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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: 969
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.
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