Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 6423-Elaine E. Bucklo, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge
Before BAUER, POSNER, and EVANS, Circuit Judges.
The Chicago Police Department, acting under the Illinois Drug Asset Forfeiture Procedure Act (DAFPA), 725 ILCS 150/1 et seq. (2004), seized property belonging to the plaintiffs. In response, the plaintiffs filed this case, under 42 U.S.C. § 1983, claiming that when property is seized under the Act, due process requires that they be given a prompt, post-seizure, probable cause hearing, even though the DAFPA does not require any such hearing.
In the district court, the plaintiffs conceded, based on our decision in Jones v. Takaki, 38 F.3d 321 (7th Cir. 1994), that their complaint should be dismissed. It was. And they are now here asking us to re-examine Jones in light of United States v. James Daniel Good Real Property, 510 U.S. 43 (1993), and Mathews v. Eldridge, 424 U.S. 319 (1976), two cases that predate Jones but were not cited in that opinion.*fn1
DAFPA permits the seizure of vehicles, aircraft, and vessels along with money involved in certain drug crimes. The property may be seized by a law enforcement officer without a warrant where there is probable cause to believe it was involved in a drug crime and is, accordingly, subject to forfeiture. When property is seized, forfeiture proceedings must be instituted. As relevant here, the law enforcement agency that seizes the property-in this case, the Chicago police department-must, within 52 days, notify the state's attorney of the seizure and the circumstances giving rise to the seizure. Once the state's attorney receives notice of the seizure, she must do one of two things, depending on the value of the property seized. If it is worth more than $20,000, she must file judicial in rem forfeiture proceedings within 45 days. If the nonreal property is worth less than $20,000, she must notify the owner, within 45 days, regarding a possible forfeiture. The owner then has 45 days in which to file a verified claim to the property with the state's attorney. If a claim is filed and bond is posted, the state's attorney must file judicial-in-rem forfeiture proceedings within 45 days. Thus, under this statutory scheme, for property worth more than $20,000, 97 days can elapse between the seizure of the property and the filing of judicial forfeiture proceedings. For property worth less than $20,000, it could be a maximum of 187 days-though we note that the claimant, by acting swiftly to file a claim, can reduce that time to 142 days. The claim here, as it was in Jones, is that because so much time can elapse before forfeiture proceedings are started, it violates due process not to have a post-seizure/preforfeiture hearing of some type.
We seemed to reject the claim in Jones. But our present reexamination of the issue convinces us that the answer is not so clear. In Jones, our focus was on the issue of class certification. We determined that under United States v. $8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514 (1972), the plaintiffs' claims were not typical of the claims of the class, and class certification was improper. Because the plaintiffs had conceded that, if we used the Barker analysis, summary judgment was properly granted to the defendants, we gave only slight consideration to the merits of the claim and affirmed the judgment for the city. Here, once again, the plaintiffs argue that Good and Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002), establish that the proper due process analysis for their claim is set out in Mathews, rather than in Barker. Their argument is persuasive and prompts us to take another run at the issue.
It has long been understood that forfeiture of personal property, which is easily capable of being moved or concealed, involves different concerns from the forfeiture of real property and does not require a preseizure hearing.
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). A post-seizure hearing is, however, required. The question is the timing of that hearing. In $8,850, 461 U.S. at 562-63, the Court framed the issue as "when a post-seizure delay may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time." The Court determined in that circumstance the appropriate analysis was that in Barker, a case involving a defendant's right to a speedy trial, once proceedings have begun against him:
The Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time.
At 564. The Barker test requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant. A few years later, relying on $8,850, the Court used the Barker test to evaluate administrative proceedings following the seizure by custom agents of a new Jaguar Panther automobile that was not properly declared at the Canadian border (it was purchased in Switzerland, shipped to Vancouver, and stopped at a U.S. border checkpoint in Blaine, Washington). United States v. Von Neumann, 474 U.S. 242 (1986).
As we shall see, there are significant reasons to doubt whether these cases should be controlling in the situation before us. To explain why, we start with Good, even though that decision involves real, not personal property. Drugs and drug paraphernalia were found in defendant Good's Hawaii home. The federal government sought civil forfeiture of the house and the land on the basis that the property had been used in connection with a drug offense. One issue before the Court was whether in the absence of exigent circumstances, the Due Process Clause prohibits the seizure of real property without a prior adversarial hearing. The answer was that a preseizure hearing is required. The Court looked to the Mathews factors: the "private interest affected by the official action; the risk of an erroneous deprivation of that interest through the procedures used, as well as the probable value of additional safeguards; and the Government's interest, including the administrative burden that additional procedural requirements would impose." 510 U.S. at 53.*fn2
Relying in part on Good, the Court of Appeals for the Second Circuit in Krimstock applied the Mathews factors to the seizure of automobiles under New York City's Administrative Code, concluding that a prompt post-seizure retention hearing, with adequate notice, is required for motor vehicle seizures. In other words, after the seizure and before the actual forfeiture proceeding, a hearing must be held to test whether the vehicle can be held. As a basis for its conclusion, the court cited a number of salient factors, including the possibility that there may be an innocent owner of the seized automobile. The importance of an automobile as a mode of transportation and, for some people, a means to earn a living was another important factor in assessing the private interest. Others were the availability of hardship relief and the length of the deprivation. In addition, even if an individual ultimately prevails, an automobile continues to depreciate during the time it is retained. In contrast, the court found that the governmental interest could be adequately protected by a bond or a restraining order to prevent the sale or destruction of the automobile. In short, [P]romptly after their vehicles are seized . . . as alleged instrumentalities of crime, plaintiffs must be given an opportunity to test the probable validity of the City's deprivation of the vehicles pendente lite, including probable cause for the initial warrantless seizure.
The Krimstock court properly, we think, distinguished Von Neumann and $8,850. $8,850 concerns the speed with which the civil forfeiture proceeding itself is begun-a different question from whether there should be some mechanism to promptly test the validity of the seizure. At first glance, Von Neumann seems on point, but there are significant differences between that case and ours. Von Neumann involved proceedings for remission or mitigation under U.S. customs laws, not forfeiture under state law. More importantly, the customs laws allowed procedures for Von Neumann to obtain a speedy release of his automobile prior to the actual forfeiture hearing. For one thing, he could file a motion under Federal Rule of Criminal Procedure 41(e) for the return of his vehicle. He had, in effect, relief similar to that which the plaintiffs in this case seek. In fact, Von Neumann's ...