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.