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Homeowners Score Major Win in Federal Court Against DC with Decision Ruling on Violation of Fourth Amendment Civil Rights Protections

By Anthony L. Harvey

In a blisteringly written judicial decision issued on December 12, 2007 by US District Judge Rosemary M. Collyer, both the city’s Historic Preservation Office (HPO) and the Department of Consumer and regulatory Affairs (DCRA), together with four named officials and inspectors, were found to have violated the Fourth Amendment civil rights of Capitol Hill residential property owners Laura Elkins and John Robbins who have been attempting since 2001 to renovate their single-family house at 20 9th Street, NE — with valid permits issued by DCRA and HPO — where Elkins and Robbins have lived with their two teenage children.

The violation occurred, wrote Judge Collyer, when armed with a warrant that “authorized a search of the Property but did not describe any items to be seized . . . DC police and representatives of DCRA and HPO went throughout the home (including the bedrooms of sick children home from school), opening drawers, observing, and taking photographs. Inspector Toni Cherry, an employee of HPO and a contract worker for DCRA, was one of several officials who seized documents, including a notebook belonging to Ms. Elkins. The notebook contained permit and construction records, checking statements, financial records, and construction loan documents.” The purpose of these March 27, 2003 seizures of particular documents — found by opening drawers — was apparently in pursuit of attempts by DCRA and HPO officials to revoke the permits that had been validly issued by these same two agencies in 2001.

Judge Collyer’s painstakingly phrased affirmation of this violation of the plaintiffs’ civil rights noted that the very language of the Federal Constitution’s Fourth Amendment requires-in  — the case where items are to be seized during a validly authorized search — that the warrant must be issued “particularly describing the place to be searched and the person or things to be seized.”

“Punitive damages . . . are available against . . . individual defendants where their conduct was ‘motivated by evil motive or intent, or when it involve[d] reckless or callous indifference to the federally protected rights of others’ [citing] Smith v. Wade, 461 U.S. 30, 56 (1983).” — US District Judge Rosemary M. Collyer.

Judge Collyer concluded: “Because the warrant did not specify any documents to be seized, the seizure of the documents was outside the scope of the warrant and in violation of the Plaintiffs’ Fourth Amendment rights.”

Assertions of Fifth and Fourteenth Amendment violations of civil and property rights were dismissed; Judge Collyer found that the standard of Fifth Amendment rights violations that would warrant damages had not been met — District officials’ misbehavior was insufficiently egregious — and Fourteenth amendment protections do not apply to the District of Columbia.

Regarding the city’s demand that the plaintiffs’ six permits be revoked, Judge Collyer affirmed the two, previous court and administrative rulings which denied these demands — one heard in DC Superior Court brought by a neighboring property owner and the other in the litigation brought by the District on behalf of HPO and DCRA before city’s Office of Administrative Hearings. Ironically, the only relief gained by either of these actions was a judicial finding directing the plaintiffs to complete the work called for in one of the six permits by building a partition in a storage area.

Judge Collyer’s fascinating account of these actions found that these permits were first litigated in an action brought by a neighbor of the plaintiffs in 2002, where “District officials appeared and testified that Plaintiffs’ permits were all legitimate and valid.” Continuing, Judge Collyer noted that “this did not satisfy HPO’s [David] Maloney, who seems to have organized a campaign against the construction of the property. Through his efforts, DCRA issued various stop work orders in 2002.” And thus began this tortured, regulatory and administrative saga. Had the 2006 amendments to the historic preservation law been in effect in 2002, the plaintiffs could have been slapped with fine by HPO of $1,000 per day. Even so, Elkins and Robbins’ attorney in the Fourth Amendment case observed that the plaintiffs spent $100,000 in fighting these attempts by DC to revoke the very permits the city had validly issued to them — much of those funds having been needed to pay for the services of Attorney John E Scheuermann of the Capitol Hill law firm of Scheuermann and Menist.

No word has been received by The InTowner regarding any appeal of Judge Collyer’s decision by the District’s Office of the Attorney General. The next step in the Federal District Court proceedings will be a second trial before Judge Collyer to establish the amount of compensatory damages due to the Plaintiffs for their suffering the violation of their Fourth Amendment rights by the District government and the four named officials — plus punitive damages due to the Plaintiffs from the four officials, two who are presently on the HPO staff and two former DCRA officials. No trial date has yet been set.