Magnus-Stinson, C.J.
This matter involves a challenge to Indiana’s civil forfeiture statute, specifically as it applies to the seizure and pre-forfeiture retention of vehicles. Plaintiff Leroy Washington, on behalf of himself and a putative class of plaintiffs, contends that Indiana’s statute violates the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. Mr. Washington argues that the statute allows law enforcement officers to seize and hold vehicles based on an officer’s probable cause determination for up to six months without judicial oversight and without allowing individuals the opportunity to challenge that seizure and deprivation – in other words without a post-seizure, pre-forfeiture hearing. In his Motion for Summary Judgment, [Filing No. 31], Mr. Washington requests a declaratory judgment that the statute is unconstitutional, and a permanent injunction enjoining Defendants from enforcing the statute. For the reasons that follow, the Court concludes that Indiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.
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Indiana Code Section 34-24-1-1(a)(1) authorizes the seizure of vehicles “if they are used or are intended for use by the person or persons in possession of them to transport or in any manner facilitate the transportation” of a number of controlled substances, including marijuana, for the purposes of dealing in or manufacturing them. Ind. Code § 34-24-1-1(a)(1). That provision authorizes law enforcement officers to seize such vehicles without a warrant if the seizure occurs incident to a lawful arrest or search. Ind. Code § 34-24-1-2(a)(1). The government may then hold the vehicle without taking any action for 180 days, or for 90 days after receiving written notice from the owner demanding the vehicle’s return. Ind. Code § 34-24-1-3. At the end of the applicable time period, the government may file a complaint in the circuit or superior court in the jurisdiction where the seizure occurred for the reimbursement of law enforcement costs and forfeiture, or it may return the property to its owner. Ind. Code § 34-24-1-3. While the vehicle is being held, prior to any forfeiture action, the vehicle’s owner has no legal ability to challenge the seizure, because replevin is prohibited by the statute. Ind. Code § 34-24-1-2(c) (“Property that is seized under subsection (a) … is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.”).
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As described above, and as the courts did in Smith and Krimstock, the Court concludes that the private interest and risk of erroneous deprivation factors, on balance, outweigh any governmental interest. [Footnote omitted.] The balance of Mathews factors demonstrates that due process requires that individuals be provided with some sort of mechanism through which to challenge whether continued deprivation is justifiable. This is not one of those “extraordinary situations” in which the Constitution tolerates an exception to the general rule requiring a pre-deprivation hearing. See Good Real Property, 510 U.S. at 53.
E. Remedy
Mr. Washington requests a declaratory judgment that Ind. Code Section 34-24-1-1(a)(1), as read in conjunction with other statutory provisions, is unconstitutional. [Filing No. 1.] He also requests a permanent injunction, enjoining Defendants from enforcing the statute—i.e., seizing and holding vehicles without providing individuals with an opportunity to challenge the seizure or deprivation. [Filing No. 1.] Defendants object to the issuance of an injunction, arguing that it would constitute a rewriting of the statute—a practice which they argue this Court should avoid. [Filing No. 59 at 4.]
For reasons already discussed, the Court concludes that the statutory provisions allowing for the seizure and retention of vehicles without providing an opportunity for an individual to challenge the pre-forfeiture deprivation are unconstitutional. The Court need not “rewrite” the statute in order to enjoin Defendants from enforcing an unconstitutional state statute. See Buquer v. City of Indianapolis, 2013 WL 1332158, *16 (S.D. Ind. 2013) (enjoining enforcement of Indiana statute held to violate the Fourth Amendment). The Court is mindful that the drafting of forfeiture laws is the responsibility of the Indiana General Assembly, and this Court will not attempt a constitutional rewrite of the statute. [Footnote omitted.] But it is this Court’s responsibility to adjudicate the constitutionality of a law when properly presented with the question.
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The Court GRANTS Mr. Washington’s Motion for Summary Judgment, [Filing No. 31]. It concludes that Indiana Code Section 34-24-1-1(a)(1), read in conjunction with Indiana Code provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Defendants are hereby PERMANENTLY ENJOINED from enforcing Indiana Code Section 34-24-1-1(a)(1), as read in conjunction with Indiana Code provisions of the same chapter. The Defendants are hereby further ordered to inform forthwith all other affected Indiana state governmental entities of this injunction.
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