No. 08-351
`
`IN THE
`Supreme Court of the United States
`————
`ANITA ALVAREZ,
`STATE’S ATTORNEY OF COOK COUNTY, ILLINOIS,
`Petitioner,
`
`v.
`CHERMANE SMITH, ET AL.,
`Respondents.
`
`————
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Seventh Circuit
`————
`BRIEF OF THE NATIONAL ASSOCIATION OF
`COUNTIES, NATIONAL CONFERENCE OF
`STATE LEGISLATURES, NATIONAL
`LEAGUE OF CITIES, INTERNATIONAL
`CITY/COUNTY MANAGEMENT ASSOCIATION,
`U.S. CONFERENCE OF MAYORS, AND
`INTERNATIONAL MUNICIPAL LAWYERS
`ASSOCIATION AS AMICI CURIAE
`IN SUPPORT OF PETITIONER
`————
`
`
`
`
`
`RICHARD RUDA *
`Chief Counsel
`MICHAEL HUANG
`STATE AND LOCAL LEGAL
`CENTER
`444 North Capitol Street, N.W.
`Suite 309
`Washington, D.C. 20001
`(202) 434-4850
`* Counsel of Record for the
` Amici Curiae
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`

`
`

`
`i
`
`QUESTION PRESENTED
`
`
`Whether the court of appeals correctly ruled that
`DAFPA is facially invalid because it does not provide
`for a preliminary postseizure hearing.
`
`
`
`
`
`

`
`ii
`
`TABLE OF CONTENTS
`
`
`Page
`QUESTION PRESENTED .......................................... i
`TABLE OF AUTHORITIES ....................................... iv
`INTEREST OF THE AMICI CURIAE ....................... 1
`STATEMENT .............................................................. 1
`SUMMARY OF ARGUMENT ..................................... 5
`ARGUMENT ............................................................... 7
`DAFPA
`IS
`NOT
`FACIALLY
`UNCONSTITUTIONAL
`FOR
`NOT
`PROVIDING
`A
`PRELIMINARY
`POSTSEIZURE HEARING. .................................. 7
`A. State Legislatures, Not Courts, Should
`Set Time Limits for Civil Forfeiture
`Proceedings. ...................................................... 7
`B. The Proper Test for the Timeliness of
`Forfeiture Proceedings Is Contained in
`Barker v. Wingo, Which Requires Case-
`by-Case Adjudication. ..................................... 10
`C. The Court of Appeals Erroneously
`Applied Mathews v. Eldridge, Which
`Also
`Requires
`Case-by-Case
`Adjudication. ................................................... 12
`1. The private interest will differ in
`each case. ................................................... 15
`2. The State has strong interests in
`seizing
`forfeitable property and
`having sufficient time to assess
`whether it should be forfeited. .................. 16
`D. DAFPA Satisfies Due Process. ....................... 20
`CONCLUSION .......................................................... 23
`
`
`
`

`
`iii
`TABLE OF CONTENTS—continued
`
`
`APPENDIX ................................................................ 1a
`
`Page
`
`
`
`
`
`
`
`
`
`

`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`
`Cases Page
`Ayotte v. Planned Parenthood of Northern
` New England, 546 U.S. 320 (2006) ......................... 8
`Barker v. Wingo,
` 407 U.S. 514 (1972) ............................................ 7, 11
`Barry v. Barchi,
` 443 U.S. 55 (1979) ............................................ 13, 14
`Bellingham Bay & British Columbia R.R. Co.
` v. New Whatcom, 172 U.S. 314 (1899) .................... 8
`Bennis v. Michigan,
` 516 U.S. 442 (1996) ............................................ 9, 16
`Cafeteria & Restaurant Workers Union,
` Local 473 v. McElroy, 367 U.S. 886 (1961) ............. 8
`Calero-Toledo v. Pearson Yacht Leasing Co.,
` 416 U.S. 663 (1974) .................................................. 9
`Campbell v. City of Olney,
` 262 U.S. 352 (1923) .................................................. 8
`Caplin & Drysdale v. United States,
` 491 U.S. 617 (1989) .................................................. 3
`Cheney v. United States Dist. Court,
` 542 U.S. 367 (2004) ................................................ 19
`City of Los Angeles v. David,
` 538 U.S. 715 (2003) .................................... 12-13, 16
`Cleveland Bd. of Educ. v. Loudermill,
` 470 U.S. 532 (1985) .................................................. 7
`Connecticut v. Doehr,
` 501 U.S. 1 (1991) ...................................................... 7
`County of Riverside v. McLaughlin,
` 500 U.S. 44 (1991) ................................................ 8-9
`DeVito v. Chicago Park Dist.,
` 972 F.2d 851 (7th Cir. 1992) .................................. 14
`
`
`
`
`

`
`v
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`
`FDIC v. Mallen,
` 486 U.S. 230 (1988) ...................................... 8, 13, 19
`General Motors Acceptance Corp. v.
` United States, 286 U.S. 49 (1932) ......................... 17
`Gerstein v. Pugh,
` 420 U.S. 103 (1975) .............................................. 8, 9
`Goss v. Lopez,
` 419 U.S. 565 (1975) ................................................ 14
`Jones v. City of Gary,
` 57 F.3d 1435 (7th Cir. 1995) .................................. 14
`J.W. Goldsmith, Jr.-Grant Co. v. United States,
` 254 U.S. 505 (1921) .................................................. 9
`Krimstock v. Kelly,
` 306 F.3d 40 (2d Cir. 2002) ..................................... 15
`Lassiter v. Dep't of Soc. Servs.,
` 452 U.S. 18 (1981) .................................................. 13
`Massachusetts Bd. of Retirement v. Murgia,
` 427 U.S. 307 (1976) .............................................. 5, 8
`Mathews v. Eldridge,
` 424 U.S. 319 (1976) ............................................ 7, 16
`Morissey v. Brewer,
` 408 U.S. 471 (1972) .................................................. 8
`Opp Cotton Mills, Inc. v. Adm'r,
` 312 U.S. 126 (1941) .................................................. 8
`Parratt v. Taylor,
` 451 U.S. 527 (1981) ................................................ 20
`Phillips v. Comm'r,
` 283 U.S. 589 (1931) .................................................. 8
`State v. Gray,
` 21 S.W.3d 847 (Mo. App. 2000) ............................. 18
`
`
`
`
`
`
`

`
`vi
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`
`The Palmyra,
` 25 U.S. (Wheat.) 1 (1827) ........................................ 9
`United States v. $8,850,
` 461 U.S. 555 (1983) ............ 6, 7, 9, 10, 15, 20, 21, 22
`United States v. Dessesaure,
` 556 F.3d 83 (1st Cir. 2009) .................................... 12
`United States v. Doggett,
` 505 U.S. 647 (1992) .......................................... 11-12
`United States v. Knight,
` 2009 U.S. App. LEXIS 6594
`
`(11th Cir. Mar. 25, 2009) ....................................... 11
`United States v. O'Dell,
` 247 F.3d 655 (6th Cir. 2001) .................................. 12
`United States v. Salerno,
` 481 U.S. 739 (1987) .................................................. 7
`United States v. Turner,
` 933 F.2d 240 (4th Cir. 1991) .................................. 12
`United States v. Ursery,
` 518 U.S. 267 (1996) .................................................. 3
`United States v. Von Neumann,
` 474 U.S. 242 (1986) .................................... 10, 21, 22
`United States v. Williams,
` 557 F.3d 943 (8th Cir. 2009) .................................. 11
`Yakus v. United States,
` 321 U.S. 414 (1944) .................................................. 8
`Washington v. Glucksberg,
` 521 U.S. 702 (1997) .................................................. 7
`Wick v. Chelan Electric Co.,
` 280 U.S. 108 (1929) .................................................. 8
`
`
`
`
`
`
`
`

`
`vii
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`
`Statutes and Regulations
`18 U.S.C. § 981.. .......................................................... 4
`18 U.S.C. § 983(a)(1)(A)(i). .......................................... 4
`18 U.S.C. § 983(a)(1)(A)(iv). ........................................ 4
`18 U.S.C. § 983(a)(1)(A)(v). ................................... 4, 17
`18 U.S.C. § 983(B)-(D)(v). ............................................ 4
`18 U.S.C. § 983(a)(2)-(3). ............................................. 4
`18 U.S.C. § 983(a)(3)(A). ............................................. 4
`21 U.S.C. § 881(e)(1)(A). .............................................. 4
`21 U.S.C. § 881. ........................................................... 4
`28 C.F.R. § 8.6. .......................................................... 18
`725 Ill. Comp. Stat. 150/2. ................................ 1, 5, 17
`725 Ill. Comp. Stat. 150/5. .................................... 4, 17
`725 Ill. Comp. Stat. 150/6 ......................................... 19
`725 Ill. Comp. Stat. 150/8 ......................................... 18
`725 Ill. Comp. Stat. 150/9 ......................................... 19
`725 Ill. Comp. Stat. 5/114-12 .................................... 20
`La. Rev. Stat. § 40:2606 ............................................ 10
`Tenn. Code Ann. § 40-33-204 .................................... 10
`
`Other Authorities
`Charles A. Intriago & Robert A. Butterworth,
` Fund Government with Dirty Money, N.Y. Times,
`Apr. 27, 2009. ........................................................... 2
`Dee Edgeworth, Asset Forfeiture:
` Practice and Procedure in State and Federal
`Courts (2008). ..................................................... 5, 21
`
`
`
`
`
`
`
`

`
`viii
`
`TABLE OF AUTHORITIES—continued
`
`Page
`
`
`Frank R. Booth, Bureau of Justice Assistance,
` U.S. Dep't of Justice, Asset Forfeiture:
` Public Record and Other Information on
` Hidden Assets (1988). ............................................ 17
`G. Patrick Gallagher, Bureau of Justice
` Assistance, U.S. Dep't of Justice, Asset Forfeiture:
`The Management and Disposition of Seized Assets
`(1988). ............................................................... 15, 18
`Howard E. Williams, Asset Forfeiture: A Law En-
`forcement Perspective (2002). ..................... 3, 17, 18
`Mike Allen & Paul Blustein, Bush Moves to
` Cut Terrorists' Support, Wash. Post, Sept. 25,
`2001, at A1 ............................................................... 2
`Office of National Drug Control Policy, National
`Drug Control Strategy: 2009 Annual Report. ........ 2
`Office of National Drug Control Policy, The Economic
`Costs of Drug Abuse in the United States, 1992 -
`2002 (2004). .............................................................. 1
`Spencer S. Hsu, Obama Targets Mexican Cartels,
`Wash. Post, Apr. 16, 2009 ....................................... 2
`U.S. Dep't of Treasury, Guide to Equitable Sharing
`for Foreign Countries and Federal, State, and Lo-
`cal Law Enforcement (2004) ........................ 3, 18, 19
`
`
`
`
`
`
`
`

`
`
`
`INTEREST OF THE AMICI CURIAE
`Amici are organizations whose members include
`state, county, and municipal governments and offi-
`cials throughout the United States.1 The States have
`used forfeiture in aid of law enforcement for centu-
`ries. In recent years civil forfeiture laws such as
`DAFPA have become an important means of “deter-
`ring the rising incidence of the abuse and trafficking
`of [controlled] substances.” 725 Ill. Comp. Stat.
`150/2. Because of the importance to amici and their
`members of effectively combating drug crimes, amici
`submit this brief to assist the Court in its resolution
`of this case.
`
`STATEMENT
`1. The purpose of drug asset forfeiture. Illegal
`drugs inflict enormous costs on society. In 2002, the
`economic impact of drug-related crimes alone ap-
`proached $110 billion in expenses and lost productiv-
`ity. See Office of National Drug Control Policy, The
`Economic Costs of Drug Abuse in the United States,
`1992 - 2002 xii & fig. 6 (2004), available at
`http://www.ncjrs.gov/ondcppubs/publications/pdf/eco
`nomic_costs.pdf (total cost of drug abuse may exceed
`$180 billion).
`To combat drug trafficking and organized crime,
`all States and the Federal Government use forfeiture
`
`
`
`1 The parties have consented to the filing of this amicus brief
`and their consent letters have been filed with the Clerk. This
`brief was not authored in whole or in part by counsel for a par-
`ty, and no person or entity, other than amici and their mem-
`bers, has made a monetary contribution to the preparation or
`submission of this brief.
`
`
`
`

`
`2
`
`laws.2 By targeting the assets and proceeds of traf-
`ficking networks, such laws enable the government
`to disrupt and dismantle these organizations instead
`of targeting individual conspirators. The Office of
`the President, in its annual drug control policy re-
`port, stated that “[u]ndermining the financial infra-
`structure of trafficking organizations has proven to
`be one of the most effective means to disrupt the
`market for illegal drugs.” Office of National Drug
`Control Policy, National Drug Control Strategy:
`2009 Annual Report 28, available at http://
`www.whitehousedrugpolicy.gov/publications/policy/n
`dcs09/2009ndcs.pdf.
`This recognition of forfeiture’s efficacy is likewise
`shared by the States. Entrusted with protecting the
`health and welfare of their citizens, state and local
`governments are at the front lines in the fight
`against trafficking. But the breadth of the drug
`problem requires a high level of cooperation between
`all levels of government.3 In addition to coordinating
`
`
`
`2 Recently, in response to the growing crisis posed by drug
`and gun trafficking across the Mexican border, the White House
`moved to identify and freeze the assets of three Mexican cartels.
`See Spencer S. Hsu, Obama Targets Mexican Cartels, Wash.
`Post, Apr. 16, 2009. Forfeiture was also used after September
`11, 2001 to freeze the assets of suspected terrorists, see Mike
`Allen & Paul Blustein, Bush Moves to Cut Terrorists’ Support,
`Wash. Post, Sept. 25, 2001, at A1, and to freeze Bernie Madoff’s
`assets. See Charles A. Intriago & Robert A. Butterworth, Fund
`Government with Dirty Money, N.Y. Times, Apr. 27, 2009.
`
`3 The Domestic Highway Interdiction Program, for example,
`is coordinated by state and local authorities who patrol the
`highways of 48 States in partnership with federal and Cana-
`dian law enforcement agencies. See Office of National Drug
`Control Policy, 2009 Annual Report, supra, at 24. Through
`mid-2008, the program had seized $600 million dollars in nar-
`cotics and investigated over 160 trafficking organizations. Id.
`
`
`
`
`
`

`
`3
`
`investigations and seizures—and to maximize and
`enhance law enforcement resources—federal agen-
`cies may adopt state forfeiture actions and share
`equitably in the criminal proceeds. See 21 U.S.C. §
`881(e)(1)(A) (authorizing equitable sharing); U.S.
`Dep’t of Treasury, Guide to Equitable Sharing for
`Foreign Countries and Federal, State, and Local Law
`Enforcement (2004).
`2. Modern civil forfeiture law. While forfeiture
`has a lineage extending through English common
`law and beyond, modern forfeiture laws were enacted
`in the 1970s to address the growing threat posed by
`organized crime. See Howard E. Williams, Asset For-
`feiture: A Law Enforcement Perspective 11 (2002).
`In particular, the Racketeer Influenced and Corrupt
`Organization (RICO) and Continuing Criminal En-
`terprise (CCE) laws enabled the Federal Government
`to seize and institute forfeiture against property
`used in specified offenses, as well as the proceeds
`and property acquired through those offenses. See
`Caplin & Drysdale v. United States, 491 U.S. 617,
`630 (1989) (identifying the purpose of RICO to “les-
`sen the economic power of organized crime and drug
`enterprises”); see also United States v. Ursery, 518
`U.S. 267, 284 (1996) (forfeiture laws “are designed
`primarily to confiscate property used in violation of
`the law, and to require disgorgement of the fruits of
`illegal conduct”).
`Subsequent federal laws authorized civil forfei-
`ture of the proceeds of narcotics trafficking. The
`States soon followed, many—including Illinois—
`modeling their forfeiture laws after the federal drug
`forfeiture statute, 21 U.S.C. § 881. See Dee Edge-
`worth, Asset Forfeiture: Practice and Procedure in
`State and Federal Courts 30-31 (2008).
`
`
`
`
`
`

`
`4
`
`In 2000, Congress passed the Civil Asset Forfei-
`ture Reform Act (CAFRA) “[t]o provide a more just
`and uniform procedure for Federal civil forfeitures.”
`18 U.S.C. § 981. Under CAFRA, the Federal Gov-
`ernment has 60 days to send written notice to inter-
`est holders. Id. § 983(a)(1)(A)(i). There are excep-
`tions which reflect the necessity of longer time pe-
`riods: in cases where state or local law enforcement
`has turned a case over to the Federal Government
`for adoption, notice may be sent 90 days from the
`date of seizure, id. § 983(a)(1)(A)(iv), and when the
`identity of an interest holder is not determined until
`after a seizure, notice may be sent 60 days after
`identity is determined. Id. § 983(a)(1)(A)(v). Moreo-
`ver, a supervisory official may extend the time for
`sending notice by 30 days, and, upon motion to a
`court, by 60 days, if sending earlier notice would
`have an “adverse result”—e.g., “endangering the life
`or physical safety of an individual,” “intimidation of
`potential witnesses,” and “otherwise seriously jeo-
`pardizing an investigation or unduly delaying a tri-
`al.” Id. § 983(B)-(D)(v).
`If a property owner files a claim to recover prop-
`erty, then the Federal Government has 90 days to
`file a complaint for forfeiture. Id. § 983(a)(2)-(3).
`This time period may also be extended by a district
`court for “good cause.” Id. § 983(a)(3)(A).
`3. Illinois’ Drug Asset Forfeiture Act. Illinois
`adopted its Drug Asset Forfeiture Procedure Act
`(DAFPA) in 1990 to govern proceedings for forfeita-
`ble property under its Controlled Substances Act,
`Cannabis Control Act, and Methamphetamine Con-
`trol and Community Protection Act. See 725 Ill.
`Comp. Stat. 150/5.
`
`
`
`
`
`

`
`5
`
`DAFPA, like many state forfeiture laws, reflects
`federal policy and law. In its statement of legislative
`purpose, the Illinois General Assembly stated that
`the law would “have a significant beneficial effect in
`deterring the rising incidence of the abuse and traf-
`ficking of such substances within this State.” 725 Ill.
`Comp. Stat. 150/2. It also noted that because the
`federal statute upon which DAFPA was based “has
`been very successful in deterring the use and distri-
`bution of controlled substances within this State and
`throughout the country,” it intended that DAFPA “be
`construed in light of the federal forfeiture provisions
`contained in 21 U.S.C. 881.” Id.
`SUMMARY OF ARGUMENT
`Contrary to the holding of the court below, DAF-
`PA’s time limits are not facially unconstitutional.
`This is because the determination of what process is
`due in a forfeiture case is fact-specific and not sub-
`ject to categorical temporal rules. And this is true
`under both United States v. $8,850—in which the
`Court squarely held that due process determinations
`in civil forfeiture cases are to be made pursuant to
`the test of Barker v. Wingo—and Mathews v. El-
`dridge, the precedent incorrectly applied by the court
`below to facially invalidate DAFPA.
`There is no basis in the Due Process Clause for
`judicially drawn bright lines. As this Court has re-
`peatedly held, “the drawing of lines,” temporal or
`otherwise, “is a peculiarly legislative task.” Massa-
`chusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
`314 (1976). Because Due Process rights resist quan-
`tification, this Court is reluctant to invalidate legis-
`latively determined deadlines. Only rarely has the
`Court set categorical time limits that would require
`
`
`
`
`
`

`
`6
`
`wholesale displacement of the procedures crafted by
`state legislatures.
`Because of its close resemblance to determining
`the timeliness of criminal trials, this Court has al-
`ready recognized Barker as the governing framework
`for determining the timeliness of initiating forfeiture
`proceedings. Barker, a four-factor balancing test, is
`necessarily fact-specific and does not warrant the ca-
`tegorical invalidation of DAFPA.
`Moreover, a due process analysis under Eldridge
`is likewise fact-specific. When it facially invalidated
`DAFPA, the court of appeals did not consider the ex-
`tent to which private interests can vary from case to
`case. While acknowledging that DAFPA authorizes
`the forfeiture of “vehicles, aircraft, vessels, [and]
`money involved in certain drug crimes,” Pet. App. 2,
`the court focused its analysis on the potential impact
`on an individual of the seizure of a car. It thus dis-
`regarded the fact that items seized under drug forfei-
`ture laws also include jewelry, weapons, and drug
`paraphernalia.
`The court of appeals also ignored the State’s
`compelling interests in forfeiture, which include both
`its value as a law enforcement mechanism and the
`State’s need for adequate time to conduct an investi-
`gation, evaluate the property, and decide whether to
`initiate forfeiture. “Both the Government and the
`claimant have an interest in a rule that allows the
`Government some time to investigate the situation
`in order to determine whether the facts entitle the
`Government to forfeiture so that, if not, the Govern-
`ment may return the [property] without formal pro-
`ceedings.” United States v. $8,850, 461 U.S. 555, 566
`(1983).
`
`
`
`
`
`

`
`7
`
`
`
`ARGUMENT
`DAFPA IS NOT FACIALLY UNCONSTITU-
`TIONAL FOR NOT PROVIDING A PRELIM-
`INARY POSTSEIZURE HEARING.
`A statute is not facially invalid unless “no set of
`circumstances exists under which the [law] would be
`valid.” United States v. Salerno, 481 U.S. 739, 745
`(1987); cf. Washington v. Glucksberg, 521 U.S. 702,
`739-40 & n.7 (1997) (Stevens, J., concurring) (a sta-
`tute is not facially invalid if it has a “plainly legiti-
`mate sweep”). Because the determination of what
`process is due in a forfeiture case is fact-specific and
`not amenable to per se temporal distinctions, the
`court of appeals’ holding that DAFPA is facially un-
`constitutional should be reversed. Both the tests of
`Barker v. Wingo, 407 U.S. 514 (1972) and Mathews v.
`Eldridge, 424 U.S. 319 (1976) typically involve case-
`by-case application and so neither supports facial in-
`validation of Illinois’ deadlines.
`A. State Legislatures, Not Courts,
`Should Set Time Limits for Civil For-
`feiture Proceedings.
`This Court has long held that because “there is
`no obvious bright line dictating when a postseizure
`hearing must occur,” United States v. $8,850, 461
`U.S. 555, 562 (1983), judicial determinations must be
`done on a case-by-case basis. The Due Process
`Clause “draws no bright lines around three-day, 10-
`day or 50-day deprivations of property,” Connecticut
`v. Doehr, 501 U.S. 1, 15 (1991), and even “[a] 9-
`month adjudication is not . . . unconstitutionally
`lengthy per se.” Cleveland Bd. of Educ. v. Louder-
`mill, 470 U.S. 532, 547 (1985). This is because “due
`
`
`
`
`
`

`
`8
`
`process is flexible and calls for such procedural pro-
`tections as the particular situation demands.” Mo-
`rissey v. Brewer, 408 U.S. 471, 481 (1972); Cafeteria
`& Restaurant Workers Union, Local 473 v. McElroy,
`367 U.S. 886, 895 (1961) (due process, “unlike some
`legal rules, is not a technical conception with a fixed
`content unrelated to time, place and circumstances”).
`By contrast, “the drawing of lines . . . is a pecu-
`liarly legislative task,” Massachusetts Bd. of Retire-
`ment v. Murgia, 427 U.S. 307, 314 (1976), and
`“[m]aking distinctions in a murky constitutional con-
`text, or where line-drawing is inherently complex,
`may call for a ‘far more serious invasion of the legis-
`lative domain’ than [the Court] ought to undertake.”
`Ayotte v. Planned Parenthood of Northern New Eng-
`land, 546 U.S. 320, 330 (2006). This is especially
`true when drawing temporal distinctions. Because
`due process rights resist quantification, this Court is
`reluctant to invalidate legislatively-set time limits.
`See FDIC v. Mallen, 486 U.S. 230 (1988); see also
`Yakus v. United States, 321 U.S. 414 (1944); Opp
`Cotton Mills, Inc. v. Adm’r, 312 U.S. 126 (1941); Phil-
`lips v. Comm’r, 283 U.S. 589 (1931); Wick v. Chelan
`Electric Co., 280 U.S. 108 (1929); Campbell v. City of
`Olney, 262 U.S. 352 (1923); Bellingham Bay & Brit-
`ish Columbia R.R. Co. v. New Whatcom, 172 U.S. 314
`(1899).
`Very rarely has the Court set bright-line time
`limits that would require wholesale displacement of
`state procedures. One example is Gerstein v. Pugh,
`420 U.S. 103, 114 (1975), in which the Court held
`that arrestees must be afforded judicial hearings on
`probable cause promptly following the “administra-
`tive steps incident to arrest”; subsequently, in Coun-
`ty of Riverside v. McLaughlin, the Court determined
`
`
`
`
`
`

`
`9
`
`that 48 hours was the outer time limit within which
`the hearing must be held. 500 U.S. 44 (1991).
`Rather than supporting affirmance, Gerstein and
`Riverside only reveal that the constitutional groun-
`ding for drawing a line in those cases is absent in civ-
`il forfeiture. Not only are those cases governed by
`the Fourth Amendment, but the line drawn in that
`context is derived from the law of arrest, in which
`the historical practice of holding prompt hearings to
`test the validity of detention reflects the special ex-
`igency of wrongly depriving persons of liberty. See
`Gerstein, 420 U.S. at 111-15; Riverside, 500 U.S. at
`56-57 (48-hour limit contemplates time required to
`complete “administrative steps incident to arrest,” as
`required by common-law practice); id. at 61-62 (Sca-
`lia, J., dissenting) (describing common law of arrest
`and collecting citations). The history of forfeiture,
`traditionally deferential to the government’s authori-
`ty,4 differs from arrest and contains no support for
`similar procedural line-drawing. See $8,850, 461
`U.S. at 565 n.14 (the “loss of liberty . . . may well be
`more grievous than the deprivation of one’s use of
`property” in forfeiture proceedings).
`Despite having no constitutional basis for distin-
`guishing between time periods that comport with due
`process and those that do not, the court of appeals
`engaged in line-drawing properly reserved to the leg-
`islature. Of all the state drug forfeiture laws that
`specify time limits for filing forfeiture actions, only a
`handful incorporate ex parte proceedings that resem-
`
`
`
`4 See, e.g., Bennis v. Michigan, 516 U.S. 442 (1996); Calero-
`Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974); J.W.
`Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505 (1921);
`The Palmyra, 25 U.S. (Wheat.) 1 (1827); see also Pet. Br. 29-41.
`
`
`
`
`
`

`
`10
`
`ble Gerstein hearings5 and none mandate adversarial
`hearings by the 10-day limit urged by respondents.6
`Consequently, absent reversal, the judgment below
`could lead to judicial scrutiny of many other state
`forfeiture laws and the federal statute.
`B. The Proper Test for the Timeliness of
`Forfeiture Proceedings Is Contained
`in Barker v. Wingo, Which Requires
`Case-by-Case Adjudication.
`Consistent with the varying demands of due
`process, this Court has already determined that the
`timeliness of forfeiture proceedings is properly as-
`sessed by the balancing test of Barker v. Wingo. As
`the Court explained in $8,850, the concern that
`property has been deprived without a prompt hear-
`ing “mirrors the concern of undue delay encompassed
`in the right to a speedy trial.” $8,850, 461 U.S. at
`564; see also United States v. Von Neumann, 474
`U.S. 242 (1986). The Barker test, which “necessarily
`compels courts to approach speedy trial cases on an
`ad hoc basis,” id., thus mandates the same for de-
`termining the timeliness of civil forfeiture proceed-
`ings.
`
`
`
`5 See La. Rev. Stat. § 40:2606 (police who seize property with-
`out a warrant must apply for a warrant within 72 hours of sei-
`zure in an ex parte application to a judge demonstrating proba-
`ble cause); Tenn. Code Ann. § 40-33-204 (prerequisite to a for-
`feiture proceeding is an ex parte application to the court, within
`5 days of seizure, for a forfeiture warrant which establishes
`probable cause).
`
`6 More than 40 States and the District of Columbia have drug
`forfeiture laws specifying time limits for the institution of for-
`feiture proceedings or hearings, ranging from 14 days to a year,
`though some States place the burden on the owner to first make
`a claim for the property. See Appendix.
`
`
`
`
`
`

`
`11
`
`In adopting the Barker test to assess due process
`challenges to civil forfeiture proceedings, the Court
`recognized the infeasibility of specifying time limits
`to mark the point at which due process rights have
`been denied. The Court observed in Barker itself
`that such a bright-line rule
`would require this Court to engage in legisla-
`tive or rulemaking activity . . . . We do not es-
`tablish procedural rules for the States, except
`when mandated by the Constitution. We find
`no constitutional basis for holding that the
`speedy trial right can be quantified into a spe-
`cified number of days or months. The States,
`of course, are free to prescribe a reasonable
`period consistent with constitutional stan-
`dards, but our approach must be less precise.
`Barker, 407 U.S. at 523. Just as the States and the
`Federal Government have enacted procedural rules
`which more narrowly define the right to a speedy tri-
`al, so have they enacted specific deadlines for the
`State to institute forfeiture proceedings. In both in-
`stances, the function of line-drawing is squarely
`within the competence of the political branches.
`It is therefore no surprise that in the speedy trial
`context courts have not invalidated speedy trial laws,
`but routinely entertain both constitutional and sta-
`tutory claims. See, e.g., United States v. Knight,
`2009 U.S. App. LEXIS 6594 (11th Cir. Mar. 25,
`2009); United States v. Williams, 557 F.3d 943 (8th
`Cir. 2009). Because legislative speedy trial limits are
`generally well within the period of delay required to
`trigger a Barker claim,7 “it will be an unusual case in
`
`
`
`7 The length of time required to trigger a Barker speedy-trial
`analysis is roughly one year. See United States v. Doggett, 505
`
`
`
`
`
`
`
`

`
`12
`
`which the time limits of the Speedy Trial Act have
`been met but the Sixth Amendment right to speedy
`trial has been violated.” United States v. O’Dell, 247
`F.3d 655, 667 (6th Cir. 2001). Nonetheless, govern-
`ment compliance with the statute does not preclude a
`defendant from raising Sixth Amendment claims.
`Cf. United States v. Dessesaure, 556 F.3d 83, 85 (1st
`Cir. 2009) (where indictment was dismissed without
`prejudice for violation of Speedy Trial Act, Sixth
`Amendment claim could be viable if defendant were
`re-indicted). Similarly, if a plaintiff contesting a sei-
`zure of property were to raise a due process claim
`alongside a statutory claim, even a meritorious con-
`stitutional claim would not require invalidating the
`statutory limit altogether.
`C. The Court of Appeals Erroneously
`Applied Mathews v. Eldridge, Which
`Also Requires Case-by-Case Adjudi-
`cation.
`Not only did the court of appeals fail to apply the
`correct legal test without the benefit of a factual
`record, its judgment should be reversed for two other
`reasons. First, Eldridge, like Barker, must be ap-
`plied on a case-by-case basis. Second, proper consid-
`eration of the public and private interests identified
`by the Court in Eldridge reinforce the conclusion
`that DAFPA’s time limits are not facially invalid.8
`
`
`U.S. 647, 652 n.1 (1992). Lower courts which have applied
`$8,850 to the timeliness of forfeiture proceedings have upheld
`similar delays. See United States v. Turner, 933 F.2d 240 (4th
`Cir. 1991) (16-month delay).
`
`8 Though $8,850 and Von Neumann squarely support the ap-
`plication of Barker to assess delays in forfeiture proceedings,
`the Court has applied Eldridge to cases involving the timeliness
`of other post-deprivation hearings. See, e.g., City of Los An