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Washington v. Marion County Prosecutor

United States Court of Appeals, Seventh Circuit

February 26, 2019

Leroy Washington, on his own behalf and on behalf of a Class of those similarly situated, Plaintiff-Appellee,
v.
Marion County Prosecutor, Defendant-Appellant.

          Argued November 29, 2018

          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.

          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 multiple Indiana crimes, including dealing in marijuana. Police seized his vehicle for forfeiture. Washington brought a class-action constitutional challenge. The district court declared 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 judgment.

         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 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 ...


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