Due Process in Civil Forfeiture: Are Property Owners’ Rights Protected?

Why Due Process Matters in Civil Forfeiture

“Due process” is the constitutional guarantee that the government will not deprive you of life, liberty, or property without fair procedures. In criminal law, due process means you get things like a speedy trial, the right to an attorney, and the presumption of innocence. In civil asset forfeiture, however, the process is skewed: the case is against your property, not you, so many of the usual protections don’t automatically apply. Police can seize your cash, car, or home on suspicion of a crime, yet you might not get a hearing for over a year while the government holds your property. You aren’t entitled to a public defender, and the burden may fall on you to prove the property is “innocent.” This raises a fundamental question: Are property owners being treated fairly?

Over the years, courts and commentators have increasingly voiced concerns that civil forfeiture lacks adequate due process. Without proper checks, forfeiture can become “punishment first, due process later” – or never. Imagine having your life savings seized and having to wait months or more just to plead your case, all while bills mount and you struggle without your money or vehicle. That delay and imbalance can effectively deny justice, even if you eventually win.

No Prompt Hearing? The Supreme Court’s 2024 Decision

A critical aspect of due process is the right to a prompt post-seizure hearing. If the police take your property, should you quickly get in front of a judge to challenge the seizure? Many would say yes – otherwise the government could hold things indefinitely, even if the seizure was baseless. However, in May 2024, the U.S. Supreme Court delivered a setback to those hoping for a constitutional right to a speedy hearing. In the case Culley v. Marshall, two women (as innocent owners of cars used by others in crimes) argued that Alabama’s lack of any prompt post-seizure hearing violated their due process rights. The Court ruled 6-3 against them. Justice Kavanaugh, writing for the majority, said that as long as the state provides a “timely” final forfeiture proceeding, the Constitution does not require a separate preliminary hearing to determine if the police can keep the property in the meantime. In short, owners have to wait for the main event; there is no inherent right to an early intervention by a judge.

This decision disappointed reform advocates. The Institute for Justice, which filed a brief for the owners, called the ruling “a big loss for private property rights,” warning that it means many owners will “never get their day in court when it could do them some good – shortly after the seizure”. Indeed, if the government can hold your car for a year or two before the case ends, you might win in the end, but the victory is hollow – you needed the car last year to get to work. The dissenting justices in Culley (the Court’s three liberal members) and even some concurring conservatives acknowledged that civil forfeiture’s fairness issues are troubling. However, the majority deferred to precedent and left reform to legislators.

Delayed Justice: How Long Can They Keep Your Property?

Without a right to a quick hearing, how long might an owner wait? It varies:

• Federal Cases: Federal law (18 U.S.C. § 983) requires the government to send notice of seizure in 60 days and, if you file a claim, generally to file a forfeiture complaint in court within 90 days after that. So that’s about 5 months max to get into court. However, that’s just to start the case. The court process itself can take months or years more. Some federal seizures (especially involving many claimants or complex investigations) drag on for 2-3 years before resolution. There’s technically a right to ask for the case to be “promptly” handled, but prompt is a loose term.
• State Cases: Some states have even fewer protections. In the Culley case (Alabama), there was no provision for a hearing until the final case, and the state took its time filing the case. This meant over a year of limbo for the owners. Other states might allow a hardship petition to get property back sooner (e.g., if you can show you need your car to get to work, etc.), but these are discretionary. A few states (like New York City in federal court, via the Krimstock ruling) require a quick hearing for vehicles, but that’s the exception, not the norm nationwide.

The Result: It’s possible for you to be without your property for a very long time without a conviction, or even without any charges. This situation flips the script of “speedy trial” – in forfeiture, the government has less pressure to move fast, because the property is essentially taken out of circulation (and often earning interest for law enforcement accounts). From the owner’s perspective, justice delayed is justice denied.

Reform Efforts: Ensuring Fairness and Accountability

The outcry over due process in forfeiture has led to growing bipartisan agreement that reforms are needed. Here are some of the notable efforts and ideas to restore balance:

• FAIR Act (Federal Legislation): In December 2024, Senators Cory Booker (D-NJ) and Rand Paul (R-KY) introduced the Fifth Amendment Integrity Restoration Act (FAIR Act). This bill aims to overhaul federal forfeiture. Key provisions include: raising the burden of proof on the government, ending the “equitable sharing” kickbacks to local police, and importantly – ensuring due process protections for property owners. Senator Booker emphasized how current law lets police “keep cash, cars, and even homes based on mere suspicion… and the burden is on the property owner to prove they should get their property back,” calling reform “long overdue”. Senator Paul echoed that “the government should never have the power to seize property without due process”. The FAIR Act would, among other things, guarantee prompt post-seizure hearings and provide for counsel fees for successful owners, tilting the scales back toward fairness. The 2024 bill garnered unanimous committee support, signaling rare bipartisan unity on this issue. While it has not passed into law yet, the momentum is building.
• State Reforms: States like New Mexico, Nebraska, and Maine have gone so far as to largely abolish civil forfeiture, requiring a criminal conviction to forfeit assets (thus eliminating the due process gap by merging it with the criminal case). Other states have introduced requirements for a prompt hearing. For example, some states ensure that if no criminal charges are filed within a set time, the property must be returned. These reforms vary, but the trend is toward more protections at the state level, even as federal law lags.
• Judicial Awareness: Even though the Supreme Court didn’t mandate hearings in Culley, lower courts are increasingly skeptical of long delays. There have been instances where courts, citing due process, ordered the return of property before the end of a case if the delay was too long or the hardship too great. The more judges see egregious cases (like someone losing their home because their money was tied up for years), the more precedents we’ll get that push back on government stalling tactics.

How You Can Protect Your Rights

Given the current state of the law, what can an individual do to inject some due process into their forfeiture fight?

1. Demand Judicial Involvement: If your assets were seized without charges, force the issue by filing a claim (in federal cases) or whatever triggers a court case in your jurisdiction. This at least gets you before a judge eventually. If the agency can keep it administrative, they face little oversight.
2. File a Motion for a Hearing: Even though Culley said it’s not constitutionally required, your attorney can still motion the court for an early hearing or return of property. Some courts may entertain a motion for preliminary injunction or a Rule 41(g) motion (for return of property) if circumstances warrant. For example, federal courts sometimes consider a motion for return of seized property if you can show irreparable harm from its loss and likelihood of success in challenging the seizure. You might not always win, but it flags the issue.
3. Highlight Hardships: If the property seized is causing significant hardship (e.g., seizure of a business bank account shutting down the business, or a work vehicle you need), document this thoroughly. Courts are more likely to intervene if they see that the forfeiture is crippling your life before any adjudication.
4. Public and Media Pressure: Especially in clear-cut unfair cases, going to the media can help. Public outcry often spurs prosecutors to resolve a case more quickly or even return property. No agency likes bad press about taking a veteran’s life savings or a grandma’s house. Organizations like the Institute for Justice sometimes take on egregious cases and shine a spotlight on them – which can indirectly shame the government into providing relief.
5. Stay Informed on Your Case: Sometimes notices or hearing dates slip through the cracks. Ensure the agency and court have your current address. Missing a court date or deadline can forfeit your rights. It’s your property – don’t be passive. Make sure the process (even if slow) keeps moving. Your attorney can file motions to compel the government to provide updates or push the case forward if it’s languishing.

Conclusion: Balancing Justice and Property Rights

Civil forfeiture pits the power of the state against the rights of individuals in a unique way – the police can take now and ask questions later. Due process is what keeps that power in check. While recent court decisions like Culley show that the fight for stronger protections isn’t over, there is cause for optimism as bipartisan reforms gain traction and public awareness grows. If you are caught up in a forfeiture case, understanding your due process rights (and how to assert them) can make the difference between a quick return of property and a long, unjust ordeal.

Call to Action:

Do you feel the government is dragging its feet while holding your money or property? Worried that your rights are being overlooked in a forfeiture case? Contact Sebastian Rucci to stand up for your due process rights. We are actively engaged in the fight for fair treatment of property owners and stay on top of the latest legal developments. Sebastian can press the courts and prosecutors for timely action and make sure your voice is heard. Don’t let bureaucratic delays or lack of counsel put you at a disadvantage – call 330-720-0398 for a free consultation and let us help you get the justice you deserve.