Experts on both sides of the civil forfeiture debate—Robert Johnson from the Institute for Justice and Stefan Cassella from Asset Forfeiture Law, LLC—recently engaged in a spirited preview of Culley v. Marshall, consolidated with Sutton v. Town of Leesburg, Alabama, a pivotal case at the Supreme Court this term. Oral arguments occurred last week. 

Culley will decide whether due process requires a post-seizure probable cause hearing when property is seized from innocent owners through civil forfeiture, and if so, whether the promptness of the hearing is to be analyzed under the due process test established in Matthews v. Eldridge or the speedy trial test from Barker v. Wingo. 

The plaintiffs in Culley and Sutton are two Alabama women who loaned their cars out to friends and relatives. Both women’s cars were forfeited and held by the government for over a year, even though they both asserted innocent-owner defenses. They both filed lawsuits alleging violations of their Fourth and Eighth Amendment rights; they claim a prompt post-seizure hearing could have quickly established their innocence and ensured the quick return of their vehicles. 

Alabama prevailed in both actions under the Barker test, and the Eleventh Circuit affirmed. The State of Alabama recently changed its law to allow innocent owners to request a hearing at any time, but the Court granted certiorari nonetheless as this is a live issue nationwide. 

Under Matthews—which spelled out the analysis typically used to judge procedural adequacy in the civil context—courts balance (1) the private interest affected; (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value of additional safeguards; and (3) the government’s interest. Under Barker, typically used to identify violations of criminal defendants’ right to a speedy trial, courts balance (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant.  

Whichever test the Court chooses, it will not lack history and tradition to guide its Due Process analysis—the Founders were quite familiar with forfeiture. The practice began as a tool for the English Crown to combat piracy, seize property from its colonial subjects, and enforce the Navigation Acts during the colonial period. Notwithstanding that the Navigation Acts helped to spur the American Revolution, the Founders adopted civil forfeiture to collect customs duties — a vital source of revenue for the fledgling country. Importantly, they co-opted civil forfeiture from the British against the backdrop of the Navigation Acts, knowing that it was ripe for abuse. And the use of forfeiture by the federal government largely reflected that concern—providing two key avenues for recourse against the government.

If property owners were waiting on the government to bring an action in order to reclaim property, owners could obtain a judicial order to compel the government to bring an official suit. If the government refused, the Court could compel adjudication or abandonment of the seizure. Alternatively, under the Remission Act of 1790, property owners could petition for their property to be returned, and it often was. The Act required judges to “inquire in a summary manner”—in other words, with speedy process. Both avenues for recourse were in effect at the time the Fifth Amendment was ratified in 1791.

The Founders provided avenues for recourse when the government unduly delayed, but at what point does a delay rise to the level of a due process violation? If the Court is to require a retention hearing, how prompt is prompt enough? The Sixth Circuit suggested it should happen within two weeks in Ingram, the Second Circuit suggested ten days in Krimstock, and Judge Thapar, dissenting in Ingram, suggested 48 hours! 

In the webinar, Johnson and Cassella agreed on very few things, in true Federalist Society spirit, but they did agree that vehicle forfeiture is a common-law enforcement tactic used across the country. Johnson argued the ubiquity of vehicle forfeiture is precisely why we need more robust due-process protections for innocent owners. Cassella, for his part, argued that universal post-seizure hearings would impose an unmanageable administrative burden on law enforcement and—because most vehicle forfeitures do not involve innocent owners—they would not have the widespread benefits that Johnson suggested they might.

If most civil forfeiture does not involve innocent owners, then who does it involve? Casella contended that federal forfeiture targets the Russian oligarchs, Bernie Madoffs, and El Chapos of the world: the actions are against foreign nationals, often with untraceable assets, and with complex jurisdictional hurdles. Johnson disagreed, arguing the data shows the average forfeiture to be a few thousand dollars, clearly coming from the pockets of everyday Americans. Does due process care whether the property owner is a mover and shaker or your Average Joe? 

Regardless of what a “typical” civil forfeiture case looks like, should the Court impose additional administrative burdens to protect the edge case if that edge case carries with it a high risk for due process violations? The Court has recognized several times that the forfeiture system is prone to abuse, and law enforcement’s incentive to seize property to pad budgets with the proceeds is well documented. But does the Court have a role in remedying these problems? Bills to reform the forfeiture system land on Congress’s desk frequently, including this year’s FAIR Act

Casella suggested that, irrespective of timing, requiring a prompt hearing for all property owners risks compromising the success of future prosecution because post-seizure hearings are more than just cursory retention hearings—they can resemble mini-trials that give the defense early access to discovery. Does due process concern itself with whether a prosecution is imminent? Does it matter whether someone is innocent or guilty? 

On the other hand, Johnson highlighted that if law enforcement intends to prosecute the owner eventually, they can simply rely on the criminal forfeiture system—where the forfeiture of property occurs after a criminal conviction—instead of using civil forfeiture. 

This debate foreshadowed a theme present during oral argument: The debate over which test should be applied, Matthews or Barker, is a fig leaf for a debate over the legitimacy of widespread civil forfeiture itself. Presumably, the imposition of prompt post-seizure hearings would severely limit the number of vehicles law enforcement can forfeit—or at the very least, make officers think twice before seizing. Rob Johnson and Stefan Casella were ready for the Court to weigh in on the future of civil forfeiture. Is the Court?

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].