The Volokh Conspiracy
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Sixth Circuit Rules Owners of Cars Taken by Asset Forfeiture Have Constitutional Right to a Hearing Within Two Weeks of Seizure
The decision provides important protection for property rights, and features a powerful concurring opinion by prominent conservative Judge Amal Thapar.
In many states, asset forfeiture laws allow law enforcement agencies to seize valuable property based on mere suspicion that it was used in a crime, and then keep it even if the owner was never convicted of any crime. On top of that, some force owners to wait many months before they even have a chance to challenge the forfeiture in a hearing. Yesterday, in Ingram v. Wayne County, the US Court of Appeals for the Sixth Circuit issued a decision holding that the Due Process Clause of the Fourteenth Amendment requires the government to give owners a hearing within two weeks, in at least some cases where their cars seized through asset forfeiture.
The ruling also features a compelling concurring opinion by Judge Amul Thapar, a prominent conservative jurist often considered a potential future Supreme Court nominee. Here's the majority's summary of their ruling (authored by Judge John K. Bush):
Plaintiffs allege the government of Wayne County, Michigan has a policy or practice of seizing and holding vehicles while taking months to decide whether to initiate forfeiture proceedings. Plaintiffs claim they were not provided an opportunity to be heard about the detention of their vehicles and that this failure violates the Due Process Clause of the Fourteenth Amendment. The district court held that plaintiffs are entitled to the requested hearing. We agree and hold that Wayne County violated that Constitution when it seized plaintiffs' personal vehicles—which were vital to their transportation and livelihoods— with no timely process to contest the seizure. We further hold that Wayne County was required to provide an interim hearing within two weeks to test the probable validity of the deprivation.
Following the lead of several other circuit courts, Judge Bush concluded that the court should apply the three-part balancing test outlined in the Supreme Court's 1976 ruling in Mathews v. Eldredge (originally developed in a context far removed from asset forfeiture): "(1) 'the degree of potential deprivation that may be created by a particular decision,' (2) the 'fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards,' and (3) the public interest." In this case, the Sixth Circuit concluded all three factors support the property owners, and thus the latter had a right to a hearing within two weeks of seizure. But it is not entirely clear what might happen in other cases involving the seizure of cars, much less forfeitures of other kinds of property.
In his concurring opinion, Judge Thapar argues for a bright-line rule instead of a balancing test, and suggests a 48-hour standard is preferable to a two-week one:
The Constitution requires the government to provide prompt process before depriving someone of life, liberty, or property. Normally, that means a hearing. But Wayne County, Michigan hasn't followed that simple requirement. The County has been seizing cars, holding them for months, and denying hearings to anyone bold enough to ask for them. There's only one surefire way to get your car back: pay up. How much? $900 if it's the first time the County seized your car. $1,800 if it's the second time. Or $2,700 if it's the third. Even worse, if you challenge the seizure too early or too late, the County can just keep your car.
Wayne County's scheme violates the Constitution's due-process requirement. Constitutional text, history, and precedent show why. History links protections for liberty and for property. And when the government arrests someone, depriving them of liberty, Supreme Court precedent requires a preliminary hearing within 48 hours. I would apply the same rule to Wayne County's seizure of the plaintiffs' property.
Judge Thapar's opinion is real tour de force. It effectively explains the relevant history and constitutional text, and why property rights, especially when it comes to important property like a car, are entitled to strong procedural protection, similar - in many cases - to those provided for liberty. He also provides a strong argument for why a bright-line rule is preferable to using the Mathews balancing test:
First, Mathews suffers from problems common to many balancing tests. It requires us to compare values that aren't comparable: (1) the individual's interest in more process, (2) the government's interest in providing the same or less process, and (3) the risk of error in current procedures and the probable value of additional protections. Mathews, 424 U.S. at 335. This test puts judges in an impossible position. "It is more like judging whether a particular line is longer than a particular rock is heavy." Bendix Autolite Corp. v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia, J., concurring).
Also like other balancing tests, Mathews leads to unpredictable results. With three
subjective factors at play, will two judges ever balance them in the same way? I'm skeptical. And unpredictability hurts everyone. It's a problem for government officials who don't know what they're required to do. But Mathews also harms ordinary people. It prevents them from helping themselves. They can't call out government officials for violating their rights because Mathews doesn't say what those rights are. Instead, it says that sometime later a judge will let them know. A potential court victory years in the future is little solace for the Melisa Ingrams and Stephanie Wilsons of the world who need their cars now for work and school.Apart from these problems, which are common to all balancing tests, Mathews also
suffers from unique shortcomings. For one, Mathews doesn't account for all the important interests at stake. "Nowhere does the test allow the Court to weigh the plain old value of process itself, i.e., of simply knowing why the government has decided to take action against you." Hicks v. Colvin, 214 F. Supp. 3d 627, 641 n.7 (E.D. Ky. 2016). For another, under Mathews, everything is negotiable. "[A]ll process is, potentially, up for sale." Id. at 643 n.8. But that's not what the Constitution says. It says you're entitled to process when the government deprives you of "life, liberty, or property." U.S. Const. amend. XIV, § 1. That should be where we start and end.
The awful facts in these cases highlight the wrongs of the current asset forfeiture regime in Michigan and other similar jurisdictions. Here's Judge Thapar again:
Wayne County claims that it seizes cars to fight crime (and holds onto them for months
for the same reason). But the County is happy to return those very cars as soon as it gets paid. That practice proves the County's scheme is simply a money-making venture—one most often used to extort money from those who can least afford it.Consider the plaintiffs' experiences. Melisa Ingram works full time and goes to school at night. When her boyfriend asked to borrow her car to find a job, she loaned it to him. Rather than using it to find a job, he used the car to pick up a prostitute. The police pulled him over and seized the car. When Ingram tried to get it back, Wayne County officials told her she'd have to wait four months for a hearing. So rather than spend the long Michigan winter without a car, she paid the ransom Wayne County demanded: $1,355 (the $900 "redemption fee" plus towing and storage).
Several months later, Ingram loaned her car to her boyfriend again. This time, for him to attend a barbecue. Police pulled him over again and took the car, claiming the house he went to was linked to prostitution or drugs. Just like the last time, Ingram demanded her car back from the County. Yet again, County officials told her the best way to get her car back was to pay the redemption fee—increased this time to $1,800. But the first redemption fee had bankrupted her; she couldn't afford to pay another one. Ingram never got her car back.
Stephanie Wilson is a single mom, pursuing her nursing degree at a community college. Her daughter's father is a homeless drug addict. Out of pity, Wilson twice agreed to give him a ride, and twice that cost her a car. Both times, the police took her car only moments after she picked up her daughter's father. After the first seizure, Wilson went to the County office building to get her car back. She was told to come back later. When she did, she was told it was too late—she lost the car forever. Then, she bought a second car from a tow yard using her tax refund. The County took that one too. She insisted on a hearing, but the County delayed and pressured her to pay the $1,800 redemption fee instead. Eventually, a state judge forced the County to return Wilson's car.
Robert Reeves, a construction worker and father of five, had his car taken by the County after leaving a job site. And it wasn't even for anything he'd done or for anything connected to his car. His coworker had allegedly stolen a piece of equipment from Home Depot. Robert didn't know anything about the theft and had seen rental paperwork for the equipment, but the police arrested him and seized his car anyway. The County held onto his car for more than six months even though they let him out of jail after just a few hours.
Does this sound like a legitimate way of cleaning up Wayne County? Or does it sound
like a money-making scheme that preys on those least able to fight it? To ask the question is to answer it.
The Supreme Court has not yet ruled on the extent of procedural due process protections required in asset forfeiture cases. When and if they do, I hope they follow Judge Thapar's approach.
NOTE: The property owners in this case represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this case.
