Supreme Court dismisses challenge to Illinois forfeiture law

The US Supreme Court on Tuesday handed a victory to the Cook County State's Attorney and the Chicago Police Department when the justices unanimously dismissed as moot a challenge to Illinois' controversial forfeiture law.

The high court, in an 8-to-1 ruling, also ordered a federal appeals court decision in the case vacated.

The action came nearly two months after the high court heard oral argument in Alvarez v. Smith, a case that pitted innocent property owners against Chicago police and prosecutors who claimed a statutory right to take their time before returning cars and cash seized in criminal investigations.

Lawyers for the property owners argued that their clients had a due process right not to have to wait months or years for the government to return their property.

A panel of the Seventh US Circuit Court of Appeals had agreed with the innocent property owners and ordered implementation of a faster review process. It was that May 2008 Seventh Circuit ruling that the high court vacated on Tuesday.

More challenges to come

Thomas Peters, the Chicago-based lawyer for the property owners, said he was disappointed by the Supreme Court dismissal, but that he would continue to litigate the issue with a new group of plaintiffs.

"We are not going to go away," he said. "The system is very unfair and needs to be changed."

When Chicago police seize a car or other property the seizure works as a de facto forfeiture, Mr. Peters says. "Most people just give up. They don't have their car and they can't make their car payments, so they just give up."

Alvarez v. Smith involved six individuals who filed lawsuits challenging Illinois' Drug Asset Forfeiture Procedures Act (DAFPA). Three claims sought return of seized cash, three others involved cars.

By the time the Supreme Court agreed to hear the case most of the cars and cash had already been returned or the cases were otherwise settled.

Chevy Impala held for three years

The last car was returned in July, three months before oral argument. It had been held in a police impoundment lot for three years. The Chevy Impala was only two years old when seized by police. It was five years old when returned to the owner.

Although the justices heard arguments on the merits of the case, they also asked the lawyers why the case shouldn't be dismissed as moot since all the property had been returned.

The justices voted unanimously to dismiss the case as moot. Justice John Paul Stevens issued a lone dissent to the additional decision to vacate the Seventh Circuit ruling.

"I would apply the general rule against vacating appellate judgments that have become moot because the parties settled," he wrote.

Peters said he would start the case over. He said he filed his first challenge to the Illinois forfeiture law 15 years ago and that another year wouldn't stop it. "Nothing has changed with regard to the merits, the due process issue," he said.

The lawyer said he anticipates losing at District Court level but winning again at the Seventh Circuit. Next it would be up to the State's Attorney whether to appeal, again, to the US Supreme Court.

Peters wasn't the only lawyer disappointed by the Supreme Court's action. Thomas O'Brien of the Legal Aid Society in New York City filed a friend of the court brief and was following the case closely.

Mr. O'Brien said he hopes Peters keeps fighting. "I think his chances are good," he said.

O'Brien said the issue isn't really whether people get their car back or not. "The case is about a prompt hearing," he said.

The Legal Aid lawyer brought a similar case in New York six years ago.

He argued that once police seized a car, the owner faced the daunting prospect of having to hire a lawyer, continue to make car payments for a car that was unavailable, find a way to get to work, and keep living a life while fighting the bureaucracy of forfeiture.

O'Brien won his case. The courts ordered a system that guarantees an expedited hearing before a judge within 10 business days. The judge examines police reports and charging documents and listens to the owner's side of the story before ruling.

Thousands of cars impounded

"When we started the hearing process in 2004 there were 6,000 cars in New York impoundment lots without any legal recourse to argue," he says. "That's what happens when you don't have a prompt hearing; the cars just sit there in government custody."

If there is no trial for a year or two, O'Brien says, most people stop making car payments and abandon the vehicle.

"Ironically, the state isn't really gaining value if something is rusting and depreciating away," he says.

O'Brien says the New York procedure provides a workable model for Chicago and other jurisdictions. The federal appeals court decision ordering the faster review process was written by a highly regarded judge who recently left New York City to accept a promotion.

That judge is Sonia Sotomayor. Ironically, she voted to vacate the Seventh Circuit ruling. She offered no explanation beyond the reasoning in Justice Stephen Breyer's majority decision.

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