But Five Justices Express Deep Concern as to Civil Forfeiture Regimes

On May 9, in Culley et al. v. Marshall, the Supreme Court ruled that the U.S. Constitution does not require a preliminary hearing in civil forfeiture cases involving personal property for claimants to raise the “innocent owner” defense. Rather, the Court ruled that a “timely” forfeiture hearing affords claimants due process and that no separate preliminary hearing is constitutionally required. Although Culley arose under Alabama law, it has direct consequences for the forfeiture laws of many states, as well as federal civil forfeiture proceedings, in which claimants can raise the innocent owner defense.

It is important to remember that Culley involves personal property: as the Court noted, existing Supreme Court law allows States to immediately seize personal property (i.e., cars, currency, art, jewelry, etc.) subject to civil forfeiture if the property otherwise could be removed, destroyed, or concealed before a forfeiture hearing. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 679–680 (1974). In contrast, existing Supreme Court law provides that States ordinarily may not seize real property (i.e., land and structures) before providing notice and a hearing. United States v. James Daniel Good Real Property, 510 U. S. 43, 62 (1993). Moreover, States and Congress of course still can craft statutes which afford protections beyond the bare minimum required by the Constitution.

Finally, and more importantly, the dissenting and concurring opinions make clear that the legal and social debates over civil forfeiture practices, and their potential abuse, are far from over.

Procedural Posture

The two individual petitioners loaned their cars to third-persons, who were stopped and arrested by local police while driving the cars. The police seized the cars incident to the arrests. Searches revealed drugs – and in one case, a firearm – in the vehicles. Alabama law authorized the civil forfeiture of a car used to commit or facilitate a drug crime and allowed police to seize a car “incident to an arrest” if the State “promptly” initiated a forfeiture case. “At the forfeiture hearing, the owner could prevail and recover the car under Alabama’s ‘affirmative defense’ for ‘innocent owners of property subject to forfeiture[,]’” which “required the owner to show that the owner lacked knowledge of the car’s connection to the drug crime.” Further, the car’s owner could recover the vehicle before the forfeiture hearing by posting bond at double the car’s value.

The Opinion

Writing for the Court, Justice Kavanaugh – joined by Justices Roberts, Thomas, Alito, Gorsuch, and Barrett, characterized the petitioners’ argument as follows (citations excluded):

Culley and Sutton argue that a preliminary hearing is constitutionally necessary to determine whether States may retain seized personal property pending the ultimate forfeiture hearing. As petitioners envision it, the preliminary hearing would focus on the “probable validity” of the forfeiture. The preliminary hearing would be adversarial, the parties could introduce evidence and cross-examine witnesses, and property owners could raise affirmative defenses, including innocent ownership. In essence, the preliminary hearing would be an earlier version of the forfeiture hearing itself.

The Court determined that the outcome was controlled by its prior decisions in United States v. $8,850, 461 U. S. 555 (1983), and United States v. Von Neumann, 474 U. S. 242 (1986): “After a State seizes and seeks civil forfeiture of personal property, due process requires a timely forfeiture hearing but does not require a separate preliminary hearing.” “Timeliness” in civil forfeiture cases involves a flexible test, analogous to assessing a criminal defendant’s right to a speedy trial. The test considers four factors: the length of the delay, the reason for the delay, whether the property owner asserted his or her rights, and whether the delay was prejudicial. 

The Court rejected the petitioners’ argument that Fourth Amendment requirements in criminal cases (i.e., a person arrested without a warrant must appear before a neutral magistrate within 48 hours) provided a better analogy. Although the Court found that its conclusion was compelled by precedent, it also found that “both Congress and the States have long authorized law enforcement to seize personal property and hold it until a forfeiture hearing. The absence of separate preliminary hearings in civil forfeiture proceedings—from the Founding until the late 20th century—is weighty evidence that due process does not require such hearings.”

The Dissent and the Concurrence: Signs of Continued Litigation and Debate

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. The dissent’s primary point was that the Court should have decided only which due process test governs whether a retention hearing is required – a hearing which would allow petitioners to argue why they should retain their property pending a final forfeiture determination, and which would require the government to demonstrate probable cause to connect the property and its owner to a crime – and then left it to the lower courts to apply that chosen test to different civil forfeiture schemes. Instead, according to the dissent, the Court’s opinion “sweeps far more broadly than the narrow question presented and hamstrings lower courts from addressing myriad abuses of the civil forfeiture system.”  

Those concerns – often raised by watchdogs from both ends of the political spectrum – include the fact that law enforcement is motivated to abuse civil forfeiture because in most states and the federal system, the proceeds of forfeited property goes directly to the agency’s own budget.  Arrests can occur simply because of a desire to forfeit property: “Unlike criminal forfeiture, civil forfeiture proceedings are untethered from any criminal prosecution. In fact, as many as 80% of civil forfeitures are not accompanied by any ultimate criminal conviction.” Worse, “officers have a financial incentive to target marginalized groups, such as low-income communities of color, who are less likely to have the resources to challenge the forfeiture in court.” The dissent set forth examples from Detroit and Massachusetts in which low-income persons faced near impossible cost- and time-demands imposed by the labyrinthine civil forfeiture system. “In short, law enforcement can seize cars, hold them indefinitely, and then rely on an owner’s lack of resources to forfeit those cars to fund agency budgets, all without any initial check by a judge as to whether there is a basis to hold the car in the first place.”

The dissent also argued that the cases relied upon by the Court, United States v. $8,850 and United States v. Von Neumann, were distinguishable and did not compel the Court’s conclusion because they involved cases in which U.S. Customs took too long to resolve forfeiture proceedings against property seized at the border due to the claimants’ own alleged misconduct.

Finally, the dissent stressed that numerous other forms of constitutional attack remained open to civil forfeiture claimants.

Justice Gorsuch, joined by Justice Thomas, wrote a concurrence. Although the concurrence found that “no legal authority presented to us indicates a prompt hearing must necessarily take the form Ms. Culley and Ms. Sutton suppose[,]” the concurrence nonetheless shared many of the dissent’s concerns regarding civil forfeiture. These concerns included the ability of the government to seize property and keep it under a forgiving burden of proof, which has turned civil forfeiture into a “booming business” – a business exacerbated by intentional delay and a tactical emphasis on “seizing low-value items and relatively small amounts of cash, hopeful their actions won’t be contested because the cost of litigation to retrieve the property may cost more than the value of the property itself.” Moreover, historical traditions regarding civil forfeiture, which were much more measured, do not resemble contemporary civil forfeiture practices.

The concurrence ended as follows: “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 personal shall . . . be deprived of life, liberty, or property, without due process of law.’”

[View source.]