An uphill battle at SCOTUS for guardrails against civil asset forfeiture abuse

An Alabama case raises questions about cars taken by police — and "innocent owners" who want them back in a timely fashion.

Alabama Solicitor General Edmund LaCour, second from left, and Alabama Attorney General Steve Marshall, right, talk and … check their phone … outside of the Supreme Court after oral arguments on Oct. 30, 2023.

In a case involving civil asset forfeiture, the justices of the Supreme Court couldn’t even reach agreement at oral arguments on Monday about what issue they were resolving and whether earlier cases had already done so.

Halima Culley and Lena Sutton brought challenges to “Alabama law enforcement’s warrantless seizure and attempted forfeiture” of their vehicles. The consolidated case has been closely watched by groups on the left and the right who have shown how the process is regularly abused.

But, on Monday, the challengers faced a tough court.

Justices who question civil asset forfeiture practices appeared to be looking for a way to keep the decision in the case a narrow one — even, as Justice Neil Gorsuch suggested, if that came at the expense of Culley and Sutton.

Although those justices might have a tough time getting a majority to do so, Alabama’s lawyer — Solicitor General Edmund LaCour — did the state no favors, highlighting some of the most questionable aspects of asset forfeiture as features, not bugs, of the system.

As Justice Ketanji Brown Jackson kept reiterating, though, the issue that the court formally agreed to consider in the case — the “question presented” — was solely about what test should be used by lower courts when deciding “whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding.“

In short: What test should lower courts use to decide if you can get your car back before a longer court process works its way out and a final determination is made under a state or local forfeiture law?

This would be done, most commonly, through a retention hearing (but not necessarily).

Alabama — and, disappointingly, the Biden administration — do not want that.

The justices’ decision in the case is expected by June 2024, though it could come sooner.

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Keep it narrow

Shay Dvoretzky, the head of Skadden’s Supreme Court and appellate practice, was the lawyer at the podium on Monday for Culley and Sutton.

As Dvoretzky said, the court only needs to decide this “methodological” question: Does the Mathews test apply or the Barker test? These are the two underlying cases that courts have applied to resolve the question — with most courts applying the more robust Mathews test favored by the challengers — a test established in 1976’s Mathews v. Eldridge that addresses whether a person has received due process — and some courts applying a more narrow speedy trial case, 1972’s Barker v. Wingo, that is focused on the time and gives less direct consideration to an individual’s other interests.

But, that wasn’t the real issue, was it?

The real issue is whether Culley, Sutton, and others like them in the future should be able to get their cars back in a reasonable time — assuming they have a right to get them back.

Here, Culley and Sutton claim an “innocent owner defense,” which Alabama law gives them. If a person didn’t know about the alleged crime taking place through use of their vehicle — often drug-related — they are an “innocent owner” under Alabama law who could raise that as an affirmative defense in the state’s forfeiture proceedings.

That can take substantial time, though, and — if Mathews applies — they could argue that the state does not give them due process unless they could get their car back sooner in a retention hearing. Under Barker, the question would essentially boil down to whether the forfeiture proceeding itself is resolved in a timely fashion.

The Supreme Court spent more than an hour and a half on arguments about the issues raised in Alabama, but Justice Sonia Sotomayor summed up the day when, toward the end of Dvoretzky’s arguments, she said, “Bad facts make bad law, and I fear we may be headed that way.”

Earlier in Dvoretzky’s arguments, Gorsuch also pointed to meta-issues with the case, saying “[I]t seems very strange that we're asking which of two precedents apply rather than what the Due Process Clause commands. I mean, it's just a weird question presented as far as I'm concerned.”

And those comments came from Sotomayor and Gorsuch — the two justices who most strongly and affirmatively laid out their concerns about asset forfeiture during Monday’s arguments.

“[C]learly, there are some jurisdictions that are using civil forfeiture as funding mechanisms and say: ‘Ah, you can get your car back if you call between 3 and 5 p.m. on a Tuesday and speak with someone who is never available, right? I mean, that is happening out there,” Gorsuch said, adding that that doesn’t seem to be the case in Alabama. Telling Dvoretzky outright that he is “very sympathetic with the problem that you've identified,” Gorsuch then said, “I'm just wondering, is this the case that presents the due process problem that we should be worried about?”

Sotomayor didn’t share Gorsuch’s concerns about the case — but did share his larger concerns outside of the case itself:

When Dvoretzky mentioned the facts of his clients’ cases a few moments later, a clearly frustrated Sotomayor told him, “That's not the question before us, whether the process here was enough or not.” (Read the emphasis on “here.”)

Keep it to the question presented as you began your argument, she seemed to be saying, or there’s no way for us to stop the worst result today.

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Defending forfeiture

Enter LaCour, who opened his arguments by mocking the claim that innocent people whose vehicles are taken by the police might want them back before a months-long or even years-long forfeiture proceeding can be resolved:

The Biden administration wasn’t much better, with Nicole Reaves, Assistant to the U.S. Solicitor General, later claiming:

These history points are disputed. There were discussions throughout the arguments on Monday, as well as in the briefs, about whether there even are apt historical analogues to modern civil asset forfeiture like that at issue here.

Despite that, LaCour — most recently seen very unsuccessfully asking the justices to allow Alabama to ignore June’s Voting Rights Act ruling about its congressional maps — decided to go with mockery. And though the Biden administration didn’t go with such a mocking approach, it did raise similar concerns.

Justices Clarence Thomas (who previously has raised questions about civil asset forfeiture), Jackson, Gorsuch, Sotomayor, and Elena Kagan all had questions about LaCour’s approach.

Kagan — directly aiming at LaCour’s opening point and two earlier cases that Alabama, the Biden administration, and Kavanaugh have claimed essentially, if not completely, resolved that no additional process is due in a forfeiture situation — told LaCour, “[W]e know a lot more now than we did when [those cases] were decided about how civil forfeiture is being used in some states, about the kinds of abuses that it's subject to, about the kind of incentives operating on law enforcement officers that tend toward those abuses.”

Why, in light of that, shouldn’t the court consider the possibility of retention hearings for protection of due process interests in the interim while a forfeiture proceeding is more slowly proceeding?

That led to LaCour’s most full-throated defense of asset forfeiture and attack on the request for retention hearings:

LaCour’s attack led to the most “I feel you” response of the day:

There was substance behind that, with Sotomayor going on to note that defendants and people “tied to criminal activity” would not be likely to go to a retention hearing “because whatever they say will be used against them in the criminal case.”

Sotomayor’s fellow civil asset forfeiture skeptic, however, kept hewing to his concerns about whether this is the right case. At one point late in the argument, Gorsuch explicitly asked Reaves whether the court needed to decide most any of the questions raised throughout the arguments and in the briefs if they resolve the case against the challengers on narrow factual grounds.

“I think that's right,” Reaves replied. “You could issue a very narrow decision in this case.”

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In conclusion

Remembering that the number one rule of the Supreme Court is that it takes five votes to have a majority, Gorsuch’s questions loom large.

Gorsuch’s questions about Alabama and the challengers make it seem very unlikely that he believes Culley and Sutton should win — insofar as that would mean getting a retention hearing.

But, of course, the counterpoint from Jackson and Sotomayor would be that that’s not the question presented. Just choose the test, they would say, and send it back to the lower court to resolve that fact-based question.

Of course, for any of that to matter, they would need Kagan to join them, which would seem likely, and Gorsuch would need to get (at least) Thomas with them as well.

At the end of the arguments, then, it appeared that Culley and Sutton were unlikely to succeed in their case. It also appeared, though, that Gorsuch, Sotomayor, and others might be looking for a way to keep the door open so that the challengers — or, at the least, others like them in places with more significant civil asset forfeiture abuse — will be able to raise due process claims against civil asset forfeiture “with more teeth,” as Sotomayor and LaCour discussed at one point, going forward.