During oral arguments in Culley v. Marshall
, which centers on whether the Fourteenth Amendment's due process clause requires a state or local government to provide a probable-cause hearing where owners of seized property can ask to get it back, several justices seemed undecided about which legal precedent should be used to determine if or when that type of hearing should take place."It seems very strange that we're asking which of two precedents apply rather than what the due process clause commands. I mean, it's just a weird question presented, as far as I'm concerned," Justice Neil Gorsuch said. "I'm just wondering, is this the case that presents the due process problem that we should be worried about?"
Shay Dvoretzky of Skadden Arps Slate Meagher & Flom LLP noted the court had agreed to take the case, which Justice Gorsuch quickly acknowledged.
"Oh, I know we granted cert. It's all our fault. I hear you," he said, sparking laughter.
Law enforcement agencies confiscate billions of dollars in private property every year. Cash and used cars are among the most common types of property confiscated.
The legal question in the case — which involves class actions brought by two women, Halima Culley and Lena Sutton, whose cars were seized and kept by Alabama state officials for months despite neither being charged with a crime — is at the center of a circuit split.
Four federal courts of appeals — the Second, Fifth, Seventh and Ninth circuits — have applied a three-part due process analysis set forth in the high court's 1976 decision in Mathews v. Eldridge
. That precedent calls for courts to look at the interests of a person whose property is seized and at the injury caused by the forfeiture, to consider any substitute safeguard ensuring that the person isn't deprived of due process, and to take into account the administrative burden of the seizure and the interest of the government.The Eleventh Circuit, meanwhile, applies a "speedy trial" test that the high court devised in Barker v. Wingo
and adopted later in the context of civil forfeiture in United States v. $8,850 and United States v. Von Neumann .Arguing for Culley and Sutton on Monday, Dvoretzky said the Mathews precedent provides the right test because it strikes an appropriate balance between private and government interests.
Dvoretzky also said the precedents in Barker, $8,850 and Von Neumann were inadequate to address the cases involving the two petitioners, both of whom claimed to be innocent of the underlying crimes that led to their cars being confiscated
Justices Gorsuch, Sonia Sotomayor, Kentanji Brown Jackson and Elena Kagan all showed concern about civil forfeiture being abused by state and local authorities to generate funding streams for their operations.
In Alabama and 25 other states, governments get to keep all proceeds from the sale of seized property. Legal experts have long argued that creates an incentive for state and local authorities to confiscate as much as possible — a practice that they say causes thousands of people to see crucial property, including cars they need to get to work, taken from them, sometimes for months or years at a time.
"Clearly, there are some jurisdictions that are using civil forfeiture as funding mechanisms," Justice Gorsuch said Monday, but he added that he was unsure the facts in the Culley case pointed to an abuse by Alabama authorities.
Justice Sotomayor expressed similar doubts.
"Bad facts make bad law, and I fear we may be headed that way," she said.
Culley's car was seized during her son's arrest for marijuana possession. She sought damages in a 2019 suit in federal court alleging that the state of Alabama and the city of Satsuma violated her Eighth and 14th Amendment rights by failing to provide her with a prompt post-deprivation hearing to determine whether officials had a right to keep her vehicle while state civil forfeiture proceedings against her played out.
Sutton, whose car was seized after a friend was found with methamphetamine while driving it, brought similar claims against the town of Leesburg and the state of Alabama.
In September 2021, two U.S. district courts tossed the women's suits, saying their claims were foreclosed by precedent. On July 11, 2022, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the lower courts' rulings in a consolidated opinion. The Eleventh Circuit denied an en banc hearing in August.
Arguing on behalf of Alabama and the two municipal governments, Alabama Solicitor General Edmund Gerard LaCour Jr. called civil forfeiture a "critical tool" for deterring crime and rebuffed what he described as an effort by petitioners to make the process more burdensome by requiring post-seizure hearings.
"Their view cannot be squared with history or precedent, and their own cases show why a timely forfeiture proceeding is the meaningful opportunity to be heard at a meaningful time," he told the high court, emphasizing that one hearing — the forfeiture hearing — is enough. "As long as claimants can appear before judges promptly, then judges can strike that proper balance in each fact-bound case."
LaCour argued the high court should embrace the test spelled out in Barker and its subsequent related cases.
But both Justice Sotomayor and Justice Gorsuch said they feared that precedent didn't provide people whose property was seized enough opportunities to raise due process claims.
"There are arguments to be made that there are attempts to create processes that are deeply unfair and obviously so in order to retain the property for the coffers of the state," Justice Gorsuch said.
More than once during the oral arguments, the justices showed unease about what role the high court should play in shaping the civil forfeiture process further. In particular, they appeared doubtful about the appropriate timing of a post-seizure hearing.
"Is it practical," Justice Samuel Alito asked, "to expect the police to be able to prove within a short period of time that the owner of the car did not know that the person driving the car was going to have drugs in the car?"
Dvoretzky argued that timing largely depends on a host of factors — for instance, whether the seizure of the car impacts a person's livelihood or whether a government has an interest in keeping it — but that lower courts have generally required a post-seizure hearing within "a few weeks."
Ruling in Gerstein v. Pugh
in 1975, the Supreme Court said that, under the Fourth Amendement, a person charged with a crime should appear before a judge within 48 hours of arrest. But in the context of civil forfeiture, which involves the seizure of property rather than an arrest, a clear and uniform time frame for a hearing has yet to be defined.The Second Circuit ruled in the 2002 case Krimstock v. Kelly
, where Justice Sonia Sotomayor delivered the majority opinion, that the due process clause requires people whose cars have been seized to be granted a hearing within 10 business days.At the end of such a hearing — called a retention hearing, where parties make brief opening and closing arguments, evidence is presented and witnesses can be called to testify — judges make a determination of whether the government can retain the property while the civil forfeiture case plays out. The Sixth Circuit adopted a similar rule.
On the issue of the post-seizure hearing's timing, Justice Jackson sounded hesitant to set a specific standard in the Culley case. And Justice Amy Coney Barrett sounded concerned that broadly adopting the type of time frame afforded by Krimstock would create stronger protections for seized property than currently exist for people charged with crimes.
"You're asking … as the state points out, for more process, more robust process in this context of civil forfeiture than a criminal defendant gets," she told Dvoretzky.
Justice Sotomayor appeared annoyed by what she saw as an attempt by the petitioners to expand the legal inquiry in the case beyond the scope of its original question. That dealt only with whether post-seizure hearings are required under the 14th Amendment — and if they are, whether the speedy trial test in Barker or the Mathews rule applies.
"You are wearing out your welcome," she told Dvoretzky. "That's not the question before us."
LaCour said requiring retention hearings in Alabama would cause "serious problems" for the government and would have adverse consequences on the fight against crime
"You will gain speed, but you will lose accuracy," LaCour said. "You're going to have more property released to ... criminals. It's going to potentially be misused again, crime will pay more, and you will have more crime."
But Justice Sotomayor disputed that assumption.
"I doubt very much that criminal defendants from whom cars have been taken are going to seek a retention hearing, because whatever they say will be used against them in the criminal case," she said. "These cases are most important for one group of people — innocent owners — because they are people who claim they didn't know about the criminal activity."
The petitioners are represented by Shay Dvoretzky of Skadden Arps Slate Meagher & Flom LLP.
The Attorney General of Alabama and the Alabama municipalities of Leesburg and Satsuma are represented by Edmund Gerard LaCour Jr. of the Office of the Alabama Attorney General.
The case is Culley v. Marshall, case number 22-585, in the Supreme Court of the United States.
--Editing by Amy French.
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