Forfeitures: Govt. Win in SCOTUS with a Warning

The State of Alabama prevailed in the Supreme Court today in a challenge to its procedures for civil forfeitures, but two concurring justices fired a warning shot about harsh procedures. The case is Cully v. Marshall, No. 22-585.

In the two cases at issue, people loaned their cars to people who used them to carry drugs. Alabama law provided for forfeiture of cars used to commit drug crimes but also provided an “innocent owner” defense. In both cases, the state initiated a forfeiture proceeding less than two weeks after the seizure. The owners took a long time to assert their innocent-owner defenses but got their cars back soon after they did.

While the forfeiture cases were pending, the two owners filed a class action civil rights case in federal court, claiming that Alabama’s forfeiture procedure violated due process of law by not requiring a preliminary hearing.

The question presented in the owners’ certiorari petition is:

In determining whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits.

The question as stated in the State’s brief in opposition is:

Did the procedures available to Petitioners regarding the seizure and forfeiture of their cars, which included a right to obtain the cars pending resolution of forfeiture proceedings by posting bond, satisfy the Due Process Clause of the Fourteenth Amendment?

Today’s decision holds:

When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitution requires a timely forfeiture hearing. The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing. This Court’s precedents establish that the answer is no: The Constitution requires a timely forfeiture hearing; the Constitution does not also require a separate preliminary hearing.

In other words, the Court did not exactly answer the question posed by either party, though its statement of the question is closer to the State’s than the petitioners’.

Justice Sotomayor claims in dissent that the Court granted certiorari to answer the question stated by the petitioners. Her dissent is joined by Justices Kagan and Jackson. But that is not quite right. The Court is not bound by either party’s statement. Sometimes the Court decides on a question raised by an amicus, see, e.g., Teague v. Lane, 489 U.S. 288, 300 (1989), or even an issue raised by the Court itself.

Does the State’s win in this case mean that current forfeiture laws are in the clear? No. Justice Gorsuch, joined by Justice Thomas, fires a warning shot. He notes the harshness of many forfeiture laws, especially to people of modest means, and the fact that forfeiture laws enacted during the war on drugs operate differently from the historical practices in the Founding Era, which mostly involved ships.

In asking the questions I do today, I do not profess a comprehensive list, let alone any firm answers. Nor does the way the parties have chosen to litigate this case give cause to supply them. But in future cases, with the benefit of full briefing, I hope we might begin the task of assessing how well the profound changes in civil forfeiture practices we have witnessed in recent decades comport with the Constitution’s enduring guarantee that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.”

A majority of the Justices are unhappy with the current state of forfeiture procedures in many jurisdictions. No new constitutional mandate was laid down, but that is not cause for complacency. A fresh look at the procedures is in order.

I have noted several times on this blog that auto theft is a “regressive” crime in that it falls more harshly on people of modest means who often do not have comprehensive insurance for the clunkers that they need to get to work and for other essential transportation needs. The same is true of forfeiture of cars owned by people who can’t afford lawyers to get them back even when they have a valid defense.

People who are arrested on criminal charges are constitutionally entitled to a hearing before a magistrate within 48 hours to determine if there is probable cause for detention. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Even if this is not constitutionally required for seizure of cars, it is still the right thing to do.