The Volokh Conspiracy

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Civil Asset Forfeiture

Supreme Court Decides to Hear Important Asset Forfeiture Procedural Property Rights Case

The Court will determine whether the Due Process Clause prevents the government from using asset forfeiture to seize property and hold it for many months without a timely hearing.



Earlier this week, the Supreme Court decided to hear Culley v. Attorney General of Alabama, a case consolidating two claims against the Alabama authorities that raise the issue of whether the government can use asset forfeiture to seize property and hold it for many months without giving the owners the opportunity to contest the seizure in a hearing. The case raises important constitutional property rights issues that affect thousands of people across the country. Such practices impose a major burden on affected property owners, and are a flagrant violation of the Due Process Clause of the Fourteenth Amendment, which bars states from depriving "depriving "any person of life, liberty, or property, without due process of law."

There is a long history of debate over whether and to what extent the Due Process Clause protects substantive rights. But whatever you may think of "substantive" due process, what we have here is a denial of pure, old-fashioned procedural due process. If the Due Process Clause protects property rights at all, surely it bars the state from taking your property and keeping it for many months without any due process at all.

C.J. Ciaramella of Reason has a helpful article laying out the egregious facts of these cases:

Under civil asset forfeiture laws, police can take property suspected of being connected to criminal activity even if the owner hasn't been charged with a crime. Property owners then often have the burden of going to court and proving their innocence, a process that can take months and sometimes years.

Take the two cases at issue: In the first, Halima Culley's son was pulled over by police in Satsuma, Alabama, while driving Culley's car. He was arrested and charged with possession of marijuana and drug paraphernalia. The City of Satsuma also seized Culley's car. It took 20 months, during all of which Culley was bereft of her vehicle, before a state court ruled that she was entitled to the return of her car under Alabama's innocent-owner defense.

In the second case, a friend of Lena Sutton took her car to run an errand in 2019. He was pulled over by police in Leesburg, Alabama, who found methamphetamine in the car and seized it. Sutton also eventually was granted summary judgment on an innocent-owner defense, but not until more than a year after the initial seizure of her car.

In both cases, the state brought asset forfeiture claims against the property, and the owners ultimately prevailed in state court. But in the meantime, they had no opportunity to contest the government's seizure and continued detention of the property. And the resolution of the state's cases against them took many months. The property owners argue that the Due Process Clause requires the state to give them a timely opportunity to contest the seizure and detention of their vehicles, rather than having to wait for the resolution of the state's case against them.

As Ciaramella notes, such asset forfeiture practices are common in many states. They often lead to seizure and detention of property even in cases where the owner is never charged with any crime (which is what happened in these two Alabama cases). These policies are particularly burdensome for lower-income property owners who are disproportionately likely to be caught up in the War on Drugs, and also often unable to afford to live without their cars for long periods of time. Relatively affluent property owners can usually afford to buy a replacement car or get a longterm rental vehicle without suffering major hardship. But for a poor or working class person, being deprived of their car for a year or more is often a huge imposition. An amicus brief by the Pacific Legal Foundation lays out the class bias here in greater detail, and also explains why the Due Process Clause forbids these kinds of practices [PLF is also my wife's employer; but she was not involved in writing this brief].

There may be difficult line-drawing questions about exactly how swift a hearing the Due Process Clause requires in such cases. Is a week too long? A month? But it should at least be obvious that delays of a year or more are unconstitutional.

The issues raised in these cases are similar to those in Alvarez v. Smith, a 2009 Supreme Court case that was ultimately dismissed as moot after the state and the property owners reached a settlement. In Krimstock v. Kelly (2002), then-Judge Sonia Sotomayor wrote a Second Circuit decision striking down a similar vehicle asset forfeiture detention policy. I praised Sotomayor's Krimstock ruling in my testimony at her Supreme Court confirmation hearing, even as I was highly critical of some other aspects of her record on constitutional property rights.

I hope the Supreme Court will reach a result similar to the one Sotomayor and the Second Circuit reached in Krimstock:

A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

There are lots of other constitutional and policy flaws in asset forfeiture policies, such as that many of them violate the Excessive Fines Clause of the Eighth Amendment, that they pervert law enforcement priorities, and more. The Alabama case won't resolve these broader questions. But the justices can at least compel state and local governments to respect the procedural due process rights of property owners.

UPDATE: In the original version of this post, I accidentally misidentified the author of the Reason article about this case, linked above. The correct author is C.J. Ciaramella. I apologize for this mistake, which I have now corrected.