My Findlaw Column on Alvarez v. Smith – A Key Property Rights Case Argued Before the Supreme Court Today

Findlaw has just posted a column I wrote on Alvarez v. Smith, an important Fourteenth Amendment Due Process Clause property rights case that was heard by the Supreme Court today:

Today, the Supreme Court hears Alvarez v. Smith, an important case that will affect the constitutional property rights of many people around the country but has failed to attract the attention it deserves.

In Alvarez, the federal Seventh Circuit Court of Appeals ruled that it was unconstitutional for Chicago police to seize cars and other property and hold it for many months at a time a without giving the owners any chance challenge the seizure. The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own… The three car owners involved in Alvarez were never even charged with a crime, much less convicted….

Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention.

The Court of Appeals ruled that DAFPA violate the property owners’ rights under the Due Process Clause of the Fourteenth Amendment. It should have been an easy case. After all, the Clause requires that states must not “deprive any person of life, liberty, or property, without due process of law.” One can certainly argue about how much process is “due” in any given situation. But surely it is a violation of the Clause for the state to deprive an innocent citizen of valuable property for many months without any judicial process whatsoever….

I previously wrote about Alvarez here and here. In this post, I wrote about then-Judge Sonia Sotomayor’s excellent opinion in the very similar case of Krimstock v. Kelly.

My column was written before the oral argument transcript became available. Somewhat surprisingly, many of the justices seem to think that the case should be dismissed on technical mootness grounds. If this were really a problem, one wonders why the Court agreed to hear the case in the first place, focusing on the property rights issue in its official question presented. Still, a dismissal on procedural grounds would be far less dangerous than a decision overruling the Seventh Circuit, which I feared might happen. The oral argument transcript also suggests that many of the justices – both liberal and conservative – are skeptical of the government’s position on the merits. They were clearly not pleased with the government lawyer’s admission that his position implies that the police could hold valuable property for a year or longer without any kind of hearing. At the same time, some of the justices seem to believe that the Seventh Circuit ruling would hamper the police unduly. In both cases, obviously, it would be dangerous to predict the justices’ votes based on oral argument questions, since some justices might pose questions that build on premises they don’t necessarily agree with.