Civil asset forfeiture has gotten a bad rep. But Silas Luis is the poster child for why criminal asset forfeiture makes sense.  

She was indicted on charges related to $45 million in Medicare fraud but her personal assets amounted to much less.  An investigator determined Luis spent the money on “luxury items, real estate, automobiles, and for travel.” The federal government sought to freeze the use of her assets not traceable to the fraud. She claimed that she has a constitutional right to use them to hire an attorney of her choice.

The State and Local Legal Center (SLLC) amicus brief in Luis v. United States argues that if someone has spent or hidden their ill-gotten gain but has additional assets untainted by their crime, the government be able to freeze the untainted assets. State and local governments—police departments in particular—receive criminal asset forfeitures. Any many states statutes also allow freezing of substitute assets.

In Kaley v. United States (2015), the Supreme Court held 6-3 that defendants may not use frozen assets which are the fruits of criminal activities to pay for an attorney. Luis argued that it is “inconceivable” that she may not use “her own legitimately-earned assets to retain counsel.” The federal government responded that per her reasoning criminal defendants “could effectively deprive her victims of any opportunity for compensation simply by dissipating her ill-gotten gains.” The lower court agreed with the federal government.

The SLLC amicus brief argues that ruling in favor of Luis “will result in a massive unwarranted preemption of validly-enacted state laws and would create an artificial distinction . . . between directly forfeitable property and substitute assets . . . when directly forfeitable assets are hidden or can’t be reached. This would be particularly problematic because state and local governments, with their varied forfeiture systems, provide a laboratory of options that can be used to fight increasingly sophisticated and often international criminal enterprises.”

Mary Massaron, Plunkett Cooney, wrote the SLLC brief, which was joined by the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

The Supreme Court will hear oral argument in this case on November 10.