### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17-2933
L EROY W ASHINGTON , on his own behalf and on behalf of a Class of those similarly situated, Plaintiff-Appellee ,

v.

M ARION C OUNTY P ROSECUTOR , 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

.

____________________
A RGUED N OVEMBER 29, 2018

— D ECIDED F EBRUARY 26, 2019

____________________

Before F LAUM , R IPPLE , and M ANION , Circuit Judges

. M ANION , Circuit Judge . Indianapolis police stopped a car driven and owned by Leroy Wa shington in September 2016.Washington was arrested and ultimately charged with multiple Indiana crimes, including dealing in marijuana. Police seized his vehicle for forfeitu re. Washington brought a classaction constitutional challeng e. The district court declared2 No. 17-2933

Indiana’s vehicle forfeiture stat ute (I.C. 34-24-1-1(a)(1) read in conjunction with other provisio ns in the same chapter) unconstitutional. The Marion County Prosecutor appealed. While the appeal pended, Indiana amended the statute. The Prosecutor argues the amendments fi x any constitutionalproblems, but Washington disagrees. We remand to the district court to address the amendments. I. BackgroundWashington was driving a vehicle he owned when an Indianapolis police o ffi cer 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 o ffi cer 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 fi led 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 co urt, 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 pr ovisions of that chapter. In early February 2017, the Marion County Prosecutor’s O ffi ce and the Indianapolis Metropolitan Police Departmentreleased the vehicle to Washington. On February 3, 2017, Defendants moved to dismiss the case as moot given the vehicle’s return. Later that mont h, Washington moved for summary judgment.No. 17-2933 3

On August 18, 2017, the district court certi fi ed a class and granted Washington summary ju dgment. The court declared I.C. 34-24-1-1(a)(1) (as read in conjunction with other provisions of the same chapter) unco nstitutional for violating the due process clauses. The court permanently enjoined Defendants from enforcing it. In particular, the court concluded thestatutory provisions allowing for seizure and retention of vehicles without an opportunity fo r an individual to challengepre-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 arg ue on appeal that the old version of the statute did not violate the due process clause. The Prosecutor also argues th e new version changed and increased the available process, thereby ameliorating any “potential” due process de fi ciencies identi fi ed by the districtcourt. For example, the Prosecutor argues the amended statute provides for a probable cause a ffi davit, a motion for provisional release, and a shorte ned window for the Prosecutor
to fi le 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 super fi cial, 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 de fi cient. He argues the court required a timely post-seizure, pre-forfeitu re hearing at a minimum, but the amendments do not provide this. He argues the4 No. 17-2933

amendment providing for “provisional release” is meaningless or illusory because the mere fi ling of a motion by the Prosecutor will bar provisional rele ase. He points out that the amended statute still bars replev in. 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 de fi

ciency, do not provide any me aningful impact, and do not moot his claim.
II. DiscussionThe 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 amende d the law, but Washington argues the amendments do not fi x 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 fi le a motion under IndianaCode Section 34-24-1-2(j), which prevents provisional release. The statute does not require anyexpedited 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 inte rvention, creates powerful leverage that can be used to coerce even innocent owners to buy back their own property though a se tt lement 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 Am ericans 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 ch aracteristics 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 anci ent 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.” Leonard6 No. 17-2933

Obviously, vehicle forfeiture s 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 su ff er 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

e ff ect of the amended statute” an d 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 signi fi cant pronouncement from the Supreme Court of Indiana.”); United States v. Elrod , 627 F.2d 813, 819–20 (7th Cir. 1980) (remanding to district co urt given enactment of statute during pendency of appeal). 4 On remand, the district court should address the parties’ contentions regarding the amen dments. 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 identi fi ed? 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 decerti fi ed or redefi ned in light of the amendments.At present, we express no opinion regarding the constitutionality of the old or new versions of the statute, regardingmootness, or regarding the class. Also, our argument summaries do not limit the arguments the parties may raise onremand. 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 bene fi t from these proceedings and the reasoning of the district court.
III. Conclusion
We DENY the Prosecutor’s motion to dismiss. WeREMAND this case to the district court for further proceedings consistent with this opinion.