Somin in FindLaw: An Important Decision on Property Rights

When the Supreme Court hears Alvarez v. Smith, it will have the opportunity to uphold a ruling by the federal Seventh Circuit Court of Appeals that it was unconstitutional for Chicago police to seize cars and other valuable property and hold them for an extended period without allowing owners to challenge the seizure. Writing in FindLaw, Professor Ilya Somin maintains that the case is an important one that has not attracted the attention it merits.

Somin believes it is a violation of the Due Process Clause of the Fourteenth Amendment to deprive an innocent citizen of valuable property without any judicial process whatsoever, as has been the case with the Illinois Drug Asset Forfeiture Procedure Act. The lower court's decision requires that property owners be given the opportunity to challenge the seizure of property in a brief informal hearing.

"If the Supreme Court denies property owners even this minimal protection, then there will be no meaningful constraint on the power of the government to seize the property of innocent people caught up in criminal investigations and hold it for many months at a time," says Somin.

Forfeiture Laws, the War of Drugs, and Alvarez v. Smith, FindLaw, October 14, 2009. By Ilya Somin.


"The Illinois Drug Asset Forfeiture Procedure Act (DAFPA) allows the police to seize property that may have been involved in a drug-related crime and hold onto it for up to 187 days without any kind of legal hearing. This rule applies even to property owned by completely innocent persons who simply had their possessions caught up in a drug investigation through no fault of their own – for example, if someone else used their car to transport illegal drugs without their knowledge. The three car owners involved in Alvarez were never even charged with a crime, much less convicted. Under DAFPA, the authorities also don't have to prove that keeping innocent owners' property is necessary in order to prevent the loss of valuable evidence.

"In other words, DAFPA authorizes the government to take away the valuable property of completely innocent people for over six months at a time, without giving the owner any opportunity to contest the seizure whatsoever. The 187 day time limit applies to any personal property worth less than $20,000, which includes most cars. And, even after an asset forfeiture action is filed, many more months might pass before any court actually hears the case. In this case, the three cars were held by the police for over a year.

"Laws like DAFPA pose a serious danger to the property rights of innocent people caught up in the War on Drugs. In many jurisdictions, police departments are allowed to auction off property seized in drug investigations and keep the profits, giving them a clear incentive to seize cars first and ask questions later. Moreover, many of the people whose cars are seized are poor or minorities. They often lack the political power necessary to persuade police to release their property without judicial intervention."

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