Supreme Court Justices Clarence Thomas and Neil Gorsuch seem to imply wanting to hear future cases regarding how civil forfeiture cases are assessed.
On Thursday, the Court's 6-3 decision in Culley v. Marshall found that civil forfeiture cases involving personal property require a timely but not a separate preliminary hearing. Justice Brett Kavanaugh issued the opinion.
The case stems from two plaintiffs from Alabama, Halima Culley and Lena Sutton, who had their vehicles seized after they were being driven by another individual and police discovered drugs inside.
"When police seize and then seek civil forfeiture of a car that was used to commit a drug offense, the Constitution requires a timely forfeiture hearing," Kavanaugh wrote. "The question here is whether the Constitution also requires a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing.
"This Court's precedents establish that the answer is no."
The Court heard oral arguments on October 30, debating whether local courts should provide individuals with a probable cause hearing after a piece of property is seized by police.
Civil asset forfeiture laws are on the books in all 50 states, though each state has its own unique policies that determine how incidents are reported and where proceeds go.
But a concurrent opinion written by Thomas and Gorsuch, who were among the six-member conservative majority who all voted in favor, ponders whether future cases could be better adjudicated under the laws and Constitution.
The pair also express some agreement with Justice Sonia Sotomayor's dissenting opinion, writing: "This case leaves many larger questions unresolved about whether, and to what extent, contemporary civil forfeiture practices can be squared with the Constitution's promise of due process."
They conclude: "In asking the questions I do today, I do not profess a comprehensive list, let alone any firm answers. Nor does the way the parties have chosen to litigate this case give cause to supply them.
"But in 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 '[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.'"
Attorney Nicole Brenecki told Newsweek via email that the Court's decision fails to strengthen the protection afforded to personal property under the due process clause.
"One positive aspect of this decision is that, despite there being no requirement for a post-seizure hearing, the Court underscored the significance of a prompt post-seizure hearing," she said. "However, this language may not be strong enough given that most lower-level courts are overburdened and process cases slowly."
The National Federation of Independent Business, a nonprofit association of small businesses with presence in all 50 states, scrutinized the decision—saying in a press release that it is "disappointed" and that "many small businesses will be forced to go through a lengthy and costly forfeiture process."
NFIB filed an amicus brief in the case in June 2023.
"When it comes to civil asset forfeiture, small business owners who rent, sell or conduct cash transactions are particularly vulnerable to harm," Beth Milito, executive director of NFIB's Small Business Legal Center, said in a statement.
"Because of this decision, many small business property owners will continue to be targeted and injured by a civil asset forfeiture procedure that violates due process and punishes businesses for the actions of the public."
Rob Smith, a senior attorney with the NFIB Small Business Legal Center, told Newsweek via email that NFIB is "encouraged" by what Thomas and Gorsuch wrote.
"The Court benefits from the opportunity to ponder this important question in future cases, and hopefully, it does," Smith said. "But for the small business whose company vehicle or property has been seized or will be seized before the Court considers the question again, waiting for future cases is easier said than done."
Update 05/09/24, 3:05 p.m. ET: This story was updated with comment from Rob Smith.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Nick Mordowanec is a Newsweek reporter based in Michigan. His focus is reporting on Ukraine and Russia, along with social ... Read more
