Dear John,

You may have seen news of the U.S. Supreme Court’s ruling last week in Culley v. Marshall, a civil forfeiture case involving seized cars. Culley wasn’t litigated by IJ but, as you may have guessed, we filed an amicus (friend-of-the-court) brief to make our views known to the Justices. Unfortunately, the Court held that the Due Process Clause does not require a prompt post-seizure hearing after a vehicle is seized under civil forfeiture statutes.  

This is, of course, a disappointing result. But IJ never takes defeat lying down, and several elements of the Culley decision give us a great deal of optimism about the future of our campaign to ultimately end civil forfeiture.  

For one, the dissenting opinion written by Justice Sotomayor (joined by Justices Kagan and Jackson) extensively cites IJ’s amicus brief and specifically singles out our vehicle forfeiture case in Detroit as an example of how “low-income communities are ... 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.” Its summary of the problem sounds like it was ripped right from IJ’s website: “In short, law enforcement can seize cars, hold them indefinitely, and then rely on an owner’s lack of resources to fund agency budgets, all without any initial check by a judge as to whether there is a basis to hold the car in the first place.” 

And here’s where things get interesting. Even though it sided with the majority on the specific issue in this case, a separate concurrence penned by Justice Gorsuch (joined by Justice Thomas) similarly cites our amicus and relies heavily on IJ’s extensive forfeiture research. It cites Policing for Profit and Fighting Crime or Raising Revenue? to explain the many and varied problems with modern civil forfeiture, asking, “Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have led to egregious and well-chronicled abuses?”  

Gorsuch and Thomas clearly want the Court to address the constitutionality of modern civil forfeiture statutes in a more sweeping manner. And we now know there are at least five Justices on the Court who are deeply skeptical of civil forfeiture—and they are inviting future challenges. IJ will gladly accept the invitation. 

IJ has been doing pathbreaking work on civil forfeiture for over a decade: securing landmark precedent, returning more than $21 million in seized assets to its rightful owners, and transforming the law from coast to coast. Though Culley wasn’t resolved in the way we hoped, it cemented the extent to which IJ is setting the terms of the debate. Five Justices are not only interested in hearing more forfeiture cases, but they also seem eager to strike down the worst aspects of the practice, including its perverse financial incentives and the lack of protections for innocent owners. 

Yes, we lost a battle in the fight for forfeiture reform, and that stings. But it came with extremely promising signs that we’ll win the war. 

Justice Gorsuch concludes his concurrence as follows: “[I]n future cases, with the benefit of full briefing, I hope we might begin the task of assessing how well the profound changes in civil forfeiture practices we have witnessed in recent decades comport with the Constitution’s enduring guarantee that ‘no person shall ... be deprived of life, liberty, or property, without due process of law.’”  

I hope so, too, and I know just the team to help the Court do it.

Scott

Scott G. Bullock

President and Chief Counsel

Institute for Justice

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