Institute for Justice Attorneys Comment on Today’s Oral Argument in Culley v. Marshall

ARLINGTON, Va.—This morning the U.S. Supreme Court heard oral argument 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 Institute for Justice (IJ), which defends property rights nationwide and defends property owners from civil forfeiture, filed an amicus brief on behalf of two clients. IJ Senior Attorneys Dan Alban and Rob Johnson attended the argument in person.

“Without a prompt hearing after their property is seized, innocent owners can lose the use of their vehicle for months or years, causing great hardship,” said Dan Alban, IJ Senior Attorney and Co-Director of IJ’s National Initiative to End Forfeiture Abuse. “Today, the Court asked tough questions about how to apply past precedent in evaluating the adequacy of forfeiture procedures. However the Court answers those questions, we hope a majority will recognize that it simply is not constitutional for the government to hold someone’s car or other property for months or even years without any way to get a hearing.”

Several of the justices expressed serious concerns about the potential for abuse posed by civil forfeiture. For example, Justice Sotomayor said, “We know there are abuses of the forfeiture system. We know it because it’s been documented throughout the country repeatedly, of the incentives that police are given to keep its value.” Likewise, Justice Gorsuch noted that “clearly there are some jurisdictions that are using civil forfeiture as funding mechanisms.” Justice Kagan further commented that “we know a lot more now than we did when [prior cases] were decided about how civil forfeiture is being used in some states, about the kinds of abuses it’s subject to, about the kind of incentives operating on law enforcement officers that tend toward those abuses.”

“There was also a lot of discussion today about history,” said IJ Senior Attorney Rob Johnson, “The key takeaway is that the generation who wrote the Constitution wouldn’t recognize modern civil forfeiture. Early forfeiture laws were limited to a narrow class of cases, mostly involving pirates and smugglers, and procedures were designed to move quickly. Modern forfeiture laws have more in common with the laws that sparked the revolution than anything the framers would have enacted.”

The attorney who argued the case for the property owners cited IJ’s amicus brief in his argument, noting IJ’s historical research on early forfeiture statutes that directed federal courts to “hear and determine” forfeiture cases after just a brief 14-day notice period.

IJ recently scored a victory in 6th U.S. Circuit Court of Appeals on a similar subject. The appeals court ruled that Wayne County violated the rights of Detroiters by not offering prompt court hearings within two weeks of their vehicles being seized. In a concurrence, Judge Amul Thapar suggested that the time should be even shorter: within two days of seizure. The Sixth Circuit’s decision was discussed repeatedly at today’s hearing. More information about civil forfeiture, including links to IJ’s current cases and research, is available at: https://ij.org/issues/private-property/civil-forfeiture/.