SOTOMAYOR, Circuit Judge.
Defendant City of New York seizes the motor vehicles of some of those accused of driving while intoxicated and of committing other crimes for which a motor vehicle could be considered an instrumentality.
Plaintiffs contend that their inability to challenge, promptly after the vehicles are seized, the legitimacy of and justification for the City's retention of the vehicles prior to judgment in any civil forfeiture proceeding violates their constitutional rights. We agree. A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.
We vacate the judgment of the district court and remand for the court to order, after consultation with the parties, the appropriate injunctive relief.
Plaintiffs challenge the seizure and retention of motor vehicles under a section of the City's Civil Administrative Code, N.Y.C.Code § 14-140. The City claims and plaintiffs do not contest that the statute authorizes the City's Property Clerk to take custody, following seizure, of, among other things, "all property ... suspected of having been used as a means of committing crime or employed in aid or furtherance of crime...." N.Y.C.Code § 14-140(b). Seized property is retained by the Property Clerk of the New York City Police Department until the City either loses a future forfeiture suit or decides not to pursue one and someone claims the seized property. Id. § 14-140(e); 38-A New York City Rules & Regulations ("R.C.N.Y.") § 12-36. The relevant provision of the Administrative Code states:
N.Y.C.Code § 14-140(e)(1). The statute applies to all levels of crime, not just felonies, and to all types of crimes. Moreover, it applies to all property, both real and personal.
Under the statute, the City can seize a motor vehicle following an arrest for the state-law charge of driving while intoxicated ("DWI") or any other crime for which the vehicle could serve as an instrumentality. The arraignment of the defendant in the criminal action concerns only the prosecution of the criminal charge. A defendant charged with DWI does not have a right to a post-arrest hearing to determine whether probable cause existed either for his or her arrest or for the seizure of the vehicle. Unlike a felony charge, for which a "prompt" probable cause hearing must be held or evidence of probable cause must be presented to a grand jury, N.Y.Crim. Proc. § 180.10, a misdemeanor charge of DWI requires no post-arrest determination of probable cause, id. §§ 170.10 et seq.; People v. Green, 96 N.Y.2d 195, 199-200,
Upon seizing the vehicle, the police issue the arrestee a voucher for the vehicle and any other seized property. 38-A R.C.N.Y. § 12-32(a). If a claimant makes a formal demand for the return of the vehicle, the City has twenty-five days in which either to initiate a civil forfeiture proceeding under the City's Administrative Code or to release the vehicle. Id. § 12-36(a).
Vehicles belonging to the named members of the putative class in this action were seized by the City between March and May of 1999. The vehicles of six of the seven named plaintiffs — Valerie Krimstock,
Each of the five other DWI arrestees also pleaded guilty to the lesser charge of driving while impaired. Valerie Krimstock, who at the age of forty-eight had never been arrested before, entered her plea to the lesser charge in September 1999 — some four months after she had been served with a forfeiture complaint. It was not until eleven months later, in August 2000, that a judge dismissed the forfeiture action and ordered that her 1995 Toyota, on which she had continued to make monthly payments of $273.00, be returned to her.
In the case of Charles Flatow — a retired sales manager whose car was seized on April 3, 1999 in connection with a first-time DWI arrest — the Property Clerk commenced a forfeiture action on June 15, 1999. Mr. Flatow also pleaded guilty to the lesser charge, paid a fine, and completed the required community service and Drinking Driver program. Yet by December 1999, he still had received no hearing in the forfeiture action and his car remained in police custody. As a result, Mr. Flatow had not been given an opportunity to present evidence that a prescription anti-depressant medication he was taking at the time of the arrest caused the Breathalyzer test to exaggerate the percentage of alcohol in his bloodstream.
To take yet another example, the 1995 Plymouth van owned by the seventh named plaintiff, Sandra Jones, was seized in March 1999 when her estranged husband, to whom she had lent the vehicle, was arrested for drug and weapon possession. Even though these charges were later dismissed, the Property Clerk initiated a forfeiture action in May 1999, alleging that Ms. Jones had "consented, suffered or permitted" her vehicle to be used by her husband in the commission of crimes. During the pendency of the action, Ms. Jones continued to make monthly payments of $428.06 on her impounded vehicle. In January 2000, some ten months after the police had seized it, the Property Clerk returned her van. In sum, at the time this suit was filed in December 1999, no court had yet ruled on the legitimacy of the retention of any of plaintiffs' vehicles, all of which remained in the possession of the police even though the criminal cases underlying the forfeiture actions had concluded and none had resulted in a
Plaintiffs brought this action under 42 U.S.C. § 1983, alleging violations of the Due Process Clause of the Fourteenth Amendment and seeking a prompt hearing following the seizure of vehicles, at which the City "must demonstrate probable cause that the car was used in furtherance of a crime and that it is necessary that the vehicle remain in the City's custody until the conclusion of the forfeiture proceeding."
The district court granted the City's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Krimstock, 2000 WL 1702035, at *7. The court rejected the City's request to dismiss plaintiffs' constitutional claims on abstention grounds, finding that the civil forfeiture proceedings under the New York City Administrative Code did not provide an adequate forum for raising these claims. Id. at *3.
A federal court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). "We review de novo a district court's dismissal of a complaint pursuant
Our primary focus today is the City's continued retention of vehicles after their warrantless seizure by the police and prior to the ultimate resolution of the forfeiture action in court. It is this intermediate deprivation, lasting months or sometimes years without any prompt hearing before a neutral fact-finder, that we deem constitutionally infirm. In the absence of a showing that continued impoundment constitutes a valid deprivation, seized vehicles must be released during the pendency of civil proceedings.
We reach this conclusion in light of the dictates of the Fourth and Fourteenth Amendments. In Part I, we establish a framework for analyzing plaintiffs' challenge to the probable validity of the City's post-seizure, pre-judgment retention of their vehicles, and we define "probable validity" as a due process concept that in the present case embraces the City's probable cause for initially seizing the vehicles. In Parts II and III, we discuss the applicability of the Fourth and Fourteenth Amendments to seizure and retention of personal property under civil forfeiture laws. In the course of discussing the Fourteenth Amendment, we give special attention to three areas of due process concern raised by N.Y.C.Code § 14-140 as applied to the present facts: the temporal gap that typically exists between vehicle seizure and the eventual forfeiture proceeding; the plight of innocent owners;
I. The Probable Validity of Continued Deprivation of Vehicles
Plaintiffs in this action essentially seek an early opportunity to test the City's likelihood of success on the merits of the forfeiture action, or what the Supreme Court has termed the "probable validity" of continued deprivation of a claimant's property during the pendency of legal proceedings. Cf. Comm'r v. Shapiro, 424 U.S. 614, 629, 96 S.Ct. 1062, 47 L.Ed.2d 278 (1976) ("[A]t least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties, the Due Process Clause requires that the party whose property is taken be given an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some
For present purposes, we treat probable validity as a comprehensive due process concept that includes the City's probable cause for initially seizing vehicles. Clearly, the legality of a warrantless seizure is a component of the larger question of the probable validity of continued retention of a seized vehicle. If a seizure lacked probable cause, and the City could offer no untainted post-seizure evidence to justify further retention, the claimant's vehicle would ordinarily have to be released during the pendency of proceedings. Cf. Marine Midland Bank, N.A. v. United States, 11 F.3d 1119, 1125 (2d Cir.1993) ("[C]ourts in this circuit have ordered the return of seized property before the commencement of a [federal] forfeiture trial on the ground that the government lacked probable cause to seize the property at the time of the seizure.").
Although there is an obvious overlap between probable cause for a seizure and the probable validity of a retention, the two are not necessarily coextensive. For example, at a retention hearing, the City might succeed in showing that police officers had probable cause for seizing the vehicle of a DWI arrestee, yet be unable to establish the probable validity of continued deprivation pendente lite in the face of proof of innocent ownership or evidence that the Breathalyzer test had registered inaccurate results. Similarly, the City might establish probable cause for a seizure but fail to persuade the court that its interest in the accused instrumentality would not be protected by measures less drastic than continued deprivation. Conversely, the City might fail to establish probable cause for an initial seizure yet be able to offer post-seizure evidence showing the probable validity of retention during the pendency of proceedings. Thus, the legality of a seizure typically will be a subset of the larger due process question of the legitimacy of continued impoundment pendente lite.
II. The Role of the Fourth Amendment in Civil Forfeiture
The Supreme Court has held that the Fourth Amendment protects claimants against unreasonable seizures of their property in the civil forfeiture context. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) ("The Fourth Amendment does place restrictions on seizures conducted for purposes of civil forfeiture ...."); see also One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 700, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965) (holding that the exclusionary rule under the Fourth Amendment applies to civil forfeiture proceedings); cf. In re Seizure of All Funds in Accounts in Names Registry Publ'g, Inc., 68 F.3d 577, 580 (2d Cir. 1995) ("In order to seize property under [federal civil forfeiture law], the government must demonstrate that there was probable cause to believe that the property is subject to forfeiture."); United States v. Daccarett, 6 F.3d 37, 49 (2d Cir.1993)
The Supreme Court has not said that a probable cause hearing is required after a warrantless seizure of property and before trial of a government's claim to title under a civil forfeiture law. Yet many of our laws are fashioned to ensure that a prompt hearing before a neutral judicial or administrative officer is held after the warrantless seizure of property and before full adjudication of the merits of a claim. One example is the federal civil forfeiture regime as administered by the courts of this Circuit in the context of seizures of illicit proceeds and instrumentalities. As this Court has recognized, "the seizure and forfeiture of property are two distinct events under the [federal] civil forfeiture laws." Marine Midland Bank, 11 F.3d at 1124 (citing Daccarett, 6 F.3d at 46).
We recognize that the likelihood of illegal seizure is reduced in the context of DWI arrests and that the City's burden of proving probable cause in such cases is not onerous.
III. The Role of the Fourteenth Amendment in Civil Forfeiture
The government's seizure and retention of property under civil forfeiture statutes, in the absence of a meaningful hearing at a meaningful time, raise serious due process concerns under the Fourteenth Amendment. See James Daniel Good Real Prop., 510 U.S. at 62, 114 S.Ct. 492 (holding that, absent exigent circumstances, "the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture"); Fuentes, 407 U.S. at 80, 92 S.Ct. 1983 (holding, in a case involving state prejudgment replevin statutes that permitted seizure of chattels without a prior opportunity to be heard, that it is "fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner") (quotation marks omitted).
The fundamental right to notice and a meaningful hearing at a meaningful time has been recognized in many different contexts. See, e.g., James Daniel Good Real Prop., 510 U.S. at 43, 114 S.Ct. 492 (seizure of real property under federal forfeiture law); Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991) (state ex parte attachment procedures); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (termination of municipal utility service); N. Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (prejudgment garnishment of bank account); Fuentes, 407 U.S. at 67, 92 S.Ct. 1983 (state prejudgment replevin statutes); Sniadach, 395 U.S. at 337, 89 S.Ct. 1820 (state wage-garnishment procedure). Due process is inevitably a fact-intensive inquiry. Doehr, 501 U.S. at 10, 111 S.Ct. 2105 ("[D]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.") (quotation marks omitted). The "timing and nature of the required hearing will depend on appropriate accommodation of the competing interests involved." Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quotation marks omitted).
A. Temporary Deprivations of Property Pendente Lite
Temporary deprivation of real or personal property pendente lite in a forfeiture action must satisfy the demands of the Fourteenth Amendment. The Supreme Court has held that even a brief and provisional deprivation of property pending judgment is of constitutional importance. See Fuentes, 407 U.S. at 84-85, 92 S.Ct. 1983 ("[I]t is now well settled that a temporary, nonfinal deprivation of property is nonetheless a `deprivation' in the terms of the Fourteenth Amendment."); see also United States v. Monsanto, 924 F.2d 1186, 1192 (2d Cir.1991) (noting that a "temporary and nonfinal" removal of a
The district court in this case collapsed the separate issues of probable cause and due process into a single analysis and, applying the test for due process set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), concluded that plaintiffs had alleged no facts to suggest that a "probable cause arrest" is a "procedure" that is "unusually unreliable," Krimstock, 2000 WL 1702035, at *6, and further concluded that "plaintiffs' due process right to a meaningful hearing at a meaningful time does not require the additional safeguard of a probable cause hearing," id. at *7. In reaching this determination, the court applied the "speedy trial" test as deployed in the federal customs case of United States v. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), and held that plaintiffs' due process interests are fully protected by the eventual forfeiture proceeding. Id.
The district court's analysis resembles the approach taken by the New York Supreme Court in Grinberg v. Safir, in which a DWI arrestee brought an Article 78 proceeding to contest the City's seizure of his 1988 Acura for forfeiture. In response to Grinberg's Fourth Amendment challenge to the seizure and retention of his vehicle, the court, citing various warrantless arrest and seizure exceptions, held that "[o]nce an object is permissibly seized as an instrumentality during an arrest, no warrant, pretrial hearing or judicial approval is needed for retention during the criminal action." Grinberg, 181 Misc.2d at 452, 694 N.Y.S.2d at 323. The court also found that Grinberg's Fourteenth Amendment right to a meaningful hearing at a meaningful time had not been violated. Citing the speedy trial test as applied in $8,850, the court reasoned that "[i]f pendency of a criminal action is a legitimate reason for the delayed filing of a forfeiture proceeding, then retention of the subject vehicle without a hearing, while the criminal
For reasons discussed more fully below, we disagree with these courts' conclusions. Contrary to the district court's determination in the present case, a warrantless arrest by itself does not constitute an adequate, neutral "procedure" for testing the City's justification for continued and often lengthy detention of a vehicle which may be owned by the arrestee or by someone entirely unconnected with the conduct that gave rise to the arrest. Further, to say that the forfeiture proceeding, which often occurs more than a year after a vehicle's seizure, represents a meaningful opportunity to be heard at a meaningful time on the issue of continued impoundment is to stretch the sense of that venerable phrase to the breaking point. We also consider it a non sequitur to hold, as the Grinberg court did, that because postponing the commencement of a forfeiture action pending the underlying criminal proceeding may not offend due process, retention of the seized vehicle without a hearing throughout that same period, or longer, is constitutionally permissible. The issues of a speedy trial and a prompt retention hearing are not parallel in this context, particularly when less restrictive methods for protecting the City's interest in the allegedly offending res are available. Cf. Lee v. Thornton, 538 F.2d 27, 32 (2d Cir.1976) ("Deprivation of means of transportation for [substantial] periods requires an opportunity to be heard."); DeBellis v. Property Clerk, 79 N.Y.2d 49, 57, 580 N.Y.S.2d 157, 161, 588 N.E.2d 55 (1992) ("The core principle of the Second Circuit's McClendon decision is that, although the government may seize and hold a citizen's property for a variety of reasons in connection with a criminal or related proceeding, once those proceedings have terminated or it is determined that the property is not related to or is otherwise not needed for those proceedings, due process requires that the property be returned upon demand unless the government can establish a new basis for its detention.").
In sum, just as in the attachment and seizure cases cited above, the purpose of requiring due process in the present circumstances "is not only to ensure abstract fair play to the individual," but "more particularly, ... to protect his [or her] use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property." James Daniel Good Real Prop., 510 U.S. at 53, 114 S.Ct. 492 (quotation marks and citation omitted). We conclude that plaintiffs have a right under the Fourteenth Amendment to ask what "justification" the City has for retention of their vehicles during the pendency of proceedings, cf. id. at 56, 61, 114 S.Ct. 492, and to put that question to the City at an early point after seizure in order to minimize any arbitrary or mistaken encroachment upon plaintiffs' use and possession of their property.
B. Special Due Process Concerns in the Present Case
Our concern that plaintiffs be provided an early opportunity to test the propriety of the City's retention of their vehicles, after seizure pursuant to N.Y.C.Code § 14-140 and prior to any eventual civil forfeiture judgment, is heightened by several factors. These factors include the temporal gap that typically exists between seizure of the vehicle and the forfeiture proceeding, the inability of innocent owners to challenge promptly the City's retention of their vehicles pendente lite, and the inadequacy of other suggested remedies for providing prompt post-seizure review
1. The Temporal Gap Between Seizure and Forfeiture Proceedings
N.Y.C.Code § 14-140 and the applicable rules leave a significant temporal gap between the moment a vehicle is seized and the time the City commences forfeiture proceedings. Although it is possible for the City to initiate a forfeiture action earlier, it need not bring such an action until twenty-five days after a claim is made for the vehicle. 38-A R.C.N.Y. § 12-36(a) ("If a timely demand is made for the return of the property before the forfeiture proceeding is instituted, such proceeding shall be brought no later than ... within 25 days after the date of demand.").
Many state forfeiture statutes, unlike N.Y.C.Code § 14-140, provide an early opportunity to challenge the governmental authority's probable cause for seizing property or the legitimacy of its retaining seized property during the pendency of proceedings. Florida's contraband forfeiture statute is one example. In upholding the Florida statute in a case involving police seizure of a vehicle from a public place,
Fla. Stat. § 932.703(2)(a); see also Cochran v. Harris, 654 So.2d 969, 972 (Fla.Dist. Ct.App.1995) (holding that a delay of twenty-three days beyond the ten-day limit for a hearing under § 932.703 violated the claimants' right to due process); cf. Ariz. Rev.Stat. § 13-4310(B) (providing that, upon timely application by an owner of or interest holder in property threatened with forfeiture, the court "may issue an order to show cause to the seizing agency for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists"); Cal. Health & Safety Code § 11488.4(h) (providing that "[i]f there is an underlying or related criminal action, a defendant may move for the return of the property [threatened with civil forfeiture] on the grounds that there is not probable cause to believe that the property is forfeitable...."). Nothing like the procedural safeguards contained in the Florida contraband forfeiture act and similar state statutes is built into the New York forfeiture law.
In addition, many state statutes afford avenues of interim relief for claimants who are adversely affected by seizure and retention of property. For example, the Florida contraband forfeiture statute provides that if the court determines that probable cause exists to seize property, "the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding." Fla. Stat. § 932.703(2)(d). These means include "a bond or other adequate security equivalent to the value of the property." Id.; cf. Ariz.Rev.Stat. § 13-4306(G) ("An owner of property seized for forfeiture may obtain the release of the seized property by posting... a surety bond or cash...."); Cal. Health & Safety Code § 11492(c) (providing for various remedies to preserve the status quo pendente lite, including "a surety bond or undertaking to preserve the property interests of the interested parties"); N.J. Stat. Ann. § 2C:64-3(g) (providing that persons with an interest in property seized for forfeiture, except defendants prosecuted in connection with the seized property, may, after posting a bond, secure release of the property pending the forfeiture action). Again, no protections for a claimant's practical interests in seized property are provided for under the New York forfeiture law.
2. Seizure of Property of Innocent Owners
With respect to innocent owners, the City's authority to seize property may be
The forfeiture provision operates against those persons who "shall not be deemed to be the lawful claimant" to the property that has been seized by the police department. N.Y.C.Code § 14-140(e)(1).
In sum, there is a heightened potential for erroneous retention where an arrestee, whether for DWI or some other suspected criminal conduct, is not the owner of the seized vehicle. The plight of innocent owners, as exemplified by the experience of plaintiff Sandra Jones, persuades us that an early retention hearing following seizure under N.Y.C.Code § 14-140 is constitutionally required.
3. Other Suggested Remedies Do Not Provide Prompt Post-Seizure Review.
In prosecuting vehicle forfeiture actions under N.Y.C.Code § 14-140, the City has consistently opposed motions for interim relief in the form of a retention hearing. For example, in its Memorandum of Law opposing a motion for an "immediate retention hearing" in the case of Property Clerk v. Ali, the City stated that
Memorandum of Law in Support of Plaintiff's Opposition to an Immediate Retention Hearing, at 12, Property Clerk v. Ali, No. 413408/99 (Sup.Ct.N.Y.Co.). In Ali, as here, the City maintained that due process was satisfied by a resolution of the merits at the eventual civil forfeiture hearing.
Nevertheless, defendants here suggest that plaintiffs may assert their constitutional rights and challenge the City's continued retention of their vehicles through the procedural means of a Request for Judicial Intervention ("RJI") or an Article 78 proceeding brought under New York state law. We disagree. Under current law, any review of the legitimacy of the City's continued retention of a vehicle would likely come, at the earliest, months after its seizure. This delay is a result, first, of the City's need to initiate forfeiture proceedings. Assuming that a claimant requests the return of the property immediately upon seizure by the police, the City has twenty-five days in which to initiate proceedings. Only after a civil forfeiture proceeding is commenced and process is served can an owner submit a RJI. See 22 N.Y. Comp.Codes R. & Regs. § 202.6(a). Along with the RJI, a claimant files a request for a preliminary conference. See id. § 202.12(a) ("If the action has not been assigned to a judge, the party shall file a request for judicial intervention together with the request for a preliminary conference."). Under the New York rules, a "preliminary conference" is held no later than forty-five days from the request "unless the court orders otherwise." Id. § 202.6(b). The rules do not explicitly permit a determination of probable cause or the legitimacy of continued retention at the preliminary conference, or even provide for the taking of evidence, indicating that, at most, the preliminary conference may serve (as plaintiffs suggest) to set a future date for a probable cause hearing.
The City also suggests that an Article 78 proceeding under New York state law is available to claimants to redress any constitutional grievances. Requiring plaintiffs to resort to an Article 78 proceeding, however, would place the onus on each plaintiff to bring a separate civil action in order to force the City to justify its seizure and retention of a vehicle. This civil action provides the "[r]elief previously obtained by writs of certiorari to review, mandamus or prohibition." N.Y. C.P.L.R. 7801. To petition for mandamus, a claimant
The City cites Grinberg v. Safir as proof that relief is currently available in an Article 78 proceeding. To challenge the City's forfeiture proceeding and retention of his vehicle, the petitioner in Grinberg filed an Article 78 action and, with it, a request for a temporary restraining order. Although the court held argument only two days after the action was filed, it denied the temporary restraining order, observing that "[l]ikely inconvenience is not proof of immediate and irreparable injury," Grinberg, 181 Misc.2d at 447 n. 1, 694 N.Y.S.2d at 320 n. 1, and eventually decided the case in favor of the City more than two months later.
In sum, we conclude that the suggested remedy of an Article 78 proceeding does not provide a prompt and effective means for claimants to challenge the legitimacy of the City's retention of their vehicles pendente lite. Cf. Fuentes, 407 U.S. at 80, 92 S.Ct. 1983 (finding unconstitutional a Pennsylvania statute that "allows a post-seizure hearing if the aggrieved party shoulders the burden of initiating one"). Furthermore, inasmuch as plaintiffs claim that the federal Constitution requires the state court to offer a remedy that is currently not available under state or local law, this constitutional challenge need not proceed through the state court before it reaches the federal courts. See Kraebel v. N.Y. City Dep't of Hous. Pres. & Dev., 959 F.2d 395, 404-06 (2d Cir.1992) (addressing the claim that an Article 78 proceeding provided all the process plaintiff was due, and finding that "[i]t is well-established that [42 U.S.C.] § 1983 generally allows plaintiffs with federal or constitutional claims the right to sue in federal court without first resorting to state judicial remedies"); cf. Logan, 455 U.S. at 432, 102 S.Ct. 1148 ("Each of our due process cases has recognized, either explicitly or implicitly, that because minimum procedural requirements are a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.") (quotation marks and alterations omitted).
IV. The Mathews v. Eldridge Inquiry
The Supreme Court has set forth three factors to weigh in deciding whether the demands of the Due Process Clause are satisfied where the government seeks to maintain possession of property before a final judgment is rendered. See Mathews, 424 U.S. at 335, 96 S.Ct. 893. These factors should be used to evaluate the adequacy of process offered in post-seizure, pre-judgment deprivations of property in civil forfeiture proceedings. Cf. James Daniel Good Real Prop., 510 U.S. at 53, 114 S.Ct. 492 (finding that the Mathews inquiry "provides guidance" in determining whether to "tolerate" an exception to the rule requiring pre-deprivation notice and hearing). The factors include (1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the value of other safeguards; and (3) the government's interest.
A. The Private Interest Affected
The first factor to be considered in the Mathews inquiry is "the private interest affected by the official action." Mathews, 424 U.S. at 335, 96 S.Ct. 893.
The particular importance of motor vehicles derives from their use as a mode of transportation and, for some, the means to earn a livelihood. An "individual has an important interest in the possession of his [or her] motor vehicle," which is "often his [or her] most valuable possession." Lee, 538 F.2d at 31; see also Perry v. McDonald, 280 F.3d 159, 174 (2d Cir. 2001) (noting that an individual's interest in driving a vehicle represents a due process concern); Coleman v. Watt, 40 F.3d 255, 260-61 (8th Cir.1994) (stating, in the course of applying the Mathews factors to impoundment of a car under state law, that "[a]utomobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and recreation as well as to the daily necessities of life"); Stypmann v. City & County of San Francisco, 557 F.2d 1338, 1342-43 (9th Cir. 1977) (finding a "substantial" interest in the "uninterrupted use of an automobile," upon which the owner's "ability to make a living" may depend); cf. Justice Robert H. Jackson, The Task of Maintaining Our Liberties: The Role of the Judiciary, 39 A.B.A.J. 961, 963 (1953) ("My equal right to drive an automobile may be only a claim to use of property, but it concerns my personal freedom as well.").
Other considerations as well bear on the importance of the private interest at stake. One is the availability of hardship relief under the applicable law. Cf. Dixon v. Love, 431 U.S. 105, 113, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977) (noting the availability, under an Illinois statute, of provisions for "hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges"). Under the New York City Civil Administrative Code, no provision is made for situations in which the seizure and retention of a vehicle would cause particular hardship. See N.Y.C.Code § 14-140 (authorizing seizure of all property used as an instrumentality of crime).
For these reasons, we cannot agree with the district court's cursory assessment of the interest at stake based solely on its observation that the seizure of the vehicles occurred "in a jurisdiction that abounds in mass transit facilities." Krimstock, 2000 WL 1702035, at *6. The seizure authority under the statute extends not only to cars registered in New York City, but to any found there; it also encompasses commercial as well as noncommercial vehicles. If the named class members serve as any indication, motor vehicle use is often found among those for whom mass transportation is inadequate. Valerie Krimstock, for example, states that the seizure of her vehicle hindered her from traveling from her residence in the Bronx to her job in North Tarrytown and from visiting her daughter who suffers from mental illness and lives in Pennsylvania. The seizure and retention of Clarence Walters' vehicle made it difficult, he reports, to reach his construction job sites — some located in areas of Long Island or New Jersey inaccessible by mass transit-and as a consequence he lost a certain amount of work. James Webb, a 77-year-old retiree, states that the seizure and retention of his vehicle made it difficult for him and his wife to see their doctors and to visit friends, and prevented him from driving his granddaughter to school.
B. The Risk of Erroneous Deprivation Through the Procedures Used and the Probable Value of Other Safeguards
The second factor to be considered under the Mathews test is "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." Mathews, 424 U.S. at 335, 96 S.Ct. 893. The particular deprivation with which we are concerned here is the City's post-seizure, pre-judgment retention of plaintiffs' vehicles. The district court concluded that the procedures used by the City — a warrantless arrest and the ultimate forfeiture proceeding-adequately protect plaintiffs against erroneous deprivation of their vehicles. Krimstock, 2000 WL 1702035, at *6-*7. We are troubled by this conclusion. Neither the arresting officer's unreviewed probable cause determination nor a court's ruling in the distant future on the merits of the City's forfeiture claim can fully protect against an erroneous deprivation of a claimant's possessory interest as his or her vehicle stands idle in a police lot for months or years.
Nevertheless, we conclude that, on balance, the second Mathews factor weighs in favor of the City. We acknowledge that the risk of erroneous seizure and retention of a vehicle is reduced in the case of a DWI owner-arrestee, because a trained police officer's assessment of the owner-driver's state of intoxication can
Yet the City's victory on the second Mathews factor is a narrow one. As noted earlier, the risk of erroneous deprivation that is posed to innocent owners is a substantial one. Moreover, our inquiry into the risk of error is partly informed by the City's pecuniary interest in the outcome of § 14-140 proceedings. As the Supreme Court has observed, greater procedural safeguards are "of particular importance ... where the Government has a direct pecuniary interest in the outcome of the proceeding." James Daniel Good Real Prop., 510 U.S. at 55-56, 114 S.Ct. 492; cf. United States v. Funds Held in the Name or for the Benefit of Wetterer, 210 F.3d 96, 110 (2d Cir.2000) ("We have previously observed the government's `virtually unchecked use of the civil forfeiture statutes and the disregard for due process that is buried in those statutes.'") (quoting United States v. Statewide Auto Parts, Inc., 971 F.2d 896, 905 (2d Cir.1992)).
The Supreme Court has expressed additional concern when, as here, the "erroneous deprivation" cannot be recompensed by the claimant's prevailing in later proceedings:
James Daniel Good Real Prop., 510 U.S. at 56, 114 S.Ct. 492 (quoting Doehr, 501 U.S. at 15, 111 S.Ct. 2105); cf. Shapiro, 424 U.S. at 629, 96 S.Ct. 1062 (noting that where irreparable injury may result from a deprivation of property pendente lite, "the Due Process Clause requires ... an opportunity for some kind of predeprivation or prompt post-deprivation hearing at which some showing of the probable validity of the deprivation must be made"). In contrast, for example, to benefits for which full retroactive relief is awarded if a plaintiff ultimately prevails, see, e.g., Mathews, 424 U.S. at 340, 96 S.Ct. 893, an owner cannot recover the lost use of a vehicle by prevailing in a forfeiture proceeding. The loss is felt in the owner's inability to use a vehicle that continues to depreciate in value as it stands idle in the police lot. Cf. Property Clerk v. Duck Jae Lee, 183 Misc.2d 360, 363, 702 N.Y.S.2d 792, 795 (Sup.Ct.N.Y.Co.2000) (permitting a secured lender to intervene in a vehicle forfeiture proceeding brought against a DWI arrestee who had defaulted on monthly car payments, so that "the value of the subject car will not continue to depreciate if plaintiff lets the action languish").
In sum, because we recognize that the risk of erroneous deprivation in the context of DWI owner-arrestees is in many cases a reduced one, we conclude that the second Mathews factor weighs in favor of the City. The scales are very nearly in equipoise, however, in light of the comparably greater risk of error that is posed to innocent owners, the City's direct pecuniary interest in the outcome of forfeiture proceedings, and the lack of adequate recompense for losses occasioned by erroneous seizures of vehicles.
C. The Government's Interest
The third Mathews factor examines "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335. The City argues that it has three principal interests in continuing to retain the vehicles post-seizure and pre-judgment.
The first, and the most compelling among those the City has adduced, is to prevent a vehicle from being sold or destroyed before a court can render judgment in future forfeiture proceedings. The City cites Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), for the proposition that when property is easily transportable to another jurisdiction, the City must retain custody pending resolution of the forfeiture proceedings. The Supreme Court, indeed, recognized that immediate seizure was necessary in Calero-Toledo because otherwise the yacht at issue "might have disappeared had the Government given advance warning of the forfeiture action." James Daniel Good Real Prop., 510 U.S. at 57, 114 S.Ct. 492. We note initially that the Puerto Rican statute under which the yacht in Calero-Toledo was seized and forfeited provided that notice of the seizure must be served upon interested parties within ten days following the seizure and that those parties have fifteen days following service within which to challenge the seizure by serving a complaint
The critical difference between Calero-Toledo and the present case is that plaintiffs' vehicles have already been seized and are in the hands of the police. Just as with real property seized by the government in forfeiture proceedings, there is no danger that these vehicles will abscond. See James Daniel Good Real Prop., 510 U.S. at 56-57, 114 S.Ct. 492 (discussing the need for seizure of movable property). Plaintiffs seek a determination only of whether continued retention of their vehicles by the City is valid and justified. Continued retention may be unjustified when other means of restraint would accomplish the City's goals. See id. at 59, 114 S.Ct. 492 ("In the usual case, the Government ... has various means, short of seizure, to protect its legitimate interests" in forfeitable property). To ensure that the City's interest in forfeitable vehicles is protected, claimants could post bonds, or a court could issue a restraining order to prohibit the sale or destruction of the vehicle. See id. at 58-59, 114 S.Ct. 492 (suggesting judicial means to ensure that real property is not sold or destroyed pendente lite).
A second reason offered by the City for maintaining custody of vehicles prior to judgment in forfeiture proceedings is that the City's in rem jurisdiction over the vehicles depends upon its unbroken possession from seizure to judgment. The Supreme Court has held, however, that possession of a res during the entire course of the proceedings is unnecessary to preserve jurisdiction. See Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 88-89, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992) ("We hold that, in an in rem forfeiture action, the Court of Appeals is not divested of jurisdiction by the prevailing party's transfer of the res from the district."). Noting that the in rem rules had their origin in admiralty law, where a court established its jurisdiction by seizure, the Supreme Court found that "the court must have actual or constructive control of the res when an in rem forfeiture is initiated." Id. at 87, 113 S.Ct. 554 (emphasis added); cf. The Palmyra, 25 U.S. (12 Wheat.) 1, 10, 6 L.Ed. 531 (1827) (Story, J.) ("Whenever a stipulation [bond] is taken in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the Court, which it could properly exercise if the thing itself were still in its custody.").
Even if driving while intoxicated were considered a matter of "executive urgency," the response the City has chosen, requiring the impoundment of vehicles until forfeiture proceedings are terminated, is ill-suited to address the urgency. While initial seizure of a vehicle serves the constructive purpose of keeping an individual from driving in an inebriated condition, that purpose often loses its basis in urgency once the individual has regained sobriety on the morrow.
Finally, the City's asserted interest in removing dangerous drivers from the road is weakened if it extends not to all vehicles seized in connection with DWI arrests, but only to those that might yield an attractive price at auction. The November 1988 Forfeiture Guide produced by the Legal Bureau of the City of New York Police Department instructs that "[c]ertain categories of property do not warrant forfeiture litigation due to their small value or
D. Balancing the Mathews v. Eldridge Factors
Balancing the Mathews factors, we find that the Fourteenth Amendment guarantee that deprivations of property be accomplished only with due process of law requires that plaintiffs be afforded a prompt post-seizure, pre-judgment hearing before a neutral judicial or administrative officer to determine whether the City is likely to succeed on the merits of the forfeiture action and whether means short of retention of the vehicle can satisfy the City's need to preserve it from destruction or sale during the pendency of proceedings.
In James Daniel Good Real Property, the Supreme Court concluded that to seize real property without notice and hearing, the "Government must show that less restrictive measures — i.e., a lis pendens, restraining order, or bond — would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property." James Daniel Good Real Prop., 510 U.S. at 62, 114 S.Ct. 492; cf. Statewide Auto Parts, 971 F.2d at 905 (urging district courts "whenever possible ... [to] favor less drastic measures, such as occupancy agreements, bonds, receiverships, lis pendens, or other means for preserving the status quo ante seizure until the criminality underlying the claimed forfeiture can be established in the context of a proper criminal proceeding with its attendant constitutional protections to the accused").
E. Inapplicability of United States v. $8,850 and the Speedy Trial Test
The City argues that the Mathews v. Eldridge balancing test is displaced by the Supreme Court's decision to apply the speedy trial test, and not the Mathews inquiry, in examining the constitutionality of any delay in the return of property subject to future civil forfeiture proceedings. See United States v. $8,850, 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983) (applying the speedy trial test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in finding that an eighteen-month delay in filing a customs forfeiture action did not violate constitutional due process guarantees).
We disagree. As discussed in Section III.A above, plaintiffs' claim does not concern the speed with which civil forfeiture proceedings themselves are instituted or conducted. Instead, plaintiffs seek a prompt post-seizure opportunity to challenge the legitimacy of the City's retention of the vehicles while those proceedings are conducted. The application of the speedy trial test presumes prior resolution of any issues involving probable cause to commence proceedings and the government's custody of the property or persons pendente lite, leaving only the issue of delay in the proceedings. The impoundment of property — or the incarceration of a criminal defendant — certainly increases the hardship worked by any delay. The Constitution, however, distinguishes between the need for prompt review of the propriety of continued government custody, on the one hand, and delays in rendering final judgment, on the other.
V. The Prompt Vehicle Retention Hearing
As a remedy, we order that claimants be given a prompt post-seizure retention hearing, with adequate notice,
Although we decline to dictate a specific form for the prompt retention hearing, we hold that, at a minimum, the hearing must enable claimants to test the probable validity of continued deprivation of their vehicles, including the City's probable cause for the initial warrantless seizure. In the absence of either probable cause for the seizure or post-seizure evidence supporting the probable validity of continued deprivation, an owner's vehicle would have to be released during the pendency of the criminal and civil proceedings.
We hasten to point out that we do not envision the retention hearing as a forum for exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.
On remand, in addition to fashioning appropriate relief, the district court should ascertain how many of the named plaintiffs have recovered their vehicles from the Property Clerk and determine whether their claims have thereby been rendered moot.
In conclusion, we hold that promptly after their vehicles are seized under N.Y.C.Code § 14-140 as alleged instrumentalities of crime, plaintiffs must be given an opportunity to test the probable validity of the City's deprivation of their vehicles pendente lite, including probable cause for the initial warrantless seizure. We remand to the district court to rule on plaintiffs' request to certify their class pursuant to Fed.R.Civ.P. 23, and to formulate, in consultation with the parties, the appropriate
Vacated and remanded.
Some legislatures have sought to mitigate the depreciation of property values and other costs incurred through delays of civil forfeiture proceedings. See, e.g., Ariz.Rev.Stat. § 13-4310(I) ("Before staying civil discovery [in a forfeiture proceeding until a related criminal trial is concluded], the court shall make adequate provision to prevent any loss or expense to any victim or party resulting from the delay, including loss or expense due to maintenance, management, insurance, storage or preservation of the availability of the property or due to depreciation in the value of the property.").
N.Y.C.Code § 14-140(e)(1). The statute also deems not a lawful claimant any "person who derives his or her claim in any manner from or through any such person." Id. This formulation evidently could include other potentially innocent owners and interest holders, such as secured lenders, mortgagees, and lienholders, as well as purchasers, inheritors, and other transferees of property interests.
Moreover, in contrast to § 14-140, the primary federal civil drug forfeiture statute, 21 U.S.C. § 881, contained an express "innocent owner" defense, which stated that "no conveyance shall be forfeited ... to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner." 21 U.S.C. § 881(a)(4)(C). Replacing this provision, the Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185, 114 Stat. 202 (codified as amended at 18 U.S.C. § 983), creates a uniform innocent owner defense whereby a claimant may affirmatively prove innocent ownership by a preponderance of the evidence. 18 U.S.C. § 983(d). The statute specifically mentions owners who "did not know of the conduct giving rise to forfeiture"; bona fide purchasers or sellers for value; claimants who acquired a property interest through marriage, divorce, or legal separation; spouses or legal dependents who acquired property by inheritance or probate; and joint tenants and others with a partial interest in property.