The case, Culley v. Attorney General of Alabama
, which involves class actions brought by two women whose cars were seized and kept by Alabama state officials for months despite neither being charged with a crime, hinges on whether the Fourteenth Amendment's due process clause requires a state or local government to provide a post-seizure probable cause hearing before a forfeiture proceeding begins and, if so, when such a hearing must take place.Experts in civil forfeiture warn the case will have massive implications for thousands of people who see crucial property, including cars they need to get to work, taken from them, sometimes for months or years at a time.
"This is a critical issue in civil forfeiture, because it really matters whether someone gets their car back within, say, 14 days or 30 days after the seizure, or whether they get their car back two years later," Dan Alban, a senior attorney at the nonprofit Institute for Justice, told Law360. "That's why I think the court took the case."
The two class actions arose out of separate incidents that shared similarities.
Halima Culley, whose car was seized during her son's arrest for marijuana possession, sought damages in a 2019 federal court suit alleging that the state of Alabama and the city of Satsuma violated her Eight and 14th Amendment rights by failing to provide her with a prompt post-deprivation hearing to determine whether officials had a right to keep her vehicle while state civil forfeiture proceedings against her played out.
Lena Sutton, whose car was seized after a friend was found with methamphetamine while driving it, brought similar claims against the town of Leesburg and the state of Alabama.
In September 2021, two U.S. district courts tossed both women's suits, saying their claims were foreclosed by precedent. On July 11, 2022, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the lower courts' rulings in a consolidated opinion. The Eleventh Circuit denied an en banc hearing in August.
Federal appeals courts disagree on which U.S. Supreme Court case law regulates the timing of a post-seizure hearing. The Second, Fifth, Seventh and Ninth circuits have applied a three-part due process analysis set forth in the high court's 1976 decision in Mathews v. Eldridge
. Under that test, courts look at the interests of a person whose property is seized and the injury caused by the forfeiture, consider any substitute safeguard ensuring that the person isn't deprived of due process, and take into account the administrative burden of the seizure and the interest of the government.But the Eleventh Circuit has adopted a "speedy-trial" test spelled out in two other high court cases, United States v. $8,850 and Barker v. Wingo
.Under Barker, a court must determine whether a criminal defendant is entitled to a speedy trial, considering factors including the length of any delay, the reason for the delay, the time and manner in which the defendant has asserted the right to a speedy trial, and the degree of prejudice to the defendant the delay has caused.
This term, the Supreme Court will decide which doctrine should be applied.
In a petition for certiorari filed Dec. 20, Culley's attorney Brian M. Clark of Wiggins Childs Fisher Pantazis & Goldfarb LLC, a firm based in Birmingham, Alabama, asked the justices to resolve the circuit split, saying that the Eleventh Circuit itself recognized that it is the only U.S. Court of Appeals to rely on Barker to decide due process issues in civil forfeiture, in conflict with its sister courts.
Clark, who declined to be interviewed for this story, said in his petition that in the 2002 opinion in Krimstock v. Kelly
penned by then-Second Circuit Judge Sonia Sotomayor, the panel held that the due process clause requires that people whose cars were seized to be granted a hearing to determine whether less drastic alternatives than the continued forfeiture of their vehicle "would satisfy the legitimate interests of the government."David B. Smith of David B. Smith PLLC, who focuses on white collar and criminal defense and is an expert in civil forfeiture, said that in ruling on Culley and Sutton, the Eleventh Circuit said it was following its own precedent in endorsing the Barker test, but said nothing to defend it.
"The court, I think, obviously didn't grant cert because it's concerned about the circuit conflict," Smith told Law360. "I think it must have granted cert only because it wants to hold that due process requires a prompt post-seizure hearing, at least as to cars, which is what's involved in this case."
Smith said he expects numerous amicus briefs to be filed in the case.
Alban of the Institute for Justice said the Barker test is not applicable to civil forfeiture cases, primarily because asset seizures themselves are civil cases, rather than criminal. He added that the Mathews opinion provides a better test.
Ultimately, Alban said, the decision in the Culley case will likely impact thousands of people every year.
"It's a very important area. I think it's one that has a real-world impact on lots of people who are victimized by civil forfeiture," he said.
Since the 1980s, asset forfeiture has been a component of the federal government's "war on drugs" and has been increasingly used in cases involving charges under the Racketeer Influenced and Corrupt Organizations Act, or RICO.
Alban said that while cases involving the asset forfeiture of drug kingpins and big-time criminals make headlines, civil forfeiture impacts a much more vast and less visible part of the population. Cash and used cars are among the most common types of property confiscated. In the vast majority of forfeiture cases, defendants are not represented by attorneys, he said.
In most states and at the federal level, law enforcement agencies keep up to 100% of the proceeds from the sale of the property they seize. That creates an incentive for police to seize as much property as they can, Alban said.
"Law enforcement would not devote nearly so many resources to pursuing highway interdiction, airport interdiction or other forms of civil forfeiture if they were not able to keep the proceeds," Alban said.
A 2020 report published by the Institute for Justice found that the average cash seizure in the two dozen states that report forfeiture information is just a little over $1,000. In many states, the median seizure is somewhere between $3 and $500. In 2018 alone, over $3 billion worth of property was seized by law enforcement in 42 states, the District of Columbia, and by the U.S. Departments of Justice and the Treasury, according to the report.
Typical scenarios where asset forfeiture comes into play involve police activity on highways or at airports, where officers stop drivers or travelers they find suspicious and seize cash, drugs or other contraband. Police usually establish probable cause for seizure by alleging that the people they stopped could be engaging in drug trafficking because they were found on "drug trafficking corridors," a catch-all definition that extends to virtually all highways and freeways connecting two cities, Alban said.
The timing of due process hearings in civil forfeiture, which the Supreme Court will rule on in the fall, can make a crucial difference for people whose lives depend on the seized assets, such as their cars.
"Used cars typically aren't very valuable. So it's usually not worth it for someone to hire an attorney to spend years litigating to get the property back," he said. "But if someone could hire an attorney just for the procedural hearing in the chances of getting their car back in a short period of time, that can make all the difference."
The last time the Supreme Court looked at civil forfeiture was in 2009, when it heard Alvarez v. Smith
, a case where six criminal defendants whose property was seized sued on claims that the state of Illinois had failed to provide a speedy hearing to reclaim the assets, in violation of due process. But the high court declined to settle the legal question presented in that case because the parties had resolved the dispute, making the case moot before the court could deliver its opinion.The case brought by Culley and Sutton, which presents a legal question similar to the one in Alvarez but whose underlying circumstances have not been resolved, gives the justices a new chance to rule on the issue.
"Because those cases are not moot, the court determined that this would be a good vehicle," Alban said. "Hopefully, this case is an opportunity to finally get a ruling from the Supreme Court on this critically important issue."
Culley is represented by Brian M. Clark of Wiggins Childs Fisher Pantazis & Goldfarb LLC and Shay Dvoretzky of Skadden Arps Slate Meagher & Flom LLP.
The respondents are represented by Edmund Gerard LaCour Jr. of the Office of Alabama Attorney General, Howard Edgar Howard of Ford Howard & Cornett PC and Thomas Octavius Gaillard III of Helmsing Leach Herlong Newman & Rouse PC.
The case is Halima Tariffa Culley et al. v. Steven T. Marshall, Attorney General of Alabama et al., case number 22-585, in the Supreme Court of the United States.
--Editing by Jill Coffey.
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