant on the home of David Littlepage, which he shared with
his son Terrence Thomas. SUMF ¶ 51. Officers arrested Mr. Littlepage and seized $340 in cash
during the search, apparently from under Mr. Thomas’s mattress. 6 Id. ECB sent three notices to
Littlepage after identifying him as the property owner. Id. ¶ 52. According to Littlepage, upon
receiving these notices, he told ECB that the money belonged to his son. See Affidavit of David
Littlepage, ECF No. 177-4 9, ¶ 10. He later signed a “release to owner” form and picked up the
money from ECB. SUMF ¶ 54; Def.’s Mot. Summ. J. Ex. FF, ECF No. 192-8, at 30–51.
6. Shane Lucas
MPD seized $814 from Shane Lucas on October 3, 2012 upon his arrest for possession of
an open container of alcohol. SUMF ¶ 56; Def.’s Mot. Summ. J. Ex. II, ECF No. 192-8, at 37–
40. MPD officers found drugs on his person during a search incident to the arrest and charged
him with drug possession. Def.’s Mot. Summ. J. Ex. II, ECF No. 192-8, at 37–40. The charges
were later dismissed. Carter Decl. ¶ 15(e). The ECB database shows two notices were mailed,
one to the address on Lucas’s driver’s license and one, sent six months later, to the address he
provided to MPD when arrested. SUMF ¶¶ 57–59; see also supra note 3. On November 7, 2013,
was seized from Gordon and $5 was seized from Ms. Langley. See, e.g., ECF No. 220-5, at 79–
81 (arrest report); id. at 77–78 (property record); id. at 82–83 (notice mailed to Mr. Gordon
regarding $44).
6

Plaintiffs insist it was $345, but the $5 difference does not affect the Court’s analysis.
See SUMF ¶ 51.
6

D.C.’s Office of Attorney General sent a memorandum to the ECB indicating that the crime with
which Lucas was charged did not permit forfeiture and that the money should be returned to him.
ECF No. 177-51. On February 7, 2014, Lucas was told he could pick up his money at ECB,
which he did later that day. SUMF ¶¶ 61–62.
7. Romona Person
MPD seized Romona Person’s 2010 Nissan Altima in November 2012. Id. ¶ 27. She
contacted the ECB to inquire about the car and was given a notice of intent to forfeit the vehicle.
Id. ¶ 29. Ms. Person neither paid a bond nor applied for a bond waiver. Instead, she relinquished
the title to the lienholder, which later retrieved the car. Id. ¶ 30.
Person filed for bankruptcy in 2015. Id. ¶ 31. The bankruptcy court discharged her debts
in November 2015 and closed her case that day. Id. ¶ 32. Although she knew this lawsuit was
pending at the time, she did not list her claims among the assets in her bankruptcy petition.
Def.’s Mot. Summ. J. Ex. H, ECF No. 192-6, at 7–8; see also Def.’s Mot. Summ. J. Ex. F, ECF
No. 192-5, at 59–100.
8. Dorian Urquhart
MPD seized Dorian Urquhart’s 2004 Pontiac Grand Prix, valued at $8,225, on April 24,
2011 from a parking space after smelling and seeing marijuana inside. SUMF ¶ 33; Carter Decl.
¶ 10(a); Def.’s Mot. Summ. J. Ex. B, ECF No. 192-5, at 8–9. It does not appear that Mr.
Urquhart was charged with a crime. He received a notice of intent to forfeit the vehicle and
applied for a bond waiver on June 4, 2011 but omitted tax information required by ECB. SUMF
¶¶ 35–37. As a consequence, ECB denied his bond waiver application on July 5, 2011. Id. ¶ 37.
The Office of Attorney General released the forfeiture hold on the car on July 26, 2012, and
Urquhart retrieved it on August 13, 2012. See ECF No. 220-1, at 44.

7

9. Stephen May
Stephen May lent his 2003 Infiniti M45 to Darryl Driver, a friend. Mr. Driver was
arrested on May 11, 2012 for drug possession to which he pled guilty. SUMF ¶¶ 22–23. MPD
seized Mr. May’s Infiniti and placed a forfeiture hold on it in connection with Driver’s criminal
case. Id. ¶ 24. May went to the ECB to reclaim his vehicle. Id. ¶ 25. On May 18, 2012, he
received notice of intent to forfeit his vehicle. Id. ¶ 26. He applied for a bond waiver
application, which was granted. He retrieved his vehicle on October 9, 2012. Id. ¶ 25.
C. Procedural Background
In 2013, Plaintiffs were among twenty-two people who sued the District of Columbia for
damages caused by an allegedly unconstitutional civil forfeiture regime. The case initially had
sixteen claims, some of which the Court dismissed and some of which the Plaintiffs voluntarily
withdrew. See generally Brown, 115 F. Supp. 3d 56. As of 2017, five claims survived and
Plaintiffs sought to certify four of them for classwide resolution (they have since voluntarily
dismissed the fifth claim). See generally Hoyte, 325 F.R.D. 485. This Court certified as class
actions two of these claims but declined to certify the other two. Specifically, the Court certified
classes seeking damages for (1) the prior statute’s failure to provide for prompt interim hearings
for the owners of seized cars (Claim Three in the complaint), see id. at 492–95, and (2) the
District’s purported failure to provide constitutionally adequate notice of forfeiture proceedings
for owners of seized vehicles and currency (Claim Five), see id. at 495–98. The Court denied
class certification to Plaintiffs seeking damages for (1) the retention of property after the District
determined that it was not subject to forfeiture (Claim Seven), see id. 498, and (2) the denial or
discouragement of waivers for those who could not afford to pay bonds in order to lay claim to
the property and challenge its forfeiture (Claim Fourteen), see id. 498–99.

8

After extensive discovery, the parties cross-moved for summary judgment on both the
remaining class claims and non-class claims. Unfortunately, the parties’ briefing of the issues
raised more questions than it resolved. The Court held a lengthy hearing on the cross-motions,
where it became apparent that the District had failed to grasp the burden-shifting framework
governing the claims. See Thompson v. District of Columbia, 832 F.3d 339, 346–47 (D.C. Cir.
2016) (discussing Mount Healthy City School District Board of Education v. Doyle, 429 U.S.
274 (1977) and Carey v. Piphus, 435 U.S. 247 (1978) to explain that once a plaintiff shows a due
process violation, he is entitled to compensatory damages unless the defendant can show that the
deprivation would have occurred with proper process). Plaintiffs, for their part, correctly
identified this framework, but failed to grapple with its consequences for classwide resolution.
In any case, each party conveyed a willingness to enter settlement discussions. The Court
therefore took a somewhat unusual step. To inform settlement discussions, it held a status
conference in which it explained its preliminary views on the cross-motions for summary
judgment on the class claims. Each side reiterated its interest in a settlement and offered to make
good faith efforts to seek one, while indicating that final resolution of the non-class claims would
aid these efforts. Accordingly, the Court will continue to defer on formal adjudication of the
summary judgment motions regarding Claims Three and Five, the class claims, while deciding
the pending motions for summary judgment on the two non-class claims, Seven and Fourteen.
II.

Legal Standard
Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A factual dispute is “material” if the resolution “might affect the outcome of
the suit under the governing law” and “genuine” if “the evidence is such that a reasonable jury

9

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A court must accept as true the nonmovant’s evidence and draw all reasonable
inferences in its favor. Id. The nonmovant may not, however, rely on “mere allegations” or
conclusory statements. Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006).
III. Analysis
Each of the Plaintiffs pursue Claim Seven, seeking damages for the District’s purported
failure to provide constitutionally adequate notice of their ability to retrieve their property upon a
non-forfeiture determination. Uruqhart and May alone pursue Claim Fourteen, seeking damages
for a claimed unconstitutional denial of bond waivers.
Plaintiffs seek damages under 42 U.S.C. § 1983, which creates a cause of action for
damages against state or local officials who violate a plaintiff’s federal constitutional rights.
Section 1983 does not provide for respondeat superior liability, meaning a municipality cannot
be held vicariously responsible for constitutional violations by its officers or employees. Rather,
to prevail on their § 1983 claims against the District itself, Plaintiffs must show both predicate
constitutional violations and an “affirmative link” between those violations and a District
“custom or policy,” such that the policy itself “was the ‘moving force’ behind the violation[s].”
Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003); see also Monell v. Dep’t of
Social Servs., 436 U.S. 658, 694 (1978). That in mind, the Court turns to each claim.
A. Claim Seven: Failure to Return Non-Forfeitable Property
Each of the remaining Plaintiffs pursue Claim Seven, alleging that the District failed to
promptly return their property once MPD decided not to forfeit the property or deemed it nonforfeitable. As the Court held at the motion to dismiss stage when it allowed this claim to
proceed to discovery, “[a]fter the District determined it had no right to the property, any ongoing

10

retention—even if temporary—was contrary to due process.” Brown, 115 F. Supp. 3d at 74
(citing Fuentes v. Shevin, 407 U.S. 67, 82 (1972); Walters v. Wolf, 660 F.3d 307, 315 (8th Cir.
2011)). Reflecting this principle, the disposition of each Plaintiff’s claim at summary judgment
turns on whether the District determined it had no right to the seized property, as explained
below.
1. Plaintiffs Who Did Not Pay the Bond
First: Gordon, Langley, Thomas, and Acey. 7 The District is entitled to summary
judgment on these Plaintiffs’ claims, because it did not hold their property for longer than it was
entitled. Recall that none of these Plaintiffs paid bonds, sought or received waivers, or otherwise
laid claim to the forfeited property. Under the statute, then, the property could be forfeited.
This result might seem odd at first blush. After all, these same Plaintiffs contend in
Claim Five (one of the class claims) that the District failed to provide them notice of the intent to
forfeit. If that’s true, then how can they be faulted for failing to respond to that notice in a way
that would preserve their interest in the property? However, if they suffered constitutional
injury, that injury happened at step one—when the District allegedly failed to send notice
“reasonably calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” Jones v. Flowers, 547
U.S. 220, 226 (2006) (quoting Mullane v. Hanover, 339 U.S. 306, 314 (1950)). Anything that
occurred after that—namely, Plaintiffs failing to claim the property and the District
dispossessing them of ownership—stemmed from that violation. Both go to the same underlying
facts and same claimed damages: the purported failure to send constitutionally adequate notice
and the resulting forfeiture of the property. Cf. Brown, 115 F. Supp. 3d at 63 (dismissing Fourth
7

The Court discusses Plaintiff Romona Person below, see infra Part III.A.3, but she also
falls into this category of Claim Seven Plaintiffs.
11

Amendment claims where “[t]he factual allegations supporting these claims [were] duplicative of
identical claims brought under the Fifth Amendment” and claims were properly brought under
Fifth Amendment).
Plaintiffs insist that the District necessarily kept the property longer than necessary,
because under its own law, the District was not entitled to forfeit the property unless it received a
“green card”—a return receipt confirming that the notice was delivered. See Pls.’ Mot. Summ. J.
at 55 (citing D.C. Code § 48-905.02(d)(3)(C)(2012)). Thus, Plaintiffs’ theory goes, because
D.C. law conditioned forfeiture on a return receipt, any time the District failed to receive such
receipt, its forfeiture of the property was “void ab initio” and the District failed to promptly
return the property. Id. But as this Court explained in a different case in which a plaintiff
mounted a due process claim stemming from the District’s alleged failure to follow its laws and
regulations, “a person is not deprived of due process whenever a government entity fails to
follow procedures established by statute or regulation.” Classic Cab, Inc. v. District of
Columbia, 288 F. Supp. 3d 218, 226 (D.D.C. 2018) (citing Sloan v. Dep’t of Hous. & Urban
Dev., 231 F.3d 10, 18 (D.C. Cir. 2000)). Reading the Due Process Clause otherwise would
“constitutionalize[] all state-imposed procedural requirements” and “thrust federal district courts
into the role of reviewing all state administrative decisionmaking, dramatically expanding the
scope of federal jurisdiction and violating basic principles of comity.” Id.
This principle dictates the outcome here. While the District may have failed to comply
with its own statutory requirement, that does necessarily create a federal constitutional claim.
Even if D.C. law did not permit forfeiture absent a returned green card, the relevant question for
this Court is whether the Constitution does. “[M]ail service is an inexpensive and efficient
mechanism that is reasonably calculated to provide actual notice,” Lepre v. Dep’t of Labor, 275

12

F.3d 59, 70 (D.C. Cir. 2001) (quoting Tulsa Prof. Collection Servs. v. Pope, 485 U.S. 478, 490
(1988)), and even if D.C. law required actual notice in the form of a return-receipt, the
Constitution does not, see, e.g., id. at 70–71. As explained, whether the underlying notice of
intent to forfeit the property was constitutionally adequate forms the basis of Claim Five (which
the Court has determined is amendable to partial classwide resolution). Thus, to the extent that
Gordon, Langley, Thomas, and Acey had their due process rights violated, it was because the
District failed to give constitutionally adequate notice of the intent to forfeit the property, not
because it took the property after hearing nothing from these Plaintiffs. Once these Plaintiffs
failed to lay their claim to the property (perhaps through no fault of their own, to be sure), there
was no constitutional violation in failing to alert them that they could claim their property—
because they couldn’t claim their property. Of course, that’s not to say they cannot recover
damages if their constitutional rights were violated due to a District custom or policy, but any
such recovery would come through prevailing on Claim Five.
2. Plaintiffs Who Paid the Bond
Hoyte, Hughes, Lucas, May, and Urquhart, 8 unlike the Plaintiffs discussed above, did
receive notice of intent to forfeit their property and eventually recovered their property because
they either paid the necessary bond or received a waiver—and the District decided the property
was either not forfeitable or chose not to pursue forfeiture. In some cases, however, there was a
substantial lag between when the property was returnable and when it was returned. Take, for
example, Shane Lucas. MPD arrested him for having an open alcohol container (later adding
drug possession charges) and seized $814. SUMF ¶ 56; Def.’s Mot. Summ. J. Ex. II, ECF No.

8

While Urquhart neither paid the bond nor received a bond waiver, see infra Part III.B,
he did eventually recover his vehicle, because the District opted not to proceed with forfeiture,
see ECF No. 220-1, at 44. As such, the Court places him in this category of Plaintiffs.
13

192-8, at 37–40; Def.’s Mot. Summ. J. Ex. II, ECF No. 192-8, at 37–40. On November 7, 2013,
the Chief of the Office of the Attorney General’s Civil Enforcement Section sent a memorandum
to the head of the ECB, explaining that it would decline to pursue forfeiture of Lucas’s cash
because “[u]nder D.C. law, mere possession [was] not a sufficient basis for forfeiture.” ECF No.
177-51, at 1. The memorandum included Lucas’s address and noted that the property should “be
returned to [him].” Id. But it wasn’t. Lucas did not receive his property until February 7, 2014,
exactly three months later, when he went to ECB to pick it up after being informed of his right to
do so earlier that day. SUMF ¶¶ 61–62.
Or consider the case of Kelly Hughes. Her car was seized on February 28, 2013 when a
drug-sniffing dog got a “hit” on it. SUMF ¶ 17; Carter Decl. ¶ 7(a); Def.’s Mot. Summ. J. Ex. A,
ECF No. 192-5, at 3. She was never arrested, and no case was pursued. Hughes Aff. ¶ 16. She
received in-person notice of intent to administratively forfeit. SUMF ¶ 20. On May 1, 2013, the
District declined to pursue the forfeiture proceedings and changed the property from a
“forfeiture” hold to a “safekeeping” hold. See ECF No. 220-5, at 53–54. But the vehicle was
not returned until over three weeks later, on May 24. SUMF ¶ 21. In the meantime, Hughes
avers, she needed a car to go to work, take care of personal responsibilities, and attend a
vocational training program in which she was enrolled. Hughes Aff. ¶ 32.
For the Plaintiffs who were entitled to (and ultimately did) retrieve their seized property,
there are genuine disputes of material fact. These disputes include, notably, whether the District
had a custom or policy of holding property longer than necessary while not notifying the owners
of their ability to retrieve it. The sheer number of Plaintiffs in this case whose cars or currency
were held well after the District had disclaimed any forfeiture rights might, alone, permit the
reasonable inference of such a custom. On the other hand, a reasonable jury might also conclude

14

otherwise. Some of the Plaintiffs, for example, received their property within a week or less of
the District’s non-forfeiture determination. See, e.g., Carter Decl. ¶¶ 8(c), (e) (indicating May
retrieved his vehicle within days of the lifting of the forfeiture hold). To be sure, they appear to
have successfully done so because they followed up with ECB, but a jury might reasonably
conclude that the District did not have a problematic custom or policy that was the moving force
behind any alleged violations. As the Court explained when it declined to certify this class,
while Plaintiffs provided evidence that “approximately 598 vehicles ha[d] been initially seized
for forfeiture in connection with criminal activity but later released before forfeiture,” that “says
nothing about how many vehicles the MPD failed to promptly return.” Hoyte, 325 F.R.D. at 498
(citations omitted). The same holds true here: a jury, faced with this figure and a handful of
examples of failure to promptly return property (assuming they considered each of the returns
not prompt) might reasonably infer that the District did not have a custom or policy that was the
moving force behind any temporary deprivation Plaintiffs suffered.
The record in this case is among the most voluminous the Court has encountered. After
careful consideration of its contents, the Court concludes that it cannot take this claim from a
jury. There are facts that could reasonably support different conclusions. Therefore, the Court
will deny each motion for summary judgment regarding Claim Seven as it pertains to Hoyte,
Hughes, Lucas, May, and Urquhart. Those Plaintiffs’ claims may proceed to trial.
3. Romona Person
That leaves Romona Person. As discussed above, Person filed for bankruptcy in 2015,
while this suit was pending, and the bankruptcy court discharged all of her debts. See SUMF
¶¶ 31–32. Person did not list this lawsuit when declaring her assets in her bankruptcy petition.
Def.’s Mot. Summ. J. Ex. F, ECF No. 192-5, at 59–100 (bankruptcy records). As a consequence,

15

the District is entitled to summary judgment on her claim because she is judicially estopped from
pursuing it.
“The doctrine of judicial estoppel prevents a party from asserting a claim in a legal
proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting 18 Moore’s Federal Practice § 134.30
(3d ed. 2000)). It is “an equitable doctrine invoked by a court at its discretion.” Id. at 750. The
D.C. Circuit has instructed that
[t]here are at least three questions that a court should answer in deciding whether
to apply judicial estoppel: (1) Is a party’s later position clearly inconsistent with
its earlier position? (2) Has the party succeeded in persuading a court to accept
that party’s earlier position, so that judicial acceptance of an inconsistent position
in a later proceeding would create the perception that either the first or the second
court was misled? (3) Will the party seeking to assert an inconsistent position
derive an unfair advantage or impose an unfair detriment on the opposing party if
not estopped?
Moses v. Howard Univ. Hosp., 606 F.3d 789, 798 (D.C. Cir. 2010) (citing Maine, 532 U.S. at
750–51). Additionally, courts must consider whether there is a “discernible connection between
the two proceedings” and “may not invoke judicial estoppel against a party” where “there is no
meaningful connection.” Id. at 799.
Here, Ms. Person’s case meets each of the three factors the Circuit identified in Moses.
First, Person’s earlier position is inconsistent with her current one. She pursued her claim here
after she sought Chapter 7 bankruptcy, even after neglecting to disclose this claim in her
bankruptcy petition. See Moses, 606 F.3d at 799. Second, Person succeeded in persuading the
bankruptcy court to accept her earlier position, leading that court to discharge her debts. See id.
Third, Person derived an unfair advantage from her inconsistent positions. If Person were to
succeed in this case, she would keep any damages, to the detriment of her creditors. See id.
That outcome would also harm the District: “Had the [bankruptcy] trustee known of this lawsuit
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during the Chapter 7 bankruptcy proceedings, she might have settled this case early or decided
not to pursue it, actions that might have benefitted [the District].” Id. Finally, Person’s pursuit
of this claim and her actions in the bankruptcy proceeding are related in that she represented that
she had no legal claims during the bankruptcy proceeding, leading to a discharge of debts, and
now seeks to “assert the opposite in order to win a second time.” Id. at 800. In analogous cases,
the D.C. Circuit and courts in this district have held that judicial estoppel applies where a
plaintiff failed to disclose claims for monetary damages during a separate bankruptcy
proceeding. See, e.g., id.; Robinson v. District of Columbia, 10 F. Supp. 3d 181 (D.D.C. 2014);
Marshall v. Honeywell Tech. Sys., 73 F. Supp. 3d 5 (D.D.C. 2014).
Person insists the equitable nature of judicial estoppel counsel against its application in
this case, contending her failure to disclose the claim was inadvertent. The Court sympathizes
with Ms. Person, but courts interpret inadvertence “such that ‘[t]he failure to comply with the
Bankruptcy Code’s disclosure duty is ‘inadvertent’ only when a party either lacks knowledge of
the undisclosed claim or has no motive for their concealment.’” Robinson, 10 F. Supp. 3d at 187
(quoting Barger v. City of Cartersville, 348 F.3d 1289, 1295 (11th Cir. 2003)). Here, Person was
aware of this claim during the bankruptcy proceedings, since it was already pending. While she
may not have understood her duty to disclose the claims in bankruptcy, she clearly had actual
knowledge that she had filed the claim. See id. at 188.
As for motive, courts are particularly strict about mistake defenses when the supposed
mistake was made during a bankruptcy proceeding. “This prevailing ‘interpretation of
‘inadvertence’ is narrow in part because the motive to conceal claims from the bankruptcy court
is . . . nearly always present.’” Id. at 187 (quoting Ah Quin v. Cnty. of Kauai Dep’t of Transp.,
733 F.3d 267, 271 (9th Cir. 2013)). Put simply, if Person had disclosed this case in bankruptcy,

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any damages could have been applied to her debts; by failing to do that, she would now be able
to keep the damages after the discharge of her debts. Courts are necessarily strict in this context.
See id., 10 F. Supp. 3d at 184–85 (“Viewed against the backdrop of the bankruptcy system and
the ends it seeks to achieve, the importance of this disclosure duty cannot be overemphasized.”
(quoting In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999)).
While the Court trusts that Person did not realize she had a duty to disclose her claims, it
is clear she had actual knowledge of the claims themselves. That is enough to bar them, even
though she was unrepresented in bankruptcy. See Marshall, 73 F. Supp. 3d at 11 (Plaintiff’s
“mistake as a pro se litigant does not excuse her failure to properly disclose her discrimination
claims.”). In short, “the federal courts have developed a basic default rule: If a plaintiff-debtor
omits a pending (or soon-to-be-filed) lawsuit from the bankruptcy schedules and obtains a
discharge (or plan confirmation), judicial estoppel bars the action.” Robinson, 10 F. Supp. 3d at
185 (quoting Ah Quin, 733 F.3d at 271). The Court will not depart from that rule here.
Person also contends that the Court should not bar her claims because she attempted to
disclose the lawsuit after the District raised the issue. Precedent forecloses such leniency:
As the D.C. Circuit emphasized in Moses, allowing a debtor ‘to back-up, re-open
the bankruptcy case, and amend his bankruptcy filings, only after his omission has
been challenged by an adversary, suggests that a debtor should consider
disclosing potential assets only if he is caught concealing them. This so-called
remedy would only diminish the necessary incentive for the debtor to provide the
bankruptcy court with a truthful disclosure of [his] assets.’
Id. at 186 n.3 (quoting Moses, 606 F.3d at 800)). In sum, the weight of authority bars Person’s
claim. A contrary conclusion would be unfair to both her creditors and the District.
In any case, even Person weren’t estopped, she could not recover on Claim Seven. The
record indicates that she never filed a claim for her car, declining to pay the bond or apply for a

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bond waiver. Instead, she relinquished title to the car to the lienholder, which retrieved it.
SUMF ¶ 30. Thus, for similar reasons to the other Plaintiffs who never asserted an ownership
interest, she cannot pursue Claim Seven on the theory that the District held the property after it
was required to return it to her, because the District was never required to return it to her. See
supra Part III.A.1.
B. Claim Fourteen: Arbitrary Denial of Bond Waivers
Claim Fourteen alleges that the District unconstitutionally denied Plaintiffs bond waivers
or dissuaded them from seeking such waivers. The Court dismissed Plaintiffs’ facial challenge
to the claim, see Brown, 115 F. Supp. 3d at 72, but allowed as-applied challenges to proceed as
non-class claims, see id. (denying motion to dismiss as-applied challenge); Hoyte, 325 F.R.D. at
498–99 (denying class certification). Two Plaintiffs, Stephen May and Dorian Urquhart, pursue
this claim. Neither has shown a basis for a reasonable jury conclusion in their favor, and the
District is therefore entitled to summary judgment.
As an initial matter, no reasonable jury could conclude that Mr. May was
unconstitutionally denied a bond waiver—because he was granted one. In its Statement of
Undisputed Material Facts, the District submitted that “May . . . filed a bond waiver application,
which was granted, and was able to promptly retrieve his vehicle.” SUMF ¶ 25. Plaintiffs
responded that this fact was “[n]ot disputed for purpose[s] of the District’s summary judgment
motion.” Id. It appears, then, that May might have abandoned this claim, though he has not
done so explicitly. In any event, May testified in his deposition that he completed the waiver
application around September 25, 2012 (corresponding to the date on the application). See
Def.’s Mot. Summ. J. Ex. E, ECF No. 192-5, at 52–54; ECF No. 22-6, at 32 (bond waiver
application). It is undisputed that the waiver was granted and May retrieved his vehicle on

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October 9, 2012. SUMF ¶ 25. On this record, no reasonable jury could conclude that May was
unconstitutionally denied a bond waiver. Nor is there anything in the record to suggest that
anyone dissuaded May from applying for one. To the contrary, May testified that he “made
some phone calls down to [the ECB] and [the bond waiver application process] was explained to
[him].” Def.’s Mot. Summ. J. Ex. E, ECF No. 192-5, at 52. The District is thus entitled to
summary judgment.
As for Mr. Urquhart, it is undisputed that he, unlike May, was not granted a bond waiver.
The record shows, however, that the waiver was because he declined to provide tax information
necessary to support the application. SUMF ¶¶ 35–37. Urquhart does not appear to contend that
his rights were violated because the bond waiver was denied due to an incomplete application. 9
Instead, he focuses on purposed discouragement from the District. He points to deposition
testimony in which he alleged that while ECB officers never told him not to apply for a bond
waiver, they did “say [he] was wasting [his] time.” Reply at 60. Whatever was said, Urquhart
wasn’t dissuaded: He applied and was rejected—because he failed to include the tax
information. In any case, Urquhart has marshaled insufficient evidence to support a jury
conclusion that the moving force behind this event was a District pattern or practice. 10 He notes
that “[o]ut of 10,000 seizures, there are only about 200 waiver applications,” id., but this is not
probative of why the others owners did not apply for waivers, if they even pursued the property
in the first place. See Hoyte, 325 F.R.D. at 498 (declining to certify a class claim because the

9

As noted, the Court dismissed a facial challenge to this aspect of the law, which makes
Urquhart’s passing reference to the unconstitutionality of requiring tax information misplaced.
See Pls.’ Reply at 60.
10

Plaintiffs do not devote any space in their fifty-five-page Motion for Summary
Judgment to Claim Fourteen and spend only a paragraph of their sixty-page opposition to the
District’s Motion for Summary Judgment on the claim.
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Plaintiffs relied on generalized figures but offered no evidence to indicate that those figures
evinced frequency of a purportedly unconstitutional practice).
Equally misplaced is Plaintiffs’ emphasis that “the Notes section in the [database]
mentions waivers in only about 60 seizures,” Reply at 60, because there is nothing to suggest that
the other applications were improperly rejected (assuming they were rejected, as opposed to
withdrawn or mooted). In short, even if these figures were presented to a jury, there would be no
basis that would permit it to conclude those figures are due to a pattern of improper denial or
dissuasion. Cf. Hoyte, 325 F.R.D. at 498 (noting that Plaintiffs offered no evidence in support of
number of would-be claimants who were denied a waiver). The District is thus entitled to
summary judgment.
IV. Conclusion
For the foregoing reasons, the Court will deny in part and reserve in part on Plaintiffs’
Motion for Partial Summary Judgment and grant in part, deny in part, and reserve in part on
Defendant’s Cross-Motion for Summary Judgment. A separate Order shall accompany this
memorandum opinion.

CHRISTOPHER R. COOPER
United States District Judge
Date: August 12, 2019

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