When people are arrested, the police take their belongings, then generally give them back upon release unless the property is evidence. But the D.C. Metropolitan Police Department has a different practice for arrestees’ cell phones. MPD keeps cell phones for months or even years—even if the owner is never charged with a crime, when the phone is not evidence, and long after MPD has any conceivable need for it. MPD policy says it if is going to obtain a warrant to search the phone, it should do that within 48 hours. And it has the technology to download within an hour any information it has received judicial permission to obtain. Once that has happened, or if the government doesn’t seek a warrant or its application is denied, then the phone should be returned quickly to the owner. But that often doesn’t happen. And when an individual is not charged with a crime, D.C. has no process for the owner to seek the return of the phone. Instead, MPD just keeps it until it feels like giving it back. Sometimes it never does.
The consequences for the phone owners can be both economic and personal—including not only the cost of replacement but also the loss of important work data, personal photographs, or other irreplaceable content. MPD applies its phone-retention practice to individuals in all kinds of circumstances; one of them is where individuals are arrested during a protest – where the possibility of losing your phone for participating in a protest can exert a chilling effect and also give rise to fears that MPD is using confiscated phones to monitor First Amendment activity of community groups.
In August 2020, MPD arrested a group of about 40 demonstrators and associated individuals (like medics) who were marching in Adams Morgan for civil rights in the wake of the killings of George Floyd, Breonna Taylor, and so many other Black people at the hands of police. The MPD released the arrestees the next day without charges but it retained nearly everyone’s phones. Despite multiple requests for the return of the phones, MPD continued to hold one phone for 285 days after seizing it and another for 312 days, and more than a year later still is retaining the phones of about three dozen of the protestors.
In November 2021, we sued D.C. on behalf of two protestors and three volunteer medics, and we seek to represent a class of all Adams Morgans arrestees whose phones were retained for unreasonably long periods. We are asking the court to order MPD to end its unlawful practice, return the outstanding phones, and pay compensation. Working with us on the case are the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, the Law Office of Jeffrey Light, and pro bono counsel Tara Reinhart, Julia York, Daniel Blauser, Joe Sandman, and Annamaria Kimball. Our complaint documents more than 200 other instances of unlawfully prolonged retentions of cell phones—including many following the arrest of the Inauguration Day 2017 demonstrators (on whose behalf we sued for false arrest, excessive force, and unconstitutional conditions of confinement and won a significant settlement), and one following the arrest of a photojournalist at another summr 2020 civil rights protest (on whose behalf we have also sued, raising a challenge to this practice as well as the police’s unlawful use of weapons the D.C. Council has banned).
When the government retains a person’s property beyond its legitimate need for it, the seizure of the property becomes unreasonable in violation of the Fourth Amendment’s prohibition on unreasonable seizures. And the government’s failure to provide a process by which the individuals can obtain their phones back violates the Fifth Amendment’s prohibition on depriving people of property without due process of law.
On August 29, 2022, the district court dismissed the plaintiffs’ complaint. The plaintiffs have filed a notice of appeal with the United States Court of Appeals for the D.C. Circuit.