Property Right vs. Law Enforcement

Last Wednesday, the Supreme Court of the United States heard arguments on a case with potential effect on due process clause of the Fourteenth Amendment.

The case concerns civil forfeitures – police seizing properties alleged to be connected with crimes. The question before the court was “whether people seeking to get their property back are entitled to a prompt hearing before a judge”. The key word here is “prompt”. Even though most owners are able to challenge the seizures, the procedure usually takes up months, or even years. As a result, the police often get to keep what they capture. In addition, most of the seizures are conducted without warrants but based merely on police officer’s claim that the property was somehow connected with the crime.

As usual, the court split into two sides.

On one side, Justice Breyer, one of the most liberal justices in the court, and Justice Sotomayor, recently appointed by President Obama, were apparently in favor of the property owners. Justice Breyer argued that in some cases, there is no probable cause for the forfeiture to begin with. For example, if a car happened to be parked by a building which was bombed and the police officer took the car, is it really fair for the owner to wait for six months until he/she can drive to work again? In response to that, the Justice Department lawyer, William Jay, explained that it has to take some time because police need to investigate the owner’s connection with the crime. “I am sorry,” Justice Sotomayor revealed her attitude, “You take the car and then you investigate?”

On the other side, Justice Alito, one of the conservative justices, contended that a prompt hearing could compromise an ongoing investigation. If the police suspect the owner of the car to be one of the participant in the bombing, and have him/her under surveillance, a prompt hearing will force the police department to disclose some important evidences of the investigation.
From a philosophical perspective, the two opposing arguments regarding the case represent a major topic in philosophical debate: individual right vs. general welfare.

Similar to the court, (though the liberal justice is not the synonym to a libertarian), the libertarians will support the property owners because they regard the protection of individual rights and personal liberties as the most important part of a principle of justice. Based on principle of justice in transfer, Robert Nozick will agree with Justice Breyer that if the seizure is not legitimate – without probable cause – in the first place, then the transfer of the car from the owner to the police is unjust. Therefore, the owner is entitled to a prompt hearing and police should return the car as soon as possible. John Rawls will also argue in favor of the property owners because his first principle of justice requires the protection of basic individual rights, which includes right to property.

On the other hand, utilitarians will speak for the police department. Because the car is only transferred from one member of the society to another, it is still within the society. Therefore the aggregate utility will not decrease as a result of this transfer. In addition, the forfeiture allows the police to conduct better investigation on potential suspects. As a result, it adds extra utility to the society and the society as a whole is better off.

Personally speaking, I believe the police should be required to obtain a warrant before they forfeit personal properties not directly related to the crime. With a probable cause, the police will be entitled to investigate the seizure in detail and determine whether it is related to the crime. Otherwise, they should not be allowed to seize personal properties. And if they suspect the owner, they can still investigate him/her, and forfeit the property until they have a probable cause. In short, innocent until proved guilty.