July 26, 2024 • 33 mins
As our listeners probably know, civil forfeiture is legal practice that lets the government take and keep your property by claiming it’s connected to a crime, without needing to convict anyone. You can lose your property even when the government agrees you’re innocent.
Recently, the Supreme Court decided an important forfeiture case. While the outcome was disappointing, the way they decided it gives us hope that the high court is finally ready to rein in this form of theft-by-government.
Today we chat with IJ attorneys Dan Alban and Kirby Thomas-West to discuss Culley v. Marshall and what it means for the fight against civil forfeiture.
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Episode Transcript
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(00:00):
As our listeners probably know, civil forfeit is
a legal practice that lets the government take
and keep your property.
By claiming it's connected to a crime
without needing to convict anyone.
You can lose your property even when the
government agrees you're innocent.
Recently, the Supreme court decided an important forfeit
(00:20):
case.
While the outcome was disappointing the way they
decided it gives us hope that the high
court is finally ready to rein in this
form of theft by government.
I'm Kim Nor of the non nonprofit civil
Liberties law firm, the institute for just us.
And I'm here with c host Keith Neel,
and I Attorneys Dan Alba and Kirby Thomas
West to discuss C V Marshall, and what
(00:43):
it means for the fight against civil forfeit.
This is beyond the brief.
So Kirby, what was this case C v
Marshal about?
So Cole is a a forfeit case out
(01:04):
of Alabama, and the facts are very similar
to a lot of the kind of forfeit
cases that we see here at I.
You have 2 women, Hale Cali Lena Sutton,
both had vehicles that somebody else was driving
and did something wrong with. So in miss
cole case, her son was driving the car,
got stopped and had marijuana and a gun,
and the car was seized.
(01:25):
And in a sutton case, it was a
friend who was driving the car, and it
was found to have, a large quantity of
meth and the car was also seized.
Beyond that, there are some
distinctions that I think make these the facts
a little bit unique from actually many of
the forfeit cases we see.
1 is that in both cases, the person
who committed the crime was actually arrested and
(01:46):
charged.
And, you know, as supporters of I will
likely know often in forfeit cases very often
in forfeit cases. The actual wrong is not
ever arrested or charged, and and the government
focuses on the seizure and forfeit of the
property.
But in this case... The alleged wrong. The
alleged wrongdoing doing. That's right.
And in this case,
(02:07):
Miss C and Miss Sutton brought a lawsuit
challenging
the fact that they were not offered a
prompt hearing, a prompt posts seizure hearing after
the seizure of their cars to challenge
the possible forfeit and try to get their
cars back.
And that was a question that went up
the Us Supreme Court was does the Us
constitution require that people are given an opportunity
(02:27):
promptly after the seizure of a car or
a seizure of of property
to challenge that seizure,
a prompt post seizure hearing. So this might
be a good juncture to maybe take a
step back and explain kind of a brief
overview of how forfeit works, and particularly,
the distinction between a post seizure hearing and
a forfeit hearing.
Sure. So as most of our viewers probably
(02:49):
know, civil forfeit is a legal process
where law enforcement officers can seize property and
permanently keep it without necessarily convict someone of
a crime or even charging them with a
crime.
Now, it's important to understand the distinction between
the seizure and the forfeit because they're 2
different moments in time, often separated by several
(03:11):
years,
and
what the case of coli is about is
whether you get a hearing shortly after the
seizure. The seizure is what happens on the
side of the road or at the airport
or the the raid on the house, it's
the... When the police
encounter the person with the property that gets
seized They take possession of it and they
take it back to the police station. That's
(03:32):
the seizure.
Just because police have seized someone's property
doesn't mean that they have forfeit it. Doesn't
even mean that they're necessarily going to pursue
forfeit of that property. They could pursue civil
forfeit they could pursue criminal forfeit. They could
just be holding the property as evidence, and
they might return it later after it's no
longer needed as evidence. So the seizure is
(03:53):
the initial thing that happens.
Then there's a legal process. At the end
of that legal process,
which sometimes can drag on for years if
the person is contest the seizure, contest the
forfeit
and trying to get their property back ultimately,
the court can enter an order of Forfeit
that transfers
title of the property from the property owner
(04:15):
to the government. That's forfeit.
So what was it issuing Cole was shortly
after the seizure, short shortly after police took
possession of the vehicles,
were,
miss Cole,
and the other plaintiff were they
able to get a quick hearing within a
few weeks after the seizure, so that they
could get their car back and continue using
(04:36):
it while the case continued.
So is this pretty typical in forfeit cases
that innocent owners have to wait a long
time
before having this hearing or not having the
hearing at all.
It's extremely typical.
In our case in Detroit, I case out
of Detroit where we got a
(04:56):
successful ruling from the sixth circuit on this
very issue.
The individuals whose cars were seized were waiting
months before they ever got in front of
a judge.
So though in this case, And I think
that's part of the problem and why the
majority came out the way they did, Alabama
actually moved relatively quickly and initiating the forfeit
proceeding, the formal
legal proceeding that Dan was talking about.
(05:19):
In in many cases, that's just not the
case, and it's months and months or even
years before someone ever makes it to court
to to be able to challenge the forfeit.
So what did the the supreme court decide
in in the c case? So the majority
decided in a a decision by Justice Kavanaugh
that all the constitution requires is a timely
(05:39):
forfeit hearing. So again, not this posts seizure
hearing that Dan was describing, but the broader
forfeit hearing to make a final determination about
whether or not the government is able
to permanently take the car.
And they said that, you know, a timely
hearing. You have these 4 factors that you
look at, including, you know, did the claimant
and ask for a hearing,
(06:01):
was it?
The delay? How long was the delay. I
mean, in this case, part of the problem
was that the the claimants
did not move particularly quickly, 1 of them
defaulted, and the government, as I mentioned did
actually move fairly quickly, which is very unusual
in forfeit cases, but in 1 instance, they
filed the claim in about 10 days, I
think, and in 13 days and the other,
(06:23):
which is unheard of in cases that I've
seen in forfeit cases that I've seen.
But because of this, they said, you know,
that's all the constitution requires. They were ultimately
able to to get their forfeit hearing and
there's no requirement of a of a more
immediate prompt posts seizure hearing. I will say
though as a caveat, even in this, which
the the court seemed to view as a
(06:43):
model case. Right? Everything went well, and miss
Cole was able to get her car... Her
car back.
I was 20 months from the time of
seizure to the time where she was ultimately
able to get her car back. So even
where things are all working great in the
court's mind, you still have the situation where
it's almost 2 years without a car, which
is obviously devastating for so many people who
(07:05):
rely on their cars to get to work,
get their kids to school, get groceries, things
like that. So
you know, even in this that the court
paints is kind of a best case scenario,
you can see why the absence of that
prompt posts seizure hearing can be really problematic.
And, Dan, you were talking about sort of
the sequence of there's the seizure and then
there's question mark amount of time, and then
(07:27):
there's those forfeit process.
And so it seems to me that if
the court is saying, somebody has to ask
for a forfeit hearing
after their stuff is seized,
the government hasn't initiated the forfeit yet. So
it seems like you're asking for forfeit
before the government is actually doing the forfeit.
Am I misunderstanding something there? No. You're not.
(07:49):
And this is something that is sort of
inexplicable
in the opinion and also didn't make any
sense at oral argument. I attended the oral
argument and Coli. And
I I believe it was justice Thomas, who
was very skeptical who ended up concur in
a in a very interesting...
Concur with Justice Sc that but he asked
at 1 point of, miss Cole attorney? Why
(08:11):
didn't she just file a motion for summary
judgment on day 1?
And that's a really odd question
because... And it sort of reflects a lack
of understanding of how the whole process works.
Day 1 is the day of the seizure.
There is no pending case, and there isn't
a pending case
until the government pursues forfeit by filing a
civil forfeit complaint.
(08:32):
In many cases,
this is an unusual 1 where they were
the complaints were filed within a couple of
weeks of the seizure.
In many instances, especially, like, at the federal
level, it's typically 6 months later that the
Civil forfeit complaint gets filed. And that's only
after
the property owner has had to file a
claim.
They've had to wait 90 days to get
(08:53):
a notice. Like, there's there's all these things
that take place before
the the
complaint for Forfeit is even filed. And so
the idea that you could file a motion
for summary judgment on day 1 is extremely
puzzling. There's there's
not a case to file the motion for
summary judgment in. And even if in this
case, they had as soon as the the
(09:13):
government filed, the forfeit complaint then sought summary
judgment. There's no guarantee that you get any
kind of prompt on that. The court can
sit on that for as long as it
wants. In all likelihood. It's not going to
grant an immediate motion for for summary judgment.
There's there's still going to be discovery and
all sorts of things that take place. So
it was a pretty unrealistic,
(09:35):
sort of
hypothetical question by justice Thomas. It's kind of
I think influences the opinion
in unfortunate ways, but
you know, sometimes
that's what happens when, you know, Supreme court
justices are generalist. I don't think any of
them has specifically handled forfeit cases or lit
(09:56):
forfeit cases. So they're just sort of all
analyzing to how a normal civil case works,
and it's a bit different from how a
civil forfeit case works.
So, Kirby, you touched on this a little
bit earlier, not too long ago, we won
a pretty substantial at the sixth circuit where
they said you have to have or provide,
excuse me, a prompt posts seizure hearing within
2 weeks. And now you have c that
(10:18):
comes out and says well,
maybe you don't have to provide that at
all. What impact does C have on the
sixth circuit victory that we had just a
few months ago?
The short answer is we'll see. Right? And
so our... The 6 circuit decision is actually
even better than you're describing and that the
the panel said, yes, 2 weeks, and you
(10:38):
need to have a prop seizure hearing in
within 2 weeks. But 1 judge actually concur
and said it should really be in 48
hours. Mh. And I think what was going
on there is that the sixth circuit
Last dan was alluding to the Supreme court
justices didn't seem to understand. The ins and
outs of forfeit and the way that the
6 circuit did in the ingram decision and
from our detroit case and and how this
actually works and how necessary it is to
(11:00):
have a chance to be able to get
your car back.
But I say we'll see because although this
this decision obviously is clearly contradicts
the 6 circuit decision and saying,
actually no the the constitution doesn't require a
prompt seizure hearing. They did reiterate time and
again that again this timely forfeit hearing is
required.
(11:21):
And in Detroit, that was just totally absent.
And as I mentioned, that's true in so
many other jurisdictions as well, it was taking,
you know,
6 months a year more for for people
to get actual forfeit hearing or up to
4 to 6 months for the county to
even initiate any kind of forfeit proceedings. And
in the lead up to that, they would
be constantly
(11:41):
pressuring people to settle
and not challenge the forfeit, and they were
pressuring them to
you know, just just pay a little bit,
and then we'll we'll let it go and
and obviously, you know, kind of having this
background incentive of profit and financial motive to
to get them to just give up case
and before they actually got to the the
point of ins shooting a forfeit proceeding. So
(12:04):
though the holding itself contradicts a 6 circuit
holding, I think that there's still a lot
to be
settled and determined and and how this operating
in Detroit.
So So...
This is maybe slightly too pointed of a
question, but it sounds like a lot of
the justices kind of don't understand what's going
on in civil 4 shirt. Did any of
them
(12:24):
get it?
Yes. Happily.
So there was a descent
written by Justice So and join joined by
justices C and Jackson,
which was great and cited the institute justices.
Ami mic brief in the case.
Relied a lot on our research materials from
our strategic research department, which is fantastic.
(12:45):
But even more interestingly, I think, justice gorsuch
wrote a concur joined by Justice Thomas. So
for those who are counting, that's 5 justices
who who are on board with with these
kind of ideas,
saying, listen, I I agree with the majority
that in this specific case, I don't think
the constitution requires a prompt procedure hearing.
That said,
(13:06):
there are a lot of constitutional problems with
Civil forfeit.
Let me talk about some of them. And
he then, again cites a lot of I
materials in laying out all of these really
serious problems with, civil forfeit.
And I think really inviting future cases to
to address some of those constitutional deficiencies.
(13:28):
So what you're describing sort of in that
concur sounds like a descent to me. Like,
why is that a concur instead of just
a, you know, no. You're wrong?
I I think it ended up being a
concur
because
the majority opinion was written quite narrowly
on the subject of whether a separate preliminary
(13:50):
hearing is required.
And
that's what that's what the the majority opinion
says, no. There's... You know, you you're not
required to have this separate preliminary hearing, but
a timely hearing is required.
Interestingly, the
the concur by justice gorsuch
interprets that as being a prompt hearing. It
says a prompt hearing is required under the
(14:11):
constitution, in the first sentence of justices of
justice gorsuch such is
concur. So I think,
in part, the concur was written to ensure
that the majority opinion was read
quite narrowly.
And
I think it reflects the fact that although
you know, perhaps justice course justice Thomas, some
of the other justices have not practiced in
(14:33):
civil forfeit cases. They understand the big picture
concerns.
And that's what that concur is all about.
That this narrow issue that was before the
court, in this case, they didn't think, you
know, warranted
reversal, but there were a lot of other
concerns with civil forfeit. And Gorsuch is concur
(14:53):
sort of marches through a bunch of those
concerns,
from a due process perspective, from a historical
perspective,
comparing modern
uses of forfeit to historical uses of forfeit
and really suggests that the way forfeit
is done today is completely inconsistent with what
was allowed historically
(15:14):
and that the
sort of use of civil forfeit historically can
only really be justified
for areas of admiral,
customs, and I think the third 1 had
to do with taxes,
tax collection revenue law. And that outside of
those areas, it it seems
if not,
unconstitutional, absolutely, at least highly questionable. Of course,
(15:37):
you know, justices don't wanna lay out all
of their opinions, in a case where the
issue is not presented to them. So
it's kind of more of a invitation, I
think than
you know, a full thesis of of his
views.
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Well, speaking of the history of Civil forfeit.
I know that this was a focal point
(16:19):
of our Ami brief
Could you touch on how we got from
what sounds like a very limited narrow range
of historical forfeit to today's modern practice
where it seems to be that that civil
forfeit is widespread
in a in a a variety of different
areas. Sure. So
as I was saying, historically,
(16:40):
Forfeit was was something that came out of
admiral law.
It was used
to enforce customs
So if there were unpaid, duties and tariffs,
that sort of thing,
it it could be used to seize goods
that were smuggled into the country,
could be used to seize goods that had...
The taxes hadn't been paid on that sort
(17:01):
of thing.
But it was a pretty narrow area of
law. But
like, many things in government over time,
those powers,
the government exercises expand. And so they first
expanded significantly during prohibition,
and that they were used 2 c's, not
just ships that were bringing in,
(17:21):
you know, barrels of whiskey, but also,
trucks that were bringing them over the Canadian
border, for example,
and other
property that was somehow related to
smuggling of alcohol into the United States during
prohibition. But when Prohibition ended,
that was sort of, a time when civil
forfeit, again, kind of return to obscurity wasn't
(17:43):
used
very much
for a long time until the war on
drugs started up. And then,
with the war on drugs, the rationale of
Civil forfeit was applied to
not just boats on the high seas where,
you know, the the captain was in Portugal
or in Spain or somewhere that you couldn't
exercise jurisdiction, but it was it was used
(18:05):
to justify
seizing, cars, vehicles, cash from people traveling through
airports. And suddenly, everything was fair game. And
that was enabled by,
in particular, federal legislation that many states modeled
the 19 84 comprehensive crime control Act,
being the the worst of the and sort
(18:25):
of the ins indicator of of, much of
this activity.
And that that bill made it so that
there is a special forfeit fund that all
proceeds of federal forfeit
get put into, either, a, Doj assets forfeit
fund or a separate 1
with treasury. But these are funds that are
controlled by law enforcement. They're controlled either by
(18:47):
the Department of Justice or the Department of
Treasury, and
that means they can spend all the money
in those funds. However were they pleased. They
don't have to get appropriation. From Congress which
created? How much money are we talking here?
By the way, it's just a sort of
level set for? Sure. Sure. So,
today, we're talking a few billion dollars a
year.
A year. A year. Yeah. And,
(19:09):
over,
over the 20 year period that that we
studied
from 2000 to 20 19,
there was nearly 70000000000
dollars in
and forfeit proceeds deposited into these funds.
And so that creates tremendous financial incentive for
law enforcement to direct a lot of resources
(19:31):
toward seizing property for Forfeit,
and
that turn affects
you know, law enforcement,
regular activities and duties. And so
these incentives
really drive what's going on with Civil forfeit.
And these are incentives that did not exist
in the earliest days of the country, the
(19:53):
the, you know, the... Someone from the customs
or revenue department,
seized
un tax goods or smuggled goods.
Those were sold off and then the money
was put into the general treasury.
But today, that goes to funds that are
controlled exclusively by law enforcement and can only
be spent
on law enforcement purposes.
(20:13):
1 note about the amounts of money to
because some people hear those really high values
and they think, well, yeah. Of course, you
know the cartel have tons of money and
these drug king pins probably a couple busts,
and you get a hundred million dollars. But
if you look at the individual forfeit, what
you actually see is yes, It turns out
to be these vast sums of money, but
the individual forfeit are around an average of
(20:35):
1200 dollars.
So it really shows that what's getting caught
up in the forfeit process and the Civil
4 future process is not as law enforcement
will often say, you know, drug king pins,
cartel, these kind of criminal enterprises with vast
amount of resources and money. It's just people
with small values of property
that it's difficult, and sometimes just not worth
(20:56):
their time to challenge or try to get
back.
Well, Dan, as you were talking about the
history, and Kim, I don't know if you
picked up on this as well, but, you
know, a few weeks ago, we had Josh
Wind talking about the Open fields doctrine,
And when he was talking about how the
doctrine expanded, he also talked about
prohibition and the war on drugs,
is this a a coincidence or is is
(21:17):
this a historical cause and effect because it
sounds like there's a clear breaking point starting
around prohibition where you see a lot of
these traditional civil liberties start to disappear.
Yeah. I I think these are just examples
of the sort of classic ratchet effect of
government that once power expands, it almost never
is contract back to where it was before.
(21:38):
And so you only see the expansion of
government power and that is probably perhaps most
pronounced in in the area of the fourth
amendment, civil liberties, police powers, the actual law
enforcement police powers, where,
as you expand the sorts of things, they
can enforce against citizens,
that then opens the door for searches to
(21:59):
make sure that they're not doing these new
illegal things. So you know, if you're enforcing
laws against murder. You don't generally have to
go searching through someone's house to see if
they've murdered someone unless There's someone that's gone
missing and, you know, if the they're the
suspect and you have a warrant. But if
you're enforcing laws about, you know, personal use
(22:20):
of drugs or alcohol, then suddenly,
they could find crimes anywhere. Police could find
crimes anywhere and often try to use
the possibility of that. To open the door
for all sorts of searches and other activities
that,
frankly violate the the fourth amendment, but that
are often permitted under
judicial created exceptions to the fourth amendment.
(22:41):
So all of this sounds, you know, really
bleak. So to to pivot in a slightly
more positive direction.
The supreme Court a few years ago decided
a an I forfeit case
on behalf of a guy named Tyson Tim's?
So what happened there and does that kind
of intersect at all with this more recent
case?
(23:01):
Sure. So the The question and issue in
Tim's was actually does the eighth amendments excessive
fines clause, which prohibits the government from
imposing just as I said, an excessive fine?
Does that apply to the states as well,
which seems weird to many people that there
were still in incorporation cases happening this late
in the day, and also seemed weird to
(23:22):
the United States Supreme Court. They said, of
course, yes. Of course, state governments also cannot
impose excessive fines.
But in Tyson Tim's case, what happened was
he had, sold a very small amount dollar
value of drugs.
And for that offense, this state
sees as 40000 dollar land rover,
and took it permanently through Civil Forfeit.
(23:46):
Ultimately,
in the Indiana Supreme Court that was after
the it came back down from the the
Us Supreme court saying, yes, of course, the
excessive of fines clause supplies. The Indiana Supreme
Court said that that is excessive. That is
40000 dollars for a very, very small
small value drug deal is too much.
(24:06):
And, you know, Tyson and Tim's won the
day. And I think that This is a
a great case to bring up here because
it's talking about 1 of, I think the
constitutional deficiencies with modern forfeit.
That the court will be interested in hearing,
and that's just what what
impact does the excessive fines clause have on
forfeit and how should it strain governments when
(24:28):
they're pursuing forfeit.
So, obviously, in in Tyson case that came
down in his favor, but I think a
very interesting question is what happens when you
have people who actually didn't do anything at
all. And in fact, are not even alleged
to have done anything. Wrong. So people like
Miss Cole in miss Sutton, and people like
our clients in Detroit, who somebody else did
(24:50):
something wrong either with their car or in
their car or alleged to have done something
wrong in their car,
and they permanently lose their property then because
of the actions of someone else, and it's
hard to see how any punishment was for
someone who did nothing wrong
could not be found to be excessive. And
I think that that's a really important question
that the court's gonna have to grapple with
going forward. And I I take the colleague
(25:12):
concur and descent as an invitation to bring
cases like that.
Well, speaking of the descent.
When you compare it to the the majority
opinion in the case, the majority opinion focuses
a lot on history.
The descent focuses a lot on the effects
of forfeit today,
of course, both, at least the concur and
the the descent site I aye research.
(25:34):
And and I wonder if this might be
a a good juncture to talk about. How
the strategic research that I j has done
in the forfeit space combines with our mastery
of the law and history.
And if there's anything that that you guys
have picked up about that, interesting pattern that
some justices seem to like history, some justices
seem to be motivated more by the data
and what's happening today.
(25:54):
Yeah. So I I think an interesting thing
about the concur is it kind of merges
the 2. It talks about
the the history of forfeit and,
you know, that's something that we emphasized in
our Ami brief. But then,
Justice Gorsuch turns to talking about, the actual
facts on the ground as forfeit is conducted
today, kind of comparing and contrasting,
(26:15):
how forfeit was done at the, you know,
the time of the founding,
versus how it's done today. And
in in that section, and both Justice Sc
and the dissent opinion
site I j research, quite extensively, especially the
research on how
the incentives created by these forfeit funds,
(26:37):
drive law enforcement behavior and create the potential
for abuse. Obviously, we've done the the policing
for profit report, We've done 3 additions of
that report, and I believe we have a
a future edition coming out.
I think it's next year.
So that is a report that, you know,
gives a grade to every state as well
(26:57):
as the federal government on, their forfeit future
laws, but also documents
the amount of forfeit that's going on. That's
where
you'll find the figures about, you know, how
much is brought in in each year, and
the the 70000000000 dollar figure that I cited
earlier comes from that report.
But it also cites some of the the
research that we've done, on whether forfeit is
(27:19):
effective at
fighting crime or whether it's simply
used to raise revenue.
And
justice score gorsuch cites that favorably and says
it looks like.
It doesn't actually have much effect, but it
it is used by
local locality to make up for budget shortfall
falls. And that's something that came straight out
of of I j research. And
(27:42):
you know, it's it's affecting at least the
opinions of justice Gorsuch and Justice Thomas, who
signed on to the opinion, and I think
probably
the 3 justices who signed the dissent as
well.
Tim's wasn't the first
fourth showcase case that we asked the court
to review and we've asked the court to
review some forfeit cases since then, and, obviously,
it didn't take those up. So does C
(28:04):
kind of signal that maybe the court would
handle
those cases differently
now, and do we have anything kind of
in the pipeline to sort of seize that
opportunity?
Yeah. So I I think I think so.
I don't I don't know that the court
is saying it would have taken past cases
that it took a pass on. For instance,
I mean, we had a a case with
(28:26):
it a very similar issue in our Eagle
pass forfeit case,
that we lost in the fifth circuit. We
submitted a certain petition to, the, court, it
didn't grant it. That was about, the right
to have a prompt post seizure hearing, in
a federal forfeit case.
And in that case, frankly, the facts were
were much
better in terms of emphasizing the problems of
(28:46):
of not having that hearing. Our client Gerard,
Toronto had to wait 2 years
before he ever even received a a forfeit
notice. So
that case,
you know,
would have been a good vehicle for the
court to take up if it wanted to
address
the issue of of a prop posts procedure
you're hearing in a more
(29:07):
in a more common set of facts. But
I think the court invited,
at least the the concur was inviting
cases to go up, raising issues related to
the profit incentive, raising issues related to general
due process concerns, fourth amendment concerns,
problems related to excessive fines, like Kirby was
(29:27):
mentioning, and we have a number of cases
that are winding their way through the courts.
That we hope to get up to, the
Supreme Court. So it can address these issues
and and hopefully,
you know, follow the
follow the spirit of justice gorsuch concur, which
expresses grave concerns about, the constitutional of of
modern forfeit practices
(29:48):
given the variety of constitutional protections, it seems
to infringe upon. I think it's worth hearing
directly from justice gorsuch to what Dan is
talking about of this encouragement to bring these
cases. He says in his concur.
In future cases, with the benefit of full
briefing,
I hope we might begin the task of
assessing how well the profound changes in civil
forfeit practice. We have witnessed in recent decades
(30:11):
comp with the constitution and enduring guarantee that
no person shall be deprived of life, liberty
or property without due process of law. So
he's expressly saying I hope the court will
take these cases so that we can address
some of these issues that Dan's described.
And it's not gonna happen all at once.
Right? We're talking about a a whole bunch
of different problems here. There's due process. There's
(30:32):
this excessive problem. There's this... And it's an
owner problem. There's all of these kind of
other
pieces that work together, and it it sounds
like, you know, there's not gonna be some
silver bullet case that's the 1 that gets
rid of forfeit
altogether. So it's you know, incremental steps to
to get there. But what is our
end goal here in the in the long
(30:53):
term?
I think our our end goal is to
continue what we've been doing, which is identifying
specific
constitutional problems with forfeit and various
jurisdictions
and bringing legal challenges to those. But I
do think that this
will encourage us to bring more challenges. Right?
And and be creative about
(31:15):
making sure we're identifying all of the individual
ways in which a forfeit scheme is violating
people's individual...
Constitutional rights.
And, you know,
I I agree. I think this will be
a a process over time over many cases
and curtail the government forfeit future practices and
then saying, you know, actually, there are these
protections for innocent owners are actually a profit
(31:37):
motive is really constitutional problematic, and you can't
have that
and it will be a kind of step
by step process. Although, you know, never say
never. Who knows what the future has in
store? Yeah. I mean, our end goal. Our
big picture is we still want to end
civil forfeit. And we don't think the the
majority opinion really
has much of an effect on that 1
way or the other It's about a pretty
(31:58):
narrow issue whether this separate preliminary hearing is
required.
And the concur highlights all sorts of problems
with civil forfeit. Now, independently, each 1 of
those
types of claims might not end civil forfeit
by itself. But you bring several of those
cases, you get the court to hear them
over
several terms. And
(32:18):
pretty quickly, you could cabin civil forfeit
back to
perhaps its historical routes. And I think if
we were able to achieve that,
we'd probably get about as as far as
anyone could get in terms of of reigning
in civil forfeit.
If all that the the courts were allowing
was the historical use of civil forfeit and
(32:41):
admiral cases
where the United States did not have jurisdiction
over the owner of the ship,
then that would eliminate 99.99
percent of all forfeit, and
we'd consider that a tremendous victory. So
we've got to get these cases in front
of the court. We've gotta find some new
cases to, put back
(33:02):
you know, up in front of the court
as well. And get these cases through the
courts really as as quickly as possible because
I think we have an open invitation from,
at least 5 justices
that they wanna hear, cases challenging in a
lot of these different problematic aspects of civil
forfeit.
Awesome. Well, thank you so much, guys for
(33:24):
coming and talk with us about this today
and looking forward to ending civil forfeit.
Here here.
That's it for today. Thanks again for watching,
and don't forget to subscribe.
As our listeners probably know, civil forfeit is
a legal practice that lets the government take
and keep your property.
By claiming it's connected to a crime
without needing to convict anyone.
You can lose your property even when the
government agrees you're innocent.
Recently, the Supreme court decided an important forfeit
(00:20):
case.
While the outcome was disappointing the way they
decided it gives us hope that the high
court is finally ready to rein in this
form of theft by government.
I'm Kim Nor of the non nonprofit civil
Liberties law firm, the institute for just us.
And I'm here with c host Keith Neel,
and I Attorneys Dan Alba and Kirby Thomas
West to discuss C V Marshall, and what
(00:43):
it means for the fight against civil forfeit.
This is beyond the brief.
So Kirby, what was this case C v
Marshal about?
So Cole is a a forfeit case out
(01:04):
of Alabama, and the facts are very similar
to a lot of the kind of forfeit
cases that we see here at I.
You have 2 women, Hale Cali Lena Sutton,
both had vehicles that somebody else was driving
and did something wrong with. So in miss
cole case, her son was driving the car,
got stopped and had marijuana and a gun,
and the car was seized.
(01:25):
And in a sutton case, it was a
friend who was driving the car, and it
was found to have, a large quantity of
meth and the car was also seized.
Beyond that, there are some
distinctions that I think make these the facts
a little bit unique from actually many of
the forfeit cases we see.
1 is that in both cases, the person
who committed the crime was actually arrested and
(01:46):
charged.
And, you know, as supporters of I will
likely know often in forfeit cases very often
in forfeit cases. The actual wrong is not
ever arrested or charged, and and the government
focuses on the seizure and forfeit of the
property.
But in this case... The alleged wrong. The
alleged wrongdoing doing. That's right.
And in this case,
(02:07):
Miss C and Miss Sutton brought a lawsuit
challenging
the fact that they were not offered a
prompt hearing, a prompt posts seizure hearing after
the seizure of their cars to challenge
the possible forfeit and try to get their
cars back.
And that was a question that went up
the Us Supreme Court was does the Us
constitution require that people are given an opportunity
(02:27):
promptly after the seizure of a car or
a seizure of of property
to challenge that seizure,
a prompt post seizure hearing. So this might
be a good juncture to maybe take a
step back and explain kind of a brief
overview of how forfeit works, and particularly,
the distinction between a post seizure hearing and
a forfeit hearing.
Sure. So as most of our viewers probably
(02:49):
know, civil forfeit is a legal process
where law enforcement officers can seize property and
permanently keep it without necessarily convict someone of
a crime or even charging them with a
crime.
Now, it's important to understand the distinction between
the seizure and the forfeit because they're 2
different moments in time, often separated by several
(03:11):
years,
and
what the case of coli is about is
whether you get a hearing shortly after the
seizure. The seizure is what happens on the
side of the road or at the airport
or the the raid on the house, it's
the... When the police
encounter the person with the property that gets
seized They take possession of it and they
take it back to the police station. That's
(03:32):
the seizure.
Just because police have seized someone's property
doesn't mean that they have forfeit it. Doesn't
even mean that they're necessarily going to pursue
forfeit of that property. They could pursue civil
forfeit they could pursue criminal forfeit. They could
just be holding the property as evidence, and
they might return it later after it's no
longer needed as evidence. So the seizure is
(03:53):
the initial thing that happens.
Then there's a legal process. At the end
of that legal process,
which sometimes can drag on for years if
the person is contest the seizure, contest the
forfeit
and trying to get their property back ultimately,
the court can enter an order of Forfeit
that transfers
title of the property from the property owner
(04:15):
to the government. That's forfeit.
So what was it issuing Cole was shortly
after the seizure, short shortly after police took
possession of the vehicles,
were,
miss Cole,
and the other plaintiff were they
able to get a quick hearing within a
few weeks after the seizure, so that they
could get their car back and continue using
(04:36):
it while the case continued.
So is this pretty typical in forfeit cases
that innocent owners have to wait a long
time
before having this hearing or not having the
hearing at all.
It's extremely typical.
In our case in Detroit, I case out
of Detroit where we got a
(04:56):
successful ruling from the sixth circuit on this
very issue.
The individuals whose cars were seized were waiting
months before they ever got in front of
a judge.
So though in this case, And I think
that's part of the problem and why the
majority came out the way they did, Alabama
actually moved relatively quickly and initiating the forfeit
proceeding, the formal
legal proceeding that Dan was talking about.
(05:19):
In in many cases, that's just not the
case, and it's months and months or even
years before someone ever makes it to court
to to be able to challenge the forfeit.
So what did the the supreme court decide
in in the c case? So the majority
decided in a a decision by Justice Kavanaugh
that all the constitution requires is a timely
(05:39):
forfeit hearing. So again, not this posts seizure
hearing that Dan was describing, but the broader
forfeit hearing to make a final determination about
whether or not the government is able
to permanently take the car.
And they said that, you know, a timely
hearing. You have these 4 factors that you
look at, including, you know, did the claimant
and ask for a hearing,
(06:01):
was it?
The delay? How long was the delay. I
mean, in this case, part of the problem
was that the the claimants
did not move particularly quickly, 1 of them
defaulted, and the government, as I mentioned did
actually move fairly quickly, which is very unusual
in forfeit cases, but in 1 instance, they
filed the claim in about 10 days, I
think, and in 13 days and the other,
(06:23):
which is unheard of in cases that I've
seen in forfeit cases that I've seen.
But because of this, they said, you know,
that's all the constitution requires. They were ultimately
able to to get their forfeit hearing and
there's no requirement of a of a more
immediate prompt posts seizure hearing. I will say
though as a caveat, even in this, which
the the court seemed to view as a
(06:43):
model case. Right? Everything went well, and miss
Cole was able to get her car... Her
car back.
I was 20 months from the time of
seizure to the time where she was ultimately
able to get her car back. So even
where things are all working great in the
court's mind, you still have the situation where
it's almost 2 years without a car, which
is obviously devastating for so many people who
(07:05):
rely on their cars to get to work,
get their kids to school, get groceries, things
like that. So
you know, even in this that the court
paints is kind of a best case scenario,
you can see why the absence of that
prompt posts seizure hearing can be really problematic.
And, Dan, you were talking about sort of
the sequence of there's the seizure and then
there's question mark amount of time, and then
(07:27):
there's those forfeit process.
And so it seems to me that if
the court is saying, somebody has to ask
for a forfeit hearing
after their stuff is seized,
the government hasn't initiated the forfeit yet. So
it seems like you're asking for forfeit
before the government is actually doing the forfeit.
Am I misunderstanding something there? No. You're not.
(07:49):
And this is something that is sort of
inexplicable
in the opinion and also didn't make any
sense at oral argument. I attended the oral
argument and Coli. And
I I believe it was justice Thomas, who
was very skeptical who ended up concur in
a in a very interesting...
Concur with Justice Sc that but he asked
at 1 point of, miss Cole attorney? Why
(08:11):
didn't she just file a motion for summary
judgment on day 1?
And that's a really odd question
because... And it sort of reflects a lack
of understanding of how the whole process works.
Day 1 is the day of the seizure.
There is no pending case, and there isn't
a pending case
until the government pursues forfeit by filing a
civil forfeit complaint.
(08:32):
In many cases,
this is an unusual 1 where they were
the complaints were filed within a couple of
weeks of the seizure.
In many instances, especially, like, at the federal
level, it's typically 6 months later that the
Civil forfeit complaint gets filed. And that's only
after
the property owner has had to file a
claim.
They've had to wait 90 days to get
(08:53):
a notice. Like, there's there's all these things
that take place before
the the
complaint for Forfeit is even filed. And so
the idea that you could file a motion
for summary judgment on day 1 is extremely
puzzling. There's there's
not a case to file the motion for
summary judgment in. And even if in this
case, they had as soon as the the
(09:13):
government filed, the forfeit complaint then sought summary
judgment. There's no guarantee that you get any
kind of prompt on that. The court can
sit on that for as long as it
wants. In all likelihood. It's not going to
grant an immediate motion for for summary judgment.
There's there's still going to be discovery and
all sorts of things that take place. So
it was a pretty unrealistic,
(09:35):
sort of
hypothetical question by justice Thomas. It's kind of
I think influences the opinion
in unfortunate ways, but
you know, sometimes
that's what happens when, you know, Supreme court
justices are generalist. I don't think any of
them has specifically handled forfeit cases or lit
(09:56):
forfeit cases. So they're just sort of all
analyzing to how a normal civil case works,
and it's a bit different from how a
civil forfeit case works.
So, Kirby, you touched on this a little
bit earlier, not too long ago, we won
a pretty substantial at the sixth circuit where
they said you have to have or provide,
excuse me, a prompt posts seizure hearing within
2 weeks. And now you have c that
(10:18):
comes out and says well,
maybe you don't have to provide that at
all. What impact does C have on the
sixth circuit victory that we had just a
few months ago?
The short answer is we'll see. Right? And
so our... The 6 circuit decision is actually
even better than you're describing and that the
the panel said, yes, 2 weeks, and you
(10:38):
need to have a prop seizure hearing in
within 2 weeks. But 1 judge actually concur
and said it should really be in 48
hours. Mh. And I think what was going
on there is that the sixth circuit
Last dan was alluding to the Supreme court
justices didn't seem to understand. The ins and
outs of forfeit and the way that the
6 circuit did in the ingram decision and
from our detroit case and and how this
actually works and how necessary it is to
(11:00):
have a chance to be able to get
your car back.
But I say we'll see because although this
this decision obviously is clearly contradicts
the 6 circuit decision and saying,
actually no the the constitution doesn't require a
prompt seizure hearing. They did reiterate time and
again that again this timely forfeit hearing is
required.
(11:21):
And in Detroit, that was just totally absent.
And as I mentioned, that's true in so
many other jurisdictions as well, it was taking,
you know,
6 months a year more for for people
to get actual forfeit hearing or up to
4 to 6 months for the county to
even initiate any kind of forfeit proceedings. And
in the lead up to that, they would
be constantly
(11:41):
pressuring people to settle
and not challenge the forfeit, and they were
pressuring them to
you know, just just pay a little bit,
and then we'll we'll let it go and
and obviously, you know, kind of having this
background incentive of profit and financial motive to
to get them to just give up case
and before they actually got to the the
point of ins shooting a forfeit proceeding. So
(12:04):
though the holding itself contradicts a 6 circuit
holding, I think that there's still a lot
to be
settled and determined and and how this operating
in Detroit.
So So...
This is maybe slightly too pointed of a
question, but it sounds like a lot of
the justices kind of don't understand what's going
on in civil 4 shirt. Did any of
them
(12:24):
get it?
Yes. Happily.
So there was a descent
written by Justice So and join joined by
justices C and Jackson,
which was great and cited the institute justices.
Ami mic brief in the case.
Relied a lot on our research materials from
our strategic research department, which is fantastic.
(12:45):
But even more interestingly, I think, justice gorsuch
wrote a concur joined by Justice Thomas. So
for those who are counting, that's 5 justices
who who are on board with with these
kind of ideas,
saying, listen, I I agree with the majority
that in this specific case, I don't think
the constitution requires a prompt procedure hearing.
That said,
(13:06):
there are a lot of constitutional problems with
Civil forfeit.
Let me talk about some of them. And
he then, again cites a lot of I
materials in laying out all of these really
serious problems with, civil forfeit.
And I think really inviting future cases to
to address some of those constitutional deficiencies.
(13:28):
So what you're describing sort of in that
concur sounds like a descent to me. Like,
why is that a concur instead of just
a, you know, no. You're wrong?
I I think it ended up being a
concur
because
the majority opinion was written quite narrowly
on the subject of whether a separate preliminary
(13:50):
hearing is required.
And
that's what that's what the the majority opinion
says, no. There's... You know, you you're not
required to have this separate preliminary hearing, but
a timely hearing is required.
Interestingly, the
the concur by justice gorsuch
interprets that as being a prompt hearing. It
says a prompt hearing is required under the
(14:11):
constitution, in the first sentence of justices of
justice gorsuch such is
concur. So I think,
in part, the concur was written to ensure
that the majority opinion was read
quite narrowly.
And
I think it reflects the fact that although
you know, perhaps justice course justice Thomas, some
of the other justices have not practiced in
(14:33):
civil forfeit cases. They understand the big picture
concerns.
And that's what that concur is all about.
That this narrow issue that was before the
court, in this case, they didn't think, you
know, warranted
reversal, but there were a lot of other
concerns with civil forfeit. And Gorsuch is concur
(14:53):
sort of marches through a bunch of those
concerns,
from a due process perspective, from a historical
perspective,
comparing modern
uses of forfeit to historical uses of forfeit
and really suggests that the way forfeit
is done today is completely inconsistent with what
was allowed historically
(15:14):
and that the
sort of use of civil forfeit historically can
only really be justified
for areas of admiral,
customs, and I think the third 1 had
to do with taxes,
tax collection revenue law. And that outside of
those areas, it it seems
if not,
unconstitutional, absolutely, at least highly questionable. Of course,
(15:37):
you know, justices don't wanna lay out all
of their opinions, in a case where the
issue is not presented to them. So
it's kind of more of a invitation, I
think than
you know, a full thesis of of his
views.
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(15:58):
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Well, speaking of the history of Civil forfeit.
I know that this was a focal point
(16:19):
of our Ami brief
Could you touch on how we got from
what sounds like a very limited narrow range
of historical forfeit to today's modern practice
where it seems to be that that civil
forfeit is widespread
in a in a a variety of different
areas. Sure. So
as I was saying, historically,
(16:40):
Forfeit was was something that came out of
admiral law.
It was used
to enforce customs
So if there were unpaid, duties and tariffs,
that sort of thing,
it it could be used to seize goods
that were smuggled into the country,
could be used to seize goods that had...
The taxes hadn't been paid on that sort
(17:01):
of thing.
But it was a pretty narrow area of
law. But
like, many things in government over time,
those powers,
the government exercises expand. And so they first
expanded significantly during prohibition,
and that they were used 2 c's, not
just ships that were bringing in,
(17:21):
you know, barrels of whiskey, but also,
trucks that were bringing them over the Canadian
border, for example,
and other
property that was somehow related to
smuggling of alcohol into the United States during
prohibition. But when Prohibition ended,
that was sort of, a time when civil
forfeit, again, kind of return to obscurity wasn't
(17:43):
used
very much
for a long time until the war on
drugs started up. And then,
with the war on drugs, the rationale of
Civil forfeit was applied to
not just boats on the high seas where,
you know, the the captain was in Portugal
or in Spain or somewhere that you couldn't
exercise jurisdiction, but it was it was used
(18:05):
to justify
seizing, cars, vehicles, cash from people traveling through
airports. And suddenly, everything was fair game. And
that was enabled by,
in particular, federal legislation that many states modeled
the 19 84 comprehensive crime control Act,
being the the worst of the and sort
(18:25):
of the ins indicator of of, much of
this activity.
And that that bill made it so that
there is a special forfeit fund that all
proceeds of federal forfeit
get put into, either, a, Doj assets forfeit
fund or a separate 1
with treasury. But these are funds that are
controlled by law enforcement. They're controlled either by
(18:47):
the Department of Justice or the Department of
Treasury, and
that means they can spend all the money
in those funds. However were they pleased. They
don't have to get appropriation. From Congress which
created? How much money are we talking here?
By the way, it's just a sort of
level set for? Sure. Sure. So,
today, we're talking a few billion dollars a
year.
A year. A year. Yeah. And,
(19:09):
over,
over the 20 year period that that we
studied
from 2000 to 20 19,
there was nearly 70000000000
dollars in
and forfeit proceeds deposited into these funds.
And so that creates tremendous financial incentive for
law enforcement to direct a lot of resources
(19:31):
toward seizing property for Forfeit,
and
that turn affects
you know, law enforcement,
regular activities and duties. And so
these incentives
really drive what's going on with Civil forfeit.
And these are incentives that did not exist
in the earliest days of the country, the
(19:53):
the, you know, the... Someone from the customs
or revenue department,
seized
un tax goods or smuggled goods.
Those were sold off and then the money
was put into the general treasury.
But today, that goes to funds that are
controlled exclusively by law enforcement and can only
be spent
on law enforcement purposes.
(20:13):
1 note about the amounts of money to
because some people hear those really high values
and they think, well, yeah. Of course, you
know the cartel have tons of money and
these drug king pins probably a couple busts,
and you get a hundred million dollars. But
if you look at the individual forfeit, what
you actually see is yes, It turns out
to be these vast sums of money, but
the individual forfeit are around an average of
(20:35):
1200 dollars.
So it really shows that what's getting caught
up in the forfeit process and the Civil
4 future process is not as law enforcement
will often say, you know, drug king pins,
cartel, these kind of criminal enterprises with vast
amount of resources and money. It's just people
with small values of property
that it's difficult, and sometimes just not worth
(20:56):
their time to challenge or try to get
back.
Well, Dan, as you were talking about the
history, and Kim, I don't know if you
picked up on this as well, but, you
know, a few weeks ago, we had Josh
Wind talking about the Open fields doctrine,
And when he was talking about how the
doctrine expanded, he also talked about
prohibition and the war on drugs,
is this a a coincidence or is is
(21:17):
this a historical cause and effect because it
sounds like there's a clear breaking point starting
around prohibition where you see a lot of
these traditional civil liberties start to disappear.
Yeah. I I think these are just examples
of the sort of classic ratchet effect of
government that once power expands, it almost never
is contract back to where it was before.
(21:38):
And so you only see the expansion of
government power and that is probably perhaps most
pronounced in in the area of the fourth
amendment, civil liberties, police powers, the actual law
enforcement police powers, where,
as you expand the sorts of things, they
can enforce against citizens,
that then opens the door for searches to
(21:59):
make sure that they're not doing these new
illegal things. So you know, if you're enforcing
laws against murder. You don't generally have to
go searching through someone's house to see if
they've murdered someone unless There's someone that's gone
missing and, you know, if the they're the
suspect and you have a warrant. But if
you're enforcing laws about, you know, personal use
(22:20):
of drugs or alcohol, then suddenly,
they could find crimes anywhere. Police could find
crimes anywhere and often try to use
the possibility of that. To open the door
for all sorts of searches and other activities
that,
frankly violate the the fourth amendment, but that
are often permitted under
judicial created exceptions to the fourth amendment.
(22:41):
So all of this sounds, you know, really
bleak. So to to pivot in a slightly
more positive direction.
The supreme Court a few years ago decided
a an I forfeit case
on behalf of a guy named Tyson Tim's?
So what happened there and does that kind
of intersect at all with this more recent
case?
(23:01):
Sure. So the The question and issue in
Tim's was actually does the eighth amendments excessive
fines clause, which prohibits the government from
imposing just as I said, an excessive fine?
Does that apply to the states as well,
which seems weird to many people that there
were still in incorporation cases happening this late
in the day, and also seemed weird to
(23:22):
the United States Supreme Court. They said, of
course, yes. Of course, state governments also cannot
impose excessive fines.
But in Tyson Tim's case, what happened was
he had, sold a very small amount dollar
value of drugs.
And for that offense, this state
sees as 40000 dollar land rover,
and took it permanently through Civil Forfeit.
(23:46):
Ultimately,
in the Indiana Supreme Court that was after
the it came back down from the the
Us Supreme court saying, yes, of course, the
excessive of fines clause supplies. The Indiana Supreme
Court said that that is excessive. That is
40000 dollars for a very, very small
small value drug deal is too much.
(24:06):
And, you know, Tyson and Tim's won the
day. And I think that This is a
a great case to bring up here because
it's talking about 1 of, I think the
constitutional deficiencies with modern forfeit.
That the court will be interested in hearing,
and that's just what what
impact does the excessive fines clause have on
forfeit and how should it strain governments when
(24:28):
they're pursuing forfeit.
So, obviously, in in Tyson case that came
down in his favor, but I think a
very interesting question is what happens when you
have people who actually didn't do anything at
all. And in fact, are not even alleged
to have done anything. Wrong. So people like
Miss Cole in miss Sutton, and people like
our clients in Detroit, who somebody else did
(24:50):
something wrong either with their car or in
their car or alleged to have done something
wrong in their car,
and they permanently lose their property then because
of the actions of someone else, and it's
hard to see how any punishment was for
someone who did nothing wrong
could not be found to be excessive. And
I think that that's a really important question
that the court's gonna have to grapple with
going forward. And I I take the colleague
(25:12):
concur and descent as an invitation to bring
cases like that.
Well, speaking of the descent.
When you compare it to the the majority
opinion in the case, the majority opinion focuses
a lot on history.
The descent focuses a lot on the effects
of forfeit today,
of course, both, at least the concur and
the the descent site I aye research.
(25:34):
And and I wonder if this might be
a a good juncture to talk about. How
the strategic research that I j has done
in the forfeit space combines with our mastery
of the law and history.
And if there's anything that that you guys
have picked up about that, interesting pattern that
some justices seem to like history, some justices
seem to be motivated more by the data
and what's happening today.
(25:54):
Yeah. So I I think an interesting thing
about the concur is it kind of merges
the 2. It talks about
the the history of forfeit and,
you know, that's something that we emphasized in
our Ami brief. But then,
Justice Gorsuch turns to talking about, the actual
facts on the ground as forfeit is conducted
today, kind of comparing and contrasting,
(26:15):
how forfeit was done at the, you know,
the time of the founding,
versus how it's done today. And
in in that section, and both Justice Sc
and the dissent opinion
site I j research, quite extensively, especially the
research on how
the incentives created by these forfeit funds,
(26:37):
drive law enforcement behavior and create the potential
for abuse. Obviously, we've done the the policing
for profit report, We've done 3 additions of
that report, and I believe we have a
a future edition coming out.
I think it's next year.
So that is a report that, you know,
gives a grade to every state as well
(26:57):
as the federal government on, their forfeit future
laws, but also documents
the amount of forfeit that's going on. That's
where
you'll find the figures about, you know, how
much is brought in in each year, and
the the 70000000000 dollar figure that I cited
earlier comes from that report.
But it also cites some of the the
research that we've done, on whether forfeit is
(27:19):
effective at
fighting crime or whether it's simply
used to raise revenue.
And
justice score gorsuch cites that favorably and says
it looks like.
It doesn't actually have much effect, but it
it is used by
local locality to make up for budget shortfall
falls. And that's something that came straight out
of of I j research. And
(27:42):
you know, it's it's affecting at least the
opinions of justice Gorsuch and Justice Thomas, who
signed on to the opinion, and I think
probably
the 3 justices who signed the dissent as
well.
Tim's wasn't the first
fourth showcase case that we asked the court
to review and we've asked the court to
review some forfeit cases since then, and, obviously,
it didn't take those up. So does C
(28:04):
kind of signal that maybe the court would
handle
those cases differently
now, and do we have anything kind of
in the pipeline to sort of seize that
opportunity?
Yeah. So I I think I think so.
I don't I don't know that the court
is saying it would have taken past cases
that it took a pass on. For instance,
I mean, we had a a case with
(28:26):
it a very similar issue in our Eagle
pass forfeit case,
that we lost in the fifth circuit. We
submitted a certain petition to, the, court, it
didn't grant it. That was about, the right
to have a prompt post seizure hearing, in
a federal forfeit case.
And in that case, frankly, the facts were
were much
better in terms of emphasizing the problems of
(28:46):
of not having that hearing. Our client Gerard,
Toronto had to wait 2 years
before he ever even received a a forfeit
notice. So
that case,
you know,
would have been a good vehicle for the
court to take up if it wanted to
address
the issue of of a prop posts procedure
you're hearing in a more
(29:07):
in a more common set of facts. But
I think the court invited,
at least the the concur was inviting
cases to go up, raising issues related to
the profit incentive, raising issues related to general
due process concerns, fourth amendment concerns,
problems related to excessive fines, like Kirby was
(29:27):
mentioning, and we have a number of cases
that are winding their way through the courts.
That we hope to get up to, the
Supreme Court. So it can address these issues
and and hopefully,
you know, follow the
follow the spirit of justice gorsuch concur, which
expresses grave concerns about, the constitutional of of
modern forfeit practices
(29:48):
given the variety of constitutional protections, it seems
to infringe upon. I think it's worth hearing
directly from justice gorsuch to what Dan is
talking about of this encouragement to bring these
cases. He says in his concur.
In future cases, with the benefit of full
briefing,
I hope we might begin the task of
assessing how well the profound changes in civil
forfeit practice. We have witnessed in recent decades
(30:11):
comp with the constitution and enduring guarantee that
no person shall be deprived of life, liberty
or property without due process of law. So
he's expressly saying I hope the court will
take these cases so that we can address
some of these issues that Dan's described.
And it's not gonna happen all at once.
Right? We're talking about a a whole bunch
of different problems here. There's due process. There's
(30:32):
this excessive problem. There's this... And it's an
owner problem. There's all of these kind of
other
pieces that work together, and it it sounds
like, you know, there's not gonna be some
silver bullet case that's the 1 that gets
rid of forfeit
altogether. So it's you know, incremental steps to
to get there. But what is our
end goal here in the in the long
(30:53):
term?
I think our our end goal is to
continue what we've been doing, which is identifying
specific
constitutional problems with forfeit and various
jurisdictions
and bringing legal challenges to those. But I
do think that this
will encourage us to bring more challenges. Right?
And and be creative about
(31:15):
making sure we're identifying all of the individual
ways in which a forfeit scheme is violating
people's individual...
Constitutional rights.
And, you know,
I I agree. I think this will be
a a process over time over many cases
and curtail the government forfeit future practices and
then saying, you know, actually, there are these
protections for innocent owners are actually a profit
(31:37):
motive is really constitutional problematic, and you can't
have that
and it will be a kind of step
by step process. Although, you know, never say
never. Who knows what the future has in
store? Yeah. I mean, our end goal. Our
big picture is we still want to end
civil forfeit. And we don't think the the
majority opinion really
has much of an effect on that 1
way or the other It's about a pretty
(31:58):
narrow issue whether this separate preliminary hearing is
required.
And the concur highlights all sorts of problems
with civil forfeit. Now, independently, each 1 of
those
types of claims might not end civil forfeit
by itself. But you bring several of those
cases, you get the court to hear them
over
several terms. And
(32:18):
pretty quickly, you could cabin civil forfeit
back to
perhaps its historical routes. And I think if
we were able to achieve that,
we'd probably get about as as far as
anyone could get in terms of of reigning
in civil forfeit.
If all that the the courts were allowing
was the historical use of civil forfeit and
(32:41):
admiral cases
where the United States did not have jurisdiction
over the owner of the ship,
then that would eliminate 99.99
percent of all forfeit, and
we'd consider that a tremendous victory. So
we've got to get these cases in front
of the court. We've gotta find some new
cases to, put back
(33:02):
you know, up in front of the court
as well. And get these cases through the
courts really as as quickly as possible because
I think we have an open invitation from,
at least 5 justices
that they wanna hear, cases challenging in a
lot of these different problematic aspects of civil
forfeit.
Awesome. Well, thank you so much, guys for
(33:24):
coming and talk with us about this today
and looking forward to ending civil forfeit.
Here here.
That's it for today. Thanks again for watching,
and don't forget to subscribe.
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