Bona Law Files Amicus Brief to US Supreme Court Supporting Request for Review in Fourth Amendment Civil Forfeiture Case

Authors: Aaron Gott, Luis Blanquez and Kristen Harris

Bona Law attorneys Aaron Gott, Luis Blanquez, and Kristen Harris filed an amicus curiae brief in the U.S. Supreme Court May 20, 2021 in support of a petition for writ of certiorari that asks the Court to decide whether the Fourth Amendment to the U.S. Constitution gives vehicle owners the right to a continued detention hearing pending civil forfeiture proceedings. The brief was filed on behalf of Restore the Fourth Inc., a national, non-partisan civil liberties organization dedicated to the robust enforcement of the Fourth Amendment.

The amicus brief provides historical context by detailing Founding-era concerns over civil forfeiture and explains how the Sixth Circuit’s decision puts citizens today in a position strikingly similar to the colonists whose property was arbitrarily seized by the British Crown without a meaningful opportunity to be heard. The brief supported Stephen Nichols’ petition for writ of certiorari. Nichols was deprived of his vehicle for three years under a statutory scheme that incentivizes municipalities to seize property and deny due process in the hopes of extracting settlements from vehicle owners who seek return of their vehicles.

Bona Law has also written about other methods that municipalities utilize to raise revenue at the expense of competition.

Factual Background of the Case

In 2015 during a random traffic check, police seized Stephen Nichols’ car for its suspected involvement in a violation of Michigan’s Identity Theft Protection Act. This statute allows the warrantless seizure of property if an officer believes it is connected to identity theft. It also allows the police to keep the proceeds of forfeited property. Officers seized and towed away Nichols’ car because he gave the officers proof of insurance for a policy that the officers determined did not exist.

The car was detained for three years in anticipation of civil forfeiture, and the prosecutor never instituted forfeiture proceedings. Nichols eventually got his car back after he filed an action against several local government entities, asserting Monell liability under 42 U.S.C. §1983. With his car returned to him, Nichols sought damages for the local governments’ alleged failure to provide him with constitutional due process and a timely court hearing.

The district court disagreed and dismissed his complaint for failure to state a claim. On appeal, a divided Sixth Circuit panel upheld the dismissal. Nichols then filed his petition for a writ of certiorari in the Supreme Court, and the Court is now considering whether it will exercise its discretion to take the case.

Restore the Fourth’s Amicus Brief

Restore the Fourth’s brief reiterates how municipalities nowadays routinely seize vehicles and hold them for months or years without any post seizure, pre-forfeiture opportunity to be heard and provides historical context that is directly relevant: the British Crown’s expansive abuses of civil forfeiture informed the Constitution, its Fourth Amendment, and early congressional limits on civil forfeiture and requirements to provide prompt and meaningful opportunity to be heard.

The brief also discusses modern judicial doctrines of absolute prosecutorial immunity, qualified immunity and the impossible new pleading standard developed by the Sixth Circuit that serves only to prevent meaningful judicial oversight. This new Monell-plus pleading standard erects another judicially created barrier to fulfilling the purpose of Section 1983: to provide remedies and deter the deprivation of federal civil rights.

In Monell v. Department of Social Services, the Supreme Court held that a municipality cannot be held liable under § 1983 on a respondeat superior theory. The municipality itself must directly cause the constitutional harm through policy or custom. Thus, a plaintiff suing under Monell need only allege (1) the deprivation of a constitutional or statutory right, and (2) that the deprivation was caused by municipal policy or custom.

But after the Sixth Circuit’s decision, a plaintiff must now also allege that the municipalities have no other alternative policies in place that could satisfy constitutional requirements. This effectively denies any remedy for failing to provide a prompt continued-detention hearing without deciding whether such a right exists.

More information about the case can be found here.

Bona Law has substantial experience in preparing amicus curiae briefs in state and federal courts. Bona Law also routinely seeks to challenge government conduct. If your company or organization is considering filing an amicus curiae brief in a significant case of interest, please contact us