The Supreme Court this morning, in Culley v. Marshall, handed a modest victory to aggressive civil-forfeiture schemes, but the Court’s lineup may presage trouble for civil forfeiture at the Court in the near future. Culley involved two Alabama cases where police arrested a driver for having drugs in a car they didn’t own, and seized the car, requiring the owners to wait months to get the car back. In one case, the driver was the owner’s college-aged son who had the car on campus; in the other, it was the owner’s friend who had borrowed the car. The owners argued that the due-process clause required not only a prompt hearing on whether the government could keep the car permanently, but also a preliminary hearing on whether the car could be held by the government pending the final hearing. The Court voted 6–3 on ideological lines for the government, ruling that the due-process clause requires only a prompt hearing to determine the propriety of seizure, and not an additional preliminary hearing.

Justice Brett Kavanaugh’s opinion for the majority relied on United States v. $8,850 (1983), and United States v. Von Neumann (1986), both decided in the heyday of enthusiasm for expanding forfeiture, to conclude that the question was already settled and that the plaintiffs’ “argument for a separate preliminary hearing appears in many respects to be a backdoor argument for a more timely hearing so that a property owner with a good defense against forfeiture can recover her property more quickly. But the Court’s precedents already require a timely hearing.” The Court refused to engage in a policy-based balancing test (this being one area where the Court’s due-process precedents, wisely or unwisely, leave some policy judgments to the Court), and invoked history:

Since the Founding era, statutes have authorized the Government to seize personal property and hold it pending a forfeiture hearing, without a separate preliminary hearing. For example, the first federal forfeiture law, the Collection Act of 1789, authorized the civil forfeiture of ships, goods, and merchandise involved in suspected violations of the customs laws. . . . Many state forfeiture statutes from the Founding period similarly did not require a preliminary hearing before the forfeiture hearing. . . . In addition, when the Fourteenth Amendment was ratified in 1868, Congress did not require preliminary hearings. In 1864, for example, Congress provided that goods seized under a new revenue law should “remain” in the “care and custody” of the government “until final judgment” in a forfeiture trial. . . . Many state forfeiture laws from around the time of the Fourteenth Amendment likewise did not provide for a preliminary hearing. . . . Petitioners and their amici do not identify any federal or state statutes that, before the late 20th century, required preliminary hearings in civil forfeiture cases.

In the immediate term, therefore, civil forfeiture reform will have to come from legislatures, not the Court. But Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion arguing that the Court should reconsider in a proper case whether modern civil forfeiture comports with the historical precedents:

As commonplace as these civil forfeiture laws may be, most are pretty new. As part of the War on Drugs, in the 1970s and 1980s Congress began enacting sweeping new civil forfeiture statutes allowing the government to seize and keep the proceeds of drug crimes and the personal property used to facilitate them. . . as commonplace as these civil forfeiture laws may be, most are pretty new. As part of the War on Drugs, in the 1970s and 1980s Congress began enacting sweeping new civil forfeiture statutes allowing the government to seize and keep the proceeds of drug crimes and the personal property used to facilitate them. . . . Law enforcement agencies have become increasingly dependent on the money they raise from civil forfeitures . . . those incentives also appear to influence how they conduct them. Some agencies, for example, reportedly place special emphasis on seizing low-value items and relatively small amounts of cash, hopeful their actions won’t be contested because the cost of litigating to retrieve the property may cost more than the value of the property itself. . . .

Historical traditions suggest that postdeprivation civil forfeiture processes in the discrete arenas of admiralty, customs, and revenue law may satisfy the Constitution. But . . . the general rule remains that the government cannot seize a person’s property without a prior judicial determination that the seizure is justified. . . . It is far from clear to me whether the postdeprivation practices historically tolerated inside the admiralty, customs, and revenue contexts enjoy the sanction of settled usage outside them. . . . In the past, it seems the government could confiscate only certain classes of property. So, for example, admiralty statutes regularly authorized the government to seize and pursue the civil forfeiture of the instruments of the offence, say, a ship used to engage in piracy. [Citations and quotations omitted.]

Gorsuch cited, for example, the necessity of seizing ships before they could sail outside of American waters as a reason specific to admiralty law that may not apply to the routine seizure of cars. He compared current practice to “the archaic common-law deodand” which “required the forfeiture of any object responsible for a death — say, a knife, cart, or horse — to the Crown” but was ultimately abolished due to abuses not so different from those we see today. He concluded:

In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist. But perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions . . . in future cases, with the benefit of full briefing, I hope we might 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 [of due process].

That may only be two justices, but add the three liberal dissenters, and civil forfeiture could be in real trouble. Justice Sonia Sotomayor’s opinion for the three dissenters “would have decided only which due process test governs whether a retention hearing is required and left it to the lower courts to apply that test to different civil forfeiture schemes,” but Sotomayor’s opinion bristles with hostility toward forfeiture abuse:

[The] lack of standardized procedural safeguards makes civil forfeiture vulnerable to abuse. In 32 States and the federal system, when law enforcement agencies forfeit property, the proceeds go to their own budgets. . . . These cash incentives not only encourage counties to create labyrinthine processes for retrieving property in the hopes that innocent owners will abandon attempts at recovery, they also influence which laws police enforce, how they enforce them, and who they enforce them against. . . .

Police officers have an incentive to enforce the law in a way that leads to the recovery of fungible property, like cash or cars. For example, officers might pose as drug dealers instead of buyers in a sting operation, because it allows police to seize a buyer’s cash rather than a seller’s drugs (which have no legal value to the seizing agency). . . . Officers have a financial incentive to target marginalized groups, such as low-income communities of color, who are less likely to have the resources to challenge the forfeiture in court. . . . Low-income communities are also the most vulnerable to pressure from unchecked prosecutors, who can use coercive civil forfeiture processes to extract settlement money from innocent owners desperate to get their property back. [Citations and quotations omitted.]

Gorsuch and Sotomayor may be coming from different perspectives on the law, but both cited some of the same sources (such as an amicus brief by the free-market Buckeye Institute) and noted some of the same abuses. And any litigator in this space can count how two plus three can equal five. Forfeiture may have won the day today, but law enforcement should beware that the Court might seize it in the future — after notice and a fair hearing, of course.