Findlaw has just posted a column I wrote on Alvarez v. Smith, an important Fourteenth Amendment Due Process Clause property rights case that was heard by the Supreme Court today:
Today, the Supreme Court hears Alvarez v. Smith, an important case that will affect the constitutional property rights of many people around the country but has failed to attract the attention it deserves.
In Alvarez, the federal Seventh Circuit Court of Appeals ruled that it was unconstitutional for Chicago police to seize cars and other property and hold it for many months at a time a without giving the owners any chance challenge the seizure. The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own... The three car owners involved in Alvarez were never even charged with a crime, much less convicted....
Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention.
The Court of Appeals ruled that DAFPA violate the property owners’ rights under the Due Process Clause of the Fourteenth Amendment. It should have been an easy case. After all, the Clause requires that states must not “deprive any person of life, liberty, or property, without due process of law.” One can certainly argue about how much process is “due” in any given situation. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial process whatsoever....
I previously wrote about Alvarez here and here. In this post, I wrote about then-Judge Sonia Sotomayor’s excellent opinion in the very similar case of Krimstock v. Kelly.
My column was written before the oral argument transcript became available. Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented. Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit, which I feared might happen. The oral argument transcript also suggests that many of the justices — both liberal and conservative — are skeptical of the government’s position on the merits. They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing. At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly. In both cases, obviously, it would be dangerous to predict the justices’ votes based on oral argument questions, since some justices might pose questions that build on premises they don’t necessarily agree with.
Anon21 says:
Ilya, I think you may have an unclosed tag that is italicizing the rest of the blog.
Edit: Or perhaps not.
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October 14, 2009, 3:24 pmIlya Somin says:
I think you may have an unclosed tag that is italicizing the rest of the blog.
I don’t think I do. However, I do see the annoying italics elsewhere on the blog, and I have alerted Eugene. Hopefully, the problem will soon be addressed.
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October 14, 2009, 3:32 pmuh_clem says:
We shall see if the Supreme Court expands the “drugs exception” to the bill of rights by overturning the 7th district ruling.
I may not agree with Ilya all that often, but he’s absolutely correct that this should have been an easy case. That it got cert at all is casts a shadow on the court’s commitment to upholding the constitution.
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October 14, 2009, 3:39 pmBossPup says:
The case looks like it is going to get DIGged. All of the named plaintiffs’ property has been returned and a class was never certified. Ilya, I think this issue didn’t come up before because the claims were not moot at the time the Court granted cert. Since both sides were arguing the case is not moot, this really does look like an issue some intrepid young clerk stumbled upon on their own.
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October 14, 2009, 4:00 pmwesley says:
I saw this, from Mr. Jay, in the oral argument:
“But as a practical matter, States and the Federal Government are not sitting around doing nothing after seizing property. They are actively investigating who has a claim, they are notifying all claimants, they are allowing — allowing those claimants to file claims if they wish. A majority of all seizures are uncontested.”
Do you know if those two claims — the government is actively involved after seizures, and a majority of seizures are uncontested — are true? I suppose the second could be verifiable, but the first, dang, I’m skeptical. (In fact it seems to me that he might even be hiding the unverifiability of the first claim with the second.)
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October 14, 2009, 4:09 pmcirby says:
I’d just like someone arguing for this sort of seizure to show one single case where it worked as advertised. “Yeah, we seized these cars and this house, and it materially helped the prosecution’s case.”
...and not in a “we kept him from hiring lawyers, and the extralegal costs involved drove him to bankruptcy” way.
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October 14, 2009, 4:12 pmJay says:
My experience is limited to federal cases, but I think the great majority of forfeitures are indeed uncontested, because few people are interested in claiming property with an obvious connection to criminal activity (and often the only possible claimants are simultaneously being prosecuted/pleading guilty).
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October 14, 2009, 4:38 pmJohn A says:
Query: who paid the storage fees? When my car was towed eight years ago, it was over twenty-five dollars per day.
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October 14, 2009, 4:41 pmSteve says:
Did the plaintiffs not have a claim for damages, only a claim to get their property back? Sounds like a case that would have mootness written on it a long time ago.
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October 14, 2009, 4:49 pmDavid H. says:
The Chief seemed to be opening the door for the ultra rare Munsingwear Order, and reading through the entire transcript, I got the feeling this won’t be DIG’d.
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October 14, 2009, 4:51 pmArthurKirkland says:
I root against drug warriors on almost every point short of threats to their safety — I hope they botch every investigation, that every trial ends in acquittal, that their equipment malfunctions, that citizens refuse to cooperate with them, etc. — and believe that unchecked government power is bad. That makes this an easy case for me.
Which, apparently, makes me a libertarian.
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October 14, 2009, 4:53 pmAnon21 says:
The intersection of property rights and the drug war is indeed an interesting one. Hope to hear further thoughts when the opinion is handed down.
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October 14, 2009, 5:33 pmOren says:
Why does Roberts think “capable of repetition but evading review” means “capable of repetition to the same person but evading review”? Pernicious government conduct is not likely to strike the same person twice and yet we ought to allow injunctive relief.
Suppose the City of Chicago decided to arbitrarily arrest people for brief periods of time without probable cause, but kept a list ensuring that no person would be targeted twice. Surely a plaintiff (who would have long since been released) would deserve injunctive relief despite an absolute certainty that the situation was incapable of repetition with respect to him personally.
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October 14, 2009, 5:39 pmCalderon says:
Without knowing anything about the case, I was wondering about that too. Couldn’t the plaintiffs have come up with some money damages from not having their cars? CTA fares, taxi payments, car rental fees, or some other sort of money damages? Or is there some other rule that would prevent those kinds of costs from being recovered?
I guess also they could have foregone a claim for damages to improve their chances for class cert, but there are an awful lot of cases saying that differences in calculating damages won’t prevent class cert, so I doubt that was a valid concern.
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October 14, 2009, 5:44 pmKevin P. says:
Arthur and I actually agree on something!
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October 14, 2009, 6:03 pmChrisTS says:
Arthur K:
Bet that surprised ya.
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October 14, 2009, 6:04 pmSteve says:
Why does Roberts think “capable of repetition but evading review” means “capable of repetition to the same person but evading review”?
I don’t know why Roberts thinks that, but that’s exactly how we learned the rule in law school.
I guess one point would be that if it might happen to you again, you have enough of a stake in the controversy that we can expect you to litigate the case zealously. But if it’s a moot point and you’re never going to be in that situation again, then you care only in the abstract. It’s sort of a standing concept, it seems to me.
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October 14, 2009, 6:09 pmU.Va. Grad says:
Wouldn’t a more deserving plaintiff, standing-wise, be someone who had not yet been arrested and sought to prevent his arbitrary detention?
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October 14, 2009, 6:38 pmLarryA says:
And not in a “we sold the stuff and bought more cool SWAT toys” way.
Given the state titling laws, I kinda doubt it takes months to figure out who a car belongs to and who might have a lien on it.
I guess this spokesperson missed the “without giving the owners any chance challenge the seizure” part.
The intersection of all rights and the drug war is beginning to look like a pedestrian/vehicle accident. It’s not who’s right, but who’s left.
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October 14, 2009, 6:43 pmArthurKirkland says:
Not really. I suspect I am as much a libertarian as most of those who claim to be ‘conservative-leaning libertarians.’
I do not claim to be a libertarian, just as I have no respect for a claim of libertarianism from anyone who supports (or shacks up with those who support) the drug war, gay-bashing, warrantless surveillance, school prayer, torture, abortion-related censorship, invading the wrong country, open-ended detention, prudish prosecutions, foreign coups, religious observance in public oaths and proceedings, gambling prohibitions, and many other features of the conservative agenda/Republican platform.
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October 14, 2009, 6:45 pmOren says:
Such injury is highly speculative, isn’t it?
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October 14, 2009, 7:33 pmLee Kane says:
This reminds me of something I’ve been thinking about lately. As a non-lawyer this may seem naive, and perhaps it is. But what recourse in the courts, civil or criminal, do citizens have against politicians who act contrary to either civil or criminal law but who are not held to account by any public institution (such as a public prosecutor, etc.)? In this case, the plaintiffs are seeking relief against a police policy. But is there any way to hold an individual politician to account for what might appear to be a violation of civil or criminal law? Example: Senator A receives a large political donation from Company B. Senator A then anonymously adds an amendment to, say, a Clean Air Bill, awarding Company B $10,000,000 to build a truck weigh station on a remote dirt road with no truck traffic. After investigation, some public interest group obtains proof the senator submitted the Amendment. Is there a way to take this Senator to court, civil or criminal, to hold him accountable for the behavior — as say, a form of theft from taxpayers or on anything at all? What if a politician awards land belonging to Citizen B over to Citizen A, using eminent domain, so Citizen B can build a shopping center. Citizen B might fight the eminent domain, but does he have standing on anything that would seek damages from the politician or hold him liable for civil or criminal wrongdoing?
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October 14, 2009, 7:48 pmShelbyC says:
I always write “dug” :-)
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October 14, 2009, 8:07 pmShelbyC says:
Wait, what’s wrong with supporting foreign coups, in certain cases?
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October 14, 2009, 8:13 pmShelbyC says:
Doesn’t a Munsingwear order only apply when the mootness is from happenstance, and not by voluntary action of the party that doesn’t like the judgement?
And can’t the cops come and re-seize the property any time they want? If so, it wouldn’t be moot, correct?
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October 14, 2009, 8:16 pmreadery says:
It looks like the plaintiffs made some strategic mistakes. The individual plaintiffs got their cars back, mooting their case. Their lawyer argued that this is a sort of claim that is capable of repetition yet evading review because other members of the class still had viable claims. But they never appealed the denial of the class certification, so the judgment denying the existence of a class became final. Without either viable individual claims or a vial class claim, mootness woul appear inevitable.
Doubtless the question can be addressed if some other plaintiff, whose lawyer doesn’t make the same mistakes, brings a similar claim.
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October 14, 2009, 8:36 pmlibertariansoldier says:
AG:
I do not claim to be a libertarian, just as I have no respect for a claim of libertarianism from anyone who supports (or shacks up with those who support) the drug war, gay-bashing, warrantless surveillance, school prayer, torture, abortion-related censorship, invading the wrong country, open-ended detention, prudish prosecutions, foreign coups, religious observance in public oaths and proceedings, gambling prohibitions, and many other features of the conservative agenda/Republican platform
Hey buddy, leave my wife out of this, or she might start some warrentless surveillance on you.
And I notice you are only against foreign coups, not foreign and domestic. that would make you a liberal.
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October 14, 2009, 9:11 pmArthurKirkland says:
I oppose foreign and domestic coups, and would expect a libertarian to oppose all coups.
The only call for a domestic coup I can recall came from one of the conservatives at TownHall.
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October 15, 2009, 12:06 amDue Process Case to be Decided on Procedural Grounds | Think Tank West says:
[...] For more on the case, see George Mason law professor and Cato adjunct scholar Ilya Somin’s oped, and his related blog post at the Volokh Conspiracy. [...]
BossPup says:
The second point is true: most seizures end up going uncontested. They either settle or the claimant defaults. In TN, I think that something like only ten percent go to court.
I think the first point is hogwash.
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October 15, 2009, 11:52 amloki13 says:
Is there a way to take this Senator to court, civil or criminal, to hold him accountable for the behavior – as say, a form of theft from taxpayers or on anything at all?
Yes, you vote them out of office.
And please refresh yourself on the many threads here– corporations (and individuals, PACs, unions, etc.) are only giving money to politicians out of there love for the First Amendment and, perhaps, access. That the politicians might act in the interest of those that elect him/her is mere happy First Amendment coincidence.
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October 15, 2009, 7:18 pmloki13 says:
Put another way your choices are twofold:
1. Vote him/her out of office.
2. Generously contribute and hope for your own fortuitous First Amendment coincidence.
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October 15, 2009, 7:19 pmFriday Round-up | SCOTUSblog says:
[...] rights and the police. Nathan Koppel at the WSJ Law Blog has this commentary. Ilya Somin at The Volokh Conspiracy explains why the case should be a significant one for the Due Process Clause, though it has [...]
Redlands says:
Can’t speak as to the first, but when I was more connected to seizures when the practice took off 10 years ago or so, many of them were in fact not contested. The potential claimants often fled. In those cases, because of their close connection to controlled substances or an organization, they were willing to trade the value of the property, often cash, for their freedom.
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October 16, 2009, 11:58 pmmarkm says:
Redlands: Or they found that hiring a lawyer to contest the seizure cost more than the property was worth.
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October 19, 2009, 6:28 amMHB says:
If the property owners are seeking an injunction, it seems that the standing considerations, not necessarily mootness, relied on in City of Los Angeles v. Lyons would govern.
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October 20, 2009, 9:24 am