                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                  )
FREDERICK SIMMS                   )
                                  )
                  Plaintiff,      )
                                  ) Civil Action No. 12-701 (EGS)
             v.                   )
                                  )
DISTRICT OF COLUMBIA, et al.,     )
                                  )
                  Defendants.     )
                                  )

                          MEMORANDUM OPINION

        Pending before the Court is the Motion for Preliminary

Injunction of Plaintiff Frederick Simms (“Simms”).    Plaintiff’s

car was seized by the Metropolitan Police Department (“MPD”) on

May 29, 2011, when he was accused of weapons violations.

Plaintiff was acquitted of all charges in December 2011;

nevertheless, the District of Columbia (“District”) continues to

maintain possession of the car in the hope of eventually getting

title to it by prevailing in civil forfeiture litigation.    The

forfeiture proceedings were not commenced until June 1, 2012 and

according to the District, could last another year, until June

2013.

        In the nearly seven months following his acquittal, Mr.

Simms has been unable to challenge the validity of the initial

seizure and continuing retention of his vehicle prior to

judgment in the forfeiture proceeding, nor will he have any
opportunity to do so for the next year while those proceedings

are pending.   He contends that the District’s failure to provide

him with the opportunity for a prompt post-deprivation hearing

to challenge the seizure and subsequent retention of his car,

prior to judgment in his civil forfeiture case, violates his

Fifth Amendment procedural due process rights.   He seeks an

order enjoining the MPD from holding his vehicle, pending the

conclusion of the forfeiture proceedings, without providing him

notice and an opportunity to be heard.

     Upon consideration of the plaintiff’s motion, the

opposition and reply, the parties’ arguments during the June 13,

2012 motions hearing, the supplemental briefs submitted by the

parties both before and after the hearing, and for the reasons

set forth below, the Court finds that the District’s failure to

provide Mr. Simms with a post-seizure hearing to challenge the

deprivation of his vehicle pending the conclusion of civil

forfeiture proceedings violates his constitutionally-protected

due process rights.   Accordingly, the plaintiff’s motion for a

preliminary injunction is GRANTED.




                                 2
I.            BACKGROUND


              A.   Statutory Background:                                   Forfeiture Procedures in the
              District of Columbia

              Forfeiture of vehicles in the District is governed by the

procedures set forth in D.C. Code § 48-905.02.1                                           Police are

authorized to seize a conveyance which, inter alia, law

enforcement officials have probable cause to believe is being

used to transport, possess, or conceal any firearm in violation

of District law.                                     D.C. Code § 7-2507.06a(b);        § 48-

905.02(d)(3)(A).                                     Police officers need not obtain a warrant

before seizing a conveyance.

              After seizing a vehicle, the MPD provides notice to any

person having “a right of claim to the seized property.”                                              Id. §

48-905.02(d)(3)(A).                                            In order to assert a claim to the seized

property, a person must, within thirty days from the date of

receipt of notice of seizure, “file a claim with [the MPD]

stating his [] interest in the property.                                           Upon filing of a

claim, the claimant shall give a bond to the District government

in the penal sum of $2500 or 10% of the fair market value of the

claimed property (as appraised by the Chief of the MPD),


                                                            
1
  There are several other statutory procedures pertaining to
forfeiture, but each employs the procedures outlined in § 48-
905.02. Forfeiture of property seized in connection with
alleged firearms offenses, which is at issue in this case, is
covered by D.C. Code § 7-2507.06a.


                                                                          3
whichever is lower, but not less than $250[.]”                                            Id. § 48-

905.02(d)(3)(B).                                     According to District Municipal Regulations, a

claimant may apply for a waiver or reduction of the bond.                                             The

MPD determines whether a claimant “is financially unable to give

any bond or to give a bond in the required amount.”                                           6-A

D.C.M.R. § 806.6 (1991).                                           Neither the statute nor the

regulations requires the MPD to make that determination within a

specified period of time, however, nor do they provide a

standard set of criteria for determining whether and to what

extent a claimant is able to give a bond.2

              Payment of the bond does not enable property owners to have

their property returned pending litigation.                                           Instead, the

District holds the property until it institutes forfeiture

proceedings against the property in Superior Court.                                           D.C. Code §

48-905.02(d)(3)(E).                                            Although the statute provides that

proceedings be instituted “promptly,” id. § 48-905.02(c), there

is no specified period of time in which the District must act;

in Mr. Simms’s case, the District initiated forfeiture

proceedings over a year after the seizure, and the District

                                                            
2
  If the person does not file a claim and pay the bond (or apply
for a waiver of the bond) within thirty days of receipt of
notice, the District, “after determining that the property is
forfeitable under this chapter, shall declare the property
forfeited and shall dispose of the property” by retaining it for
official use or selling it. D.C. Code § 48-905.02(d)(3)(C); §
48-905.02(d)(4).

                                                                          4
admitted that the process was hastened as a direct result of the

Complaint and Motion for Preliminary Injunction plaintiff filed

in this Court.                                 See, e.g., Defs.’ Opp’n to Mot. for Prelim. Inj.

(“Opp’n”) at 3, Ex. 1, Decl. of Lt. Derek Gray (“Gray Decl.”) at

¶¶ 22-25.                       The forfeiture proceeding is the first opportunity in

which an owner of the vehicle may challenge the District’s

probable cause for the seizure of the vehicle or its continued

custody of the vehicle.                                            See § 48-905.02(d)(2) (property owners

may not seek return of seized property through an action for

replevin).3


              B.             Factual & Procedural Background

              On May 29, 2011, MPD officers seized Mr. Simms’s car after

they claimed to find a firearm in a bag inside the vehicle.

Compl. ¶ 34.                             The car was taken to the MPD’s impound lot in

Southwest D.C.                                 Id.             Mr. Simms was charged with several criminal

counts relating to the alleged possession of the firearm, found

indigent, appointed counsel from the Public Defender Service,

and, after a jury trial, was acquitted of all charges on

December 7, 2011.                                       Id. ¶¶ 35-37.         The same day, he went to the

MPD impound lot seeking return of his car, a 2007 Saturn Aura

                                                            
3
  A person with “an interest in forfeited property” may file with
the Mayor a petition for remission or mitigation of the
forfeiture, D.C. Code § 48-905.02(d)(3)(F), but the statute
suggests, and District counsel confirmed during the motions
hearing, that this administrative option is not available until
after the property has been declared forfeited. Id.
                                                                          5
sedan.   Mot. for Prelim. Inj. (“Pl.’s Mot.”) at 3, n.2.     A

police officer informed him that he would be required to pay a

bond of over $1200 in order to challenge MPD’s decision to take

possession of his vehicle.     Compl. ¶ 38.   Plaintiff

independently learned that he could apply to get the bond

reduced or waived; he was not informed by the District.      Compl.

Ex. A, Decl. of Frederick Simms (“Simms Decl.”)      ¶ 8.   He

attempted to submit the application for waiver with the MPD, but

was told to get his application notarized and return with three

years of tax returns.    Id.    He did, and submitted his

application on March 19, 2012.      Id., see also Opp’n, Ex. 1, Gray

Decl. ¶ 19.   On March 26, 2012, Lieutenant Derek Gray, the MPD’s

Property Clerk, reviewed the application for a waiver and

reduced the bond to $800.      Gray Decl. ¶ 20.   Mr. Simms did not

pay the $800 bond which, as described in Section I.A supra,

would enable the start of adversarial forfeiture proceedings (at

a time entirely within District’s control) but would not permit

him to seek the use of his car in the interim.      Mr. Simms states

that having a vehicle is central to his ability to commute to

work, to perform his job, and to transport himself, his fiancée,

and his 11-month-old daughter to doctors’ appointments, daycare,

and visits to family members.     Simms Decl. ¶¶ 3-4, 10.   However,

he states, “I cannot afford to pay $800 to try to get my car

back.    All of the money I make from my wages ($12 an hour at AAA

                                    6
Storage, in Sterling, Virginia) goes to transportation, rent,

daycare, utilities, groceries, car insurance, and the $360 a

month I pay on the car loan to Andrews Federal Credit Union for

a car I can’t even use.”                                       Id. ¶ 9.4   Because Mr. Simms did not

pay the bond, the District was not obligated to commence

forfeiture proceedings, and did not do so.

              Plaintiff filed this action on May 1, 2012, and

simultaneously filed a motion for preliminary injunction.

Apparently in response to the litigation, on May 15, 2012,

Lieutenant Gray waived the bond on Mr. Simms’s vehicle.                                        Opp’n

at 6, see also Gray Decl. ¶ 22.                                       As a result of the waiver of

the bond, on May 15, 2012, MPD forwarded the forfeiture file to

the District’s Office of Attorney General.                                        Id. ¶ 23.   On May

18, 2012, the District filed a notice stating that “the civil

forfeiture matter concerning the subject vehicle will be

assigned to an attorney for further investigation.”                                        Defs.’

Praecipe Regarding Status of the Att’y Gen.’s Decision on Civil

Forfeiture.                           On June 1, 2012, the District commenced forfeiture

proceedings in Superior Court by filing a Libel of Information

for in rem civil forfeiture of Mr. Simms’s car.                                        During oral

argument on the preliminary injunction motion, counsel for the


                                                            
4
   Property owners must continue to make any loan payments while
the property is impounded; otherwise, the MPD will return the
vehicle to the lender. D.C. Code § 48-905.02(a)(4)(D).


                                                                     7
District stated that unless the forfeiture case settles, it will

take about a year to litigate, until June 2013.

      Since the Motion for Preliminary Injunction was filed in

May, the parties have completed briefing, each filed two

supplemental briefs, and the Court heard oral argument on June

13, 2012.   Plaintiff’s motion for a preliminary injunction is

now ripe for determination by the Court.



II.   LEGAL STANDARD FOR INTERIM INJUNCTIVE RELIEF

      “A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that

an injunction is in the public interest.”   Winter v. NRDC, Inc.,

555 U.S. 7, 20 (2008).   Because it is “an extraordinary remedy,”

a preliminary injunction “should be granted only when the party

seeking the relief, by a clear showing, carries the burden of

persuasion.”   Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir.

2004) (citations omitted).

      These four factors have typically been evaluated on a

“sliding scale,” whereby if the movant makes an unusually strong

showing on one of the factors, then he does not necessarily have

to make as strong a showing on another factor.    Davis v. Pension

Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009)

                                 8
(citing Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 361

(D.C. Cir. 1999)).                                        While it is unclear whether the “sliding

scale” is still controlling in light of the Supreme Court’s

decision in Winter, the Court need not decide this issue today

because plaintiff has carried the burden of persuasion as to all

four factors.5



III. ANALYSIS

              Mr. Simms argues that he has satisfied all four criteria

necessary to obtain a preliminary injunction, while the

defendants argue that none of the criteria have been met.                                       The

Court will begin by addressing the likelihood of success on the

merits.


              A.             Likelihood of Success on the Merits

              To maintain a procedural due process claim, the plaintiff

first must establish that the government deprived him of a

                                                            
5
   The District claims that Mr. Simms seeks a mandatory, as
opposed to a prohibitory, injunction “that requires an even
greater showing.” Opp’n at 8. Some courts have held the movant
for a mandatory injunction to a higher burden: the movant must
show “clearly” that he is entitled to relief or that extreme or
very serious damage will result. Vietch v. Danzig, 135 F. Supp.
2d 32, 35 n.2 (D.D.C. 2001) (citations omitted). The D.C.
Circuit, however, has yet to address this question. See, e.g.,
Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746
F.2d 816, 834 n. 31 (D.C. Cir. 1984) (“In this circuit, however,
no case seems to squarely require a heightened showing, and we
express no view as to whether a heightened showing should in
fact be required.”).


                                                                      9
constitutionally protected property interest, and then must

establish that the government’s procedures in doing so do not

satisfy procedural due process.    Gen. Elec. Co. v. Jackson, 610

F.3d 110, 117 (D.C. Cir. 2010).    The District does not contest

the first step of the analysis, namely, that Mr. Simms’s

interest in having access to and use of his car is a property

right protected by the Due Process Clause, and that by seizing

the car, the District affected a deprivation of this property

interest.   See, e.g., Fuentes v. Shevin, 407 U.S. 67, 85, 89-90

(1972) (due process protection applies to pre-judgment

deprivation of household goods such as beds and stoves, even if

deprivation is only temporary); see also United States v. James

Daniel Good, 510 U.S. 43, 48-49 (1993) (same, real property);

Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir. 1982)

(due process protections apply to the temporary detention of

private automobiles); Coiknos v. Dist. of Columbia, 728 F.2d 502

(D.C. Cir. 1983) (following Sutton).     Accordingly, due process

applies.

     “Once it is determined that due process applies, the

question remains what process is due.”     Federal Deposit Ins.

Corp. v. Mallen, 486 U.S. 230, 240 (1988) (quoting Morrissey v.

Brewer, 408 U.S. 471, 481 (1972)).     As a threshold matter, the

Court must determine the appropriate test to apply in

considering what post-seizure process is required for owners

                                  10
whose vehicles are seized pursuant to forfeiture laws.                          Mr.

Simms urges the Court to follow two circuit court decisions:

Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) and Smith v. City

of Chicago, 524 F.3d 834 (7th Cir. 2008) (vacated as moot by

Alvarez v. Smith, 130 S. Ct. 576 (2009)).                           Both of these

decisions, in turn, rely heavily on Good, 510 U.S. 43.

Defendants, for their part, contend that the appropriate test is

set forth in United States v. Eight Thousand Eight Hundred and

Fifty Dollars ($8,850) in United States Currency, 461 U.S. 555

(1983) and United States v. Von Neumann, 474 U.S. 242 (1986).

                             i.             Krimstock and Smith6

              In Krimstock, the Second Circuit considered a forfeiture

scheme under New York City law, which was very similar to the

District’s.                           Police officers in the field could seize a vehicle

based on the officer’s determination that probable cause existed

to believe the vehicle was subject to forfeiture because it had

been used as an instrumentality of crime.                           In Krimstock, the

crime at issue was drunk driving. 306 F.3d at 45.                          New York City

law did not provide a prompt, independent hearing for an owner
                                                            
6
  The Supreme Court granted certiorari and received briefing in
Smith, however, the Court subsequently learned that “there was
no longer any dispute about the ownership or possession of the
relevant property.” Alvarez v. Smith, 130 S. Ct. at 580. As a
result, the Court declared the case moot and vacated the lower
court opinion in accordance with its standard practice. Id. at
583. Smith’s analysis and reasoning, as well as the forfeiture
scheme (Chicago’s) before it, are substantially identical to
Krimstock’s. See generally Smith, 524 F.3d 834.
                                                               11
to challenge the validity of the initial seizure or the City’s

continued custody of the vehicle.     Id.   Finally, although the

City’s law required the City to initiate a civil forfeiture

proceeding within twenty-five days from an owner’s demand for

the vehicle, in practice the City commonly held owners’ cars for

months or years before providing any hearing on the forfeiture.

Id. 46.   The holds on the vehicles continued long after any

underlying criminal proceeding had concluded.      Id. at 45-46.

     Writing for the panel, then-Judge Sotomayor found

unconstitutional New York City’s continued retention of private

vehicles seized incident to arrests, without providing vehicle

owners a prompt post-seizure hearing at which the owners could

challenge the legitimacy of the initial seizure and the City’s

continued retention of the vehicle pending forfeiture

proceedings.   The Krimstock court relied on Mathews v. Eldridge,

424 U.S. 319 (1976), and Good.   Mathews holds that the Due

Process Clause requires, in general, that when the government

seeks to deprive an individual of property, it must provide a

hearing before an impartial decision maker where the individual

may be heard “at a meaningful time and in a meaningful manner.”

424 U.S. at 333 (citations omitted).    In order to determine what

process is required, three factors must be weighed: (1) the

nature and weight of the private interest affected by the

challenged official action; (2) the risk of erroneous

                                 12
deprivation given the procedures currently employed, and the

probable value of additional safeguards; and (3) the

government’s interest in avoiding additional procedural

safeguards.    Id. at 335.   In Good, the Court applied Mathews to

the realm of civil forfeiture.    Property owner James Daniel Good

challenged the government’s attempt to seize his house, which

had been used in connection with a drug offense, for civil

forfeiture without prior notice and a hearing.     The Supreme

Court invalidated the seizure, holding that, absent exigent

circumstances, “individuals must receive notice and an

opportunity to be heard before the government deprives them of

property.”    510 U.S. at 48 (emphasis added).   When the

forfeitable property is a vehicle connected with suspected

criminal activity, however, the Court recognized that the

property’s mobility combined with the Government’s interest in

the property may create a “special need for very prompt action

that justifie[s] the postponement of notice and hearing until

after the seizure.”    Id. at 52 (citations omitted).

     The Krimstock court applied Good to just such a situation –

the seizure and retention of vehicles pendente lite, until the

conclusion of civil forfeiture proceedings.      Noting that even

“temporary deprivation of real or personal property pendente

lite in a forfeiture action must satisfy the demands of”

procedural due process, the Second Circuit found that the

                                  13
government’s failure to provide a prompt post-seizure hearing to

owners of impounded automobiles violated the Due Process Clause.

306 F.3d at 51.   Turning to the first Mathews factor, the court

found that the private interest affected, the deprivation of an

automobile, is significant in light of the centrality of the

automobile to modern life.    Id. at 61-62.    The court found the

private interest at stake particularly significant given the

length of time owners could be without their cars under New York

City’s forfeiture scheme – months, if not years.      Id. at 54-55.

     The court found the second factor, the risk of erroneous

deprivation, weighed narrowly in favor of the City because “the

risk of erroneous seizure and retention of a vehicle is reduced

in the case of a DWI owner-arrestee, because a trained police

officer’s assessment of the owner-driver’s state of intoxication

can typically be expected to be accurate.”      Id. at 62-63.

However, the court also found a significant risk of erroneous

deprivation, because the statute allowed the City to take

custody of automobiles suspected of use in criminal conduct

without regard to whether the owner of the property was innocent

of any wrongful activity.    Id. at 56-57.    Moreover, the City had

a pecuniary interest in the outcome of the proceeding; forfeited

property could, at the discretion of the police, be used or sold

by the government.   Id. at 63.   The risk of erroneous

deprivation was further enhanced because it was irreparable: an

                                  14
owner’s loss of his car for months or years could not be

recompensed if he prevailed at a later hearing.      Id. at 64.

     Finally, the Second Circuit found the last Mathews factor,

the government’s interest in preventing the vehicles from being

sold or destroyed, did not trump property owners’ due process

rights because the government could protect its interests by

other measures short of continued seizure.      Specifically, the

government could require claimants to post bonds before

reclaiming their vehicles, or ask a court to issue a restraining

order prohibiting the car from sale or destruction pending

forfeiture proceedings.   Id. at 65.   The Krimstock court

concluded that protection of owners’ due process rights required

that owners be permitted to challenge the probable cause for the

initial warrantless seizure, as well as the probable validity of

the continued retention of the seized vehicle pendente lite,

promptly after seizure and prior to the ultimate resolution of

the forfeiture action in court.    Id. at 49.    The hearing would

be “limited” and would not involve “exhaustive evidentiary

battles that might threaten to duplicate the eventual forfeiture

hearing.”   Id. at 69-70; see also Smith, 524 F.3d at 839 (“The

point is to protect the rights of both an innocent owner and

anyone else who has been deprived of property and . . . to see

whether a bond or an order can be fashioned to allow the



                                  15
legitimate use of the property while the forfeiture proceeding

is pending.”).

           ii.   $8,850 and Von Neumann

     In $8,850 and Von Neumann, the Supreme Court considered

challenges by property owners to the length of time between the

seizure of their property and the forfeiture trials.      Both cases

involved property seized by the United States Customs Service

under the same statutory scheme.      Under the statute, owners of

seized property had two options:      petition the Secretary of the

Treasury for remission or mitigation of the forfeiture within 60

days of the seizure, or challenge the seizure in a judicial

forfeiture action by the government.       $8850, 461 U.S. at 557;

Von Neumann, 474 U.S. at 243.   In $8,850, claimant Mary

Josephine Vasquez’s currency was seized by Customs at the

airport.   Ms. Vasquez elected to file a petition, but it was

delayed pending the resolution of her criminal proceedings,

which included a forfeiture count.       $8850, 461 U.S. at 558-60.

Three months after she was acquitted of the criminal charges

relating to the forfeiture, the government initiated civil

forfeiture proceedings.    Id. at 560.    Ms. Velasquez moved to

dismiss the forfeiture action, arguing that “the government’s

delay in filing a civil forfeiture proceeding,” for eighteen

months after the initial seizure, “violated her due process

right to a hearing at a meaningful time.”       Id. at 562 (citations

                                 16
omitted).    In Von Neumann, claimant John Von Neumann’s car was

seized at the Canadian border.    Mr. Von Neumann also elected to

file a petition for remission.    474 U.S. at 245.     Two weeks

after filing, he posted a bond for the value of the car, which

was released to him.     Id. at 245-46.   He then filed a supplement

to the remission petition.    Less than two weeks thereafter, and

a total of 36 days after the initial seizure, the government

reduced his penalty from $24,500 to $3,600.      Id.   Mr. Von

Neumann challenged the seizure and remission procedure on

several grounds, including that the government’s “36-day delay

in acting on his remission petition denied [him] due process of

law.”     Id. at 247.

        The Supreme Court found that neither delay violated the

property owners’ constitutional rights.     The Court framed the

issue as the delay between seizure and the outcome of the

judicial forfeiture proceeding, and found that the property

owners’ due process rights were analogous to “a defendant’s

right to a speedy trial once an indictment or other process has

issued.”     $8850, 461 U.S. at 564; Von Neumann, 474 U.S. at 247.

The Court used the four factor balancing test in Barker v.

Wingo, 407 U.S. 514 (1972), which provides the framework for

determining when a criminal defendant’s case should be dismissed

for a violation of the Sixth Amendment’s right to a speedy

trial.    The four factors to be considered are: length of delay,

                                  17
reasons for delay, defendant’s assertion of his right to speedy

trial, and prejudice to the defendant.                              407 U.S. at 530.7   The

Court did not consider, nor was it asked to consider, whether

process was due to protect the owners’ property rights pendente

lite, between the seizure and the conclusion of judicial

forfeiture proceedings.8

              Analyzing the Barker factors, the $8850 court found that

the government had shown diligence and given reasonable


                                                            
7
   Under Barker, delays of less than a year are, as a general
matter, constitutionally adequate, thus, the four factor test is
not triggered. Dogett v. United States, 505 U.S. 647, 651
(1992).
8
   Although the District has not made the argument, the Court has
nevertheless considered whether Von Neumann addressed claimants’
due process rights pendente lite with the statement: “[i]mplicit
in this Court’s discussion of timeliness in $8,850 was the view
that the forfeiture proceeding, without more, provides the
postseizure hearing required by due process to protect Von
Newmann’s property interest in the car.” 474 U.S. at 249.
This statement does not affect the outcome in this case for the
following reasons. First, as discussed throughout, $8,850 and
Von Neumann addressed when forfeiture proceedings had to be
abandoned altogether for lack of due process, not what interim
process must be provided pending an otherwise valid proceeding.
Second, the Court in $8,850 and Von Newmann was faced with a
different statutory scheme than the District’s, one which
provided claimants opportunities to trigger a rapid filing of a
forfeiture action. The Court in both cases relied on the
availability of these opportunities, which do not exist in the
District’s forfeiture scheme, in determining what process was
due. Finally, both $8,850 and Von Neumann predate Good, which
applied the Mathews factors to property seized pending civil
forfeiture proceedings and determined that temporary
deprivations of property in the forfeiture context require due
process pendente lite. This Court finds Good is the most recent
as well as the most closely applicable binding precedent in this
case.
                                                               18
explanations for the delay, that Ms. Vasquez had not

consistently asserted her rights to speedy judicial proceedings,

and that the delay did not prejudice her ability to present a

claim on the merits of the forfeiture.    461 U.S. at 569.    The

Von Neumann court found that Mr. Von Neumann’s speedy trial

rights did not apply to elective remission proceedings, which,

if chosen, “supply both the Government and the claimant a way to

resolve [their] dispute informally rather than in judicial

forfeiture proceedings.”   474 U.S. at 249.   Instead, his speedy

trial rights applied solely to the length of time between

seizure and institution of judicial forfeiture proceedings.        As

the seizure of his vehicle was resolved, within 36 days, via the

remission proceedings, no judicial forfeiture proceedings began

and there was therefore no basis for a Barker inquiry.       Id.    In

the alternative, the Von Neumann court applied the Barker

factors and found that, under Barker, a 36-day delay between

seizure and final disposition of his remission petition did not

violate his speedy trial rights.     Id. at 250-51.   Both Courts

also observed that, notwithstanding any delays in the

administrative or judicial proceedings, “a claimant is able to

trigger rapid filing of a forfeiture action if he desires it,”

by, inter alia, filing an equitable action seeking an order

compelling the return of the seized property or, if the claimant

believes the initial seizure was improper, filing a motion for

                                19
return of the seized property under Federal Rule of Criminal

Procedure 41(e).                                     461 U.S. at 569; 474 U.S. at 244, n.4.

                             iii. Krimstock and the Mathews factors apply in this
                                  case.

              Plaintiff urges the Court to apply Krimstock and the

Mathews v. Eldridge factors in this case.                                     He argues that the

speedy trial test articulated in Barker v. Wingo and applied in

$8,850 and Von Neumann addresses a question of law which is

irrelevant to the issues in this case.

              Barker and its progeny involve an individual claiming that
              the legal process has taken so long that the Constitution
              mandates that the government should no longer be able to
              maintain its criminal prosecution (or, in this case, civil
              forfeiture) at all. . . . But Mr. Simms seeks something
              entirely different. He seeks—recognizing that the
              Constitution allows civil legal proceedings to take a very
              long time—a prompt post-seizure hearing at which a neutral
              decision maker can determine whether the initial seizure
              was valid and whether continued retention of his vehicle
              pending lengthy forfeiture proceedings is justified in
              light of the circumstances brought to the neutral arbiter’s
              attention.

Reply at 2.                           Defendants, for their part, assert that $8,850 and

Von Neumann limit a property owner’s due process rights in a

civil forfeiture context to a Barker analysis.                                     Opp’n at 9.

They do not, however, explain why Mathews protections do not

apply to protect the owner’s property rights pendente lite.9

                                                            
9
  Defendants also cite a 2011 case from the Illinois Supreme
Court, People v. One 1998 GMC, 960 N.E.2d 1071 (Ill. 2011) in
support of their argument that Barker, not Mathews, provides all
the process that is due in civil forfeiture proceedings. The
Court finds this case to be of limited value for several

                                                                  20
              The Court agrees with plaintiff.                                                                   The question in this case

is what process is due when the government seeks to deprive a

person of a property interest pending a final decision on the

deprivation.                            The Supreme Court has consistently answered this

question by applying the Mathews factors, balancing the parties’

interests to determine what constitutes an individual’s

procedural due process right to be heard “at a meaningful time

and in a meaningful manner” when the government acts to deprive

a person of his property, even when the deprivation is temporary

and pending the outcome of further proceedings.10                                                                                                  Barker does

                                                                                                                                                                                               
                                                                                                                                                                                               
reasons. First and most important, by the time One 1998 GMC was
decided, the civil forfeiture law that the court upheld was no
longer the law; the state had amended it to provide more interim
process, specifically, to “allow for a timely probable cause
hearing in vehicle-forfeiture proceedings going forward.” 960
N.E.2d at 1093. Second, the trial court in that case provided a
Barker remedy, namely, dismissing all of the forfeiture claims
with prejudice instead of confining its relief to the interim
status of the vehicles pending forfeiture proceedings. Third,
the Illinois law, even pre-amendment, provided significantly
more interim process for car owners to promptly challenge state
retention of their vehicles than New York City’s or the
District’s. See id. at 1084 (owner, on his own, may file motion
challenging unlawful seizure and moving for return of property
without waiting for forfeiture proceedings; owner may also file
early motion to dismiss challenging State’s allegation of
probable cause).
10
  See, e.g., Good, 510 U.S. 43 (applying Mathews factors,
concluding prior hearing is required before pre-judgment seizure
of real property); Connecticut v. Doehr, 501 U.S. 1 (1991)
(Mathews factors require prior hearing before pre-judgment
attachment of real property); Barry v. Barchi, 443 U.S. 55
(1979) (Mathews requires prompt post-deprivation hearing when
                                                                                            21
not address this issue.                                                  Rather, it asks how long a government

may keep open a case before it is fundamentally unfair to allow

it to continue.                                  The Barker test, therefore, does not apply.

                             iv.           Under the Mathews factors, a Prompt Post-
                                           Deprivation Hearing is Required

              Applying the Mathews factors to the facts and circumstances

of this case, the Court concludes, for many of the reasons

stated in Krimstock and Smith, that Mr. Simms is likely to

prevail on his claim that the District violated his rights under

the Due Process Clause by failing to provide him with notice and

a prompt post-seizure opportunity to contest the validity of the

initial seizure, as well as the validity of the government’s

continuing retention of the vehicle pending judicial forfeiture
                                                                                                                                                                                               
                                                                                                                                                                                               
horse trainer’s license was suspended); United States v. E-Gold,
521 F.3d 411 (D.C. Cir. 2008) (Mathews requires prompt post-
deprivation hearing after assets seized on a warrant pending
trial on merits, where defendants assert access to assets is
necessary to pay counsel of their choice); Coleman v. Watt, 40
F.3d 255, 260 (8th Cir. 1994) (prompt post-deprivation hearing
required after car towed and impounded); Breath v. Cronvich, 729
F.2d 1006 (5th Cir. 1984) (prompt post-seizure hearing required
after automobile is towed; hearing may be delayed only if owner
is permitted to regain the use of the automobile in the
interim). Even before Mathews was decided, the Supreme Court
engaged in a similar balancing test to determine what interim
process was due. See, e.g., Fuentes, 407 U.S. at 80-81 (hearing
required before ex parte, pre-judgment seizure of household
goods, finding plaintiff had an important interest in items such
as a stove or a bed and the risk of unfair or mistaken
deprivation of property was great); North Georgia Finishing,
Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) (considering same and
requiring hearing before pre-judgment garnishment of bank
account); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)
(considering same factors and finding hearing is necessary
before pre-judgment garnishment of wages).
                                                                                            22
proceedings.

              An individual has a strong interest in his car.                         Our

society is “for good or not, highly dependent on the

automobile.”                             Smith, 524 F.3d at 838.     It is often an

individual’s “most valuable possession,” as well as his or her

primary “mode of transportation, and for some, the means to earn

a livelihood.”                                 Krimstock, 306 F.3d at 61 (citations omitted);

cf. City of Los Angeles v. David, 538 U.S. 715, 717-18 (2003)

(temporary deprivation of the use of money does not give rise to

a strong private interest, as opposed to the temporary

deprivation of the use of an automobile, which does).                                 In

addition, the length of the deprivation increases the weight of

the individual’s interest in possessing the vehicle.                                  Krimstock

at 61-62 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 434

(1982)).                     Unlike many other jurisdictions, which provide some

opportunity for owners of seized vehicles to mount interim

challenges to the seizure and retention of their cars, the

District provides an individual no opportunity to lessen the

length of the deprivation by, for example, filing a remission

petition or an action for replevin, or seeking a hardship

exception to indefinite seizure.11


                                                            
11
  See, e.g., One 1998 GMC, 960 N.E.2d at 1084 (explaining
Illinois statutory scheme enabling owners to move for return of
property or file early motion to dismiss based on lack of
probable cause); Civil Asset Forfeiture Reform Act (CAFRA), 18
                                                               23
              The District argues that Mr. Simms cannot prevail on the

first Mathews factor because, regardless of “the generalized

interest that other people may have in the use of their own

cars,” Mr. Simms himself can “get to work and carry on his usual

activities using public transportation and other means,” Opp’n

at 12, “with little more than inconvenience,” id. at 15.                                                                                                                 The

Court is not convinced.                                                  As an initial matter, as plaintiff

correctly points out, the District’s argument “misunderstands

the level of generality at which Mathews operates.”                                                                                                       Reply at 9.

Mathews and its progeny involve the “weighing of fiscal and

administrative burdens against the interest of a particular

category of claimants,” to determine what process is due.

Mathews, 424 U.S. at 348 (analyzing the importance of Social

Security disability benefits to all recipients as a category);

see also Good, 510 U.S. at 43 (analyzing property owners’

interest in their real property regardless of whether they lived

in the property or, like Mr. Good, rented it to tenants).

Moreover, contrary to the District’s representations, Mr. Simms


                                                                                                                                                                                               
                                                                                                                                                                                               
U.S.C. § 983(f) (permitting immediate release of property
pending forfeiture litigation if government retention would
cause serious hardship); Kan. Stat. Ann. § 60-4112 (c),(d)
(interest holder can obtain a preliminary probable cause hearing
within thirty five days of seizure; can also apply for interim
return of property if it is necessary for the defense of the
person’s criminal charge); Minn. Stat. Ann. § 609.531(5a)(a)(b)
(owner may post bond to have seized property returned before
forfeiture action is determined, and can gain possession in the
interim by surrendering the vehicle’s certificate of title).
                                                                                            24
has shown that he, personally, has a strong interest in his

vehicle.   Plaintiff states that without his car it takes him

over three hours per day to commute to and from work via public

transportation, costs the equivalent of three-and-a-third hours

of his wages to do so, has resulted in reprimands for tardiness

which could lead to termination of his employment, and has

severely impeded his ability to transport his family to

necessary life events such as day care and doctors’

appointments.   Simms Decl. ¶¶ 3, 4, 10.

     Turning to the second factor, the Court finds there is at

least some risk of erroneous deprivation when the District

seizes a vehicle pursuant to a traffic stop.   Moreover, the

probable value of additional procedural safeguards is high.

     First, there is an inherent risk of error when a seizure is

based a traffic stop: namely, its validity rests solely on the

arresting officer’s unreviewed probable cause determination.

See, e.g., Gerstein v. Pugh, 420 U.S. 103, 112-13 (1975)

(requiring prompt probable cause determination before a neutral

magistrate following a warrantless arrest, because of the risk

of unfounded charges of crime when arrest is based solely on

evidence interpreted “by the officer engaged in the often

competitive enterprise of ferreting out crime”(citations

omitted)).



                                25
     Second, with respect to innocent owners, the danger of

erroneous deprivation is particularly high.   “In the due process

context, the Supreme Court has shown special concern for the

risk of erroneous deprivation posed to innocent owners.”

Krimstock, 306 F.3d at 55-56 (citing Good, 510 U.S. at 55).      The

D.C. Code provides an absolute defense to forfeiture of vehicles

for innocent owners.   It provides:

     (c) An innocent owner’s interest in a conveyance which has
     been seized shall not be forfeited under this section.
          (1) A person is an innocent owner if he or she
          establishes, by a preponderance of
          the evidence:
               (A) That he or she did not know that a person or
               persons in the conveyance was transporting,
               possessing, or concealing any firearm or that the
               conveyance was involved in or was being used in
               the commission of any illegal act involving any
               firearm; or
               (B) That, upon receiving knowledge of the
               presence of any illegal firearm in or on the
               conveyance or that the conveyance was being used
               in the commission of an illegal act involving a
               forfeiture, he or she took action to terminate
               the presence in or on the conveyance of the
               person, persons, or firearms.

D.C. Code § 7-2507.06a(c).   In the rush of a traffic stop, it

may be particularly difficult for a police officer to accurately

assess whether a vehicle owner knew about any firearms or other

contraband concealed in the vehicle.   See, e.g., D.C. Code § 48-

905.02(a)(4)(B) (no forfeiture of vehicle used to transport

drugs if the vehicle was used for this purpose without the

owner’s knowledge or consent).   Under the District’s current


                                 26
forfeiture scheme, however, innocent owners are given no

opportunity to test the probable validity of the District’s

continued impoundment of their vehicles after the seizure and

pending forfeiture proceedings.

     The District argues that there is no compelling risk of

erroneous deprivation in this case because the District

conducted investigations leading to Mr. Simms’s arrest, making a

probable cause determination for the forfeiture, and preparing

for the judicial forfeiture proceedings.    Opp’n at 15.    The

District ignores, however, that all three of these

investigations are ex parte by the District and contemplate no

involvement of the owner or a neutral arbiter.     See D.C. Code §§

48-905.02(b), (c), (d)(3)(E).   “Fairness can rarely be obtained

by secret, one-sided determination of facts decisive of rights.

. . . No better instrument has been devised for arriving at

truth than to give a person in jeopardy of serious loss notice

of the case against him and opportunity to meet it.”       Good, 510

U.S. at 55 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath,

341 U.S. 123, 170-72 (1951) (Frankfurter, J., concurring)).

Likewise, the District’s argument that Mr. Simms will ultimately

lose his civil forfeiture case is unpersuasive.    The strength of

an individual’s case at the ultimate forfeiture proceeding does

not diminish his “possessory interest post seizure and pre-

judgment.”   Krimstock, 306 F.3d at 62.    “Fair procedures are not

                                  27
confined to the innocent.                                      The question before us is the

legality of the seizure,” as well as the continuing interim

retention, “not the strength of the Government’s case.”                                        Good,

510 U.S. at 62.

              Finally, the risk of erroneous deprivation is cause for

heightened concern when the deprivation “cannot be recompensed

by the claimant’s prevailing in later proceedings.”                                      Krimstock

at 63.                 Unlike certain deprivations such as Social Security

Disability benefits, which are not based on financial need and

for which full retroactive relief can be awarded if plaintiff

later prevails, see Mathews, 424 U.S. at 340, “an owner cannot

recover the lost use of a vehicle by prevailing in a forfeiture

proceeding.                           The loss is felt in the owner’s inability to use a

vehicle that continues to depreciate in value as it stands idle

in the police lot,” Krimstock, 306 F.3d at 64.12

              For the foregoing reasons, the Court finds that there is at

least some risk of erroneous deprivations for vehicle owners


                                                            
12
  Plaintiff also claims the MPD’s pecuniary interest in the
outcome of the forfeiture proceedings (specifically, the fact
that the MPD receives a portion of the revenue from forfeiture
sales), further increases the risk of erroneous deprivation.
Mot. at 18-20. In response, the District has provided
information that, in Fiscal Year 2011, the net revenue MPD
received from forfeiture sales amounted to less than one tenth
of one percent of MPD’s budget. Supp’l Opp’n at 4 (citing Ex.
2, Decl. of Leroy Clay). At this stage of the proceedings, the
Court does not rely on MPD’s pecuniary interest in finding a
risk of erroneous deprivation.


                                                                   28
like Mr. Simms, whose vehicles have been seized pursuant to

traffic stops and are not needed as evidence in the underlying

criminal proceeding.13

              These risks could be mitigated by additional procedural

safeguards.                           Plaintiff requests a hearing before a neutral

arbiter at which owners would be able to challenge both “the

validity of the initial seizure and the validity of the

continued impoundment of the car pending any forfeiture

litigation.”                             Mot. at 2.            At such a hearing, the owner would be

able to, in some form or fashion, (1) obtain review of the

arresting officer’s probable cause determination; (2) if

appropriate, assert an innocent owner or other defense to

forfeiture; and (3) seek conditions from the arbiter under which

the vehicle could be returned on an interim basis pending

forfeiture proceedings while still protecting the District’s

interest in the vehicle.                                       For example, the arbiter could order

the owner to give bond or surrender title, or could issue an

order restraining the owner from selling or disposing of the

vehicle pending the outcome of forfeiture proceedings.                                       See,
                                                            
13
  The District claims, wrongly, that granting Mr. Simms’s
preliminary injunction would give him “the opportunity to drive
off with the evidence in the criminal proceeding.” Defs.’
Supp’l Opp’n at 3. As plaintiff makes clear, his motion
addresses only “whether Mathews requires certain procedures to
be followed when the District, after that evidence is no longer
needed (i.e., after the criminal prosecution is over) seeks to
continue depriving the owner of the property.” Pl.’s Resp. to
Defs.’ Supplement at 3-4.
                                                                    29
e.g., Good, 510 U.S. at 62; Smith, 524 F.3d at 836 (additional

procedures such as a temporary restraining order preventing the

sale or destruction of the property or bond would allow owners

to retain their property pendente lite, thus mitigating the risk

of erroneous deprivation).

     Finally, the third Mathews factor, the District’s interest

in avoiding additional procedural safeguards, also weighs in

Plaintiff’s favor.   The District claims it has an interest in

“avoiding additional procedures that would greatly increase the

cost of forfeiture,” Opp’n at 12,    but it presents no evidence

regarding the potential burden of alternative procedural

measures to ensure that accurate determinations regarding

deprivation of property are made.    In supplemental filings, the

District also cites its interest in removing instrumentalities

of crime from the streets, thereby preventing future crime.

Supp’l Opp’n at 7.   This Court finds, however, that this

interest is somewhat attenuated since Mr. Simms was acquitted of

misconduct in the criminal proceeding, and since his misconduct

has yet to be established in a civil proceeding.   Until that

time comes, his motor vehicle can serve many legitimate

purposes.   See Krimstock, 306 F.3d at 66-67 (rejecting the

government’s interest in preventing offending vehicles from

being used in future crime).



                                30
      Finally, although the District does not argue that it has

an interest in protecting its interest in the vehicles in the

event they are ultimately subject to forfeiture, the alternative

procedural safeguards outlined above (such as requiring owners

to give bond to obtain interim release of their vehicles, or

obtaining orders prohibiting them from selling or disposing of

the vehicles pending judicial forfeiture proceedings) would

protect these interests.

     Based on the foregoing, the Court finds that Mr. Simms is

likely to succeed on the merits of his claim: the Due Process

Clause requires that a vehicle owner whose vehicle has been

seized, and is not being held as evidence, be given a prompt

post-seizure opportunity to test the validity of the initial

seizure and of the District’s continuing retention during the

pendency of forfeiture proceedings.


     B.   Irreparable Harm

     Mr. Simms argues that he will suffer irreparable harm if

the Court does not provide him with his car until either the

conclusion of the forfeiture proceedings or until the District

can provide him with notice and an opportunity to be heard

pendente lite.   He alleges that as result of the loss of his

car, his employment is in jeopardy, he is unable to spend time

with his infant daughter, and he is unable to take her as well



                                31
as his fiancée to doctors’ appointments, daycare, and family

gatherings.    In addition, he asserts that deprivation of his due

process rights alone constitutes irreparable harm.    The District

has argued that the loss of Mr. Simms’s automobile does not

constitute irreparable harm for him specifically, as he is still

able to get to work and take care of his family.    The District

does not address plaintiff’s argument that deprivation of his

constitutional rights is per se irreparable harm.

     This Circuit has set a high standard for irreparable

injury.   First, the injury “must be both certain and great; it

must be actual and not theoretical.”     Wisc. Gas Co. v. FERC, 758

F.2d 669, 674 (D.C. Cir. 1985) (per curiam). The plaintiff must

show “[t]he injury complained of is of such imminence that there

is a clear and present need for equitable relief to prevent

irreparable harm.”     Id. (citations, brackets, and internal

quotation marks omitted).    Second, the injury must be beyond

remediation.    Id.   “It has long been established that the loss

of constitutional freedoms, ‘for even minimal periods of time,

unquestionably constitutes irreparable injury.’”     Mills v. Dist.

of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (quoting Elrod

v. Burns, 427 U.S. 347, 373 (1976)).

     As explained above, Mr. Simms is likely to succeed on the

merits of his claim that the District’s forfeiture scheme

violates his Fifth Amendment right to due process by failing to

                                  32
provide him with a prompt post-seizure hearing to challenge the

validity of the seizure of his vehicle, and the District’s

indefinite retention of the vehicle, pending forfeiture

proceedings.   This injury is certain, because it has already

occurred, and is ongoing, because the District has held his car

for over a year and has yet to provide plaintiff with any type

of hearing.    Accordingly, the Court finds this deprivation of

plaintiff’s constitutional rights constitutes irreparable harm.

See Gordon v. Holder, 826 F. Supp. 2d 279, 296 (D.D.C. 2011)

(violation of plaintiff’s procedural due process rights creates

irreparable harm); Goings v. Court Services and Offender

Supervision Agency, 786 F. Supp. 2d 48, 78-79 (D.D.C. 2011)

(same).


     C.   Balancing of the Equities and the Public Interest

     The plaintiff argues that the District will not be harmed

by the narrow remedy he seeks, namely, permitting the plaintiff

to recover his car, on condition that he maintain insurance and

refrain from selling or otherwise disposing of it, pending a

final decision on the merits.   Reply at 15-17; Pl.’s Response to

Defs.’ Supp’l Mem. at 10.   Mr. Simms further argues that the

public interest weighs in favor of protecting a party’s

constitutional rights.   Pl.’s Response to Defs.’ Supp’l Mem. at

10-15; Pl.’s Supp’l Mem. at 5-10.     The District, for its part,



                                 33
claims that granting the preliminary injunction would “call into

question the entire forfeiture scheme, undermining the

District’s ability to seize property for any and all purposes.”

Opp’n at 15; see also Supp’l Opp’n at 7 (“The District would

effectively be blocked from using civil forfeiture as a law

enforcement tool, since the Court’s decision would undoubtedly

be asserted by claimants in one way or another in every

forfeiture unless and until there is a legislative solution

along the lines of an order issued by the Court.”); Defs.’

Supp’l Filing of June 22, 2012 at 4-5 (same).   Defendants also

argue that requiring them to implement notice and hearing

procedures would cause an administrative and financial burden.

Opp’n at 15.

     After careful consideration, the Court concludes that the

balance of the equities and the public interest tip in favor of

the plaintiff.   Mr. Simms has demonstrated that the loss of his

vehicle harms his ability to go about the necessities of daily

life, and the District’s continued retention of his vehicle

without the opportunity to be heard deprives him of his

constitutionally-protected rights.   “It is always in the public

interest to prevent the violation of a party’s constitutional

rights.”   Abdah v. Bush, No. Civ. A. 04-1254, 2005 U.S. Dist.

LEXIS 4942, *22 (D.D.C. Ma. 29, 2005) (quoting G&V Lounge, Inc.

v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir.

                                34
1994)); see also Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir.

2012); Freedberg v. U.S. Dep’t of Justice, 703 F. Supp. 107, 111

(D.D.C. 1988) (citation omitted).

              The harms predicted by the District, on the other hand, are

overstated.                           Defendants claim that a preliminary injunction

would bring the entire forfeiture system to a grinding halt.

Plaintiff, however, does not seek to enjoin the statute in

general.                     He seeks, for the time being, only to prevent the

District from continuing to hold one vehicle in particular.                            The

preliminary injunction he requests is narrowly tailored to (1) a

single individual, (2) whose vehicle was seized and continues to

be held by the District pending forfeiture proceedings, (3) who

has made a claim for his vehicle in accordance with the

governing statute, and (4) whose vehicle is neither needed as

evidence in a criminal proceeding, nor subject to criminal

forfeiture or any other holds.14

              Defendants also claim that requiring them to implement

notice and hearing procedures would cause an administrative and

financial burden; however, the preliminary injunction does not
                                                            
14
   According to the District’s own numbers, provided at the
Court’s request, there are, at maximum, eight to ten people per
month who are similarly situated. Supp’l Opp’n at Ex. 3; Supp’l
Decl. of Lt. Derek Gray at ¶ 5.b. Even if the injunction
reached beyond plaintiff himself, which it does not, these
numbers contradict any claim that the District’s interest in
continuing to exercise its forfeiture powers – an interest the
Court recognizes - will be much affected by the preliminary
injunction.
                                                               35
require these measures.   As Mr. Simms points out, Defendants

“make no arguments as to why the process sought here would be

costly, let along why those costs would overwhelm the other

constitutional considerations.”    Reply at 16; see also Smith,

524 F.3d at 838 (“[D]ue process always imposes some burden on a

governing entity.”).

      The District relies on two cases which the Court raised

with the parties during briefing -- Allina Health Svcs. v.

Sebelius, 756 F. Supp. 2d 61 (D.D.C. 2010) and Goings v. Court

Services and Offender Supervision Agency for the Dist. of

Columbia, 786 F. Supp. 2d 48 (D.D.C. 2011) –- in support of its

public interest argument.   Both are distinguishable.   In Allina,

plaintiff hospitals asked the court to grant a preliminary

injunction which would have required the Department of Health

and Human Services to create a separate method of calculating

Medicare reimbursement for them and to change the government’s

payment processing system for plaintiff hospitals accordingly.

As Judge Collyer correctly noted, this would create a tremendous

administrative burden for the government at the preliminary

injunction stage.   She found that imposing this “disruptive

remedy” would not be in the public interest, particularly since

the D.C. Circuit was in the process of deciding another case on

precisely the same grounds, which would control the outcome of

the case before her and potentially create competing,

                                  36
inconsistent reimbursement requirements.    756 F. Supp. 2d at 70-

71.   In this case, unlike Allina, the preliminary injunction

does not force the defendants to craft a new procedure.     Nor, as

far as the Court is aware, are there any pending cases which

would control the outcome of this one.

      Goings is likewise distinguishable.   Mr. Goings, a

convicted sex-offender who was on probation and who was

transferred from Florida to the District through an interstate

compact, claimed certain conditions of probation were imposed on

him in the District without due process, and sought to enjoin

the conditions.   While Judge Howell found plaintiff was likely

to succeed on the merits, she found that the preliminary

injunction was not in the public interest because the Court had

no information on how conditions of probation were imposed

either in the District or in other states whose probationers

were transferred throughout the country under the interstate

compact.   Accordingly, given the possibility that an injunction

would cast doubt “on non-judicial modifications of probation

conditions placed upon offenders transferred under [the

interstate compact] across the country,” and in light of “the

current incomplete record before the Court and the lack of any

constructive input from the parties about the scope or impact”

of a preliminary injunction, Judge Howell declined to grant

plaintiff’s request.   786 F. Supp. 2d at 79-80.   In this case,

                                37
on the other hand, no laws beyond the District’s forfeiture

scheme are implicated and no other states’ processes are at

issue.    Moreover, the Court has before it precise information,

provided by the District, about the number of people similarly

situated to Mr. Simms.     See supra n.14.      Accordingly, Judge

Howell’s concerns in Goings lack force here.

     The Court therefore finds that Plaintiff has demonstrated

that the balance of the equities and the public interest tip in

his favor.


     D.      Security

     Pursuant to Federal Rule of Civil Procedure 65(c), “the court may

issue a preliminary injunction . . . only of the movant gives security

in an amount that the court considers proper to pay the costs and

damages substained by any party found to have been wrongfully enjoined

or restrained.”   Courts in this Circuit have found the Rule “vest[s]

broad discretion in the district court to determine the appropriate

amount of an injuction bond,”    DSE, Inc. v. Uniter States, 169 F.3d

21, 33 (D.C. Cir. 1999), including the discretion to require no bond

at all.   Council on American-Islamic Rels. v. Gaubatz, 667 F. Supp. 2d

67, 80 (D.D.C. 2009).

     In this case, the costs or damages sustained by the District

would be modest -- the loss of the amount for which Mr. Simms’ car

could be sold at forfeiture.    Moreover, as discussed above, plaintiff

has extremely limited financial resources, and is unable to post

security in any significant amount.      Courts regularly take both of

                                    38
these factors into account when exercising their discretion to require

a bond.   See Id. at 80 (requiring no bond where the defendant would

not be substantially injured by the issuance of an injunction);

Swanson v. Univ. of Hawaii Prof. Assembly, 269 F. Supp. 2d 1252 (D.

Haw. 2003) (bond requirement for public employees waived based on

ability to pay, and also because injunction sought enforcement of

constitutional rights); see also 11A Charles A. Wright, Arthur R.

Miller, Mary K. Kane, Richard L. Marcus, Federal Pracrtice and

Procedure § 2954 (2d ed.) (same).   Accordingly, based on the record in

this case, in particular the District’s interest in the value of the

car as compared with plaintiff’s limited ability to pay a bond and the

constitutional rights he seeks to protect, the Court will exercise its

discretion in this case to impose a minimal security requirement.

Plaintiff shall give security in the amount of $1,000.



IV.   CONCLUSION

      Accordingly, for the foregoing reasons, plaintiff’s motion

for a preliminary injunction is GRANTED.      It is hereby

      ORDERED that the District shall forthwith release Mr.

Simms’s vehicle to him pending the outcome of the forfeiture

proceedings which were instituted in the Superior Court of the

District of Columbia, District of Columbia v. One 2007 Saturn

Aura V.I.N. 1G8ZS57N17F291738, Civ. Action No. 4742-12 (Libel);

it is further




                                    39
     ORDERED that Mr. Simms shall not sell or otherwise dispose

of the vehicle pending the outcome of the forfeiture

proceedings; it is further

     ORDERED that Mr. Simms shall maintain insurance on his

vehicle pending the outcome of the forfeiture proceedings; it is

further

     ORDERED that Mr. Simms shall give security as required by

Federal Rule of Civil Procedure 65(c) in the amount of $1000.00.


     An appropriate Order accompanies this Memorandum Opinion.


Signed:   Emmet G. Sullivan
          United States District Judge
          July 6, 2012




                               40
