When law enforcement officers seize personal property in the course of a drug investigation, how quickly should they be required to provide property owners with an opportunity to contest the validity of the seizure?
Civil forfeiture statutes allow law enforcement agencies to seize personal property without a warrant if the property is connected to illegal drug activity. A group of Chicago residents whose vehicles were seized organized a class action challenging the Illinois civil forfeiture statute on constitutional grounds. Specifically, they alleged that civil forfeiture improperly deprived them of due process because of the extensive delay the statute allowed before requiring actual civil forfeiture proceedings. After the trial court dismissed their complaint, the Seventh Circuit held the statute unconstitutional. The Supreme Court granted certiorari and now has an opportunity to clarify exactly what process is due to property owners facing statutory civil forfeiture proceedings.
Questions as Framed for the Court by the Parties
In determining whether the Due Process Clause requires a State or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972) or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)?
The Fourteenth Amendment guarantees that no citizen can be deprived of property without due process of law. Despite due process concerns, many state and local governments (as well as the federal government) have enacted civil forfeiture statutes which give law enforcement agencies the power to seize, and subsequently sell, personal property involved or associated with the sale or manufacture of illegal drugs.
In Illinois, the Drug Asset Forfeiture Procedure Act (“DAFPA”) governs civil forfeiture proceedings. Under DAFPA, property can be seized without a warrant as long as law enforcement has probable cause to believe the property was somehow involved in a drug crime. Once property is seized, a civil forfeiture proceeding is required. This, in turn, requires that property owners be given notice and an opportunity to be heard. However, under DAFPA, up to 187 days could elapse before those proceedings take place.
In 2006, the Chicago Police Department, acting pursuant to DAFPA, seized personal property, including automobiles, belonging to Chermaine Smith, Edmanuel Perez, Tyhesha Brunston, Michelle Waldo, Kirk Yunker, and Tony Williams. In response, those individuals brought suit under 42 U.S.C. § 1983. They alleged that the seizure of their property under DAFPA was facially unconstitutional in that the act did not require a prompt post-seizure probable cause hearing.
The District Court for the Northern District of Illinois dismissed the complaint, relying on Jones v. Takaki (upholding the constitutionality of existing civil forfeiture procedures). On appeal, the Seventh Circuit reexamined Jones and effectively overruled it. They held that, because of the significant amount of time that could elapse before a civil forfeiture proceeding took place under DAFPA, due process required some sort of additional proceeding to quickly evaluate the validity of the initial seizure. Adopting the reasoning of then Second Circuit Judge Sonia Sotomayor in Krimstock v. Kelly (requiring prompt post-seizure hearings under New York law), the Seventh Circuit remanded the case to the district court with instructions to craft an appropriate remedy by applying the due process analysis outlined by the Supreme Court in Mathews v. Eldridge.
Citing, in part, a potential conflict amongst the circuits, the State’s Attorney of Cook County, Illinois, petitioned the Supreme Court for review. The Supreme Court granted certiorari on February 23, 2009.
Petitioner, Anita Alvarez (“Alvarez”), State’s Attorney for Cook County, Illinois, argues at the outset that the existing civil forfeiture procedure outlined in DAFPA meets constitutional due process requirements and any additional procedures would unduly burden law enforcement. Respondents, Chermaine Smith, et al. (“Smith”), counter that the existing procedure violates due process because it has the result of depriving potentially innocent property owners of valuable personal property without an opportunity to contest the seizure within a “meaningful time.”
Controlling Legal Standard
The central conflict between the parties concerns the controlling legal standard. Alvarez urges the Court to view this case in light of its existing civil forfeiture jurisprudence. Alvarez stresses that the Court has repeatedly held that civil forfeiture proceedings satisfy due process, provided that they take place within a reasonable time period. Further, Alvarez argues the appropriate evaluation of reasonableness comes from the “speedy trial” test articulated by the court in Barker v. Wingo.
In Barker, the Supreme Court held that courts must weigh four factors when determining whether a criminal trial was “speedy” for Sixth Amendment purposes: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s interest in having a speedy trial, and (4) the potential prejudice to the defendant resulting from the delay. Furthermore, the Court rejected the idea of setting a fixed timeline, and held that whether or not the Sixth Amendment is satisfied must be determined on an ad hoc basis. Alvarez, citing two civil forfeiture cases where the court applied Barker (United States v. $8,850 and United States v. Von Neumann), urges that the same analysis should apply here. Under $8,850, Von Neumann, and Barker, Alvarez contends the civil forfeiture procedures outlined in DAFPA are facially constitutional.
Smith counters that the Barker speedy trial test is inappropriate because it is limited to evaluating the Sixth Amendment rights of criminal defendants, and not the due process rights of property owners in civil proceedings. Rather, Smith urges the Court to apply the more general due process test from Mathews v. Eldridge.
In Mathews, the Supreme Court held that in evaluating whether or not a particular procedure satisfies due process, courts must perform a three part balancing test, weighing the interests of the individual in retaining their property, the probable value, if any, of additional procedural safeguards, and the government interest in efficient adjudication. Smith argues that the Supreme Court has previously applied Mathews to evaluate civil forfeiture proceedings, and that Mathews should control here.
However, Alvarez distinguishes Good on the grounds that it was expressly limited to the civil forfeiture of real property (i.e. land), as opposed to the personal property (ex. cars, cash, etc.) at issue here. Smith counters that Good contains no such limitation, and the question of what type of property forfeited relates only to how the Mathews factors are applied, not if the test applies at the outset.
Whether or not Mathews ultimately applies, both parties contend that they would prevail under the Mathews test. Alvarez argues that the government interest in using civil forfeiture as an investigative tool outweighs the private interest at stake here—the temporary loss of the use of a car and money. In support, Alvarez notes that even the plaintiff in Mathews did not prevail under the Mathews test, where the Court held that due process did not entitle beneficiaries of disability payments continued benefits during the time period they were challenging discontinuation of those benefits.
Smith, citing Krimstock, argues that the Second Circuit has already applied Mathews to evaluate a similar New York civil forfeiture law, and found that additional process was not only required, but did not impose a substantial burden on government interests. Furthermore, Smith argues that in cases where courts have neglected to apply Mathews to civil forfeiture proceedings, property owners have had a much broader array of post-seizure, pre-proceeding remedies available to challenge the initial validity of the seizure. Because Illinois law recognizes an “innocent owner” exception to civil forfeiture in the first place, Smith argues that failing to allow innocent owners to assert this defense at some earlier stage facially violates due process.
Alvarez counters that there are a wide variety of post-seizure pre-proceeding remedies under Illinois law, including the ability of property owners to petition the State’s Attorney for the return of wrongfully seized property. Additionally, Alvarez argues that courts have broad equitable power to intervene if police exceed their authority. Finally, Alvarez contents that DAFPA contains an even shorter timeline for initiating proceedings than its widely upheld federal counterpart, CAFRA. Smith disputes these contentions, and points to a number of CAFRA provisions unavailable to property owners under DAFPA, including the ability of property owners to post bond or file motions in criminal proceedings.
Form of Additional Proceedings
The parties also disagree about what form any additional proceeding would take. In Alvarez’s view, any post-seizure hearing would effectively be a full civil forfeiture proceeding on a shorter timeline. This would result in the state being forced to present its case without the benefit of full discovery. Without discovery, Alvarez contends, the state would likely be unable to locate the true owners of property in many cases, which could actually interfere with the rights of legitimate innocent owners. Furthermore, Petitioner suggests that forcing the state to present its evidence in a civil forfeiture proceeding at an early stage in an ongoing criminal investigation could interfere with law enforcement’s ability to collect and retain evidence. While recognizing that cars do provide people with mobility, which is an important aspect of liberty, Alvarez argues it is improper to equate this property interest with a true liberty interest for due process purposes. As such, Alvarez concludes that any proposed post-seizure pre-proceeding remedy is unnecessary and an undue burden on the state.
Taking a different view, Smith envisions a more modest remedy, short of a full civil forfeiture proceeding. Noting that the Seventh Circuit merely remanded the case to the district court with instructions to craft an appropriate remedy, Smith argues that Alvarez is overstating the burden of any interim hearing. Smith contends that the interests of the state could still be accommodated, pointing to a number of examples, including the procedures available under CAFRA and the procedures adopted by New York City in the wake of Krimstock. Ultimately, Smith concludes that whenever individual property rights are at stake, due process requires a prompt hearing before a neutral decision-maker, and Mathews is the appropriate standard to craft a remedy once the facts are further developed on remand.
In Alvarez v. Smith, the Supreme Court will have the opportunity to clarify exactly what process is due to property owners whose property has been seized by law enforcement agencies pursuant to state civil forfeiture statutes.
Petitioner, Anita Alvarez (“Alvarez”), the State’s Attorney of Cook County, Illinois, argues the Illinois Drug Asset Forfeiture Procedure Act (“DAFPA”) provides adequate constitutional protections for property owners, and any additional procedure would unduly burden law enforcement agencies.
Respondents Chermaine Smith, et al. (“Smith”) contend that the Seventh Circuit was correct to conclude that the procedures under DAFPA are facially unconstitutional because they deprive potentially innocent property owners of their personal property for an extended period of time without an opportunity to contest the validity of the seizure.
At the center of this debate is the fundamental conflict between personal property rights and the legitimate interests of law enforcement agencies in effectively combating illegal drugs. As a result, numerous amicus curiae have filed briefs.
Because of its extensive use of civil forfeiture proceedings in federal law enforcement, the United States has submitted an amicus brief arguing that the existing Illinois procedures are facially valid. According to the United States, the Seventh Circuit failed to consider government interests, such as the speedy confiscation of property utilized in drug crime and the potentially substantial administrative costs of additional procedures. Furthermore, the United States argues that existing procedures are reasonable as long as the ultimate civil forfeiture proceeding is not delayed beyond the amount of time that government interests reasonably require.
Numerous state governments employing similar civil forfeiture procedures have filed amicus briefs echoing the United States and suggesting that facially invalidating DAFPA was a drastic measure. Furthermore, the National Association of Counties, the National Conference of State Legislatures, and other municipal government organizations have joined as amici, arguing that state legislatures, rather than courts, are better suited to set time limits for proceedings.
Property Owner Interests
Conversely, civil liberties advocates argue that, even in the civil forfeiture context, a prompt post-seizure procedure of some sort—akin to a probable cause hearing—is vital to protect individual rights. The Legal Aid Society, which represented a similar class of plaintiffs who successfully challenged the constitutionality of New York’s civil forfeiture procedures in Krimstock v. Kelly have submitted an amicus brief outlining how Krimstock hearings now function in New York, and suggesting that the Supreme Court should adopt Krimstock’s reasoning here.
Additionally, a number of property rights advocacy groups, including the Cato Institute, the Goldwater Institute, and the Reason Foundation, have joined as amici in support of Smith. They stress the importance of using due process as a check on the power of law enforcement agencies operating under the broad language of civil forfeiture statutes. Expanding on this argument, the Institute for Justice argues that public officials are fundamentally self-interested actors, and that civil forfeiture laws which incentivize “policing for profit” (most civil forfeiture statutes allow law enforcement agencies to retain the proceeds from the sale of forfeited property) require careful judicial oversight.
Finally, the National Police Accountability Project has submitted an amicus brief arguing generally that DAFPA is a “codified a conflict of interest” and that well-documented evidence of police corruption supports the need for additional constitutional safeguards for property owners.
Ultimately, if Alvarez prevails, and DAFPA is upheld, it will be an important victory for law enforcement agencies nation-wide who view civil forfeiture statutes as an important tool for combating drug crime. However, if Smith prevails, the case will be remanded to the district court to formulate an appropriate remedy that meets constitutional muster. If the Supreme Court chooses to lay out a broad constitutional rule rather than confine their holding only to DAFPA, the implications of the Court’s decision could be widespread, as many other states’ civil forfeiture statutes may be called into question.
This case presents the Court with an opportunity to clarify its due process jurisprudence relating to civil forfeiture proceedings, which currently give law enforcement agencies incredibly broad powers to seize personal property they determine is related to drug crime. Because these statutes have become such an important tool for law enforcement agencies in recent years, the implications of this decision will likely be widespread. On one hand, imposing greater restrictions on law enforcement agencies could inhibit their ability to effectively combat drug crime. On the other hand, without clear constitutional restraints, it is possible that law enforcement agencies could overstep their bounds, infringing on the fundamental rights of innocent property owners.
· Wex: Law about Due Process
· Wex: Law about Forfeiture
· Rules governing Krimstock hearings in New York City
· Though civil forfeiture proceedings are necessarily civil in nature, readers may find the LII Wex Overview of Criminal Procedure helpful to understand the basic investigative process, including probable cause and exceptions to the warrant requirement.