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THE SUPREME COURT RULES THAT COPS CAN STEAL YOUR STUFF—AS THEY
ALWAYS HAVE  
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Elie Mystal
May 10, 2024
The Nation
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_ By a 6-3 vote, the conservative justices decided that there is no
need for the state to provide a preliminary hearing in civil
forfeiture cases. _

A woman sits in her car, which police had seized for a crime she did
not commit., Nam Y. Huh / AP Photo

 

“Civil asset forfeiture” is the legal euphemism for when the cops
steal your stuff. In this country, if you are stopped or arrested, the
police can take all the personal property you have on you and call it
“incident to the arrest.” That property can include your phone or
your legally purchased guns, and it almost always includes your car.

When cops decide to help themselves to your property, they can do it
without a warrant, without securing a conviction, without
even _charging_ you with a crime. Once they’ve taken it, the cops
then force people to engage in a long legal fight to get their stuff
back. Often, the value of the property stolen by the government is
less than the cost of lawyers needed to fight the government.
There’s no right to public counsel when the cops steal from you, so
most people can’t afford to fight them, never get their stuff back,
and the cops end up selling it for profit.

Civil forfeiture is a booming business and has become a key source of
income for some cities and entire states. According to “Policing for
Profit [[link removed]],” a report
from the Institute for Justice, federal, state, and local governments
made $68.8 billion from civil forfeiture between 2000 and 2019.

Most people I know
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that civil forfeiture should be unconstitutional as a point-and-click
violation of the Due Process clause. The Fifth and Fourteenth
Amendments both say that we should not be “deprived of life, liberty
or property without due process of law.” Civil forfeiture is
literally depriving people of their property with no process at all.

Unfortunately, most people I know are not on the Supreme Court. On
Thursday, the six unelected Republicans who rule this country said
that civil forfeiture can continue to happen so long as the government
eventually provides a hearing, even if the hearing takes place long
after the theft and most people can’t afford to appeal.

The case is called _Culley v. Marshall_
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deals with two straightforward civil forfeiture examples from Alabama.
Halima Culley loaned her car to her son, who was stopped and arrested
while driving with marijuana. Lena Sutton loaned her car to a friend
who was subsequently busted while driving with methamphetamines.
Alabama cops seized both vehicles, even though they didn’t belong to
the person driving them, and didn’t return them to their real owners
even after they learned of their mistake. Instead, the cops made a
civil forfeiture claim and attempted to keep Culley’s and Sutton’s
cars.

A report
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the Southern Poverty Law Center found that Alabama made $2.2 million
in 2015 from stealing property through civil forfeiture, so the cops
are fairly heavily incentivized to take property even when the owners
are not guilty of anything. But according to alleged attempted rapist
Brett Kavanaugh, Alabama’s grand theft auto operation is just fine.

Writing for a 6-3 majority
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the usual split: all Republican justices in the majority, all
Democratic justices in dissent), Kavanaugh reduced the issue to one of
timing. The plaintiffs Culley and Sutton wanted the state to provide a
“preliminary” hearing and force the police to justify stealing
their cars. Kavanaugh said that the state already provides a
“timely” hearing and said that all the plaintiffs wanted was to
get their stuff back more quickly. He argued that the plaintiffs’
arguments were just “a backdoor argument for a more timely
forfeiture hearing to allow a property owner with a good defense to
recover her property quickly.”

As he does so often, Kavanaugh willfully missed the point. The
plaintiffs want to stop the government from taking their property, not
argue after the fact that the government should give it back.
Remember, we’re talking about cars here. If the cops arrest somebody
and take their car, then find out later that the car does not belong
to the person they arrested, the normal (and constitutional, and
basically decent) thing to do is return the car to its rightful owner.
But instead of returning the cars to the people who own them, the
police in these cases wanted to not only keep the cars but then force
the owners to enter into litigation against the police to get the cars
back. That’s not a timing issue: That’s a mugging issue.

Think about it this way: If the cops arrest somebody and throw them in
jail, the accused is entitled to a _preliminary hearing_ where the
government has to explain to a court why that person should be kept in
jail and denied bail. That hearing is different from the trial to
convict and sentence the person. As a threshold issue, cops have to
explain why they locked somebody up. The same constitutional rule
should apply to a person’s property. If the police jack a car, they
should be forced to explain to a court why they’re keeping the car
instead of releasing the car on its own recognizance (just pretend
that the car is Lightning McQueen).

In dissent, Justice Sonia Sotomayor (joined by Justices Elena Kagan
and Ketanji Brown Jackson) made a critical distinction between
criminal forfeiture and civil forfeiture. It’s one thing if the
property involved is the subject of crime. If the car itself is
stolen, or if the car is a getaway vehicle that may contain blood or
other evidence of criminal activity, one can understand why the cops
might need to keep it. Criminal asset forfeiture can also be a form of
punishment—for instance, in the unlikely event that a Wall Street
type is ever forced to disgorge illegal or fraudulently obtained
profits.

Civil forfeiture, however, requires no crime. Sotomayor notes that 80
percent of civil forfeiture cases “are not accompanied by any
ultimate criminal conviction.” She further argues that unchecked
civil forfeiture can also lead to false pleas and settlements from
property owners desperate to just get their stuff back. She writes:

Loss of a car not only “takes away one’s ability to commute” but
also imposes a barrier to “buy[ing] necessities, access[ing]
healthcare, and visit[ing] family members, pharmacies, grocery stores,
hospitals, and other essential services.”… Given these burdens,
low-income communities are also the most vulnerable to pressure from
unchecked prosecutors, who can use coercive civil forfeiture processes
to extract settlement money from innocent owners desperate to get
their property back.

Kavanaugh was unmoved by these arguments, noting only that states are
free to rein in civil forfeiture abuses through legislation but the
Constitution does not require them too. It’s worth noticing that the
Republicans who claim to care so much about private property and
protecting citizens from government “theft” when it comes to
environmental regulations or tax laws have no problem allowing states
to steal cars from innocent citizens who aren’t even charged with
crimes.

For what it’s worth, while Kavanaugh is probably off at a Buffalo
Wild Wings somewhere wondering if Alabama can use its forfeiture funds
to hire better offensive coordinators for their football programs,
Justice Neil Gorsuch seemed at least to struggle with his intellectual
hypocrisy. Gorsuch wrote a concurring opinion (joined by Justice
Clarence Thomas) where he declared both the majority and the dissent
to be right.

Oh, he came down on the side of the Republican majority of course,
because even if both sides are right, Gorsuch usually thinks the
Republican position is _more_ right. And, because this is Gorsuch
we’re talking about, he treated us in his opinion to an archaic,
intellectually masturbatory discussion of the law of “deodand
[[link removed].]”—which
(I’ve now been forced to learn) was the 11th-century English
equivalent to civil forfeiture: Property that caused someone’s death
was forfeited “to God” or “the Crown,” but usually the local
lord who needed some cash.

Luckily, Gorsuch didn’t seem fond of this particular 11th-century
law (probably because he couldn’t figure out how to use it to hurt
women or Black people), so the legal upshot of Gorsuch’s concurrence
was this musing:

Why does a Nation so jealous of its liberties tolerate expansive new
civil forfeiture practices that have “led to egregious and
well-chronicled abuses”?… In this Nation, the right to a jury
trial before the government may take life, liberty, or property has
always been the rule. Yes, some exceptions exist. But perhaps it is
past time for this Court to examine more fully whether and to what
degree contemporary civil forfeiture practices align with that rule
and those exceptions.

What I _think_ Gorsuch is saying is that if some kind of carefully
crafted lawsuit came before the court, Gorsuch (and Thomas) would
declare at least some aspects of civil forfeiture unconstitutional. I
don’t know what that lawsuit would look like. In this case, Culley
and Sutton were asking the court to impose a process, that of a
“preliminary” hearing, on the states, but we already know that
justices like Gorsuch and Thomas don’t like for the courts to do
anything to proactively stop the states from violating the
Constitution or civil rights (unless the states are trying to keep
guns out of the hands of mass shooters—then they think the
Constitution gets violently angry). They were never going to go for
this one, theft of private property be damned.

But perhaps a lawsuit challenging the asset seizure itself instead of
the timeliness of the hearing would tickle Gorsuch’s fancy. I’m
sure he could find something from _Beowulf_ about the proper
procedure for stealing a golden cup.

In the meantime, the cops will continue to rake in billions of dollars
from taking people’s stuff. As usual, Republicans have rendered the
Constitution impotent in the face of any two-bit criminal who happens
to wear a badge instead of a ski mask.

_ELIE MYSTAL is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
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He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
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Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
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* Supreme Court
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* civil asset forfeiture
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* Fifth Amendment
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* Fourteenth Amendment
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* Police
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* law
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