In Culley, Justices Unlikely To Set New Forfeiture Standards

By Jennifer Freel, Michael Murtha and Mark Mariani | November 20, 2023, 5:33 PM EST ·

Jennifer Freel
Jennifer Freel
Michael Murtha
Michael Murtha
Mark Mariani
Mark Mariani
The U.S. Supreme Court is currently considering a case that could reshape the practice of civil asset forfeiture — the process that allows the government to seize assets allegedly connected to criminal activity, absent a conviction or even an arrest.

Culley v. Marshall is two consolidated cases in which the state of Alabama instituted civil forfeiture proceedings against two innocent civilians, Halima Tariffa Culley and Lena Sutton.[1] The petitioners lent their cars to people who were later arrested for drug offenses.

The state of Alabama instituted civil forfeiture proceedings against the cars. The process took 14 and 20 months, respectively, for the petitioners to vindicate their rights and get their cars back. In the meantime, one petitioner lost her job and was unable to pay her bills.

Culley and Sutton filed separate class actions in two federal district courts against the state of Alabama, various Alabama state officials, the city of Satsuma and the town of Leesburg.

In Culley v. Marshall, the U.S. District Court for the Southern District of Alabama granted the state defendants' motions for judgment on the pleadings and the city of Satsuma's motion to dismiss. In Sutton v. Town of Leesburg, the U.S. District Court for the Northern District of Alabama dismissed Sutton's Eighth Amendment claim, and later granted summary judgment to the town of Leesburg on her 14th Amendment claim.

Culley and Sutton both appealed, and their cases were consolidated. On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed both decisions, holding that due process does not require "a probable cause hearing to determine whether the [state] can retain ... property during the pendency of litigation."

All that is required, the Eleventh Circuit reasoned, is a timely merits hearing on forfeiture, which it said is "governed by Barker" — that is, the Supreme Court's 1972 decision in Barker v. Wingo. Culley and Sutton subsequently petitioned for a writ of certiorari, and the Supreme Court granted the writ.

The petitioners in Culley want to rein in the government's civil forfeiture powers, and recently presented argument to the Supreme Court with that goal in mind. Unfortunately for the petitioners, the justices questioned whether Culley was the right vehicle for analyzing the due process concerns of civil asset forfeiture during oral arguments on Oct. 30.

Justice Sonia Sotomayor's summation — "Bad facts make bad law, and I fear we may be headed that way" — likely signals that the case won't lead to a significant change in forfeiture procedure.

The petitioners argued that the due process clause of the 14th Amendment requires a post-seizure probable cause hearing prior to the statutory judicial forfeiture proceeding. The probable cause hearing would, if the court agreed, permit those claiming to be innocent owners — like the petitioners — to obtain an evidentiary hearing shortly after their property is seized to determine post-seizure custody.

Such an intermediate hearing would provide relief to innocent owners, the petitioners assert, allowing them to circumvent months without their property while the court determines whether the asset is forfeitable.

During argument, several justices acknowledged problems with the civil forfeiture system.[2] Justices Sotomayor, Neil Gorsuch, Elena Kagan and Ketanji Brown Jackson signaled sympathy with those who suffer civil forfeiture abuse.

These justices acknowledged that state and local authorities have incentives to confiscate, keep and resell as much as possible — usually vehicles and cash — because many jurisdictions keep all proceeds from the sale of seized property.

The justices further acknowledged that authorities frequently place impossible obstacles for civilians to recover their seized assets. As Justice Gorsuch explained: "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?"

But the justices raised several factual and legal issues that could prevent this case from confronting the problems posed by civil asset forfeiture.

On the factual side, the petitioners did not argue that systemic forfeiture abuse was occurring in Alabama. Justices Gorsuch and Clarence Thomas also suggested that the petitioners could have remediated the car custody problem by filing a summary judgment motion on day one, rendering a decision from the court unnecessary.

In response, Justice Sotomayor emphasized that the timing of the petitioners' summary judgment motions might be irrelevant to the constitutional question before the court. Justice Kagan raised concerns that a post-seizure probable cause hearing that occurs prior to the statutory judicial forfeiture proceeding functionally accelerates a trial on the merits.

The legal issues seemed equally problematic for the justices. First, Justices Samuel Alito, Gorsuch and Thomas emphasized — and oral argument illustrated — the dearth of attention to the issue of whether the U.S. Constitution requires retention hearings or contains the "innocent owner" defense.

Indeed, the very first question at oral argument, from Justice Thomas, concerned "an antecedent question as to whether or not there's any Constitutional requirement for additional hearings in the context of forfeiture." The justices did not seem persuaded that such a requirement existed.

Second, Justices Brett Kavanaugh and Amy Coney Barrett questioned whether precedent — specifically, the court's language in U.S. v. Von Neumann[3] and U.S. v. $8,850[4] — already held that a judicial forfeiture proceeding alone is sufficient for due process in the civil forfeiture context.

The petitioners distinguished these cases, arguing that the "innocent owner" affirmative defense is what gives rise to the need for further process — i.e., the post-seizure probable cause retention hearing. But Justice Barrett, for the sake of argument granting this premise, questioned whether the petitioners are asking for "more robust process in this context of civil forfeiture than a criminal defendant gets."

Justice Kagan disagreed with her colleagues that Von Neumann and $8,850 squarely govern this case. "We have a couple of sentences which were written broadly and, if taken literally, would … answer [this] case," she explained. "But, in fact, the two cases that we had were about different kind of procedures at a different time in the process."

Seeing a potential constitutional niche this case could explore, her questions to the respondents suggested her openness to probable cause hearings: "So, if we look around the world and we think there are real problems here and those problems would be solved if you got a really quick probable cause determination, why shouldn't we do that?"

There is presently a circuit split regarding additional probable cause hearings in the civil forfeiture context. The petitioners urge the court to adopt the reasoning of the U.S. Court of Appeals for the Second Circuit[5] and the U.S. Court of Appeals for the Seventh Circuit.[6]

These circuits rejected applying the speedy trial test set out in Barker v. Wingo[7] for deciding the necessity of probable cause hearings. Instead, they adopted the high court's test in its 1976 decision in Mathews v. Eldridge,[8] which applies to due process considerations under the 14th Amendment.

Under Barker, a criminal defendant's constitutional right to a speedy trial cannot be established by an inflexible rule; it is determined only on an ad hoc balancing basis. The court accordingly adopted a four-factor balancing test to discern whether a speedy trial violation has occurred.

Courts must consider the length of delay, the reason for the delay, the defendant's assertion of his right and any prejudice to the defendant when considering whether a Sixth Amendment speedy trial violation has occurred. The respondents urge the court to uphold Eleventh Circuit precedent,[9] which held that Barker governs civil forfeiture, so a timely merits hearing alone is sufficient to satisfy constitutional due process.

The Eleventh Circuit reasoned that Von Neumann and $8,850 squarely urged it to apply Barker. But the petitioners claim that Mathews applies, and point to, among other things, Krimstock v. Kelly, a 2002 Second Circuit decision authored by then-Judge Sotomayor.[10]

Under Krimstock, Barker does not govern whether probable cause hearings are necessary, because probable cause hearings do "not concern the speed with which civil forfeiture proceedings are instituted or conducted. Instead, plaintiffs seek a prompt post-seizure opportunity to challenge the legitimacy of the City's retention of vehicles while those proceedings are conducted."

Despite the legal and factual issues inherent to this case, some justices appeared concerned that Barker is ill-equipped to govern the ostensible constitutional right to post-seizure probable cause hearings. Justice Thomas, for example, explained that Barker focuses "on timing as opposed to whether the additional right exists at all."

Justices Gorsuch and Sotomayor were also in agreement that "if we go down the Barker road and just focus on timing, we're losing that capacity to address" cases where "processes … are deeply unfair and obviously so in order to retain the property for the coffers of the state." Justice Sotomayor added that, even when Barker's four-factor test functions at full strength, "you're still building in massive delay. How about three months when it's hardship?"

Despite these Barker concerns, the end of oral arguments might be telling for an eventual decision. Justices Gorsuch and Kavanaugh asked amicus counsel for the U.S. how to avoid ruling on the question presented, how to draft a narrow opinion or whether to acknowledge the right to post-seizure retention hearings at all.

In summary, some members of the court seemed sympathetic to the underlying problems of civil forfeiture abuse, and concerned about Barker's ability to provide quick relief to innocent car owners. But the justices in general seemed uncertain at best in both identifying a new constitutional right — and how Mathews would properly facilitate that right in the civil forfeiture context.

Assuming their questions at oral argument signal how the justices might decide, their decision will likely have minimal to no effect on white collar cases. The court seems unlikely to change the status quo.

And even if the court were to issue a holding requiring a probable cause hearing to justify prejudgment restraint, oral argument suggests that the court would limit it to the seizure of vehicles with innocent owners — a fact pattern distinct from the kinds of assets and subject matter typically involved in white-collar cases.

Jennifer S. Freel is a partner at Jackson Walker LLP. She previously served as an assistant U.S. attorney in the U.S. Attorney's Office for the Western District of Texas.

Michael J. Murtha is an associate at the firm.

Mark Mariani is an associate at the firm.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.







[7] Barker v. Wingo , 407 U.S. 514, (1972).

[8] Mathews v. Eldridge , 424 U.S. 319 (1976).



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