WASHINGTON (CN) — A D.C. Circuit panel considered on Thursday whether the Metropolitan Police Department violated the Fourth Amendment by holding on to the phones of arrested Black Lives Matter protesters for over a year.
The case was brought by the American Civil Liberties Union in November 2021 on behalf of two protesters and three volunteer medics who were arrested during an August 2020 march in the wake of the police killings of George Floyd and Breonna Taylor.
The protesters —along with about 40 others — were released the next day without charges, but their phones remained in police custody. When the lawsuit was filed in 2021, the MPD still held more than 30 phones despite multiple requests that they be returned.
U.S. District Judge Amit Mehta, a Barack Obama appointee, dismissed the complaint in August 2022, leading the plaintiffs to appeal.
Lawyers representing the ACLU and the District of Columbia argued before a panel of three judges, U.S. Circuit judges Gregory Katsas, Harry Edwards and Karen Henderson.
Henderson, a George H.W. Bush appointee, attended the arguments virtually and had no questions for either party.
Katsas, a Donald Trump appointee, noted at the outset of Thursday’s proceedings that it seemed as if the challenge had a “textual problem,” in that the Fourth Amendment primarily governs the seizure of property itself, not the possession of it after the fact.
Edwards, a Jimmy Carter appointee and Senior Circuit judge agreed, saying the Fifth Amendment appears to be a more apt statute to use, specifically the section stating that no person shall be “deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.”
Michael Perloff, a staff attorney for the ACLU in Washington, argued that the Fourth Amendment was just as applicable in this case, pointing to the dictionary definition of seizure, which he said defines it as both the initial act of taking something away and the continued holding of that item afterward.
He further clarified that the Fourth Amendment challenge made sense because the issue at hand was the MPD officers’ conduct in taking and holding the cell phones, not how the lower court dealt with complaints requesting that the phones be returned.
In an interview with Courthouse News, Perloff pointed out that while the five named plaintiffs in the case have all had their phones returned, he and the ACLU have heard nothing about the phones of around 40 protesters.
That’s particularly concerning in the digital age, where cell phones hold a large swath of personal and sensitive information, from family photos to financial data to communication with other protesters. Perloff said it is even more concerning in a city like Washington, where people come from all over the country to show support for issues they care about.
Perloff added that it is unclear what officers did with the phones they kept.
“We don’t know what’s happening here, but it certainly isn’t good,” Perloff said.
Even if officers let the devices gather dust in storage, the mere loss of the items was damaging enough to their daily lives, Perloff argued before the court.
Edwards, 83, agreed and noted that by holding someone’s cell phone, “you are exercising control over a person … . When you take a phone away you may as well physically restrain them.”
He also added that taking away a young person's phone is like taking away their life, which led the rest of the panel to chuckle.
Marcella Coburn, the assistant attorney general for the District of Columbia, defended the MPD officer’s seizure of the phones as lawful and the idea that the challenge should be under the Fifth Amendment instead. She said that any remedy should be taken up in local court so a judge can determine whether the amount of time an item is in police custody is excessive or not.
The panel, particularly Edwards, pushed back, saying that holding the phones for such an extreme length of time makes a Fourth Amendment challenge reasonable.
Katsas joined with Edwards by noting that in their briefs, the government had conceded they have an obligation to return the items at some point but could not find any example of what might compel them to return the items.
Coburn held that the issue should be addressed in local courts and argued that if the plaintiffs get their way, it could become a headache for federal courts as challenges could arise every two weeks and touch on larger Constitutional questions all too often.
The MPD did not respond to a request for comment.
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