I’ve spent 30 years structuring transactions in which ownership must be provable, documented, and defensible before a dollar changes hands. Civil asset forfeiture inverts that premise. The government doesn’t have to prove you did anything wrong. It just has to seize the property and let you spend the next year proving you didn’t.
Halima Culley found that out by accident. She bought a car for her college-age son to use at school. He got pulled over, police found marijuana and a handgun, and Alabama seized the car under a statute that doesn’t require the owner to be charged with anything. Culley wasn’t arrested. She wasn’t present. She also wasn’t getting her car back anytime soon.
The Fourth Amendment protects against unreasonable searches and seizures. Civil forfeiture isn’t a search. It’s a seizure that survives because the government sues the car, not the person, a legal fiction with a Latin name (in rem) and a four-century pedigree in maritime law, repurposed into the most profitable end run around due process in American law enforcement.
The founders understood seizure as something that happened to people accused of crimes, with a warrant, supported by probable cause, subject to judicial review. Forfeiture statutes route around all three. The property becomes the defendant. The owner becomes a third party who has to intervene in a lawsuit against her own car, and the burden of proof in many states sits closer to her shoulders than the government’s.
Culley and a second petitioner, Lena Sutton, took the issue to the Supreme Court, arguing that due process requires a prompt preliminary hearing before the state can hold seized property pending a final forfeiture proceeding. In Culley v. Marshall, decided May 2024, the Supreme Court ruled against them, 6-3. Justice Brett Kavanaugh, writing for the majority, held that a timely forfeiture hearing satisfies due process, full stop. No separate retention hearing required.
Justice Neil Gorsuch concurred and then made the case the majority declined to reach. It took Culley 20 months and a federal lawsuit to get her car back. Gorsuch called that business as usual. He traced forfeiture’s modern form to the common-law “deodand,” an old doctrine confiscating any object connected to a death, and wondered whether today’s practice is much more than that doctrine wearing a new coat. He cited research showing that up to 80% of civil forfeitures occur without any criminal conviction and invited a future case to test whether the practice squares with the Constitution at all. Justice Clarence Thomas joined him. Three dissenting justices, led by Justice Sonia Sotomayor, made the due process argument outright: A police officer can seize your car because someone else allegedly used it to commit a crime, hold it for months, and in most states, the proceeds go straight back into the police budget that authorized the seizure.
That’s not a decision made by a rogue officer. It’s a funding model. Departments aren’t seizing cars because individual cops have decided to behave badly. They’re seizing cars because state legislatures wrote statutes that let agencies keep what they take, and because federal equitable sharing lets local police route around stricter state reforms by partnering with federal agencies and splitting the proceeds. Fix the incentive, and the seizures slow down. Leave it alone and they won’t, regardless of which party runs the statehouse.
A 2018 study of Alabama forfeiture cases by the Alabama Appleseed Center and the Southern Poverty Law Center found that in roughly a quarter of cases reviewed, the property owner was never charged with a crime connected to the seizure. Not a conviction. Not a charge. A quarter of the cases ended with the government keeping the property and nobody facing the crime that supposedly justified taking it.
THE TRAGEDY OF THE COMMONS: WHY WE CAN’T HAVE NICE THINGS
Alabama tightened its statute in 2021, exempting cars worth less than $5,000 and cash under $250 from seizure altogether and shifting more of the burden of proof onto the government. That’s a legislative fix, not a constitutional one, and it only covers Alabama. Culley confirms the Constitution, as the court currently reads it, doesn’t require any state to go that far.
I haven’t read the Fourth and 14th Amendments as inviting a debate over whether the government can take your property first and make you prove your innocence later. The founders wrote a Constitution that runs the other direction. The government accuses, the government proves, and the citizen is presumed innocent until it does. Civil forfeiture statutes flip that sequence and dare you to notice. Gorsuch noticed. Sotomayor noticed. Six justices decided that wasn’t enough to act on yet. It will be, eventually, because the practice doesn’t stop being indefensible just because it hasn’t been struck down.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science from Northeastern University and has completed postgraduate studies at UCLA, University of Pennsylvania, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.