Police Seized Innocent People's Property and Kept It for Years. What Will the Supreme Court Do?
Civil forfeiture is a highly unaccountable practice. The justices have the opportunity to make it a bit less so.
Gerardo Serrano and Stephanie Wilson may have little in common. But there is at least one major tie that binds them: The government seized their vehicles, never charged either of them with a crime, and, most pertinently, made them wait years before resolving their cases.
It is not uncommon for victims of civil forfeiture—the practice that allows law enforcement to take people's assets without having to prove the owner was guilty of a crime—to endure protracted delays before they have the opportunity to even step foot in a courtroom and defend themselves. The U.S. Supreme Court will soon hear Culley v. Attorney General of Alabama and decide if those who find themselves in that situation are entitled to a probable cause hearing after the seizure and, if so, how speedily it must happen.
That the highest court in the country has to rule on whether people get such a hearing is an apt indictment of how unaccountable civil forfeiture has become.
Serrano's case is instructive. In September 2015, while traveling to Mexico, he stopped at the border in Eagle Pass, Texas, to take pictures. That upset some Customs and Border Protection (CBP) agents, who demanded he surrender the password to his cellphone. Serrano refused. The agents then searched his new Ford F-250 truck, found five stray bullets, and accused him of smuggling "munitions of war." Serrano had a concealed carry permit, and there was no firearm in his vehicle. The officers confiscated his car anyway.
But the fragile nature of the allegation didn't matter, because it would never be subject to scrutiny. The government didn't press charges. They did, however, keep his vehicle for two years, without holding a hearing where he could contest the seizure—or without ever filing a formal forfeiture complaint.
The dearth of due process protections was devastating. Serrano paid the government $3,800—10 percent of the car's value—as a requirement to fight the move in federal court; he was met with more radio silence, even after the feds cashed the check. A Kentucky resident, he subsequently spent thousands of dollars on rental cars while his vehicle sat halfway across the country, locked in a Texas parking lot.
Serrano never got that hearing, which the U.S. Court of Appeals for the 5th Circuit ruled was fine. The federal government mysteriously changed its tune after two years went by—only when Serrano filed a lawsuit, represented by the Institute for Justice (I.J.), the libertarian-leaning public interest law firm. But as I.J., Serrano, and Wilson write in a recent amicus brief to the Supreme Court, the majority of innocent property owners do not have the resources to file a major class-action suit in order to coerce the government into returning their assets.
It is almost always the government, in fact, that has the leverage to do the coercing, which they use to deter property owners from reclaiming what is theirs. One important tool at its disposal: delaying any hearings.
Wilson knows first-hand. In 2019, over the span of less than six months, police in Detroit seized two of her cars after alleging that her ex-boyfriend and the father of her child was a petty drug offender. Wilson, a nursing student, was not suspected of wrongdoing, no arrests were made, and cops did not find drugs or guns in either of her vehicles.
They proceeded forthwith. In the first instance, Wilson attempted three times, unsuccessfully, to fight the seizure: She was initially told she was too early to file a claim of interest on the car; on the second try, the government couldn't locate her paperwork; by the third try, she had missed a deadline, precluding her from further fighting for her car.
After the second seizure, almost two years went by before Wilson was permitted to go before a judge, who sided with her. The government would not get to keep another one of her vehicles.
It was not for lack of trying.
Detroit is a fitting case study of how byzantine the process of contesting a forfeiture has become. Before any victim is allowed to state their case, and only after they have successfully filed that claim of interest on their property, they must attend four in-person "pre-trial" conferences where prosecutors put a "deal" on the table: The owner may have their property back if they pay the government a fixed fee. In Wilson's case, she would have to buy her own car back for $1,800, not including storage and towing fees, an offer she declined at every conference. She couldn't afford it. Those meetings happen during the workday; if victims are unable to skirt professional commitments that conflict with any of the conferences, the government lays claim to their property, and the victim can no longer contest the seizure.
Wilson is named in a suit challenging those practices, which was argued before the U.S. Court of Appeals for the 6th Circuit in May. The court's decision is yet to be released. But in her case, and in similar cases across the country, the government has a considerable stake in upholding the status quo.
You don't have to look very far to figure out what it is. Law enforcement agencies typically pocket the majority of the proceeds from civil forfeiture seizures. As of 2020, Wilson's home state, Michigan, along with 24 others—Alabama, Arizona, Arkansas, Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Massachusetts, Montana, Nevada, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming—direct 95 percent to 100 percent of the funds extracted from seizures toward law enforcement, according to the I.J. report Policing for Profit. The federal government, which targeted Serrano, is also in that category, funneling money to either the Department of Justice or the Department of the Treasury.
An additional seven states—Illinois, Indiana, Minnesota, New Hampshire, Rhode Island, South Carolina, and Washington—send 80 percent to 95 percent of the proceeds to law enforcement. Several more fall below that threshold but still benefit handsomely from forfeitures, which in part explains why governments are loath to change course.
Law enforcement agencies bolster their budgets with forfeiture funds in interesting ways. A 2017 report from the Philadelphia Weekly found that police used the money to purchase, among other things, submachine guns, uniform embroidery, web design services, and a lawn mower, along with tens of thousands of dollars in cash withdrawals. (Forfeiture money also went toward satisfying someone's parking ticket.) In 2021, law enforcement in Georgia were revealed to have spent the money illegally on furniture, Fitbits, gym paraphernalia, and vehicles. In police seminars a few years back, session leaders offered suggestions for what sort of property to target based on cops' wishlists, which included flat-screen televisions—those "are very popular with the police departments," one government employee said on video—along with cash and cars (the nicer the better).
Indeed, governments across the U.S. collectively take billions of dollars each year in forfeitures. Between 2002 and 2018, according to the I.J. report, people forfeited at least $63 billion. That stratospheric figure woefully undercounts the actual total, as only 20 states and the feds provided data for that time frame.
So it's not surprising, then, that the government opposes even modest measures of accountability and due process—something as simple as a hearing—when they come across people like Serrano and Wilson. Deprived of the ability to formally and publicly air the cases against them, which are often less than flimsy, the government can pressure victims into giving up their assets entirely or accepting a "deal" like the $1,800 offer Wilson received.
Such settlements are common. Consider the case of Carl Nelson and Amy Sterner Nelson, from whom the FBI seized almost $1 million in May 2020 after alleging Carl, who formerly worked as a real estate transaction manager for Amazon, had participated in an illegal kickback scheme with developers. (He was never charged with a crime.) Following the seizure, the family sold their car and their West Seattle house, liquidated their retirement, and temporarily moved with their four daughters into Amy's sister's basement.
In February 2022, the FBI and the Nelsons agreed to settle: Out of the $892,000 the government took, it would give back $525,000. Carl and Amy would forfeit $109,000, with the rest of the sum eaten by court fees. Getting $525,000 back is certainly better than nothing, but losing about $367,000 can hardly be called a bargain.
Serrano, Wilson, and the Nelsons all saw around two years go by before their forfeiture cases were resolved. But even that is not exhaustive. In 2013, police in Indiana seized Tyson Timbs' Land Rover after arresting him for selling drugs to undercover cops. His car—which he had purchased a few months prior for about $42,000—was not connected with drug money. He bought it with his father's life insurance payout.
Perhaps more importantly, Timbs, who has a history of drug addiction and relapsed after his dad died, turned his life around post-arrest. But law enforcement would still spend the next eight years fighting for the right to keep his car—a reminder that civil forfeiture has little to do with crippling crime and more to do with making the government richer.
Timbs' case provides a particularly vivid illustration of that motive. In the struggle to keep his Land Rover, the state of Indiana argued multiple times that it should be able to take ownership of someone's car for going five mph over the speed limit. That is not parody, although when the solicitor general made that argument in 2018 in front of the Supreme Court, it was reportedly met with laughter from some of the justices.
The state also submitted that law enforcement should be able to seize everything you own if you're suspected of committing a drug offense; that there should be no proportionality. The Indiana Supreme Court rejected that in 2021.
Many people, however, do not have the time and financial resources to fight their cases for months or years on end as they hope for, say, a hearing—which is evident in the billions of dollars the government successfully pockets each year via civil forfeiture. And if a victim is able to wade through the bureaucracy and finally get his or her day in court, it is not guaranteed they will be able to find representation.
In April 2015, cops in Indiana seized about $10,000 cash from Terry Abbott after he sold drugs to a confidential informant. A little more than three years passed, and in July 2018, the government moved for summary judgment in the case. Abbott intended to fight the seizure, but he had a problem: The government had taken his money, which he needed to pay an attorney.
While defendants are constitutionally entitled to a lawyer in criminal proceedings, civil forfeiture is a civil proceeding, as its name suggests, and thus that constitutional protection no longer applies—despite that the practice is used when police suspect someone of a crime, and that its stated purpose is hamstringing criminal activity.
So Abbott had to represent himself. It's a quandary many civil forfeiture defendants confront. "If you can't afford to defend yourself, let alone feed yourself, it becomes complicated," Amy Nelson told me last year, which captures just how coercive the forfeiture process is and how few options people have.
But the first step is getting before a judge at all. When the Supreme Court hears Culley next term, they will consider the facts of two cases, both centered around innocent people whose cars were confiscated in Alabama. In one, police seized Halima Culley's vehicle after they arrested her son—who had borrowed the car—for marijuana possession and drug paraphernalia. In the other, cops took Lena Sutton's vehicle after she let a friend, who was found with methamphetamine, use it to run an errand. Sutton would go on to wait over a year before her car was returned; Culley was barred from reclaiming her property for 20 months.
No matter the Court's ruling, the government will still have the upper hand in civil forfeiture proceedings. But the justices have an opportunity to blow over one of the many cards stacked against the people and to send the government a reminder: that due process is a right, not a privilege.
