In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 17-2933 

LEROY WASHINGTON, on his own 

behalf and on behalf of a Class 

of those similarly situated, 

Plaintiff-Appellee, 

v.

MARION COUNTY PROSECUTOR, 

Defendant-Appellant. 

____________________ 

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. 

____________________ 

ARGUED NOVEMBER 29, 2018 — DECIDED FEBRUARY 26, 2019 

____________________ 

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 classaction constitutional challenge. The district court declared 
2 No. 17-2933 

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. 
No. 17-2933 3

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 
4 No. 17-2933 

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 Washington argues the amendments do not fix the constitutional problems: 

When an innocent owner’s vehicle is used by a 

third party to commit a crime, the vehicle is 

seized by law enforcement. Because evidence of 

innocent ownership is not considered at the ex 

parte probable cause determination, the Court 

will generally order the vehicle to be held. The 

prosecutor can then file a motion under Indiana 

Code Section 34-24-1-2(j), which prevents provisional release. The statute does not require any 

expedited process for addressing a motion under [that section]. As a result, the individual 

loses the ability to have a prompt hearing to 

challenge continued retention of the vehicle. 
No. 17-2933 5

The ability of the State to hold property for an 

extended period of time, while simultaneously 

preventing judicial intervention, creates powerful leverage that can be used to coerce even innocent owners to buy back their own property 

though a settlement agreement. 

(Appellees’ Br., DE 25 at 36.) 

Scholars chronicle many problems with forfeiture laws.1

Professor Crepelle observed that in 2015, law enforcement 

took more property from Americans than criminals did.2 Justice Thomas has expressed skepticism of forfeiture.3

 

1 Note, How Crime Pays: The Unconstitutionality of Modern Civil Asset 

Forfeiture as a Tool of Criminal Law Enforcement, 131 Harv. L. Rev. 2387 

(2018); Adam Crepelle, Probable Cause to Plunder: Civil Asset Forfeiture and 

the Problems It Creates, 7 Wake Forest J.L. & Pol’y 315 (2017); Barclay 

Thomas Johnson, Note, Restoring Civility—The Civil Asset Forfeiture Reform 

Act of 2000: Baby Steps Towards a More Civilized Civil Forfeiture System, 35 

Ind. L. Rev. 1045 (2002); but see Caleb Nelson, The Constitutionality of Civil 

Forfeiture, 125 Yale L.J. 2446 (2016) (arguing forfeiture statutes might be 

unfair or unwise, but their central characteristics do not violate the Constitution). 

2 Crepelle, supra note 1, at 315. 

3 “[A]mbitious modern statutes and prosecutorial practices have all 

but detached themselves from the ancient notion of civil forfeiture ... .” 

United States v. James Daniel Good Real Prop., 510 U.S. 43, 85 (1993) (Thomas, 

J., concurring in part and dissenting in part). “One unaware of the history 

of forfeiture laws and 200 years of this Court’s precedent regarding such 

laws might well assume that such a scheme is lawless—a violation of due 

process.” Bennis v. Michigan, 516 U.S. 442, 454 (1996). “This system—where 

police can seize property with limited judicial oversight and retain it for 

their own use—has led to egregious and well-chronicled abuses.” Leonard 
6 No. 17-2933 

Obviously, vehicle forfeitures are economically painful. 

Many Americans depend on cars for food, school, work, medical treatment, church, relationships, arts, sports, recreation, 

and anything farther away than the ends of their driveways. 

Cars extend us. Cars manifest liberty. A person released on 

bond, retaining a presumption of innocence, might suffer virtual imprisonment if he cannot regain his vehicle in time to 

drive to work. 

The district court did not have a chance to address the 

amendments. Given that the record and arguments regarding 

the amendments are under-developed, we remand this case 

to the district court for further proceedings. See Restoration 

Risk Retention Grp. v. Gutierrez, 880 F.3d 339, 349 (7th Cir. 2018) 

(remanding to district court “to determine the operation and 

effect of the amended statute” and to “determine whether the 

case is moot”); Hager v. Nat’l Union Elec. Co., 854 F.2d 259, 262–

63 (7th Cir. 1988) (“We believe that the district court ought to 

have the opportunity to reconsider its decision in light of this 

most significant pronouncement from the Supreme Court of 

Indiana.”); United States v. Elrod, 627 F.2d 813, 819–20 (7th Cir. 

1980) (remanding to district court given enactment of statute 

during pendency of appeal).4

On remand, the district court should address the parties’ 

contentions regarding the amendments. Do the amendments 

 

v. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., statement respecting denial 

of certiorari). 

4 The Supreme Court heard argument on Indiana’s forfeiture law and 

the Eighth Amendment a day before our argument. The Court recently 

issued its opinion, concluding the Fourteenth Amendment incorporates 

the Eighth Amendment’s ban on excessive fines. Timbs v. Indiana, No. 17-

1091, 2019 WL 691578, at *2 (U.S. Feb. 20, 2019). 
No. 17-2933 7

ameliorate the constitutional problems the district court identified? The district court should resolve these contentions to 

the extent necessary and proper. 

If appropriate, the district court should also revisit the 

class to determine whether it should be decertified or redefined in light of the amendments. 

At present, we express no opinion regarding the constitutionality of the old or new versions of the statute, regarding 

mootness, or regarding the class. Also, our argument summaries do not limit the arguments the parties may raise on 

remand. We leave latitude to the district court to conduct further proceedings it deems necessary and proper given the 

amendments and the parties’ positions. Any review we are 

subsequently called upon to make will benefit from these proceedings and the reasoning of the district court. 

III. Conclusion

We DENY the Prosecutor’s motion to dismiss. We 

REMAND this case to the district court for further proceedings consistent with this opinion.