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.