Amicus Curiae Brief — Halima Tariffa Culley, et al., Petitioners v. Steven T. Marshall, Attorney General of Alabama, et al.

Supreme Court briefJun 29, 2023

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No. 22-585

IN THE

Supreme Court of the United States

————

HALIMA TARIFFA CULLEY, et al.,

Petitioners,

v.

STEVEN T. MARSHALL,

ATTORNEY GENERAL OF ALABAMA, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF OF THE NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

————

ELIZABETH GAUDIO MILITO

Counsel of Record

PATRICK J. MORAN

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Ste. 1001

Washington, DC 20004

(202) 406-4443

elizabeth.milito@nfib.org

patrick.moran@nfib.org

Counsel for Amicus

NFIB Small Business

Legal Center, Inc.

June 29, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTEREST OF AMICUS CURIAE .....................

1

INTRODUCTION AND

SUMMARY OF ARGUMENT .........................

1

ARGUMENT ........................................................

5

I.

Civil Asset Forfeiture Proceedings

Suspend the Ordinary Rules of Due

Process .......................................................

5

Civil Asset Forfeiture Cripples Small

Businesses .................................................

7

A. Forfeiture Can Affect Anyone Who

Drives, Especially Business Owners,

and Effectively Criminalizes Carrying

Cash .....................................................

8

B. When Members of the Public Commit

a Crime, Forfeiture Proceedings Make

Business Owners Pick Up the Tab .....

10

C. Forfeiture Proceedings Punish Innocent

Owners for Employees’ Out-of-Scope

Actions .................................................

13

CONCLUSION ....................................................

15

II.

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Armstrong v. United States,

364 U.S. 40 (1960) .....................................

13

Barker v. Wingo.,

407 U.S. 514 (1972) ................................... 3, 15

Cnty. of Riverside v. McLaughlin,

500 U.S. 44 (1991) .....................................

6

Culley v. Att’y Gen., Alabama,

No. 21-13484, 2022 WL 2663643

(11th Cir. July 11, 2022) ...........................

5

El-Ali v. State,

428 S.W.3d 824 (Tex. 2014) ...................... 7, 12

Granny Goose Foods, Inc. v.

Brotherhood of Teamsters, Local No. 70,

415 U.S. 423 (1974) ...................................

5

Kaley v. United States,

571 U.S. 320 (2014) ...................................

6

Mathews v. Eldridge,

424 U.S. 319 (1976) ............................... 3, 14, 15

Morrissey v. Brewer,

408 U.S. 471 (1972) ...................................

6

United States v. 434 Main St.,

Tewksbury, Mass.,

961 F. Supp. 2d 298 (D. Mass. 2013)........ 11, 13

United States v. Bajakajian,

524 U.S. 321 (1998) ...................................

7

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Four Hundred Sixty-Three

Thousand Four Hundred Ninety-Seven

Dollars & Seventy Two Cents

($463,497.72) in U.S. Currency from

Best Bank Acct. #£XXX2677,

853 F. Supp. 2d 675 (E.D. Mich. 2012).......

12

United States v. James Daniel Good

Real Prop.,

510 U.S. 43 (1993) .....................................

5, 6

United States v. Lot Numbered One (1) of

Lavaland Annex,

256 F.3d 949 (10th Cir. 2001) ...................

11

United States v. One Parcel of Real Est.

Consisting of Approximately 4,657

Acres Located in Martin Cnty., Fla.,

730 F. Supp. 423 (S.D. Fla. 1989) ............

14

Valley Oil, Inc. v. 2002 Chevy Tahoe,

VIN: £1GNEK13212J222521,

MN License Plate |NUW688,

No. A08-0338, 2009 WL 66965

(Minn. Ct. App. Jan. 13, 2009) .................

14

Walker v. City of Hutchinson, Kan.,

352 U.S. 112 (1956) ...................................

6

CONSTITUTION

U.S. Const. amend. V ................................... 3, 13

U.S. Const. amend. VIII ...............................

7

iv

TABLE OF AUTHORITIES—Continued

STATUTES

Page(s)

Defend Trade Secrets Act of 2016, 18 U.S.C.

§ 1836 ........................................................

6

§ 1836(b)(2)(A)(i) .......................................

6

§ 1836(b)(2)(A)(ii)(IV) ................................

6

OTHER AUTHORITIES

Andrew Wimer, Sheriffs Team Up With The

Feds To Hold Up Armored Car Company,

Civil Forfeiture Makes It Possible, FORBES

(Feb. 3, 2022, 7:30 AM), https://tinyurl.

com/mr38z3dm ............................................

10

Eric Moores, Reforming the Civil Asset

Forfeiture Reform Act, 51 ARIZ. L. REV.

777 (2009) ..................................................

7

J. Justin Wilson, New Report Finds Civil

Forfeiture Rakes in Billions Each Year,

Does Not Fight Crime, INSTITUTE FOR

JUSTICE (Dec. 15, 2020), https://tinyurl.

com/38b8sad9 ............................................

13

Jacob Sullum, Drug Dealing and Legal

Stealing, REASON (Feb. 2013), https://tiny

url.com/4cp8fmmu ....................................

11

Jennifer Cheeseman Day and Andrew W.

Hait, Number of Truckers at All-Time

High, CENSUS.GOV (June 6, 2019), https://

tinyurl.com/mrkp2zj3 ...............................

8

v

TABLE OF AUTHORITIES—Continued

Page(s)

John Adams, Defence of the Constitutions

of Government of the United States in 1

THE FOUNDERS’ CONSTITUTION 591

(Philip B. Kurland & Ralph Lerner eds.,

Univ. of Chicago Press 1986) ....................

2

Lisa Knepper, Jennifer McDonald, Kathy

Sanchez and Elyse Smith Pohl, Policing

for Profit, INSTITUTE FOR JUSTICE (Dec.

2020), https://tinyurl.com/3buzfmr6 .........

9

Megan Brenan, 83% of U.S. Adults Drive

Frequently; Fewer Enjoy It a Lot, GALLUP

(July 9, 2018), https://tinyurl.com/27tfvb

se ................................................................

8

Melissa Quinn, After Having His Motel

Seized by the Government, Victim of Civil

Asset Forfeiture Reflects on His Fight,

THE DAILY SIGNAL (May 7, 2015), https://

tinyurl.com/en88b3uu ...............................

11

Michael Levenson, Former Shoe Shiner

Wins Back Nearly $30,000 Seized by

Federal Agents, N.Y. TIMES (Oct. 31,

2021), https://tinyurl.com/3pjep53j ...........

9

Michael Sallah, et al., Stop and seize, WASH.

POST (Sept. 6, 2014), https://tinyurl.com/

2xzmydtf ....................................................

8

Nate Blakesly, This Silverado Fought the

Law, and the Law Won, TEXAS MONTHLY

(Apr. 16, 2014), https://tinyurl.com/3r953

9zc ..............................................................

12

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Nick Sibilla, Lawsuit: Texas Cops Use “Cut

And Paste Allegations” To Seize Couple’s

Life Savings, FORBES (Sept. 13, 2021, 2:00

PM), https://tinyurl.com/3kd55ptj..............

9

Perry Vandell, Man had $39,500 seized by

Arizona police for nearly 3 years. He

finally received his money back, USA

TODAY (Mar. 3, 2023, 6:51 PM), https://

tinyurl.com/ymabvyz4 ................................

9

Rich Schapiro, ‘Highway robbers’: How a

trip to buy farmland ended with police

taking all his cash, NBC NEWS (Oct. 16,

2021, 5:01 AM), https://tinyurl.com/5yrde

mcc .............................................................

10

Sarah Stillman, Taken, NEW YORKER (Aug.

5, 2013), https://tinyurl.com/2dpy4tvs ......

10

Small Business Statistics, Chamber of

Commerce, accessed Jun. 16, 2023,

https://tinyurl.com/mryy4wfa ...................

4

The Federalist No. 54 (Easton Press ed.

1979) (James Madison) .............................

2

Veronika Bondarenko, 4 out of 5 people who

had cash seized by the Drug Enforcement

Administration weren’t charged with a

crime, BUSINESS INSIDER (Mar. 30, 2017),

https://tinyurl.com/2dycy42r ....................

7-8

1 W. Blackstone, Commentaries on the

Laws of England (1753) ............................

2

INTEREST OF AMICUS CURIAE1

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal Center)

is a nonprofit, public interest law firm established to

provide legal resources and be the voice for small

businesses in the nation’s courts through representation on issues of public interest affecting small

businesses. It is an affiliate of the National Federation

of Independent Business, Inc. (NFIB), which is the

nation’s leading small business association. NFIB’s

mission is to promote and protect the right of its

members to own, operate, and grow their businesses.

NFIB represents, in Washington, D.C., and all 50 state

capitals, the interests of its members.

Amicus takes interest in this case because civil asset

forfeiture proceedings harm small business owners.

This harm may include loss of money, vehicles, or even

real estate based on a misunderstanding with law

enforcement or the actions of a third party. In such

instances, they deserve a prompt post-seizure hearing

to assert an innocent owner defense.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Civil asset forfeiture runs roughshod over due

process. It punishes innocent owners for the actions of

others, it treats anyone who carries cash like a

criminal, it wastes time with proceedings that take too

long to begin, and it is not subject to rules that govern

1

Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2

in most other contexts. It can harm any American

who carries valuables or lets anyone else use their

property. It’s no surprise that small businesses, who

rent, sell, and conduct cash transactions with the

public, are particularly vulnerable to seizures.

The Framers of the Constitution would have roundly

condemned the government placing such extreme

consequences on the shoulders of property owners.

James Madison famously said that “[g]overnment is

instituted no less for protection of the property, than

of the persons, of individuals.” The Federalist No. 54

at 369 (Easton Press ed. 1979) (James Madison). John

Adams was even more forceful. “The moment the idea

is admitted into society, that property is not as sacred

as the laws of God, and that there is not a force of law

and public justice to protect it, anarchy and tyranny

commence.” John Adams, Defence of the Constitutions

of Government of the United States in 1 THE

FOUNDERS’ CONSTITUTION 591, 591. (Philip B. Kurland

& Ralph Lerner eds., Univ. of Chicago Press 1986).

Likewise, Blackstone described property as the

“third absolute right” of individuals, following personal

security and personal liberty, and that “the principal

aim of society is to protect individuals in the enjoyment of those absolute rights[.]” 1 W. Blackstone,

Commentaries on the Laws of England *124, *138

(1753) (cleaned up). For Blackstone, the law’s protection of private property was so fundamental, “that it

will not authorize the least violation of it; no, not even

for the general good of the whole community.” Id. at

*139 (cleaned up).

The twin roots of our founding and the common law

are clear: the government’s job is to defend property,

not to burden the people with onerous seizures. And

certainly, it must not do so without adequate due process.

3

This case affords the Court an opportunity to bring

the practice of civil asset forfeiture in line with the

Fifth Amendment’s Due Process Clause. As Petitioners

have briefed at length, Mathews v. Eldridge, 424 U.S.

319 (1976) already dictates a set of clear standards for

determining due process when the government deprives

a person of property. Here, the Eleventh Circuit has

instead extended the speedy trial test of Barker v.

Wingo., 407 U.S. 514 (1972) to civil asset forfeiture,

holding that the forfeiture process itself provides

adequate due process. But the Eleventh Circuit erred

in its holding—indeed, as Petitioners argue, a proper

application of the Mathews test would result in a

ruling that Petitioners were each entitled to a prompt

post-deprivation hearing.

Under the Eleventh Circuit’s reasoning, no prompt

retention hearing is required either before or after

depriving someone of property. Yet in nearly every

other context where someone is deprived of liberty or

property, that person is entitled to—at minimum—

a prompt hearing. It’s rare that courts forgo this

necessity outside of civil forfeiture proceedings, precisely

because of the “risk of an erroneous deprivation,”

Mathews, 424 U.S. at 335, a prophecy fulfilled every

time innocent people have their property taken

without a hearing.

Small businesses especially are targeted and injured

in the absence of clear constitutional guardrails around

civil asset forfeiture. When business owners are

unjustly deprived of property without adequate due

process, they may encounter three distinct harms.

First, civil asset forfeiture subjects people who drive

vehicles, including business owners, to roadside seizures.

This effectively criminalizes driving with cash, which

hurts small businesses, many of whom use cash. A

4

small business owner may be driving with large amounts

of cash to make a sale or deposit, or purchase business

equipment. Without a hearing, it can take months or

even years for innocent owners to recover improperly

seized money, which imposes significant financial

harm on their business.

Second, the financial burden for the public’s illegal

conduct is often passed onto businesses through civil

asset forfeiture. The reality of operating a business

open to the public is that one can’t stop every potential

misuse of a product or rental property. Whether the

illegal act comes from someone renting a room or a

suspicious customer, all a business can do is call the

police. However, when police seize a property and use

it to fund their budgets, they do so on the logic that

even innocent business owners have to pay for the

crimes of others.

Third, civil asset forfeiture punishes business owners

for the conduct of employees, even when the employee

acts outside of the scope of employment. If an employee

does something illegal at his or her place of work, the

government can seize vehicles, real estate, or even the

entire business. Without a hearing, law-abiding business

owners are forced to go through a lengthy forfeiture

process, where they may not recover their property for

years.

Such manifest injustice violates due process and

particularly punishes businesses—most do not have

the deep pockets necessary to sustain potentially

years-long litigation,2 especially when the assets they

2

The average income for small business owners is $51,816 per

year—$26,084 for unincorporated businesses. Small Business

Statistics, Chamber of Commerce, accessed Jun. 16, 2023, https://

tinyurl.com/mryy4wfa.

5

could otherwise use to fight a legal battle are in the

government’s possession. The Court should establish

that, at the very least, innocent owners are entitled to

a prompt post-deprivation hearing to mitigate this harm.

ARGUMENT

I. Civil Asset Forfeiture Proceedings Suspend

the Ordinary Rules of Due Process.

Individuals and businesses need the ability to

promptly challenge seizures of their property. This is

the bare minimum that the Constitution requires. In

truth, it may demand much more: the Court has long

recognized “the general rule that individuals must

receive notice and an opportunity to be heard before

the Government deprives them of property”, United

States v. James Daniel Good Real Prop., 510 U.S. 43,

48 (1993) (citations omitted) (emphasis added), except

in “extraordinary situations[.]” Id. at 53 (quotation

omitted). Ex parte deprivations of property are thus as

uncommon as they are frowned upon—the Court’s

“entire jurisprudence runs counter to the notion of

court action taken before reasonable notice and an

opportunity to be heard has been granted both sides of

a dispute.” Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, Local No. 70, 415 U.S. 423, 438–39 (1974).

Here, the Eleventh Circuit held that merely providing a merits hearing—in other words, a trial—long

after the seizure of property dispenses with the

constitutional requirement to have a retention hearing

promptly after seizure. See Culley v. Att’y Gen.,

Alabama, No. 21-13484, 2022 WL 2663643, at *3 (11th

Cir. July 11, 2022). If that were true, Alabama’s civil

forfeiture statute would be self-authenticating when it

comes to due process—but as this Court has long held,

due process is more than just evidence of any process.

6

See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (1972)

(“Once it is determined that due process applies, the

question remains what process is due.”). Without

providing a retention hearing before or directly after

seizure of property, the statute did worse than an ex

parte deprivation, by rubber-stamping warrantless

seizures until trial.

Aside from forfeiture proceedings, deprivations of

property without a hearing rarely arise in the civil

context.3 Even exercises of eminent domain require a

hearing. Walker v. City of Hutchinson, Kan., 352 U.S.

112, 115 (1956) (“[D]ue process requires that an owner

whose property is taken for public use must be given a

hearing in determining just compensation.”). Criminal

asset forfeiture requires a grand jury finding “probable

cause . . . that the defendant has committed an

offense permitting forfeiture.” Kaley v. United States,

571 U.S. 320, 323 (2014). And in all other criminal

contexts, defendants are entitled to a probable

cause hearing within 48 hours. Cnty. of Riverside v.

McLaughlin, 500 U.S. 44, 58–59 (1991); See also

James Daniel Good, 510 U.S. at 50 (“Unlike [civil asset

forfeiture], the arrest or detention of a suspect occurs

as part of the regular criminal process, where other

safeguards ordinarily ensure compliance with due

process.”). Civil asset forfeiture requires us to suspend

fundamental due process principles that apply in all

other contexts.

3

One noteworthy exception is the Defend Trade Secrets Act

of 2016 (DTSA), 18 U.S.C. § 1836, under which courts can issue

an ex parte order for seizure of property “only in extraordinary

circumstances.” 18 U.S.C. § 1836(b)(2)(A)(i). However, to do so,

a court must find that the person used improper means to

misappropriate or conspired to misappropriate a trade secret,

18 U.S.C. § 1836(b)(2)(A)(ii)(IV), thus excluding innocent owners.

7

To give another example, the government ordinarily

bears the burden of proving guilt. Yet in civil asset

forfeiture proceedings, the burden often rests on the

property owner to prove that he or she is an innocent

owner. In Texas, for instance, “[c]riminals . . . enjoy

a presumption of innocence, requiring government to

prove their guilt beyond a reasonable doubt. But

property owners are actually treated worse, presumed

guilty and required to prove their innocence.” El-Ali v.

State, 428 S.W.3d 824, 827–28 (Tex. 2014) (Willett, J.,

dissenting to the denial of the petition for review).

Proponents of civil asset forfeiture may argue that

the procedural due process afforded to those at risk

of a criminal conviction does not attach to those who

have their property seized civilly. But when a person

is deprived of property as a punishment, it’s a distinction without a difference. See United States v.

Bajakajian, 524 U.S. 321, 328 (1998) (holding that the

Eighth Amendment Excessive Fines Clause applies to

civil asset forfeitures when the measure is punitive).

Attaching the word “civil” to asset forfeiture, far from

providing insight into the nature of the process, hides

its punitive aspects behind a curtain of civil practice.

It should not be used to deprive innocent owners of the

due process to which they would otherwise be entitled.

II. Civil Asset Forfeiture Cripples Small

Businesses.

Though some people who have their property seized

under civil asset forfeiture are indisputably criminals,

80% are never charged with a crime. Eric Moores,

Reforming the Civil Asset Forfeiture Reform Act,

51 ARIZ. L. REV. 777, 783 (2009); see also Veronika

Bondarenko, 4 out of 5 people who had cash seized by

the Drug Enforcement Administration weren’t charged

with a crime, BUSINESS INSIDER (Mar. 30, 2017),

8

https://tinyurl.com/2dycy42r. Small business owners

are among the innocent who may lose their life’s

savings, a vehicle, or even their place of business. Our

society cannot allow such financially ruinous consequences simply based on an unfounded assumption

made by law enforcement.

In a civil asset forfeiture proceeding, it can take

years for an innocent owner to recover his or her

property. This delay is unreasonable for people who

did nothing wrong. America’s small business community,

affected by labor shortages, supply chain disruptions,

and inflation, should not need to add civil asset

forfeiture to their list of concerns.

A. Forfeiture Can Affect Anyone Who Drives,

Especially Business Owners, and Effectively Criminalizes Carrying Cash.

Motorists are often subject to civil asset forfeiture,

even though most are never criminally charged. Michael

Sallah, et al., Stop and seize, WASH. POST (Sept. 6,

2014), https://tinyurl.com/2xzmydtf. This places the

83% of Americans who drive frequently squarely in the

sights of law enforcement. Megan Brenan, 83% of U.S.

Adults Drive Frequently; Fewer Enjoy It a Lot, GALLUP

(July 9, 2018), https://tinyurl.com/27tfvbse.

When the government targets motorists and seizes

their property, it also harms businesses, as an increasing number of Americans make their living in the

transportation industry. More than 3.5 million Americans

drive trucks for a living, and over 700,000 of them are

self-employed. Jennifer Cheeseman Day and Andrew

W. Hait, Number of Truckers at All-Time High,

CENSUS.GOV (June 6, 2019), https://tinyurl.com/mrkp2

zj3. Business owners, especially those who drive trucks,

may travel with cash to make purchases when starting

9

or expanding their businesses. And cash is the most

seized asset, accounting for nearly 70% of forfeited

property. Lisa Knepper, Jennifer McDonald, Kathy

Sanchez and Elyse Smith Pohl, Policing for Profit,

INSTITUTE FOR JUSTICE (Dec. 2020), https://tinyurl.com/

3buzfmr6. A business owner on the way to conduct a

cash transaction thus becomes a prime target for seizure.

Take, for example, three nearly identical stories

of small business owners who took cash with them to

buy vehicles and had their money seized. First, Kermit

Warren, who made the mistake of traveling with

cash to buy a tow truck for his scrapping business. The

DEA seized $30,000—his life’s savings, as it turns

out—without charging him with any crime. Michael

Levenson, Former Shoe Shiner Wins Back Nearly

$30,000 Seized by Federal Agents, N.Y. TIMES (Oct. 31,

2021), https://tinyurl.com/3pjep53j. Second, Ameal

Woods, who brought his life’s savings on the road with

him as he sought to buy a second tractor-trailer for his

small business, and a deputy seized all $40,000 of it—

likewise without citing, ticketing, or charging him.

Nick Sibilla, Lawsuit: Texas Cops Use “Cut And Paste

Allegations” To Seize Couple’s Life Savings, FORBES

(Sept. 13, 2021, 2:00 PM), https://tinyurl.com/3kd55ptj.

Third, Jerry Johnson, who saved $39,500 to buy a

third truck for his shipping company, only to have the

cash seized by police. Perry Vandell, Man had $39,500

seized by Arizona police for nearly 3 years. He finally

received his money back, USA TODAY (Mar. 3, 2023,

6:51 PM), https://tinyurl.com/ymabvyz4.

A wide array of businesses4 suffer from seizures in

transit, not just trucking or shipping companies.

4

Even non-profits and religious organizations may fall victim

to civil asset forfeiture. Police seized $28,500 in parishioners’

donations from Victor Ramos Guzman, who was driving to buy a

10

There’s the story of Empyreal Logistics, an armored

car company whose transported cash has been seized

by police on three separate occasions. Andrew Wimer,

Sheriffs Team Up With The Feds To Hold Up Armored

Car Company, Civil Forfeiture Makes It Possible,

FORBES (Feb. 3, 2022, 7:30 AM), https://tinyurl.

com/mr38z3dm. Likewise, Nang Thai and Weichuan

Liu had over $100,000 seized from them as they were

en route to buy a plot of farmland as a business

venture. Rich Schapiro, ‘Highway robbers’: How a trip

to buy farmland ended with police taking all his cash,

NBC NEWS (Oct. 16, 2021, 5:01 AM), https://tiny

url.com/5yrdemcc.

In short, civil asset forfeiture sends the message

that carrying cash is a crime, and small business

owners are not safe to travel with it. And as this case

illustrates, vehicles themselves can also be seized.

Anyone who drives is therefore subject to civil asset

forfeiture. This becomes an even greater problem

when, in seizing assets, the government fails to

provide due process. Businesses ought to have the

right to promptly contest seizures—often their life’s

savings—yet are left without a timely remedy, creating a challenging environment in which businesses

cannot thrive.

B. When Members of the Public Commit a

Crime, Forfeiture Proceedings Make

Business Owners Pick Up the Tab.

Opening a business to the public often means that

people will use a product or service in ways that are

prohibited by law, despite an owner’s attempts to

parcel of land for his church. Sarah Stillman, Taken, NEW

YORKER (Aug. 5, 2013), https://tinyurl.com/2dpy4tvs.

11

prevent such use. When a third party’s criminal

behavior results in a seizure, innocent owners—

businesses among them—are left high and dry without

a prompt hearing and are often deprived of their

property for years.

For instance, in United States v. Lot Numbered One

(1) of Lavaland Annex, 256 F.3d 949, 952 (10th Cir.

2001), the government seized a motel because of drug

deals occurring on the premises, even when the owner

instructed employees to call the police. The Tenth

Circuit overturned the district court’s rejection of the

innocent owner defense. Id. at 958.

In United States v. 434 Main St., Tewksbury, Mass.,

961 F. Supp. 2d 298 (D. Mass. 2013), the government

seized another motel property due to on-site drug

deals.5 The owner called the police when suspected

crimes occurred, id. at 304, allowed police to review

guest registration information, including photocopies

of licenses, id. at 305, and even provided free rooms to

police during stakeouts, id. at 304. Despite clear

evidence that he was an innocent owner, his property

was seized in 2009 and wasn’t recovered until after the

2013 court decision. Jacob Sullum, Drug Dealing and

Legal Stealing, REASON (Feb. 2013), https://tinyurl.

com/4cp8fmmu.

Businesses may also encounter forfeiture over legal

business deals if another company does something

5

Profit may have been the real motivation. A DEA agent said

in his deposition that the agency targeted properties for seizure

when they had more than $50,000 in equity—the motel here was

worth $2 million. Melissa Quinn, After Having His Motel Seized

by the Government, Victim of Civil Asset Forfeiture Reflects on His

Fight, THE DAILY SIGNAL (May 7, 2015), https://tinyurl.com/

en88b3uu.

12

illegal with a product. For example, the FBI seized a

pharmaceutical wholesaler’s interest in bank accounts

because a pharmacy it sold to was illegally pilfering

prescription drugs. United States v. Four Hundred

Sixty-Three Thousand Four Hundred Ninety-Seven

Dollars & Seventy Two Cents ($463,497.72) in U.S.

Currency from Best Bank Acct. #£XXX2677, 853 F.

Supp. 2d 675 (E.D. Mich. 2012). However, the wholesaler

was innocent. Though the pharmacy it sold to turned

out to be a drug ring, it hardly stood out as one—it

“had a valid DEA license, had no Internet pharmacy

operations, was serving doctors who had valid DEA

licenses, and was located in a strip mall with good

tenants in an upscale suburb of Detroit, Michigan.” Id.

at 681. Neither the volume nor frequency of shipments

triggered any alarm. Id. at 688. The wholesaler sold a

legal product to an entity that likewise appeared to be

following the law. Yet the government took their

money anyway. The court found that the company was

an innocent owner and returned the accounts plus

interest, but almost a year had passed since the money

was improperly forfeited. Id. at 691.

Sales-in-progress are just as vulnerable to forfeiture

as completed sales and rentals, as illustrated in El-Ali

v. State, where a small business owner’s truck was

seized when the person driving it was arrested for

driving while intoxicated. 428 S.W.3d at 826 (Willett,

J., dissenting to the denial of the petition for review).

Though the driver was making payments on the truck,

the businessman owned the deed, and he was in no

way implicated in the crime. Id. But after four years of

litigation—five total after the seizure—the owner lost.

Nate Blakesly, This Silverado Fought the Law, and the

Law Won, TEXAS MONTHLY (Apr. 16, 2014), https://

tinyurl.com/3r9539zc.

13

Business owners can do everything right in their

interactions with the public, down to providing free

rooms to assist in police investigations. 434 Main St.,

961 F. Supp. 2d at 304. Yet, the government still takes

their property. They are forced to wade through

months or years of litigation, without any guarantee

that they will get their property back.

And what happens to those assets that aren’t

returned? Often, they’re used to supplement police

budgets. J. Justin Wilson, New Report Finds Civil

Forfeiture Rakes in Billions Each Year, Does Not Fight

Crime, INSTITUTE FOR JUSTICE (Dec. 15, 2020),

https://tinyurl.com/38b8sad9. In effect, this shifts the

financial burden of criminal behavior onto individuals

and businesses who have done nothing wrong.6

C. Forfeiture Proceedings Punish Innocent

Owners for Employees’ Out-of-Scope

Actions.

Much like Petitioner, small business owners sometimes

entrust their property to someone who misuses it. In

Halima Culley’s case, it was her son—for most small

businesses, it is employees. When an employee’s

actions are unsanctioned by an owner and are outside

of the scope of employment, courts can easily apply an

innocent owner defense. But no matter how speedy the

trial once it commences, it does not restore the months

or years spent litigating over a seizure that never

should have happened in the first place.

6

It’s no coincidence that this principle also animates the core

of the Takings Clause, which “was designed to bar Government

from forcing some people alone to bear public burdens which, in

all fairness and justice, should be borne by the public as a whole.”

Armstrong v. United States, 364 U.S. 40, 49 (1960).

14

In one such case, a minority shareholder employee

permitted a drug-smuggling plane to land on a business’s property. United States v. One Parcel of Real

Est. Consisting of Approximately 4,657 Acres Located

in Martin Cnty., Fla., 730 F. Supp. 423, 425 (S.D. Fla.

1989). The majority shareholders had no knowledge of

this, id. at 428, and the action was not taken for the

benefit of the company, id. at 427, yet it took almost a

year for the company to be declared an innocent owner

and the property returned. Id. at 425, 428.

In another, a woman let her son, who was also her

employee, use a company truck, and he was arrested

for DWI and drug possession. Valley Oil, Inc. v. 2002

Chevy Tahoe, VIN: £1GNEK13212J222521, MN License

Plate |NUW688, No. A08-0338, 2009 WL 66965, at *1

(Minn. Ct. App. Jan. 13, 2009). She had no knowledge

of his illegal use of her property, and he wasn’t on the

job at the time of his arrest. Id. at *3. The arrest

occurred in 2005, id. at *1, but the case didn’t conclude

until 2009 when the court of appeals affirmed the

district court’s ruling that the company was entitled to

an innocent owner defense. Id. at *5.

An innocent business owner should not have to

spend years needlessly litigating a forfeiture action,

especially when the seizure was predicated on a

problem employee’s out-of-scope action. If the government erroneously assigns blame to innocent owners,

they should be able to quickly block the forfeiture

before it eats up months or years of their time. And

as Petitioners correctly assert, Mathews provides a

pathway for the Court to explicitly define the right to

a prompt post-deprivation hearing for innocent owners,

drastically reducing this burden.

15

CONCLUSION

For the reasons above, Amicus urges this Court to

hold that Mathews, not Barker, governs whether due

process requires a retention hearing in civil forfeiture

actions, and that Respondents violated Petitioners’

right to due process by failing to give them a retention

hearing to protect their interest in their vehicles

during the forfeiture proceedings.

Respectfully Submitted,

ELIZABETH GAUDIO MILITO

Counsel of Record

PATRICK J. MORAN

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Ste. 1001

Washington, DC 20004

(202) 406-4443

elizabeth.milito@nfib.org

patrick.moran@nfib.org

Counsel for Amicus

NFIB Small Business

Legal Center, Inc.

June 29, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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