UNDERAGE POSSESSION OF ALCOHOL CLASS ACTION CASES -- UPDATE
District Court Dismisses First Underage Possession Class Action for Lack of Jurisdiction, District Court Plaintiffs to Seek Reconsideration, and Second Class Action Filed in Superior Court
On January 28, 2004, the United States District Court judge to whom the underage possession class action case was assigned, Judge Colleen Kollar-Kotelly, decided she did not have federal jurisdiction to hear the case, so dismissed the case without prejudice. One week later, on Friday, February 6, 2004, we filed a new class action in the local court, the Superior Court of the District of Columbia, a court that clearly has jurisdiction to hear this Complaint. The Superior Court is the court in which all arrested students have to appear after their arrests. We make essentially the same arguments and requests in the new case that we made in the federal case – first, that the police and prosecutors should be enjoined from making any arrests and prosecutions under the underage possession statute as the statute is only civil in nature and does not create a crime; second, that all the arrest and prosecution records of every young person arrested under the statute since 1997, should be expunged (i.e., erased); and third, that all those unlawfully arrested and detained should receive monetary damages for the police misconduct.
We also will file a motion with Judge Kollar-Kotelly this week asking her to reconsider her decision on jurisdiction and, failing that, our current intention is to appeal her decision to the United States Court of Appeals for the District of Columbia Circuit (“the D.C. Circuit Court”). We respectfully believe the judge was wrong in her decision on the authority of a federal district court to take jurisdiction over the class action.
In a nutshell, Judge Kollar-Kotelly’s decision was based on an earlier decision of the D.C. Circuit Court, called the Barwood case. We believe Judge Kollar-Kotelly interpreted the Barwood court decision too broadly. The Barwood decision dealt with the question of which entity within the District of Columbia had the authority to enact local criminal laws. In the Barwood case, the D.C. Circuit Court reversed a federal trial judge for its decision to take jurisdiction of the dispute in that case. The D.C. Circuit Court made it clear in Barwood that the federal courts should not get involved in purely local disputes over the question of which local agency had the authority to draft regulations making certain conduct a crime. Judge Kollar-Kotelly interpreted the Barwood ruling in such a way that it would not be a violation of a person’s Fourth Amendment constitutional right for someone to be arrested for underage possession of alcohol even in the absence of a law criminalizing such possession. We respectfully disagree with the judge’s ruling and will ask her to reconsider her decision. If she will not reconsideration her decision, then we will appeal the decision to the D.C. Circuit Court.
The District Police Continue to Make Arrests for Underage Possession Despite the D.C. Court of Appeals Decision in the Cass Case and Despite that Court’s Decision Not to Rehear the District’s Arguments
The troubling thing here is that both the local prosecutors and the police have known for years that the statute in question is a civil and not a criminal one. The statute, with slight amendments made in 2000 that do not alter the civil nature of the statute, has been on the books since 1997. Brett Cass, a Georgetown student who was arrested under the statute, began his court challenge to arrests under the civil statute in 1998. The D.C. Court of Appeals, the highest local appeals court, ruled on July 31, 2003, that Mr. Cass should not have been subject to criminal penalties. On October 6, 2003, the D.C. Court of Appeals, reaffirmed its ruling in Cass and, on January 15, 2004, the D.C. Court of Appeals, rejected the city’s request to rehear the case as a full court. In other words, it is the law of this city that the statute (a statute that was slightly modified in 2000, but is still only a civil statute) under which Cass was arrested is a civil, not a criminal, statute. Yet, the police are still making arrests.
Our clients are undaunted by the District Court’s initial ruling on the federal court’s jurisdiction. We have filed a new case in Superior Court to try to halt the continued abuse of the police power by the Metropolitan Police Department. And, as indicated above, we will request the District Court to reconsider her ruling. In the meantime and as indicated above, we understand that the police are just as aggressive as ever in making their arrests of underage possessors of alcohol.
Despite our Argument that Arrests for Underage Possession are Unlawful, Students Should Comply with the Law and, Failing that, Cooperate with the Police if Arrested for Underage Possession.
Everyone has a duty to comply with the law. If young people don’t agree with the current drinking age laws, they should lobby to change the law, not disobey it. In any event, until we receive a favorable ruling in one or both of our class action cases, college students and other young people should be on notice that they may be arrested in the District of Columbia for underage possession. If arrested, they should not resist arrest, should confer with counsel, and must appear as required in court. We understand that the judge in Courtroom 115 of Superior Court, where these cases are heard, has dismissed every underage possession case brought in his courtroom after the initial Cass decision. Nevertheless, many if not all of the records surrounding the arrest and prosecution of students for this civil offense will remain on the books of the police department, in the prosecutor’s office, and in the courthouse, and may even be uploaded to a national crime information database maintained by the FBI, unless the arrestee is successful in getting the records expunged -- a result our law suits hope to obtain for the entire class of students who have been arrested since 1997 under the civil statute.
As a Safeguard, Students Should Seek to have their Records Sealed Pursuant to Superior Court Criminal Rule 118.
As with any lawsuit -- and despite our firm belief in the correctness of the claims we are making -- our lawsuits may not prevail. Students who have been arrested need to take proactive measures to ensure that their records are sealed by filing individual motions in their individual criminal cases. Our lawsuits seek expungement, which will delete and not just seal all records, and also seek broader relief. Our cases may take a long time to be resolved and students accordingly need to take safeguards in the meantime to protect their right to petition for sealing of an arrest record under the Superior Court’s local rules. The usual way to seal an arrest record is to file a motion with the Court pursuant to the Criminal Rule 118 in one’s own criminal case. Students must be proactive in looking out for their own individual rights. A student has 120 days from the date of the final act in his/her court case within which to file a motion to seal. If students are already beyond the 120-day filing period, they can seek an extension based on the Cass decision – a decision which first issued in July 2003, but became final in all respects on or after January 15, 2004.
Students may either retain our law firm or some other law firm to assist them in sealing their arrest records, or they may seek to obtain the relief on their own. If they decide to proceed on their own, some very helpful instructions for filing such motions can be found at www.justiceandsolidarity.org. Unless we are specifically retained to pursue Rule 118 relief, this firm will not be filing any such motions in any of the underage possession cases as we will continue to seek such relief through the vehicle of a broader, class action lawsuit.
All Persons Who have been Arrested for Underage Possession Since April 9, 1997, in the District of Columbia, Should Contact Our Law Firm About Participating in the Law Suits as Members of the Plaintiffs’ Class
All students who have been arrested
for underage possession of alcohol since 1997, even if
they also were charged at the same time with other, clearly
criminal, conduct – such as possessing and/or using
a false identification with the intent to obtain alcohol,
should go on our law firm’s website, www.tighepatton.com.
They should click on “News” and read our initial
press release concerning the class action lawsuit filed
in the U.S. District Court. Upon reading the press release,
if a student decides he/she wants to participate in some
way in the class action lawsuits, he/she should click
on “confidential questionnaire” and complete
an intake form and
email it to our law firm. Students should know that both
the District Court and the Superior Court have allowed
us to proceed in the lawsuits using pseudonyms to protect
the identity of the student plaintiffs. Any arrestee who
has any questions about these cases may contact attorney
Carol Elder Bruce at cbruce@tighepatton.com,
or attorney Dennis Somech at dsomech@tighepatton.com.