Legal Docket: Time for a drive

MARY REICHARD, HOST: It’s Monday, November 13th. And we’re glad you’ve joined us for The World and Everything in It. Good morning, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket, and joining us this morning, another member of our legal team, Jenny Rough. Good morning!

JENNY ROUGH: Good morning! Yeah, better to write about the law than be mixed up in it.

And by the way, I’ve got a couple of cases today that kinda make that point.

So I’ll start this set of cases from Alabama which have to do with crimes that loop in the innocent. The question in these cases is what should happen when the police seize a car. In legal parlance, the term is, civil asset forfeiture.

All you have to do is Google the phrase and you’ll find plenty of horror stories!

REICHARD: And there are horror stories in both of these cases, too. In our first one, here’s how things unfolded: In February 2019, police pulled over a college student. They arrested him for possession of marijuana, drug paraphernalia, and a loaded handgun. He had no permit for the gun. Police seized the property connected to the drug crime, including the car. Alabama law allows that. The state can seize property used to transport or conceal drugs in violation of the law.

EICHER: Here’s the rub: the car didn’t belong to the college student. It belonged to his mom, Halima Culley. A nurse in Georgia.

A few days later, Alabama police pulled over another man for speeding. They discovered a large amount of meth in the car he was driving. The police took possession of that car, too. Had it towed to an impound lot. Here as well the car didn’t belong to the driver. It belonged to his friend, Lena Sutton.

ROUGH: The state sought a court order to declare the cars contraband and forfeit the cars to the state. That’s also allowed under Alabama law.

If the state wins a forfeiture action in each dispute, it can then sell the cars. Any money from the sale goes into a general fund in favor of a local law enforcement agency. But this doesn’t punish the criminals, at least in these cases. It punishes people who were not convicted of a crime, let alone even charged.

REICHARD: Now, there is a system in place where the car owners can contest the forfeiture. They can raise what’s known as the innocent owner defense. But that takes time and expense.

And during those months of legal proceedings, the owners don’t have access to their cars. You can imagine that would create transportation problems, like getting to work. And it seems to turn the principle of innocent until proven guilty on its head.

EICHER: Here, both women eventually prevailed under the “innocent owner” defense. Culley got her car back after 20 months. Sutton after a year.

The two women then sued state officials in federal court for violating the due process clause of the 14th Amendment. That says a state shall not deprive a person of property without due process of law.

ROUGH: Specifically, Culley and Sutton argue that they’re entitled to a prompt hearing after the state takes their property. That’s known as a retention hearing.

The lower courts sided with Alabama and said the state’s current procedures already provide all the process that’s due. A separate hearing isn’t mandatory.

REICHARD: So the women appealed to the US Supreme Court. Attorney Shay Dvoretzky argued on behalf of the car owners.

SHAY DVORETZKY: The easiest way for a jurisdiction to ensure its laws comport with due process is generally to offer a reasonably prompt post-seizure hearing to allow claimants to raise an innocent owner argument. Indeed, numerous states have done just that, and their experience makes clear that retention hearings are workable and effective.

ROUGH: Justice Clarence Thomas pointed out the car owners had options. They could have taken action to speed things along, but they chose not to.

They could have, for example, asked the court to expedite the forfeiture hearing. They could have posted bond.

REICHARD: Another option: they could have asked the state court to dismiss the forfeiture case without a trial. That’s known as a motion for summary judgment.

The parties did that eventually nine months after seizure in Sutton’s case and in Culley’s case after 19 months.

JUSTICE CLARENCE THOMAS: If you had filed a motion for summary judgment a week after the property had been taken would you be here?

DVORETZKY: I think we would be here.

JUSTICE THOMAS: Why? You would have your property back because you won on summary judgment, right?

DVORETZKY: We won on summary judgment after going through discovery with the state, which, by the way, the state took five months to respond to our discovery requests.

ROUGH: Justice Thomas kept pressing.

JUSTICE THOMAS: If you got your property back, what would be the constitutional problem? What would be the due process problem?

DVORETZKY: If we had promptly gotten our property back in a — measured by days or weeks rather than months or years, then, in that situation, I think we probably would not have a constitutional claim.

Hypothetically the cars would have been returned in a reasonable time. But:

DVORETZKY: Due process doesn't depend on whether a court is going to exercise its discretion to expedite a case. Realistically, courts rarely do that.

EICHER: In holding that the car owners’ claims failed, the lower courts relied on a test called the Barker rule that challenges the delay.

The car owners say that test is the wrong one. They’re asking the Supreme Court to adopt another test — one that focuses on procedure.

Justice Elena Kagan didn’t see much difference.

JUSTICE ELENA KAGAN: They’re both questions about timing. Barker set one timing rule. The claimants here want another timing rule, which is a more- generous-to-the-claimant timing rule.

ROUGH: Attorney Edmund LaCour argued on behalf of the state. He said the other side’s argument cannot be squared with the court’s precedent or history.

Confiscating property involved in crime has long been part of the law, with the government seizing everything from pirate ships to horses to carriages.

And he argued the other side is looking to break from that precedent:

EDMUND LACOUR: Petitioners assert that another post-seizure hearing is required. A mini-trial mere days or weeks after seizure. And in their telling, the federal government and the states have been violating fundamental rights for centuries with no one noticing until just a few years ago.

Earlier Justice Sonia Sotomayor had brought up the policy interests.

JUSTICE SONIA SOTOMAYOR: We know there are abuses of the forfeiture system. We know it because it's been documented throughout the country repeatedly of the incentives that police are given to seize property to keep its value.

REICHARD: And Justice Kagan followed up on that. She agreed that we now know a lot more about so-called policing for profit.

JUSTICE KAGAN: So if we look around the world and we think there are real problems here and those problems would be solved if you got a really quick probable cause determination, why shouldn't we do that?

LaCour reiterated that Culley and Sutton could have pursued other options to get their cars back more quickly. Also, allowing a retention hearing will cause serious problems for the government.

LACOUR: You will gain speed, but you will lose accuracy. And the stakes are very high in the civil forfeiture context. We have a strong interest as well in making sure crime doesn’t pay. So if you have a less accurate retention hearing … then you’re going to have more property released to criminals, it’s going to possibly be misused again.

Four states have abolished the practice of civil forfeiture. This decision will determine whether the states that still allow it need to rein in the practice.

ROUGH: The second case today stems from the 2016 Republican presidential debates. Perhaps you recall Marco Rubio and Donald Trump sparring over their manhood.

Seriously.

And seriously, their crass comments led to this Supreme Court case. A man named Steve Elster created t-shirts reading: “TRUMP TOO SMALL” and sought to trademark the phrase. The U.S. Patent and Trademark Office rejected the application, because you cannot trademark the name of a living person without his or her consent.

EICHER: Elster argues that violates his right to free speech. The federal circuit court agreed.

Justice Sotomayor pointed out that the government isn’t restricting his speech. He can say or print the phrase as much as he wants. What he can’t do is get the government benefit of trademark protection.

But Justice Amy Coney Barrett asked what if Trump registered the trademark to prevent Elster from expressing the speech? Here’s an exchange she had with Malcolm Stewart, who defended the government’s position.

JUSTICE AMY CONEY BARRETT: Would there be a constitutional problem then? If he then can't express the speech, put it on T-shirts, sell the T-shirts, sell mugs, whatever.

MALCOLM STEWART: If Donald Trump's only motive for obtaining trademark registration and then engaging in limited sales of the goods was to prevent Mr. Elster from selling them, I've never seen a case raising that fact pattern.

ROUGH: As with the civil forfeiture case, the living-person’s name rule is deeply rooted in history, and will likely help inform the court here.

This day ended on a light note. Chief Justice John Roberts congratulated Stewart on his 100th argument before the Supreme Court. And he recalled a spar of his own against Stewart, back when Roberts was an appellate lawyer and the two of them squared off.

Roberts noted that Stewart beat him when the court came out with its decision—with Roberts adding he was only nine votes short.

And that’s this week’s Legal Docket! I’m Jenny Rough.

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