During racial justice protests in Washington, D.C., on two August nights in 2020, Destiny Robinson and Oyoma Asinor both found themselves in a crowd of people surrounded and then arrested by the city's Metropolitan Police Department officers.

As they were taken into custody, police seized the items they were carrying, including their cell phones and a camera. But when both of them were eventually released without facing charges, that didn't mean they were able to get their belongings back. Instead, police held onto the items as potential evidence. Without their phones, they were left dependent on community members to help them get home.

"There wasn't any way to let folks know where we had been at the processing center," Robinson told Law360. "We were just released and let out into the world."

It took Robinson about a year and a half to get her phone back. Asinor, meanwhile, had to use what was left in his bank account at the time to replace his phone and camera, which took police just shy of a year to return.

"I took pictures almost every single day for a year covering this protest movement, and I still can't really bring myself to look at them," he said.

Asinor and Robinson signed on as plaintiffs in two different lawsuits filed in August and November 2021, respectively. The suits were handled by the American Civil Liberties Union of Washington, D.C., which teamed up with the Lawyers' Committee for Civil Rights Under Law, a solo civil rights practitioner, and pro bono counsel with Skadden Arps Slate Meagher & Flom LLP.

Four years after Asinor and Robinson's arrests, the D.C. Circuit decided in a consolidated ruling last month that, under the Fourth Amendment, the government's continued possession of property seized from people during a lawful arrest must be "reasonable."

Michael Perloff, the interim legal director for the ACLU of D.C., said the decision could have an impact beyond the D.C. Circuit's jurisdiction.

"There are jurisdictions that haven't ruled definitively on this issue, and … jurisdictions where the circuit courts have ruled in an unfavorable way," Perloff told Law360. "[The opinion] is available to those courts. Those courts can go back and reconsider those precedents … and reverse them if needed. So there is some room to really see this opinion percolate throughout the circuits and lead to a correct rule of law applying throughout the country."

Also in August, the Lawyers' Committee and Orrick Herrington & Sutcliffe LLP announced the settlement of a class action that accused the Baltimore Police Department of seizing shooting victims' property in violation of their constitutional rights.

As part of the agreement, the BPD agreed to adopt a new policy that the plaintiffs' lawyers believe can serve as a model for other cities. In accordance with the settlement, the police department must commit to managing its officers and staff to ensure their compliance with search and seizure rules.

"I think that, with this particular settlement where BPD is required to not only train but also hold officers accountable who engage in these unlawful practices, I think that is part of the amazing win for a lot of victims that have been subjected to this type of treatment," Lawyers' Committee for Civil Rights Under Law senior counsel Anisa Sirur, who worked on the lawsuit, told Law360.

In addition to the policy changes, the Baltimore police last month began notifying people whose items are in the police's custody of the process they can follow to have their belongings returned.

The settlement agreement in Baltimore came eight years after a U.S. Department of Justice investigation revealed police disproportionately and unlawfully subjected Black residents to stops, searches and arrests. The BPD agreed to work toward various reforms as part of a consent decree with the DOJ.

The team responsible for monitoring compliance with that consent decree will also monitor compliance with the terms of the class action settlement.

"Training and supervision was definitely part of our focus," Sirur said. "Our arguments all along were [that] this practice and custom of these unconstitutional searches and seizures were caused in part because of a failure to supervise and adequately train officers on their obligation not to conduct these unlawful searches and seizures. That was definitely a big part of our negotiations and a focus for both Orrick and the Lawyers' Committee. "

In the Baltimore case, all three of the named plaintiffs were Black city residents who had items like cell phones and clothing seized as evidence after they survived being shot in either 2019 or 2020. An April 2021 complaint noted all three had yet to get their property back.

Lydia C. Watts, executive director of the Rebuild, Overcome, and Rise, or ROAR, Center at the University of Maryland's Baltimore campus, praised the resolution in a statement last month.

"Our attorneys have tried everything possible to get victims' property returned, and until recently we've had no success," she said at the time.

While the case out of Washington, D.C., focused on items seized from people who were placed under arrest, a brief from the D.C. Public Defender Service also cited incidents of victims of crime who were struggling to get their property back.

The victory in the D.C. Circuit case came despite previous federal appeals court rulings rejecting Fourth Amendment challenges to prolonged property seizures. According to a concurring opinion by D.C. Circuit Judge Karen LeCraft Henderson, the First, Second, Sixth, Seventh and Eleventh circuits have all held in precedential opinions that the Fourth Amendment does not support claims against the government over retention of legally seized property.

"The logic of those opinions essentially boiled down to the idea that if the police had a lawful basis to take the item, it doesn't matter what happens next," Perloff, of the D.C. ACLU, told Law360. "And that reasoning was squarely incompatible with the rulings of several U.S. Supreme Court decisions."

One of the decisions the D.C. Circuit cited in siding with the plaintiffs, however, was United States v. Jacobsen , a 1984 U.S. Supreme Court ruling that held the Fourth Amendment is violated when "there is some meaningful interference with an individual's possessory interests in that property." Modern case law like this, the D.C. Circuit said, "confirms that the Fourth Amendment governs what happens after the government initially seizes property."

"I think that while there had been other opinions, those opinions ... didn't fully grapple with the relevant authority," Perloff said. "Maybe they didn't have all the arguments or material in front of them, but for whatever reason, they reached a conclusion that, as the D.C. Circuit explained, was incompatible with precedent and history."

The D.C. Office of the Attorney General and the Baltimore City Solicitor's Office did not respond by Friday to Law360's requests for comment.

While the victories in D.C. and Baltimore came in different forms, they each showed a concerted effort to stand up to case law and statutes that have made it notoriously difficult to secure police accountability in civil courts.

"It requires partnership like the Lawyers' Committee with Orrick and really putting a lot of effort into it," Sirur said.

New York-based managing associate Alison Epperson was part of Orrick's pro bono team working with the Lawyers' Committee on the Baltimore case. She credited her firm for throwing its support behind this effort and encouraged lawyers like her with an interest in public interest work to make pro bono a priority in their practice from the beginning.

"Stay involved in your community, stay vigilant in your advocacy for your clients, and don't hesitate to do pro bono legal work from the very beginning," Epperson said.

While Asinor and Robinson both eventually got their property back, the impact of their experiences remains. While their work continues today, it looks very different from what it did in 2020.

"My camera — I still have it, but it doesn't feel like it's mine," Asinor said.

Still, Asinor continues to use his talents. He has spent the past four years photographing life on the three blocks around D.C.'s 14th and U Street, something he hopes to be able to present as a collection. Both he and Robinson hope the D.C. Circuit's decision will help encourage people trying to use their First Amendment rights to make a difference for the issues they care about.

"I'm really hoping that this ruling and the work that we're doing here is a win for the people who need it, and protesters in my community, and people who are attending these demonstrations guaranteed by the First Amendment across the country," Asinor said. "So I really see this as a positive step forward, and hopefully we can take more positive steps forward after this too."

Today, while she's not as active in direct organizing as she was in 2020, Robinson focuses her work on education. One group she works with, known as Liberators, helps make texts by influential Black thinkers freely available, often breaking denser works down to be more accessible to readers.

Like Asinor, she said she was encouraged by the D.C. Circuit's decision.

"I hope this secures people's sense of dignity when they do go out to express their First Amendment rights, but I hope it also reaffirms our First Amendment rights in saying that if we are going to go out and do these actions, like, we shouldn't have our cell phones taken from us for a long time without justification," Robinson said.

--Editing by Lakshna Mehta.

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