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Title: Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional
Source:
Forbes/Institute For Justice
URL Source: https://www.forbes.com/sites/instit ... unconstitutional/#38aee6e63da5
Published: Aug 31, 2017
Author: Nick Sibilla,
Post Date: 2017-09-01 09:47:31 by Deckard
Keywords: None
Views: 866
Comments: 2
In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure. The decision comes just days after Hoosier lawmakers held a summer study committee to discuss forfeiture reform, and less than a month after U.S. Attorney General Jeff Sessions announced a new policy to expand police seizures nationwide. The case began last September when an officer with the Indianapolis Metropolitan Police Department pulled over Leroy Washington and found a small amount of cannabis. Police charged Washington with dealing marijuana and seized his car. But Washington fought back. With help from Jeff Cardella, a criminal defense attorney and law professor at Indiana University, he filed a federal class-action lawsuit last November on behalf of other owners whose cars were held by law enforcement in Indianapolis. Between November 2016 and February 2017, those agencies seized at least 169 vehicles, or 11 cars per week on average. After he filed his lawsuit, Washington was able to recover his car, though he was still able to represent the class of owners. The lawsuit claimed that Indiana’s forfeiture laws violated the car owners’ right to due process, as guaranteed by the Fifth and Fourteenth Amendments. In Indiana, once property is seized, law enforcement can take up to 180 days to file a forfeiture complaint, i.e. a lawsuit to permanently confiscate the seized property. If the owner demands their car back, the deadline drops to 90 days from the date of the demand. Even worse, the property owner cannot challenge the seizure during that months-long hold period. That is because, under state law, seized property is “not subject to replevin,” a process that would allow the owners to regain wrongfully taken property while awaiting trial. In other words, Hoosiers would have to wait up to six months before they could even challenge a seizure in court. That even includes innocent, third-party owners (typically parents and spouses) who did not know or consent to their property being used in any criminal activity. As Judge Magnus-Stinson noted, losing one’s car for months on end “could cause significant hardship:” During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members. In order to prevent “erroneous deprivation” and to safeguard due process, property owners must be “provided with some sort of mechanism through which to challenge whether continued deprivation is justifiable.” As the U.S. Supreme Court noted almost 25 years ago, “our precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.” But Indiana’s forfeiture laws ban replevin and do not allow any other “opportunity for interim relief," which raises grave due process concerns. According to Judge Magnus-Stinson, “there is no judicial determination of probable cause for the seizure,” which means that “the only process that an individual receives prior to a forfeiture hearing is a law enforcement officer’s determination that probable cause exists for an arrest.” That is, by definition, a one-sided affair. “Allowing for the seizure and retention of vehicles,” she wrote, “without providing an opportunity for an individual to challenge the pre-forfeiture deprivation [is] unconstitutional.” In making her decision, Judge Magnus-Stinson relied heavily on Krimstock v. Kelly, where the U.S. Second Circuit Court of Appeals struck down New York City’s vehicle seizure laws as unconstitutional. Like in Indiana, New York City could detain cars for up to 25 days before beginning a forfeiture case. In order to provide due process, then-Judge Sonia Sotomayor wrote that the property owners must be given “a prompt post-seizure, pre-judgment hearing before a neutral judicial or administrative officer,” where they could challenge “the legitimacy of the City’s retention of the vehicles while those proceedings are conducted.” As a result, the city created a new Krimstock hearing process, named after the case. Although Krimstock set an important precedent to protect due process, abusive seizures still run rampant in New York City. According to Anca Grigore, a staff attorney at the Brooklyn Defender Services, New Yorkers who navigate the Krimstock hearing process face “coercive dynamics and burdensome procedures.” To shine a light on these car seizures, the Brooklyn Defender Services recently obtained public records from the New York Police Department. In 2014, the NYPD seized more than 2,400 vehicles for civil forfeiture. Out of those seizures, 586 owners (less than one-quarter) requested a Krimstock hearing. Yet only 15 Krimstock hearings were actually held, with just five owners successfully recovering their seized cars. And even then, that victory only meant that the owners could use their car before their forfeiture case actually went to trial, where their property could potentially be forfeited to the government. For hundreds of other property owners in New York City, the only real option is to accept settlement agreements with the NYPD: Police agree to return a seized car (and drop charges, if any were filed) in exchange for a settlement fee (which can cost up to $3,000) and the owner waiving their right to sue law enforcement. No wonder Grigore blasted civil forfeiture as “extortion of the poor.” With Hoosier law enforcement now blocked from detaining cars, Indiana lawmakers must now draft a new seizure law—and they should learn from the flawed Krimstock hearings. Meanwhile, a separate lawsuit challenging a “profit-driven forfeiture program” in Indianapolis is still ongoing. Under the Indiana Constitution, “all forfeitures which may accrue” must be sent to the state’s Common School Fund. But thanks to a loophole created in 1980s, police and prosecutors can deduct “law enforcement costs,” allowing agencies to re-route millions in forfeiture money away from public schools and towards their own bottom line. On behalf of forfeiture victims and concerned Hoosiers, the Institute for Justice filed a lawsuit last year in state court, claiming this “financing scheme” violates the Indiana Constitution. Notably, one of the reasons why Judge Magnus-Stinson ruled in favor of “robust procedural safeguards” was because “the government has a direct pecuniary interest in the outcome of the forfeiture proceeding.” “Police and prosecutors should not be allowed to keep and spend what they forfeit,” said Sam Gedge, an IJ attorney representing the plaintiffs who are challenging Indiana’s policing-for-profit system. “That only creates a dangerous profit incentive to seize people’s property, often without regard to basic due-process principles.” 
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#1. To: Deckard (#0)
... because they failed to provide a timely hearing for the property owner to contest the seizure.
This bullshit remains bullshit, even when repeated again, to the extent that it it falsely tries to make the impression that the court ruled that civil asset forfeiture is unconstitutional. The Court found that it was unconstitutional to effect seizure "for up to six months without judicial oversight and without allowing individuals the opportunity to challenge that seizure and deprivation – in other words without a post-seizure, pre-forfeiture hearing." The property had been seized but not forfeited. It was seized and held without recourse. There must be a pre-forfeiture hearing, and it must be timely. https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12016cv2980-61 This recycled nonsense originally appeared here: http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=52487 A federal judge in Indiana issued a sharp rebuke to civil forfeiture abuse on Monday, ruling that the Indianapolis Metro Police Department may no longer hold vehicles for up to six months before deciding whether to file official forfeiture paperwork. [...] The Order states, "Mr. Washington was ultimately arrested and charged with, among other offenses, dealing in marijuana." The Court stated that the government may hold cars but it must provide an opportunity for an individual to challenge the pre-forfeiture deprivation. For the lack of such opportunity for the drug dealer to challenge the pre-forfeiture deprivation of his vehicle, the Indiana law was unconstitutional. Add the opportunity for the drug dealer to challenged the pre-forfeiture deprivation and, legally, all will be well with the Indiana law. The Court stated, Mr. Washington did "not seek a declaration that the Government may not hold vehicles, pending seizure proceedings. Instead, he seeks the opportunity to challenge the propriety of the continued deprivation." The Court stated, And the Court stated, - - - - - - - - - - https://www.courthousenews.com/wp-content/uploads/2017/08/Indiana.pdf LEROY WASHINGTON on his own behalf, and on behalf of a Class of those similarly situated, No. 1:16-cv-02980-JMS-DML ORDER [...] c. The Government’s Interest The final Mathews factor evaluates “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” Mathews, 424 U.S. at 335. The Government has a strong interest in ensuring that vehicles subject to seizure are not removed to another jurisdiction, concealed, or destroyed prior to the forfeiture proceedings. [Filing No. 40 at 9.] Defendants point to Calero-Toledo as dictating the outcome in this case, arguing that the risk of losing the subject vehicles is too great to justify the provision of any procedural safeguards. The Court, however, reiterates that Mr. Washington does not seek a declaration that the Government may not hold vehicles, pending seizure proceedings. Instead, he seeks the opportunity to challenge the propriety of the continued deprivation. First, as the Krimstock court explained, “[t]he critical difference between Calero–Toledo and the present case is that plaintiffs’ vehicles have already been seized and are in the hands of the police. Just as with real property seized by the government in forfeiture proceedings, there is no danger that these vehicles will abscond.” Krimstock, 306 F.3d at 65. Second, Mr. Washington, like the plaintiffs in Krimstock, seeks a determination “only of whether continued retention” of his vehicle “is valid and justified.” Id. In some cases, of course, continued retention will be justified due to the risk that an individual would attempt to conceal or abscond with the vehicle. However, “[c]ontinued retention may be unjustified when other means of restraint would accomplish the City’s goals.” Id. (citing Good Real Property, 510 U.S. at 59). In many cases, the Government may well have “various means, short of seizure, to protect its legitimate interests in forfeitable property,” such as requiring a claimant to post a bond, “or a court could issue a restraining order to prohibit the sale or destruction of the vehicle.” Krimstock, 306 F.3d at 65. As the Krimstock court concluded, “[t]he need to prevent forfeitable property from being sold or destroyed during the pendency of proceedings does not necessarily justify continued retention of all vehicles when other means of accomplishing those goals are available.” Id. The Court acknowledges that requiring a post-seizure hearing would impose an additional administrative burden, but as the Court noted in Smith, due process always imposes some burden on governmental actors. See Smith, 524 F.3d at 838. And the government already has experience with conducting post-arrest probable-cause hearings. For example, when an individual is arrested (a seizure of a different variety) without a warrant, a probable cause hearing must take place following the arrest. See Ind. Code § 35-33-7-2(a) (providing that when a person has been arrested without a warrant, “the facts upon which the arrest was made shall be submitted to the judicial officer, ex parte, in a probable cause affidavit”). [...] For reasons already discussed, the Court concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre-forfeiture deprivation are unconstitutional. The Court need not “rewrite” the statute in order to enjoin Defendants from enforcing an unconstitutional state statute. See Buquer v.City of Indianapolis, 2013 WL 1332158, *16 (S.D. Ind. 2013) (enjoining enforcement of Indianastatute held to violate the Fourth Amendment). The Court is mindful that the drafting of forfeiture laws is the responsibility of the Indiana General Assembly, and this Court will not attempt a constitutional rewrite of the statute.8 But it is this Court’s responsibility to adjudicate the constitutionality of a law when properly presented with the question.
Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional ...
#2. To: Deckard (#0)
Federal Judge Rules Indiana Seizing Cars With Civil Forfeiture Is Unconstitutional
Mr. Washington argues that the statute allows law enforcement officers to seize and hold vehicles based on an officer’s probable cause determination for up to six months without judicial oversight and without allowing individuals the opportunity to challenge that seizure and deprivation – in other words without a post-seizure, pre-forfeiture hearing.
Title: Indianapolis Cops Violated the Constitution by Holding Cars for Six Months Without Filing Forfeiture Paperwork
Source: Reason
URL https://reason.com/blog/2017/08/22/indianapolis-cops-cant-hold-cars-for-six
Published: Aug 22, 2017
Author: Eric Boehm
Post Date: 2017-08-23 07:16:01 by Deckard Indianapolis Cops Violated the Constitution by Holding Cars for Six Months Without Filing Forfeiture Paperwork
Mr. Washington ... seeks a determination “only of whether continued retention” of his vehicle “is valid and justified.” Id. In some cases, of course, continued retention will be justified due to the risk that an individual would attempt to conceal or abscond with the vehicle. However, “[c]ontinued retention may be unjustified when other means of restraint would accomplish the City’s goals.”
For reasons already discussed, the Court concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre-forfeiture deprivation are unconstitutional.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
Plaintiff,
v.
MARION COUNTY PROSECUTOR,
MAYOR OF THE CONSOLIDATED CITY OF INDIANAPOLIS/MARION COUNTY,
CHIEF OF THE INDIANAPOLIS METROPOLITAN POLICE DEPARTMENT,
Defendants.
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