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Supreme Court to Reexamine Use of Civil Asset Forfeiture

By Nicole Ezeh  |  May 1, 2023

State civil asset forfeiture laws permit police to seize personal property suspected of being connected to a crime, regardless of whether the owner has been charged with an offense.

Property owners often must prove in court that their property was not connected to a crime, a difficult burden that can take months or years. The practice is deeply polarizing, with the Leadership Conference on Civil and Human Rights calling it legalized theft, while the Drug Enforcement Agency calls it an effective tool against drug crimes. This difference of opinion has worked its way onto this year’s Supreme Court docket.

On April 17, the court agreed to review Culley v. Marshall, a consolidation of cases filed against Alabama by people whose property was seized in connection with a crime.

The outcome will determine the ability of state law enforcement to use civil asset forfeiture, a practice that four states have abolished entirely.

The consolidated cases have similar facts. In the first case, Halima Culley let her son use her vehicle. While driving, Culley’s son was pulled over by police, who then searched the vehicle and found cannabis and drug paraphernalia. Police seized the vehicle and arrested Culley’s son. It took Culley 20 months for law enforcement to return her car. In the second case, a friend of Lena Sutton borrowed her car and was arrested for methamphetamine possession. Sutton’s car was seized and not returned for over a year. Each plaintiff attended a merits hearing and was given the option to post bail for the immediate release of the vehicles. Culley and Sutton both filed suit, Culley against the Alabama attorney general and Sutton against the town of Leesburg, Ala.

Alabama law allows for the seizure of property used in the commission of drug crimes and says property may be seized without due process if related to an arrest or warranted search where there is probable cause to believe the property was connected to a drug crime. Property seized under Alabama’s civil forfeiture law provides for the recovery of seized property by appearing in court and providing sufficient evidence showing that the property was not connected to a crime or by posting bond for the property. The plaintiffs alleged that this statutory scheme fails to provide an adequate and prompt post-seizure hearing and violates their right to a speedy trial under the Sixth Amendment. They also claim Alabama violated their due process rights under the 14th and 15th Amendments.

The 11th Circuit rejected these claims on appeal, holding that precedent established in the case of Barker v. Wingo (407 U.S. 514; 1972) prevailed. Barker set forth a balancing test that courts should assess in determining a Sixth Amendment speedy-trial-right violation. Those factors include the length of the delay; the reason for the delay; the defendant’s assertion of their right; and prejudice to the defendant. The 11th Circuit determined that the timely merits hearing satisfied due process and speedy trial concerns and held that the actions of the state satisfied the remaining elements of the Barker test.

The 11th Circuit is the only appellate court that uses the Barker test; every other circuit uses a test established in Mathews v. Eldridge. That test requires a court to look at the private interest that is affected by the official action; the risk of an erroneous deprivation of such interest; the value, if any, of additional or substitute procedural safeguards; and the cost versus the benefit of additional procedural requirements.

The petitioners appealed the 11th Circuit’s decision to the Supreme Court, which will hear the case later this year. The outcome of the case will determine the ability of state law enforcement to use civil asset forfeiture. Currently, four states have abolished the practice entirely: Maine, Nebraska, North Carolina and New Mexico. Many other states continue to allow it but place the burden of proof on the government instead of the property owner.

Nicole Ezeh is a legislative specialist in NCSL’s State-Federal Relations Program.

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