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