Forfeiting Ferrari’s Ferrari

The Second Circuit recently addressed an order finding a due process violation in a post-seizure hearing over Suffolk County retaining a Ferrari pending the outcome of a forfeiture proceeding in Ferrari v. County of Suffolk.

The case arose from the seizure of a Ferrari owned by James Ferrari following his arrest for speeding. Mr. Ferrari was a reckless driver with a repeated history of drunken driving. Suffolk County had a DWI Seizure Law that permitted forfeiture of a vehicle seized for violating laws against intoxicated or reckless driving. The law was specifically aimed at repeat drunk drivers, providing for forfeiture only when (a) the vehicle was an instrumentality of a specifically enumerated, serious crime and (b) the driver involved has at least one prior conviction for such a crime. Suffolk County Local Law No. 7-2004 § 1 (2004).

Title owners are entitled, under the Due Process Clause, to a prompt, post-seizure hearing to determine whether the County may retain the vehicle pedente lite (pending the outcome of a valid forfeiture proceeding). Krimstock v. Kelly (“Krimstock I”). At Mr. Ferrari’s post-seizure hearing the County introduced evidence, prior to resting its case, that Mr. Ferrari had repeatedly committed serious driving violations, had been arrested for an unusually dangerous bout of intoxicated joy-riding, and had shown documented unwillingness to abide by New York’s laws prohibiting seriously impaired or reckless driving. Mr. Ferrari had come forward with no evidence that an alternative measure (like posting bond) would suffice to address the County’s concern that returning the vehicle could endanger the public and the car.

Mr. Ferrari pled guilty and surrendered title  to his Ferrari to Suffolk County. But, he later filed suit in federal court under 42 U.S.C. § 1983, alleging his due process rights were violated in the post-seizure hearing that resulted in the County retaining his vehicle pending the outcome of the forfeiture proceeding.

The district court awarded Mr. Ferrari summary judgment (as to liability), effectively finding that the Due Process Clause required the County to prove that alternative measures would not suffice to protect the County’s financial interest, in addition to showing that Ferrari was liable to destroy the car if he received it back. The Second Circuit reversed the district court and remanded with instructions to enter judgment for Suffolk County.

The Second Circuit found two errors in the district court’s ruling for Mr. Ferrari. First, the district court erred in concluding that their decision in Krimstock I prevents a county or municipality from relying on public safety concerns as a basis for retention pedente lite. Second, the district court’s understanding of what the County must show to make out a prima facie case of necessity went well beyond what the Due Process Clause requires.

In Krimstock I, the Second Circuit found a New York City forfeiture statute violated the Due Process Clause because it did not afford claimants a prompt, post-seizure opportunity to test the probable validity of the retention of their vehicles pendente lite. The  interest in preventing the vehicle from being used as in instrumentality in future drunk driving incidents was insufficient to justify the complete lack of  a prompt, post-seizure hearing pending the final judgment of forfeiture according to Krimstock. The Second Circuit clarified that prior precedent paid relatively little attention to public safety concerns in retaining vehicles subject to forfeiture due to the nature of the forfeiture statute at issue. Suffolk County’s forfeiture statue, however, is expressly directed at impaired or reckless operation of vehicles. The Court determined neither Krimstock I, nor other authorities support requiring the government to justify retention pedente lite on the sole basis that its financial interest in the vehicle may be imperiled. The Second Circuit noted that it would be odd to justify ultimate forfeiture on the basis of preventing the vehicle from being further used as an instrumentality of a crime, but such a basis is invalid for retention pending the forfeiture proceeding’s outcome.

As to the second error, the Court found no justification for requiring the process Mr. Ferrari demanded. Applying the Matthews v. Eldridge test, which balances the private interest affected, the risk of erroneous deprivation through the procedures used and the value of other safeguards, and the government’s interest, the Court determined that allocating the burden of proving alternative measures’s infeasibility would not greatly add to the protection already afforded owners under Suffolk’s existing procedures. The Court noted that such a procedure may actually be detrimental to owners, because requiring the County gather evidence on the availability of alternative measures could delay hearings. In addition, evidence regarding alternative measures is generally uniquely within the owner’s purview, thereby making it relatively easy to gather. Moreover, due process permits shifting the burden of production to a party where evidence of a particular matter is uniquely in the possession of that party. Thus, the Second Circuit found that when the County presents evidence that a driver has a history of intoxicated or reckless driving (evidence that serves to make out a prima facie case that retention pedente lite is necessary to protect the County’s financial interest and its interest in protecting the public), the County may, consistent with the Due Process Clause, shift the burden of going forward onto the owner-driver to point to a specific alternative measure that he is willing and able to sustain that might satisfy the County’s interests, and to demonstrate that such alternative measure would be feasible for him.