Alvarez v. Smith: What Process is Due for Individuals Whose Personal Property Is Seized? (Argument Preview)
Below, Alexis Grant previews Alvarez v. Smith, one of two cases to be heard by the Supreme Court on Wednesday, October 14. Alexis is a former Akin Gump summer associate and a 3L at the University of Michigan Law School. Check the Alvarez v. Smith (08-351) SCOTUSwiki page for additional updates.
On October 14, in No. 08-351, Alvarez v. Smith, the Court will consider whether the Due Process Clause provides individuals whose personal property was seized by government authorities pursuant to a state criminal forfeiture statute with the right to an interim probable-cause hearing before the actual forfeiture hearing.
The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) permits the warrantless seizure of personal property involved in certain drug crimes as long as there is probable cause to believe it was involved in a drug crime and, therefore, subject to forfeiture. Although forfeiture proceedings are required under DAFPA, as many as 187 days can elapse between the seizure and the filing of judicial forfeiture proceedings.
The respondents in this case are six owners of personal property seized by Chicago Police pursuant to DAFPA. They filed a class action against the Cook County State's Attorney, the City of Chicago, and its police superintendent under 42 U.S.C. § 1983, alleging that the defendants (petitioners here) had violated the Due Process Clause by holding their property "for more than 10 days without a probable cause to detain hearing." The City and its officials filed a motion to dismiss, which the district court granted. They argued (and the claimants agreed) that the district court was bound by the Seventh Circuit's decision in Jones v. Takaki, which held that a claimant is merely entitled to a timely forfeiture proceeding. In Jones, the Seventh Circuit "“ following the Supreme Court's decision in United States v. $8,850 "“ applied the speedy trial test from Barker v. Wingo (1972) to determine whether the delay in the initiation of a forfeiture proceeding violated due process.
On appeal, the Seventh Circuit reversed, overruling Jones. The court declined to follow $8,850, which it regarded as addressing "the speed with which the civil forfeiture proceeding itself is begun" rather than "whether there should be some mechanism to promptly test the validity of the seizure." To address the latter question, the Seventh Circuit applied the three-part test from Mathews v. Eldridge (1976). Relying in part on the hardship that could result from the seizure of an automobile, the Seventh Circuit held that DAFPA facially violated the Due Process Clause "given the length of time which can result between the seizure of property and the opportunity for an owner to contest the seizure under the DAFPA." It remanded the case, directing the court below to provide "some sort of mechanism to test the validity of the retention of the property is required."
The State's Attorney filed a petition for certiorari, which was granted on February 23, 2009.
Petition for Certiorari
In his petition, the State's Attorney emphasizes that the Court should grant certiorari to resolve which test lower courts should apply to determine whether application of a forfeiture statute to a particular defendant violates the Due Process Clause.
The State's Attorney argues that the Barker test as applied in $8,850 provides the proper analytical framework for assessing whether a civil forfeiture statute satisfies due process. Here, however, the Seventh Circuit erroneously employed the Mathews analysis and focused on whether due process requires an interim measure "to promptly test the validity of the seizure" prior to the actual forfeiture proceeding. The Seventh Circuit's decision thus creates a split in the circuits (the majority of which apply the Barker/$8,850 test). Moreover, this question already was addressed in United States v. Von Neumann (1986), which flatly rejected the argument that that due process requires anything more than the forfeiture determination itself. Thus, the State's Attorney concludes, "the existence or non-existence of this alternative mechanism is simply irrelevant"; the only question is whether the delay in initiating the forfeiture proceeding violates due process.
Opposing certiorari, the claimants first contend that the decision below did not create a circuit split because three Second Circuit decisions had already established that a prompt, postseizure hearing is required, and other circuits had similarly held that owners of a government-seized vehicle are entitled to a hearing shortly after seizure. Second, the decision below is consistent with established Supreme Court precedent not only in deciding that due process requires a pre-forfeiture hearing soon after personal property is seized, but also in relying on the Mathews criteria in order "to determine when the hearing must be held and to define the nature and scope of the hearing." Third, the Supreme Court's decision in United States v. James Daniel Good Realty (1993) demonstrates that the Mathews analysis "unquestionably" applies to forfeiture proceedings. Although the Court in Good applied Mathews to the seizure of real property, once personal property is seized, the concerns distinguishing it from real property vanish and "the due process analysis is the same [for personal property] as it is for real property." In both cases, the claimants assert, "a post seizure hearing is both feasible and necessary." Fourth, this case is distinguishable from Von Neumann and $8,850 because the claimants here were seeking their due process right to interim relief, whereas the property owners in the latter cases already had access to post-seizure interim relief and were seeking outright dismissal of their forfeiture actions. According to Respondents, this distinction controls which due process analysis is applied. That is, property owners seeking interim hearings are subject to due process review under Mathews; and those seeking dismissal of their forfeiture actions should be analyzed under Barker. Fifth and finally, because DAFPA does not prohibit post-seizure hearings, the Due Process Clause entitles Plaintiffs to alternative, interim remedies that are in fact standard in Federal forfeiture laws.
In the petitioner's brief on the merits, Cook County State's Attorney Anita Alvarez (the successor to Richard Devine, who filed the cert. petition) argues first that the decision below is not only inconsistent with common law origins of in rem forfeiture, but it also departs from the Court's well-established precedent holding that a judicial forfeiture hearing alone is sufficient to ensure the reasonableness of the seizure.
According to Alvarez, nothing in the Constitution mandates a probable cause hearing prior to the actual forfeiture hearing. On the contrary, this additional procedural step would impose unnecessary costs on the State, as it would amount to no more "than a rushed version of the civil forfeiture hearing itself." In concluding otherwise, the Seventh Circuit mistakenly equated personal property with personal liberty, which would require greater protection than what is provided currently under DAFPA. Moreover, the Seventh Circuit's conclusion that the lack of a postseizure hearing qualified as a facial violation is inconsistent with the flexible, ad hoc approach as provided under the Barker framework.
Finally, Alvarez asserts that DAFPA's constitutionality is further demonstrated by the fact that it was modeled after the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (CAFPA). DAFPA, for instance, provides a property owner the opportunity to seek the return of personal property at any time through judicial and statutory mechanisms that are comparable to the petition for remission procedure available under CAFPA. Moreover, CAFPA's procedural timetable for forfeiture proceedings is potentially longer than that under DAFPA. In practical terms, Alvarez warns against mandating a prompt, post-seizure hearing, as it could impair the State's ability both to pursue its investigation for the benefit of the in rem proceeding and to avoid "the release of potential evidence in a criminal action long before the criminal statute of limitations has run."
In their response to petitioner's brief on the merits, respondents argue that prompt, postseizure review before an objective decision maker is constitutionally necessary to guard against potential bias and overreaching by the government arising from its pecuniary interest in seizing personal property. To assess the timing and scope of the process due between seizure and trial, the Court should employ the Mathews framework, which will provide predictability in a broad range of scenarios.
Respondents address specifically three arguments raised by petitioner in her merit brief. First, they dispute petitioner's contention that the common law did not provide for interim remedies in forfeiture cases by highlighting the common law right to compel the government to act and the early colonial statutory right to post bond, both of which served to offset pretrial delays. Second, respondents outline four reasons why the Barker standard should not be applied to this case: (1) the Barker factors fail to take into account the interests of innocent property owners or creditors; (2) Barker is limited to disputes focusing on dismissal of the charges rather than interim remedies; (3) applying Barker in this setting would be inconsistent with Supreme Court precedent; and (4) Barker's case-by-case approach is inefficient and unpredictable. Third, respondents challenge petitioner's suggestion that respondents had access to interim remedies by claiming, initially, that petitioner improperly raised this argument for the first time in this Court after failing to raise it previously in the lower courts. Were this argument to proceed, however, according to respondents, the remedies petitioner cites are nonetheless preempted by the DAFPA.
Respondents conclude by applauding the Seventh Circuit's remand order as "measured and incremental" in allowing the district court to determine an appropriate interim remedy based on its development of a full factual record. Its review, analyzed under Mathews, "proves that interim hearings are not only feasible, but that they will also benefit all concerned parties."