Tag: civil asset forfeiture

In February 2019, police in Satsuma, Alabama, pulled over Halima Culley’s son and arrested him for possession of marijuana and drug paraphernalia. They seized the car, which belonged to Culley, and tried to keep it under Alabama’s civil forfeiture law. Although Culley ultimately got her car back as an “innocent owner,” that process took 20 months.

That same month, a friend borrowed Lena Sutton’s car. He was pulled over in Leesburg, Alabama, and arrested for methamphetamine possession. Like Culley, Sutton successfully invoked the “innocent owner” defense to get her car back after police seized it. But that did not happen for over a year. In the meantime, her lawyer told the U.S. Supreme Court on Monday, “she missed medical appointments, she wasn’t able to keep a job, she wasn’t able to pay a cell phone bill, and as a result” she “was not in a position to be able to communicate about the forfeiture proceedings.”

In separate class-action lawsuits, Culley and Sutton unsuccessfully argued that they and similarly situated property owners have a due process right to a prompt post-seizure hearing aimed at determining whether they can keep their cars while a forfeiture case is pending. The issue for the Supreme Court in Culley v. Marshall is which standard to apply in deciding that question. During oral arguments in the case, several justices showed a heartening awareness of the injustices inflicted by civil asset forfeiture, a system of legalized larceny that allows law enforcement agencies to pad their budgets by confiscating allegedly crime-tainted property.

“I’m very sympathetic [to] the problem that you’ve identified,” Justice Neil Gorsuch, who has previously expressed concern about civil forfeiture abuses, told Shay Dvoretzky, the attorney representing Culley and Sutton. “Clearly, there are some jurisdictions that are using civil forfeiture as funding mechanisms,” he noted. They therefore are not keen to expedite innocent owners’ challenges, he said, and may impose onerous requirements, such as telling forfeiture victims, “You can get your car back if you call between 3 and 5 p.m. on a Tuesday and speak with someone who is never available.”

In other words, Gorsuch said, “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.” He also noted “allegations before us” that “some states, because law enforcement uses these forfeitures to fund themselves,” have been known to demand that an owner surrender some of his property in exchange for getting the rest back or “engage in other concessions outside of regular process.” The due process test that Alabama prefers “would seem to strip the courts of tools to deal with those kinds of cases,” he told Alabama Solicitor General Edmund G. LaCour Jr., who argued that “the forfeiture proceeding without more provides the post-seizure hearing required by due process.”

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Gerardo Serrano and Stephanie Wilson may have little in common. But there is at least one major tie that binds them: The government seized their vehicles, never charged either of them with a crime, and, most pertinently, made them wait years before resolving their cases.

It is not uncommon for victims of civil forfeiture—the practice that allows law enforcement to take people’s assets without having to prove the owner was guilty of a crime—to endure protracted delays before they have the opportunity to even step foot in a courtroom and defend themselves. The U.S. Supreme Court will soon hear Culley v. Attorney General of Alabama and decide if those who find themselves in that situation are entitled to a probable cause hearing after the seizure and, if so, how speedily it must happen.

That the highest court in the country has to rule on whether people get such a hearing is an apt indictment of how unaccountable civil forfeiture has become.

Serrano’s case is instructive. In September 2015, while traveling to Mexico, he stopped at the border in Eagle Pass, Texas, to take pictures. That upset some Customs and Border Protection (CBP) agents, who demanded he surrender the password to his cellphone. Serrano refused. The agents then searched his new Ford F-250 truck, found five stray bullets, and accused him of smuggling “munitions of war.” Serrano had a concealed carry permit, and there was no firearm in his vehicle. The officers confiscated his car anyway.

But the fragile nature of the allegation didn’t matter, because it would never be subject to scrutiny. The government didn’t press charges. They did, however, keep his vehicle for two years, without holding a hearing where he could contest the seizure—or without ever filing a formal forfeiture complaint. 

The dearth of due process protections was devastating. Serrano paid the government $3,800—10 percent of the car’s value—as a requirement to fight the move in federal court; he was met with more radio silence, even after the feds cashed the check. A Kentucky resident, he subsequently spent thousands of dollars on rental cars while his vehicle sat halfway across the country, locked in a Texas parking lot.

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