The third time was the charm for plaintiffs in a class action against the District of Columbia over how it forfeits cash seized by police during an arrest. After two motions for class certification failed to meet the proper criteria, the plaintiffs succeeded this week on their third and, in the court's eyes, final attempt.
Police can seize cash as part of a drug arrest, but D.C. law requires the city to notify individuals before that money is forfeited to the city. The complaint, which was filed in Washington federal court in 2009, accused the city of failing to notify arrested individuals before forfeiture.
It's a case that could cover several thousand people, according to the opinion (PDF) that U.S. District Judge Robert Wilkins released on August 22. Wilkins granted class certification to two groups of individuals who had cash seized during an arrest: those who claimed they never received notification of the forfeiture and those who claimed they were never notified while incarcerated.
The plaintiffs' push for class certification began in September 2009. The court denied their first two motions for certification, finding problems with the proposed class definitions. Wilkins gave them one more chance to get it right.
"We're grateful that the court gave us sufficient opportunity to clarify the issues," said Washington solo practitioner Sean Day, a lead co-counsel for the plaintiffs. He is handling the case with fellow solo practitioner Henry Escoto.
The city attorney general's office, through spokesman Ted Gest, declined to comment.
The complaint (PDF) accused the city of failing to take steps to make sure forfeiture notices were received. Wilkins noted in his opinion that in 2009, for instance, the city received about 2,000 unsigned mail receipts from the 3,000 asset forfeiture notices it sent out. He cited testimony from a police officer that officers generally didn’t follow up on mail that returned undelivered.
Without notification, the plaintiffs alleged, they were denied a right to challenge the forfeiture in violation of their Fifth Amendment right to due process.
Both sides now have until September 12 to file a joint proposed schedule for the case moving forward. Given that the case has been held up since 2009 on the class certification issue, Wilkins wrote in his order that he "expects the parties to propose a schedule that will move this matter apace."