Lena Sutton was separated from her spouse and staying with a friend on the night of Feb. 20, 2018, when her car was seized during a drug trafficking arrest in Leesburg.

Sutton, however, wasn’t inside the car and was unaware it would be used in connection with drug activity. To date, she hasn’t been arrested nor charged with a crime.

But her car has yet to be returned. Sutton’s story is now being highlighted in a federal class-action lawsuit – believed to be the first of its kind in Alabama -- that questions the constitutionality of Alabama’s civil asset forfeiture system.

“We believe it’s unconstitutional at a minimum of the Fourth, Eighth and Fourteenth amendments,” said Allen Armstrong, a Birmingham-based based attorney representing Sutton in the case filed Wednesday in U.S. District Court for the Northern District of Alabama.

Unconstitutional

The case seeks injunctive relief for Sutton and anyone else who has faced a similar situation. According to the lawsuit, the number of potential plaintiffs is “at least hundreds.”

The lawsuit names Alabama Attorney General Steve Marshall as the defendant. His office declined comment Friday.

The lawsuit challenges state law that allows civil courts to determine if an agency involved in the seizure can keep the property. The determination can be made even if a person, such as Sutton, is not convicted of a crime or even arrested.

The lawsuit believes Alabama’s law and processes are unconstitutional because it:

-Fails to provide notice of and a meaningful opportunity for a hearing for someone whose property is seized by law enforcement, thereby violating the Fourth Amendment as an illegal search, and the Due Process clause of the Fourteenth Amendment.

-Fails to provide an opportunity for someone to challenge a seizure during prompt hearing before a neutral arbitrator. The state, according to the lawsuit, effectively holds onto the property indefinitely when it knows there is no meaningful opportunity for someone to contest the seizure within a quick time frame. The actual hearing on the merits of the forfeiture usually takes months, the lawsuit claims, representing more constitutional violations.

- Allows state and local law enforcement agents, who directly prosecute civil forfeiture actions, to have a direct financial interest in the proceedings, the lawsuit claims, which is another constitutional violation.

-Allows excessive fines -- a violation of the Eighth Amendment – to occur in Alabama’s system in two ways: Deprivation of property while its seized, and the costs to hire legal help to prove they have no connection to the crime.

SPLC’s role

The lawsuit’s filing comes about three months after a U.S. Supreme Court ruling against excessive police seizures involving a case out of Indiana.

The unanimous court decision in Timbs v. Indiana stemmed from a case involving a small-time drug offender who had his $42,000 Land Rover seized by police despite claiming that his father’s life insurance policy, not drug money, was used to purchase it.

The Supreme Court ruled that the Eighth Amendment, which limits the ability of the federal government to seize property, also applies to states.

Emily Early, staff attorney with the Montgomery-based Southern Poverty Law Center, said the Supreme Court’s decision put Alabama and other state and local governments “on notice throughout the country: the government cannot impose excessive economic sanctions, especially when the government stands to benefit from the sanction.”

She said, “To do so would be unconstitutional.”

The Montgomery-based Southern Poverty Law Center in conjunction with the Alabama Appleseed Center for Law and Justice, released a detailed analysis and powerful testimonials from victims of questionable seizures by police. The revelations were included in a report, released in January 2018, titled “Forfeiting Your Rights.”

Some of the statistics from that report were included in the federal complaint.

“We are glad our investigation of civil asset forfeiture data is being used in ways that support the public’s effort to fight back against the abuses of the practice in the Statehouse and the courthouses,” said Early.

Armstrong said the SPLC statistics, included within the lawsuit, were “helpful in explaining our case,” but noted that his legal team has conducted a lot of research regarding the issue.

Barry Matson, executive director with the Alabama District Attorneys Association, declined comment about the lawsuit other than to criticize it for including the SPLC statistics which he claims are inaccurate.

Pending legislation

The DA association and other law enforcement groups, such as the Sheriffs Association, have long opposed major changes in the state’s civil asset forfeiture system. They are more supportive of requirements for more transparency in the system, and in April, Gov. Kay Ivey’s office announced a $38,336 federal grant to set up a statewide database to track property seized by police during arrests.

Law enforcement remains opposed to legislation, in the Alabama state Senate, that would require a criminal conviction in order for seized properties to be kept by law enforcement.

The legislation is SB191, and it’s sponsored by Sen. Arthur Orr, R-Decatur, who pitched similar legislation last year only to see if fall short of approval amid opposition from law enforcement.

Aside from loosening gun laws, no one issue in Montgomery has sparked more push back from law enforcement than Orr’s proposal.

Orr, on Friday, said he’s faced similar resistance this session.

“About the same pushback,” he said. The legislation, last year, was stopped

State Sen. Cam Ward, R-Alabaster, and chairman of the Alabama State Senate Judiciary Committee, said that law enforcement is “more vocal” against civil asset forfeiture reform than they are with prison reform.

“I don’t think their opposition will change at all, in my opinion,” said Ward. “Regardless of this court case.”

Ward said while the Indiana case was supported by the Supreme Court, other cases in other states have failed.

“No one will be surprised the lawsuit was filed,” said Ward.