Supreme Court to Hear Oral Argument in Alvarez v. Smith - A Key Property Rights Case:

This fall, the Supreme Court will hear oral arguments in Alvarez v. Smith, an important property rights case that I blogged about in February. For reasons, I discussed in that post, the Supreme Court must rule for the property owners in Alvarez if it is to preserve even minimal protection for the property rights of crime suspects under the Due Process Clause of the Fourteenth Amendment.

Radley Balko, a prominent writer on criminal justice issues, has an excellent column discussing the case:

This fall, the U.S. Supreme Court will hear oral arguments in Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset Forfeiture Procedure Act (DAFPA)... The six petitioners in Alvarez each had property seized by police who suspected the property had been involved in a drug crime. Three had their cars seized, three had cash taken. None of the six were served with a warrant, none of the six were charged with the crime....

Under DAFPA, incredibly, the government can delay for up to 187 days before an aggrieved property owner can get even a preliminary hearing on warrantless seizures of less than $20,000. The three car owners, for example, had to go without their cars for more than a year....

Under the 14th Amendment's Due Process clause, a state may not "deprive any person of life, liberty, or property, without due process of law." If Illinois' forfeiture law isn't a violation of the property portion of the Due Process clause, it's hard to fathom what would be.

In an opinion written by Judge Richard Posner, the Seventh Circuit struck down the Illinois law, ruling that the property owners were entitled to at least a minimal hearing before the government could take their cars and hold them for months at a time. This is the bare minimum of protection required by the Due Process Clause. As Radley explains, such asset forfeitures are an increasingly common part of the War on Drugs, and often allow authorities to hold the property of people who haven't been convicted of any crime. In this case, the six car owners in question weren't even charged with any offenses. Needless to say, most of the people victimized by such asset forfeitures tend to be poor and politically weak, and thus unlikely to have the political clout necessary to force state legislatures to reform their policies.

Unfortunately, it seems likely that the Supreme Court could reverse the Seventh Circuit and uphold the Illinois law. As a general rule, the Court usually hears cases only when there is a split between the courts of appeals (which is not true here), or when it wants to reverse the lower court decision. If the Court denies property owners even minimal protection under the Due Process Clause, it would further reinforce the second-class status of constitutional property rights in current jurisprudence, as well as impose needless hardships on numerous property owners.

However, there is a small ray of hope: This is one of the rare issues where newly confirmed Justice Sonia Sotomayor is a strong supporter of property rights. In Krimstock v. Kelly, a 2002 opinion she authored while a Second Circuit judge, Sotomayor struck down a New York City law very similar to the Illinois statute challenged in Alvarez. I discussed Krimstock in more detail in this June post, and in my Senate Judiciary Committee testimony on Sotomayor's record on property rights. Judge Posner's Seventh Circuit opinion in Alvarez actually cites Krimstock as a precedent supporting his decision. Hopefully, Justice Sotomayor will stick to her guns and provide a much-needed vote for property rights in this case.