Civil Forfeiture in Culley v. Marshall

Episode Notes

Transcript

Kirby Thomas West:

I think this is something that comes through in both Justice Gorsuch’s concurrence and in the dissent in Culley that this is an area of the law that is just rife with abuse and totally bereft of constitutional protections.

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Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. Your listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I write a blog named May It Please the court and have two books out titled How To Get Sued in the Sled. And speaking of books, I’ve got a new book releasing this month entitled, how Would You Decide 10 Famous Trials That Changed History? And that book is also going to be a new podcast called In Dispute, 10 famous trials that Changed History. We’ll be sharing more about that here in the coming weeks, and you’ll be able to find that in May, which will soon be featured here on the Legal Talk Network on May 9th, 2023. In a six to three ruling, the Supreme Court of the United States ruled in favor of the state of Alabama in the civil forfeiture case, Culley v Marshall. This case involves two petitioners, Halima Culley and Lena Sutton who loaned their cars to others who were subsequently arrested for drug related offenses.

The cars were seized under Alabama’s civil forfeiture law, which allowed for the seizure of a car incident to an arrest as long as the state promptly initiated a forfeiture case. Colley and Sutton ultimately sued the state of Alabama claiming that they should have received a preliminary hearing claiming a violation of their rights under the eighth and 14th amendments. The district court of the US appeals for the 11th circuit and SCOTUS all disagreed with Culley and Sutton with Justice Kavanaugh writing. For the majority that in civil forfeiture cases, the due process clause requires a timely forfeiture hearing but does not require a separate preliminary hearing. So today on Lawyer 2 Lawyer, we’ll be discussing the recent SCOTUS decision in Ley versus Marshall. We will spotlight civil forfeiture and the potential impact of this ruling and to help us better understand today’s topic, we’re joined by attorney Kirby Thomas West from the Institute for Justice and the co-Director of IJs National Initiative to End Forfeiture Abuse. She litigates cases protecting property rights, first Amendment rights and educational choice. Kirby’s property Rights practice focuses on civil forfeiture. She is currently the lead attorney in I J’S class Action Challenge to the Unconstitutional Vehicle Forfeiture program in Wayne County, Michigan, and has testified about forfeiture abuse before the US House of Representatives. Welcome to the show, Kirby.

Kirby Thomas West:

Thank you very much for having me, Craig.

J. Craig Williams:

Well, Kirby, what got you interested in property rights practice and civil forfeiture? That’s a real narrow topic.

Kirby Thomas West:

Well, I am what I like to say, an IJ true believer. So I went to law school with the goal of becoming a lawyer at the Institute for Justice, and part of that is I was always interested in the ideas that the Institute for Justice believes in and supports ideas like individual liberty, the right to earn a living, the right to be secure in your property. And I just thought what a unique practice as a lawyer to get to read about something in the news that you think is wrong and think, wow, I can actually do something about that. I can sue the government about that. And it’s turned out just as great as I hoped. I feel like I have a unicorn lawyer job. I really feel lucky to be here.

J. Craig Williams:

How did you find out about property rights in the first place?

Kirby Thomas West:

Oh gosh, that’s a good question. So I think I first found out about I J’S property rights work when I was a summer intern at what was then the Foundation for Individual Rights and Education. Now the foundation for individual rights and expression and a lot of overlap obviously with fire folks and IJ folks and the kind of things that they get excited about and talk about. And I think I learned about I j’s work from some lawyers that fire and they have some overlap and First Amendment work that they care about. Yeah, it felt like it was right up my alley.

J. Craig Williams:

So how do you differentiate civil forfeiture from criminal forfeiture?

Kirby Thomas West:

Sure. So in criminal forfeiture, the government takes property after somebody has been actually convicted of a crime. So in the case of criminal forfeiture, the criminally accused is entitled to all of the constitutional protections that we think of when we think of criminal law. You have the right to an attorney, you have the right to have the government bear the burden to prove that you are guilty beyond a reasonable doubt, all the various criminal protections that are guaranteed by the constitution. In the context of civil forfeiture, the case is actually, it’s an in REM proceeding that means it’s not against the property owner as a person, the case is actually against the property. And so you get these really strange names like the United States versus a Ford F-150 or the state versus $250,000 in US currency or something like that proceeding under this fiction that the case is actually against the property.

It means that those protections, those constitutional protections that you’re entitled to in the criminal context really just don’t exist. So you don’t have a right to an attorney, you don’t have a right to have the government bear a burden of proof to prove that you’ve done something wrong beyond a reasonable doubt. And in fact, often you could bear the burden of proof to actually prove your innocence. When innocence is a defense, it’s not always a defense in civil forfeiture. And the government has a relatively small burden in most cases of just showing by a preponderance of the evidence that the property itself was somehow connected to a crime. So importantly, not necessarily a crime that the property owner committed, but just the crime that somebody committed that had to do with the property. And as I’m sure is readily apparent, as I often say to describe civil forfeiture is to discredit it because it’s so apparent just by describing the process of how this can go seriously wrong.

J. Craig Williams:

My head just exploded when you told me that it resulted from a crime. How does it transmute itself from a crime into civil

Kirby Thomas West:

Right? And again, that’s because this is not an action against a person. So we’re not saying that there’s a person who’s committed a crime,

J. Craig Williams:

An action, we’re saying a thing committed a crime, right?

Kirby Thomas West:

Right. And I think the thing is not entitled to any of the protections that criminal law affords. And so it can operate separately within this civil system.

J. Craig Williams:

That just sounds crazy. It

Kirby Thomas West:

Is crazy. That’s what we all think here at ij.

J. Craig Williams:

So how do you see civil forfeiture cases? How do they impact people?

Kirby Thomas West:

What the government likes to say about civil forfeiture is that it’s an important tool to combat drug crime. And really what we’re doing is going after drug kingpins and trying to take away their yachts and their fancy cars and the money that they use to operate and the money that they get from drugs. But when you look at the actual numbers on the ground, in most instances, the value of each individual forfeiture is actually relatively very low. What we see so often is that people will, a big one is cars. For example, people, somebody will have borrowed their car and have been found to have drugs in the car, something like that, and lose their car through civil forfeiture. And often the process is too expensive to go through or too confusing to go through that it’s not actually worth whatever the value is of the property.

And so often these cases are actually default judgements because people feel either overwhelmed by the system and again, they don’t have the right to an attorney. So they’re doing this on their own in many cases. And you also have this background problem of incentives in the civil forfeiture process, usually law enforcement is entitled to keep the proceeds of civil forfeiture, which obviously creates a really warped incentive for law enforcement to be focusing resources on forfeitures rather than pursuing actual criminal cases and criminal investigations. But in terms of real life impact, we see all the time that people are losing cars. They lose relatively low values of cash, but enough to make a real difference in their lives. Several thousand dollars if they’re traveling, often we see people have cash on them because they’re going to intend to go purchase a car or something like that, or there’s all kinds of reasons why certain groups of people tend to operate in cash rather than keeping their money in a bank, which again, it’s not a crime to decide to keep your cash on you, but police will or law enforcement will often see the presence of cash as somehow an indicator that there’s criminal activity going on.

J. Craig Williams:

Where is the root for this law? Is it rooted in English law? How does civil forfeiture come about?

Kirby Thomas West:

So this is something I think that we’ll get to too when we talk about the Culley case, but civil forfeiture, the proponents of civil forfeiture will often say this process is so old well before the founding that regularly the government was taking property through civil forfeiture. But when you look at the early forfeiture cases, what was really going on was things like piracy where you have difficulty establishing jurisdiction over the actual person who is committed some kind of smuggling crime or some other crime on the high seas, but you can establish jurisdiction over the ship and that way take the proceeds of the criminal activity. And so there is a long history of civil forfeiture, but it’s in this very narrow circumstance of crimes on the high seas and things that are just totally unrelated to the modern application that has sprung up in more recent decades of law enforcement using civil forfeiture as a tool to combat drug crime.

J. Craig Williams:

Well, let’s talk about Halene McCauley and Lena Sutton and what happened to them in Alabama.

Kirby Thomas West:

Sure. So this is a pretty typical of the kinds of forfeiture cases that we see. This isn’t one of our cases, but like I said, the facts are fairly typical. So Halima Culley loaned her card or her son and he was later pulled over by Alabama Police and arrested for possession of marijuana. The other plaintiff in the case, Ms. Sutton, had also loaned her car to somebody and they were arrested for trafficking of methamphetamine. And in both instances, these women lost their cars permanently through civil forfeiture and they brought this case alleging that their constitutional rights had been violated because they had not been offered a prompt hearing after the seizure of their cars to establish that they were innocent owners and should have been able to get their vehicles back.

J. Craig Williams:

Well, how does the eighth and 14th amendment play into this?

Kirby Thomas West:

Sure. So the claim proceeds under the 14th amendment, it’s a due process claim that due process demands you have a prompt post seizure hearing to challenge the government’s permanent seizure or ongoing seizure of your car. That’s really what this claim was analyzed under was the 14th amendment. I think the eighth amendment comes up in forfeiture frequently. And there are major implications for the eighth amendment in forfeiture, though not directly addressed in this case. But the eighth Amendment of course protects your right to be free from excessive fines. And where you have a situation like here where you have owners of the vehicles who were truly innocent, did nothing wrong, any fine against them should be considered excessive. That was not an issue presented to the court in this case, but the 14th amendment issue of what process is due for people when their cars are taken or their property is taken for the intention of forfeiture.

J. Craig Williams:

Well Kirby, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by attorney Kirby Thomas West from the Institute for Justice. We’ve been talking about civil forfeiture and what happened to two cars in Alabama. As we talk about law enforcement and seizures, we’ve had some opinions from the Supreme Court talking about constitutional deficiencies. One of the justices said that the laws have altered law enforcement practices across the nation in profound ways, and their law enforcement agencies are becoming increasingly dependent on money they raise from civil forfeitures. They’re citing your brief.

Kirby Thomas West:

Yeah. So for justice, we see this all the time. We have a strategic research wing here that actually digs into the data and looks at how does the existence of a profit incentive affect law enforcement priorities when it comes to civil forfeiture and when we see time and again that it obviously does that it’s diverting law enforcement resources to focus on instead of actually investigating crime, trying to pursue criminal charges against individuals who are doing something wrong instead using their resources to pursue these forfeitures. And I think a real life example is really illustrative. So as you mentioned at the top of the show, I have a case in Wayne County, Michigan where challenging Detroit’s vehicle forfeiture machine, one of the things that we saw there is that law enforcement would go to what they call known drug houses and they would park in front of the known drug house and they would stop the cars that came as people were leaving the known drug house.

And notably law enforcement was not going into the known drug house to shut down the operation, but rather just continuously seizing the cars that came and parked in front of the known drug houses, usually without ever filing charges or arresting anybody who was driving the cars or riding in the cars. And this is one of our clients had this exact situation happen where she was picking up someone that she knew the father of her son and trying to help him get home to his mother. And she was stopped saying, you shouldn’t be in this area. This is a known drug crime. He’s obviously just purchased drugs. We’re going to take your car. And the reason for this is because law enforcement in Wayne County gets to sell those cars and keep the proceeds or they also had a redemption fee system where you can, on the first offense, just pay $900 to make it go away or the second offense $1,800. And it was really just a machine of we can just make money in this way and focus our efforts here rather than focusing our efforts on how do we address this pernicious problem of drug abuse and drug sale in Wayne County.

J. Craig Williams:

How can there be a civil forfeiture without proof of a crime?

Kirby Thomas West:

Right. So as I said in the case of civil forfeiture, because no one has been charged with a crime, the kinds of constitutional protections you would normally be entitled to just don’t exist. And the standards within the statutes that authorize civil forfeiture often say all the government needs to do is bear a burden of preponderance of the evidence to show that some crime has been committed. But yeah, they don’t need to prove that a crime has occurred beyond a reasonable doubt, and in fact, they don’t even need to arrest anybody for committing a crime, as I mentioned, is the case of one of our clients in Detroit.

J. Craig Williams:

So this isn’t a singular area of the law where there are absolutely no constitutional protections. The police can just come and seize things

Kirby Thomas West:

Essentially. Yes. I think happily that’s a bit of an overstatement even in this Culley case where the plaintiffs lost on the key issue here, right? They lost the court said, you’re not entitled to a prompt post seizure hearing. The court did say you are entitled to a reasonably prompt forfeiture hearing. That just wasn’t something that had been alleged in this case that they hadn’t gotten that actual forfeiture hearing in a timely manner. But there are, I think there is some basic protection and especially as I mentioned in the right to a timely forfeiture hearing at least on paper after the ley decision. But in general, you’re exactly right. This is just, and I think this is something that comes through in both Justice Gorsuch’s concurrence and in the dissent in Culley that this is an area of the law that is just rife with abuse and totally bereft of constitutional protections.

J. Craig Williams:

Well, let’s talk about Wilson and Serrano.

Kirby Thomas West:

Stephanie Wilson and Gerardo Serrano are two IJ clients and we represent them in forfeiture cases. Stephanie Wilson is actually the young mother that I was just mentioning from Wayne County, Michigan who she was trying to help out the father of her son who had been battling a drug addiction happily. He is now clean and doing very well, but he called her and said, I’m sick, can you please come and get me? Take me to my mom’s house. And she went, she picked him up, he got in the car, she drove just a couple minutes and was immediately pulled over. Officers did not find any drugs on her boyfriend or her ex-boyfriends. They didn’t find any drugs in the car. Nobody alleges that Stephanie herself has ever used drugs, let alone bought or sold drugs. But they alleged that the passenger in her car had recently purchased drugs and she was transporting him after he purchased drugs.

So her car was there for Forfeitable under Michigan law. She is part of our class action in Wayne County challenging that vehicle forfeiture system. Gerardo Serrano has a similarly infuriating forfeiture case. He was traveling near the border and he is a gun owner, legal gun owner, and he had some loose bullets in the console of his truck and he had his car, his truck seized for the alleged offense of transporting munitions of war across the border and his car was taken through civil forfeiture. And so we represented both Stephanie and Gerardo and ourselves at our institutional interest as the Institute for Justice in filing an amicus brief in the Culley case to try to alert the court to some of these deeper issues in the area of civil forfeiture.

J. Craig Williams:

How can it possibly be that they seized her car? What kind of justification in Michigan law?

Kirby Thomas West:

So there’s actually some dispute about whether or not Michigan law does authorize what law enforcement did in Stephanie’s case. So what they alleged is that Stephanie actually transported drugs for the purpose of sale or receipt of drugs. And they say that even though no drugs were found on the passenger on Stephanie or in the car, they alleged that he had just left a known drug house and that he had told the officers that he had just purchased drugs. So it was likely that he had thrown the drugs out the window. And we actually have a pending case representing Stephanie in the Michigan Supreme Court that’s already been argued. We’re just waiting for a decision. But what we’ve said is even if he had had the drugs in the car, she’s certainly not transporting drugs for the purpose of sale or receipt. She’s just giving someone a ride.

Giving a drug user a ride is not the transportation of drugs, but the statutes are written broadly and in Michigan and elsewhere and in a way that if you can somehow allege, if the state can somehow allege that the vehicle’s been used for the transportation of drug users or the transportation incidentally of drugs, if a drug user has drugs on them that you have somehow now participated in drug trafficking or in drug sale, which is ridiculous. But as I mentioned, the standards, there’s not that much they have to prove in order to meet the bars for civil forfeiture.

J. Craig Williams:

Is there a way to change the law if the legislature decides that instead of civil forfeiture proceeds going to law enforcement, it goes to charities or something like that, that would potentially ease some of these issues?

Kirby Thomas West:

There is, and a number of states have done just that where they’ve mandated that the proceeds of forfeiture have to go to the general fund or specific school fund or something like that, which is fantastic, and I think all state legislatures should do something like that. One problem is that even states that have those protections, some of them are constitutional protections, actually law enforcement can get around them by working with federal task forces. So if state law enforcement works with a federal task force or if they turn over property to the feds for federal forfeiture rather than state forfeiture, they then get kickbacks of up to 80% of the value of that property. And that gets around the state protections of all of the money has to go here because it’s actually not a state forfeiture, it’s a federal forfeiture and they’re just receiving these funds that then their office can use.

While it’s great that a lot of states do have the kind of protection you’re talking about and more should still adopt it, this process of what’s called equitable sharing with the federal government is often a workaround to allow law enforcements to still get to keep the proceeds of civil forfeiture. And this is something that would be addressed by a bill that’s actually pending in Congress right now called the Fair Act, and hopefully that will pass and correct this issue. But at least for now, states are limited in the extent to which they can really put an end to that profit incentive problem.

J. Craig Williams:

Well, Kirby, it’s time for another quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Attorney Kirby Thomas West from the Institute of Justice. We’re delving deep into civil forfeiture and it just sounds like the kickback scheme that currently exists between the states and the feds that you described before the break smacks of corruption.

Kirby Thomas West:

I agree. I think that the vast majority of law enforcement is doing the best with the resources they have and they are trying to keep us safe and do their job well, often under difficult circumstances. But it’s also just undeniably true that incentives matter, right? You can’t not be thinking about the fact that your office stands to gain 80% of what you seize if you work with the federal government. And when you look at the way that law enforcement agencies and state law enforcement agencies use the proceeds of civil forfeiture, it’s not surprising that you see a lot of really ridiculous things. You see things like a margarita machine for an office party or conferences and tropical locations or nice weather locations, things that wouldn’t normally be in the budget but are enabled by the availability of civil forfeiture proceeds.

J. Craig Williams:

Well, you said that it’s a real loss for property rights in the Serrano and the Culley cases. What more can IJ do?

Kirby Thomas West:

So with the Cley case, I think the loss, I’m not going to downplay the loss. I do think it is really unfortunate that the court said that you’re not entitled to a prompt post seizure hearing. So we had recently in our Wayne County case, we had a win in the sixth circuit on this exact issue before the Culley case was decided, where the Sixth Circuit said, yes, absolutely, the Constitution requires a prompt post seizure hearing within two weeks of the seizure justice, the par in the sixth circuit actually concurred and said, no, actually 48 hours. And they emphasized the necessity of this hearing because of how essential it is for people to have their cars. Our clients weren’t able to get to work to take their kids to school, to get to the grocery store. Just living your life requires the use of your car.

It’s a huge imposition to lose that the actual holding of culley, it is definitely a loss. But I do also see a lot of signs for optimism when I look more broadly at the Culley case. First of all, the majority still said, you are entitled to that timely forfeiture hearing. And while that seemed to have been available in Alabama for Ms. Culley and Ms. Sutton and certainly not generally available in other places including Detroit and my Detroit case. And so that’s something that I think should be encouraging that people should assert that right of you have to promptly at least file this forfeiture case and get the ball rolling so that I can get in front of a judge and challenge it. And then when you look at the concurrence in the dissent, so taken together, justice Gorsuch was joined by Justice Thomas for the concurrence, and there were three justices in the dissent. So taken together, that’s a majority of the court five justices between the dissent and the concurrence. You have just this long list of all of the problems with modern forfeiture and why this is a huge issue. And I think I view these as an invitation to bring more cases to the court about the other constitutional problems with civil forfeiture. And I feel very optimistic that a majority of the court is interested, sorry, in at least in addressing some of those other problems.

J. Craig Williams:

Well, Kirby, it looks like we’ve just about reached the end of our program. It’s time to wrap up, and I’d like to at this point invite you to share your contact information so listeners can get involved with the Institute for Justice and reach out to you and also wrap up with your final thoughts addressing more legislation that’s in the offing.

Kirby Thomas West:

Sure. So folks can find out about our [email protected], our work related to civil forfeiture and our other work in our other areas of interest. You can reach out to me with any questions or any tips on possible forfeiture cases at [email protected]. As I mentioned a little while ago, I was talking about legislative efforts in the forfeiture sphere. There is this bill pending in the house right now. It’s out of committee and waiting for a house vote called the Fair Act, which would address a lot of the problems with federal civil asset forfeiture, including eliminating that profit incentive by ending equitable sharing. And a variety of states have also enacted legislative reforms that I think are promising, and I would encourage more states do the same. And we actually have model bills on forfeiture that you can also find at our [email protected].

J. Craig Williams:

Great. Kirby, it’s been an absolute pleasure to have you on the show today. Thank you very much.

Kirby Thomas West:

Thank you so much for having me.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. To me, this just sounds insane, and if it’s outrages you as much as it outrages me, get in touch with your legislatures because it’s apparent that the courts aren’t going to solve this problem anytime soon. Only legislation is going to relieve us from these kind of abuses. If you know someone, reach out. Well, that’s it for Craig’s Ran on today’s topic. Let me know what you think. If you’ve liked what you heard today, please rate us on Apple Podcasts through your favorite podcasting app. You can also visit us at legaltalknetwork.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.

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