Louis S. Rulli shares his insights on the Supreme Court’s recent decision in Culley v. Marshall.
The Supreme Court’s decision in Culley v. Marshall rules that a separate preliminary hearing is not constitutionally required to determine whether police may retain seized property in civil forfeiture.
Louis S. Rulli, Morris M. Shuster Practice Professor of Law and Director of the Civil Practice Clinic and the Legislative Clinic at the University of Pennsylvania Carey Law School, writes that although the decision is “disappointing,” the concurring and dissenting opinions offer some hope that “five justices on the Court may soon be ready to tackle larger constitutional infirmities of modern civil forfeiture schemes.”
Rulli writes:
Last week, the Supreme Court shut the door on the hopes and expectations of innocent Americans who believed that they were constitutionally entitled to a preliminary hearing when police seized their property in civil forfeiture. In a 6-3 decision authored by Justice Kavanaugh, the conservative justices on the Court held that a property owner is entitled to a timely forfeiture hearing in their case, but not to a separate post-seizure hearing to determine whether they can have their property back while awaiting the outcome of the forfeiture action.
This is why hopes ran high that the Supreme Court’s grant of review in Culley v. Marshall might signal that the Court was prepared to require additional safeguards to ensure due process of law. After all, just several years ago, the Supreme Court held in Timbs v. Indiana that the Eighth Amendment’s excessive fines clause applied to the states and limited civil forfeiture takings. And, in Leonard v. Texas, a civil forfeiture case in which the Court denied review, Justice Thomas issued a powerful statement questioning whether current civil forfeitures schemes comport with due process of law.
The Facts of Culley and Sutton
The facts in Culley and Sutton will sound very familiar to thousands of Americans who have done nothing wrong but nonetheless have their personal property—most frequently cars and cash—seized by police and placed at risk of permanent loss to the government.
Halima Culley’s son was driving his mother’s car in Alabama when he was pulled over and charged with minor drug violations. The government seized her car and refused to give it back to her. Instead, prosecutors filed a civil forfeiture action seeking to permanently forfeit her car, even though she was not charged or convicted of any wrongdoing. Although Ms. Culley ultimately prevailed against the government on summary judgment 20 months later, Ms. Culley was without her car throughout that entire time.
Lena Sutton lent her car to a friend to run an errand. The police pulled over her friend while driving and found methamphetamine in the car. Alabama police seized her vehicle and filed a civil forfeiture action. Like Ms. Culley, Ms. Sutton prevailed on summary judgment as an innocent owner, but not before a year had passed after the police took her car.
Ultimately, both Culley and Sutton filed class action lawsuits alleging constitutional violations and seeking to recover damages for the harm they suffered.
Grant of Certiorari
The Supreme Court granted certiorari in the consolidated cases of Culley v. Marshall and Sutton v. Town of Leesburg, Alabama to determine whether innocent owners whose cars are seized by the government are entitled to a separate post-seizure hearing and, if so, whether courts should determine the timing of such hearings under the standards of Mathews v. Eldridge governing the taking of property, or pursuant to Barker v. Wingo’s speedy trial test defining the outer boundaries timing of a criminal trial. The Eleventh Circuit held that the speedy trial test applied, while every other circuit court that addressed this issue ruled otherwise. With a split among circuit courts, the Supreme Court granted review to determine which of the two tests should apply. Advocates expected that the Court would decide the proper test and then instruct lower courts to apply that test to the specific facts of the cases before them. However, the Court chose to rule more broadly, rejecting entirely the notion that due process required a separate hearing to determine whether property owners are entitled to the return of their property pending the outcome of their forfeiture case.
In rejecting a separate hearing, the Court held that it was bound by two of its prior holdings in the cases of United States v. $8,850 and United States v. Von Neumann. However, this reliance is misplaced. Both cases involved customs law violations in which the property owners were not innocent owners. In $8,850, the property owner’s cash was seized when he entered the United States and the Customs Service delayed before filing for civil forfeiture of the currency. The Court applied the Barker v. Wingo speedy trial test and found that any delay did not violate due process. In Von Neumann, the property owner failed to declare the purchase of a new car when driving into the United States. After the government seized the owner’s car, the owner chose not to contest the seizure but rather to seek discretionary relief from the agency (called remission). When the agency did not respond for 36 days to this request, the owner claimed a due process violation.
The Court applied these prior holdings broadly to factual situations in Culley and Sutton that were very different. The property owners in the earlier cases did not claim to be innocent owners and they did not seek separate hearings to test the legitimacy of the taking of their property. Moreover, the prior cases arose in the context of customs violations where property owners simply argued that the government took too long to resolve their claims.
In addition to relying upon these two prior cases, the Court supported its holding by recounting historical practices prior to the late Twentieth century. It noted the absence of any federal or state laws requiring a separate or preliminary hearing in civil forfeiture cases. But, in relying on this history, the Court failed to distinguish between the historical roots of civil forfeiture grounded in customs and smuggling illegal acts where property owners were often beyond the jurisdiction of domestic courts, and the modern and aggressive use of civil forfeiture against ordinary citizens not charged with a crime in furtherance of the war on drugs. Additionally, the Court gave little weight to more recently enacted state laws that have begun to require post seizure hearings in modern civil forfeiture proceedings, evidencing a counter-narrative to the Court’s historical review.
In the final analysis, the Court’s holding means that innocent property owners who have their cars seized by police may just have to await the outcome of the forfeiture case to get their vehicles back. The Court emphasized that car owners are entitled to a timely forfeiture hearing, but that hearing is likely to come much too late to alleviate the immediate harm caused by the loss of a family car. Experience shows that the ultimate forfeiture hearing is often one or more years later, only after discovery is completed, pre-trial motions are decided, and jury issues navigated. While the Court criticized Culley and Sutton for not asserting their defenses more quickly, the Court failed to acknowledge that forfeiture litigation is complex and time-consuming. Awaiting the outcome of lengthy court proceedings, especially considering that forfeitures are prosecuted by well-resourced governmental lawyers, leaves innocent property owners in the lurch struggling to meet their daily needs without their car.
This harm can be very severe. The loss of the family car may prevent individuals from getting to work, accessing medical appointments or hospital care, shopping, and fulfilling other family obligations, especially in rural areas where public transportation is limited or non-existent. As Justice Sotomayor noted in dissent, studies show that over 85% of Americans drive to work and there is a significant connection with the ability to drive and to get to work. The loss of one’s car, even temporarily, can seriously impact the necessities of life. Due process should require more protection in these situations, especially for innocent owners.
A Glimmer of Hope
As disappointing as the Culley decision is, the news may not be all bad. Justice Gorsuch’s concurring opinion, with which Justice Thomas joined, and Justice Sotomayor’s dissenting opinion, with which Justices Kagan and Jackson joined, collectively offer hope that five justices on the Court may soon be ready to tackle larger constitutional infirmities of modern civil forfeiture schemes. Justices Gorsuch and Sotomayor both write persuasively about significant differences between the early roots of civil forfeiture applied to customs and smuggling violations and the current aggressive use of this powerful tool to seize private property from vulnerable Americans, often unconnected to any criminal wrongdoing by the property owner. The unmistakable message is that there is growing support on the Court to address the question posed by Justice Thomas in Leonard: Whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process?
Although the holding in Culley is disappointing, the tide may be beginning to turn. Documented abuses in civil forfeiture fueled by perverse financial incentives and inadequate safeguards, coupled with recent statutory reforms in more than 35 states, signal that contemporary civil forfeiture practices are ripe for substantial constitutional review. Five justices in Culley seem to say as much. If so, the Culley decision may present hope as well as disappointment.
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