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RT4’s Amicus Brief in Culley v. Marshall

Mahesha P. Subbaraman, our Litigation Working Group chair, recently filed an amicus curiae brief on behalf of Restore the Fourth in Culley v Marshall, an important civil asset forfeiture case for vehicle owners.

Summary of Culley v. Marshall

In 2019, law enforcement officers seized the vehicle of Alabama resident Halima Culley. On February 17, 2019, Culley’s son was pulled over while driving her car and he was arrested for alleged possession of marijuana. Culley’s vehicle was seized under Alabama laws which allow the state to hold, subject to civil forfeiture proceedings, property used to facilitate drug crimes. The State of Alabama filed a forfeiture action in state court on February 27 against Culley’s vehicle.

Culley was granted summary judgement on Alabama’s civil forfeiture actions based on the innocent-owner defense – that the criminal activity that led to property seizure was unknown to the owner. The summary judgement was granted after 20 months had passed, in which the entire time Culley was deprived of her vehicle. The only remedy Culley had prior to the summary judgement was to pay a bond worth double the value of the seized vehicle, a hefty price that most Americans could not afford.

Culley filed a class-action lawsuit claiming that civil-asset forfeiture proceedings under Alabama law violated the Due Process clause under the Fourteenth Amendment by not providing prompt post-deprivation hearings for defendants.

The issue at hand in Culley is whether a state or local government is obligated to provide a “post-seizure probable cause hearing prior to a statutory judicial-forfeiture proceeding” to fulfill due process requirements. Additionally, if a hearing is required, should it be conducted as outlined in United States v. $8,850 and Barker v. Wingo, or as set forth in Mathews v. Eldridge?

Put more simply, is a state or local government required to hold a retention hearing promptly in which they justify the seizure of property? Restore the Fourth says yes, and has history on its side.

Restore the Fourth’s Brief

Due process entitles vehicle owners to retention hearings when the government seizes a vehicle in the name of civil forfeiture. A retention hearing is defined on page three of our brief: “…an opportunity to be heard by a judge (or other neutral decision maker) on whether Petitioners could retain their vehicles while the government litigated forfeiture cases against the vehicles.”

Retention hearings protect the owner’s interest in continued possession of their vehicle while forfeiture litigation is pending – litigation that often takes long periods of time. These hearings also allow for early detection and termination of erroneous seizures, thus preventing unjust hardships for vehicle owners at minor cost to the government.

Our brief takes a long, historical view of civil asset forfeiture, going back to the Magna Carta and looking forward. We look toward common law because the Constitution includes the requirement of due process to “ensure that the people’s rights are never any less secure against governmental invasion than they were at common law” (page 5).

Common law has afforded owners a right equivalent to retention hearings in the form of “writs of delivery,” a procedural device that allows owners of property to request custody of seized property by enabling the Court of Exchequer “…to direct the delivery of goods out of the King’s possessions” (page 12). Indeed, even in 17th century England, this procedural right extended to vehicles – “every horse, and other cattle and carriage” (see page 10). Common law held private property in very high regard, and we should not treat it any differently today.

In sum, whether they be writs of delivery or retention hearings, these procedures are a necessary condition for full due process. Retention hearings provide opportunity for error correction, hardship prevention, and prevent and redress government delay in forfeiture cases. We agree with counsel for Petitioners, Mr. Dvoretzky, that the Court should apply Mathews v. Eldridge (1976) to assess the sufficiency of process in civil forfeiture proceedings. Mathews provides a balancing test between governmental interest, private interest, and the risk of erroneous deprivation through available procedures as well as the value of additional safeguards. Retention hearings fulfill these criterion at minimal cost to the government.

Our issue brief’s historical vantage point proved valuable for the Justices in hearing this case. Below, Justice Sotomayor cites our brief during oral argument!

Below is our full amicus brief:

The Bottom Line

Anyone whose property is seized by the government should be afforded adequate due process. This includes both a timely hearing as well as a hearing to seek and retain custody of the seized property prior to government litigation. This is especially true of innocent people whose property was seized with no link to criminal activity. The government should not (and under the Constitution, cannot) seize and hoard a U.S. person’s property for their own financial gain without adhering to proper legal procedures that do not place undue burden on the property owner. As it stands, civil asset forfeiture proceedings in the U.S. betray the fundamental protections of the Fourth Amendment to be secure in one’s property. 

As we write in our own issue brief on civil asset forfeiture:

Civil asset forfeiture turns the usual elements of due process on their head. It requires the owners of the property to prove an asset’s innocence of being used in illegal activity in order to get it back. In most states, you do not even have to be charged or convicted of a crime in order to have property seized and forfeited. Property can also be seized regardless of who was suspected of committing a crime with it. This means that any third party who uses the property or assets for suspected “illegal activity” can put the owner at risk of having the property seized and forfeited. One couple in Philadelphia lost their home to civil asset forfeiture after their son sold $40 of drugs from their porch.

Law enforcement often also offers victims of civil forfeiture “cash for freedom” deals, allowing suspects to sign their property over to police departments in order to avoid being charged with a crime. A police department out of Tenaha, TX offered a couple a waiver where they could sign over their property and go free, or could choose to keep their property and face being charged with money laundering and have their children taken by Child Protective Services. Again, this couple had not been charged or convicted of a crime. Just as it’s hard to see how civil asset forfeiture in general differs from theft, it’s hard to see how “cash for freedom” practices differ from bribery.