[00:00:01] Speaker 00: Case number 22-7129, et al. [00:00:04] Speaker 00: Oyoma Asinor and Ryan Dozier, at balance, versus District of Columbia, et al. [00:00:09] Speaker 00: Mr. Perloff, for the at balance, Ms. [00:00:11] Speaker 00: Coburn, for the at police. [00:00:20] Speaker 04: Good morning, counsel. [00:00:22] Speaker 04: Judge Henderson is with us. [00:00:23] Speaker 04: You can't see her, but she will be. [00:00:26] Speaker 04: Please proceed when you're ready. [00:00:28] Speaker 02: Thank you, Your Honor, and good morning. [00:00:30] Speaker 02: Michael Perloff, for plaintiff's appellants and may have pleased the court, I have reserved two minutes of my time. [00:00:35] Speaker 02: The Supreme Court has interpreted the Fourth Amendment seizure clause to apply to meaningful interferences within individuals' possessory interests in their property. [00:00:49] Speaker 02: One way the government can meaningfully interfere with someone's property is by taking possession [00:00:55] Speaker 02: Prolonging the retention of property it previously took is another. [00:01:01] Speaker 04: Can I just ask on that? [00:01:05] Speaker 04: What you say makes a lot of sense as an intuitive matter, but you do have a little bit of a textual problem. [00:01:14] Speaker 04: The Fourth Amendment governs seizures the most natural [00:01:20] Speaker 04: understanding of the word seizure is, it's something that happens quickly, and then it's done. [00:01:28] Speaker 04: So how do you get over that problem? [00:01:32] Speaker 02: Well, we appreciate your honor thinks our position makes sense. [00:01:33] Speaker 02: That's always a good start. [00:01:35] Speaker 02: As for the textual matter, we think that as a matter of text, our conception of seizure fits quite comfortably with the Fourth Amendment. [00:01:43] Speaker 02: And that's by looking back at the dictionary definitions of the word seizure from the time of the founding. [00:01:49] Speaker 04: We've cited several different dictionaries from the founding era, the same ones that Johnson says, take hold of, take possession, take forcible possession. [00:01:59] Speaker 04: It's a discreet act. [00:02:02] Speaker 02: It also says possession, though, as does the dictionary from Webster and the modern dictionary. [00:02:08] Speaker 02: Webster also says that seizure encompasses the state of being seized. [00:02:13] Speaker 02: And it says that that definition traces back to the 15th century. [00:02:17] Speaker 02: So when we're looking at the word seizure, as it was understood at the time of the founding through today, it not only had the definition of taking of possession, which we recognize is relatively short term act, but also had the definition of possession, which applies to the context that we're talking about. [00:02:34] Speaker 02: In addition to looking at the dictionary definition, we also look at the way that similar concepts existed at common law. [00:02:41] Speaker 02: And so we talk in our briefs about how, at common law, property that was taken, even if it was lawfully taken, could still give rise to liability if the person who obtained possession failed to return it. [00:02:55] Speaker 02: Blackstone recognized that there were claims of detenue and trover, and various scholars have recognized that those claims could arise against federal officials. [00:03:04] Speaker 02: there were cases that we cited where there were officers who actually seized property pursuant to writs of attachment. [00:03:10] Speaker 02: These are 19th century cases from state Supreme courts that involved law enforcement officers seizing properties pursuant to writs of attachment and then being found liable for failing to give it back after the litigation succeeded in favor of the party who owned the property. [00:03:27] Speaker 02: I'd also refer the court to the historian's brief [00:03:29] Speaker 02: which cites additional cases from the 1700s in parts D1 and 2 that endorse the same principle. [00:03:37] Speaker 02: So in terms of the text, we think when the text is read in a manner consistent with both dictionary definitions and history, it supports our definition and also, quite frankly, common usage, Your Honor. [00:03:48] Speaker 02: Because we can use seizure in a sentence to mean, for instance, he seized the personature. [00:03:54] Speaker 02: We can also use seizure in a sentence like we're using it here. [00:03:57] Speaker 02: For instance, the seizure of Miss Lin lasted longer than its reasonable duration allowed. [00:04:02] Speaker 02: So as a matter of text, history, and common sense, we think our definition fits quite comfortably with the Fourth Amendment commits. [00:04:08] Speaker 02: And it also fits well with precedent. [00:04:11] Speaker 02: And that's where I'd like to turn. [00:04:13] Speaker 02: So Your Honor, there are several principles that come from the Supreme Court's decision in Jacobson, through its application and interpretation of place, and that then were reaffirmed in Sagura, that we believe are quite central to a resolution of this appeal. [00:04:30] Speaker 02: The first of those principles is that the seizure clause governs the manner of execution of property after possession is secured, even if possession is secured on probable cause. [00:04:40] Speaker 04: And the government. [00:04:41] Speaker 04: The manner of execution might connote what happens during the relatively brief time when the seizure is affected. [00:04:58] Speaker 04: It feels a little bit different from the long-term possession question. [00:05:06] Speaker 02: Your honor, we know that manner of execution lasts beyond just the moments where the government is taking possession of the property because Jacobson tells us that. [00:05:15] Speaker 02: And Jacobson, the court said that a seizure reasonable at its inception can become unreasonable based on its manner of execution. [00:05:22] Speaker 04: True, but citing place, which is just about the scope of a Terry seizure for property. [00:05:29] Speaker 02: It's true that place is just about the Terry seizure property, but Jacobson applies the reasoning of place to a seizure initiated on probable cause. [00:05:39] Speaker 02: And it says that the manner of execution can give rise to liability where the only issue with respect to the manner of execution in place was its length. [00:05:48] Speaker 02: So while we understand that place might not itself resolve this dispute, Jacobson's construction and application of place to circumstances that go well beyond its, [00:05:58] Speaker 02: its reasoning suggests that the Supreme Court understood and was attempting to take that rule and recognize that it spoke for something broader. [00:06:06] Speaker 02: And that approach that the court took in Jacobson, which they then affirmed in its approach in Segura, is also similar to what the courts have done in the criminal suppression. [00:06:15] Speaker 02: So I would note there, Your Honor, that those courts in holding that seizures lawfully initiated can become unreasonable because of a tardy warrant application. [00:06:24] Speaker 02: Those cases rely on Jacobson. [00:06:26] Speaker 02: For instance, the Third Circuit's decision in Stable, [00:06:29] Speaker 02: Fourth Circuit's decision in Pratt. [00:06:31] Speaker 02: They also rely on place. [00:06:33] Speaker 02: Both of those decisions look to place as well. [00:06:34] Speaker 02: Again, even though the seizures were initiated on probable cause. [00:06:39] Speaker 02: And those cases also look to Segura, which the government discounts because it's a rule that came out of two different opinions. [00:06:46] Speaker 02: So what I think that indicates, Your Honor, is that these courts are interpreting place Jacobson and Segura to establish a broader constitutional principle. [00:06:56] Speaker 02: a constitutional principle that protects rights and possessory interests, and specifically the right that was at issue in all three of these cases, the ability to regain property after it was lawfully taken. [00:07:07] Speaker 02: And that's exactly how the criminal suppression cases explain their rule. [00:07:12] Speaker 02: Here's what the 11th Circuit said in sparks, quote, the purpose of the diligence requirement is to ensure that property ought to contain contraband. [00:07:21] Speaker 02: can be returned promptly to its owners to limit the intrusion on their possessory interest should contraband not be found. [00:07:28] Speaker 02: That conception of the Fourth Amendment protecting the ability to get property back underlies what these other courts are doing and comports with Jacobson's definition of a seizure as encompassing [00:07:39] Speaker 02: meaningful interference with possessory interests and so dolls conclusion that the Fourth Amendment application turns not on the purpose of the officer, but rather on the intrusion, the possessory interests of the officer engages in. [00:07:52] Speaker 02: Now, I also want to return a bit to your honor's question about whether or not just this act of executing the seizure should be when it ends. [00:08:00] Speaker 02: Another point I think is that it's important to keep in mind there is that many of the other cases outside the criminal suppression context have applied the Fourth Amendment, even though all meaningful actions in relation to the seizure have terminated. [00:08:12] Speaker 02: For instance, the district court's decision in Avila involved a claim that a seizure that lawfully initiated was unreasonably prolonged. [00:08:21] Speaker 02: And the court found that claim valid even though the claim involved time that occurred and the court counted time that occurred. [00:08:29] Speaker 02: after a warrant had been secured and the property had been searched. [00:08:32] Speaker 02: Moms Inc. [00:08:33] Speaker 02: from the Fourth Circuit involved another case involving a seizure occurring after a warrant had been obtained. [00:08:40] Speaker 02: And those 19th century common law cases that I mentioned earlier, both also found that liability could attach for interferences occurring after the acquisition of, after the, after lawful process occurred in the form of Richmond. [00:08:54] Speaker 02: Find no appeal on the Fifth Amendment. [00:08:56] Speaker 02: Your honor, we decided not to appeal the Fifth Amendment because we believe our fight isn't with the district court over its rules and its rules for processing property, but rather with MPD and over its procedures for handling the return of property. [00:09:12] Speaker 02: Not in terms of the procedures, but the actual conduct and the way that it refuses to give property back. [00:09:17] Speaker 02: And I think your honor's question reflects an important distinction between the Fourth Amendment and the Fifth Amendment. [00:09:26] Speaker 02: The Fourth Amendment governs conduct. [00:09:29] Speaker 02: The Fifth Amendment governs process. [00:09:31] Speaker 02: The Fourth Amendment is directed towards law enforcement officers. [00:09:35] Speaker 02: It exists to ensure that law enforcement officers, when interacting with property, recognize the substantive rights that people have in their [00:09:44] Speaker 02: The Fifth Amendment exists to speak to magistrates and legislatures to ensure that they provide adequate process so that when the government infringes rights, when law enforcement's violate those sorts of rights that are secured by the Fourth Amendment, there's a backstop. [00:10:00] Speaker 02: Our issue in this case is with the first type of problem, the conduct of the law enforcement officers in failing to recognize the substantive rights protected in the concept of a seizure. [00:10:10] Speaker 03: Are the remedies different? [00:10:13] Speaker 02: The remedies may be different, Your Honor, in certain cases. [00:10:17] Speaker 02: For instance, in this matter, the court said that Rule 41G satisfies due process. [00:10:24] Speaker 02: All you get as a result of 41G is your phone back. [00:10:28] Speaker 02: Our clients, though, have additional injuries. [00:10:30] Speaker 02: They don't just need their phones back. [00:10:32] Speaker 02: They also deserve to be compensated for the time period that they were not able to use their phone. [00:10:38] Speaker 03: And you're assuming the 41G process or whatever it might be in federal court would not include that remedy? [00:10:44] Speaker 02: The 41G process that the district court looked to was the one in Superior Court. [00:10:49] Speaker 03: And we know- Yeah, I know. [00:10:50] Speaker 03: How does the federal court, what is your understanding? [00:10:52] Speaker 03: I'm sorry to sidetrack, but I'm trying to get this straight in my head. [00:10:55] Speaker 03: What is your understanding of what the district court meant to say about the federal court's authority to be able to invoke 41G in a civil process, in a civil suit like this? [00:11:06] Speaker 02: Your honor, I'm not sure. [00:11:09] Speaker 02: I think that the- 41G is a federal rule. [00:11:12] Speaker 02: 41G is a federal rule, but the district court was looking at the Superior Court's 41G. [00:11:15] Speaker 02: And the reason for that is that in a due process claim, federal procedural remedies are irrelevant. [00:11:21] Speaker 02: The question is whether the state has provided adequate procedural remedies. [00:11:25] Speaker 02: And so the district court looked to the federal case law on rule 41G [00:11:29] Speaker 02: solely to understand the scope of the state rule, because it thought that the federal case law might shed light on that. [00:11:37] Speaker 02: But the federal practices aren't really dispositive of the Fifth Amendment claim. [00:11:41] Speaker 02: In any event, what I would know for your honor is that we know of no case holding that under the Superior Court rule, you can get damages or a prolonged seizure. [00:11:50] Speaker 02: And our understanding is that it's at least very highly questionable whether you could do that under the federal rule as well. [00:11:56] Speaker 03: One last question, and we'll sidetrack you further. [00:11:59] Speaker 03: Is it your sense that you could have pushed on 41G in the federal court proceeding, in the civil proceeding, and said, look, whether we can get damages or not is another question we want our property back? [00:12:14] Speaker 02: I don't think we could have brought a 41G claim in this case, because that's a claim under the criminal rules. [00:12:19] Speaker 02: And so it would need to be on the criminal doctrine. [00:12:20] Speaker 02: Interesting. [00:12:22] Speaker 03: Case law is very confusing on that. [00:12:24] Speaker 03: OK, go ahead. [00:12:25] Speaker 02: Yes, well, I think, Your Honor, the difficulty in figuring out the right vehicle from the 41G process reflects some of the challenges with that process for ordinary plaintiffs who may not have a criminal case against them and trying to figure out how they are supposed to proceed. [00:12:43] Speaker 02: That I think is the challenges of determining the right vehicle are indicative of that broader problem that many members of the D.C. [00:12:49] Speaker 02: community face in large part because of what the district is doing with individuals' phones. [00:12:57] Speaker 02: I want to make one last point on the substance of our Fourth Amendment claim before turning to the municipal liability issue. [00:13:02] Speaker 02: And that's that looking back at overall what the government proposes, its vision of the Fourth Amendment doesn't make a lot of sense to the point we began talking about. [00:13:10] Speaker 02: It would hold that the Fourth Amendment applies that the government unreasonably keeps your cell phone for 90 minutes on reasonable suspicion, but not if it holds a phone seized incident to arrest for three years. [00:13:21] Speaker 02: It would hold the Fourth Amendment applies if you have to wait, if the government waits a few days to secure a warrant, but not if it holds your phone for three years to force you to cooperate. [00:13:31] Speaker 02: It would say the Fourth Amendment applies if the government intentionally nicks your phone, but not if it intentionally steals it. [00:13:36] Speaker 02: These outcomes don't make any sense and precedent [00:13:40] Speaker 02: and history explain that they are inconsistent with the Fourth Amendment's trying to do. [00:13:44] Speaker 04: What do you do with Tate? [00:13:47] Speaker 04: Tate, Your Honor. [00:13:47] Speaker 04: Tate. [00:13:48] Speaker 04: Yes. [00:13:48] Speaker 04: Of course, to say it seems like probably the hardest one for you in my view. [00:13:55] Speaker 02: Your Honor, Tate exclusively involved a seizure that the government had lawfully obtained title to. [00:14:01] Speaker 04: The court said that- They lawfully booted the car or towed the car or whatever. [00:14:09] Speaker 02: Not just lawfully booted the car. [00:14:10] Speaker 02: The court also said that the court had, the car had gone through the district's forfeiture procedures and that was why there wasn't a takings claim because the district had gained lawful title. [00:14:21] Speaker 04: But when we came to the Fourth Amendment part of the analysis, we didn't say the car had been forfeited, so now it's government property, so no issue. [00:14:40] Speaker 04: We said that the government had lawfully possessed the car. [00:14:47] Speaker 04: So seizure over, I think we cited, don't hold me to this, I think we cited Hadari or Thompson or one of those cases that says seizure is a temporally limited event. [00:15:02] Speaker 04: It was Hadari. [00:15:07] Speaker 04: Judge Henderson, you have a question? [00:15:09] Speaker 00: No, I was just saying it was Hodari. [00:15:11] Speaker 02: Right. [00:15:13] Speaker 02: Your honor, the decision in Tate, I think it's important to read in terms of its facts. [00:15:19] Speaker 02: And that certainly allows it to harmonize with Jacobson and Blaze, which exclusively make, and Segura, which makes clear that a seizure, that conduct occurring after possession is secured [00:15:32] Speaker 02: and in fact seizure. [00:15:33] Speaker 02: But I also would just say, and I know my time is up, but I would just say that Tate also poses problems for the government as well. [00:15:40] Speaker 02: If I may just make that point briefly. [00:15:42] Speaker 02: The government says that Jacobson applies to additional intrusions in property that convert the character of the initial seizure. [00:15:50] Speaker 02: It's hard to see how a sale of a car wouldn't be a Fourth Amendment violation under their theory as well. [00:15:57] Speaker 02: So we think when tapes read in light of its facts, it does impose an issue with our precedent or our theory, but if it's read broader, it poses just as much a problem for them as for us. [00:16:06] Speaker 02: And I'll read the rest. [00:16:07] Speaker 02: Thank you. [00:16:09] Speaker 04: Judge Henderson, any questions? [00:16:11] Speaker 04: No questions. [00:16:11] Speaker 04: Thank you. [00:16:12] Speaker 04: Judge Edward? [00:16:13] Speaker 04: Okay, thanks. [00:16:14] Speaker 04: We'll give you some more time. [00:16:26] Speaker 04: Ms. [00:16:27] Speaker 04: Coburn, good morning. [00:16:28] Speaker 01: Good morning, Your Honors. [00:16:30] Speaker 01: Thank you and may please the court, Marcella Coburn for the District of Columbia at Pellies. [00:16:35] Speaker 01: Plaintiff's cell phones were seized incident to their lawful arrests. [00:16:38] Speaker 01: No one disputes that the arrests and the seizures were lawful at the time the government took possession of the phones. [00:16:43] Speaker 01: Question instead is whether the government's continued possession of those phones is also a seizure under the Fourth Amendment. [00:16:50] Speaker 01: The answer is no, as seven circuit courts agree. [00:16:53] Speaker 01: Instead, as those courts have held, and as the Supreme Court said in the City of West Covina, the due process clause governs procedures about return of personal property. [00:17:02] Speaker 01: Superior Court Rule 41G provides plaintiffs adequate remedy to return of their property through the local courts. [00:17:08] Speaker 01: That is what the district court held and plaintiffs do not challenge that ruling here on appeal. [00:17:13] Speaker 01: Instead, the Supreme Court has repeatedly held that the plain meaning of seizure as applied to personal property is a taking possession. [00:17:19] Speaker 01: It is a single act and not a continuous fact. [00:17:24] Speaker 01: That understanding was crucial to the holdings in the circuit courts. [00:17:27] Speaker 01: It's supported by founding era dictionaries, cases like Thompson versus Whitman, and this court's decision in Tate, which comes through. [00:17:33] Speaker 03: You know, the problem is, I hear you, and you do have the circuits for the most part on your side, but both the district court and the government in this argument really are doing a bit of sleight of hand in reading [00:17:49] Speaker 03: what place means. [00:17:51] Speaker 03: The Supreme Court had a chance to follow up on that in Jacobson. [00:17:56] Speaker 03: And the district court focuses extensively on manner of execution. [00:18:01] Speaker 03: That's it, and giving that a very limited view. [00:18:04] Speaker 03: That's not what the Supreme Court said. [00:18:06] Speaker 03: The Supreme Court in Jacobson looked at that in footnote 25. [00:18:09] Speaker 03: It went on to say that [00:18:12] Speaker 03: in place, the court held that while the initial seizure of luggage for the purpose of subjecting it to a dog sniff test was reasonable, the seizure became unreasonable because its length unduly intruded upon constitutionally protected interests. [00:18:30] Speaker 03: So it is not accurate for you all to so straightforwardly say this is only about the initial taking period. [00:18:37] Speaker 03: Length does matter to the Supreme Court, at least so far as the Supreme Court thinks. [00:18:42] Speaker 01: I think the Supreme Court in Jacobson did say that about place. [00:18:45] Speaker 01: And it's certainly true that length did matter in place. [00:18:48] Speaker 01: As we discussed in our brief, I think place is different. [00:18:51] Speaker 01: That's a seizure on something less than probable cause. [00:18:54] Speaker 01: And there, the court said, the seizure is on less than probable cause. [00:18:57] Speaker 01: We're going to impose a limitation on how long that seizure can be. [00:19:01] Speaker 01: But I think the other important language in Jacobson at the beginning of section three of the court's opinion [00:19:06] Speaker 01: where it describes the field test of the cocaine as a, quote, additional intrusion. [00:19:13] Speaker 01: And I think it's that additional intrusion, which is the one that the court says in the manner of execution changes the deprivation from a temporary one to a permanent one because it's a destruction of property. [00:19:25] Speaker 01: I think that's what the court is looking at as a seizure in that case. [00:19:28] Speaker 04: Durational limit matters in the Terry context where we're talking about minimal intrusion, you know, plus or minus a little bit. [00:19:42] Speaker 04: Why in the world wouldn't it matter when we're talking about a seizure lasting months? [00:19:47] Speaker 01: I actually think it makes sense, much more sense, in that context. [00:19:52] Speaker 01: Because the difference is between a seizure based on probable cause and a seizure based on something less. [00:19:57] Speaker 01: And I think the court in Terry and in place was very focused on the idea that because the seizure is not based on probable cause and because there's no warrant, it wants to be very careful about the amount of intrusions the government is paying. [00:20:08] Speaker 04: Is probable cause on the front end? [00:20:11] Speaker 04: There's no continuing investigatory interest in these cell phones. [00:20:17] Speaker 04: You can see that. [00:20:18] Speaker 01: I think that's right. [00:20:19] Speaker 01: But I think what the Supreme Court's cases say and what Thompson versus Whitman says is that the seizure is, except for in that place context, a taking possession. [00:20:29] Speaker 01: And once that taking possession is complete, seizure is complete. [00:20:33] Speaker 01: So that the dictionary definitions that plaintiffs cite [00:20:38] Speaker 01: When you get to the definition of seizure as possession, that's not till the fifth or sixth definition. [00:20:43] Speaker 01: All of the first ones are the act of seizing, the act of laying hold on, the act of taking possession by force. [00:20:49] Speaker 03: But that's not what Jacobson's description, and I don't know how you can just brush it off, as if the words aren't there. [00:20:54] Speaker 03: The seizure became unreasonable because its length unduly intruded on constitutionally protected interests. [00:21:03] Speaker 03: That has a very clear meaning to me. [00:21:05] Speaker 03: You know, it may have been OK initially, but you're still holding this many months later for no reason. [00:21:12] Speaker 03: And the language in Jacobson describing place seems to say the seizure now is unreal. [00:21:19] Speaker 03: It does seizure. [00:21:20] Speaker 03: You are holding my property. [00:21:22] Speaker 03: It still sees. [00:21:25] Speaker 03: It depends on how you look at the word seizure. [00:21:26] Speaker 03: You seize it, and you seize it, and you're holding it, and that's part of the seizure. [00:21:32] Speaker 03: And if you continue to do it forever with no [00:21:35] Speaker 03: basis may have a Fourth Amendment problem. [00:21:38] Speaker 01: I do think that's correct, but I think because Jacobson is talking about place and because place is talking about reasonable suspicion, I think what Jacobson means to say is what we agree with, that in place, the duration is something that the court has to look at when it's assessing the reasonableness of a seizure. [00:21:55] Speaker 03: That's not in the footnote. [00:21:57] Speaker 01: I don't think so. [00:21:59] Speaker 01: It's not, Your Honor, but I think it's in place. [00:22:00] Speaker 01: And I think the court's description of place as a seizure based only on reasonable suspicion is clear. [00:22:06] Speaker 01: And when you look at Jacobson and what Jacobson itself decided, when Jacobson was looking at a seizure based on probable cause, it talked about the manner of execution of that seizure. [00:22:17] Speaker 01: And it talked about the additional intrusion that was occasioned by the destruction of the property in the field test. [00:22:22] Speaker 01: And of course, here we don't have a destruction of property. [00:22:25] Speaker 01: So I don't think Jacobson is a good analogy in this case. [00:22:29] Speaker 04: You concede that the government has a legal obligation to return the cell phones, correct? [00:22:37] Speaker 01: I think this court in the Wilson case did say that. [00:22:40] Speaker 04: If the Fourth Amendment doesn't apply, what is the source of that obligation? [00:22:46] Speaker 04: The due process clause just gives you process. [00:22:48] Speaker 04: You get the hearing to adjudicate some legal question. [00:22:53] Speaker 04: The legal question is, are they entitled to get the property back? [00:22:57] Speaker 04: What source of law gives them that entitlement? [00:23:00] Speaker 01: I think what Wilson says is that it's fundamental to the integrity of the criminal justice process that the government ultimately obligated. [00:23:09] Speaker 01: It is obligated to do their turn. [00:23:10] Speaker 01: That's right. [00:23:11] Speaker 01: But when you're talking about in terms of what the Constitution requires, I think it is the process has to be adequate. [00:23:19] Speaker 01: And of course, there could be common law claims or local claims against the district. [00:23:25] Speaker 04: I'm sorry. [00:23:25] Speaker 04: To say that the Constitution requires some level of adjudicatory process to consider the question whether they get the cell phones back doesn't tell me what the source of the obligation is to return the cell phones. [00:23:42] Speaker 01: I think that's right, Your Honor. [00:23:45] Speaker 01: Just to be clear, I agree with you that the Constitutional Due Process Clause provides the process obligation. [00:23:51] Speaker 04: You either need Substantive Due Process, which seems sort of goofy, or maybe the Takings Clause, but there are all sorts of [00:24:02] Speaker 04: limits, nobody briefed it, but there are all sorts of limits on, you know, when a temporary, temporary intrusion is a taking. [00:24:11] Speaker 04: So if you just say like, you know, no continuing interest, but we're just going to hold the phones for two extra months because we feel like it, I'm not sure that would be a taking. [00:24:22] Speaker 01: I don't think it would be. [00:24:23] Speaker 04: Okay, then what compels you to give the phones back? [00:24:26] Speaker 01: I think the answer there is, once whatever the process is completed under Superior Court Rule 41G, the court has to decide either on the basis of the facts that are presented, either the government does have to return the phones, or there's a reason that it doesn't. [00:24:44] Speaker 01: So I think the ultimate conclusion of the Rule 41G process is, court either says, government, your reasons aren't good enough, you've got to return the phones, or it says, you don't. [00:24:54] Speaker 03: And you think there's a money remedy that comes from 41G? [00:24:59] Speaker 01: I think under the superior court rule, 41G, no. [00:25:02] Speaker 01: Now, if for some reason the court did not have an adequate process, of course procedural due process could have a damaging remedy. [00:25:10] Speaker 03: Well, if there's no remedy, if there's no full remedy for your loss, and you know, take the absurd cases like Judge Woods talked about in her separate opinion, this goes on and on and on. [00:25:20] Speaker 03: And the government has no explanation for why they continue to hold someone's property. [00:25:25] Speaker 03: None whatsoever. [00:25:26] Speaker 01: I do think it's true that there's not a damages remedy under World 41. [00:25:31] Speaker 03: But I think the pace is going... So then what my colleague is asking you is, so where is... You all seem to think there is a remedy and where is it? [00:25:40] Speaker 03: What's your source? [00:25:42] Speaker 01: I think Rule 41G provides a constitutionally adequate remedy. [00:25:47] Speaker 01: And if there's no Rule 41G, you can get damages under the procedural due process clause. [00:25:52] Speaker 01: But since that is satisfied by Rule 41G, not available here. [00:25:56] Speaker 01: I would say, I think under the regime that plaintiffs want, there are a lot of costs, too. [00:26:00] Speaker 01: The Sixth Circuit case in Fox says, under the rule that plaintiffs want, every unreasonable refusal to return property that followed a lawful initial seizure would constitute a Fourth Amendment violation. [00:26:13] Speaker 01: It would replace the well-developed procedural due process analysis that provides the states with the first chance to prevent possible constitutional wrongs with a new, uncertain Fourth Amendment analysis [00:26:24] Speaker 01: that allows litigants to jump straight to federal court every time a state official refuses to return property that was lawfully seized. [00:26:31] Speaker 01: And I think in those circumstances, that would apply not just to cases like this, but cases with abandoned property or cases where there is potential questionable or multiple claims. [00:26:40] Speaker 01: The court would have to assess the reasonableness of the government's effort to determine who owns the property in the first place. [00:26:45] Speaker 01: It would have to assess the reasonableness of the US Attorney's Office decision about whether to prosecute individual cases. [00:26:51] Speaker 01: And where there's an adequate state law remedy under Rule 41G, don't think the Fourth Amendment doesn't apply for textual reasons, doesn't apply under the support's precedent, and there's no reason to interpose it when there's already these other remedies. [00:27:06] Speaker 01: And just to address some of the delayed search warrant cases that the plaintiffs discussed, those cases, I think the reason that those are Fourth Amendment cases is because, again, there is an additional Fourth Amendment intrusion there. [00:27:22] Speaker 01: And that's the search. [00:27:24] Speaker 01: And when the court, I think, then Judge Gorsuch said this very clearly in the United States versus Christie case, where he said, what we're looking at in these cases is the search and whether the search was reasonable. [00:27:36] Speaker 01: Now, of course, one of the factors that goes into that is the length of time the government has possessed the seized property. [00:27:41] Speaker 01: but just because that's a relevant factor to consider in terms of the search doesn't mean that it is a separate freestanding Fourth Amendment violation because again the the Fourth Amendment action in that case that's being assessed is the search. [00:27:54] Speaker 01: Similar to I think in Jacobson where the Fourth Amendment action that the court is assessing is the additional intrusion caused by the seizure that changed the deprivation of property from temporary [00:28:05] Speaker 01: the permanent. [00:28:06] Speaker 01: That's an unreasonable seizure. [00:28:08] Speaker 01: And in the destruction or in the delayed search warrant cases, you have an unreasonable search. [00:28:13] Speaker 01: Here, you don't have that additional action at all. [00:28:16] Speaker 01: What you have is continuing possession. [00:28:18] Speaker 01: And possession, as the Thompson versus Whitman case, that's a case about the ship in New Jersey. [00:28:23] Speaker 01: That case says possession, which follows seizure, is not the same thing. [00:28:28] Speaker 01: The seizure is a single act, not a continuous bank. [00:28:31] Speaker 04: True. [00:28:32] Speaker 04: Thompson helps you with your argument about the most natural reading of seizure, but that's not Fourth Amendment law. [00:28:45] Speaker 04: And I mean, the one thing we know for sure in the Fourth Amendment context is that the word seizure doesn't prevent ongoing Fourth Amendment scrutiny when we're talking about seizure of a person. [00:29:02] Speaker 04: That's right. [00:29:05] Speaker 04: So what's the textual or structural basis for saying the word seizure has this ongoing connotation when a person, when the government has possession of a person [00:29:23] Speaker 04: but not when it has possession of personality effects. [00:29:27] Speaker 01: I think two things to say to that. [00:29:30] Speaker 01: The first thing is, you're right, Thompson, not a Fourth Amendment case. [00:29:33] Speaker 01: The court did rely on it for the definition of seizure in both Dari D and Torres. [00:29:38] Speaker 01: So I think that's relevant. [00:29:39] Speaker 01: And with respect to the seizure of persons, I think Torres gives us the answer. [00:29:43] Speaker 01: Because Torres says that the character of the thing being seized can affect the meaning of the seizure. [00:29:49] Speaker 04: It says that on the front end of the seizure to explain why we don't require possession, because you have all these line drawing problems with the fleeing or struggling suspect. [00:30:06] Speaker 04: Arguably, maybe reading between the lines, it says that because people want a remedy for someone who gets shot. [00:30:15] Speaker 04: But that's just a different question. [00:30:18] Speaker 04: Why would we distinguish on the back end just because we have to distinguish on the front end? [00:30:24] Speaker 01: Here's how I think it's consistent with the whole definition we're proposing. [00:30:29] Speaker 01: Because in the seizure of persons cases, there is [00:30:33] Speaker 01: in some cases, a continuing seizure because of the person's liberty interests, because their free will, because they want to leave custody. [00:30:41] Speaker 01: So what the government has to continually do is to continually take possession of the person to prevent them from leaving, either by exerting force on them or by a show of authority that the person then yields to. [00:30:51] Speaker 01: So I think you can view it as a moment of many continuing taking possessions of a person. [00:30:56] Speaker 01: That analysis doesn't make any sense with respect to property, because once I take possession of the property, I don't need to continue [00:31:03] Speaker 04: I mean, sure, the cell phone can't walk off by itself, but the lawyers are making phone calls saying, give us the cell phone back. [00:31:14] Speaker 04: If the clients tried to walk in the station and get the cell phones, they'd be physically restrained. [00:31:19] Speaker 01: They certainly can. [00:31:20] Speaker 01: I think the physical restraint of the person coming in to get the cell phone may be a seizure of that person, but I don't think it... But there is a continuing application of force. [00:31:29] Speaker 04: It's just less obvious for the personality. [00:31:33] Speaker 01: I'm not sure that that's right, Your Honor, because I think that because with the seizure of persons, it can also be yielding to a show of authority and the application of force with the intent to restrain. [00:31:44] Speaker 01: That's another important part of that. [00:31:46] Speaker 01: And I don't think either of those things apply to what you're doing with a cell phone when you're keeping it in your possession. [00:31:52] Speaker 01: I don't think, even if I set the phone down on the table, I don't think we can say in the moments that follow, I am applying force to it with any intent to restrain it. [00:32:01] Speaker 01: I am just possessing it. [00:32:03] Speaker 01: And so I think that's the basis of the decision in the case of the ship. [00:32:07] Speaker 01: I think that is what the court says. [00:32:09] Speaker 01: It uses the possession definition from Hadari D in the Tate case. [00:32:15] Speaker 01: And I think that that is the understanding of seizure that the Supreme Court has put forward. [00:32:19] Speaker 01: The other circuit courts have adopted with respect to seizures or personal. [00:32:23] Speaker 03: That line, it's interesting, the line of argument you just advanced. [00:32:27] Speaker 03: isn't completely right, it becomes a little philosophical almost when you think it through. [00:32:31] Speaker 03: You are exercising control over a person, especially when you use cell phone as the example. [00:32:39] Speaker 03: that person can argue, my existence is in that thing. [00:32:42] Speaker 03: I mean, there are a lot of people walking around out there. [00:32:44] Speaker 03: You don't think they have an existence beyond their fear. [00:32:47] Speaker 03: And you take it away, they're lost. [00:32:49] Speaker 03: They can't find anything. [00:32:51] Speaker 03: They can't do anything. [00:32:52] Speaker 03: They can't communicate any longer. [00:32:54] Speaker 03: And you might just as well restrain them bodily. [00:32:58] Speaker 03: I mean, I think you're overstating it to say they're not comparable situations. [00:33:03] Speaker 01: I do, we of course understand and think that cell phones are very important to people's daily life and to modern society. [00:33:10] Speaker 01: But I think that the line that's drawn in the Torres case is about the liberty interest of the thing that is being restrained. [00:33:16] Speaker 01: And I think in this case, you just can't say, I think it would be an overreading of those cases say that just because cell phones are really important, that they have a comparable liberty interest, free will and desire to leave. [00:33:25] Speaker 03: A lot of teenagers who would argue with you and say, I'm sure there are the liberty interest has been restrained if you take their cell [00:33:33] Speaker 01: I'm sure that's right, Your Honor. [00:33:36] Speaker 01: The other thing I would mention, I think, is talking about 19th century cases and the potential remedy in those cases. [00:33:43] Speaker 01: But Justice O'Connor's concurrence, she points out, in the Hudson versus Palmer case, that just because those laws of action existed at the time of the founding doesn't mean they were incorporated into the word seizure. [00:33:53] Speaker 01: That's also in the Supreme Court's recent Wyoming case. [00:33:56] Speaker 04: I'm not sure what year. [00:34:00] Speaker 04: the opinion you're referencing was. [00:34:02] Speaker 04: I mean, there have been a lot of Fourth Amendment cases in the last 10 years linking Fourth Amendment at a minimum to common law property. [00:34:13] Speaker 01: I think that is certainly right. [00:34:14] Speaker 01: That is certainly right. [00:34:17] Speaker 01: But I think it can't override the consistent repeatedly applied definition that the Supreme Court has reflected in the founding dictionaries that say that the seizure is a taking possession. [00:34:29] Speaker 01: yes, that a seizure is a taking possession. [00:34:33] Speaker 01: And so, you know, I think with all that said, and I know my time is running out. [00:34:39] Speaker 01: And so I would just say, I think under plaintiff's rule, [00:34:44] Speaker 01: what ends up happening is that instead of these cases being taken care of in local court or rule 41 G Devon influx of cases that can be brought again every two weeks about abandoned property about property. [00:34:54] Speaker 01: The U. S. Attorney's Office is deciding what to do with. [00:34:57] Speaker 01: Uh, and that's just not required by the fourth amendment. [00:35:00] Speaker 01: Thank you, Your Honor. [00:35:02] Speaker 04: Henderson. [00:35:02] Speaker 04: Any questions? [00:35:03] Speaker 01: No, thank you. [00:35:05] Speaker 04: Thank you. [00:35:06] Speaker 04: Thank you. [00:35:16] Speaker 04: We'll give you two minutes. [00:35:17] Speaker 02: Thank you, Your Honor. [00:35:17] Speaker 02: Just a few points to clear up. [00:35:20] Speaker 02: First, returning to Tate, I think that, as I said before, it's important to read that case in light of the broader context in which it was written, involving not just a taking of possession, but a taking of title. [00:35:33] Speaker 02: And that makes sense because it allows the court's decision in Tate to come to court with what this court has recognized, which is that Hodari doesn't tell the whole story of the Fourth Amendment. [00:35:42] Speaker 02: The Fourth Amendment continues to address what happens after possession has been secured. [00:35:47] Speaker 02: Indeed, duration wasn't challenged. [00:35:49] Speaker 02: It was about the sale, which is a distinct issue than what's been presented here. [00:35:52] Speaker 02: I think I would also note, as you said, Judge Katz, that the person cases are quite important. [00:36:00] Speaker 02: And my friends on the other side try to turn these cases [00:36:02] Speaker 02: into hinging on the need to continually restrain some. [00:36:06] Speaker 02: But that wasn't what was going on in Barnett, where the person was just put into a cell. [00:36:10] Speaker 02: It wasn't the problem that the person was being restrained over and over. [00:36:14] Speaker 02: It was the overall interference with their liberty interest. [00:36:17] Speaker 02: And indeed, going to what Judge Edwards was saying, the Supreme Court has set in place that taking someone's property and not telling them how to get it back [00:36:25] Speaker 02: indeed can infringe with their liberty, regardless of the context in which it occurs. [00:36:30] Speaker 02: Additionally, on Jacobson, Jacobson shows, as Judge Edwards was saying, that Hodari doesn't tell the whole story, that the Fourth Amendment goes to length. [00:36:40] Speaker 02: I'd like also to talk briefly about the Fourth Amendment, Fifth Amendment issue that we touched on in the prior conversation. [00:36:46] Speaker 02: The fact that both amendments may be relevant is not necessarily a crucial fact in this case, because the Supreme Court has said the burden on lower courts is to decide whether each amendment applies, not the precise line between [00:37:02] Speaker 02: Finally, a word on practicalities. [00:37:04] Speaker 02: The government says that our position will result in lots and lots of litigation, but we haven't seen a deluge of lawsuits in the Ninth Circuit, the largest circuit in the country where this rule applies. [00:37:14] Speaker 02: And the reason we haven't seen that is because when the Ninth Circuit clarified the Fourth Amendment law, the government obeyed it. [00:37:21] Speaker 02: And we also haven't seen it because this test isn't about whether the Fourth Amendment is violated by what the police do. [00:37:28] Speaker 02: Rather, it's just as the Fourth Amendment applies. [00:37:31] Speaker 02: And as the Supreme Court said in Soldal, the ultimate touchstone is reasonable. [00:37:35] Speaker 02: Unreasonable conduct, even long conduct, may well be reasonable if it's justified by the government's interest as compared to the possessory interest of the individual. [00:37:45] Speaker 02: And so because of that, we think courts are perfectly capable of recognizing that and weeding out problematic. [00:37:53] Speaker 04: I take your point that claimants might not always win, [00:37:59] Speaker 04: There will very often be litigable issues about reasonableness. [00:38:05] Speaker 04: So shouldn't we worry about that as well? [00:38:10] Speaker 02: First off, Your Honor, the Supreme Court recognized that risk, but that didn't stop it from holding in sold all that the Fourth Amendment applies well outside the criminal code. [00:38:18] Speaker 02: Additionally, most of the time when the government takes property, it does so where there's a pending criminal case. [00:38:25] Speaker 02: And in those scenarios, the sorts of confusions that I was discussing with Judge Edwards about whether 41G applies don't arise. [00:38:32] Speaker 02: But outside that context, where someone has to hire a lawyer to represent them for a very low damages case, that isn't going to be something that most people will be able to do in 41G, but it might arise where there's a Fourth Amendment remedy that can help people [00:38:48] Speaker 04: Thank you, Judge Henderson. [00:38:50] Speaker 04: Any questions? [00:38:51] Speaker 04: No, thank you. [00:38:53] Speaker 04: Thanks to both counsel for your very helpful arguments. [00:38:57] Speaker 04: The case is submitted.