The Supreme Court Rules That Cops Can Steal Your Stuff—as They Always Have

Society / The Supreme Court Rules That Cops Can Steal Your Stuff—as They Always Have By a 6-3 vote, the conservative justices decided that there is no need for the state to provide a preliminary hearing in civil forfeiture cases.

A woman sits in her car, which police had seized for a crime she did not commit. (Nam Y. Huh / AP Photo)

“Civil asset forfeiture” is the legal euphemism for when the cops steal your stuff. In this country, if you are stopped or arrested, the police can take all the personal property you have on you and call it “incident to the arrest.” That property can include your phone or your legally purchased guns, and it almost always includes your car.

When cops decide to help themselves to your property, they can do it without a warrant, without securing a conviction, without even charging you with a crime. Once they’ve taken it, the cops then force people to engage in a long legal fight to get their stuff back. Often, the value of the property stolen by the government is less than the cost of lawyers needed to fight the government. There’s no right to public counsel when the cops steal from you, so most people can’t afford to fight them, never get their stuff back, and the cops end up selling it for profit.

Civil forfeiture is a booming business and has become a key source of income for some cities and entire states. According to “Policing for Profit,” a report from the Institute for Justice, federal, state, and local governments made $68.8 billion from civil forfeiture between 2000 and 2019.

Most people I know think that civil forfeiture should be unconstitutional as a point-and-click violation of the Due Process clause. The Fifth and Fourteenth Amendments both say that we should not be “deprived of life, liberty or property without due process of law.” Civil forfeiture is literally depriving people of their property with no process at all.

Unfortunately, most people I know are not on the Supreme Court. On Thursday, the six unelected Republicans who rule this country said that civil forfeiture can continue to happen so long as the government eventually provides a hearing, even if the hearing takes place long after the theft and most people can’t afford to appeal.

The case is called Culley v. Marshall and deals with two straightforward civil forfeiture examples from Alabama. Halima Culley loaned her car to her son, who was stopped and arrested while driving with marijuana. Lena Sutton loaned her car to a friend who was subsequently busted while driving with methamphetamines. Alabama cops seized both vehicles, even though they didn’t belong to the person driving them, and didn’t return them to their real owners even after they learned of their mistake. Instead, the cops made a civil forfeiture claim and attempted to keep Culley’s and Sutton’s cars.

A report from the Southern Poverty Law Center found that Alabama made $2.2 million in 2015 from stealing property through civil forfeiture, so the cops are fairly heavily incentivized to take property even when the owners are not guilty of anything. But according to alleged attempted rapist Brett Kavanaugh, Alabama’s grand theft auto operation is just fine.

Writing for a 6-3 majority (it was the usual split: all Republican justices in the majority, all Democratic justices in dissent), Kavanaugh reduced the issue to one of timing. The plaintiffs Culley and Sutton wanted the state to provide a “preliminary” hearing and force the police to justify stealing their cars. Kavanaugh said that the state already provides a “timely” hearing and said that all the plaintiffs wanted was to get their stuff back more quickly. He argued that the plaintiffs’ arguments were just “a backdoor argument for a more timely forfeiture hearing to allow a property owner with a good defense to recover her property quickly.”

As he does so often, Kavanaugh willfully missed the point. The plaintiffs want to stop the government from taking their property, not argue after the fact that the government should give it back. Remember, we’re talking about cars here. If the cops arrest somebody and take their car, then find out later that the car does not belong to the person they arrested, the normal (and constitutional, and basically decent) thing to do is return the car to its rightful owner. But instead of returning the cars to the people who own them, the police in these cases wanted to not only keep the cars but then force the owners to enter into litigation against the police to get the cars back. That’s not a timing issue: That’s a mugging issue.