In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2933
LEROY WASHINGTON, on his own
behalf and on behalf of a Class
of those similarly situated,
Plaintiff-Appellee,
v.
MARION COUNTY PROSECUTOR,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-02980-JMS-DML — Jane Magnus-Stinson, Chief Judge.
____________________
ARGUED NOVEMBER 29, 2018 — DECIDED FEBRUARY 26, 2019
____________________
Before FLAUM, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Indianapolis police stopped a car
driven and owned by Leroy Washington in September 2016.
Washington was arrested and ultimately charged with multi-
ple Indiana crimes, including dealing in marijuana. Police
seized his vehicle for forfeiture. Washington brought a class-
action 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) un-
constitutional. 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 dis-
trict court to address the amendments.
I. Background
Washington was driving a vehicle he owned when an In-
dianapolis police officer pulled him over on September 21,
2016. Washington was arrested and charged with three felo-
nies: dealing in marijuana, resisting law enforcement, and ob-
struction 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 chal-
lenged 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, De-
fendants moved to dismiss the case as moot given the vehi-
cle’s return. Later that month, Washington moved for sum-
mary judgment.
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 provi-
sions of the same chapter) unconstitutional for violating the
due process clauses. The court permanently enjoined Defend-
ants from enforcing it. In particular, the court concluded the
statutory provisions allowing for seizure and retention of ve-
hicles without an opportunity for an individual to challenge
pre-forfeiture deprivation are unconstitutional. The Prosecu-
tor 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 in-
creased the available process, thereby ameliorating any “po-
tential” due process deficiencies identified by the district
court. For example, the Prosecutor argues the amended stat-
ute provides for a probable cause affidavit, a motion for pro-
visional 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 al-
lowing a person interested in a vehicle to challenge pre-forfei-
ture 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 meaning-
less or illusory because the mere filing of a motion by the Pros-
ecutor 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 be-
lieve the vehicle owner had some involvement in the wrong-
doing? Washington maintains that the statute, before and af-
ter the amendments, does not provide due process. In short,
he argues the amendments do not cure the due process defi-
ciency, do not provide any meaningful impact, and do not
moot his claim.
II. Discussion
The district court concluded Indiana’s statutory provi-
sions allowing for seizure and retention of vehicles without
an opportunity to challenge pre-forfeiture deprivation are un-
constitutional. Indiana amended the law, but Washington ar-
gues 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 provi-
sional release. The statute does not require any
expedited process for addressing a motion un-
der [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 power-
ful leverage that can be used to coerce even in-
nocent 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 Jus-
tice 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 Con-
stitution).
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, med-
ical 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 vir-
tual 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 iden-
tified? 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 rede-
fined in light of the amendments.
At present, we express no opinion regarding the constitu-
tionality of the old or new versions of the statute, regarding
mootness, or regarding the class. Also, our argument sum-
maries do not limit the arguments the parties may raise on
remand. We leave latitude to the district court to conduct fur-
ther 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 pro-
ceedings and the reasoning of the district court.
III. Conclusion
We DENY the Prosecutor’s motion to dismiss. We
REMAND this case to the district court for further proceed-
ings consistent with this opinion.