my name is a o brown and i represent juror booker this case is about the government exploring an exception to the due process under the standard due process rules if a deprivation of liberty or property is a function of a statute no post deprivation remedy was a finds the government must first give notice an opportunity to be heard no matter what the subject matter but the supreme court has decided and we have accepted that for if it is a different and so you will see from the district court we have dropped the pre death of asian claims and focus solely on the post operation claims but i think the context is still important in forfeiture proceedings prove that provision hearings are not required they are afraid that the person's got up to abscond the property will come up missing so they allow the government to take the property first and then presumably provide post operation here in minnesota it doesn't work that way when it comes to a vehicle forfeiture the government takes the property the vehicle and then they sit on their hand you have to file a lawsuit and it's not not only file to be careful in minnesota's a packet service they ordinarily you can initiate a lawsuit by simply serving it on the party but the at the extra burden of making you file it in this case which is quite unique which means you incur the filing fee costs and so forth so this is this is what minnesota's chosen to do is to exploit that it damage they have the affirmative obligation to provide t process they have the affirmative obligation and i've cited cases in the brief from circuits across the country in particular i think the seven circuits quote is quite quite apt where they say so i believe it's on pa chapman but in this case did the arrest really occur in may and the first time an attorney said anything about this was in january the following january's at correct i believe that's correct your honor i think i think that your affidavit i believe that's  ct let let's let's let's credit that delay to the to the plaintiff will take charge with that it's the subsequent delay it's i'm sorry it's the lack of due process altogether in other words whether the plaintiff would have filed the lawsuit in the thirty days he still would not have been afforded due process because the system is inherently flawed the district court i think got to the heart of the case and i think the core of the the seven day delay is far too long and that there is really no government interest in postponing a hearing that it has an obligation to provide in the way the district court recognize the common was holding but it had a problem with the fact because this court has never held and in fact this court has held it up as that in king and in other cases that the constitution requires an adequate post deprivation memory recall again it is the city who has the obligation the government has an obligation determine whether a constitutional violation has occurred it is necessary to ask what process has been provided and whether it is constitutionally adequate so certainly minnesota has provided a judicial determination but that doesn't answer the question as before the court is this judicial determination process constitutionally adequate and by the holies of this court it cannot be again coleman is buying seven days and i don't think there's anything magic about seven government even if we start fair over then it already gone back to the creditor you know what it was still impounded by the time and i wrote a letter to the city attorney myself the vehicle was still in custody and we had discussions and in  fact the records show that there was a discussion with a magistrate judge as to whether you know we're going to bring a t r o to stop them from sending it to the back to the creditor because of the lawsuit had been filed and the vehicle was still in possession of the city at the this says if the plenty of had actual notice notice of the availability of an earlier opportunity to be heard but sat on his rights for several days before requesting a hearing then plenty of cannot complain that the city failed to provide a constitutionally prop hearing does that mean you waive this by the period of time in this case no your honor i don't think i don't think coleman was talking in that context about a complete waiver what comment was talking about in that sense was he can't complain about the time he was sitting hands if he could have gotten a hearing sooner and did not then he can't complain and that's why we readily can see that it's not into the first time in which he actually asked for his vehicle back or make some stink about it that the that the clock starts running so you're really attacking the thirty day time limit no i sure because think about where you and i have got that dialogue i think you're attacking the thirty day time period now you're on i'm attacking the overall lack of due process to begin with i disagree  and maybe i should have accepted the premise that the answer but i disagree with the fact that he has to do anything other than ask for and and there are many barriers to starting a lawsuit to get your vehicle back after being arrested for  the cost of it the hiring a lawyer the function of it it's not easy and i've seen several clients struggle with the process so i guess i don't accept the premise that he literally just sat on his hands and if i do accept the premise i only accepted to the point that it gets to an issue of at what point the county get the government to be held liable for not for not responding but is my contention that the the overall process that requires him to similar case in fact this is virtually identical the the court below recognize that and the alvarez case out of the seventh circuit which was vacated it did make its way to the supreme court but then it was vacated because the city of chicago  case by simply returning the vehicles to to the individuals who were going to be more specific under current stock or what of minnesota have to do medicine already of st paul or whoever drafted miller they would have to permit a person an opportunity i don't know a magic number frankly because it's a flexible concept and what right did your client have under the present existing situation he had no he had no rights except the father lost to the county and the process i want to be clear he files a lawsuit the county the government can answer not answer it's up to them he doesn't require them to answer they have taken away twenty days he has to wait twenty days to figure out if they're going to answer because the minnesota rules of civil procedure apply so he's already twenty days in the hole so that suggests that he had done exactly what the count y that the city and the court below suggested he would have already been twenty days in the hole no matter what he did and then he has to wait till after the criminal proceedings are over which take fort for some months unless the prosecutor waves it but unless the prosecutor wave but if you can read from the deposition that that doesn't happen they have no incentive to happen and in fact what happens in practice is they use the forfeiture as pressure on the criminal case hurry up and plead guilty so we give you a card back and so the idea that the prosecutor and even the prosecutor they granted what does that give them is not like the prosecutor can control the court calendar so the prosecutor says ok i agree twenty days later what does the prosecutor have to do i mean i was looking at crims like they're more concerned they're about the innocent owner so let's assume you have a system in place you say i want my car back and what what is the what does this the process what does the city have to do at that point and i don't think just have to show probable let's not pretend like this is just about innocent owners i'm opting out of that particular aspect of the case is about everyone what they should have to do is permit the party an opportunity to challenge whether the government has a right to hold the property and you do you have any object do you have any problem assuming that they do have such a system in place of putting a time when the defense challenge or loses right to challenge the forfeiture no i don't i don't i don't i don't that's i don't have a problem  thirty day time limit you have to let us know what i have and what i think the fundamental constitutional problem with the cases is that no matter what you do if you act perfectly and by the standards established by the the statute and accepted by the district court you're not getting a hearing for over thirty days and likely months into it and you'll be deprived of your property and would only be based on the probable cause determination of a single officer and there's nothing you can do about it that's the fundamental problem the case and i s and i'll say again this case is about fairness cam a government take private property of a citizen sit back on its hands tell you it has it give you the notice about it back on its hands and say to me if you want it back and wait months cause determination b to one is not tested on the memory hearing within five days and on the criminal matter yes on the ground i believe they think it's forty eight hours i'm actually not sure i'm not i'm not absolutely positive but i think it's forty eight hours but they there's no connection between the two the statute is plain that the implied that the forfeiture and the criminal matter are distinct and there is no evidence and in fact i know that the practice is that judges don't consider that you ha criminal judge presiding over a criminal matter he or she is not concerned with this forfeiture he's looking at the four corners of the complaint and saying if there's probable cause for the criminal matter you deal with that on the civil side that's the that's the general proposition miss hampton flowers good morning you may perceive me when you read good morning your honor sir my name is portia hampton flowers i am i'm here on behalf of the city of st paul this matter is really about a first degree driving while impaired and that's where we start and what we what have you heard from the plaintiff council is a concern that due process isn't being satisfied here but there is a distinction between what he's asking for and what due process law requires due process requires notice and an opportunity to be heard before a final deprivation occurs and the due process law doesn't require the provision of a probable cause hearing in addition to and prior to the final adequacy of an inquiry into probable cause cannot wait months or years before civil forfeiture proceeding takes place and you probably look at the opinion tell me how we can rule for you and not be in conflict with a well i would point to the fact that crim stock should be looked at very closely the difference between what happened in chris dock and what's happening with the city of st paul to see with the state statute that's at issue in this case is there are big or defense minnesota statute actually has an innocent owner defense if you are an innocent owner and your vehicle has been used in the commission of a first degree driving while impaired if you show up and you say i am an innocent owner these offenses dry have to pay out three hundred eighty dollars filing fee and i have to wait months and months and months before i get my vehicle back what the record shows with respect to the innocent or defense is with the city of st paul if an innocent owner comes in in i'm an innocent owner they don't have to go through that process if you look at the deposition transcript from judy hanson there is some reference to that and i think the reference is at  but there's also the security in other statutes similar to this that are worded almost identical to this produced or present the certificate of title the city or the state can hold onto the certificate of title because that that's basically the value of the vehicle the concern is that we don't want the vehicle to disappear and we want to you know be able to move forward with the forfeiture but at the same time give the driver the property owner an opportunity to use the car so we do  provided mr booker an earlier remedy six twenty six zero four and six twenty six point two one both of those are statutes that provide for an opportunity for a property owner to come before the district petition for the return of their profit those don't have informal popper's provisions and do they actually i can double check that i don't remember right up front and they they actually might actually they don't know what i think about it i think they don't but your statute does our statute does but with six twenty six o four if you put in a request a written request for the return of the property and you don't receive that property within forty eight hours you can  court and the court will give you a hearing within thirty days now the one problem with bringing up these is these are in your notice don't these have to be in your notice for you now to stand before us and claim these other statutes no your honor because  if no i don't believe that's true it's a statute it's state law and everyone is presume to know the law we do identify for the individual what that what the forfeiture statute requires but that doesn't preclude and it hasn't precluded individuals from that unconstitutional i don't believe it is your honor certainly conflicts with criminal it certainly conflicts with even our coleman case common systemin days is too long it doesn't say you wait till the two of the criminal procedure is over well so isn't that part of your statute unconstitutional on its face no your honor because the due process requirement requires you to look at the process that's provided and the process that's provided provide be before the criminal proceedings that's in there several times because there is no means for an innocent owner to retrieve their vehicle and because there is no means for even a guilty owner to have the use of their vehicle during the interim those are the two problems that do not exist in our case that exist in crims dock and which the court based their opinion upon even if the court if the court takes a look at footnote nineteen from court crim stock it specifically reference returned so put those three together you don't begin to give notice of what's going on with respect to your question your honor with all due respect to counsel for the plaintiff there is no record of this city or the prosecuting authority using the criminal excuse me using the forfeiture as a hammer in the criminal action and that question was specifically asked of the witnesses that were deposed in this case both mr richard ellis and judith hansen unfortunate i can't remember the page of ms hanson's deposition but there is no record and in fact they were the witness testified that the two are kept separately because you have different prosecute you have a different attorney prosecuting the criminal case then you have handling the forfeiture so that is a misrepresentation with respect to that's the problem on my  of left hand doesn't know what the right hand is doing it was a deliberate set up that way so that the fourth for church could not affect in any way servant of the prosecutor's desire to go forward or something like that well i can't i can't speak to sort of the the intent of the legislature when they drafted the statute but i can talk in terms of practice and the practice is the forfeiture comes after the criminal proceeding unless you get the authority of the prosecutor to do so and i have counselors one hundred eighty day time period on here the statute has a one hundred eighty day time period about when the judicial determination shall occur you know what i'm referring to in your statute right i and i'm waiting for your question your honor ok my question is given the fact that in january of two thousand and twelve we asked for it back why in this case have you not given notice of all these things you tell us that the safeguards none of those in the notice you give the person is cars take well actually those safeguards are in there the the innocent owner is me the opportunity to ask for a judicial determination and the timeline for when that determination has to be requested the fact that the individual can request to have the filing fee waived the fact that if the vehicle is worth less than seven thousand five hundred dollars they can take their case to conciliation court and even there they can have the filing fee waived and if their vehicle is worth less than five hundred dollars there's no filing fee at all so all of this is in the notice and the notice specifically says if you fail to follow these procedures you will lose all right to the vehicle so when we go when we jump ahead six months or seven months to january of two thousand and twelve mr booker has already ignored and bypassed the options that were available to him and so for us to now say we're going to go back and pretend though he followed the statute and give to him what he was entitled to the statute had he acted seven months earlier it's picking and choosing when we rely upon the status you really are giving us a waiver argument basis absolutely your hon mr booker had opportunities available to him that he didn't exercise and because he didn't exercise them for him to stand in front of this court and say that it takes five to six months to get a hearing  would not have been allowed to have my forfeiture hearing pre my criminal process is speculation we don't have those facts because mr booker never took advantage of the opportunities that were provided to him issue the words waiver were prevented but the argument that you had your chance and you sat on your hands that was addressed to the court and that was the court's finding actually that mr booker sat on his hands and did nothing he  very much like the plaintiff in the coleman case he was put on notice that this process could take a long time and he was told not only in the notice that he was given on the date of the seizure he was told when he contacted the court a couple of times by telephone or in person that this is the process you have to follow and yet he still did nothing and i'd ask is is there any this prejudice play into this at all in the sense that is there any burden on mr booker to show that had he gone through the process or had a process been in place that he would likely have succeeded i think in order for him to prevail in this case he has to have taken a step and then on that let's assume me what i'm trying to does he have to prove that either the underlying statute is unconstitutional or which allows for seizure in the first place putting aside aside the process or that he wasn't guilty and wasn't subject to seizure i think he i think he would fail a facial challenge to the statute because the statute itself has the safeguards that due process requires and in terms of an as apply i'm talking about does he have to show stops in the temporary that he could have prevailed no real no your honor i think what we have is the wrong  is that i've been doing this case for a while and i know that it happens and i've seen prosecutors use the forfeiture as a hammer i don't know that it actually happens in the city of st paul to the council's point about the right you know that also gets to the point about counsel suggesting that yes you can come in and ask and this happens in the city of st paul why can't both can't be true because if the civil forfeiture attorney doesn't know what's going on with the criminal attorney then clearly there's no coronation  you look at judy hanson testimony which is thirty six that position re carefully pages thirty three to thirty five i asked her where do you get the authority to simply return the vehicle to the end it's unknown i just have it where is it in the statute i just have it and so if you're talking about the whims of a prosecutor or city attorney is due process surely that won't satisfy i also want to talk briefly about the other remedies that counsel suggested are readily available the band and i and i in judge benton asked a question to me that made me want to clarify we have to be looking at the two thousand and nine statute has been amended that one hundred eighty day period i don't believe appears in the two thousand and nine statute i just looked at it briefly as i thank you russ i look at it twenty twelve per what they mean by this in other words it's not operable for is not operable so here's your vehicle back thanks for your money park your car somewhere else ok so typical of title no support for that in the record there is nothing in the statute to suggest you can give up with a certificate of title we've talked about