Goldwater Institute asks U.S. Supreme Court to Apply 14th Amendment to Property Seizures

Institute files amicus brief in Alvarez v. Smith to protect private property

Phoenix--In 2002, a New Jersey woman named Carol Thomas made headlines after her teenage son used her 1990 Ford Thunderbird to sell marijuana to an undercover police officer. He was arrested, pled guilty and faced his punishment. But that did not end the case. The government also seized Thomas' car, despite the fact that no drugs were found in the car, she was the sole owner, and she had no knowledge of her son's use of the car to sell illegal drugs.

The government's action was based on a legal doctrine called civil asset forfeiture that allows police and prosecutors to seize and forfeit property without ever filing criminal charges against the property owner. A class action lawsuit challenging these types of laws has made its way to the U.S. Supreme Court and the Goldwater Institute filed an amicus brief in the case asking the Court to protect innocent property owners from abusive asset forfeiture laws. These laws often authorize the government to seize private property suspected of being used in a crime without allowing property owners a timely opportunity to challenge the seizure as wrongful.

Alvarez v. Smith challenges the civil asset forfeiture law in Illinois. Since 1994, Chicago police officers have seized automobiles and cash from numerous property owners, including some who have not been charged with any crime, based on the suspicion that the property had been used in a crime or were the proceeds of a crime. This was done under the authority of an Illinois civil forfeiture law but without any judicial warrant.

This year, these property owners won a decision from the U.S. Court of Appeals for the Seventh Circuit that they were entitled to a timely judicial hearing to prove that their property had been wrongfully seized. The Court of Appeals ruled that the U.S. Constitution's 14th Amendment guarantee of due process of law required the hearing to take place as soon as reasonably possible. The decision was appealed to the U.S. Supreme Court by the Cook County Attorney's office in an effort to maintain the power of the State to delay hearings on civilly seized properties for as long as 187 days after seizure, which is permitted under Illinois law.

"The Supreme Court's ruling in this case could dramatically strengthen, or weaken, the protection given to property owners from wrongful government seizure," said Nick Dranias, an attorney and director of constitutional studies at the Goldwater Institute.

Civil forfeiture laws in Arizona and elsewhere typically allow the government to seize real and personal property that is merely suspected of being used in a crime. As a result, property is routinely seized even if the owners are innocent of any crime, before anyone has been convicted, and if the person who is charged and prosecuted is ultimately found not guilty. The Goldwater Institute examined Arizona's civil asset forfeiture laws in a 2004 report, "Policing and Prosecuting for Profit: Arizona's Civil Asset Forfeiture Laws Violate Basic Due Process Protections." The Institute recommended that Arizona's forfeiture law be repealed in order to protect innocent property owners.

"There is tremendous potential for wrongful property seizure by the government under these circumstances, and the potential for abuse is heightened by the conflict of interest created by laws that allow police agencies to keep the proceeds of property seizures to fund their operations," said Mr. Dranias.

The amicus brief argues that the threat of such abuse means the guarantee of due process of law must ensure that property owners have the opportunity to a judicial hearing to challenge civil property forfeiture as soon as practical. The brief further argues that the guarantee of due process clashes with any civil forfeiture statute, such as Illinois', that allows the government to wait six months before giving property owners the opportunity to prove their property was wrongfully seized.

The amicus brief in Alvarez v. Smith was filed by the Goldwater Institute Scharf-Norton Center for Constitutional Litigation, the Cato Institute, and the Reason Foundation. To read this, and other amicus briefs filed by the Goldwater Institute, please visit http://www.goldwaterinstitute.org/amicusbriefs.