Bill Rochelle is on vacation. Please enjoy this piece written by Guest Writers Joshua A. Lesser (associate), Timothy J. Anzenberger (partner) and Richard P. Carmody (counsel) with Adams and Reese LLP in Houston, Ridgeland, Miss., and Birmingham, Ala., respectively.
Before we begin this column, we'd like to take a moment to remember the lives that were lost on 9/11 and the families and communities that continue to be impacted by that tragic event. Never forget.
Civil and criminal forfeiture has been front of mind for many Constitutional and civil-rights advocates lately, and the facts underlying Ingram v. Wayne County, Michigan may give readers a sense of why. A three-judge panel of the Sixth Circuit, with Judge John Bush for the majority and Judge Amul Thapar concurring, took a critical tone toward civil and criminal forfeiture practices in holding that the Due Process Clause of the Fourteenth Amendment requires a post-deprivation hearing within two weeks of seizing a vehicle.
Facts
This case involved three plaintiffs who had their vehicles seized by Wayne County without return until (1) a post-deprivation hearing that was, in practice, often delayed and reset, taking at least four months and at times over a year; or (2) payment of a fine of $900 for the first seizure, $1,800 for a second seizure and $2,700 for a third seizure, plus towing and storage fees.
Each of the three plaintiffs’ vehicles was seized under a different statute.
Nuisance Abatement
Nuisance abatement is an action to abate, including by forfeiture, a nuisance, which may include a vehicle being used “for the purpose of lewdness.” Melissa Ingram had her 2017 Ford Fusion seized twice under this statute after she loaned her car to her then-boyfriend. While he was out, two officers pulled the boyfriend over, accused him of soliciting prostitution, and seized the vehicle. When Ingram went to re-obtain possession of the vehicle, she was told she would need to pay the $900 redemption fee plus $455 in other fees, which she did.
Several months later, she again loaned her car to the boyfriend, who attended a barbecue. As he was leaving, the same two officers pulled the boyfriend over for having just attended a barbecue at a home connected with drugs or sex work. The officers again seized Ingram’s vehicle, and she was asked to pay $1,800 (exclusive of other fees) to re-obtain possession. She could not afford the fees this second time, and Ingram filed bankruptcy, surrendering her interest in her vehicle to the finance company and informing the Wayne County Prosecutor’s Office.
Even so, the Prosecutor’s Office eventually filed a civil forfeiture complaint, naming Ingram. She had to retain an attorney and file an answer. Thereafter, seven months after the second seizure, the Prosecutor’s Office amended its complaint to name the finance company as the defendant and allowed Ingram to retrieve her personal belongings from the seized vehicle.
Controlled Substances Act
The Controlled Substances Act allows forfeiture of a vehicle used “in any manner to facilitate the transportation” of articles including “controlled substances.” Stephanie Wilson had her vehicle seized under this statute twice after she picked up her daughter’s father (both times). The first time (January 2019), no articles had been found and no arrests had been made. She was provided a Notice of Seizure that stated she had to contact the Wayne County Prosecutor’s Office three to 20 days post-seizure.
She tried the next day and was told it was too early. She went back four days post-seizure, but was told her paperwork could not be found. She went back two weeks later, but then was told it was too late, and her vehicle was abandoned. Wilson had to purchase a new car using her tax refund.
The second time (June 2019), Wilson had been picking up her daughter’s father when the vehicle was immediately swarmed by officers. Five needles were found in the father’s pocket, but no drugs. No arrests were made and no charges were brought, but Wilson’s new vehicle was seized.
The Prosecutor’s Office finally filed a forfeiture complaint in October, and she first appeared at the pretrial conference (without a judge present, only prosecutors) in November, where she informed the prosecutors she could not pay the $1,800 second-violation penalty. They told her to come back with “a reasonable amount of money.” Wilson seemingly never got her vehicle back.
Omnibus Forfeiture Act
The Omnibus Forfeiture Act allows the forfeiture of properties that are “proceeds” or “instrumentalities” of a crime, including those used to “conceal” or “escape from” the crime. Robert Reeves had his vehicle seized under this act when he went to buy a bottle of water at a gas station. Officers surrounded his vehicle and accused him of being in possession of a stolen skid-steer (a piece of farm or industrial machinery), which he claimed was rented — he even had rental paperwork.
He was detained but released, though the officers kept his Chevy Camaro, two cell phones, and $2,280 in cash under the Omnibus Forfeiture Act. More than six months passed during which Reeves could not obtain a post-forfeiture hearing, after which he filed this case in federal court. Funny enough, the officers returned the Camaro, both cell phones and a check for the seized cash the very next day.
Each of these three plaintiffs sued Wayne County, Mich., for the unconstitutional seizure of their motor vehicles in violation of the Fourth Amendment for an unreasonable seizure and retention, the Eighth Amendment for excessive fines, and the Fourteenth Amendment for the lack of a prompt post-deprivation hearing. Wayne County filed a motion to dismiss, which the district court denied. In doing so, however, the district court certified the Fourteenth Amendment question to the Sixth Circuit to decide whether a post-deprivation hearing was necessary under the Fourteenth Amendment, and if so, what would constitute a “timely” post-deprivation hearing.
The Majority Opinion
The Sixth Circuit first reasoned that a post-deprivation seizure was necessary under the Supreme Court’s framework laid out in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), which turned on three factors.
First, the degree of potential deprivation was great because vehicles are a regular and important part of an individual’s daily life — even potentially a person’s “most valuable possession.”
Second, the fairness and reliability of existing procedures were not helpful, what the court called a “labyrinth of procedures” that could result in individuals having to wait a year before re-obtaining their vehicle (without paying the fees). With respect to Ingram, the court noted that bankruptcy was her only viable option.
Third, the court noted that the government’s interest was seemingly just to collect fees, with the crime-prevention or restitution alternatives being “ostensible” at best: “If Wilson’s vehicle had a dangerous connection with drugs, it is unclear why the county promptly released the vehicle after a payment of $1,355.” And “if Ingram’s vehicle was a public nuisance, the county’s willingness to release the vehicle for $1,800 suggests it is more interested in the money than in remedying a public nuisance.”
Turning to the second question, the court held that “two weeks from the date of the vehicle’s seizure [is] an appropriate time frame to provide the vehicle owner an opportunity to be heard to contest the holding of a vehicle vital to the owner’s transportation and livelihood.” This ruling turned on the court’s reasoning as to how integral a person’s vehicle is to their livelihood and basic liberty: “When a person loses a personal vehicle needed for transportation, there is an associated loss of liberty.” To demonstrate the point, the court highlighted that “Wayne County’s practices drove Ingram into bankruptcy.”
The Sixth Circuit was careful to limit its two-week benchmark to the context of (seemingly a person’s primary) vehicle; that “prompt” otherwise is “fact-dependent.”
Finally, the majority echoed the Matthews ruling to qualify the post-deprivation hearing. Under the Fourteenth Amendment, such a hearing must include: (1) timely and adequate notice detailing the reasons for the deprivation; (2) an effective opportunity for the recipient to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally; (3) retained counsel, if desired; (4) an impartial decision-maker; (5) a decision resting solely on the legal rules and evidence adduced at the hearing; and (6) a statement of reasons for the decision and the evidence relied on.
The Concurrence
Concurring, Judge Amul Thapar agreed with the majority’s conclusion but took issue with its distinction of property rights and personal liberty — the majority’s implied ruling that an abrogation of property rights had to be heard within two weeks, while an abrogation of liberty needed to be heard within 48 hours (under applicable SCOTUS precedent setting the deadline for a post-arrest preliminary hearing). According to Judge Thapar, a “prompt” post-deprivation hearing would need to take place within 48 hours of the seizure.
Judge Thapar characterized Wayne County’s “scheme” as one that is all too common in the context of civil and criminal forfeiture: “simply a money-making venture . . . most often used to extort money from those who can least afford it.” In the case of Melissa Ingram, this scheme “bankrupted her,” and she “never got her car back.” Especially to a person who might be considered economically disadvantaged, this was tantamount to the loss of liberty associated with a custodial arrest, which the concurrence reasoned justifies the same constitutional safeguards as a custodial arrest.
Conclusion
This case is not over. The plaintiffs, represented by the Institute for Justice based out of Seattle, have included a request for class certification to represent all persons who have been previously made subject to Wayne County’s seizure and forfeiture practices.
Both the majority and concurrence note that Wayne County’s practices are not isolated incidents. It remains to be seen whether the two-week benchmark is retroactive; the Sixth Circuit qualified “prompt” as a question of fact. But the ruling that the Fourteenth Amendment requires some form of a “prompt” post-deprivation hearing almost certainly is, which may very well lead to a landslide of cases similar to Ingram in the future, based on the import of its ruling.
With bankruptcies on the rise nationwide amidst looming economic uncertainty, the Sixth Circuit’s decision is likely to help curb filings. Debtors previously bankrupted by the web of red tape and arbitrary delays following civil or criminal forfeitures now have a clear benchmark, at least in the Sixth Circuit, as to when they will have their day in court.
Before we begin this column, we'd like to take a moment to remember the lives that were lost on 9/11 and the families and communities that continue to be impacted by that tragic event. Never forget.
Civil and criminal forfeiture has been front of mind for many Constitutional and civil-rights advocates lately, and the facts underlying Ingram v. Wayne County, Michigan may give readers a sense of why. A three-judge panel of the Sixth Circuit, with Judge John Bush for the majority and Judge Amul Thapar concurring, took a critical tone toward civil and criminal forfeiture practices in holding that the Due Process Clause of the Fourteenth Amendment requires a post-deprivation hearing within two weeks of seizing a vehicle.