AMY BERMAN JACKSON, United States District Judge
Plaintiffs Toshia Hodges, Barron Jackson, Irma Flores, and Rasheed Hammond have brought four separate actions against several Metropolitan Police Department ("MPD") officers in their individual capacities and against the District of Columbia. They allege claims arising out of their arrests for disorderly conduct and their release pursuant to a "post-and-forfeit" procedure whereby an arrestee simultaneously posts and forfeits collateral in return for his release from jail without prosecution. Six of their claims are brought solely against the District of Columbia challenging the post-and-forfeit procedure. Specifically, plaintiffs assert: (1) four claims under 42 U.S.C. § 1983 on the grounds that the procedure, as applied to them, violated their Fourth and Fifth Amendment rights; (2) one claim that the procedure constituted common law conversion of their forfeited collateral; and (3) one claim that the post-and-forfeit statute is void for vagueness.
The District of Columbia has moved to dismiss plaintiffs' post-and-forfeit claims under Federal Rules of Civil Procedure 12(b)(1) for lack of standing and 12(b)(6) for failure to state a claim. In support of its motion, the District points to this Court's recent dismissal of substantially similar claims in Fox v. District of Columbia ("Fox I"), 851 F.Supp.2d 20 (D.D.C. 2012) and Fox v. District of Columbia, ("Fox II"), 923 F.Supp.2d 302 (D.D.C. 2013). In that case, the plaintiff asserted that the payment of collateral under the post-and-forfeit procedure violated the Fourth, Fifth, Sixth, and Eighth Amendments and constituted common law conversion. Fox I, 851 F.Supp.2d at 22; Fox II, 923 F.Supp.2d at 305. After extensive briefing and a lengthy motion's hearing, this Court concluded that the post-and-forfeit procedure did not violate the plaintiff's Fourth and Fifth Amendment rights and did not constitute common law conversion because it was voluntary and it furthered the District's legitimate interests. See Fox I, 851 F.Supp.2d at 23; Fox II, 923 F.Supp.2d at 309-10.
In addition to the post-and-forfeit claims, plaintiff Jackson has brought a section 1983 claim against the District alleging that his arrest violated his First Amendment right to free speech. The District has also moved to dismiss that claim under Rule 12(b)(6). The Court finds that Jackson has failed to meet the standard for municipal liability under section 1983, and therefore, it will grant the District's motion to dismiss this claim. All of the plaintiffs' claims against the individual officers and their claims against the District concerning disorderly conduct arrests will remain.
The D.C.Code expressly grants the MPD the authority to tender an offer to any arrestee charged with certain misdemeanors to "obtain a full and final resolution of the criminal charge" by agreeing to simultaneously post and forfeit an amount as collateral. D.C. Code § 5-335.01(a). This is referred to as "the post-and-forfeit procedure." It is not an admission of guilt, and it does not result in a criminal conviction. While the process does not eradicate the record of the original arrest, the statute provides that "[t]he fact that a person resolved a charge using the post-and-forfeit procedure may not be relied upon by any court ... or agency of the District of Columbia in any subsequent criminal, civil, or administrative proceeding or administrative action to impose any sanction, penalty, enhanced sentence, or civil disability." Id. § 5-335.01(b).
The collateral amount for each charge is set by the Superior Court of the District of Columbia and, if not forfeited, serves as a security upon release to ensure the arrestee's appearance at trial. Id. § 5-335.01(a), (g). The statute requires that the MPD provide written. notice to the arrestee at the time the offer is tendered. Id. § 5-335.01(c). The notice must include, in relevant part, the identity of the crime to be resolved, and the amount of collateral to be posted and forfeited. Id. § 5-335.01(d)(1). The notice must also state that the arrestee has the right to choose whether to accept the post-and-forfeit offer or to proceed with the criminal case and a potential adjudication on the merits, and that the forfeiture becomes final ninety days after the arrestee signs the notice. Id. §§ 5-335.01(d)(2), (6). During the ninety day period, the arrestee or the Office of the Attorney General may file a motion with the Superior Court of the District of Columbia to set aside the forfeiture and proceed with the criminal case. Id. § 5-335.01(d)(6).
Plaintiffs allege that Metropolitan Police Department officers arrested and charged them with "disorderly conduct — loud and boisterous" without probable cause. After their arrests, they were each transported to a police station and offered the choice between posting and forfeiting $35.00 to obtain their immediate release and resolution of their criminal charges, or spending the night in jail and being transported to Superior Court for presentment the following day. Plaintiffs allege that the police officers did not offer them citation release, release on collateral (without forfeiting), or
The factual allegations specific to each plaintiff are follows:
In 2012, plaintiffs brought suit against the police officers involved in their arrests and the District of Columbia. The first two counts of their complaints allege that they were arrested without probable cause in violation of the Fourth Amendment, and they seek to hold the individual officers and the District liable under section 1983.
Additionally, plaintiffs have also asserted claims solely against the District alleging that the post-and-forfeit procedure, as applied to them, violated their Fourth and Fifth Amendment rights and constituted common law conversion. See Jackson Am. Compl. ¶¶ 128-49, 176-81, 182-86.
The District has moved to dismiss plaintiffs' post-and-forfeit claims on two grounds. Def.'s Consolidated Partial Mot. to Dismiss Compls. at 2. It contends that plaintiffs do not have constitutional standing to bring those claims because they have failed to allege that they suffered an injury in fact that was caused by the post-and-forfeit procedure, and therefore the claims should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). Mem. in Supp. of Def.'s Partial Mot. to Dismiss Compls. ("Def.'s Mem.") at 3. The District also asserts that even if plaintiffs have standing to challenge the procedure, their claims fail to state a claim upon which relief can be granted, and they should be dismissed under Rule 12(b)(6). Id. at 3.
Defendant has also moved to dismiss Jackson's First Amendment claim against the District under Rule 12(b)(6) for failure to state a claim. Def.'s Mem. at 3-4. In particular, the District contends that Jackson has failed to meet the standard for municipal liability under section 1983 because he has not "allege[d] a pattern and practice of District employees depriving citizens of their First Amendment right to use non-threatening profanity." Def.'s Mem. at 3-4. Plaintiffs have filed their consolidated opposition to the District's motion to dismiss, and the District has filed its reply.
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff `the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir. 1979) (citations omitted); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C.Cir.2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C.2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C.Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is `an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C.Cir.2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C.Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.2000), citing Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005).
"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' `that the pleader is entitled to relief.'" Id. at 679, 129 S.Ct. 1937, quoting Fed. R. Civ. P. 8(a)(2). A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. at 678, 129 S.Ct. 1937, quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," id. In ruling upon a motion to dismiss, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing Equal Emp't Opportunity
The District contends that the Court does not have jurisdiction to adjudicate plaintiffs' post-and-forfeit claims because they do not have constitutional standing to challenge the procedure. Def.'s Mem. at 3. "To state a case or controversy under Article III, a plaintiff must establish standing." Ariz. Christian Sch. Tuition Org. v. Winn, ___ U.S. ___, 131 S.Ct. 1436, 1442, 179 L.Ed.2d 523 (2011); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is lacking, then the dispute is not a proper case or controversy under Article III, and federal courts have no subject-matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C.Cir.2012).
To establish constitutional standing, a plaintiff must demonstrate: (1) that he has suffered an "injury in fact"; (2) that the injury is "fairly traceable" to the challenged action of the defendant; and (3) that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal quotation marks omitted); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The party invoking federal jurisdiction bears the burden of establishing standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. When the suit challenges the legality of government action, the standing analysis is relatively straightforward if the plaintiff himself is the object of the action in question. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. If he is, then there is "ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it." Id. at 561-62, 112 S.Ct. 2130.
When reviewing the standing question, the Court "must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C.Cir.2008). Therefore, for the purposes of the standing analysis, the Court has to assume that the District violated plaintiffs' rights under the Constitution, and at common law, by "funnel[ing] them into the `post and forfeit' procedure." See Jackson Am. Compl. ¶ 131.
The District argues that "[p]laintiffs lack an injury because they failed to utilize the legal procedures available to properly challenge their respective forfeitures." Def.'s Mem. at 11. They point to D.C. Code Section 5-335.01(d)(6), which permits an arrestee who has a change of heart in the light of day to file a motion to set aside the forfeited collateral and contest the criminal case. Id. According to the District, plaintiffs' failure to exhaust this local remedy should bar them from pursuing their post-and-forfeit claims. Id.
The "exhaustion of local remedies doctrine is appropriate, as a reason for denial of Federal relief, only when there has been a failure to utilize state remedial channels that are both accessible and capable of affording a full measure of relief." Sullivan v. Murphy, 478 F.2d 938, 963 (D.C.Cir.1973). In Sullivan, the plaintiffs argued that they had been arrested and prosecuted without probable cause and
As in Sullivan, plaintiffs are not merely seeking a return of the forfeited collateral. They seek to vindicate the federal constitutional rights that they allege were violated as a result of the post-and-forfeit procedure, and "[t]here is undoubted jurisdiction in the Federal courts to entertain actions to enforce Federal constitutional rights." Sullivan, 478 F.2d at 963 (citation omitted). Plaintiffs have asked the Court to redress their constitutional injuries by, among other things, declaring that the post-and-forfeit procedure was unconstitutional as applied to them and granting them compensatory damages. See Jackson Am. Compl., Individual Relief Demands ¶¶ B, E. Since section 5-335.01(d)(6) is not "capable of affording a full measure of [the] relief" that plaintiffs have requested, Sullivan, 478 F.2d at 963 (citations omitted), the failure to exhaust this local remedy does not bar plaintiffs from seeking federal relief. Therefore, plaintiffs have standing to bring their post-and-forfeit claims because they have alleged that they suffered an injury in fact that was caused by the post-and-forfeit procedure and that is likely to be redressed by a favorable ruling in this case.
The gravamen of plaintiffs' post-and-forfeit claims is that their payment of the forfeited collateral was not voluntary. See, e.g., Jackson Am. Compl. ¶ 58 (alleging that the police officers "coerce[d] him into `post and forfeiting'"); Hodges Am. Compl. ¶ 49; Flores Am. Compl. ¶ 48; Hammond Compl. ¶ 127; Pls.' Opp. at 17-25 (alleging that plaintiffs' election of the post-and-forfeit procedure was not voluntary). The District has moved to dismiss these claims on the grounds that the Court has already dismissed substantially identical claims in Fox v. District of Columbia. Def.'s Mem. at 3. In Fox, this Court dismissed all of the plaintiff's post-and-forfeit claims based, in part, on its finding that the payment of the forfeited collateral was voluntary. See Fox I, 851 F.Supp.2d at 23 ("[T]here simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case"); see also Fox II, 923 F.Supp.2d at 309-10.
To bolster their claim that the payment was not voluntary, plaintiffs compare the post-and-forfeit procedure to "release and dismissal agreements," in which a defendant waives his right to bring a civil suit against the government and/or government officials in exchange for the dismissal of criminal charges. See Pls.' Opp. at 14-16, 18-20, citing Vallone v. Lee, 7 F.3d 196, 198-99 (11th Cir.1993) (per curiam) (concluding that an arrestee's waiver of his right to bring suit against the county sheriff was not voluntary where the sheriff blocked his access to bail until he signed the waiver); Hall v. Ochs, 817 F.2d 920, 923 (1st Cir.1987) (finding that an arrestee's waiver of his right to sue was not voluntary where he had refused to sign the agreement on two prior occasions and the officer conditioned his release on the waiver); Brewer v. Blackwell, 692 F.2d 387, 399 (5th Cir.1982) (holding that an arrestee's waiver of the right to sue is not voluntary where the officer conditions his release on the waiver).
These cases are distinguishable because unlike a release and dismissal agreement, post-and-forfeit is a statutorily authorized procedure for obtaining release from jail and resolving a petty criminal charge. D.C. Code § 5-335.01. Moreover, utilizing the post-and-forfeit procedure does not result in any loss of the arrestee's right to pursue a later civil action, nor does it result in the loss of his ability to contest the validity of the arrest in the criminal case itself given the ninety day option. See id. § 5-335.01(d)(6).
Contrary to plaintiffs' assertion, the fact that the arrestee is in custody when he is presented with the opportunity to post-and-forfeit does not itself make his election involuntary. See Pls.' Opp. at 14-15. Indeed, the statute specifically seeks to safeguard against any coercion that might result from incarceration; it provides that if an arrestee is in custody, the post-and-forfeit form must inform the arrestee that he may choose to reject the post-and-forfeit procedure and that if he chooses to do so, he may also be eligible for immediate citation release, or will be promptly taken to court for a bail hearing. D.C. Code § 5-335.01(d)(2)-(3). Moreover, the statute requires MPD to inform arrestees that they can move to set aside the forfeiture and challenge the charges against them
Plaintiffs acknowledge that they received the required notifications under section 5-335.01(d), and that they knew they could choose to forego the post-and-forfeit procedure. See Jackson Am. Compl. ¶ 50 (stating that the police gave him a choice between posting and forfeiting and proceeding with the charge against him). And as this Court has previously held, the fact that the alternative to paying the forfeiture involved a night in jail or that arrestees were not offered citation release, release on collateral (without forfeiting), or release on the Detention Journal does not make the choice to pay the forfeited collateral involuntary because arrestees have no constitutional or statutory right to citation release or to release from jail before presentment the following morning. See Fox, 851 F.Supp.2d at 30; Hunter v. District of Columbia, 824 F.Supp.2d 125, 136 (D.D.C. 2011); Huthnance v. District of Columbia, 793 F.Supp.2d 183, 202-03 (D.D.C.2011).
Section 1983 provides that any "person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution
The foundation for plaintiffs' section 1983 claims is that:
See Jackson Am. Compl. ¶ 131. According to plaintiffs, this implementation of the post-and-forfeit statute violated their rights under the Fourth and Fifth Amendments. Hodges Am. Compl. ¶¶ 112-33, 144-49; Jackson Am. Compl. ¶¶ 128-49, 176-81; Flores Am. Compl. ¶¶ 112-33, 144-49; Hammond Compl. ¶¶ 124-45, 156-61. Plaintiffs also allege that the post-and-forfeit procedure is void for vagueness. Hodges Am. Compl. ¶¶ 134-43; Jackson Am. Compl. ¶¶ 166-75; Flores Am. Compl. ¶¶ 134-43; Hammond Compl. ¶¶ 146-55. The Court will dismiss these claims under Rule 12(b)(6) because they fail to factually allege the necessary predicate constitutional violations, and they fail to allege that the statute is unconstitutionally vague.
The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]" U.S. Const. amend. IV. To establish an unlawful seizure under the Fourth Amendment, plaintiffs must demonstrate that payment of collateral under the District's post-and-forfeit procedure (1) constitutes a seizure, and (2) that the seizure is unreasonable. Soldal v. Cook Cnty., III., 506 U.S. 56, 61-71, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). "A `seizure' of property ... occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" Id. at 61, 113 S.Ct. 538, quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Further, a "seizure" is not unreasonable if it occurs with the non-coercive, voluntary consent of the owner. See Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
In Fox II, the Court held that the post-and-forfeit procedure on its face did not violate the Fourth Amendment because it was voluntary, and it fulfilled the District's legitimate interests in preventing overcrowding in its jails, conserving its limited prosecutive resources, and clearing crowded court dockets. Fox II, 923 F.Supp.2d at 307, citing Fox I, 851 F.Supp.2d at 31-32.
With respect to the first allegation, plaintiffs contend that "[d]efendant's officers unreasonably seized plaintiffs' $35.00 without probable cause when they took plaintiffs' $35.00 for `post and forfeit.'" Pls.' Opp. at 26-27. They point to Qutb v. Ramsey, in which the plaintiff alleged that D.C. police officers towed his car without probable cause in violation of his Fourth Amendment rights. 285 F.Supp.2d 33, 40 (D.D.C.2003). The Qutb court held that the towing of the car was unquestionably a seizure, id. at 38 n. 5, but that the seizure would be constitutionally permissible if the officers had probable cause to tow the car pursuant to 18 D.C. Mun. Regs. § 2421.1 based on the facts known to them at the time, id. at 38-39. In other words, the finding that there had been a seizure was the predicate for going on to consider the probable cause issue, which the Court ultimately concluded it was not able to resolve on the record before it. Id. at 39-40.
Therefore, Qutb is distinguishable. Here, the Court has already determined that accepting the voluntarily tendered post-and-forfeit collateral is not a seizure of property, see Fox II, 923 F.Supp.2d at 309, and that even the fact that the individual may have been arrested without probable cause does not make the payment involuntary. Supra Analysis § II(A). Furthermore, even if the acceptance of the forfeiture constituted a seizure, it was reasonable. In Qutb, the court explained that since the legal justification for the towing of the car was a violation of D.C.'s laws and regulations, the seizure would have been reasonable if the officers had probable cause to believe that such a violation had occurred. 285 F.Supp.2d at 38-39. Here, D.C. Code § 5-335.01(a) authorizes MPD to accept forfeited collateral from individuals "charged with certain misdemeanors." Since plaintiffs acknowledge that they were charged with misdemeanors for which post-and-forfeit is available and that they chose to pay the forfeiture after receiving the requirement disclosures,
The two remaining allegations — that they were seized without probable cause and held for an illegitimate purpose — are not relevant to the post-and-forfeit claims because they do not assert that the forfeited collateral was unreasonably seized. Instead, they relate to the reasonableness of plaintiffs' detention, which is relevant to their false arrest claims. Therefore, the Court finds plaintiffs have not plausibly alleged that the post-and-forfeit procedure as applied to them violated the Fourth
Plaintiffs contend that they were deprived of a fundamental right to the forfeited collateral because the post-and-forfeit procedure is "an arbitrary use of governmental power and is not rationally related to legitimate governmental interests." Pls.' Opp. at 33; see also Jackson Compl ¶¶ 138-40. "[T]he Due Process Clause provides that certain substantive rights — life, liberty and property — cannot be deprived except pursuant to constitutionally adequate procedures."
Where there is no fundamental interest at stake, the Court assesses whether the legislation is arbitrary. See Idris v. City of Chicago, 552 F.3d 564, 566 (7th Cir.2009). This Court has also previously ruled that the District's acceptance of an arrestee's voluntarily tendered collateral is not an arbitrary deprivation of property because it fulfills the government's legitimate interests in preventing overcrowding in its jails, conserving its limited prosecutive resources, clearing crowded court dockets, and protecting the health, safety, and morals of the community. Fox I, 851 F.Supp.2d at 31-32. Plaintiffs concede that the District has these legitimate interests, but they argue that the post-and-forfeit procedure "does not even satisfy the rational basis test because forcing people arrested on disorderly conduct without probable cause to `post and forfeit' on disorderly conduct is not rationally related to either of these interests." Pls.' Opp. at 33-37.
But as this Court has already stated, "the procedure itself is not rendered constitutionally
Next, plaintiffs allege that the District's application of the post-and-forfeit procedure to their case violated their procedural due process rights because the District did not provide pre- or post-deprivation process. Pls.' Opp. at 37-46. The Court has already determined that the post and forfeit procedure — both on its face and as applied to individuals who may have been arrested without probable cause — satisfies the procedural due process standards established by Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) and Medina v. California, 505 U.S. 437, 445-46, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). See Fox I, 851 F.Supp.2d at 33-36. Further, with respect to plaintiffs' allegations about the lack of pre-deprivation process, this Court specifically held that the addition of a pre-deprivation hearing "would not lower the risk of an erroneous deprivation very much, if at all." See Fox I, 851 F.Supp.2d at 34. So the Court need not address plaintiffs' repetition of the arguments already made and rejected in Fox. Compare Fox I, 851 F.Supp.2d at 34 with Pls.' Opp. at 37-46.
Plaintiffs' allegation regarding the insufficiency of the post-deprivation process also fails. They contend: "[t]he District did not provide any post-deprivation process to [plaintiffs] by providing [them] a refund and damages for [their] arrest and forced `post and forfeit' because a motion to set aside the forfeiture under D.C. Code § 5-335.01(g) reinstates the prosecution and does not provide damages." Jackson Am. Compl. ¶ 148. But this contention does not make sense since the property plaintiffs claim they were deprived of without due process was the $35.00. Pls.' Opp. at 39. To the extent they are alleging the deprivation of a liberty interest without due process, utilizing post-and-forfeit accomplished their release before they could have been brought before the court in the morning, and still offered them the option of challenging the arrest later. D.C. Code § 5-335.01(d)(6) allows an arrestee who changes his mind about the forfeiture to return to the status quo prior to his payment of the forfeited collateral: he can get a refund and proceed with the charge against him. Since section 5-335.01 does not provide the legal basis for the underlying arrest, it need not provide a remedy for that arrest, and its failure to do so does not make it procedurally insufficient.
In a count titled "complete lack of process," plaintiffs allege that "[a]llowing the MPD to use the coercive powers of the criminal justice system by arresting [them] without probable cause and then to abandon all procedural protections guaranteed accused persons under the Fifth Amendment by forcing [them] to `post and forfeit' on an offense [they] did not commit violates the due process clause of the Fifth Amendment." Jackson Am. Compl. ¶ 180. In the opposition memorandum, plaintiffs explain that this claim is based on the Fifth Amendment right to "certain basic substantive and procedural protections before the government can deprive persons of property or liberty in connection with an arrest." Pls.' Opp. at 49. The District has moved to dismiss this claim on the grounds that it is "merely a re-packaging" of plaintiffs' other Fifth Amendment claims. Def.'s Mem. at 20; Def.'s Reply at 12. The Court agrees, and it will dismiss it for the same reasons it dismissed those counts. It also underscores that there is a count in all of these complaints addressing an alleged pattern and practice of making disorderly conduct arrests without probable cause, ostensibly facilitated by the use of the post-and-forfeit procedure, which is not the subject of this motion and will be left standing after the entry of the Court's order.
Plaintiffs next assert that the post-and-forfeit statute is void for vagueness. Jackson Am. Compl. ¶¶ 166-175. The "void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citations omitted). The purpose of the doctrine is to prevent "`a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'" Id. at 358, 103 S.Ct. 1855, quoting Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
Plaintiffs point out that in Kolender, the Court held that a criminal disorderly conduct statute that permitted police officers to arrest individuals who failed to provide "credible and reliable" identification was unconstitutionally vague because it failed to describe with sufficient particularity what an individual must do to satisfy the identification requirement. 461 U.S. at 361, 103 S.Ct. 1855. In Washington Mobilization Committee v. Cullinane, the court considered a regulation that prohibited citizens from crossing a police line without authority and required them to obey any police order "necessary" to effectuate the purposes of the line. 566 F.2d 107, 118 (D.C.Cir.1977). It held that the regulation's use of the word "necessary" did not give the police unfettered discretion because the regulation only allowed police officers to establish police lines to accomplish specified and narrow purposes and to issue orders related to the accomplishment of those goals. Id. at 118-19.
But unlike the statutes in Kolender and Cullinane, D.C. Code § 5-335.01 is not a "penal statute." It does not criminalize or require certain actions, and it cannot form the basis for an arrest or prosecution. See Black's Law Dictionary 1544 (9th ed.2009) (defining penal statute
Even if the doctrine applied, plaintiffs' claim would still fail because the statute is not vague. The statute provides that "a person charged with certain misdemeanors may simultaneously post-and-forfeit an amount as collateral ... and thereby obtain a full and final resolution of the criminal charge." D.C. Code § 5-335.01(a). This language defines the procedure "with sufficient definiteness that ordinary people can understand" what it is and how it operates; it explains who is eligible and what arrestees get in exchange for the forfeited collateral. The statute also limits police discretion by requiring the Chief of Police to publish a list of the misdemeanor charges that may be resolved using the post-and-forfeit procedure and the amount of collateral associated with each charge. Id. § 5-335.01(g).
Plaintiffs maintain that the statute is vague because it allows police officers to arrest an individual for one charge and then offer him the chance to post-and-forfeit on another charge that is not supported by probable cause. Jackson Am. Compl. ¶ 174. But the statute does not authorize such behavior. It requires the officer to identify the misdemeanor crime to be resolved using the post-and-forfeit procedure, D.C. Code § 5-335.01(d)(1), and if an individual believes that there is no probable cause to arrest or charge him with that offense, he may bring a false arrest claim or a malicious prosecution claim (if applicable). See Pitt v. District of Columbia, 491 F.3d 494, 510-11 (D.C.Cir. 2007). Therefore, the statute is not void for vagueness because it is not "an unrestricted delegation of power, which in practice leaves the definition of its terms to law enforcement officers, and thereby invites arbitrary, discriminatory and overzealous enforcement." See Cullinane, 566 F.2d at 117 (citation omitted).
In addition to their section 1983 claims, plaintiffs also assert a common law conversion claim: "The District is liable in conversion for illegally taking money from [plaintiffs] pursuant to the `post and forfeit' procedure as applied to [them]. The District, through its agents, participated in (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) over the personal property of [plaintiffs], (4) in denial or repudiation of [their] rights thereto." Jackson Am. Compl. ¶¶ 183-84. The only difference between this claim and the conversion claim in Fox is the addition of the words "illegally" and "as applied to [them]." See Fox II, 923 F.Supp.2d at 309. The Court has already held that a "`formulaic recitation of the elements of [the] cause of action,' is insufficient to state a claim for conversion." Id., citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955. And merely inserting the conclusory words "illegally" and "as applied" do not add any factual substance to the claim.
Plaintiff Jackson contends that a D.C. police officer arrested him for using profanity in violation of the First Amendment right to free speech, and he seeks to hold the District liable for that alleged constitutional violation under section 1983. Jackson Am. Compl. ¶¶ 151, 160-64. The District has moved to dismiss this count on the grounds that Jackson has failed to plausibly allege that the alleged First Amendment violation was caused by a District policy or custom. Def.'s Mem. at 20-21.
To state a claim against a municipality under section 1983, a plaintiff must plead sufficient facts to indicate that the municipality was acting in accordance with an official government policy or custom, and that it was the policy that caused the claimed constitutional deprivation. See Monell, 436 U.S. at 691, 694, 98 S.Ct. 2018. Indeed, the policy or custom must be "the moving force behind the constitutional violation." Carter, 795 F.2d at 122, quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018; see also Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (requiring an affirmative link between the city's policy and alleged constitutional violation).
A municipality cannot be liable for the unconstitutional conduct of its employees based simply on a respondeat superior or vicarious liability theory. Monell, 436 U.S. at 693, 98 S.Ct. 2018; see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). "[W]hile Congress never questioned its power to impose civil liability on municipalities for their own illegal acts, Congress did doubt its constitutional power to impose such liability in order to oblige municipalities to control the conduct of others." Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (emphasis in original). "The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Id.
The fact that this claim arises under section 1983 does not relieve Jackson of the obligation to satisfy the criteria established in Iqbal and Twombly.
The complaint alleges that the District is liable for the violation of Jackson's First Amendment rights because his arrest was effectuated "pursuant to a pattern and practice of the MPD in which the District acquiesces." Jackson Am. Compl. ¶ 161. The first problem with this allegation is that acquiescence is not causation; it is essentially a vicarious liability allegation. Moreover, Jackson does not provide any factual allegations to support this conclusion. He does not provide any facts to indicate that the District had a pattern and practice of arresting people for engaging in speech protected by the First Amendment; in fact, he does not provide any facts to support this claim beyond the details surrounding his individual arrest. Therefore, Jackson has failed to plausibly allege that the violation of his First Amendment rights was caused by a pattern and practice of the District.
The complaint also contends that Jackson's alleged unconstitutional arrest was caused by a District policy. He points to the disorderly conduct statute, D.C. Code § 22-1321, as the District policy and alleges that the "statute, as applied to Mr. Jackson, violated his First Amendment rights." Jackson Am. Compl. ¶ 163.
Jackson relies on Daskalea v. Washington Humane Society, 480 F.Supp.2d 16 (D.D.C.2007) and Barnes, 793 F.Supp.2d at 260 to support his position. In Daskalea, the plaintiffs alleged that the District was liable for the Washington Humane Society's execution of the District's animal cruelty law because the law itself was facially unconstitutional. 480 F.Supp.2d at 29. The court held that "[b]ecause a legislative enactment that is unconstitutional constitutes `the explicit setting of policy,' Plaintiffs have adequately alleged that the District of Columbia `caused' the constitutional violation" and therefore the District may be held liable under section 1983. Id., quoting Baker, 326 F.3d at 1306.
In Barnes, the class action plaintiffs alleged the District's Department of Corrections violated their substantive due process rights by detaining them after they were ordered released by a court or their sentences expired. 793 F.Supp.2d at 266. They sought to hold the District liable under section 1983 on the grounds that "the due process rights of certain overdetained class members were violated as a direct result of the District's `10 p.m. cut-off' ordinance," which prohibited the release of individuals between 10:00 p.m. and 7:00 a.m. Id. at 268, 272, 277. The court held that the District could be held liable because the "10 p.m. cut-off rule" was an "`express municipal policy' that could lead to Section 1983 liability for the District, whether or not the District was `deliberately indifferent' to the overdetention problem.... Overdetentions caused by the District's ordinance are clearly constitutional violations executed in accordance with District policy officially adopted and promulgated by the Council." Id. at 282.
In both Daskalea and Barnes, the court held that the District could be liable under section 1983 because the plaintiffs alleged or demonstrated that the constitutional violations were caused by a District policy. Jackson's case is distinguishable because he failed to allege causation. Unlike the plaintiffs in Daskalea who alleged that their injuries had been caused by the District's enactment of a facially unconstitutional statute, 480 F.Supp.2d at 29, here, the complaint does not allege that the disorderly conduct statute is unconstitutional on its face. Rather, it alleges that the "statute, as applied to Mr. Jackson, violated his First Amendment rights." Jackson Am. Compl. ¶ 163 (emphasis added).
Further, unlike in Barnes where the overdetention was caused by an ordinance that required the continued detention of individuals who were entitled to immediate release, 793 F.Supp.2d at 268, here, Jackson has not explained how the disorderly conduct statute mandates, or even permits, arrests for speech protected by the First Amendment.
In his opposition memorandum, Jackson attempts to alter his claim by arguing that "[t]he District is liable under § 1983 because [the police officer] arrested Mr. Jackson pursuant to D.C. Code § 23-1331(1)[sic] and D.C. Code § 23-1331(1)[sic]
For the reasons stated above, the Court will grant the District's motion to dismiss plaintiffs' post-and-forfeit claims and plaintiff Jackson's First Amendment claim for failure to state a claim under Rule 12(b)(6). A separate order will issue.
Further, the argument is unsupported by the text of section 23-1110 or by case law. D.C. Code § 23-1110(b)(2) states that when a person is arrested without a warrant for committing a misdemeanor and is booked and processed, a designated police officer "may issue a citation to him for an appearance in court or at some other designated place, and release him from custody." The use of the word "may" indicates that citation release is discretionary and not guaranteed.
With respect to collateral release, plaintiffs point to a number of cases from the 1970s that state that "the police are required to advise a person arrested for a minor offense of the option of posting collateral and to give him the opportunity of exercising that option." See Pls.' Opp. at 24, citing Wash. Mobilization Comm. v. Cullinane, 400 F.Supp. 186, 214 (D.D.C.1975), reversed in part on other grounds by 566 F.2d 107 (D.C.Cir. 1977); and United States v. Mills, 472 F.2d 1231, 1240 (D.C.Cir. 1972). But plaintiff has not explained why the post-and-forfeit procedure, which gives an arrestee the opportunity to post collateral and avoid further detention, does not fulfill this requirement.
