Swordsmyth
08-31-2017, 09:00 PM
In a major win for private property rights, a federal judge ruled (https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12016cv2980-61) 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 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 (http://codes.findlaw.com/in/title-34-civil-law-and-procedure/in-code-sect-34-24-1-3.html) 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,” (http://codes.findlaw.com/in/title-34-civil-law-and-procedure/in-code-sect-34-24-1-2.html) 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 (https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12016cv2980-61), 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 (https://supreme.justia.com/cases/federal/us/510/43/case.html) 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 unconstitutional.”
In making her decision, Judge Magnus-Stinson relied heavily on [I]Krimstock v. Kelly (http://caselaw.findlaw.com/us-2nd-circuit/1003199.html), 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 (http://www2.law.columbia.edu/vehicleseizure/index.html) 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.” (http://bds.org/bds-testimony-before-the-nyc-council-on-civil-forfeiture/)
To shine a light on these car seizures, the Brooklyn Defender Services recently obtained public records (http://www.wnyc.org/story/stop-and-seize-when-nypd-takes-your-car/) 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.
More at: https://www.forbes.com/sites/instituteforjustice/2017/08/31/federal-judges-rules-indiana-seizing-cars-with-civil-forfeiture-is-unconstitutional/#455df7343da5
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 (http://codes.findlaw.com/in/title-34-civil-law-and-procedure/in-code-sect-34-24-1-3.html) 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,” (http://codes.findlaw.com/in/title-34-civil-law-and-procedure/in-code-sect-34-24-1-2.html) 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 (https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12016cv2980-61), 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 (https://supreme.justia.com/cases/federal/us/510/43/case.html) 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 unconstitutional.”
In making her decision, Judge Magnus-Stinson relied heavily on [I]Krimstock v. Kelly (http://caselaw.findlaw.com/us-2nd-circuit/1003199.html), 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 (http://www2.law.columbia.edu/vehicleseizure/index.html) 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.” (http://bds.org/bds-testimony-before-the-nyc-council-on-civil-forfeiture/)
To shine a light on these car seizures, the Brooklyn Defender Services recently obtained public records (http://www.wnyc.org/story/stop-and-seize-when-nypd-takes-your-car/) 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.
More at: https://www.forbes.com/sites/instituteforjustice/2017/08/31/federal-judges-rules-indiana-seizing-cars-with-civil-forfeiture-is-unconstitutional/#455df7343da5