1 00:00:00,594 --> 00:00:03,688 As our listeners probably know, civil forfeit is 2 00:00:03,688 --> 00:00:06,171 a legal practice that lets the government take 3 00:00:06,226 --> 00:00:07,813 and keep your property. 4 00:00:08,304 --> 00:00:10,241 By claiming it's connected to a crime 5 00:00:10,619 --> 00:00:12,216 without needing to convict anyone. 6 00:00:13,014 --> 00:00:14,930 You can lose your property even when the 7 00:00:14,930 --> 00:00:16,287 government agrees you're innocent. 8 00:00:17,419 --> 00:00:20,630 Recently, the Supreme court decided an important forfeit 9 00:00:20,688 --> 00:00:20,848 case. 10 00:00:21,565 --> 00:00:24,197 While the outcome was disappointing the way they 11 00:00:24,197 --> 00:00:25,951 decided it gives us hope that the high 12 00:00:25,951 --> 00:00:28,275 court is finally ready to rein in this 13 00:00:28,275 --> 00:00:29,708 form of theft by government. 14 00:00:30,744 --> 00:00:32,893 I'm Kim Nor of the non nonprofit civil 15 00:00:32,973 --> 00:00:35,059 Liberties law firm, the institute for just us. 16 00:00:35,379 --> 00:00:37,219 And I'm here with c host Keith Neel, 17 00:00:37,460 --> 00:00:40,179 and I Attorneys Dan Alba and Kirby Thomas 18 00:00:40,259 --> 00:00:43,619 West to discuss C V Marshall, and what 19 00:00:43,619 --> 00:00:46,053 it means for the fight against civil forfeit. 20 00:00:47,071 --> 00:00:48,509 This is beyond the brief. 21 00:00:57,444 --> 00:01:00,064 So Kirby, what was this case C v 22 00:01:00,143 --> 00:01:01,175 Marshal about? 23 00:01:02,143 --> 00:01:04,605 So Cole is a a forfeit case out 24 00:01:04,605 --> 00:01:07,646 of Alabama, and the facts are very similar 25 00:01:07,781 --> 00:01:09,528 to a lot of the kind of forfeit 26 00:01:09,528 --> 00:01:11,037 cases that we see here at I. 27 00:01:11,607 --> 00:01:13,908 You have 2 women, Hale Cali Lena Sutton, 28 00:01:14,464 --> 00:01:17,162 both had vehicles that somebody else was driving 29 00:01:17,162 --> 00:01:19,398 and did something wrong with. So in miss 30 00:01:19,398 --> 00:01:21,461 cole case, her son was driving the car, 31 00:01:21,778 --> 00:01:24,158 got stopped and had marijuana and a gun, 32 00:01:24,316 --> 00:01:25,348 and the car was seized. 33 00:01:25,998 --> 00:01:27,348 And in a sutton case, it was a 34 00:01:27,348 --> 00:01:28,778 friend who was driving the car, and it 35 00:01:28,778 --> 00:01:31,003 was found to have, a large quantity of 36 00:01:31,003 --> 00:01:32,512 meth and the car was also seized. 37 00:01:33,644 --> 00:01:34,943 Beyond that, there are some 38 00:01:35,322 --> 00:01:37,639 distinctions that I think make these the facts 39 00:01:37,639 --> 00:01:39,397 a little bit unique from actually many of 40 00:01:39,397 --> 00:01:40,755 the forfeit cases we see. 41 00:01:41,409 --> 00:01:43,881 1 is that in both cases, the person 42 00:01:43,881 --> 00:01:46,274 who committed the crime was actually arrested and 43 00:01:46,274 --> 00:01:46,593 charged. 44 00:01:47,231 --> 00:01:49,385 And, you know, as supporters of I will 45 00:01:49,385 --> 00:01:52,034 likely know often in forfeit cases very often 46 00:01:52,034 --> 00:01:55,474 in forfeit cases. The actual wrong is not 47 00:01:55,474 --> 00:01:57,715 ever arrested or charged, and and the government 48 00:01:57,715 --> 00:01:59,875 focuses on the seizure and forfeit of the 49 00:01:59,875 --> 00:02:00,114 property. 50 00:02:00,769 --> 00:02:03,084 But in this case... The alleged wrong. The 51 00:02:03,084 --> 00:02:04,441 alleged wrongdoing doing. That's right. 52 00:02:05,399 --> 00:02:06,118 And in this case, 53 00:02:07,315 --> 00:02:09,412 Miss C and Miss Sutton brought a lawsuit 54 00:02:09,471 --> 00:02:09,971 challenging 55 00:02:10,364 --> 00:02:12,111 the fact that they were not offered a 56 00:02:12,111 --> 00:02:14,811 prompt hearing, a prompt posts seizure hearing after 57 00:02:14,811 --> 00:02:16,741 the seizure of their cars to challenge 58 00:02:17,194 --> 00:02:19,021 the possible forfeit and try to get their 59 00:02:19,021 --> 00:02:19,497 cars back. 60 00:02:20,227 --> 00:02:21,180 And that was a question that went up 61 00:02:21,180 --> 00:02:23,825 the Us Supreme Court was does the Us 62 00:02:23,961 --> 00:02:26,765 constitution require that people are given an opportunity 63 00:02:27,955 --> 00:02:30,194 promptly after the seizure of a car or 64 00:02:30,194 --> 00:02:31,655 a seizure of of property 65 00:02:32,034 --> 00:02:33,474 to challenge that seizure, 66 00:02:33,955 --> 00:02:36,284 a prompt post seizure hearing. So this might 67 00:02:36,284 --> 00:02:37,716 be a good juncture to maybe take a 68 00:02:37,716 --> 00:02:39,943 step back and explain kind of a brief 69 00:02:39,943 --> 00:02:42,171 overview of how forfeit works, and particularly, 70 00:02:42,664 --> 00:02:45,296 the distinction between a post seizure hearing and 71 00:02:45,296 --> 00:02:46,253 a forfeit hearing. 72 00:02:47,130 --> 00:02:49,624 Sure. So as most of our viewers probably 73 00:02:49,762 --> 00:02:52,256 know, civil forfeit is a legal process 74 00:02:52,808 --> 00:02:55,918 where law enforcement officers can seize property and 75 00:02:55,918 --> 00:02:59,507 permanently keep it without necessarily convict someone of 76 00:02:59,507 --> 00:03:01,421 a crime or even charging them with a 77 00:03:01,421 --> 00:03:01,660 crime. 78 00:03:02,313 --> 00:03:05,583 Now, it's important to understand the distinction between 79 00:03:05,583 --> 00:03:08,136 the seizure and the forfeit because they're 2 80 00:03:08,136 --> 00:03:11,406 different moments in time, often separated by several 81 00:03:11,406 --> 00:03:11,645 years, 82 00:03:12,297 --> 00:03:12,797 and 83 00:03:13,412 --> 00:03:15,879 what the case of coli is about is 84 00:03:15,879 --> 00:03:18,108 whether you get a hearing shortly after the 85 00:03:18,108 --> 00:03:20,835 seizure. The seizure is what happens on the 86 00:03:20,835 --> 00:03:22,435 side of the road or at the airport 87 00:03:22,435 --> 00:03:24,754 or the the raid on the house, it's 88 00:03:24,754 --> 00:03:26,135 the... When the police 89 00:03:26,514 --> 00:03:28,754 encounter the person with the property that gets 90 00:03:28,754 --> 00:03:31,076 seized They take possession of it and they 91 00:03:31,076 --> 00:03:32,983 take it back to the police station. That's 92 00:03:32,983 --> 00:03:33,540 the seizure. 93 00:03:34,096 --> 00:03:36,424 Just because police have seized someone's property 94 00:03:36,734 --> 00:03:39,051 doesn't mean that they have forfeit it. Doesn't 95 00:03:39,051 --> 00:03:41,469 even mean that they're necessarily going to pursue 96 00:03:41,688 --> 00:03:43,925 forfeit of that property. They could pursue civil 97 00:03:43,925 --> 00:03:46,651 forfeit they could pursue criminal forfeit. They could 98 00:03:46,651 --> 00:03:48,962 just be holding the property as evidence, and 99 00:03:48,962 --> 00:03:51,114 they might return it later after it's no 100 00:03:51,114 --> 00:03:53,757 longer needed as evidence. So the seizure is 101 00:03:53,757 --> 00:03:54,950 the initial thing that happens. 102 00:03:55,586 --> 00:03:57,734 Then there's a legal process. At the end 103 00:03:57,734 --> 00:03:58,927 of that legal process, 104 00:03:59,817 --> 00:04:02,126 which sometimes can drag on for years if 105 00:04:02,126 --> 00:04:04,754 the person is contest the seizure, contest the 106 00:04:04,754 --> 00:04:05,254 forfeit 107 00:04:05,630 --> 00:04:08,510 and trying to get their property back ultimately, 108 00:04:08,670 --> 00:04:10,919 the court can enter an order of Forfeit 109 00:04:11,294 --> 00:04:12,271 that transfers 110 00:04:12,646 --> 00:04:15,270 title of the property from the property owner 111 00:04:15,270 --> 00:04:17,112 to the government. That's forfeit. 112 00:04:17,588 --> 00:04:20,921 So what was it issuing Cole was shortly 113 00:04:20,921 --> 00:04:23,564 after the seizure, short shortly after police took 114 00:04:23,619 --> 00:04:24,572 possession of the vehicles, 115 00:04:25,302 --> 00:04:25,619 were, 116 00:04:26,414 --> 00:04:27,050 miss Cole, 117 00:04:27,765 --> 00:04:29,378 and the other plaintiff were they 118 00:04:29,911 --> 00:04:32,136 able to get a quick hearing within a 119 00:04:32,136 --> 00:04:34,536 few weeks after the seizure, so that they 120 00:04:34,536 --> 00:04:36,367 could get their car back and continue using 121 00:04:36,367 --> 00:04:37,879 it while the case continued. 122 00:04:38,595 --> 00:04:41,461 So is this pretty typical in forfeit cases 123 00:04:41,461 --> 00:04:45,082 that innocent owners have to wait a long 124 00:04:45,141 --> 00:04:45,641 time 125 00:04:46,018 --> 00:04:48,013 before having this hearing or not having the 126 00:04:48,013 --> 00:04:48,572 hearing at all. 127 00:04:49,449 --> 00:04:50,567 It's extremely typical. 128 00:04:51,459 --> 00:04:54,321 In our case in Detroit, I case out 129 00:04:54,321 --> 00:04:56,173 of Detroit where we got a 130 00:04:56,786 --> 00:04:58,376 successful ruling from the sixth circuit on this 131 00:04:58,376 --> 00:04:59,012 very issue. 132 00:04:59,664 --> 00:05:02,860 The individuals whose cars were seized were waiting 133 00:05:02,860 --> 00:05:04,698 months before they ever got in front of 134 00:05:04,698 --> 00:05:05,017 a judge. 135 00:05:05,816 --> 00:05:07,745 So though in this case, And I think 136 00:05:07,745 --> 00:05:09,412 that's part of the problem and why the 137 00:05:09,412 --> 00:05:11,713 majority came out the way they did, Alabama 138 00:05:11,713 --> 00:05:14,673 actually moved relatively quickly and initiating the forfeit 139 00:05:14,808 --> 00:05:15,784 proceeding, the formal 140 00:05:16,093 --> 00:05:17,844 legal proceeding that Dan was talking about. 141 00:05:19,276 --> 00:05:21,266 In in many cases, that's just not the 142 00:05:21,266 --> 00:05:23,573 case, and it's months and months or even 143 00:05:23,573 --> 00:05:26,079 years before someone ever makes it to court 144 00:05:26,536 --> 00:05:28,691 to to be able to challenge the forfeit. 145 00:05:29,249 --> 00:05:31,723 So what did the the supreme court decide 146 00:05:31,723 --> 00:05:34,392 in in the c case? So the majority 147 00:05:34,450 --> 00:05:37,001 decided in a a decision by Justice Kavanaugh 148 00:05:37,001 --> 00:05:39,813 that all the constitution requires is a timely 149 00:05:39,871 --> 00:05:42,675 forfeit hearing. So again, not this posts seizure 150 00:05:42,675 --> 00:05:45,698 hearing that Dan was describing, but the broader 151 00:05:45,698 --> 00:05:48,799 forfeit hearing to make a final determination about 152 00:05:48,799 --> 00:05:50,492 whether or not the government is able 153 00:05:50,803 --> 00:05:52,393 to permanently take the car. 154 00:05:53,427 --> 00:05:55,574 And they said that, you know, a timely 155 00:05:55,574 --> 00:05:57,324 hearing. You have these 4 factors that you 156 00:05:57,324 --> 00:05:59,408 look at, including, you know, did the claimant 157 00:05:59,408 --> 00:06:00,525 and ask for a hearing, 158 00:06:01,163 --> 00:06:01,822 was it? 159 00:06:02,279 --> 00:06:04,592 The delay? How long was the delay. I 160 00:06:04,592 --> 00:06:06,666 mean, in this case, part of the problem 161 00:06:06,666 --> 00:06:08,682 was that the the claimants 162 00:06:09,153 --> 00:06:11,617 did not move particularly quickly, 1 of them 163 00:06:11,617 --> 00:06:14,081 defaulted, and the government, as I mentioned did 164 00:06:14,081 --> 00:06:16,545 actually move fairly quickly, which is very unusual 165 00:06:16,545 --> 00:06:19,345 in forfeit cases, but in 1 instance, they 166 00:06:19,345 --> 00:06:21,099 filed the claim in about 10 days, I 167 00:06:21,099 --> 00:06:22,853 think, and in 13 days and the other, 168 00:06:23,013 --> 00:06:25,165 which is unheard of in cases that I've 169 00:06:25,165 --> 00:06:26,600 seen in forfeit cases that I've seen. 170 00:06:27,810 --> 00:06:29,560 But because of this, they said, you know, 171 00:06:29,719 --> 00:06:32,186 that's all the constitution requires. They were ultimately 172 00:06:32,186 --> 00:06:34,389 able to to get their forfeit hearing and 173 00:06:34,668 --> 00:06:36,979 there's no requirement of a of a more 174 00:06:36,979 --> 00:06:39,607 immediate prompt posts seizure hearing. I will say 175 00:06:39,607 --> 00:06:41,495 though as a caveat, even in this, which 176 00:06:41,694 --> 00:06:43,771 the the court seemed to view as a 177 00:06:43,771 --> 00:06:46,168 model case. Right? Everything went well, and miss 178 00:06:46,248 --> 00:06:47,925 Cole was able to get her car... Her 179 00:06:47,925 --> 00:06:48,245 car back. 180 00:06:49,058 --> 00:06:51,531 I was 20 months from the time of 181 00:06:51,531 --> 00:06:53,604 seizure to the time where she was ultimately 182 00:06:53,604 --> 00:06:55,838 able to get her car back. So even 183 00:06:55,838 --> 00:06:57,672 where things are all working great in the 184 00:06:57,672 --> 00:07:00,242 court's mind, you still have the situation where 185 00:07:00,242 --> 00:07:02,560 it's almost 2 years without a car, which 186 00:07:02,560 --> 00:07:05,596 is obviously devastating for so many people who 187 00:07:05,596 --> 00:07:07,366 rely on their cars to get to work, 188 00:07:07,525 --> 00:07:09,671 get their kids to school, get groceries, things 189 00:07:09,671 --> 00:07:10,728 like that. So 190 00:07:11,341 --> 00:07:12,692 you know, even in this that the court 191 00:07:12,692 --> 00:07:14,361 paints is kind of a best case scenario, 192 00:07:14,520 --> 00:07:17,079 you can see why the absence of that 193 00:07:17,079 --> 00:07:19,962 prompt posts seizure hearing can be really problematic. 194 00:07:20,495 --> 00:07:22,401 And, Dan, you were talking about sort of 195 00:07:22,401 --> 00:07:24,387 the sequence of there's the seizure and then 196 00:07:24,387 --> 00:07:27,267 there's question mark amount of time, and then 197 00:07:27,267 --> 00:07:29,097 there's those forfeit process. 198 00:07:29,575 --> 00:07:31,405 And so it seems to me that if 199 00:07:31,405 --> 00:07:33,645 the court is saying, somebody has to ask 200 00:07:33,645 --> 00:07:35,097 for a forfeit hearing 201 00:07:35,946 --> 00:07:37,533 after their stuff is seized, 202 00:07:37,930 --> 00:07:40,802 the government hasn't initiated the forfeit yet. So 203 00:07:40,802 --> 00:07:43,050 it seems like you're asking for forfeit 204 00:07:43,821 --> 00:07:46,363 before the government is actually doing the forfeit. 205 00:07:46,522 --> 00:07:49,079 Am I misunderstanding something there? No. You're not. 206 00:07:49,238 --> 00:07:51,326 And this is something that is sort of 207 00:07:51,700 --> 00:07:52,200 inexplicable 208 00:07:52,812 --> 00:07:54,639 in the opinion and also didn't make any 209 00:07:54,639 --> 00:07:56,862 sense at oral argument. I attended the oral 210 00:07:56,862 --> 00:07:58,569 argument and Coli. And 211 00:07:59,342 --> 00:08:01,013 I I believe it was justice Thomas, who 212 00:08:01,013 --> 00:08:03,956 was very skeptical who ended up concur in 213 00:08:03,956 --> 00:08:05,252 a in a very interesting... 214 00:08:05,786 --> 00:08:08,110 Concur with Justice Sc that but he asked 215 00:08:08,110 --> 00:08:11,137 at 1 point of, miss Cole attorney? Why 216 00:08:11,137 --> 00:08:12,969 didn't she just file a motion for summary 217 00:08:12,969 --> 00:08:13,846 judgment on day 1? 218 00:08:14,660 --> 00:08:16,439 And that's a really odd question 219 00:08:16,740 --> 00:08:18,500 because... And it sort of reflects a lack 220 00:08:18,500 --> 00:08:21,060 of understanding of how the whole process works. 221 00:08:21,540 --> 00:08:22,980 Day 1 is the day of the seizure. 222 00:08:23,395 --> 00:08:25,555 There is no pending case, and there isn't 223 00:08:25,555 --> 00:08:26,535 a pending case 224 00:08:26,915 --> 00:08:30,035 until the government pursues forfeit by filing a 225 00:08:30,035 --> 00:08:31,154 civil forfeit complaint. 226 00:08:32,123 --> 00:08:33,393 In many cases, 227 00:08:34,108 --> 00:08:36,092 this is an unusual 1 where they were 228 00:08:36,410 --> 00:08:38,077 the complaints were filed within a couple of 229 00:08:38,077 --> 00:08:38,792 weeks of the seizure. 230 00:08:40,157 --> 00:08:42,302 In many instances, especially, like, at the federal 231 00:08:42,302 --> 00:08:44,765 level, it's typically 6 months later that the 232 00:08:44,845 --> 00:08:47,149 Civil forfeit complaint gets filed. And that's only 233 00:08:47,149 --> 00:08:47,649 after 234 00:08:48,039 --> 00:08:50,192 the property owner has had to file a 235 00:08:50,192 --> 00:08:50,431 claim. 236 00:08:51,547 --> 00:08:53,222 They've had to wait 90 days to get 237 00:08:53,222 --> 00:08:55,135 a notice. Like, there's there's all these things 238 00:08:55,135 --> 00:08:56,831 that take place before 239 00:08:57,144 --> 00:08:57,704 the the 240 00:08:58,423 --> 00:09:00,900 complaint for Forfeit is even filed. And so 241 00:09:00,900 --> 00:09:02,339 the idea that you could file a motion 242 00:09:02,339 --> 00:09:04,976 for summary judgment on day 1 is extremely 243 00:09:04,976 --> 00:09:06,070 puzzling. There's there's 244 00:09:06,508 --> 00:09:08,763 not a case to file the motion for 245 00:09:08,901 --> 00:09:11,613 summary judgment in. And even if in this 246 00:09:11,613 --> 00:09:13,926 case, they had as soon as the the 247 00:09:13,926 --> 00:09:17,532 government filed, the forfeit complaint then sought summary 248 00:09:17,532 --> 00:09:19,690 judgment. There's no guarantee that you get any 249 00:09:19,690 --> 00:09:21,767 kind of prompt on that. The court can 250 00:09:21,767 --> 00:09:22,885 sit on that for as long as it 251 00:09:22,885 --> 00:09:25,712 wants. In all likelihood. It's not going to 252 00:09:26,009 --> 00:09:28,718 grant an immediate motion for for summary judgment. 253 00:09:29,594 --> 00:09:31,586 There's there's still going to be discovery and 254 00:09:31,586 --> 00:09:33,673 all sorts of things that take place. So 255 00:09:33,673 --> 00:09:35,290 it was a pretty unrealistic, 256 00:09:35,986 --> 00:09:36,646 sort of 257 00:09:37,183 --> 00:09:40,533 hypothetical question by justice Thomas. It's kind of 258 00:09:41,250 --> 00:09:43,027 I think influences the opinion 259 00:09:43,816 --> 00:09:45,748 in unfortunate ways, but 260 00:09:46,441 --> 00:09:47,896 you know, sometimes 261 00:09:48,430 --> 00:09:51,072 that's what happens when, you know, Supreme court 262 00:09:51,072 --> 00:09:52,906 justices are generalist. I don't think any of 263 00:09:52,906 --> 00:09:56,097 them has specifically handled forfeit cases or lit 264 00:09:56,097 --> 00:09:58,888 forfeit cases. So they're just sort of all 265 00:09:58,888 --> 00:10:00,740 analyzing to how a normal civil case works, 266 00:10:01,379 --> 00:10:03,220 and it's a bit different from how a 267 00:10:03,220 --> 00:10:04,339 civil forfeit case works. 268 00:10:05,139 --> 00:10:06,740 So, Kirby, you touched on this a little 269 00:10:06,740 --> 00:10:08,740 bit earlier, not too long ago, we won 270 00:10:08,740 --> 00:10:10,987 a pretty substantial at the sixth circuit where 271 00:10:10,987 --> 00:10:12,975 they said you have to have or provide, 272 00:10:13,293 --> 00:10:15,916 excuse me, a prompt posts seizure hearing within 273 00:10:15,916 --> 00:10:18,143 2 weeks. And now you have c that 274 00:10:18,143 --> 00:10:19,097 comes out and says well, 275 00:10:19,750 --> 00:10:21,589 maybe you don't have to provide that at 276 00:10:21,589 --> 00:10:25,029 all. What impact does C have on the 277 00:10:25,029 --> 00:10:26,949 sixth circuit victory that we had just a 278 00:10:26,949 --> 00:10:27,589 few months ago? 279 00:10:28,243 --> 00:10:31,029 The short answer is we'll see. Right? And 280 00:10:31,029 --> 00:10:33,599 so our... The 6 circuit decision is actually 281 00:10:33,974 --> 00:10:36,123 even better than you're describing and that the 282 00:10:36,123 --> 00:10:38,685 the panel said, yes, 2 weeks, and you 283 00:10:38,685 --> 00:10:40,436 need to have a prop seizure hearing in 284 00:10:40,436 --> 00:10:42,745 within 2 weeks. But 1 judge actually concur 285 00:10:42,745 --> 00:10:44,257 and said it should really be in 48 286 00:10:44,257 --> 00:10:46,087 hours. Mh. And I think what was going 287 00:10:46,087 --> 00:10:47,622 on there is that the sixth circuit 288 00:10:48,014 --> 00:10:49,695 Last dan was alluding to the Supreme court 289 00:10:49,695 --> 00:10:52,575 justices didn't seem to understand. The ins and 290 00:10:52,575 --> 00:10:54,415 outs of forfeit and the way that the 291 00:10:54,415 --> 00:10:56,664 6 circuit did in the ingram decision and 292 00:10:56,664 --> 00:10:58,575 from our detroit case and and how this 293 00:10:58,575 --> 00:11:00,644 actually works and how necessary it is to 294 00:11:00,644 --> 00:11:01,839 have a chance to be able to get 295 00:11:01,839 --> 00:11:02,316 your car back. 296 00:11:04,083 --> 00:11:06,311 But I say we'll see because although this 297 00:11:06,311 --> 00:11:09,039 this decision obviously is clearly contradicts 298 00:11:09,494 --> 00:11:10,926 the 6 circuit decision and saying, 299 00:11:11,579 --> 00:11:14,059 actually no the the constitution doesn't require a 300 00:11:14,059 --> 00:11:17,100 prompt seizure hearing. They did reiterate time and 301 00:11:17,100 --> 00:11:20,379 again that again this timely forfeit hearing is 302 00:11:20,379 --> 00:11:20,699 required. 303 00:11:21,274 --> 00:11:23,674 And in Detroit, that was just totally absent. 304 00:11:23,835 --> 00:11:25,115 And as I mentioned, that's true in so 305 00:11:25,115 --> 00:11:27,595 many other jurisdictions as well, it was taking, 306 00:11:27,674 --> 00:11:27,995 you know, 307 00:11:28,882 --> 00:11:31,577 6 months a year more for for people 308 00:11:31,577 --> 00:11:34,272 to get actual forfeit hearing or up to 309 00:11:34,272 --> 00:11:36,113 4 to 6 months for the county to 310 00:11:36,113 --> 00:11:39,225 even initiate any kind of forfeit proceedings. And 311 00:11:39,225 --> 00:11:40,502 in the lead up to that, they would 312 00:11:40,502 --> 00:11:41,241 be constantly 313 00:11:41,699 --> 00:11:43,316 pressuring people to settle 314 00:11:43,708 --> 00:11:46,096 and not challenge the forfeit, and they were 315 00:11:46,096 --> 00:11:47,232 pressuring them to 316 00:11:47,687 --> 00:11:48,881 you know, just just pay a little bit, 317 00:11:49,040 --> 00:11:50,631 and then we'll we'll let it go and 318 00:11:50,631 --> 00:11:53,142 and obviously, you know, kind of having this 319 00:11:53,202 --> 00:11:57,217 background incentive of profit and financial motive to 320 00:11:57,676 --> 00:11:59,209 to get them to just give up case 321 00:11:59,209 --> 00:12:01,686 and before they actually got to the the 322 00:12:01,686 --> 00:12:04,343 point of ins shooting a forfeit proceeding. So 323 00:12:04,483 --> 00:12:07,014 though the holding itself contradicts a 6 circuit 324 00:12:07,134 --> 00:12:09,282 holding, I think that there's still a lot 325 00:12:09,282 --> 00:12:09,918 to be 326 00:12:10,395 --> 00:12:12,782 settled and determined and and how this operating 327 00:12:12,782 --> 00:12:13,259 in Detroit. 328 00:12:13,895 --> 00:12:14,649 So So... 329 00:12:15,106 --> 00:12:17,099 This is maybe slightly too pointed of a 330 00:12:17,099 --> 00:12:19,810 question, but it sounds like a lot of 331 00:12:19,810 --> 00:12:21,883 the justices kind of don't understand what's going 332 00:12:21,883 --> 00:12:23,727 on in civil 4 shirt. Did any of 333 00:12:23,727 --> 00:12:24,227 them 334 00:12:24,679 --> 00:12:24,997 get it? 335 00:12:25,949 --> 00:12:26,822 Yes. Happily. 336 00:12:28,329 --> 00:12:30,129 So there was a descent 337 00:12:31,043 --> 00:12:33,823 written by Justice So and join joined by 338 00:12:33,823 --> 00:12:35,332 justices C and Jackson, 339 00:12:35,968 --> 00:12:38,351 which was great and cited the institute justices. 340 00:12:38,589 --> 00:12:39,701 Ami mic brief in the case. 341 00:12:40,355 --> 00:12:42,355 Relied a lot on our research materials from 342 00:12:42,355 --> 00:12:44,835 our strategic research department, which is fantastic. 343 00:12:45,794 --> 00:12:48,774 But even more interestingly, I think, justice gorsuch 344 00:12:48,929 --> 00:12:51,966 wrote a concur joined by Justice Thomas. So 345 00:12:51,966 --> 00:12:54,224 for those who are counting, that's 5 justices 346 00:12:54,523 --> 00:12:56,681 who who are on board with with these 347 00:12:56,681 --> 00:12:57,320 kind of ideas, 348 00:12:57,973 --> 00:13:00,542 saying, listen, I I agree with the majority 349 00:13:00,678 --> 00:13:02,667 that in this specific case, I don't think 350 00:13:02,667 --> 00:13:04,736 the constitution requires a prompt procedure hearing. 351 00:13:05,550 --> 00:13:06,110 That said, 352 00:13:06,750 --> 00:13:09,310 there are a lot of constitutional problems with 353 00:13:09,389 --> 00:13:10,029 Civil forfeit. 354 00:13:10,430 --> 00:13:12,509 Let me talk about some of them. And 355 00:13:12,509 --> 00:13:15,264 he then, again cites a lot of I 356 00:13:15,321 --> 00:13:18,269 materials in laying out all of these really 357 00:13:18,269 --> 00:13:20,819 serious problems with, civil forfeit. 358 00:13:21,376 --> 00:13:24,895 And I think really inviting future cases to 359 00:13:24,895 --> 00:13:27,757 to address some of those constitutional deficiencies. 360 00:13:28,711 --> 00:13:31,096 So what you're describing sort of in that 361 00:13:31,096 --> 00:13:34,455 concur sounds like a descent to me. Like, 362 00:13:34,615 --> 00:13:36,695 why is that a concur instead of just 363 00:13:36,695 --> 00:13:38,535 a, you know, no. You're wrong? 364 00:13:39,335 --> 00:13:41,335 I I think it ended up being a 365 00:13:41,335 --> 00:13:41,835 concur 366 00:13:42,215 --> 00:13:42,715 because 367 00:13:43,188 --> 00:13:46,400 the majority opinion was written quite narrowly 368 00:13:46,937 --> 00:13:50,069 on the subject of whether a separate preliminary 369 00:13:50,127 --> 00:13:51,244 hearing is required. 370 00:13:51,882 --> 00:13:52,382 And 371 00:13:53,251 --> 00:13:56,033 that's what that's what the the majority opinion 372 00:13:56,033 --> 00:13:58,179 says, no. There's... You know, you you're not 373 00:13:58,179 --> 00:14:00,166 required to have this separate preliminary hearing, but 374 00:14:00,166 --> 00:14:01,676 a timely hearing is required. 375 00:14:02,329 --> 00:14:03,127 Interestingly, the 376 00:14:03,925 --> 00:14:06,022 the concur by justice gorsuch 377 00:14:06,560 --> 00:14:09,195 interprets that as being a prompt hearing. It 378 00:14:09,195 --> 00:14:11,371 says a prompt hearing is required under the 379 00:14:11,430 --> 00:14:14,149 constitution, in the first sentence of justices of 380 00:14:14,149 --> 00:14:15,365 justice gorsuch such is 381 00:14:15,739 --> 00:14:17,249 concur. So I think, 382 00:14:18,362 --> 00:14:20,928 in part, the concur was written to ensure 383 00:14:21,158 --> 00:14:23,164 that the majority opinion was read 384 00:14:23,852 --> 00:14:24,565 quite narrowly. 385 00:14:25,120 --> 00:14:25,620 And 386 00:14:26,150 --> 00:14:28,155 I think it reflects the fact that although 387 00:14:28,384 --> 00:14:30,545 you know, perhaps justice course justice Thomas, some 388 00:14:30,545 --> 00:14:33,024 of the other justices have not practiced in 389 00:14:33,024 --> 00:14:36,225 civil forfeit cases. They understand the big picture 390 00:14:36,225 --> 00:14:36,465 concerns. 391 00:14:37,038 --> 00:14:39,505 And that's what that concur is all about. 392 00:14:39,823 --> 00:14:41,892 That this narrow issue that was before the 393 00:14:41,892 --> 00:14:44,756 court, in this case, they didn't think, you 394 00:14:44,756 --> 00:14:45,495 know, warranted 395 00:14:47,633 --> 00:14:50,176 reversal, but there were a lot of other 396 00:14:50,573 --> 00:14:53,924 concerns with civil forfeit. And Gorsuch is concur 397 00:14:53,924 --> 00:14:56,168 sort of marches through a bunch of those 398 00:14:56,223 --> 00:14:56,540 concerns, 399 00:14:57,492 --> 00:15:00,291 from a due process perspective, from a historical 400 00:15:00,346 --> 00:15:00,663 perspective, 401 00:15:01,792 --> 00:15:02,690 comparing modern 402 00:15:03,147 --> 00:15:05,799 uses of forfeit to historical uses of forfeit 403 00:15:06,176 --> 00:15:08,828 and really suggests that the way forfeit 404 00:15:09,538 --> 00:15:13,190 is done today is completely inconsistent with what 405 00:15:13,190 --> 00:15:14,484 was allowed historically 406 00:15:14,857 --> 00:15:15,913 and that the 407 00:15:16,286 --> 00:15:18,844 sort of use of civil forfeit historically can 408 00:15:18,844 --> 00:15:19,983 only really be justified 409 00:15:20,442 --> 00:15:21,901 for areas of admiral, 410 00:15:22,280 --> 00:15:24,518 customs, and I think the third 1 had 411 00:15:24,518 --> 00:15:25,957 to do with taxes, 412 00:15:26,436 --> 00:15:29,009 tax collection revenue law. And that outside of 413 00:15:29,009 --> 00:15:30,950 those areas, it it seems 414 00:15:32,529 --> 00:15:33,089 if not, 415 00:15:34,529 --> 00:15:37,504 unconstitutional, absolutely, at least highly questionable. Of course, 416 00:15:37,664 --> 00:15:40,464 you know, justices don't wanna lay out all 417 00:15:40,464 --> 00:15:42,464 of their opinions, in a case where the 418 00:15:42,464 --> 00:15:44,360 issue is not presented to them. So 419 00:15:44,717 --> 00:15:46,625 it's kind of more of a invitation, I 420 00:15:46,625 --> 00:15:47,261 think than 421 00:15:47,897 --> 00:15:49,725 you know, a full thesis of of his 422 00:15:49,725 --> 00:15:49,964 views. 423 00:15:51,474 --> 00:15:54,113 Did you know J represent ordinary people? Free 424 00:15:54,113 --> 00:15:56,340 of charge as they fight back against government 425 00:15:56,340 --> 00:15:56,499 abuse. 426 00:15:57,215 --> 00:15:58,806 If you're looking for a rewarding way to 427 00:15:58,806 --> 00:16:00,714 support our work, consider becoming a member of 428 00:16:00,714 --> 00:16:03,038 our mary band of monthly donors. And stand 429 00:16:03,038 --> 00:16:05,194 shoulder to shoulder with I clients every month 430 00:16:05,194 --> 00:16:07,908 of the year. Multi donations are convenient and 431 00:16:07,908 --> 00:16:10,383 cost efficient, meaning more of your money goes 432 00:16:10,383 --> 00:16:12,034 directly to our fight for freedom and just 433 00:16:12,713 --> 00:16:14,230 Sign up to Donate today at I j 434 00:16:14,230 --> 00:16:15,268 dot org slash monthly. 435 00:16:16,066 --> 00:16:18,062 Well, speaking of the history of Civil forfeit. 436 00:16:18,221 --> 00:16:19,977 I know that this was a focal point 437 00:16:19,977 --> 00:16:21,389 of our Ami brief 438 00:16:21,747 --> 00:16:23,995 Could you touch on how we got from 439 00:16:24,211 --> 00:16:27,072 what sounds like a very limited narrow range 440 00:16:27,072 --> 00:16:30,274 of historical forfeit to today's modern practice 441 00:16:30,663 --> 00:16:32,175 where it seems to be that that civil 442 00:16:32,175 --> 00:16:33,789 forfeit is widespread 443 00:16:34,164 --> 00:16:36,154 in a in a a variety of different 444 00:16:36,154 --> 00:16:37,847 areas. Sure. So 445 00:16:38,237 --> 00:16:39,509 as I was saying, historically, 446 00:16:40,065 --> 00:16:42,370 Forfeit was was something that came out of 447 00:16:42,370 --> 00:16:43,164 admiral law. 448 00:16:44,038 --> 00:16:44,936 It was used 449 00:16:45,310 --> 00:16:46,446 to enforce customs 450 00:16:47,792 --> 00:16:50,423 So if there were unpaid, duties and tariffs, 451 00:16:50,583 --> 00:16:51,221 that sort of thing, 452 00:16:52,258 --> 00:16:54,432 it it could be used to seize goods 453 00:16:54,490 --> 00:16:56,085 that were smuggled into the country, 454 00:16:56,820 --> 00:16:58,660 could be used to seize goods that had... 455 00:16:59,460 --> 00:17:01,220 The taxes hadn't been paid on that sort 456 00:17:01,220 --> 00:17:01,539 of thing. 457 00:17:02,419 --> 00:17:04,660 But it was a pretty narrow area of 458 00:17:04,660 --> 00:17:05,434 law. But 459 00:17:05,951 --> 00:17:08,019 like, many things in government over time, 460 00:17:08,973 --> 00:17:09,609 those powers, 461 00:17:10,245 --> 00:17:13,559 the government exercises expand. And so they first 462 00:17:13,758 --> 00:17:15,740 expanded significantly during prohibition, 463 00:17:16,929 --> 00:17:19,545 and that they were used 2 c's, not 464 00:17:19,545 --> 00:17:20,893 just ships that were bringing in, 465 00:17:21,942 --> 00:17:23,774 you know, barrels of whiskey, but also, 466 00:17:25,048 --> 00:17:26,721 trucks that were bringing them over the Canadian 467 00:17:26,721 --> 00:17:27,597 border, for example, 468 00:17:28,315 --> 00:17:29,054 and other 469 00:17:29,828 --> 00:17:32,259 property that was somehow related to 470 00:17:33,200 --> 00:17:35,519 smuggling of alcohol into the United States during 471 00:17:35,519 --> 00:17:37,039 prohibition. But when Prohibition ended, 472 00:17:38,493 --> 00:17:40,488 that was sort of, a time when civil 473 00:17:40,488 --> 00:17:43,760 forfeit, again, kind of return to obscurity wasn't 474 00:17:43,760 --> 00:17:44,260 used 475 00:17:44,797 --> 00:17:45,616 very much 476 00:17:45,929 --> 00:17:47,609 for a long time until the war on 477 00:17:47,609 --> 00:17:48,890 drugs started up. And then, 478 00:17:49,609 --> 00:17:52,569 with the war on drugs, the rationale of 479 00:17:52,650 --> 00:17:54,750 Civil forfeit was applied to 480 00:17:55,062 --> 00:17:57,626 not just boats on the high seas where, 481 00:17:57,761 --> 00:18:00,007 you know, the the captain was in Portugal 482 00:18:00,142 --> 00:18:02,339 or in Spain or somewhere that you couldn't 483 00:18:03,099 --> 00:18:05,496 exercise jurisdiction, but it was it was used 484 00:18:05,496 --> 00:18:06,715 to justify 485 00:18:07,414 --> 00:18:11,170 seizing, cars, vehicles, cash from people traveling through 486 00:18:11,170 --> 00:18:14,135 airports. And suddenly, everything was fair game. And 487 00:18:14,135 --> 00:18:15,171 that was enabled by, 488 00:18:16,526 --> 00:18:19,497 in particular, federal legislation that many states modeled 489 00:18:19,888 --> 00:18:22,677 the 19 84 comprehensive crime control Act, 490 00:18:23,394 --> 00:18:25,704 being the the worst of the and sort 491 00:18:25,704 --> 00:18:27,935 of the ins indicator of of, much of 492 00:18:27,935 --> 00:18:28,971 this activity. 493 00:18:29,543 --> 00:18:32,648 And that that bill made it so that 494 00:18:32,967 --> 00:18:35,993 there is a special forfeit fund that all 495 00:18:35,993 --> 00:18:37,607 proceeds of federal forfeit 496 00:18:38,159 --> 00:18:41,272 get put into, either, a, Doj assets forfeit 497 00:18:41,272 --> 00:18:42,490 fund or a separate 1 498 00:18:43,188 --> 00:18:45,023 with treasury. But these are funds that are 499 00:18:45,023 --> 00:18:47,353 controlled by law enforcement. They're controlled either by 500 00:18:47,353 --> 00:18:49,110 the Department of Justice or the Department of 501 00:18:49,269 --> 00:18:50,568 Treasury, and 502 00:18:51,106 --> 00:18:53,022 that means they can spend all the money 503 00:18:53,022 --> 00:18:54,698 in those funds. However were they pleased. They 504 00:18:54,698 --> 00:18:57,508 don't have to get appropriation. From Congress which 505 00:18:57,508 --> 00:18:59,346 created? How much money are we talking here? 506 00:18:59,505 --> 00:19:00,544 By the way, it's just a sort of 507 00:19:00,544 --> 00:19:02,381 level set for? Sure. Sure. So, 508 00:19:03,835 --> 00:19:06,075 today, we're talking a few billion dollars a 509 00:19:06,075 --> 00:19:06,234 year. 510 00:19:07,035 --> 00:19:08,954 A year. A year. Yeah. And, 511 00:19:09,755 --> 00:19:10,154 over, 512 00:19:11,444 --> 00:19:13,749 over the 20 year period that that we 513 00:19:13,749 --> 00:19:14,249 studied 514 00:19:15,418 --> 00:19:17,882 from 2000 to 20 19, 515 00:19:18,772 --> 00:19:20,681 there was nearly 70000000000 516 00:19:20,681 --> 00:19:21,794 dollars in 517 00:19:22,510 --> 00:19:24,976 and forfeit proceeds deposited into these funds. 518 00:19:25,706 --> 00:19:28,805 And so that creates tremendous financial incentive for 519 00:19:28,805 --> 00:19:31,211 law enforcement to direct a lot of resources 520 00:19:31,347 --> 00:19:33,412 toward seizing property for Forfeit, 521 00:19:33,983 --> 00:19:34,483 and 522 00:19:35,494 --> 00:19:36,789 that turn affects 523 00:19:37,560 --> 00:19:38,753 you know, law enforcement, 524 00:19:39,230 --> 00:19:41,558 regular activities and duties. And so 525 00:19:41,948 --> 00:19:43,004 these incentives 526 00:19:43,934 --> 00:19:47,111 really drive what's going on with Civil forfeit. 527 00:19:47,588 --> 00:19:50,153 And these are incentives that did not exist 528 00:19:50,941 --> 00:19:53,353 in the earliest days of the country, the 529 00:19:53,491 --> 00:19:55,960 the, you know, the... Someone from the customs 530 00:19:55,960 --> 00:19:56,916 or revenue department, 531 00:19:57,489 --> 00:19:57,989 seized 532 00:19:58,763 --> 00:20:00,676 un tax goods or smuggled goods. 533 00:20:01,552 --> 00:20:02,986 Those were sold off and then the money 534 00:20:02,986 --> 00:20:04,341 was put into the general treasury. 535 00:20:05,552 --> 00:20:08,186 But today, that goes to funds that are 536 00:20:08,186 --> 00:20:10,421 controlled exclusively by law enforcement and can only 537 00:20:10,421 --> 00:20:11,161 be spent 538 00:20:11,538 --> 00:20:12,736 on law enforcement purposes. 539 00:20:13,627 --> 00:20:15,613 1 note about the amounts of money to 540 00:20:15,613 --> 00:20:17,836 because some people hear those really high values 541 00:20:17,836 --> 00:20:19,345 and they think, well, yeah. Of course, you 542 00:20:19,345 --> 00:20:21,545 know the cartel have tons of money and 543 00:20:21,744 --> 00:20:23,822 these drug king pins probably a couple busts, 544 00:20:23,982 --> 00:20:25,980 and you get a hundred million dollars. But 545 00:20:25,980 --> 00:20:28,617 if you look at the individual forfeit, what 546 00:20:28,617 --> 00:20:30,615 you actually see is yes, It turns out 547 00:20:30,615 --> 00:20:32,708 to be these vast sums of money, but 548 00:20:32,708 --> 00:20:35,585 the individual forfeit are around an average of 549 00:20:35,585 --> 00:20:36,544 1200 dollars. 550 00:20:37,103 --> 00:20:38,861 So it really shows that what's getting caught 551 00:20:38,861 --> 00:20:40,540 up in the forfeit process and the Civil 552 00:20:40,540 --> 00:20:43,184 4 future process is not as law enforcement 553 00:20:43,184 --> 00:20:45,494 will often say, you know, drug king pins, 554 00:20:45,733 --> 00:20:48,681 cartel, these kind of criminal enterprises with vast 555 00:20:48,681 --> 00:20:51,506 amount of resources and money. It's just people 556 00:20:51,801 --> 00:20:53,494 with small values of property 557 00:20:53,869 --> 00:20:56,653 that it's difficult, and sometimes just not worth 558 00:20:56,653 --> 00:20:58,482 their time to challenge or try to get 559 00:20:58,482 --> 00:20:58,641 back. 560 00:20:59,293 --> 00:21:00,727 Well, Dan, as you were talking about the 561 00:21:00,727 --> 00:21:02,240 history, and Kim, I don't know if you 562 00:21:02,240 --> 00:21:04,072 picked up on this as well, but, you 563 00:21:04,072 --> 00:21:05,586 know, a few weeks ago, we had Josh 564 00:21:05,745 --> 00:21:07,736 Wind talking about the Open fields doctrine, 565 00:21:08,309 --> 00:21:09,750 And when he was talking about how the 566 00:21:09,750 --> 00:21:12,009 doctrine expanded, he also talked about 567 00:21:12,470 --> 00:21:13,829 prohibition and the war on drugs, 568 00:21:14,390 --> 00:21:16,924 is this a a coincidence or is is 569 00:21:17,124 --> 00:21:19,198 this a historical cause and effect because it 570 00:21:19,198 --> 00:21:22,229 sounds like there's a clear breaking point starting 571 00:21:22,229 --> 00:21:24,462 around prohibition where you see a lot of 572 00:21:24,462 --> 00:21:26,695 these traditional civil liberties start to disappear. 573 00:21:27,429 --> 00:21:29,826 Yeah. I I think these are just examples 574 00:21:29,826 --> 00:21:32,144 of the sort of classic ratchet effect of 575 00:21:32,144 --> 00:21:35,681 government that once power expands, it almost never 576 00:21:35,740 --> 00:21:37,913 is contract back to where it was before. 577 00:21:38,472 --> 00:21:41,190 And so you only see the expansion of 578 00:21:41,190 --> 00:21:44,307 government power and that is probably perhaps most 579 00:21:44,307 --> 00:21:47,279 pronounced in in the area of the fourth 580 00:21:47,279 --> 00:21:50,720 amendment, civil liberties, police powers, the actual law 581 00:21:50,720 --> 00:21:52,559 enforcement police powers, where, 582 00:21:53,279 --> 00:21:55,130 as you expand the sorts of things, they 583 00:21:55,130 --> 00:21:56,320 can enforce against citizens, 584 00:21:56,796 --> 00:21:59,175 that then opens the door for searches to 585 00:21:59,175 --> 00:22:01,634 make sure that they're not doing these new 586 00:22:01,634 --> 00:22:04,917 illegal things. So you know, if you're enforcing 587 00:22:04,917 --> 00:22:06,755 laws against murder. You don't generally have to 588 00:22:06,755 --> 00:22:10,191 go searching through someone's house to see if 589 00:22:10,191 --> 00:22:12,840 they've murdered someone unless There's someone that's gone 590 00:22:12,840 --> 00:22:14,433 missing and, you know, if the they're the 591 00:22:14,433 --> 00:22:16,903 suspect and you have a warrant. But if 592 00:22:16,903 --> 00:22:20,090 you're enforcing laws about, you know, personal use 593 00:22:20,090 --> 00:22:22,417 of drugs or alcohol, then suddenly, 594 00:22:23,056 --> 00:22:25,131 they could find crimes anywhere. Police could find 595 00:22:25,131 --> 00:22:27,945 crimes anywhere and often try to use 596 00:22:28,323 --> 00:22:30,728 the possibility of that. To open the door 597 00:22:30,728 --> 00:22:33,352 for all sorts of searches and other activities 598 00:22:33,352 --> 00:22:33,852 that, 599 00:22:34,307 --> 00:22:36,693 frankly violate the the fourth amendment, but that 600 00:22:36,693 --> 00:22:38,068 are often permitted under 601 00:22:38,854 --> 00:22:40,997 judicial created exceptions to the fourth amendment. 602 00:22:41,632 --> 00:22:43,696 So all of this sounds, you know, really 603 00:22:43,696 --> 00:22:46,494 bleak. So to to pivot in a slightly 604 00:22:46,494 --> 00:22:47,535 more positive direction. 605 00:22:48,494 --> 00:22:51,234 The supreme Court a few years ago decided 606 00:22:51,295 --> 00:22:53,589 a an I forfeit case 607 00:22:54,029 --> 00:22:55,869 on behalf of a guy named Tyson Tim's? 608 00:22:56,349 --> 00:22:58,509 So what happened there and does that kind 609 00:22:58,509 --> 00:23:00,750 of intersect at all with this more recent 610 00:23:00,750 --> 00:23:00,990 case? 611 00:23:01,950 --> 00:23:04,598 Sure. So the The question and issue in 612 00:23:04,837 --> 00:23:07,706 Tim's was actually does the eighth amendments excessive 613 00:23:07,706 --> 00:23:10,357 fines clause, which prohibits the government from 614 00:23:10,734 --> 00:23:12,566 imposing just as I said, an excessive fine? 615 00:23:13,456 --> 00:23:15,677 Does that apply to the states as well, 616 00:23:15,915 --> 00:23:18,137 which seems weird to many people that there 617 00:23:18,137 --> 00:23:20,676 were still in incorporation cases happening this late 618 00:23:20,676 --> 00:23:22,523 in the day, and also seemed weird to 619 00:23:22,523 --> 00:23:24,201 the United States Supreme Court. They said, of 620 00:23:24,201 --> 00:23:26,679 course, yes. Of course, state governments also cannot 621 00:23:26,679 --> 00:23:27,638 impose excessive fines. 622 00:23:28,277 --> 00:23:30,650 But in Tyson Tim's case, what happened was 623 00:23:30,769 --> 00:23:33,805 he had, sold a very small amount dollar 624 00:23:33,805 --> 00:23:34,604 value of drugs. 625 00:23:35,643 --> 00:23:38,290 And for that offense, this state 626 00:23:39,004 --> 00:23:41,148 sees as 40000 dollar land rover, 627 00:23:42,021 --> 00:23:44,323 and took it permanently through Civil Forfeit. 628 00:23:46,169 --> 00:23:46,669 Ultimately, 629 00:23:47,288 --> 00:23:50,245 in the Indiana Supreme Court that was after 630 00:23:50,245 --> 00:23:51,683 the it came back down from the the 631 00:23:51,923 --> 00:23:53,681 Us Supreme court saying, yes, of course, the 632 00:23:53,681 --> 00:23:56,169 excessive of fines clause supplies. The Indiana Supreme 633 00:23:56,328 --> 00:23:58,873 Court said that that is excessive. That is 634 00:23:59,351 --> 00:24:02,190 40000 dollars for a very, very small 635 00:24:03,184 --> 00:24:05,411 small value drug deal is too much. 636 00:24:06,684 --> 00:24:08,116 And, you know, Tyson and Tim's won the 637 00:24:08,116 --> 00:24:10,041 day. And I think that This is a 638 00:24:10,041 --> 00:24:11,795 a great case to bring up here because 639 00:24:11,795 --> 00:24:14,425 it's talking about 1 of, I think the 640 00:24:14,425 --> 00:24:16,976 constitutional deficiencies with modern forfeit. 641 00:24:17,548 --> 00:24:19,931 That the court will be interested in hearing, 642 00:24:20,089 --> 00:24:22,416 and that's just what what 643 00:24:23,188 --> 00:24:25,412 impact does the excessive fines clause have on 644 00:24:25,412 --> 00:24:28,134 forfeit and how should it strain governments when 645 00:24:28,134 --> 00:24:29,255 they're pursuing forfeit. 646 00:24:30,695 --> 00:24:33,494 So, obviously, in in Tyson case that came 647 00:24:33,494 --> 00:24:35,184 down in his favor, but I think a 648 00:24:35,184 --> 00:24:38,044 very interesting question is what happens when you 649 00:24:38,044 --> 00:24:41,380 have people who actually didn't do anything at 650 00:24:41,380 --> 00:24:43,286 all. And in fact, are not even alleged 651 00:24:43,286 --> 00:24:45,525 to have done anything. Wrong. So people like 652 00:24:45,684 --> 00:24:47,671 Miss Cole in miss Sutton, and people like 653 00:24:47,671 --> 00:24:50,293 our clients in Detroit, who somebody else did 654 00:24:50,293 --> 00:24:52,121 something wrong either with their car or in 655 00:24:52,121 --> 00:24:54,206 their car or alleged to have done something 656 00:24:54,206 --> 00:24:54,924 wrong in their car, 657 00:24:55,641 --> 00:24:57,874 and they permanently lose their property then because 658 00:24:57,874 --> 00:25:00,187 of the actions of someone else, and it's 659 00:25:00,187 --> 00:25:02,835 hard to see how any punishment was for 660 00:25:02,835 --> 00:25:04,535 someone who did nothing wrong 661 00:25:04,914 --> 00:25:06,835 could not be found to be excessive. And 662 00:25:06,914 --> 00:25:08,434 I think that that's a really important question 663 00:25:08,434 --> 00:25:09,795 that the court's gonna have to grapple with 664 00:25:09,795 --> 00:25:12,527 going forward. And I I take the colleague 665 00:25:12,527 --> 00:25:15,239 concur and descent as an invitation to bring 666 00:25:15,239 --> 00:25:16,116 cases like that. 667 00:25:16,914 --> 00:25:18,510 Well, speaking of the descent. 668 00:25:19,323 --> 00:25:21,077 When you compare it to the the majority 669 00:25:21,077 --> 00:25:23,071 opinion in the case, the majority opinion focuses 670 00:25:23,071 --> 00:25:23,949 a lot on history. 671 00:25:24,427 --> 00:25:27,139 The descent focuses a lot on the effects 672 00:25:27,139 --> 00:25:28,335 of forfeit today, 673 00:25:29,149 --> 00:25:31,626 of course, both, at least the concur and 674 00:25:31,626 --> 00:25:33,624 the the descent site I aye research. 675 00:25:34,263 --> 00:25:35,541 And and I wonder if this might be 676 00:25:35,541 --> 00:25:37,632 a a good juncture to talk about. How 677 00:25:37,632 --> 00:25:39,385 the strategic research that I j has done 678 00:25:39,385 --> 00:25:42,173 in the forfeit space combines with our mastery 679 00:25:42,173 --> 00:25:43,528 of the law and history. 680 00:25:43,926 --> 00:25:45,520 And if there's anything that that you guys 681 00:25:45,520 --> 00:25:48,005 have picked up about that, interesting pattern that 682 00:25:48,005 --> 00:25:50,555 some justices seem to like history, some justices 683 00:25:50,555 --> 00:25:52,706 seem to be motivated more by the data 684 00:25:52,706 --> 00:25:53,742 and what's happening today. 685 00:25:54,474 --> 00:25:56,315 Yeah. So I I think an interesting thing 686 00:25:56,315 --> 00:25:57,994 about the concur is it kind of merges 687 00:25:57,994 --> 00:25:59,454 the 2. It talks about 688 00:26:00,234 --> 00:26:02,154 the the history of forfeit and, 689 00:26:02,729 --> 00:26:04,806 you know, that's something that we emphasized in 690 00:26:04,806 --> 00:26:06,403 our Ami brief. But then, 691 00:26:07,122 --> 00:26:10,011 Justice Gorsuch turns to talking about, the actual 692 00:26:10,011 --> 00:26:13,038 facts on the ground as forfeit is conducted 693 00:26:13,038 --> 00:26:15,189 today, kind of comparing and contrasting, 694 00:26:15,587 --> 00:26:17,420 how forfeit was done at the, you know, 695 00:26:17,499 --> 00:26:18,376 the time of the founding, 696 00:26:19,190 --> 00:26:21,369 versus how it's done today. And 697 00:26:21,750 --> 00:26:24,950 in in that section, and both Justice Sc 698 00:26:24,950 --> 00:26:26,285 and the dissent opinion 699 00:26:27,358 --> 00:26:30,617 site I j research, quite extensively, especially the 700 00:26:30,617 --> 00:26:32,548 research on how 701 00:26:33,479 --> 00:26:36,674 the incentives created by these forfeit funds, 702 00:26:37,310 --> 00:26:40,253 drive law enforcement behavior and create the potential 703 00:26:40,253 --> 00:26:43,276 for abuse. Obviously, we've done the the policing 704 00:26:43,276 --> 00:26:46,233 for profit report, We've done 3 additions of 705 00:26:46,233 --> 00:26:48,380 that report, and I believe we have a 706 00:26:48,380 --> 00:26:50,209 a future edition coming out. 707 00:26:50,924 --> 00:26:52,037 I think it's next year. 708 00:26:53,085 --> 00:26:55,545 So that is a report that, you know, 709 00:26:55,704 --> 00:26:57,371 gives a grade to every state as well 710 00:26:57,371 --> 00:26:59,990 as the federal government on, their forfeit future 711 00:26:59,990 --> 00:27:01,284 laws, but also documents 712 00:27:01,594 --> 00:27:03,991 the amount of forfeit that's going on. That's 713 00:27:03,991 --> 00:27:04,491 where 714 00:27:05,110 --> 00:27:07,267 you'll find the figures about, you know, how 715 00:27:07,267 --> 00:27:09,918 much is brought in in each year, and 716 00:27:09,918 --> 00:27:12,221 the the 70000000000 dollar figure that I cited 717 00:27:12,221 --> 00:27:14,048 earlier comes from that report. 718 00:27:15,002 --> 00:27:16,988 But it also cites some of the the 719 00:27:16,988 --> 00:27:19,940 research that we've done, on whether forfeit is 720 00:27:19,940 --> 00:27:21,130 effective at 721 00:27:21,527 --> 00:27:23,614 fighting crime or whether it's simply 722 00:27:24,145 --> 00:27:25,177 used to raise revenue. 723 00:27:25,668 --> 00:27:26,066 And 724 00:27:26,782 --> 00:27:29,088 justice score gorsuch cites that favorably and says 725 00:27:29,088 --> 00:27:29,804 it looks like. 726 00:27:30,520 --> 00:27:32,668 It doesn't actually have much effect, but it 727 00:27:32,668 --> 00:27:33,963 it is used by 728 00:27:34,514 --> 00:27:36,914 local locality to make up for budget shortfall 729 00:27:36,914 --> 00:27:39,634 falls. And that's something that came straight out 730 00:27:39,634 --> 00:27:42,048 of of I j research. And 731 00:27:42,607 --> 00:27:44,921 you know, it's it's affecting at least the 732 00:27:44,921 --> 00:27:47,795 opinions of justice Gorsuch and Justice Thomas, who 733 00:27:47,795 --> 00:27:49,391 signed on to the opinion, and I think 734 00:27:49,391 --> 00:27:49,891 probably 735 00:27:50,524 --> 00:27:52,442 the 3 justices who signed the dissent as 736 00:27:52,442 --> 00:27:52,602 well. 737 00:27:53,561 --> 00:27:55,020 Tim's wasn't the first 738 00:27:55,399 --> 00:27:57,796 fourth showcase case that we asked the court 739 00:27:57,796 --> 00:28:00,044 to review and we've asked the court to 740 00:28:00,044 --> 00:28:02,269 review some forfeit cases since then, and, obviously, 741 00:28:02,348 --> 00:28:04,891 it didn't take those up. So does C 742 00:28:04,891 --> 00:28:07,195 kind of signal that maybe the court would 743 00:28:07,195 --> 00:28:07,695 handle 744 00:28:08,164 --> 00:28:09,460 those cases differently 745 00:28:09,994 --> 00:28:12,540 now, and do we have anything kind of 746 00:28:12,540 --> 00:28:14,530 in the pipeline to sort of seize that 747 00:28:14,530 --> 00:28:14,928 opportunity? 748 00:28:15,659 --> 00:28:17,575 Yeah. So I I think I think so. 749 00:28:17,814 --> 00:28:19,490 I don't I don't know that the court 750 00:28:19,490 --> 00:28:22,603 is saying it would have taken past cases 751 00:28:22,603 --> 00:28:24,373 that it took a pass on. For instance, 752 00:28:24,612 --> 00:28:26,048 I mean, we had a a case with 753 00:28:26,048 --> 00:28:28,520 it a very similar issue in our Eagle 754 00:28:28,520 --> 00:28:29,477 pass forfeit case, 755 00:28:30,195 --> 00:28:32,109 that we lost in the fifth circuit. We 756 00:28:32,109 --> 00:28:34,117 submitted a certain petition to, the, court, it 757 00:28:34,117 --> 00:28:36,829 didn't grant it. That was about, the right 758 00:28:36,829 --> 00:28:38,345 to have a prompt post seizure hearing, in 759 00:28:38,345 --> 00:28:39,621 a federal forfeit case. 760 00:28:40,339 --> 00:28:42,811 And in that case, frankly, the facts were 761 00:28:42,811 --> 00:28:43,424 were much 762 00:28:44,576 --> 00:28:46,958 better in terms of emphasizing the problems of 763 00:28:46,958 --> 00:28:49,261 of not having that hearing. Our client Gerard, 764 00:28:49,578 --> 00:28:51,349 Toronto had to wait 2 years 765 00:28:51,817 --> 00:28:54,538 before he ever even received a a forfeit 766 00:28:54,594 --> 00:28:55,863 notice. So 767 00:28:56,815 --> 00:28:57,371 that case, 768 00:28:58,085 --> 00:28:58,323 you know, 769 00:28:59,132 --> 00:29:00,481 would have been a good vehicle for the 770 00:29:00,481 --> 00:29:02,465 court to take up if it wanted to 771 00:29:02,465 --> 00:29:02,862 address 772 00:29:03,418 --> 00:29:04,925 the issue of of a prop posts procedure 773 00:29:04,925 --> 00:29:06,219 you're hearing in a more 774 00:29:07,169 --> 00:29:09,009 in a more common set of facts. But 775 00:29:09,169 --> 00:29:11,250 I think the court invited, 776 00:29:12,049 --> 00:29:14,390 at least the the concur was inviting 777 00:29:15,022 --> 00:29:17,245 cases to go up, raising issues related to 778 00:29:17,245 --> 00:29:20,659 the profit incentive, raising issues related to general 779 00:29:20,659 --> 00:29:23,517 due process concerns, fourth amendment concerns, 780 00:29:24,567 --> 00:29:27,356 problems related to excessive fines, like Kirby was 781 00:29:27,356 --> 00:29:29,290 mentioning, and we have a number of cases 782 00:29:29,747 --> 00:29:31,420 that are winding their way through the courts. 783 00:29:31,914 --> 00:29:34,315 That we hope to get up to, the 784 00:29:34,474 --> 00:29:36,875 Supreme Court. So it can address these issues 785 00:29:36,875 --> 00:29:37,835 and and hopefully, 786 00:29:38,875 --> 00:29:40,255 you know, follow the 787 00:29:40,569 --> 00:29:43,690 follow the spirit of justice gorsuch concur, which 788 00:29:43,690 --> 00:29:47,210 expresses grave concerns about, the constitutional of of 789 00:29:47,210 --> 00:29:48,349 modern forfeit practices 790 00:29:48,901 --> 00:29:51,675 given the variety of constitutional protections, it seems 791 00:29:51,675 --> 00:29:54,607 to infringe upon. I think it's worth hearing 792 00:29:54,607 --> 00:29:57,009 directly from justice gorsuch to what Dan is 793 00:29:57,009 --> 00:29:58,849 talking about of this encouragement to bring these 794 00:29:58,849 --> 00:30:00,529 cases. He says in his concur. 795 00:30:01,170 --> 00:30:03,250 In future cases, with the benefit of full 796 00:30:03,250 --> 00:30:03,650 briefing, 797 00:30:04,143 --> 00:30:05,896 I hope we might begin the task of 798 00:30:05,896 --> 00:30:08,286 assessing how well the profound changes in civil 799 00:30:08,286 --> 00:30:10,970 forfeit practice. We have witnessed in recent decades 800 00:30:11,487 --> 00:30:14,353 comp with the constitution and enduring guarantee that 801 00:30:14,353 --> 00:30:16,924 no person shall be deprived of life, liberty 802 00:30:17,140 --> 00:30:19,703 or property without due process of law. So 803 00:30:19,703 --> 00:30:21,851 he's expressly saying I hope the court will 804 00:30:21,851 --> 00:30:23,999 take these cases so that we can address 805 00:30:23,999 --> 00:30:25,750 some of these issues that Dan's described. 806 00:30:26,386 --> 00:30:27,898 And it's not gonna happen all at once. 807 00:30:28,136 --> 00:30:29,901 Right? We're talking about a a whole bunch 808 00:30:29,901 --> 00:30:32,128 of different problems here. There's due process. There's 809 00:30:32,128 --> 00:30:34,435 this excessive problem. There's this... And it's an 810 00:30:34,435 --> 00:30:36,503 owner problem. There's all of these kind of 811 00:30:36,503 --> 00:30:37,003 other 812 00:30:37,392 --> 00:30:39,456 pieces that work together, and it it sounds 813 00:30:39,456 --> 00:30:41,623 like, you know, there's not gonna be some 814 00:30:41,679 --> 00:30:43,584 silver bullet case that's the 1 that gets 815 00:30:43,584 --> 00:30:44,322 rid of forfeit 816 00:30:44,854 --> 00:30:48,359 altogether. So it's you know, incremental steps to 817 00:30:48,359 --> 00:30:50,208 to get there. But what is our 818 00:30:50,580 --> 00:30:53,198 end goal here in the in the long 819 00:30:53,198 --> 00:30:53,436 term? 820 00:30:54,641 --> 00:30:57,127 I think our our end goal is to 821 00:30:57,342 --> 00:31:00,225 continue what we've been doing, which is identifying 822 00:31:00,361 --> 00:31:00,861 specific 823 00:31:01,393 --> 00:31:03,879 constitutional problems with forfeit and various 824 00:31:04,669 --> 00:31:05,169 jurisdictions 825 00:31:05,549 --> 00:31:07,630 and bringing legal challenges to those. But I 826 00:31:07,630 --> 00:31:08,690 do think that this 827 00:31:08,990 --> 00:31:12,190 will encourage us to bring more challenges. Right? 828 00:31:12,349 --> 00:31:13,809 And and be creative about 829 00:31:15,156 --> 00:31:17,939 making sure we're identifying all of the individual 830 00:31:17,939 --> 00:31:20,585 ways in which a forfeit scheme is violating 831 00:31:20,641 --> 00:31:21,277 people's individual... 832 00:31:22,311 --> 00:31:22,788 Constitutional rights. 833 00:31:24,073 --> 00:31:25,024 And, you know, 834 00:31:25,817 --> 00:31:27,403 I I agree. I think this will be 835 00:31:27,403 --> 00:31:30,020 a a process over time over many cases 836 00:31:30,020 --> 00:31:32,576 and curtail the government forfeit future practices and 837 00:31:32,576 --> 00:31:35,040 then saying, you know, actually, there are these 838 00:31:35,040 --> 00:31:37,187 protections for innocent owners are actually a profit 839 00:31:37,187 --> 00:31:40,128 motive is really constitutional problematic, and you can't 840 00:31:40,128 --> 00:31:40,740 have that 841 00:31:41,338 --> 00:31:42,615 and it will be a kind of step 842 00:31:42,615 --> 00:31:44,769 by step process. Although, you know, never say 843 00:31:44,769 --> 00:31:46,445 never. Who knows what the future has in 844 00:31:46,445 --> 00:31:49,811 store? Yeah. I mean, our end goal. Our 845 00:31:49,811 --> 00:31:51,885 big picture is we still want to end 846 00:31:51,885 --> 00:31:53,959 civil forfeit. And we don't think the the 847 00:31:53,959 --> 00:31:55,176 majority opinion really 848 00:31:55,793 --> 00:31:57,149 has much of an effect on that 1 849 00:31:57,149 --> 00:31:58,345 way or the other It's about a pretty 850 00:31:58,345 --> 00:32:01,471 narrow issue whether this separate preliminary hearing is 851 00:32:01,471 --> 00:32:01,710 required. 852 00:32:02,747 --> 00:32:05,161 And the concur highlights all sorts of problems 853 00:32:05,299 --> 00:32:08,091 with civil forfeit. Now, independently, each 1 of 854 00:32:08,091 --> 00:32:08,591 those 855 00:32:09,299 --> 00:32:11,678 types of claims might not end civil forfeit 856 00:32:11,678 --> 00:32:13,977 by itself. But you bring several of those 857 00:32:13,977 --> 00:32:15,801 cases, you get the court to hear them 858 00:32:15,801 --> 00:32:16,301 over 859 00:32:16,849 --> 00:32:18,230 several terms. And 860 00:32:18,609 --> 00:32:21,429 pretty quickly, you could cabin civil forfeit 861 00:32:21,809 --> 00:32:22,630 back to 862 00:32:23,009 --> 00:32:25,421 perhaps its historical routes. And I think if 863 00:32:25,421 --> 00:32:27,484 we were able to achieve that, 864 00:32:28,437 --> 00:32:30,739 we'd probably get about as as far as 865 00:32:30,739 --> 00:32:32,564 anyone could get in terms of of reigning 866 00:32:32,564 --> 00:32:33,517 in civil forfeit. 867 00:32:34,008 --> 00:32:37,270 If all that the the courts were allowing 868 00:32:37,270 --> 00:32:40,792 was the historical use of civil forfeit and 869 00:32:41,024 --> 00:32:42,163 admiral cases 870 00:32:42,542 --> 00:32:45,498 where the United States did not have jurisdiction 871 00:32:45,498 --> 00:32:46,777 over the owner of the ship, 872 00:32:47,576 --> 00:32:50,697 then that would eliminate 99.99 873 00:32:50,697 --> 00:32:52,470 percent of all forfeit, and 874 00:32:53,163 --> 00:32:55,605 we'd consider that a tremendous victory. So 875 00:32:55,962 --> 00:32:58,190 we've got to get these cases in front 876 00:32:58,190 --> 00:32:59,861 of the court. We've gotta find some new 877 00:32:59,861 --> 00:33:02,009 cases to, put back 878 00:33:02,884 --> 00:33:04,078 you know, up in front of the court 879 00:33:04,078 --> 00:33:06,953 as well. And get these cases through the 880 00:33:06,953 --> 00:33:10,153 courts really as as quickly as possible because 881 00:33:10,368 --> 00:33:12,512 I think we have an open invitation from, 882 00:33:12,671 --> 00:33:13,966 at least 5 justices 883 00:33:14,831 --> 00:33:17,294 that they wanna hear, cases challenging in a 884 00:33:17,294 --> 00:33:20,074 lot of these different problematic aspects of civil 885 00:33:20,074 --> 00:33:20,471 forfeit. 886 00:33:21,757 --> 00:33:24,061 Awesome. Well, thank you so much, guys for 887 00:33:24,061 --> 00:33:25,729 coming and talk with us about this today 888 00:33:25,729 --> 00:33:28,588 and looking forward to ending civil forfeit. 889 00:33:30,097 --> 00:33:30,494 Here here. 890 00:33:31,620 --> 00:33:34,001 That's it for today. Thanks again for watching, 891 00:33:34,318 --> 00:33:35,747 and don't forget to subscribe.