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Date: 02-27-2019

Case Style:

Leroy Washington v. Marion County Prosecutor

Case Number: 17-2933

Judge: Manion

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Southern District of Indiana (Marion County)

Plaintiff's Attorney:

Defendant's Attorney:


Indianapolis police stopped a car
driven and owned by Leroy Washington in September 2016.
Washington was arrested and ultimately charged with multiple
Indiana crimes, including dealing in marijuana. Police
seized his vehicle for forfeiture. Washington brought a classaction
constitutional challenge. The district court declared
2 No. 17-2933
Indiana’s vehicle forfeiture statute (I.C. 34-24-1-1(a)(1) read in
conjunction with other provisions in the same chapter) unconstitutional.
The Marion County Prosecutor appealed.
While the appeal pended, Indiana amended the statute. The
Prosecutor argues the amendments fix any constitutional
problems, but Washington disagrees. We remand to the district
court to address the amendments.
I. Background
Washington was driving a vehicle he owned when an Indianapolis
police officer pulled him over on September 21,
2016. Washington was arrested and charged with three felonies:
dealing in marijuana, resisting law enforcement, and obstruction
of justice. The officer had Washington’s vehicle
towed and held for forfeiture pursuant to Indiana Code 34-
24-1-1(a)(1) and 2(a)(1).
On November 1, 2016, Washington demanded return of
his vehicle per I.C. 34-24-1-3. He filed a federal class-action
complaint the next day, claiming the seizures of his vehicle
and the class’s vehicles under I.C. 34-24-1-2(a)(1) violate the
Fourteenth Amendment’s due process clause. In a clarifying
brief requested by the district court, Washington said he challenged
I.C. 34-24-1-2(a)(1) as applied. But the court construed
the challenge as a facial challenge to I.C. 34-24-1-1(a)(1), read
in conjunction with other provisions of that chapter.
In early February 2017, the Marion County Prosecutor’s
Office and the Indianapolis Metropolitan Police Department
released the vehicle to Washington. On February 3, 2017, Defendants
moved to dismiss the case as moot given the vehicle’s
return. Later that month, Washington moved for summary
No. 17-2933 3
On August 18, 2017, the district court certified a class and
granted Washington summary judgment. The court declared
I.C. 34-24-1-1(a)(1) (as read in conjunction with other provisions
of the same chapter) unconstitutional for violating the
due process clauses. The court permanently enjoined Defendants
from enforcing it. In particular, the court concluded the
statutory provisions allowing for seizure and retention of vehicles
without an opportunity for an individual to challenge
pre-forfeiture deprivation are unconstitutional. The Prosecutor
appealed. After the judgment, and while this appeal
pended, Indiana amended its vehicle forfeiture statute.
The Prosecutor continues to argue on appeal that the old
version of the statute did not violate the due process clause.
The Prosecutor also argues the new version changed and increased
the available process, thereby ameliorating any “potential”
due process deficiencies identified by the district
court. For example, the Prosecutor argues the amended statute
provides for a probable cause affidavit, a motion for provisional
release, and a shortened window for the Prosecutor
to file a forfeiture complaint. These changes, the argument
goes, satisfy the district court’s due process concerns by allowing
a person interested in a vehicle to challenge pre-forfeiture
deprivation. The Prosecutor moved us to dismiss this
case as moot given the statutory amendments.
But Washington argues the amendments are superficial,
the same or similar problems exist, and the statute as
amended remains unconstitutional. He argues, for example,
that one new provision sets out a procedure the court already
held constitutionally deficient. He argues the court required a
timely post-seizure, pre-forfeiture hearing at a minimum, but
the amendments do not provide this. He argues the
4 No. 17-2933
amendment providing for “provisional release” is meaningless
or illusory because the mere filing of a motion by the Prosecutor
will bar provisional release. He points out that the
amended statute still bars replevin. He argues the statute as
amended prevents a court from asking the core question
(within an appropriate time): Is there probable cause to believe
the vehicle owner had some involvement in the wrongdoing?
Washington maintains that the statute, before and after
the amendments, does not provide due process. In short,
he argues the amendments do not cure the due process deficiency,
do not provide any meaningful impact, and do not
moot his claim.
II. Discussion
The district court concluded Indiana’s statutory provisions
allowing for seizure and retention of vehicles without
an opportunity to challenge pre-forfeiture deprivation are unconstitutional.

Indiana amended the law, but Washington argues
the amendments do not fix the constitutional problems:
When an innocent owner’s vehicle is used by a
third party to commit a crime, the vehicle is
seized by law enforcement. Because evidence of
innocent ownership is not considered at the ex
parte probable cause determination, the Court
will generally order the vehicle to be held. The
prosecutor can then file a motion under Indiana
Code Section 34-24-1-2(j), which prevents provisional
release. The statute does not require any
expedited process for addressing a motion under
[that section]. As a result, the individual
loses the ability to have a prompt hearing to
challenge continued retention of the vehicle.
No. 17-2933 5
The ability of the State to hold property for an
extended period of time, while simultaneously
preventing judicial intervention, creates powerful
leverage that can be used to coerce even innocent
owners to buy back their own property
though a settlement agreement.
(Appellees’ Br., DE 25 at 36.)
Scholars chronicle many problems with forfeiture laws.1
Professor Crepelle observed that in 2015, law enforcement
took more property from Americans than criminals did.
2 Justice
Thomas has expressed skepticism of forfeiture.3
1 Note, How Crime Pays: The Unconstitutionality of Modern Civil Asset
Forfeiture as a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387
(2018); Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and
the Problems It Creates, 7 Wake Forest J.L. & Pol’y 315 (2017); Barclay
Thomas Johnson, Note, Restoring Civility—The Civil Asset Forfeiture Reform
Act of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System, 35
Ind. L. Rev. 1045 (2002); but see Caleb Nelson, The Constitutionality of Civil
Forfeiture, 125 Yale L.J. 2446 (2016) (arguing forfeiture statutes might be
unfair or unwise, but their central characteristics do not violate the Constitution).
2 Crepelle, supra note 1, at 315.
3 “[A]mbitious modern statutes and prosecutorial practices have all
but detached themselves from the ancient notion of civil forfeiture … .”
United States v. James Daniel Good Real Prop., 510 U.S. 43, 85 (1993) (Thomas,
J., concurring in part and dissenting in part). “One unaware of the history
of forfeiture laws and 200 years of this Court’s precedent regarding such
laws might well assume that such a scheme is lawless—a violation of due
process.” Bennis v. Michigan, 516 U.S. 442, 454 (1996). “This system—where
police can seize property with limited judicial oversight and retain it for
their own use—has led to egregious and well-chronicled abuses.” Leonard
6 No. 17-2933
Obviously, vehicle forfeitures are economically painful.
Many Americans depend on cars for food, school, work, medical
treatment, church, relationships, arts, sports, recreation,
and anything farther away than the ends of their driveways.
Cars extend us. Cars manifest liberty. A person released on
bond, retaining a presumption of innocence, might suffer virtual
imprisonment if he cannot regain his vehicle in time to
drive to work.
The district court did not have a chance to address the
amendments. Given that the record and arguments regarding
the amendments are under-developed, we remand this case
to the district court for further proceedings. See Restoration
Risk Retention Grp. v. Gutierrez, 880 F.3d 339, 349 (7th Cir. 2018)
(remanding to district court “to determine the operation and
effect of the amended statute” and to “determine whether the
case is moot”); Hager v. Nat’l Union Elec. Co., 854 F.2d 259, 262–
63 (7th Cir. 1988) (“We believe that the district court ought to
have the opportunity to reconsider its decision in light of this
most significant pronouncement from the Supreme Court of
Indiana.”); United States v. Elrod, 627 F.2d 813, 819–20 (7th Cir.
1980) (remanding to district court given enactment of statute
during pendency of appeal).4
On remand, the district court should address the parties’
contentions regarding the amendments. Do the amendments
v. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., statement respecting denial
of certiorari).
4 The Supreme Court heard argument on Indiana’s forfeiture law and
the Eighth Amendment a day before our argument. The Court recently
issued its opinion, concluding the Fourteenth Amendment incorporates
the Eighth Amendment’s ban on excessive fines. Timbs v. Indiana, No. 17-
1091, 2019 WL 691578, at *2 (U.S. Feb. 20, 2019).
No. 17-2933 7
ameliorate the constitutional problems the district court identified?
The district court should resolve these contentions to
the extent necessary and proper.
If appropriate, the district court should also revisit the
class to determine whether it should be decertified or redefined
in light of the amendments.
At present, we express no opinion regarding the constitutionality
of the old or new versions of the statute, regarding
mootness, or regarding the class. Also, our argument summaries
do not limit the arguments the parties may raise on
remand. We leave latitude to the district court to conduct further
proceedings it deems necessary and proper given the
amendments and the parties’ positions. Any review we are
subsequently called upon to make will benefit from these proceedings
and the reasoning of the district court.

Outcome: We DENY the Prosecutor’s motion to dismiss. We
REMAND this case to the district court for further proceedings
consistent with this opinion.

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