Fatima Hussein , IndyStar 10:17 p.m. EST November 27, 2016
Criminal defense attorney Jeff Cardella wears his beliefs on his sleeve, in the form of a pair of large, pastel yellow “Don’t Tread On Me” cuff links.
In between explanations of his libertarian principles, the 34-year-old Cardella said his clients may not always be the most sympathetic individuals, but they deserve their rights, too.
Cardella filed a federal class-action lawsuit this month, on behalf of Leroy Washington, whose vehicle was taken by police in September. Washington was arrested and charged with resisting law enforcement, dealing in marijuana and obstruction of justice.
The suit argues that the Indiana law that allows police to seize property from alleged drug dealers and others, regardless of their guilt or innocence, violates criminal defendants’ constitutional right to due process.
It “allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure preforfeiture hearing to challenge the seizure,” according to the complaint.
It’s an argument that could, if it prevails in court, have a sweeping effect on law enforcement.
Criminal defense attorney Jeff Cardella stands in front of the Justice Statue at the Birch Bayh Federal Building and United States Courthouse on Tuesday, Nov. 22, 2016. (Photo: Michelle Pemberton / IndyStar)
According to Justice Department data, Indiana State Police seized more than $2.2 million in personal property from Indiana residents in 2014. In Marion County, the Indianapolis Metropolitan Police Department seized roughly $48,022 in personal property that year, according to the data.
The suit, limited specifically to vehicles in IMPD possession, does not seek monetary damages. Rather, Washington wants law enforcement to give back his vehicle, and the vehicles of countless individuals whose property was seized under Indiana’s civil forfeiture laws.
Cardella also seeks a reduction in the period of time law enforcement can hold property without stating a reason for seizing it.
“It’s a matter of protecting the constitutional rights of my clients,” said Cardella, a professor at Indiana University’s Robert H. McKinney School of Law, who is vehemently opposed to “unjust government taking.”
Marion County Prosecutor Terry Curry, Mayor Joe Hogsett and IMPD Police Chief Troy Riggs are named defendants in the complaint.
Curry told IndyStar that there are a variety of reasons why the law, as it exists today, is reasonable and constitutional.
“There are protections built in the law to protect innocent people,” Curry said. “An aggrieved party could ask for an emergency hearing to get their property back.”
However, experts and civil libertarians such as Cardella argue that civil forfeiture laws may be due for U.S. Supreme Court review.
Civil forfeiture around the country
Today, all states allow for forfeiture and there are more than 400 federal forfeiture statutes. Legal opinions written on the matter show an inconsistency as to what is and is not a violation of an individual’s property rights.
On a federal level, writing for a six-justice majority in Kaley v. United States, U.S. Supreme Court Justice Elena Kagan stated that a criminal defendant indicted by a grand jury has essentially no right to challenge the forfeiture of her assets, even if the defendant needs those very assets to pay lawyers to defend her at trial.
The dissenters in the case were strange bedfellows, ranging from traditionally conservative Chief Justice John Roberts and the more liberal Justices Stephen Breyer and Sonia Sotomayor.
There is also room for interpretation at the state level.
In Indiana, former Chief Justice Randall Shepard, who wrote the Supreme Court ruling in another civil forfeiture case, said criticisms of asset seizure may be legitimate in some places. But instances vary from one jurisdiction to another. “There are places where it’s used more forcefully than most people would think is appropriate,” Shepard said.
Because the process is characterized as “civil forfeiture” rather than “criminal forfeiture,” he said, property can be taken regardless of the guilt or innocence of the accused party, which raises concerns.
“The relative ease of effecting such forfeiture and the disposition of the assets have become a matter of public note,” Shepard wrote.
Washington, through Cardella, argues that the length of time that police have to possess individuals’ property unduly burdens property owners.
Under Indiana law, the executive branch can hold a vehicle for up to six months. If the state decides to file a forfeiture claim against the vehicle within the first 180 days, the vehicle is held indefinitely until the case is concluded, which can often be several additional months, according to court documents.
“I think there is a widespread misunderstanding (that civil forfeiture) is not a unilateral act,” Curry told IndyStar. He explained that most of individuals whose property is seized are drug dealers and the like.
However, case law throughout the country suggests that Indiana’s laws — when it comes to the length of time that law enforcement can hold onto a vehicle — may be unconstitutional.
In a 2002 U.S. Court of Appeals opinion authored by Sotomayor, the court held that the Constitution demanded a speedy process to determine whether the government was likely to win the forfeiture claim.
In the case, Krimstock v. Kelly, three automobile owners challenged a New York City policy that allowed the city to seize motor vehicles from individuals accused of certain crimes involving motor vehicles and then to hold the vehicles — sometimes for years — in hopes of gaining title in civil forfeiture proceedings.
The U.S. Supreme Court has passed on making a substantive ruling on civil forfeiture matters, specifically pertaining to vehicles.
In some cases, police seize cars, homes — with no charges filed
Challenges coming from all sides
And Cardella’s isn’t the only suit challenging Indiana’s statute.
Sam Gedge, an attorney at the Institute for Justice, a libertarian nonprofit based in Arlington, Va., filed a lawsuit in February (Jeana M. Horner, Dennis Jack Horner, et al. v. Terry R. Curry, Marion County Prosecutor’s Office, et al.) in Marion Superior Court charging the IMPD and prosecutors with violating the Indiana Constitution by not forwarding all civil forfeiture proceeds to the state’s common school fund.
Instead, the county is keeping 100 percent of the money in a “policing for profit” scheme, the institute said.
Indy civil forfeiture lawsuit will proceed
The Marion County Prosecutor’s Office and the Indianapolis Metropolitan Police Department divvy up all the money received from civil forfeitures based on a 30/70 split, according to the lawsuit.
The case has yet to be decided.
Regarding Washington and Cardella’s lawsuit, Gedge said, “There are two fundamental problems which make it a serious assault on property rights: It allows law enforcement to seize property, that’s ripe for abuse. And what makes the process more pernicious, (is that law enforcement) is seizing a direct stake in property.”
Cardella, said while it’s not likely that the case will go to the Supreme Court, “I hope it does.”
Cardella, who lives in a rural area outside of Indianapolis, said he prizes his privacy and freedoms as an American.
Citing the Join, or Die political cartoon of a snake cut into pieces drawn by Benjamin Franklin in 1754, Cardella believes in the collective power of the people to unite against tyranny and unfairness.
He sees current civil forfeiture laws as the government’s way of trampling on citizens’ rights.
“This is the kind of case that made me want to go to law school.”