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Supreme Court to Hear Potentially Important Property Rights Case:

On Monday, the Supreme Court granted writ of certiorari in Alvarez v. Smith, a potentially important case that underscores the dangerously weak state of protection for constitutional property rights, which I described in this recent article.

In Alvarez, a Seventh Circuit Court of Appeals panel that included Judge Richard Posner invalidated a section of the Illinois Drug Asset Forfeiture Procedure Act that allows the police to seize property that they have probable cause to believe was involved in a drug-related crime and hold onto it for up to 187 days without filing any kind of action for asset forfeiture in the courts. This rule applies even to property owned by persons who are entirely innocent of any wrongdoing, and who simply found their possessions caught up in a drug investigation through no fault of their own (e.g. - if someone else used their car to transport illegal drugs without their knowledge). The authorities also don't have to prove that keeping the property is necessary in order to prevent the loss of valuable evidence.

In other words, DAFPA authorizes the government to take away the valuable property of completely innocent people for up to six months at a time, without giving the owner any opportunity to contest the seizure whatsoever. The 187 day time limit applies to any personal property worth less than $20,000, which of course includes most cars. And note that even after an asset forfeiture action is filed, many more months might pass before the court actually hears the case. In this case, three of the six plaintiffs' cars were held by the police for many months without any judicial hearing (in two cases for over a year), even though none of the three were ever charged with any crime. The Seventh Circuit ruled that such practices sanctioned by DAFPA violate the property owners' due process rights.

Under the Due Process Clause of the Fourteenth Amendment, this should be an easy case. 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, and many lawyers make their living doing just that. 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. That is especially true if the deprivation imposes a substantial burden on the property owner, as is often the case when the property seized is a car. Perhaps little or no process should be required for a very small deprivation of property; but surely more is "due" when the owner suffers serious harm as a result of the government's seizure of his possessions. As the Seventh Circuit opinion puts it:

[T]he procedures set out in DAFPA show insufficient concern for the due process right of the plaintiffs....

The private interest involved, particularly in the seizure of an automobile, is great. Our society is, for good or not, highly dependent on the automobile. The hardship posed by the loss of one's means of transportation, even in a city like Chicago, with a well-developed mass transportation system, is hard to calculate. It can result in missed doctor's appointments, missed school, and perhaps most significant of all, loss of employment. This is bad enough for an owner of an automobile, who is herself accused of a crime giving rise to the seizure. But consider the owner of an automobile which is seized because the driver—not the owner—is the one accused and whose actions cause the seizure. The innocent owner can be without his car for months or years without a means to contest the seizure or even to post a bond to obtain its release. It is hard to see any reason why an automobile, not needed as evidence, should not be released with a bond or an order forbidding its disposal....

On the other hand, we recognize the City's interest in being certain that a vehicle is not destroyed before a court can issue a judgment in the forfeiture proceedings. We also understand that the preforfeiture hearing would impose some administrative burden on the City. However, due process always imposes some burden on a governing entity. We are not contemplating protracted proceedings, but rather notice to the owner of the property and a chance, perhaps rather informal, to show that the property should be released.

Note that the Seventh Circuit does not hold that such property seizures are categorically forbidden, or even that they can only be undertaken after an in-depth judicial hearing. The court ruled only that the property owner must be given "notice" of the seizure and a fairly minimal opportunity to present evidence showing that there is no need for the authorities to deprive her of her property. The fact that such minimal enforcement of constitutional property rights remains controversial is a strong indication of the second-class status of property rights under current jurisprudence.

Of course we don't yet know why the Supreme Court decided to hear this case. It could be that they want to affirm the Seventh Circuit decision. However, it is rare for the Court to grant cert. simply to endorse a lower court opinion (though it sometimes does so in order to resolve a circuit split, which may exist here). Alternatively, the Supremes could affirm the Seventh Circuit ruling, but apply a different analytical framework to justify that result. However, given the recent record of the Court in property rights and suspects' rights cases, and the general fact that the Supremes are more likely to hear a case to reverse the lower court than to affirm, I think it quite possible that they will end up stripping property owners of even the minimal due process protections required by the Seventh Circuit opinion. The "question presented" endorsed by the Court in its grant of certiorari clearly focuses on the issue of whether the owners are entitled to any kind of hearing at all, not just on the precise nature of that hearing.

David Welker (www):
I am not a fan of property rights to the extent that Somin is. However, on this issue, I agree with him. It seems highly unreasonable to deprive someone of their car for a significant period of time without good reason.

As far as concerns that providing due process would be too much of a burden, it should be noted that even people who get $30 parking tickets are entitled to a hearing and a right to be heard. It would seem that at least equal due process protections should be provided in this case, which is a much more severe burden than a parking ticket.
2.25.2009 4:52am
J. Aldridge:
Under the Due Process Clause of the Fourteenth Amendment, this should be an easy case. The Clause requires that states must not "deprive any person of life, liberty, or property, without due process of law."


This isn't a due process issue because there is a law (DAFPA) sanctioning the forfeiture of property under certain guidelines. In other words, there is no arbitrary takings of anyone's property without law.

Bingham said the due process clause under the 14th amendment were the words of Chapter 39 of the Magna Charta.
2.25.2009 5:52am
Splunge:
Ha, none of this will be a problem under Splunge's All Men Are Created Equal Amendment, to be ratified later this decade.

Let the government seize autos as it pleases, filing with the Clerk of the Court whatever justifying accusation against the owner is relevant. Things take their course. When the dust settles, if the government has proven its case, why, the owner loses his car, gets sent to pokey as an accessory to heinous crime, whatever.

On the other hand, if the government has not proven its case, its designated agent -- let us say the prosecutor -- is ipso facto guilty of auto theft and pays personally the statutory penalty.

Don't like those odds? Get your evidence by persuasion, bribery, bullshit or sneakyness, and don't pretend armed robbery in the name of "The People" for noble motives is on a different moral plane than the same act by a crackhead to fund his next fix.
2.25.2009 6:28am
Steve:
This isn't a due process issue because there is a law (DAFPA) sanctioning the forfeiture of property under certain guidelines. In other words, there is no arbitrary takings of anyone's property without law.

There is a murder statute, but it would still be a violation of due process to imprison someone without trial for allegedly committing murder.
2.25.2009 7:26am
MCM (mail):
One can certainly argue about how much process is "due" in any given situation, and many lawyers make their living doing just that. 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 don't disagree with you but your logic here leaves something to be desired. You don't articulate any basis for why the current allowed time is too long other than your opinion that it just is.

I mean, compare the time limits in DAFPA to speedy trial requirements. Prosecutors can delay a criminal trial for up to a year without presumptively violating the Sixth Amendment! It may not be realistic to claim that this is evidence of disregard for property rights specifically.
2.25.2009 7:47am
PersonFromPorlock:
Functionally, any official process is due process and it's up to the 'processee' to prove otherwise. <i>Maybe</i> the Court will be struck with the need for official rectitude, but the plaintiff's better hope is that some of the paperwork was incorrectly filled out.
2.25.2009 8:25am
PersonFromPorlock:
Functionally, any official process is due process and it's up to the 'processee' to prove otherwise. Maybe the Court will be struck with the need for official rectitude, but the plaintiff's better hope is that some of the paperwork was incorrectly filled out.
2.25.2009 8:27am
PersonFromPorlock:
Apologies for the double post (runaway fingers).
2.25.2009 8:30am
Oren:
Ilya, I hope you are wrong.
2.25.2009 9:16am
Steve:
Functionally, any official process is due process and it's up to the 'processee' to prove otherwise.

Even without notice and an opportunity to be heard?
2.25.2009 9:23am
Joe - Dallas (mail):
Periodically SCOTUS will hear a case solely to correct a bad decision such as the Bong for Jesus case where the 9th circuit got the immunity issue wrong and the principal was held individually liable (an argument may be made as to whether that case was a good freedom of speech case). I would hope that this case was granted cert to correct the 7th circuits holding.


This isn't a due process issue because there is a law (DAFPA) sanctioning the forfeiture of property under certain guidelines. In other words, there is no arbitrary takings of anyone's property without law.

Doesn't "due process" require a finding that a law has been violated prior to taking of rights (imprisonment, confisication, etc)?
2.25.2009 9:35am
SeaDrive:
It's one of those myths of the legal system. If you get the car back in the end, then it's "no harm, no foul." Sort of like the myth that paperwork is free.
2.25.2009 10:30am
Oren:

Periodically SCOTUS will hear a case solely to correct a bad decision such as the Bong for Jesus case where the 9th circuit got the immunity issue wrong and the principal was held individually liable

Except that they went further and declared that, in addition to deserving immunity (which I agree) the principal did not violate the 1A when she applied a content-based restriction on non-school disruptive speech (which, if not for AMK's concurrence that states, in essence, "drugs are especially bad so I'm going to let this slide", would be farcical).
2.25.2009 10:48am
This statute is not new (mail):
I represented an owner/land contract seller who had the home "siezed" after a drug bust three weeks after the purchaser/occupant had died and defaulted on her next payment. The "siezure" occured after I had filed a case to forfeit(forclose) the land contract. The deceased's nephew had moved into the home and "set up shop." I got nowhere with the fed/state task force until they decided to change "their routine" siezures like this because my client was a fellow cop. Unbelievable arrogance.
2.25.2009 11:07am
ArthurKirkland:
It doesn't surprise me that people whose lack of judgment enables them to devise, implement or support the War On Drugs would devise or support such a seizure-and-forfeiture system.
2.25.2009 12:14pm
PubliusFL:
MCM: Prosecutors can delay a criminal trial for up to a year without presumptively violating the Sixth Amendment!

But at least they have to charge you and you're entitled to reasonable bail if they want to hold you for that long. The speedy trial analogy would be an asset forfeiture action taking over a year. But this law allows the state to hold property for over 6 months without even beginning an asset forfeiture action. That's like holding someone in jail for six months before charges are filed and the speedy trial clock even starts running.
2.25.2009 12:25pm
Ilya Somin:
This isn't a due process issue because there is a law (DAFPA) sanctioning the forfeiture of property under certain guidelines. In other words, there is no arbitrary takings of anyone's property without law.

The fact that there is a law allowing seizure of property without due process isn't enough to satisfy the requirements of the Fourteenth Amendment. If Illinois enacted a statute allowing the police to seize any property they wanted for any reason, there would still be a Due Process Clause violation.
2.25.2009 12:27pm
Eric Muller (www):
"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."

Solution: ship the property to Guantanamo!
2.25.2009 1:00pm
Eric Muller (www):
Or the brig in Charleston.
2.25.2009 1:00pm
Joe - Dallas (mail):
Oren - I agree with you. SCOTUS correctly decided the immunity issue, but appeared or seems they needed a "constitutional issue" before the court so that they could rule on the immunity issue, and in the process muddled the first Adm issue.
2.25.2009 1:53pm
Joe - Dallas (mail):
The fact that there is a law allowing seizure of property without due process isn't enough to satisfy the requirements of the Fourteenth Amendment. If Illinois enacted a statute allowing the police to seize any property they wanted for any reason, there would still be a Due Process Clause violation.

The city of Dallas, TX has enacted a local ordinance allowing the impounding of motor vehicles for failing to have proof of insurance. My initial take is that would also be a due process violation.
2.25.2009 1:56pm
arbitraryaardvark (mail) (www):
A footnote to the Bong hits for Jesus case: it was settled for $50,000, on the state constitutional claim.
Not only is the Chicago practice of stealing cars wrong, it also empowers corrupt Chicago police, if there are any of those, to lean on citizens by threatening to steal their cars. Celebrated in folklore, Lincoln Park Pirates.
2.25.2009 2:14pm
PubliusFL:
Joe - Dallas: The city of Dallas, TX has enacted a local ordinance allowing the impounding of motor vehicles for failing to have proof of insurance. My initial take is that would also be a due process violation.

Maybe, what are the terms? It's illegal to operate a vehicle without insurance. If you can get the vehicle back by providing proof of insurance, there shouldn't be a problem.
2.25.2009 3:13pm
ArthurKirkland:
Perhaps the state should seize the assets of every corporation that fails to renew its incorporation, or refrains from paying any state tax, or violates a state law.

It not only makes as much sense as the drug-related forfeiture-and-seizure laws, but likely would be more lucrative.
2.25.2009 3:30pm
LoopFiasco:
Don't forget that a large amount of cash that is 'forfeited' by the asset forfeiture unit. The cops are smart though - they tell the arrested party that they are going to be charged with money laundering unless they sign a disclaimer of ownership form for the $.

Another thing they do: After the 6months runs or whatever and they have to formally notify someone of their right to contest the forfeiture - they usually send the notice to the person's last known address. However, a good number of the people never receive the notice because they are locked up in jail for various offenses related to the forfeiture.

Default judgment easily obtained.

(Its theoretically possible a client could prevail on a 4th amendment motion and then have a decent chance at contesting the civil forfeiture action and getting money and property back.)
2.25.2009 3:33pm
R. G. Newbury (mail):
Hhmmm. Let's think of a little experiment.

Law 2: Criminal and Constitutional Procedure:
The Fourth Amendment: Practical Application.

A) Regarding seizures of property without warrant and forfeitures without hearing or charge (Alvarez), discuss whether the positions of individual members of the Supreme Court would change if, before the case is briefed or heard, each Justice had occasion to discover, on returning to the spot where their car had been parked, that the car had been removed and impounded, on (warrentless) suspicion of having been used in a drug-related crime. 10 marks

B) Are the police forces of Washington D.C. and surrounding areas, sufficiently gullible, that they can be induced to effect such a seizure by way of a plausible tip or suggestion? Discuss ways in which this might be achieved LEGALLY. 10 marks.
Note that suggestions of illegal methods of achieving this result will not be given credit, but will be eagerly distributed on-line and may be emulated.
2.25.2009 3:47pm
R. G. Newbury (mail):
Bleh! Warrantless not warrentless..

Lysdexic fingers.
2.25.2009 3:49pm
krs:
Linking to CA7 opinions is tricky.

Op below is here.
2.25.2009 4:48pm
Oren:

Bleh! Warrantless not warrentless..

But it was a Warren-less Court, so you were sort of OK.
2.25.2009 6:46pm
J. Aldridge:
Joe said: "The city of Dallas, TX has enacted a local ordinance allowing the impounding of motor vehicles for failing to have proof of insurance. My initial take is that would also be a due process violation."

What did the constitutional word "property" represent? It represents land, or personal real estate.

"nor shall private property be taken for public use, without just compensation."

I don't think anyone ever construed this to include Rolex watches or television sets.
2.26.2009 5:28am
ArthurKirkland:
In an effort to narrow the argument, I ask two questions:

(1) Does anyone believe it would be constitutional for a government agency to seize and arrange forfeiture of a $25,000 vehicle whose operator was found to possess (in the trunk) a half-dozen marijuana cigarettes?

(2) Does anyone believe it would be sound public policy to permit such seizure and forfeiture?
2.26.2009 8:53am
J. Aldridge:

(1) Does anyone believe it would be constitutional for a government agency to seize and arrange forfeiture of a $25,000 vehicle whose operator was found to possess (in the trunk) a half-dozen marijuana cigarettes?

Sure. If it is the law of the land (state) that any vehicle caught illegally transporting unlawful cargo can be seized, then that's prima facie evidence the law has been violated and the vehicle can be confiscated on the spot.

John Bingham in April of 1872 said it was perfectly constitutional for an act of the legislature in authorizing seizure and sale without trial and that "the phrase 'due process of law' means the law of the land."
2.26.2009 10:40am

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