The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

The post Police Cannot Seize Property Indefinitely After an Arrest, Federal Court Rules appeared first on Reason.com.

"It was a very safe city." So said Mike Waters, owner of a pub in D.C.'s long-gentrified Dupont Circle area, in a neighborhood Zoom meeting this past January, neatly encapsulating a seemingly sudden deterioration in public safety.

Violent crimes rose 39 percent in Washington, D.C., last year, including a 67 percent jump in robberies. Homicides increased a stunning 35 percent. Property crime rose 24 percent, with 3,756 motor vehicle thefts in 2022 becoming 6,829 in 2023. The city's 911 system struggled to handle 1.77 million calls, more per capita than anywhere else in the country.

The trend did not spare the powerful. In February 2023, an attacker in an apartment elevator grabbed Rep. Angie Craig (D–Minn.) by the neck. In October, three masked gunmen carjacked Rep. Henry Cuellar (D–Texas) in the trendy Navy Yard neighborhood. And in February, a former D.C. election official, Mike Gill, was shot dead in his car while picking up his wife just off K Street. Business owners citywide deal with brazen thefts.

This did not reflect a national trend. The rest of the country saw a 13 percent drop in homicides in 2023, a reduction evident in many major cities: New York (down 11 percent), Chicago (down 13 percent), Los Angeles (down 16 percent), Atlanta (down 18 percent), Philadelphia (down 21 percent), Baltimore (down 25 percent). But in Washington, crime went up and up and up, peaking in summer 2023 and now declining somewhat but still elevated.

If your image of Washington was shaped by the urban decline of the 1970s, the crack trade of the 1980s, or the municipal bankruptcy of the 1990s, you might not realize that until recently the city has been generally prosperous, growing, and safe. Construction cranes dotted the city as population grew from 572,059 in 2000 to 689,545 in 2020. Neighborhoods that burned in the riots of the 1960s became places to be. Zip codes 20002 and 20003 recently topped the country for new apartment construction. D.C.'s budget went from basket case to record surpluses and rainy day funds, even enabling some income and business tax cuts.

What caused this crime spike? Several narratives are competing, some more compelling than others. One year on, there is now strong evidence of two things that didn't cause it—and two things that did.

Criminal Justice Reform Didn't Cause the Crime Spike

Mayor Muriel Bowser, a Democrat now in her 10th year on the job, oversees 40,000 government employees alongside a 13-member D.C. Council (11 Democrats, two independents). The Metropolitan Police Department (MPD), the local police force, reports to her. But the city is also home to the U.S. Capitol Police, the U.S. Marshals Service, the Secret Service, Park Police for National Park Service jurisdictions, the Metro Transit Police, various university police forces, and even the Smithsonian Office of Protection Services and U.S. Mint Police. Juvenile prosecutions are handled by the local elected attorney general, but adult prosecutions are the job of the U.S. attorney for the District of Columbia, who is appointed by the president and confirmed by the Senate with no involvement by the local population.

The mayor's narrative on the crime crisis goes like this: She's doing everything she can to be tough on crime, but a series of D.C. Council actions since 2016 have changed the public safety "ecosystem"—her favorite word here—for the worse. Among the actions: shifting the focus of juvenile facilities toward rehabilitation (2016), reducing nonviolent offender sentences (2016), changing fare evasion from a criminal to a civil matter (2018), allowing release of adults convicted as juveniles after they served 15 years (2019), prohibiting police chokeholds and removing restrictions on officer discipline (2020), a cut in proposed MPD funding (2021), an aborted effort to pull police officers out of schools (2021), reducing mandatory minimum sentences (2022–23), and easing street vendor licenses (2023). As crime took hold in 2023, the Republican-controlled U.S. House of Representatives persuaded Senate Democrats and President Joe Biden to overturn the sentencing reform and officer discipline measures. (Because the District of Columbia is a federal jurisdiction, the U.S. government has tighter control over it than it does over other cities.)

This theory has gained traction, spurring two ongoing recall efforts of sitting council members. But left unanswered, to quote the D.C. crime blogger Joe Friday, is "why laws passed in roughly 2016–2020 would have no effect until 2023." Also, other U.S. cities have passed many similar laws, even more sweeping ones, and not seen a crime spike. Sentencing reform advocates, perhaps stung that years of their Revised Criminal Code effort were reversed in one congressional vote, have argued that there is little evidence that carjackers will be more deterred by a 45-year maximum sentence than a 20-year maximum sentence. They said their reform merely aligned statutory sentences with the actual sentences being given by judges, and they pointed out that D.C. still had longer carjacking sentences than many of the states that sent the objecting Republicans to Congress. Even the 2021 MPD budget "cut" was a classic government sleight-of-hand: $559 million in 2020 spending was proposed to be cut to $545 million in 2021, but after later adjustments actual MPD spending that year was up to $575 million.

Indeed, as the public opinion pendulum swung in favor of tough-on-crime measures in 2023, Bowser's wish list of changes was very limited. Her "Safer Stronger" bill in May asked for more surveillance cameras, enhanced penalties for assaulting bus drivers, and a crackdown on guns. By October, Safer, Stronger 2.0 wanted to criminalize loitering, create a new crime category for organized retail theft, expand pretrial detention, and prohibit mask wearing. The Secure DC law, which she signed with fanfare in March 2024 after a cowed D.C. Council passed it unanimously, included Safer Stronger 2.0; it also eased police vehicular pursuit rules, expanded DNA collection from arrestees, and changed when police officers can review their body camera footage. These sound more like a scattershot grab bag of ideas than any fundamental reworking of what caused the 2023 crime wave.

Ignoring 'Root Causes' Didn't Cause the Crime Spike

Fare evasion on Washington's WMATA subway system jumped along with other crimes, increasing fivefold in the early months of 2023. WMATA has been sensitive about enforcement of nonviolent crimes since transit cops searched, handcuffed, and booked a 12-year-old girl for eating french fries on a station platform in 2000, earning them national condemnation for overkill. In 2018, the D.C. Council (along with some other cities) changed fare enforcement from a criminal matter (like robbery) to a civil matter (like a parking ticket).

As the sight of people hopping faregates became common in 2023, reaction polarized. One group pressed for enforcement. The anti-crime tweeter Potomac Fever wrote that otherwise, the "rest of us were suckers for following the rules and paying our fares everyday." WMATA—both wanting the fare money and hoping to persuade suburban jurisdictions to increase subsidies—successfully pressed the D.C. Council to tweak its law, began installing tougher faregates, and deployed Metro Transit Police at some exits. On the other side of the issue, progressive activists argued that stronger enforcement would likely cost more than the uncollected fares, that it would primarily target people of color, and that a better approach would be enhanced social programs such as making Metro free of charge.

The dynamic plays out in D.C. repeatedly. Is the answer to grocery store theft more police or more food stamps? Should teens awaiting trial for violent crimes be jailed or counseled? Should the first responders to many incidents be police officers or social workers? Perhaps the difference is overstated: Both "root cause" policies such as job training and "enforcement" policies such as more police win more than 80 percent support in polls. But by September, crowds were anxious for action and less interested in underlying long-term causes. "They did not want to hear another word about how I was going to fix crime in five years," observed Democratic Councilmember Robert White.

Part of the frustration likely stems from the fact that D.C. already spends a lot on "root cause" solutions. In every fare-evasion crackdown announcement, WMATA made sure to note that it offers reduced fares for low-income individuals. The Brookings Institution ranks D.C.'s cash assistance to needy families to be ninth-most generous among the states. D.C. Medicaid spending per enrollee is fifth-highest. Overall, the city spends $7 billion a year on human support services, for a place of just under 700,000 people. If spending on poverty solved crime, D.C. should be one of the best-performing states.

One prominent "root cause" public safety effort is violence interruption, modeled after a successful program in Oakland, California. This identified the 1 percent of people driving much of the violence and located individuals (clergy, former gang members, community leaders) best positioned to intervene and offer resources for those interested in an alternative path. D.C.'s spending on violence interruption grew sharply from $2 million in 2018 to $27 million in 2023. But again, sharply rising crime rates meant, at best, that the program was not impactful enough.

The Kids Helped Cause the Crime Spike

On July 12, 2022, TikTok user @robbierayyy uploaded a video showing how to use a USB cable to bypass the ignition and start certain Kia car models. The video quickly went viral, and the "Kia challenge" sparked a nationwide rash of thefts of Kias (and also Hyundais) not otherwise equipped with immobilizers.

In D.C., carjackings began to spike in late 2022 into early 2023, at a pace of three a day. This was followed by a spike in robberies and other crimes. Joe Friday, the anonymous crime blogger, hypothesizes that "violent criminals (adults and juveniles) realized that they could easily use stolen cars to move around undetected, escape from robberies and even use them to facilitate carjackings of other vehicles." D.C. carjackings finally eased after the summer, after new MPD Chief Pamela Smith adopted a more proactive strategy—and after manufacturers distributed immobilizers and steering wheel locks.

By then, carjacking and other crimes had become normalized for many D.C. juveniles. MPD officers say most carjackers were younger than age 20—sometimes much younger. An MPD lieutenant reported that most arrested suspects say they did it for fun with friends, often using them to commit other crimes. A viral Instagram video showed two D.C. teens arguing about whether committing carjacking and armed robbery was worse than murder, clearly not worried about the consequences.

Truancy also rose in the same time period, with 43 percent of students chronically absent (missing 10 or more days) in 2022–23, up from 27 percent in 2019–20. At the high school level, 60 percent were chronically absent; in the poorest schools in Wards 7 and 8, the rate was more than 75 percent. An October 2022 study of D.C. children found that above-average unexcused school absences is a risk factor highly associated with future criminal arrest, and in early 2024 neighborhood commissioners began pressing the mayor for better monitoring of this "early warning sign."

Government Mismanagement Helped Cause the Crime Spike

In D.C., mismanagement has plagued the U.S. attorney's office, the crime lab, and the city police department—and this may deserve the lion's share of blame for the crisis.

Let's start with the prosecutor. When congressional Republicans complain that "woke" D.C. is "soft on crime," they usually leave out that all adult prosecutions in the city are done by the U.S. attorney for the District of Columbia, Matthew Graves—a federal appointee that local residents have no role in hiring, firing, or overseeing. In most other cities, elected district attorneys or attorneys general have this job, and they must follow public demands or face consequences.

In the first decade of the 2000s, the U.S. attorney for D.C. prosecuted more than 70 percent of arrests. In 2016 the percentage began to slide downward, falling below 50 percent in 2021 (Graves took the job that year) and hitting 33 percent in 2022. After some attention was drawn to the decline, the number recovered a bit to a still-low 44 percent in 2023. Felony prosecutions fell from more than 80 percent to about 50 percent in 2022, then rose to 60 percent in 2023. The U.S. attorney declined to prosecute 58 percent of all arrests for theft in 2021 and 2022, which as Joe Friday said "undermined the certainty of punishment for theft in DC."

Precisely why the prosecution rate has been falling is less clear. Graves has variously claimed that the statistic is unimportant, blamed the crime lab or the MPD, noted that victims do not always press charges, or referenced tough case law or defendant-friendly D.C. juries and judges. But Graves usually offers no explanation at all, even in brazen cases. For example, a man arrested after exposing himself to 24 preschoolers on a public street and bloodily assaulting their two teachers had been arrested three weeks earlier for indecent exposure, two months before that for punching a restaurant employee, the year before that for trespassing, and in 2018 for attempted murder. The system keeps freeing him. Graves has yet to explain why.

But just as the drop in prosecution rate coincided with the rise in crime, the stepped-up prosecution rate after mid-2023 did coincide with the decline in crime. Increased or decreased likelihood of being charged has an impact. David Muhammad of the National Institute for Criminal Justice Reform said lack of consequences came up "over and over again" in interviews and "needs to be taken seriously."

D.C. is an outlier on its low prosecution rate: Philadelphia's is 96 percent, Chicago's is 86 percent, Manhattan's is 84 percent, Detroit's is 67 percent, and so forth. Unless Congress is willing to let the city assume control of prosecutions, D.C. citizens will have little recourse to change Graves' mind beyond public pressure and media attention.

Now consider the city crime lab. In April 2021, it lost its accreditation and stopped processing evidence for prosecutions. It has yet to fully regain it.

The loss of accreditation came after years of endemic problems, including faulty results, prosecutors interfering with test results, and firings of whistleblowers. The Bowser administration promised to promptly pursue reaccreditation, but it then got bogged down in a dispute with the D.C. Council about whether the lab should be part of the MPD (Bowser's view) or not (the council's). That matter was not resolved until June 2023—the peak of the crime surge—and the lab finally regained its biology and chemistry accreditations in December. Firearms accreditation remains in work.

During this entire period, processing of evidence for the MPD and the U.S. attorney has had to be outsourced to other labs, public and private. Many of these labs had little spare capacity, so the result has been backlogs, and probably dropped prosecutions. As of April 2023 770 DNA samples from violent crime cases sat in a backlog. Fingerprint "hits," one measure of testing, fell from 1,828 in 2020 to 601 in 2022. The number of rape kits tested within three months dropped from 98 percent to 81 percent.

The 2023 crime wave arguably ended the political dysfunction that held up the crime lab's reaccreditation. But the lack of a functioning crime lab likely contributed to the sense that you could get away with crimes. Prosecutions are hard, after all, without evidence.

Then there's the MPD. Bowser has attributed some of the crime wave to the long-term drop in MPD staffing, which fell from 4,010 sworn officers in 2013 under her predecessor to 3,337 in 2023. But again, the most considerable drop (in 2021, from 3,799 to 3,580) predated the spike in crime. To identify the more important problems at the MPD, look at what changed for the better when Smith took over.

When Smith took the job in June 2023, the crime spike was already apparent. Word quickly spread through the force that the new chief wanted to see changes. Area commanders were expected to do weekly walks in the community with residents, patrols would be proactive rather than just waiting in cars for a call, and greater efforts would be made to deter repeat offenders. Smith unveiled a Real-Time Crime Center connecting D.C.'s myriad federal police forces with hers. Arrests per officer nudged upward after halving in 2020.

These perhaps feel like obvious actions for a city police force, especially one in the middle of a crime wave. But they were not happening before June.

One lingering issue may be one of the hardest to tackle: The best officers with the most seniority can choose to stay in the "easiest" parts of the city (Wards 1 and 3), leaving the greenest or least proactive officers to get sent to where crime is heaviest (Wards 7 and 8). This leads to skills mismatch and a community sense of being neglected.

We in D.C. now wait to see what 2024 will bring. No one wants to see yet more death and mayhem. But that means asking serious questions of all our officials and insisting on thorough answers, enabling us all to learn the right lessons from the recent spike in crime.

The post What Caused the D.C. Crime Wave? appeared first on Reason.com.

For nearly a decade, the transit authority in Washington, D.C., has faced controversy over restrictive guidelines governing advertisements in the city's subways and busses. Now, it might have to scrap some of them.

The controversial rules prohibit any ad that is "issues-oriented" or "intended to influence members of the public regarding an issue on which there are varying opinions." The guidelines also single out religious ads, prohibiting "advertisements that promote or oppose any religion, religious practice or belief."

Last month, a D.C. district court ruled in favor of a Christian group seeking to challenge the rules, placing a preliminary injunction on part of the guidelines that ban ads "intended to influence members of the public regarding an issue on which there are varying opinions."

The Washington Metropolitan Area Transit Authority (WMATA) first enacted the controversial rules after an anti-Islam activist attempted to buy an advertisement depicting Muhammad in 2015.

In 2017, the American Civil Liberties Union sued WMATA over the guidelines, joined by plaintiffs ranging from vegan group People for the Ethical Treatment of Animals (PETA) to right-wing provocateur Milo Yiannopoulos. That case is still ongoing. In 2018, however, a D.C. district court ruled against a request for a preliminary injunction against WMATA's rules.

But the ACLU has joined another lawsuit challenging the guidelines on First Amendment grounds—this time, to much better success. This latest lawsuit was filed in December 2023 by WallBuilders, an organization that aims to educate the public "concerning the Godly foundation of our country," according to legal records.

When WallBuilders attempted to purchase ads to go in WMATA busses, reading "Christian? To find out about the faith of our founders, go to wallbuilders.com." WMATA rejected the ads, citing their guidelines. When WallBuilders resubmitted the ads, omitting all text except "visit wallbuilders.com," they were still rejected.

WallBuilders sued. On May 21, Judge Beryl A. Howell of the District Court of D.C. granted WallBuilder's motion for a preliminary injunction, halting enforcement on the part of the guidelines that prohibited advertisements seeking "to influence members of the public regarding an issue on which there are varying opinions."

"WMATA is permitted to retain considerable discretion in evaluating the intent and purpose of an ad…but this discretion must be coupled with objective, workable standards," wrote Howell. "Put simply, the utterly undefined use of the phrase '[a]dvertisements intended to influence . . . regarding an issue on which there are varying opinions,' coupled with the lack of any definitions or official guidance and WMATA's inconsistent application of [the guideline], makes clear that [it] is not a reasonable restriction on speech."

The ruling is a major victory for a whole range of controversial groups who want to buy ads on D.C. buses and subways. It also sends a clear message to WMATA: While it can place some restrictions on the content of ads, its rules have to be well-defined and narrowly tailored. 

The post D.C.'s Rules for Subway Ads Are Blocked in Federal Court appeared first on Reason.com.