2nd Circuit rules New York City forfeiture statute violates Due Process by failing to provide prompt post-seizure hearing
by Brenda Grantland
FEAR Foundation Journal, Vol. 1 No. 1
posted on FEAR website 4/10/2004
(c) 2003 FEAR Foundation. Reprinting for distribution without charge, and republication permitted if article is printed in its entirety without editing, and attribution is given to FEAR Foundation Journal, Forfeiture Endangers American Rights Foundation, 20 Sunnyside Suite A-419, Mill Valley, CA 94941.
On September 18, 2002, the Second Circuit1 handed down a landmark victory for civil libertarians and forfeiture victims in Krimstock v. Kelly2, which held that New York City’s motor vehicle forfeiture statute3 violates due process by failing to provide a prompt post-seizure hearings for owners whose cars are detained under the law. The court held that owners have a right to a remedy that will allow them to challenge "the legitimacy of and justification for the City’s retention of the vehicles prior to judgment."4 The court explained:
A car or truck is often central to a person’s livelihood or daily activities. An individual must be permitted to challenge the City’s continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation…are available and appropriate.5
The court ordered that all "claimants be given a prompt post-seizure retention hearing, with adequate notice, for motor vehicles seized as instrumentalities of crime pursuant to N.Y.C. Code § 14-140(b)," but, noting that "[t]here is no universal approach to satisfying the requirements of meaningful notice and opportunity to be heard in a situation such as this" the Second Circuit remanded the case to the district court, stating: "we leave it to the district court, in consultation with the parties, to fashion appropriate procedural relief."6
Krimstock is an astounding ruling for several reasons.
Anyone needing to research the right to a prompt post-seizure hearing when property is detained pending trial would do well to start with this decision.
First, the sheer amount of work the Second Circuit panel put into the opinion was impressive. This hefty opinion surveys the various post-seizure hearing and detention procedures,7 and innocent owner defenses8 found in various state and local forfeiture statutes. It analyzes and applies the due process principles set out in numerous Supreme Court decisions in painstaking detail.
Krimstock is blueprint for release of property pending trial.
Second, this was a major victory on a very serious problem common under most forfeiture schemes. Forfeiture statutes typically allow the police to seize private property such as cars (often without a warrant) and detain it pending the forfeiture trial, which may be years later. When the property seized is an automobile, the problem of pretrial detention is particularly acute. Loss of use of a vehicle may lead to dire consequences for the car owner – loss of employment is common, and often it spirals into insolvency or even homelessness. Even when a forfeiture victim can afford to replace the seized vehicle during the period of detention, the economic consequences from renting or purchasing a replacement vehicle quickly add up to and exceed the value of the seized car.
Cars depreciate rapidly, especially when not being used and serviced regularly. In my litigation against the District of Columbia in Patterson v. D.C. several of the plaintiffs got their cars back after winning the forfeiture case only to find that they were damaged beyond repair, never to run again.9
CAFRA dealt with that problem federally by allowing the court to return automobiles and certain other types of property to the owner pending trial on a showing of substantial hardship.10 Eventually release of cars pending trial should become the norm because of the financial factors discussed above.
In state and federal forfeiture schemes that do not allow release of the property pending trial, Krimstock is an excellent blue-print for a constitutional challenge – and we hope all of the public interest lawyers stop and stew on this one. All of the research is already done for you in this opinion. The Second Circuit is very persuasive authority, usually with a conservative pro-government slant. If you succeed – especially on a constitutional ground, you may be entitled to reimbursement of your attorney’s fees under EAJA, the Civil Rights Act, or CAFRA. Windfall attorney’s fee awards have a deterrent effect on the government, at the same time it has an encouraging effect on defense counsel.
Krimstock v. Kelly is the first federal appellate decision requiring a post-seizure probable cause hearing in civil forfeiture cases.
Third, the legal arguments used here have been tried before, with mixed success. Clearly, the time for this argument has finally come. The argument raised in this case was not a new one. The question of whether due process requires a prompt post-seizure hearing – prior to the trial itself – has been addressed numerous times, with mixed success.
Several circuits have held that a pretrial, post-seizure hearing must be held when assets are restrained in a criminal forfeiture case if the defendant shows the seized assets are needed to retain counsel.11 The Ninth Circuit held that a post-restraint hearing was required in criminal forfeiture cases even if the defendant didn’t allege he needed release of assets to retain counsel.12 The Eleventh Circuit held that, although pretrial restraint of assets triggers Due Process requirements, the trial itself fulfilled those requirements.13
This issue has not enjoyed as much success in the civil forfeiture context. Several circuits have held that due process in civil forfeiture cases requires only that forfeiture proceedings be commenced without unreasonable delay, and that the forfeiture trial itself (or summary judgment proceedings) provided the only post-seizure hearing that was constitutionally required.14 Now we have federal appellate precedent requiring a prompt post-seizure probable cause hearing in civil forfeiture cases.
Last but not least, this case shows that a powerful new force has joined our battle for forfeiture reform!
This case was brought by the Legal Aid Society of New York City – a non-profit organization funded by the Legal Services Corporation, which provides counsel for indigents in civil litigation. LSC is the government agency which CAFRA saddled with the responsibility of implementing CAFRA’s right-to-counsel provisions for forfeiture victims not charged with any crime. (When FEAR’s Asset Forfeiture Defense Manual went to press in December 2001, the LSC still had not even formulated their policy on how they would comply with that mandate.)
We have been trying for years to encourage public defenders and civil poverty law organizations in this country to help defend indigent forfeiture victims. CAFRA nudged LSC and public defender organizations to help provide legal services for forfeiture victims – by allowing them to get their attorney’s fees reimbursed – and this case shows it worked! Hopefully the Krimstock victory will inspire other legal defense organizations to get involved with forfeiture reform by taking on class action suits raising constitutional issues.
1. The Second Circuit hears appeals of the U.S. District Courts located in Connecticut, New York and Vermont. This ruling is binding precedent in those courts.
2. 2002 U.S. App. Lexis 19182 (September 18, 2002).
3. Id at * 3. 4. Id at * 3.
5. Id at *15. 6. Id at 76 - 77
7. Id at *33 - 38. 8. Id at * 38 - 45.
9. We sued for, and recovered, damages for loss of use and depreciation.
10. 18 U.S.C. § 983(f).
11. See United States v. Jones, 160 F.3d 641, 647 (10th Cir.1998); United States v. Michelle's Lounge, 39 F.3d 684, 700-01 (7th Cir. 1994); United States v. Monsanto, 924 F.2d 1186, 1203 (2nd Cir. 1991); United States v. Lewis, 759 F.2d 1316, 1324-25 (8th Cir. 1985); United States v. Long, 654 F.2d 911, 915-16 (3rd Cir.1981).
12. United States v. Crozier, 777 F.2d 1376, 1384 (9th Cir. 1985).
13. United States v. Bissell, 866 F.2d 1343, 1352-55 (11th Cir.1989).
14. United States v. One 1985 Mercedes, 917 F.2d 415, 420 (9th Cir. 1990); Gonzalez v. Rivkind, 858 F.2d 657, 660-62 (11th Cir. 1988); United States v. Banco Cafetero Panama, 797 F.2d 1154 (2nd Cir. 1986); United States v. $160,916.25, 750 F.2d 900 (11th Cir. 1985).