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The Supreme Court Can Protect Americans from Government Theft

November 8, 2023

“We know there are abuses of the forfeiture system. We know it because it’s been documented throughout the country repeatedly.” These words, spoken last week by U.S. Supreme Court Justice Sonia Sotomayor during a hearing in an important case involving government theft and due process rights, highlight an outrageous injustice. Government at all levels frequently abuses civil asset forfeiture laws—which allow officials to confiscate people’s property without charging them with a crime, let alone convicting them of one—thereby posing a grave threat to the property rights of all Americans. In fact, local, state, and federal officials use these laws to steal more than $3 billion each year, to the tune of more than $68 billion forfeited since 2000.

But the Goldwater Institute is leading the nationwide charge to rein in the injustice of civil asset forfeiture through litigation, public pressure campaigns, and landmark policy reforms. In the case heard by the Supreme Court last week, Culley v. Marshall, Goldwater filed a brief urging the justices to give basic due process protections to innocent Americans whose property is taken by the government.

The Culley case involves two innocent property owners whose vehicles were confiscated by Alabama law enforcement. Neither individual was ever charged with a crime, yet it took more than a year for each to get their property back. That’s because the government wouldn’t give either property owner a prompt hearing between the time of their property being confiscated and the time of their trial, in violation of their Fifth Amendment due process rights. Now, the Supreme Court must decide whether the government can keep property in its possession during the time it takes for a judge to decide whether the confiscation is legal in the first place.

Government confiscations of innocent Americans’ assets run contrary to the spirit of due process and property rights that are fundamental to America’s founding principles—particularly when the government doesn’t give its victims a prompt hearing where they can make the case for getting their own property back. The Constitution’s framers considered asset forfeiture wholly unacceptable and explicitly included due process protections in the Bill of Rights to protect Americans against abusive government forfeitures. In the words of one state court, forfeiture is “utterly inconsistent with the principles of public justice, and the rights of innocent unoffending individuals.” In fact, the government’s ability to arbitrarily confiscate anyone’s property and keep it for the months—possibly even years—that it takes a court to rule on the legality of a forfeiture threatens the freedom of every American.

That’s why Goldwater’s friend-of-the-court brief, joined by Pacific Legal Foundation, urges the Supreme Court to affirm the plaintiffs’ due process rights and reconsider the entire theory of asset forfeiture. The Institute’s brief argues that allowing the government to take and hold onto property with minimal accountability undermines public trust in law enforcement and the criminal justice system.

Goldwater is also working throughout the country to end government theft.

In Massachusetts, Goldwater’s American Freedom Network of pro bono attorneys helped innocent grandmother Malinda Harris get her car back after the government took the vehicle—without accusing her of any wrongdoing—and kept it for six long years. Malinda even went before Congress to share her story with lawmakers and call for reform.

Innocent entrepreneurs Vera and Apollonia Ward, meanwhile, didn’t know where to turn after California police confiscated $17,000 that they planned to use for their dog-breeding business and falsely accused the sisters of drug trafficking. Lawyers who could help weren’t returning their calls, until the Goldwater Institute stepped in and got the money back.

And in Arizona, Goldwater was part of a coalition that passed common-sense legislation that requires law enforcement to obtain a criminal conviction before forcing citizens to forfeit their property, among other reforms.

Now the U.S. Supreme Court has a chance to reaffirm basic due process rights and protect Americans from unconstitutional property forfeitures. The citizens of the land of the free deserve no less than a forceful ruling in favor of their fundamental rights.

Mark Habelt is a Ronald Reagan Fellow at the Goldwater Institute.



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