Wednesday, October 14, 2009
Courts - SCOTUS looks at asset-forfeiture hearings, in a review of a 7th Circuit opinion [Updated]
Jennifer Forsyth of the WSJ Law Blog has the report, including links to a story in today's WSJ, and this conclusion:
The 7th Circuit, in the Chicago case up for review, ruled that the Constitution requires owners to get a more timely chance to reclaim their property. As a bonus, the case features an interesting Sonia Sotomayor twist.From the WSJ story:
While on the 2nd Circuit, the justice struck down New York City’s forfeiture system, ruling that it didn’t give owners a prompt enough opportunity to challenge seizures. “A car or truck is often central to a person’s livelihood,” she wrote.
Is this another example of that common Sotomayor touch that so appealed to Obama?
The justices will hear a case from Chicago involving six different property owners, including Tyhesha Brunston, who loaned her Chevrolet Impala to a childhood friend who was later arrested in the car and charged with possessing drugs.There is much more to this WSJ report.
"Words can't describe how mad I was" at him, says Ms. Brunston, 30 years old. "He was not supposed to be smoking marijuana in my car."
Illinois law allows "innocent owners" to reclaim seized property. But in practice they may have to wait months -- or in Ms. Brunston's case, three years -- before recovering their cars.
Last year, the Seventh U.S. Circuit Court of Appeals in Chicago ruled that the Constitution requires that owners get a more timely chance to seek return of their property.
The appeals court ordered a trial judge to work with city officials and lawyers representing Ms. Brunston and other owners of seized property to fashion "some sort of mechanism" to test whether seizures were valid.
"The hearing should be prompt but need not be formal," the court said. A neutral judge or hearing officer would decide whether the owner got possession of the property during the lengthy period before the more formal forfeiture proceeding was held -- something like a property equivalent of a bail hearing before trial.
The Cook County state's attorney appealed the decision. The Justice Department, 20 states and several organizations representing state and local government have backed the appeal.
"It's really about government bullying," said Craig Futterman, a University of Chicago law professor representing Ms. Brunston and other owners in the case.
For law enforcement, "forfeiture has become a multibillion-dollar business across the nation," he said, noting that Chicago netted nearly $14 million through asset forfeitures in 2008. "With those powerful interests in taking and seizing and keeping property, there needs to be some kind of check," he said.
A Justice Department fund that receives proceeds from forfeitures of cash and property across the country received $1.2 billion in cash and cash equivalents in the fiscal year ended Sept. 30, 2008, down from $1.4 billion in the previous fiscal year.
In 2000, then-U.S. District Judge Michael Mukasey rejected a challenge to New York City's forfeiture system, which was similar to Chicago's. He found that if police had sufficient reason to arrest a suspect, they also were justified in seizing the property pending a forfeiture hearing months or years later.
That decision was reversed by Justice Sonia Sotomayor, then a judge on the Second Circuit in New York.
"A car or truck is often central to a person's livelihood or daily activities," she wrote. The Constitution gives people a right to force the city to justify seizures "at an early point...in order to minimize any arbitrary or mistaken encroachment upon plaintiffs' use and possession of their property."
Here is the SCOTUSblog Wiki page for the case, Alvarez v. Smith.
Notice that the State of Indiana has joined a brief on behalf of Petitioner, arguing that the 7th Circuit's decision requiring that owners receive a more timely chance to reclaim their property should be reversed. (It is #7 on this list: Filed State Amicus Briefs 2009 AG Zoeller.)
[Updated at 5:19 PM] See this post-argument Volokh Conspiracy entry by Ilya Somin.