Leroy Washington, on his own behalf and on behalf of a Class of those similarly situated, Plaintiff-Appellee,
Marion County Prosecutor, Defendant-Appellant.
November 29, 2018
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.
Flaum, Ripple, and Manion, Circuit Judges.
Manion, Circuit Judge.
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.
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)
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
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
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
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
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.
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 ...