                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

 HENRY DIXON, et aI.,                             )
                                                  )
                       Plaintiffs,                )
                                                  )
               v.                                 )     Civil Case No. 10-297 (RJL)
                                                  )
 DISTRICT OF COLUMBIA,                            )
                                                  )
                       Defendant.                 )
                                                      ~-
                              MEMORANDUM OPINION
                               (November~, 2010) [#5]


       Plaintiffs Henry Dixon ("Dixon") and Cuong Thanh Phung ("Phung")

(collectively, "plaintiffs") filed this purported class-action complaint against the District

of Columbia ("the District") alleging denial of equal protection of the law in violation of

the Due Process Clause of the Fifth Amendment of the United States Constitution.

Specifically, plaintiffs claim that motorists who are accused of driving at speeds in excess

of 30 miles per hour over the speed limit receive disparate treatment when they are

stopped by an officer as compared to when they are cited by the District's Automated

Traffic Enforcement System ("ATE"). Now before the Court is the District's Motion to

Dismiss. Upon consideration of the pleadings, relevant case law, and entire record, the

District's Motion to Dismiss is GRANTED.

                                     BACKGROUND

      General Order 303.1 of the District's Metropolitan Police Department ("MPD")

provides that motorists stopped by police officers and charged with speeding more than



                                              I
30 mph over the speed limit are subject to automatic arrest, as well as possible criminal

prosecution, a fine of$300, and imprisonment of not more than 90 days. Compi. ~~12-

13. By contrast, however, when a vehicle is photographed traveling at such speeds by the

District's Automated Traffic Enforcement System ("ATE"), the District merely mails a

summons and notice of infraction to the registered owner of the vehicle. Compi. ~ II.

The registered owner, in tum, may then request a hearing. Id. The maximum penalty for

the alleged infraction in that situation is a civil penalty. Id. The District's ATE system

was introduced in 1999 pursuant to D.C. Code § 50-2209.0l. Compi.        ~10.


       On February 15,2008, at approximately 11 :00 p.m., Dixon was stopped and

arrested by an MPD officer for speeding more than 30 mph over the posted speed limit.

Compi. ~14. On November 27,2009, at approximately 11 :30 p.m., Phung was stopped

and arrested by an MPD officer for speeding more than 30 mph over the posted speed

limit and arrested. Compi. ~ 15. Both were held at the Second District Headquarters in

the District for several hours, and faced criminal penalties, including a possible fine of

$300 and incarceration for up to 90 days. Compi.    ~~I4-I5.   Their offense, of course, was

in no way unique: over the past three years, thousands of motorists in the District have

been stopped for speeding more than 30 mph over the speed limit, arrested, and subject to

criminal penalties. Compi.   ~16.


       Plaintiffs filed this purported class action complaint on February 24, 2010,

challenging, in essence, the District's practice of arresting motorists caught driving at

speeds in excess of 30 mph over the speed limit by an MPD officer, while merely issuing

a civil fine to those caught driving at such speeds by the ATE system.

                                              2
                                       DISCUSSION

       A court may dismiss all or part of a complaint that "fail[s] to state a claim upon

which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss

made pursuant to Rule l2(b)( 6), a complaint must "plead[] factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). In evaluating a Rule 12(b)(6)

motion, the Court must construe the complaint "in favor of the plaintiff, who must be

granted the benefit of all inferences that can be derived from the facts alleged." Schuler

v. United States, 617 F.2d 605,608 (D.C. Cif. 1979) (internal quotation marks omitted).

But, the Court "need not accept inferences drawn by plaintiff[] if such inferences are

unsupported by the facts set out in the complaint. Nor must the court accept legal

conclusions cast in the form of factual allegations." Kowal v. MCI Commc 'ns Corp., 16

F.3d 1271, 1276 (D.C. Cif. 1994). Although the factual allegations need not be detailed,

"a plaintiffs obligation to provide the grounds of his entitlement to relief requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and alterations omitted). Factual allegations, even though assumed to be

true, must still "be enough to raise a right to relief above the speculative level." ld.

       The Equal Protection Clause of the Fourteenth Amendment requires that no state

shall "deny to any person within its jurisdiction the equal protection of the laws."J U.S.



I The Fourteenth Amendment's equal protection clause has been found to apply to the
District of Columbia through the Fifth Amendment's due process clause. See Bolling v.
                                               3
Const. amend. 14. The clause is "essentially a direction that all persons similarly situated

should be treated alike." City of Cleburne v. Cleburne Living Ctr, 473 U.S. 432, 439

(1985). "The Constitution, however, does not require things which are different in fact or

opinion to be treated in law as though they were the same." Women Prisoners of District

of Columbia Dept. of Corrections v. District of Columbia, 93 F.3d 910,924 (D.C. Cir.

1996) (quotation omitted). Accordingly, "[t]he threshold inquiry in evaluating an equal

protection claim is, therefore, to determine whether a person is similarly situated to those

persons who allegedly received favorable treatment." Id. (quotation omitted).

         The District argues that the complaint must be dismissed because it does not state

an equal protection claim. Specifically, the District contends that the two groups of

speeding motorists-i.e., those caught by an officer and those caught by the ATE

system-are not similarly situated because the former may be arrested without a warrant

while the latter may not. The distinction between arrest and non-arrest, the District

contends, turns simply on whether the motorist can, in fact, be arrested, as a warrantless

arrest is only permitted where an MPD officer is a witness to an offense. Accordingly,

those driving automobiles photographed for speeding by the District's automated system

cannot be arrested, and thus the two groups of motorists are not similarly situated. I

agree.

         The plaintiffs' complaint, of course, overlooks this fundamental difference. Like

other drivers who are seen by an MPD officer driving at speeds more than 30 mph over


Sharpe, 347 U.S. 497, 499 (1954); see also Brandon v. District of Columbia Board of
Parole, 734 F.2d 56, 60 (D.C. Cir. 1984).
                                              4
the speed limit, plaintiffs can be arrested within the bounds of the Fourth Amendment, as

the arresting officer has probable cause to believe that the driver committed a crime. See,

e.g., Virginia v. Moore, 553 U.S. 164, 171 (2008). By contrast, when a vehicle is

photographed for traveling 30 mph over the speed limit, there is no probable cause to

believe that the owner of that vehicle was driving and therefore committed a crime,

because there is no additional evidence that the owner was in fact the driver. Presumably

for this reason, the statutory scheme authorizing the ATE system expressly provides for

that possibility by outlining steps a registered owner can take to show "that the vehicle

was, at the time of the infraction, in the custody, care, or control of another person." D.C.

Code § 50-2209.02. By contrast, when a driver, such as either plaintiff, is pulled over by

an MPD officer after the officer witnesses the alleged infraction, there is probable cause

for the officer to believe that (I) the person pulled over was, in fact the driver, and (2) the

crime of speeding has occurred. The officer may therefore arrest that driver without a

warrant. Accordingly, because the plaintiffs are not similarly situated to those allegedly

receiving more favorable treatment, as required to make out an equal protection claim,

the complaint must be dismissed.




                                              5
                                      CONCLUSION

       For all the foregoing reasons, it is hereby

       ORDERED that the District of Columbia's Motion to Dismiss is GRANTED;

and it is further

       ORDERED that the above-captioned case be dismissed with prejudice.

       SO ORDERED.


                                                              t
                                                      2..w£1wtMJ
                                                     RICHARD 1. L~ON
                                                                            .,

                                                     United State~trict Judge




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