Fox v. District of Columbia

• Decision Date: 30 March 2012
• Docket Number: Civil Action No. 10–2118(ABJ).
• Citation: 851 F.Supp.2d 20
• Parties: Barbara FOX, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

851 F.Supp.2d 20

Barbara FOX, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 10–2118(ABJ).

United States District Court,

District of Columbia.

March 30, 2012.

Sean Robert Day, Law Office of Sean Robert Day, Greenbelt, MD, William Charles Cole Claiborne, III, Law Office of William Claiborne, III, Falls Church, VA, for Plaintiffs.

Jacques P. Lerner, Office of the Attorney General for DC, Washington, DC, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

Plaintiffs Barbara Fox and Hamilton P. Fox, III brought this action against two Metropolitan Police Department officers in their individual capacities and the District of Columbia [Dkt. # 15]. They allege eight causes of action arising from a dispute between Mr. Fox and the officers that ultimately led to Mr. Fox's arrest for disorderly conduct and his 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. Five of the claims (Counts 4–8) are brought solely by Mr. Fox against the District of Columbia, challenging the constitutionality of the post-and-forfeit procedure under Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution of the United States.¹ Mr. Fox has also moved for class certification on those counts [Dkt. # 14]. The District of Columbia has moved to dismiss all claims against it for lack of standing and failure to state a claim [Dkt. # 19].² Because the Court finds that the complaint fails to state a claim that the post-and-forfeit policy violates plaintiff's due process rights either facially or as applied, and that the other claims against the District of Columbia have been conceded, the Court will grant the District of Columbia's motion to dismiss Counts 4 through 8.

Plaintiffs have also moved for leave to file a second amended complaint in this case, which retains Counts 1 through 3, but includes additional factual background and expands on the legal theories behind the claims against the District of Columbia. Because some of proposed amended counts merely restate legally deficient claims from the first amended complaint, the Court will deny leave to amend those claims on futility grounds. (Counts 5, 5A, 6, 6A, 7, and 8). The Court will grant leave to amend, though, with respect to the two new claims that were not raised in previous versions of the complaint, without prejudice to any responsive motions the defense may choose to file. (Counts 4A and 9).

The District has not moved to dismiss the individual counts, so Mr. and Mrs. Fox will have a full opportunity to pursue their claims against the arresting officers for alleged violations of their constitutional rights during the encounter on the street. But the challenge to the post-and-forfeit procedure fails, although not for lack of trying. Plaintiff has now provided the Court with three different versions of a prolix complaint—each longer and more detailed than the one that came before. The matter has been briefed extensively, and the Court held a lengthy hearing. Yet plaintiff has yet to articulate just what it is that is wrong with offering someone charged with a minor offense the choice to contest the charge in court or to pay a small sum and go home.

The fundamental flaw at the heart of plaintiff's case is that while his papers are generously seasoned with strong language connoting wrongdoing—“force,” “coerce,” “exact,” “deprive,” and “take,” and the allegations all turn upon the city's alleged policy of “making” arrestees pay money, there simply was no coercion, taking, or deprivation inherent in the voluntary exchange that was offered and accepted in this case. Moreover, plaintiff was fully apprised of, but elected to forego, his right to seek to set aside the forfeiture and contest the arrest. Plaintiff makes extensive references to evidence adduced in another case which might be marshaled in support of allegations that the District remains deliberately indifferent to a pattern of disorderly conduct arrests made without probable cause, but there is no count in either the first or the second amended complaint that actually seeks to impose municipal liability for that sort of unconstitutional deprivation of liberty, and none of that has anything to do with all of the other offenses for which post-and-forfeit is an available option. The gravamen of every one of the class claims—as stated and as proposed to be restated—is that there is something abhorrent, unlawful, and unconstitutional about the post-and-forfeit procedure itself. But with respect to that particular practice, plaintiff has simply failed to state a claim upon which relief can be granted.

BACKGROUND

A. Factual Background

The events leading to this case began when Mr. Fox was approached by a police officer from the Metropolitan Police Department (“MPD”) while sitting in his idling car in a “no parking” zone waiting for his wife to come out of a nearby drug store. Am. Compl. ¶ 19. An Officer B.L. Squires pulled up behind the car and told Mr. Fox that he needed to move. Id. ¶¶ 23–26. Since he was “standing,” and not “parking,” Mr. Fox reasoned that he was in compliance with the signs governing the location, and he took issue with the officer's instructions. The officer was unmoved, Mr. Fox asked to speak to a supervisor, and ultimately, the officer would not permit the Foxes to leave the scene even after Mrs. Fox had returned to the car. Numerous other officers arrived, and according to the complaint, “Mr. Fox then made a remark to an arriving officer, within earshot of Officer Squires and other officers, that was derogatory of Officer Squires' intelligence and competence.” See id. ¶¶ 24–33. It is not necessary to recite all of the details of the stand-off that ensued here. What matters for purposes of the instant motions is that Mr. Fox was ultimately issued a parking citation, placed under arrest, and transported to the police station, where he was placed in a holding cell. Id. ¶¶ 163–164. He was charged with the D.C.Code offense of “disorderly conduct—loud and boisterous.” D.C.Code § 22–1321(1); Am. Compl. ¶ 15.

Mr. Fox alleges that while he was in the holding cell, he witnessed a police officer ask another arrestee whether he was willing to post thirty five dollars to be released. Am. Compl. ¶ 167. When the man declined to pay, the officer allegedly told him, “OK, you're going to Central Cellblock” and he was hauled away. Id. ¶ 169.

A few hours after Mr. Fox was put in the holding cell, an officer brought in Mrs. Fox and asked her “whether she would pay Mr. Fox's $35.00 ‘post & forfeit’ amount.” Am. Compl. ¶ 173. Although Mrs. Fox responded “yes,” she apparently left the jail without paying the money and, instead, Mr. Fox was given a “post-and-forfeit” form to sign and allowed to pay the thirty five dollars himself. Id. ¶¶ 179, 186, 196.

The form, which Mr. Fox read, stated the offense he was charge with and indicated that he was being offered the option to post-and-forfeit a collateral. Id. ¶ 180. The form read:

You are eligible to elect to forfeit collateral for this charge. If you elect to forfeit the collateral amount assigned to the charge, you are agreeing to waive your right to a hearing in court, and the case against you will be concluded without an admission of guilt. However, you will have an arrest record of all charges for which you forfeited collateral.

Forfeiture is final unless you (or your attorney) file a “Motion To Set Aside Forfeiture” within 90 days from the date of the forfeiture. You may wish to file this motion if you decide to contest the charge at a later date.

* * *

By signing this form, you are acknowledging that it is your choice to elect to forfeit the collateral amount set for this charge, and that by doing so, you are agreeing to waive your right to a hearing in court.

Ex. 3 to Pl.'s Mot. to Certify Class [Dkt. # 14–3].³ The back of the form stated: “IF YOU ARE ELIGIBLE FOR ONE OR MORE OF THESE EARLY RELEASE OPTIONS, AND YOU DO NOT ELECT ONE, YOU WILL NOT BE RELEASED BEFORE YOU ARE PRESENTED TO COURT ON YOUR CHARGES.” Ex. 4 to Pl.'s Mot. to Certify Class [Dkt. # 14–4]. Although the form also described “release on bond” and “citation release,” Mr. Fox was not offered either of these options. Id.; Am. Compl. ¶ 189.

Mr. Fox signed the form and paid the thirty five dollars. Am. Compl. ¶ 185. He alleges that he finished the administrative procedures incident to arrest no more than fifteen minutes later, and was released from jail about four hours after that. Id. ¶¶ 186–87, 199. He alleges that in total, he spent approximately nine hours in jail. Id. ¶¶ 164, 199. After his release from jail, Mr. Fox did not exercise his statutory right to seek to have the forfeiture set aside and contest the charges by filing a motion in Superior Court.

Mr. and Mrs. Fox filed the first amended complaint (“complaint”) in this action on April 18, 2011. Counts 1, 2, and 3 are filed against the officers in their individual capacities and are not at issue here.⁴ Am. Compl. ¶¶ 49–60. Counts 4 through 8 are filed as class action claims against the District of Columbia under 42 U.S.C. section 1983 and seek compensatory and consequential damages as well as injunctive relief.⁵Id. ¶¶ 231–63. At the March 20, 2012 motion hearing in this case, plaintiff orally conceded Count 4, which alleges that the post-and-forfeit process adds delay to plaintiffs' release once the right to release attaches, in violation of their Fourth Amendment rights. Id. ¶¶ 231–36; Rough Tr. (Mar. 20, 2012) (“Tr.”) at 26. Counts 5 and 6 allege that the post-and-forfeit policy constitutes deliberate indifference to plaintiff's Fifth Amendment due process rights on its face and as applied, respectively. Id. ¶¶ 237–52. Counts 7 and 8 allege that the post-and-forfeit policy constitutes deliberate indifference to plaintiffs' Sixth Amendment right to counsel and Eight ...