Andrew Wimer
Andrew Wimer · May 9, 2024

ARLINGTON, Va.—This morning the U.S. Supreme Court issued a decision in Culley v. Marshall, a case challenging the constitutionality of Alabama’s civil forfeiture laws on the grounds that they did not provide for a prompt hearing after innocent owners’ cars were seized. The Court determined that due process does not require a preliminary hearing to determine whether the government can hold onto property while the case proceeds and that, instead, the only requirement imposed by due process is that the final forfeiture hearing be held in a timely manner. The Institute for Justice (IJ), which defends property rights nationwide and defends property owners from civil forfeiture, filed an amicus brief on behalf of two of its clients.

“This is a big loss for private property rights,” said Kirby Thomas West, IJ attorney and co-director of IJ’s National Initiative to End Forfeiture Abuse. “Today’s decision will mean many more property owners will never get their day in court when it could do them some good—shortly after the seizure of their vehicle or other property. Instead, civil forfeiture cases will languish for months or years before they are resolved. Meanwhile owners of seized vehicles will scramble to find a way to get to work, take their kids to school, run errands, and complete other essential life tasks.”

Writing for the majority, Justice Kavanaugh stated, “After a State seizes and seeks civil forfeiture of personal property, due process requires a timely forfeiture hearing but does not require a separate preliminary hearing.” Because the plaintiffs in Culley had focused their claims on the failure to provide a preliminary retention hearing, the Court found no constitutional violation.

“The Court’s decision that government can hold property without any process before the ultimate forfeiture hearing is deeply disappointing given the reality that years can pass by before such a hearing ever occurs. The right to private property means very little if the government can seize it and hold it indefinitely based on untested claims of probable cause,” said Dan Alban, IJ senior attorney and co-director of IJ’s National Initiative to End Forfeiture Abuse. “Ensuring an actual prompt hearing after property seizures would help prevent innocent property owners from losing the use of their vehicles or other property for so long that they are forced to either replace them or suffer severe hardship.”

In a concurring opinion joined by Justice Thomas, Justice Gorsuch noted that it took 20 months and a lawsuit for Halima Culley to get her car back, which he described as “business as usual.” He further observed that there are “many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process.” Justice Gorsuch highlighted the probable constitutional deficiencies of modern civil forfeiture, noting that “[t]hese new laws have altered law enforcement practices across the Nation in profound ways.” For example, he points out that “law enforcement agencies have become increasingly dependent on the money they raise from civil forfeitures,” citing IJ’s amicus brief, and repeatedly citing evidence from two of IJ’s strategic research reports on civil forfeiture, Policing for Profit: The Abuse of Civil Asset Forfeiture (3d ed. 2020) and Fighting Crime or Raising Revenue? Testing Opposing Views of Forfeiture (2019).

In a dissenting opinion joined by Justices Kagan and Jackson, Justice Sotomayor observed that the Court’s decision enables law enforcement “to seize cars, hold them indefinitely, and then rely on an owner’s lack of resources to forfeit those cars to fund agency budgets, all without any initial check by a judge as to whether there is a basis to hold the car in the first place.” Also citing IJ’s amicus brief, Justice Sotomayor used IJ’s victory in the 6th U.S. Circuit Court of Appeals as a particularly egregious example of the necessity of prompt post-seizure hearings.

Today’s decision is a setback in the fight against forfeiture abuse. IJ intends, however, to take up Justice Gorsuch’s invitation to continue to bring cases to the Court so that it can “begin the task of assessing how well the profound changes in civil forfeiture practices we have witnessed in recent decades comport with the Constitution’s enduring guarantee that ‘[n]o person shall . . . be deprived of life liberty, or property, without due process of law.’”

IJ is already litigating civil forfeiture cases that raise these questions, including ones that challenge the constitutionality of profit-driven systems, the lack of proper notice after property has been seized, and the right to be compensated for attorneys’ fees after successfully fighting forfeiture. IJ is also working with legislators on federal and state legal reforms to protect innocent property owners. More information about civil forfeiture, including links to IJ’s current cases and research, is available at: