WASHINGTON, DC — In a ruling on civil forfeiture, which has been likened to a modern-day form of highway robbery, the U.S. Supreme Court has allowed police to get away with using delay tactics while keeping private property (cash, jewelry, cars, and other valuables) they seized and “suspect” may be connected to a crime. Many of these asset forfeiture cases involve no criminal charge against the property owner, and reportedly up to 80% of civil forfeitures are not accompanied by a criminal conviction.

In a 6-3 decision in Culley v. Marshall, the Supreme Court held that there are no due process protections for citizens in asset forfeiture proceedings to have an early court hearing to contest the government keeping possession of their seized property while they await trial. In a joint amicus brief, attorneys for The Rutherford Institute, ACLU, and Cato Institute argued that an early hearing is necessary to protect citizens against the government’s delay tactics, which make it difficult for individuals innocent of any wrongdoing to recover their property in a timely manner from police who stand to profit from the forfeiture. Government delay tactics have resulted in police keeping possession of seized property while awaiting a trial which could take over a year to be heard. In a concurring opinion, Justice Gorsuch acknowledged this to be a problem, stating that delays work to the government’s advantage and cause some innocent owners to “settle” by paying a fee in order to secure the return of prop­erty they need to work and live.

“Americans no longer have to be guilty to be stripped of their property, rights and liberties,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “You just have to possess something the government wants.”

Asset forfeiture has become a “booming business” for the government, with federal forfeitures alone having brought in $2.5 billion during 2018. Civil asset forfeiture is a practice where government agents (usually the police) seize private property they “suspect” may be connected to criminal activity, then, whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure. By asserting that someone’s property, a building or a large of amount of cash for example, is tied to an illegal activity, the government then confiscates the property for its own uses, and it’s up to the owner to prove that their property was not connected to criminal activity or that the owner had no involvement or knowledge of the criminal activity.

However, to pursue a claim, an owner often has to jump through a series of legal hoops—what Justice Sotomayor’s dissent referred to as “labyrinthine processes”—set up by the government in the hopes that innocent owners will abandon attempts at recovery. Challenging these takings in court can cost an owner more than the value of the confiscated property itself, which, as Justice Gorsuch’s concurrence explained, is why some agencies reportedly place special emphasis on seizing low-value items and relatively small amounts of cash. In Culley v. Marshall, Alabama police seized vehicles belonging to Halima Culley and Lena Sutton while the cars were being used by other individuals accused of drug possession. Although Culley and Sutton were themselves innocent of any wrongdoing, the state kept their vehicles for 20 months and 12 months respectively.

Abram J. Pafford, Gregory J. DuBoff, Francis J. Aul, and Timothy J. Whittle of McGuireWoods LLP helped advance the arguments in the amicus briefs for Culley v. Marshall.

The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Case History

March 23, 2023 • Supreme Court Asked to Hear Challenge to Asset Forfeiture Scheme Where Police Seize and Keep Cars, Cash & Homes of Innocent Owners

July 20, 2023 • Supreme Court Agrees to Hear Challenge to Asset Forfeiture Scheme Where Police Seize and Keep Cars, Cash & Homes of Innocent Owners

Culley v. Marshall

• Cert petition
• Merits amicus briefs
• SCOTUS opinion

Article posted with permission from John Whitehead