So here are a couple ideas I’ve been kicking around on civil forfeiture. I haven’t seen legal challenges made in this direction, or at least I haven’t seen decisions seriously discuss these issues, since most forfeiture proceedings are either administrative (no initial judicial process) or civil, and most responding claimants to civil forfeiture proceedings don’t make serious due process arguments. In any case, most judicial decisions in forfeiture actions end up being decided on rather technical issues.
I think there are two serious due process claims that I haven’t seen addressed that may be foundational to a successful challenge. The first is that civil forfeiture laws are unconstitutionally vague since they don’t contain any provisions to discourage arbitrary and discriminatory enforcement by law enforcement (Kolender v. Lawson, 461 US 352 (1983), Smith v. Goguen, 415 US 566 (1974)). The second is that civil forfeiture (and adminstrative forfeiture) actions contain by their very nature irrebuttable presumptions that implicate the 14th Amendment (Vandis v Kline, 412 US 441 (1973), Bell v. Burson, 402 US 535 (1973)).
There is of course substantial evidence from almost every state where civil forfeiture proceeding happens that the laws are often enforced in arbitrary and discriminatory ways. In Texas, there is a town where black people traveling with almost anything worth taking have been pulled over and searched; if money is found in any quantity, the victims are given the chance to either submit to a civil forfeiture taking or face felony money laundering charges. The police even had pre-signed and notarized forfeiture forms for this purpose. Cases like this are not uncommon and far more prevalent that we know, though there is a well established history of law enforcement targeting the poor, minorities, and other politically weak groups.
The very nature of an in rem forfeiture proceeding is that the guilt of the object is presumed or supported in some fashion, particularly through the use of informants who are paid a portion of forfeiture proceeds. No one disputes that claimants face a near impossible task proving the innocence of their property, let alone meet the government’s preponderance of the evidence.
Neither of these features of civil forfeiture, I believe, would stand up to strict scrutiny. These laws are enforced in an arbitrary and discriminatory fashion, implicating several fundamental rights, like the right to travel/assemble, the right to property (duh) and the First Amendment rights that exist coterminous with the right to property and the right to assemble. Consider, for instance, the black man who is stopped in Tehana, Texas, searched (probably illegally), and whose cash is taken on the nebulous excuse that black men with large amounts of currency must be trafficking drugs. His ability to travel through Texas is constrained because he cannot even pass through the town without losing his legitimate property, and he now does not even have access to the money that he would need to hire representation in the forfeiture hearing. In some sense I parse this as a meaningful restriction on his First Amendment rights.
Since civil and administrative forfeiture proceedings are civil, the presumption for a long time has been that indigents do not have the right to have an attorney provided. But this is not entirely supported by the case law. See MLB v. SLJ, 519 US 102 (1996), where the Supreme Court found that:
It is clear to me that the cost of representation in civil forfeiture proceedings is similarly a barrier to the defense of fundamental rights. Generally, only the indigent are really targeted, and they are precluded from redress by the difficulty and expense of representation. The decision in MLB further notes that there is a right to counsel in certain civil actions (in this case, to counsel in civil parental status termination proceedings) and the way I read the decision is that some fundamental right be implicated:
My general conclusion is that the right to have counsel provided should extend to citizens presented with civil forfeiture actions.
Thoughts?
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I’m sure you’re aware of this, but 18 U.S.C. 983(b) states that in civil forfeiture proceedings in federal court, the court is authorized to appoint counsel for the property owner, and in cases where the property owner is indigent and the property is that person’s primary residence, they have a right to have an LSC-funded attorney appointed. It’s statutory, not a due process matter, but it’s a useful policy indicator in discussing the right to counsel in state court.
While many courts have abandoned the criminal/civil distinction in terms of looking at the due process right to counsel, the Lassiter Supreme Court case is a fairly big hurdle in civil forfeiture cases given that personal liberty is not at stake. But where the property is a primary residence, the interests at stake are compelling. I’m not certain about the risk of erroneous deprivation, but the state’s interest seems fairly minimal where the property is a house seized in a drug crime, unless the house was bought with drug money.