Posted by Ilya Somin:
Supreme Court to Hear Oral Argument on Alvarez v. Smith - A Key Property Rights
Case:
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252526425
This fall, the Supreme Court will hear oral arguments in Alvarez v.
Smith, an important property rights case that[1] I blogged about in
February. For reasons, I discussed in that post, the Supreme Court
must rule for the property owners in Alvarez if it is to preserve even
minimal protection for property rights under the Due Process Clause of
the Fourteenth Amendment.
Radley Balko, a prominent writer on criminal justice issues, has [2]an
excellent column discussing the case:
This fall, the U.S. Supreme Court will hear oral arguments in
Alvarez v. Smith, a challenge to the state of Illinois' Drug Asset
Forfeiture Procedure Act (DAFPA). (Disclosure: the Reason
Foundation, publisher of Reason.com, joined in an amicus brief in
the case.) The six petitioners in Alvarez each had property seized
by police who suspected the property had been involved in a drug
crime. Three had their cars seized, three had cash taken. None of
the six were served with a warrant, none of the six were charged
with the crime. All perfectly legal, at least until now.
Under DAFPA, incredibly, the government can delay for up to 187
days before an aggrieved property owner can get even a preliminary
hearing on warrantless seizures of less than $20,000. The three car
owners, for example, had to go without their cars for more than a
year....
Under the 14th Amendment's Due Process clause, a state may not
"deprive any person of life, liberty, or property, without due
process of law." If Illinois' forfeiture law isn't a violation of
the property portion of the Due Process clause, it's hard to fathom
what would be.
In an opinion written by Judge Richard Posner, the Seventh Circuit
struck down the Illinois law, ruling that the property owners were
entitled to at least a minimal hearing before the government could
take their cars and hold them for months at a time. This is the bare
minimum of protection required by the Due Process Clause. As Radley
explains, such asset forfeitures are an increasingly common part of
the War on Drugs, and often allow authorities to hold the property of
people who haven't been convicted of any crime. In this case, the six
car owners in question weren't even charged with any offenses.
Unfortunately, it seems likely that the Supreme Court could reverse
the Seventh Circuit and uphold the Illinois law. As a general rule,
the Court usually hears cases only when there is a split between the
courts of appeals (which is not true here), or when it wants to
reverse the lower court decision. If the Court denies property owners
even minimal protection under the Due Process Clause, it would further
reinforce [3]the second-class status of constitutional property rights
in current jurisprudence. Needless to say, most of the people
victimized by such asset forfeitures tend to be poor and politically
weak, and thus unlikely to have the political clout necessary to force
state legislatures to reform their policies.
However, there is a small ray of hope: This is one of the rare issues
where newly confirmed Justice Sonia Sotomayor is a strong supporter of
property rights. In [4]Krimstock v. Kelly, a 2002 opinion she authored
while a Second Circuit judge, Sotomayor invalidated down a New York
City law very similar to the Illinois statute at issue in Alvarez. I
discussed Krimstock in more detail in [5]this June post, and in [6]my
Senate Judiciary Committee testimony on Sotomayor's record on property
rights. Judge Posner's Seventh Circuit opinion in Alvarez actually
cites Krimstock as a precedent supporting his decision. Hopefully,
Justice Sotomayor will stick to her guns and provide a much-needed
vote for property rights in this case.
References
1. http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235552057
2. http://reason.com/news/show/135911.html
3. http://ssrn.com/abstract=1247854
4. http://documents.nytimes.com/selected-cases-of-judge-sonia-sotomayor#p=369
5. http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243370699
6. http://www.law.gmu.edu/assets/files/news/2009/Somin_TestimonySotomayor.pdf
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