Professor Shelley Saxer, Forfeiture Takings, Police Power, and Necessity Destruction -- University of Miami Law Review

Professor Shelley Ross Saxer's article, Forfeiture Takings, Police Power, and Necessity Destruction, (SSRN) is published in the University of Miami Law Review, 80 U. Miami L. Rev. 147 (2025). The article considers reassessing the history of forfeiture law and its applicability to modern law enforcement practices.

Abstract of Forfeiture Takings, Police Power, and Necessity Destruction

Civil forfeiture laws allow law enforcement to seize property when there is probable cause it has been used or possessed in violation of legal rules, often before an owner has a chance to contest the government’s seizure in court. In the criminal context, forfeiture is typically an in personam action that requires a criminal conviction and is part of a defendant’s sentence. In the civil context, however, forfeiture is an in rem proceeding brought against the property derived from or used to commit an offense––not against the person who committed the offense. As such, a civil forfeiture may not require a criminal conviction or predeprivation hearing, and, under the “guilty property” theory, developed in England before eventually being incorporated into the United States judicial system, may even apply to property whose owner may be wholly innocent of any wrongdoing. In many cases, the value of the property seized does not justify hiring a lawyer even if the owner could afford one. Law enforcement then uses these assets to supplement their operations budgets, which, in turn, may alter prosecutorial priorities and approaches.

The focus of this Article is how the Takings Clause should apply to civil forfeiture given the recent Supreme Court decision in Tyler v. Hennepin County addressing tax forfeitures. In many of the civil forfeiture cases, the takings claims have been rejected based on the “police power” exception. Similarly, courts have dismissed takings claims to recover for the police damage or destruction of the property of innocent owners during law enforcement activity based on the “police power” or the “necessity” exception to takings law. The Article analyzes and denounces the courts’ continuing use of the nonsensical “police power” and “necessity” exceptions to the Takings Clause to dismiss takings claims against the government for civil forfeiture and police destruction of private property. In addition to examining the historical background of criminal and civil forfeitures, the Article discusses due process challenges to the seizure and forfeiture of property based on the divide between civil and criminal proceedings and examines the role that excessive fines challenges play in civil forfeitures.

The Article proposes a framework suggesting we discard the legal fiction of “guilty property” theory in favor of a rebuttable presumption presented at a predeprivation due process hearing that any forfeiture, whether civil or criminal, be treated as punitive and therefore subject to appropriate due process requirements and excessive fines challenges. If the government fails to return property to an innocent owner, retains more property than required to compensate the government, fails to return property held to be used as evidence, or fails to promptly return seized property in the same condition to criminal defendants whom the government fails to prosecute or whom the jury acquits, the government should be responsible for paying just compensation for a taking under the Fifth Amendment. Any fines or civil penalties associated with a compensatory forfeiture such as the tax forfeiture in Tyler v. Hennepin County will be subject to an excessive fines challenge if they are beyond the taking of the surplus proceeds over the debt.