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October 23, 2023
Notable voices speaking out against civil forfeiture as SCOTUS argument over required process approaches
Next Monday, the US Supreme Court will hear oral argument in Culley v. Marshall, No. 22-585, which presents this question:
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.
Because there are many folks on both the left and the right who are not big fans of civil forfeiture of property, almost all of the advocate amicus briefing is in support of the individual for more process. And some of the commentary I have seen recently on this case is likewise pretty one-sided (though coming from all political sides):
From Balls & Strikes, "How Easily Can Cops Steal Your Stuff, and Other Hard Questions For the Supreme Court"
From The Hill, "Ending state-sanctioned theft to preserve police legitimacy"
From The Federalist, "The Supreme Court Shouldn’t Let Governments Get Away With Impounding Innocent People’s Property"
From USA Today, "I was innocent, but police seized my car and stalled for years. Their scheme has to stop."
Though I do not follow forfeiture issues and doctrines all that closely, I am extremely interested to see how the current group of Justices approach a Due Process issue that could possibly have all sort of ripple effects.
October 23, 2023 at 11:35 AM | Permalink
Comments
I have had to draft two letters this year, for law firm clients, asking the DEA to return cash seized from the cars of people with no prior criminal history, after bogus traffic stops made by state law enforcement officers. One man had $65,000 cash kept in a cooler on the floor of the back seat of his SUV. There were no guns or drugs found in the vehicle. Yet, a Kentucky State Police Trooper confiscated the cash after a weaving traffic stop on I-65 South, near Louisville, Ky. and tuned it over to the DEA for civil forfeiture. The client and his Mexican attorney produced the closing paperwork and a deed for the sale of a piece of Mexican real estate, between two Hispanic Americans, including the driver of the SUV, where the purchase price was paid in cash in the United States. The original document were in Spanish and had to be translated for the DEA. Initially, the DEA offered to return half of the money, but eventually returned all of the confiscated money after being sente a draft of a Federal Court lawsuit concerning the alleged forfeiture. In a second case, police in Texas blocked in a driver's vehicle at a gas station convenience store and asked for permission to search it without a warrant. The driver, who has no criminal history, refused to be intimidated. The police called for a drug dog, which purported to alert that the vehicle contained drugs. the police then search the plaintiff's car, but found $25,000 cash, BUT NO DRUGS. The police confiscated the $25,000, and commenced forfeiture proceedings under Texas stqate law. Counsel filed an Answer and Moved to Dismiss, on the ground that the drug dog alert only gave the police permission to search for drugs, not for cash. Since no drugs were found, the police had violated Due Process of Law and the 4th Amendment prohibition against unlawful search and seizure. Local counsel met with the local county attorney, who agreed to return the money, after the driver/owner showed a lawful source for the $25,000 cash.
Posted by: Jim Gormley | Oct 23, 2023 2:23:12 PM
In the Kentucky forfeiture matter described above, the KSP Trooper added insult to injury by not even writing the driver a real traffic ticket; he wrote a WARNING TICKET only, alleging that the driver had weaved a few inches across the center line and then a few inches across the right-hand edge of the roadway, white line. Police dash cam video did not back up this allegation. The entire traffic stop was a pretext because the driver was on I-65 South in Kentucky with Texas license plates. The Hispanic driver was born in Texas, was an American citizen, with a valid Texas driver's license. He had never been arrested in his life.
Posted by: Jim Gormley | Oct 23, 2023 2:29:20 PM
