Sovereign immunity and recovering seized property

Question

Can sovereign immunity defeat an attempt to recover seized property? For instance, if a cop seizes some cash asserting that it is "drug money", and the owner sues to recover it, can the government dismiss the suit on the basis of sovereign immunity?

Answer 1

As always, some specification of jurisdiction is necessary: I will pick US (a seizure by DEA agents). A suitcase of cash in the trunk can be seized given an appropriate warrant, on the premise that it is evidence in a criminal investigation. The owner cannot then (immediately) sue to recover the property, which is being held as evidence: the seizure was lawful. At some point the case will be disposed of: to be kind to the plaintiff, assume the case was closed without charges being filed (therefore, the money is not evidence). Also, the government does not officially institute civil forfeiture proceedings. In that case, the government is supposed to return the property at this point, but there's no guarantee that they will. Then, the owner can sue. But, following Price v. US, 174 US 373 and citations therein:

It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it

The Tort Claims Act is such a statute. 28 USC 2674 states that

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

The claim "you can't sue the government" is refuted by a federal statute that says otherwise, so any such government motion to dismiss will be denied. (Not to say that they couldn't succeed on some other grounds). §2675 lists various exceptions where you can't sue the government for loss

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

That is, lawsuit can't be your first response. Other exceptions are in §2680(c), for instance you can't sue if "the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property" (comments refer to a question about civil forfeiture law) – thus civil forfeiture law allows some taking, but the present instance (willful failure to return property held as evidence) is different.

So if the government just decided to keep your cash, illegally, you can sue to get it back and the suit will not be dismissed on grounds of sovereign immunity.

Answer 2

Yes, in Colorado, at least, but only if there is some procedural means at some point to recover the property, not necessarily in a lawsuit and not necessarily to the full extent that it would be possible if seized by a non-governmental actor.

The following quoted material is from the official syllabus to the cited case in Colorado with that holding (to clarify, a "replevin" action is an action to recover physical possession of tangible personal property):

Arrestee brought replevin action against county sheriff's office and district attorney's office seeking return of property seized during and after his arrest and damages for alleged wrongful detention of property. The District Court, El Paso County, Larry E. Schwartz, J., dismissed complaint. Arrestee appealed. Holdings: The Court of Appeals, Navarro, J., held that:

1. arrestee's replevin claim was barred by Colorado Governmental Immunity Act (CGIA);

2. applying CGIA to bar arrestee's claim did not violate arrestee's due process rights; and

3. dismissal with prejudice was warranted.

Woo v. El Paso County Sheriff's Off., 2020 COA 134, reh'g denied (Oct. 1, 2020) (certiorari was not sought by Woo).

The analysis of the due process challenge to this provision is important, however, because an important part of the holdings was that there was some procedural mechanism to recover the property of which the inmate allegedly failed to avail himself as explained in the following portion of the body text of Woo v. El Paso County Sheriff's Off. opinion (with links in the quoted material to the most important U.S. Supreme Court case and Colorado Supreme Court case on point):

¶ 15 Because the CGIA bars Woo's replevin action to recover the property and damages, we must address his contention that barring his action violates his federal and state constitutional rights against deprivations of property without due process of law. See U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25. He does not present a facial challenge to the law; so, we must decide whether the CGIA is unconstitutional as applied to his claim.

¶ 16 Given that Woo preserved this constitutional claim in the district court, we review it de novo. See People v. Perez-Hernandez, 2013 COA 160, ¶ 10, 348 P.3d 451. We presume a statute is constitutional, and the challenger bears the burden to prove its unconstitutionality beyond a reasonable doubt. TABOR Found. v. Reg'l Transp. Dist., 2018 CO 29, ¶ 15, 416 P.3d 101. To show a procedural due process violation, a plaintiff must first identify a liberty or property interest that has been interfered with by the state. Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Next, the plaintiff must show that the procedures attendant to that deprivation were constitutionally insufficient. Id.

¶ 17 We assume for the sake of our analysis that the property Woo seeks to obtain belongs to him. Under that assumption, he suffered a deprivation of a property interest when the state seized and did not return the property. Woo does not argue that the initial seizure was unconstitutional. The question thus becomes whether applying the CGIA to preclude Woo's replevin action to recover the property violates his due process rights. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.”).

¶ 18 On this question, Desert Truck Sales [ed. City & Cty. of Denver v. Desert Truck Sales, Inc., 837 P.2d 759, 763 (Colo. 1992)) is again instructive because the supreme court considered whether applying the CGIA to preclude the replevin action violated the purported property owner's due process rights. 837 P.2d at 768. Like Woo, the plaintiff in that case argued that barring a replevin action denied due process because it was the only remedy to recover the property — there, a vehicle seized by police on suspicion of theft and then detained because its vehicle identification number had been removed. Id. at 762. The supreme court rejected that argument, reasoning that the plaintiff had a statutory right to a post-seizure hearing to prove ownership and obtain possession of the car, and that the hearing was mandatory. Id. at 767-68 (citing § 42-5-110, C.R.S. 2019). The court concluded that this procedure adequately protected the plaintiff's due process rights. Id.; cf. Hudson, 468 U.S. at 533, 104 S.Ct. 3194 (“[A]n unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.”).

¶ 19 Likewise, Woo had an adequate post-seizure remedy. He could have sought (and, as to some property, he did seek) return of the property in his criminal case. Though no statute or rule sets out the procedure available to a criminal defendant to recover property that was legally seized, longstanding Colorado case law recognizes that a criminal defendant may file a motion for return of such property in the criminal court. See, e.g., People v. Hargrave, 179 P.3d 226, 228-29 (Colo. App. 2007); People v. Fordyce, 705 P.2d 8, 9 (Colo. App. 1985); People v. Wiedemer, 692 P.2d 327, 329 (Colo. App. 1984); People v. Rautenkranz, 641 P.2d 317, 318 (Colo. App. 1982); People v. Buggs, 631 P.2d 1200, 1201 (Colo. App. 1981); cf. People v. Angerstein, 194 Colo. 376, 379, 572 P.2d 479, 481 (1977) (tacitly approving this practice but holding that, as to some categories of legally seized property, there is no right to have it returned). (Footnote 3: In addition, Crim. P. 41(e) allows an aggrieved person to move the district court for the return of illegally seized property.)

¶ 20 To recover property seized as part of a criminal proceeding, a defendant may file a verified motion seeking the return of that property with the same court in which the charges were brought. Rautenkranz, 641 P.2d at 318. The court should then hold an evidentiary hearing to determine the parties’ rights. Id. The defendant makes a prima facie case of ownership by showing that the items were seized from him at the time of his arrest and that they are being held by law enforcement authorities. Fordyce, 705 P.2d at 9. The burden then shifts to the prosecution to prove by a preponderance of the evidence that the items were the fruit of an illegal activity or that a connection exists between those items and criminal activity. Id.

¶ 21 This procedure in the criminal court provides adequate protection against the risk of an erroneous deprivation of property. See Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“[P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process.”). Crim. P. 41(d)(5)(VI) requires officers who seize property under a warrant to issue a receipt listing the properties taken, so a defendant will have notice of what property should be included in the motion for return of property. The defendant may present evidence of ownership at the hearing, and the burden to establish a prima facia case is not high. See Fordyce, 705 P.2d at 9. The aggrieved party may file a timely appeal of the district court's ruling on the motion, providing the opportunity to correct an erroneous order. See Buggs, 631 P.2d at 1201.

¶ 22 Still, Woo contends that this procedure is insufficient because, unlike the post-seizure proceeding discussed in Desert Truck Sales, a hearing on a motion for return of property is not mandatory. But our supreme court said that the hearing in Desert Truck Sales was mandatory in the sense that it must be granted “upon request.” 837 P.2d at 768. Similarly, where a timely motion for return of property and any response present pivotal factual disputes, a hearing would be necessary. See Rautenkranz, 641 P.2d at 318 (“[O]n the filing of the motion an evidentiary hearing should be held.”). Hence, divisions of this court have reversed district courts’ rulings that declined to hold a hearing on a motion for return of property or that denied such a motion even though the prosecution did not present evidence refuting the defendant's prima facie showing. See id.; Buggs, 631 P.2d at 1201.

¶ 23 Woo also maintains that the procedure in the criminal court is inadequate because that court might no longer have jurisdiction to entertain his motion for return of the property given that he has been sentenced already. True, divisions of this court have divided over whether a criminal court retains jurisdiction to hear a post-sentence motion for return of property. See People v. Chavez, 2018 COA 139, ¶¶ 9-14, ––– P.3d –––– (discussing the split and answering in the negative). Compare Wiedemer, 692 P.2d at 329 (holding that the imposition of a sentence ends a criminal court's jurisdiction to hear a motion not authorized by Crim. P. 35), with Hargrave, 179 P.3d at 230 (holding that a criminal court has ancillary jurisdiction to entertain a post-sentence motion for return of property). So far, our supreme court has not resolved this debate.

¶ 24 Even if, however, the criminal court now lacks jurisdiction to consider any motion for return of property filed by Woo, barring his replevin action does not violate his due process rights. Our supreme court in Desert Truck Sales recognized that the availability of a post-seizure remedy to recover seized property satisfies the alleged owner's due process rights. Such a remedy was available to Woo in the criminal court, at least before he was sentenced. That this remedy might not be perpetual does not mean that it is constitutionally inadequate. See In re Estate of Ongaro, 998 P.2d 1097, 1105-06 (Colo. 2000) (“[A] statute of limitations does not deprive a claimant of its rights to due process unless the time for bringing the claim is so limited as to amount to a denial of justice.”); cf. Cacioppo v. Eagle Cty. Sch. Dist. Re-50J, 92 P.3d 453, 464 (Colo. 2004) (“[W]e hold that the five-day time limit imposed by section 1-11-203.5 is also not ‘manifestly so limited as to amount to a denial of justice.’ ”) (citation omitted). Indeed, his defense counsel's motion for release of certain items to Woo in the criminal case shows that his counsel knew of this procedure, though the motion might have been tardy.

¶ 25 Finally, to the extent Woo argues that barring his damages claim for wrongful detention of the property violates his due process rights, we disagree. The statute at issue in Desert Truck Sales did not permit damages for the property's detention, see 837 P.2d at 767 n.9 (citing § 42-5-110), yet the supreme court found it sufficient to satisfy due process. Moreover, parties do not have a constitutionally protected property right to sue the government for damages for their alleged injuries. See Norsby v. Jensen, 916 P.2d 555, 563 (Colo. App. 1995); see also State v. DeFoor, 824 P.2d 783, 795 (Colo. 1992) (“There is no constitutional right for persons to sue and recover a judgment against the state for the state's tortious conduct.”) (Rovira, C.J., specially concurring in part). Rather, the right to maintain a tort action or tort-like action against a public entity is derived from statute. Fritz v. Regents of Univ. of Colo., 196 Colo. 335, 339, 586 P.2d 23, 26 (1978); see Desert Truck Sales, 837 P.2d at 767 (“In enacting the [CGIA], the General Assembly described in minute detail the circumstances that can result in tort liability for a public entity or its employees.”). As discussed, the CGIA bars Woo's replevin action, including his damages claim.

¶ 26 In sum, Woo has failed to show beyond a reasonable doubt that the CGIA is unconstitutional as applied to his replevin action.

In many cases where the person from whom the property was seized is not a criminal defendant, as in this case, the process is set forth in a civil forfeiture statute (see generally: How exactly does civil asset forfeiture work in the United States?).

Outside of the criminal justice process, a suit for return of the property could be barred, but an "inverse condemnation" lawsuit seeking due compensation for property taken without due process of law is available. But there is a criminal justice exception to the right to bring an inverse condemnation lawsuit: