Last week, the U.S. Supreme Court handed down a decision that was a blow to private property rights. The ruling reinforces the power of cops to seize property — not just the property of criminal suspects but of people not suspected of committing a crime.

The state government of Alabama seized the cars of two women in connection with crimes that the women weren’t involved in or charged with. The cars were held for more than a year due to the slow court process of getting them back. But when the two sued Alabama, saying that its civil forfeiture process deprived them of their property in a way that violated the Constitution, SCOTUS sided against the women.

Civil Forfeiture 101

The case involved civil forfeiture laws. These are laws that allow governments (both state and federal) to seize property that is allegedly connected or used to carry out a crime. This can include vehicles and even homes. The laws also allow the government to keep this property permanently in certain circumstances.

But since governments should, in theory, make sure that law enforcement isn’t just seizing people’s private property willy-nilly, many state laws require that law enforcement officers show promptly that the property is actually likely involved in some criminal activity. Such a showing takes place in what’s often called a “pretrial retention hearing.” If they fail to show the property in question was involved in a criminal matter within the required time, they are supposed to return the assets to the court, which can ultimately determine who the rightful owner is and get it back to them.

In states that give property owners the right to a preliminary hearing, the property can be reclaimed much more quickly, as those hearings are generally expedited. But without that right, there are obviously dire consequences for people who had nothing to do with the crime — as two Alabama women found out.

Two Alabama Women Lose Their Cars

Lena Sutton of Leesburg had let her friend borrow her car. He was driving it when police pulled him over and discovered a large amount of meth in the vehicle. After arresting him, the officers seized the car. Similarly, Halima Culley of Satsuma loaned her car to her adult son. Police stopped him while he was driving it and found marijuana and a loaded handgun inside. They arrested him and seized his mom’s car.

At the time, Alabama was one of those states that did not require retention preliminary hearings. Instead, the State was only required to “promptly” (within 30 days) initiate a forfeiture case, meaning that a forfeiture hearing would be scheduled for later in the future. At that hearing, the owner could get their property back if they showed that they didn’t know that it was going to be used in connection with a crime. In this case, Culley might have to prove that she didn’t know her son had a cannabis habit, which can be difficult.

But court schedules move slowly. Hearings aren’t scheduled until Alabama initiates them and the property owner responds, which could take well over a month. Are the innocent car owners just meant to sit and wait without their primary means of transportation while this happens? While the forfeiture hearing is pending, they could theoretically get the property back by posting bond at twice the car’s value. But that, of course, is more money than most people have handy.  

In the cases of Sutton and Culley, it could be argued that they took so long (14 and 20 months) to get their cars back because of their own foot-dragging. The State initiated their forfeiture cases on time (10 and 13 days), but the two women either failed to reply, replied very late, or failed to show up to their forfeiture hearings. Even if they had good reasons, it’s not an example to follow when you really need to get your vehicles back from the government.

The Women Sue Alabama

The two instances became the root of a federal lawsuit filed in which the women argued that the Alabama government’s failure to provide a more prompt hearing to let them try to reclaim their property sooner violated the U.S. Constitution. Specifically, they argued that not giving them the right to a preliminary hearing ran afoul of the 14th Amendment’s promise that the government may not “deprive any person of life, liberty or property without due process of law.”

The federal district court ruled against the two women, and the 11th Circuit Court of Appeals agreed with the district court. But there was a “circuit split” on this issue, meaning that different courts of appeals throughout the country have conflicting laws. Because of this, the U.S. Supreme Court took up the case. Ultimately, it sided with Alabama.

SCOTUS Sides with ‘Bama

Writing for a 6-3 majority, Justice Brett Kavanaugh ruled that, at least for civil forfeiture cases where personal property (such as cars, as opposed to real property) was at issue, it is not unconstitutional to deny a preliminary hearing as the person involved is afforded a forfeiture hearing promptly.

The conservative majority based its decision on the long history of both the States and Congress having authorized law enforcement to seize personal property and hold it until a forfeiture hearing. They noted that from the country’s founding until late into the 20th century, there were no separate preliminary hearings in civil forfeiture proceedings, which they reasoned “is weighty evidence that due process does not require such hearings.”

The majority noted that federal and state governments have adopted other measures to balance the interests of the government and individuals in such cases. Some states, for example, require that the forfeiture hearing occur within a fixed period of time. Other states require a jury trial for the forfeiture hearing. And others only allow the property to be forfeited if the criminal case finds a guilty verdict. As we’ve mentioned, some states require preliminary hearings. The majority noted that their decision would not undo any of those standing state laws. It simply means that states are not required to have them.

Many Justices Remain Concerned

Justices Gorsuch and Thomas voted in the majority but wrote a concurring opinion. The state of the country’s civil forfeiture laws didn’t seem to sit easily with them. They raised points about how law enforcement agencies might have ulterior motives to seize civil property because they’ve become more dependent on raising money from forfeitures. They also note that it is disproportionately easy for the government to win forfeiture cases compared to the property owners due to an imbalance of resources, the cost of litigation, and the need for the civilians to appear in court in person. For example, Culley, who was in another state at the time, did not make it to her forfeiture hearing. These tactics can be a high burden and work against the “little guy.”

Justices Sotomayor, Kagan, and Jackson dissented. Sotomayor wrote that the majority’s decision was too broad and didn’t just answer the question presented. She would have left lower courts the flexibility to apply the appropriate balancing test of individual versus government interests case by case rather than making a sweeping ruling that due process never requires the minimal check of a retention hearing.

It’s worth noting that while the Sutton and Culley cases were proceeding, the Alabama Legislature addressed its civil forfeiture laws. It now has a law that exempts vehicles worth less than $5,000 and currency worth less than $250 from civil forfeiture. It also allows purportedly innocent owners to seek an early hearing. The silver lining, perhaps, is that these two women’s lawsuits were not for naught.

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