Your car can be guilty — even when you’re not

A vehicle can be confiscated by law enforcement without its owner facing criminal charges, held for months or years while the owner fights in court to retrieve it, and the entire process remains constitutional according to current Supreme Court doctrine—a reality that has drawn sharp criticism from voices across the ideological spectrum.

Writing in Washington Examiner, Jay Rogers—who describes three decades of experience structuring transactions requiring documented and defensible ownership—contends that civil asset forfeiture inverts fundamental principles of property rights and due process. Under this legal framework, the government does not need to prove wrongdoing. It simply seizes property and forces the owner to spend months proving innocence.

Halima Culley discovered this reality when she purchased a car for her college-age son. After he was pulled over and police found marijuana and a handgun, Alabama authorities seized the vehicle under a statute that does not require the owner to be charged with any offense. Culley was not arrested, was not present during the incident, and faced a lengthy battle to recover her property.

Civil forfeiture operates under a legal fiction known as in rem jurisdiction, inherited from four-century-old maritime law. Under this doctrine, the government sues the property itself rather than the person, effectively making the car or cash the defendant. The owner becomes a third party forced to intervene in a lawsuit against their own possessions, with the burden of proof in many states falling heavily on the citizen rather than the state.

Culley and a second petitioner, Lena Sutton, challenged this system at the Supreme Court, arguing that due process requires a prompt preliminary hearing before the state can retain seized property pending final forfeiture proceedings. In Culley v. Marshall, decided in May 2024, the Court ruled against them by a 6-3 margin. Justice Brett Kavanaugh, writing for the majority, held that a timely forfeiture hearing satisfies due process requirements without any separate retention hearing.

Justice Neil Gorsuch concurred with the judgment but went further in a separate opinion that addressed issues the majority avoided. It took Culley 20 months and a federal lawsuit to recover her car—a timeline Gorsuch described as routine. He traced modern forfeiture practice to the common-law deodand, an ancient doctrine confiscating any object connected to a death, and questioned whether current practice represents much more than that doctrine in contemporary dress.

Gorsuch cited research indicating that up to 80 percent of civil forfeitures occur without any criminal conviction and invited future litigation to test whether the practice comports with constitutional requirements at all. Justice Clarence Thomas joined that opinion. Three dissenting justices, led by Justice Sonia Sotomayor, made the due process argument directly: A police officer can seize a vehicle because someone else allegedly used it to commit a crime, hold it for months, and in most jurisdictions the proceeds flow directly back into the police budget that authorized the seizure.

This arrangement does not reflect the actions of rogue officers but rather a systemic funding model. Departments seize property because state legislatures have written statutes allowing agencies to retain what they take, and because federal equitable sharing permits local police to circumvent stricter state reforms by partnering with federal agencies and splitting the proceeds.

A 2018 study of Alabama forfeiture cases conducted by the Alabama Appleseed Center and the Southern Poverty Law Center found that in approximately one quarter of reviewed cases, the property owner was never charged with a crime connected to the seizure. Not convicted—never even charged. In a quarter of cases, the government retained the property while nobody faced prosecution for the offense that supposedly justified the taking.

Legislative Reform in Alabama

Alabama tightened its forfeiture statute in 2021, exempting vehicles worth less than $5,000 and cash under $250 from seizure and shifting more of the burden of proof onto the government. That reform represents a legislative solution rather than a constitutional mandate, and it applies only within Alabama. The Culley decision confirms that the Constitution, as the Court currently interprets it, does not require any state to adopt similar protections.

The Fourth Amendment protects against unreasonable searches and seizures, while the Fourteenth Amendment guarantees due process. Civil forfeiture operates as a seizure that survives constitutional scrutiny because the government sues the property rather than the person. The Founders understood seizure as something that happened to people accused of crimes, supported by warrant, probable cause, and judicial review. Forfeiture statutes route around all three requirements.

The constitutional framework established by the Founders places the burden of proof on the government: the state accuses, the state proves, and the citizen is presumed innocent until proven guilty. Civil asset forfeiture statutes reverse that sequence, allowing the government to take property first and requiring citizens to prove their innocence afterward—a procedural inversion that multiple Supreme Court justices have now identified as constitutionally questionable, even as the practice remains lawful under current doctrine.

With information from Washington Examiner