by Hannah Riggle, Associate Member, University of Cincinnati Law Review Vol. 92
I. Introduction
You have lent your friend your car for the day. While they are driving your car, the police stop your friend, and they are arrested. Those are the simple, but all too common, set of facts for many people in this country who lose their property to the government after civil forfeiture proceedings. Civil forfeiture proceedings are an uphill battle for innocent property owners in jurisdictions across the country, many of whom have never been accused of or convicted of a crime.
This article will discuss civil forfeiture, specifically focusing on the recent Supreme Court decision, Culley v. Marshall.[1] Part II will provide background on the practice of civil forfeiture and describe the factual underpinning of Culley. Part III will argue Culley is a signal of the Court’s possible receptiveness to arguments advocating for civil forfeiture reform. Finally, Part IV will conclude that while Culley was not a victory for civil forfeiture reform, it will serve as an important guide for advocates moving forward as they attempt to hone arguments that the Court has signaled it favors.
II. Background
Civil forfeiture is controversial, and for good reason: the mechanism allows law enforcement to seize personal property from citizens and then sell the seized property for profit if they have a mere suspicion that the property was connected to a crime.[2] This seizure sometimes happens without even arresting or convicting the citizen of a crime.[3] To seize property, law enforcement must only prove by a preponderance of the evidence that the property was connected to an alleged crime.[4]
Once the property is seized, a prosecutor can then bring an action against the property before an arrest for a crime has been made, regardless of if the owner is ever convicted.[5] After law enforcement has seized the property and a prosecutor has brought a successful claim against the property, a timely post-forfeiture hearing occurs to give the owner a chance to contest the forfeiture.[6] If the forfeiture is uncontested, or the government prevails after the forfeiture hearing, law enforcement may either retain the property for departmental use or sell the property.[7] If the law enforcement sells the property, they can use either all or a portion of the proceeds to supplement the agency’s revenue stream.[8] The exact percentage of the civil forfeiture proceeds that agencies can retain varies by jurisdiction.[9]
A. Historical and Modern Use
Tracing its roots to the English common law, governments have justified different versions of civil forfeiture as tools against crime.[10] Under English common law, statutory forfeiture was used as a penalty for violating trade statutes, and the goods of the vessel were forfeited as a penalty for violating the statute.[11] In the United States, civil forfeiture has been described as an important weapon against the narcotics trade for its ability to destabilize the economic power of drug operations.[12] However, some modern scholars have argued that the true purpose of modern civil forfeiture is not to deter or punish the drug trade.[13] Instead, they argue that the true purpose of modern civil forfeiture is to provide law enforcement with an additional revenue stream, thereby distorting the original deterrent purpose of the mechanism.[14]
As a rule, civil forfeiture proceedings are always brought in rem.[15] This means that the prosecutor brings an action against the property that was seized, not the person who owns the seized property.[16] For example, if a woman owns a house and a family member makes a drug deal on the front porch, a prosecutor may then bring an action against the property to seize it for its involvement in a crime, rather than an action against the woman. This unique feature of civil forfeiture law means that the seized property is effectively the defendant in the proceeding. Another unique feature of these proceedings is that, in many jurisdictions, the burden of proof is on the property owner to prove that they did not know, knowingly allow, or obtain their property in connection to illegal purposes.[17] One way that property owners can carry this burden is by asserting the “innocent owner” defense.[18] To bring an innocent owner defense, the owner of the property “bears the burden of proving that he did not know about or consent to the illegal use of his property.”[19] Therefore, the burden is on the owner, not the government, to prove their innocence and get their property back.[20]
B. Criticism
Civil forfeiture is the subject of wide-ranging criticism. Notably, critics argue that law enforcement has an incentive to abuse the mechanism because their agencies stand to reap the benefits of the forfeiture.[21] Additionally, the burden shifting framework that is employed in many jurisdictions also draws criticisms by essentially making the owner of the property guilty until proven innocent, in direct contention with the commonly held belief in the United States that defendants are innocent until proven guilty.[22] The lack of procedural requirements for civil forfeiture proceedings has also drawn backlash because the lack of requirements make it an attractive option to law enforcement.[23] After all, law enforcement can seize property without having to worry about whether the owner of the property will be charged with or convicted of a crime.[24] Critics are also concerned about the lack of transparency regarding how much money law enforcement agencies generate from civil forfeiture proceedings.[25] Additionally, lower income individuals are especially vulnerable to civil forfeiture because the cost of hiring an attorney can be considerable and may even outweigh the value of the property seized by the police.[26] Because the seizure and retainment of property occurs before any forfeiture hearing is held, law enforcement can deprive owners of their property even before any legal determination is made regarding the property.
C. Culley v. Marshall: Challenges to Civil Forfeiture’s Legality
While civil forfeiture schemes have faced challenges in the courts, the Supreme Court has continually upheld its constitutionality.[27] The Court most recently considered challenges to civil forfeiture in Culley v. Marshall.[28] In Culley, two cases were consolidated for review by the Court.[29] The question before the Court was whether a separate preliminary hearing is required under the Due Process Clause of the Fourteenth Amendment to determine whether police may keep possession of a car before the civil forfeiture hearing.[30] The Court determined that a preliminary hearing is not constitutionally required.[31]
In 2019, Halima Culley’s son was pulled over while driving her car.[32] During the stop, officers discovered marijuana and a loaded gun in the car.[33] In addition to arresting and charging her son, the officers seized Halima’s car.[34] Similarly, Lena Sutton’s friend was pulled over by officers when he was borrowing Lena’s car.[35] During the stop, officers discovered methamphetamine.[36] Lena’s friend was charged and arrested, and her car was seized.[37] Neither Halima nor Lena were ever accused, indicted, charged, or convicted of any offense in connection with the events.[38]
In Alabama, where both seizures occurred, the only way for owners to get their property back before a forfeiture hearing is to “post[] bond at double the car’s value.”[39] Posting bond can prove to be impossible for many property owners, as the bond necessary to regain their property before the hearing can be sizable, creating an extreme hardship for a property owner who may be innocent of any wrongdoing.
Both women argued to the Supreme Court that the Due Process Clause requires a state to hold a preliminary hearing before the forfeiture hearing because the preliminary hearing would determine the “probable validity of the forfeiture.”[40] This hearing would be adversarial and function as a preliminary forfeiture hearing.[41] This additional preliminary hearing would allow property owners to assert affirmative defenses and recover their property sooner if successful.
In contrast, the government argued that a preliminary forfeiture hearing was not necessary because a timely forfeiture hearing was already constitutionally required.[42] The Court granted certiorari to address the conflict in the United States Court of Appeals for the Eleventh Circuit about whether a preliminary hearing was required under the Due Process Clause[43] and concluded that due process only requires a timely civil forfeiture hearing.[44] However, the Court did not define what constitutes a “timely” hearing. In reaching this conclusion, the Court heavily relied on historical practices.[45] For example, the Court extensively described customs statutes and requirements of the Fourteenth Amendment to support their contention that a preliminary hearing was not required under the Due Process Clause.[46]
1. Gorsuch and Thomas’s Concurrence
Justice Gorsuch wrote separately to explain that while he ultimately joined the majority opinion because there was no law or precedent to support a conclusion otherwise, he still had questions about how modern civil forfeiture squares with due process.[47] The concurrence also concentrates on the human impact of civil forfeiture.[48] For example, Justice Gorsuch emphasized that Halima owned and paid for the car that her college-aged son had been driving at the time of his arrest.[49] However, despite learning this information, the police chose to seize her car, rather than return it to her.[50]
Notably, Justice Gorsuch contends that despite how common civil forfeiture is in jurisdictions across the country, the actual history and tradition of modern civil forfeiture laws are not all that historical.[51] Instead, the concurrence pointed to the War on Drugs and the legislation that was enacted to “allow[] the government to seize and keep the proceeds of drug crimes and the personal property used to facilitate them.”[52] Further, Justice Gorsuch emphasized that civil forfeiture had essentially turned into an enormous business funding law enforcement that is subject to startling few procedural requirements.[53] Because of this, Justice Gorsuch argued that modern civil forfeiture practices may have expanded past the scope of historical civil forfeiture, which had been used in admiralty law when it was difficult to secure personal jurisdiction over the offender.[54]
Justice Gorsuch also concluded that because law enforcement agencies have a financial incentive to pursue civil forfeitures, they have created policies to maximize the revenue they generate from civil forfeiture, seizing low-value property because the cost for an owner to litigate its seizure is higher than its value, or prolonging the process to force settlements.[55] In sum, Justice Gorsuch argued that because civil forfeiture has become a revenue stream for law enforcement agencies, it is no longer fulfilling the historical purpose of punishing offenders who could otherwise not be reached by the law.[56]
2. Justice Sotomayor’s Dissent
In her dissent, Justice Sotomayor concluded that the petitioners sought a relatively minimal safeguard by arguing that the Due Process Clause requires a post-seizure opportunity for property owners to be heard and given an opportunity to get their cars back pending the proceedings.[57] Justice Sotomayor explained that because officers’ have a financial incentive to retain the car, a preliminary hearing should be required to ensure that there is probable cause to “connect the owner and the car to a crime.”[58] The dissent refuted the majority’s refusal to require even this “minimal safeguard.”[59]
III. Discussion
The methods that police use to increase civil forfeiture revenue are particularly invidious when one considers the groups, like innocent property owners, who are often caught up in these proceedings. Innocent owners must expend considerable resources to get their property back, even though they are innocent of any wrongdoing. In Culley v. Marshall, Halima and Lena were plunged into the court system, innocent of any wrongdoing themselves.[60] To protect innocent individuals, litigants challenging civil forfeiture should focus on the concurrence and dissent in Culley.
A. Challenging Civil Forfeiture Post-Culley
Culley was a blow to those who saw it as an opportunity to challenge the practice of civil forfeiture as a whole. While Culley was a 6-3 decision, the concurrence and dissent offered glimmers of hope. The concurrence and dissent latched onto similar arguments in favor of civil forfeiture law reform, primarily focusing on the lack of procedural safeguards for this mechanism and the human impact it has on communities.[61]
Those looking to bring successful challenges to civil forfeiture schemes should continue to make arguments rooted in the Fifth and Fourteenth Amendments’ Due Process Clauses and argue that the history and tradition of civil forfeiture no longer supports the modern civil forfeiture practices in place in many jurisdictions. Justice Gorsuch made a compelling argument that while history and tradition may support civil forfeiture in cases of admiralty, customs, and revenue, modern schemes have extended far beyond this scope.[62] In addition, he explained that in his view, modern civil forfeiture schemes do not serve the original purpose of the mechanism: an inability to gain personal jurisdiction over a wrongdoer is no longer a purpose behind civil forfeiture schemes.[63] Because the Court did not rule in the plaintiff’s favor in Culley, future plaintiffs should lean more heavily on arguments rooted in an analysis of the history and tradition of civil forfeiture, rather than solely making similar Due Process arguments to the ones made in Culley.
In addition to rooting future arguments in the Fifth and Fourteenth Amendments, parties should also continue to argue that the lack of procedural protections currently in place has led to untold social harm.[64] Specifically, future parties should continue to argue that this lack of procedural protection harms already vulnerable communities the most.[65] Both the concurrence and dissent homed in on the harm that modern civil forfeiture practices are inflicting on communities.[66] This signaled the Court’s concern about the societal effects of civil forfeiture practices, therefore the Court may be receptive to arguments in the future that reference these concerns.
IV. Conclusion
Civil forfeiture is long overdue for reform. The true impact on communities is likely unknown due to relaxed reporting requirements and few procedural protections for property owners. While cases like Culley v. Marshall are not a victory, they do highlight the kinds of arguments that the justices may be receptive to in the future. Advocates should focus in on these arguments when a favorable set of facts next presents itself to continue the pursuit of reform.
[1] Culley v. Marshall, 601 U.S. 377 (2023).
[2] Civil Forfeiture, Legal Info. Inst., (Aug. 2022), https://www.law.cornell.edu/wex/civil_forfeiture.
[3] Id.
[4] Id.
[5] Dick M. Carpenter II, Generating Revenue Through Civil Forfeiture, 98 N.Y.U. L. Rev. Online 205, 207 (2023). Critics of the rule, like Dick M. Carpenter II, argue that it is exactly this framework that allows property to be seized from innocent people.
[6] Culley v. Marshall, 601 U.S. 377, 385 (2023) (citing United States v. Von Neumann, 474 U. S. 242, 247-250); United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in U.S. Currency, 461 U. S. 555, 562-565 (1983).
[7] Carpenter II, supra note 5 at 208 (describing the wide discrepancies in reporting requirements for property seized for state and federal agencies). For the purposes of this discussion, the equitable sharing doctrine and its intricacies will not be discussed.
[8] Id.
[9] How Crime Pays: The Unconstitutionality of Modern Civil Asset Forfeiture As a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387, 2389 (2018) (stating generally that the amount of proceeds agencies can retain vary by state); Carpenter II, supra note 5 at 209 (stating that civil forfeiture law is governed by state or federal law).
[10] Jimmy Gurule, Introduction: The Ancient Roots of Modern Forfeiture Law, 21 J. Legis. 155, (1995).
[11] Id. at 157.
[12] Id. at 173 (stating that “[c]ivil forfeiture is a potent weapon in the war against drugs and international narcotics trafficking”).
[13] Carpenter II, supra note 5 at 208.
[14] Id.
[15] Id. at 207.
[16] Gurule, supra note 10 at 156.
[17] Carpenter II, supra note 5 at 209.
[18] Id.
[19] Id.
[20] Id.
[21] Id. at 208 (concluding “[t]his can distort law enforcement priorities, shifting the focus away from other activities and toward revenue generation”).
[22] Id. at 209.
[23] Id.
[24] How Crime Pays: The Unconstitutionality of Modern Civil Asset Forfeiture As a Tool of Criminal Law Enforcement, supra note 9.
[25] Carpenter II, supra note 5 at 214.
[26] Lisa Knepper et al., Policing for Profit: The Abuse of Civil Asset Forfeiture 3rd Edition, Inst. for Just. (Dec. 2020), https://ij.org/report/policing-for-profit-3/.
[27] See Austin v. United States, 509 U.S. 602, (1993), United States v. Ursery, 518 U.S. 267, (1996), Bennis v. Michigan, 516 U.S. 443, (1995).
[28] Culley v. Marshall, 601 U.S. 377, (2023).
[29] Id. at 380.
[30] Id. at 381.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 385.
[41] Id.
[42] Id.
[43] Id. at 384.
[44] Id. at 386.
[45] Id. at 390.
[46] Id. at 391.
[47] Id. at 394 (Gorsuch, J., concurring).
[48] Id.
[49] Id.
[50] Id.
[51] Id. at 395 (Gorsuch, J., concurring).
[52] Id.
[53] Id. at 396 (Gorsuch, J., concurring).
[54] Id. at 399 (Gorsuch, J., concurring).
[55] Id. at 396 (Gorsuch, J., concurring).
[56] Id.
[57] Id. at 403 (Sotomayor, J., dissenting).
[58] Id.
[59] Id.
[60] See generally Bennis v. Michigan, 516 U.S. 442, (1995); Id. at 377.
[61] Louis S. Rulli, Civil Forfeiture Decision ‘May Present Hope As Well As Disappointment’, Univ. of Pa. Carey Law Sch. (May 15, 2024), https://www.law.upenn.edu/live/news/16740-civil-forfeiture-decision-may-present-hope-as-well.
[62] Culley v. Marshall, 601 U.S. 377, 300 (2023) (Gorsuch, J., concurring).
[63] Id. Justice Gorsuch’s argument stems from civil forfeiture’s historical roots in the English common law as a feature of admiralty law.
[64] Id. at 405 (Sotomayor, J., dissenting).
[65] Id. at 407 (Sotomayor, J., dissenting).
[66] See generally Id. at 403 (Gorsuch, J., concurring).
Cover Photo by Claire Anderson on Unsplash.
