A Much Better Sotomayor Property Rights Opinion:

In my previous post, I criticized Judge Sotomayor's flawed ruling property rights ruling in Didden v. Village of Port Chester. It is only fair that I point out that, in 2002, she wrote a much better opinion in another significant property rights case, Krimstock v. Kelly. In Krimstock, Sotomayor wrote an opinion invalidating New York City's policy of seizing and holding vehicles owned by suspects accused of DUI and other offenses, and then retaining them for years at a time without allowing the defendants to challenge the seizures in any kind of legal proceeding. The city had not yet initiated any civil forfeiture proceedings against them. Sotomayor correctly ruled that this policy violates the Due Process Clause of the Fourteenth Amendment, which mandates that citizens cannot be deprived of property without "due process of law." It may not be clear how much process is "due" in any given case under the Amendment. But seizure of property for up to several years at a time with no process at all is surely too little.

The Krimstock case is similar to the recent 7th Circuit decision in Alvarez v. Smith, which I blogged about in February. Krimstock may actually have been slightly less egregious because three of the owners of the vehicles in Alvarez had not even been charged with a crime, while the seven plaintiffs in Krimstock had pleaded guilty to the charge of driving while impaired (though forfeiture of property was not part of the legally mandated sentence for this offense). It's hard to dispute Sotomayor's conclusion that:

A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

What does Krimstock say about Sotomayor's broader attitude towards constitutional property rights? I tend to doubt that it tells us very much. For reasons I elaborated more fully in my post on Alvarez, I think these cases are relatively easy. Surely holding onto valuable property for years at a time with no legal process at all is not "due process" under any defensible definition. However, the fact that the Supreme Court granted cert in Alvarez and may end up reversing it suggests that the state of protection for constitutional property rights is so bad that we can't take anything for granted. Therefore, Sotomayor does deserve some substantial credit for her opinion in this case. I do not believe that it fully outweighs what she did in Didden, however. In her time on the Second Circuit, Sotomayor ruled on two important property rights issues where the legal argument against the government was extremely strong. A 50% batting average in such situations is a lot better than 0%, but is still troubling.