Supreme Court must end police seize and stall tactics
Robert Johnson Daryl James
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Things move fast when law enforcement agencies decide to seize and keep someone’s property. Detroit nursing student Stephanie Wilson lost her car within minutes following a traffic stop in 2019. Officers did not even give her time to retrieve her child’s car seat from the back.
The police swooped in, accused her passenger of being a petty drug offender, and left with Wilson’s car. Then the urgency stopped. Wilson requested a prompt hearing to plead for the return of her vehicle, which she needed for daily life, but all she got was a runaround for almost two years.
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The facts were on her side. Wilson had nothing to do with the alleged drug transaction. She does not do drugs and has never helped anyone buy, sell, or conceal drugs. She was not arrested or charged with a crime. She did not even receive a traffic ticket. But Wilson had no one to tell. The government would not let her talk to a judge.
The delay is by design. Law enforcement agencies use stall tactics as a weapon to break down resistance and extract lopsided settlements when they confiscate property and attempt to keep it through civil forfeiture. The process, which puts property on trial rather than humans, allows the government to seize and permanently keep cash, cars, and other valuables without convicting anyone of wrongdoing.
When property is finally forfeited, many states and the federal government allow law enforcement agencies to retain 100% of the proceeds for themselves — creating strong incentives for speed in the beginning and stall tactics later. Many property owners give up in frustration and walk away. Others cut deals that favor the government, which has all the leverage. Law enforcement agencies love the rigged system, but the delays might soon come to an end. The U.S. Supreme Court has agreed to consider the constitutionality of civil forfeiture laws that deny prompt post-seizure hearings.
The case, Culley v. Marshall, combines two civil forfeiture proceedings from Alabama. One property owner, Halima Culley, had her vehicle seized for alleged drug crimes committed by her son. The other property owner, Lena Sutton, had her vehicle seized for alleged drug crimes committed by her roommate. Both property owners were innocent third parties, and neither received timely judicial review. They had to survive for months without their means of transportation.
Wilson can relate. So can Kentucky property owner Gerardo Serrano, who had his truck seized at a border checkpoint in Texas for no good reason. He then went more than two years without a hearing. Serrano and Wilson eventually got their vehicles back.
Now they want to protect others. So on June 29, 2023, they signed onto a friend-of-the-court brief in the Culley case with our public interest law firm, the Institute for Justice, which represented Serrano in his dispute and continues to represent Wilson in a class-action lawsuit in Michigan.
“I don’t want anyone else to have to wait years and waste thousands of dollars just to get back something that never should have been taken from them in the first place,” Serrano says.
Among other arguments, the brief reminds the Supreme Court of how things used to be. The First Congress enacted a civil forfeiture law that ensured prompt hearings in the 1700s. Delays began to emerge in the mid-1800s, and things got worse in the 1970s with the War on Drugs. Now, most forfeiture procedures take months or years by design.
The pattern holds true in most states and at the federal level, where obtaining a forfeiture decision in less than one year is typically impossible. In other words, as the pace of life has accelerated with advancing technology, justice for property owners has slowed down.
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Even when property owners win, they lose, because time is money. Serrano, for example, had to continue making loan payments on his truck, even when he couldn’t drive it. He also had to pay more than $1,000 to keep the vehicle registered, while spending thousands of dollars on rental cars to get around.
The least the government could provide for people trapped in the corrupt system is a prompt hearing in front of a neutral judge. Far too often, what property owners get instead is silence.
Robert Johnson is a senior attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.