The Honorable Denise Cote, of the United States District 1 Court for the Southern… v. Kelly Krimstock I , 306 F.3d 40, 17 44 2d Cir. 2002 . Shortly after the City seizes…

* The Honorable Denise Cote, of the United States District 1
Court for the Southern District of New York, sitting by 2
designation. 3
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06-4600-cv(L)
Ford Motor Credit Co. v. NYC Police Dep’t
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: February 12, 2007 Decided: September 24, 2007) 5
Docket Nos. 06-4600-cv(L); 06-4861-cv(XAP) 6
-----------------------------------------------------x 7
FORD MOTOR CREDIT CO., 8
9
Plaintiff-Appellee-Cross-Appellant, 10
11
-- v. -- 12
13
NYC POLICE DEPARTMENT, PROPERTY CLERK, CITY OF NEW 14
YORK, 15
16
Defendants-Appellants-Cross-Appellees. 17
18
-----------------------------------------------------x 19
20
B e f o r e : WALKER and HALL, Circuit Judges, and COTE, 21
District Judge.*
22
Appeal by the City of New York from a judgment of the United 23
States District Court for the Southern District of New York 24
(Sidney H. Stein, Judge) requiring, when Ford Motor Credit 25
Company possesses a valid security interest in a vehicle subject 26
to forfeiture pursuant to Title 38, Section 12-36 of the Rules of 27
the City of New York, that the City (1) permit Ford Motor Credit 28
to participate as a party in the forfeiture action and (2) 29
commence the forfeiture action within twenty-five days from the 30

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date that Ford Motor Credit makes a demand on the vehicle, 1
provided that a “claimant” would otherwise be entitled to make a 2
demand on the vehicle. 3
Cross-appeal by Ford Motor Credit from the district court’s 4
judgment (1) permitting the City to deduct ten percent of the 5
gross proceeds of the sale of a vehicle deemed forfeited and (2) 6
permitting the City to require Ford Motor Credit to execute a 7
release and indemnification agreement in the City’s favor before 8
the City releases the remaining ninety percent of the proceeds, 9
the latter issue having been resolved by agreement of the parties 10
reached after oral argument. 11
AFFIRMED. 12
JANET L. ZALEON, Assistant 13
Corporation Counsel (Michael 14
A. Cardozo, Corporation 15
Counsel of the City of New 16
York, Kristen M. Helmers, 17
Sheryl R. Neufeld, of counsel, 18
on the brief), New York, NY, 19
for Defendants-Appellants- 20
Cross-Appellees. 21
22
DAVID L. TILLEM and KATHLEEN 23
DALY, Wilson, Elser, 24
Moskowitz, Edelman & Dicker 25
LLP, White Plains, NY, for 26
Plaintiff-Appellee-Cross- 27
Appellant. 28
JOHN M. WALKER, JR., Circuit Judge: 29
The state has long had the power to forfeit property used 30

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1 We use the term “the City” as shorthand for the various 1
defendants to this action, including the New York City Police 2
Department and the Property Clerk of the City of New York. 3
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for criminal purposes, but the power’s pedigree does not excuse 1
the City of New York’s continued use of antiquated rules to 2
govern its exercise. Where the federal government once sought to 3
seize tax-delinquent distilleries without a hearing because its 4
need for funds was urgent, Springer v. United States, 102 U.S. 5
586, 593-94 (1881), the City now seeks to preclude Ford Motor 6
Credit Company (“Ford Motor Credit”) from participating in 7
forfeiture proceedings because the City is in no hurry. This it 8
may not do. We therefore affirm the district court’s considered 9
judgment in all respects. 10
BACKGROUND 11
Defendant-Appellant City of New York1 has authorized its 12
police department to seize any motor vehicle that is “suspected 13
of having been used as a means of committing crime or employed in 14
aid or furtherance of crime,” N.Y. City Admin. Code § 14-140(b), 15
as the first step toward obtaining title to the vehicle through 16
civil forfeiture, Krimstock v. Kelly (Krimstock I), 306 F.3d 40, 17
44 (2d Cir. 2002). Shortly after the City seizes a vehicle, and 18
after affording notice of the seizure to various interested 19
parties, including in many cases the holder of a security 20
interest in the vehicle, the vehicle’s owner or driver is “given 21
an opportunity to test the probable validity of the City’s 22

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2 Although captioned differently, Jones v. Kelly, 378 F.3d 198 1
(2d Cir. 2004), is the second episode in the Krimstock saga. 2
3 Under 38 R.C.N.Y. § 12-34(a), a person may also request that 1
the district attorney release his vehicle to the Property Clerk 2
prior to the conclusion of the related criminal case. 3
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deprivation of [the] vehicle[]” pending adjudication of the 1
City’s forfeiture case. Krimstock I, 306 F.3d at 70. If the 2
City also wishes to retain the vehicle as “arrest evidence” or 3
“trial evidence” pending conclusion of a criminal proceeding, 4
see 38 R.C.N.Y. § 12-31; Krimstock v. Kelly (Krimstock III),2 464 5
F.3d 246 (2d Cir. 2006), it may do so, see Krimstock III, 464 6
F.3d at 255; N.Y. City Admin. Code § 14-140(g); 38 R.C.N.Y. § 12- 7
36(a). 8
After what is now termed a “Krimstock” hearing, if the City 9
can justify the continued retention of a seized vehicle, either 10
because it is likely to prevail in the eventual forfeiture action 11
or because it wishes to retain the vehicle as evidence against 12
the owner or driver, it generally does not press further for 13
forfeiture until the district attorney’s office notifies the City 14
that a criminal case against the vehicle’s owner or driver will 15
not be brought or has been concluded.3 38 R.C.N.Y. § 12-35(d) 16
(providing a method for obtaining a district attorney’s release); 17
cf. County of Nassau v. Canavan, 802 N.E.2d 616, 623 (N.Y. 2003) 18
(discussing a similar Nassau County ordinance and noting that 19
“the [forfeiture] action may not be finally resolved for many 20

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4 As we explained in Krimstock I, “the statute here requires 1
only that a forfeiture proceeding be initiated within 25 days 2
after a claim is made.” 306 F.3d at 54 n.14. Ford Motor Credit 3
complains principally that the City is dilatory in prosecuting 4
forfeiture cases once begun. 5
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months or years, particularly because upon motion of . . . the 1
County, the action must be stayed during the pendency of the 2
underlying criminal case”). At that point, a “claimant” may 3
demand a seized vehicle’s return. See 38 R.C.N.Y. § 12-31. The 4
“term ‘claimant’ shall mean [only] the person from whose person 5
or possession [the vehicle] . . . was taken or obtained.” Id. 6
If no “claimant” demands the vehicle’s return within 120 days of 7
the conclusion of the criminal case, “[t]he [vehicle] may be 8
disposed of by the police property clerk” at his leisure. Id. § 9
12-32(e)(ii); cf. id. § 12-35(c) (providing that a demand is only 10
“timely if made within 120 days after the termination of criminal 11
proceedings”). 12
If, on the other hand, a claimant demands the vehicle’s 13
return, the City must institute a forfeiture action within 14
twenty-five days. Id. § 12-36(a).4 While only the vehicle’s 15
owner and/or driver is a claimant, see id. § 12-31, any party, 16
including a lienholder, is “not [a] lawful claimant” if 17
associated with criminal conduct involving use of the vehicle and 18
thereby precluded from recovering the vehicle, see N.Y. City 19
Admin. Code § 14-140(e) (one who “suffered [his vehicle] to be 20
used” in committing a crime is not a lawful claimant); id. (one 21

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5 This byzantine statutory scheme is a relic of the days when 1
a “lawful claimant” had to bring a civil action in replevin in 2
order to obtain the return of seized property. Krimstock I, 306 3
F.3d at 56 n.16. We reiterate what we have said in the past: We 4
see little reason to preserve such a complicated and outdated 5
scheme. See, e.g., Jones v. Kelly, 378 F.3d at 200; Krimstock I, 6
306 F.3d at 56 n.16 (criticizing “cumbersome construction”); 7
Butler v. Castro, 896 F.2d 698, 703 (2d Cir. 1990) (criticizing 8
failure “to eliminate the obsolete provisions of the Code”); 9
McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972). 10
11
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who “derives his or her claim in any manner” from someone who is 1
not a lawful claimant is also not a lawful claimant); Krimstock 2
I, 306 F.3d at 56 & nn.16-17. The City must afford all claimants 3
and “any other interested persons” notice of and an opportunity 4
to be heard in the forfeiture proceeding. See 38 R.C.N.Y. § 12- 5
36(b). However, only a “lawful claimant” is entitled to the 6
return of a vehicle seized by the police.5
7
If the City can show by a preponderance of the evidence that 8
it is entitled to forfeit the vehicle, see id. –- because it is 9
connected with criminal activity, thus precluding the existence 10
of a “lawful claimant” to the vehicle -- it may sell the vehicle 11
at auction. If a third party has a security interest in the 12
vehicle, the City will remit ninety percent of the auction 13
proceeds to that party. Ford Motor Credit Co. v. N.Y. City 14
Police Dep’t, 394 F. Supp. 2d 600, 604 (S.D.N.Y. 2005). However, 15
in order to obtain these funds, that person must submit an 16
“Auction Proceeds Claim Form” and execute a “General Release with 17

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6 The “General Release with Indemnification Agreement” used at 1
the time the City took this appeal reads in pertinent part: 2
“[T]he releasors will hold harmless the releasee, the New York 3
City Police Department . . . and indemnify same from any claim or 4
claims that may be asserted against them and for any damage, 5
expense or cost which the New York City Police Department may 6
suffer in connection with [the] property.” 7
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Indemnification Agreement.”6 Id. 1
The forfeiture process –- from seizure to auction –- takes 2
considerable time. See id. at 613 (“In [some] instances, the 3
Property Clerk held vehicles for extended periods of time without 4
instituting forfeiture proceedings or selling vehicles as 5
abandoned . . . .”); see also Prop. Clerk v. Duck Jae Lee, 702 6
N.Y.S.2d 792, 795 (Sup. Ct. 2000). During that time, the value 7
of a seized vehicle often decreases considerably. Cf. Krimstock 8
I, 306 F.3d at 64 (“[L]oss is felt . . . [as] a vehicle . . . 9
continues to depreciate in value as it stands idle in the police 10
lot.”). 11
Plaintiff-Appellee Ford Motor Credit levies a barrage of 12
challenges to the rules governing forfeiture proceedings. Ford 13
Motor Credit principally complains (1) that the City has refused 14
to consider secured creditors as “claimants” (or their analogue) 15
–- although they are in many cases “not lawful claimants” –- thus 16
precluding them from triggering the City’s duty to initiate a 17
forfeiture action within twenty-five days and (2) that the City 18
has refused to consider secured creditors as “interested persons” 19
entitled to notice of and an opportunity to be heard in 20

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7 Ford Motor Credit also contends that the City’s requirement 1
that secured creditors sign the “General Release with 2
Indemnification Agreement” “shocks the conscience” and violates 3
the Fourteenth Amendment. We need not consider this argument, as 4
the parties have agreed to amend the “General Release with 5
Indemnification Agreement.” Finally, Ford Motor Credit argues 6
that the City’s retention of ten percent of the auction proceeds 7
constitutes an excessive fine in violation of the Eighth 8
Amendment (or, in the alternative, also “shocks the conscience” 9
in violation of the Fourteenth Amendment). While there is cause 10
for some concern over the poor correlation between the 11
administrative costs the City likely incurs and the flat, ten- 12
percent fee it charges secured creditors, we agree with the 13
district court that the imposition of this fee does not violate 14
the Eighth Amendment and that “[t]he City’s actions do not rise 15
to the ‘conscience-shocking level’ that would be necessary to 16
support a claim of denial of substantive due process.” See Ford 17
Motor Credit, 394 F. Supp. 2d at 617 (internal quotation marks 18
omitted). 19
20
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forfeiture proceedings. Citing Mathews v. Eldridge, 424 U.S. 319 1
(1976), Ford Motor Credit argues that by refusing to permit it to 2
expedite and participate in the forfeiture process, the City has 3
deprived it of property without due process in violation of the 4
Fourteenth Amendment. The District Court for the Southern 5
District of New York (Sidney H. Stein, Judge) entered summary 6
judgment in Ford Motor Credit’s favor on these claims.7 It held 7
that “(i) Ford Credit is entitled to notice and an opportunity to 8
be heard in any forfeiture action commenced by the City 9
concerning a vehicle in which Ford Credit holds a valid security 10
interest; [and] (ii) the City must commence a forfeiture action 11
within a reasonable time upon a demand for a seized vehicle from 12
Ford Credit when Ford Credit holds a valid security interest in 13

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8 “[I]n the event of nonforfeiture,” the City argues that Ford 1
Motor Credit may “sue [vehicles’ owners] for return of the 2
vehicles or for such other relief as might be provided in their 3
contracts with [those owners].” Foley, 724 N.Y.S.2d at 580-81. 4
-9-
that vehicle.” Ford Motor Credit, 394 F. Supp. 2d at 620. The 1
City appealed, and we now affirm. 2
ANALYSIS 3
I. Application of the Due Process Clause 4
In adjudicating due process claims, “we consider two 5
distinct issues: 1) whether plaintiffs possess a liberty or 6
property interest protected by the Due Process Clause; and, if 7
so, 2) whether existing state procedures are constitutionally 8
adequate.” Kapps v. Wing, 404 F.3d 105, 112 (2d Cir. 2005). The 9
City relies on several state-court cases to argue that Ford Motor 10
Credit lacks a property interest in a seized vehicle distinct 11
from its interest in ninety percent of the proceeds from its 12
eventual, post-forfeiture sale (supplemented, to be sure, by any 13
deficiency judgment Ford Motor Credit may obtain against the 14
vehicle’s owner). See, e.g., Prop. Clerk v. Molomo, 613 N.E.2d 15
567, 567 (N.Y. 1993) (“Ford ha[s] no present possessory right in 16
the vehicle, and its remedy . . . is to receive the proceeds from 17
the City’s forfeiture sale and to seek any deficiency against the 18
debtor.”); Prop. Clerk v. Foley, 724 N.Y.S.2d 580 (App. Div. 19
2001) (same); Prop. Clerk v. Aquino, 800 N.Y.S.2d 355 (Sup. Ct. 20
2004).8 We disagree that Ford Motor Credit’s only cognizable 21

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property interest is in a vehicle’s sale proceeds. For the three 1
reasons that follow, we conclude that Ford Motor Credit also has 2
a property interest in the present value of a seized vehicle. 3
First, a security interest is indisputably a property 4
interest protected by the Fourteenth Amendment. See, e.g., 5
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 (1983); 6
United States v. 41741 Nat’l Trails Way, 989 F.2d 1089, 1092 (9th 7
Cir. 1993); United States v. 1 St. A-1, 865 F.2d 427, 430 (1st 8
Cir. 1989). A secured creditor has two rights: the contractual 9
right to repayment of the debt owed and the property right to the 10
collateral that secures the debt in the event of non-payment. 11
See Armstrong v. United States, 364 U.S. 40, 46 (1960). Thus, 12
while Ford Motor Credit may (conceivably) protect its contractual 13
right to repayment by seeking ninety percent of the proceeds from 14
a vehicle’s sale, the City’s delays impair Ford Motor Credit’s 15
property right, which is in the collateral itself -- the seized 16
vehicle. Cf. Armstrong, 364 U.S. at 46 (holding that a valid 17
Takings Clause claim lay where plaintiffs’ liens remained in 18
effect but were unenforceable against the collateral following 19
forfeiture); see also Matagorda County v. Law, 19 F.3d 215, 225 20
(5th Cir. 1994) (“Unmitigated delay, coupled with diminishment of 21
distinct investment-backed expectations, may, at some point, 22
infringe on the entire ‘bundle’ of rights . . . .” (emphasis 23
omitted)). Just as in Winston v. City of New York, where we held 24

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that teachers had a state-created property interest in the 1
present value of their pensions, so too, Ford Motor Credit has a 2
property interest in the present value of a seized vehicle. 3
Cf. 759 F.2d 242, 247-48 (2d Cir. 1985). 4
Moreover, at common law, when the government forfeits 5
property, “the vesting of its title in the property relates back 6
to the moment when the property became forfeitable.” United 7
States v. 92 Buena Vista Ave., 507 U.S. 111, 126 (1993). Under 8
the Takings Clause of the Fifth Amendment, the fair market value 9
of property taken is normally ascertained as of the date of the 10
taking. Yancey v. United States, 915 F.2d 1534, 1543 (Fed. Cir. 11
1990). Thus, were this a Takings Clause case, Ford Motor Credit 12
might well be entitled to the value of its security interest as 13
of the time the City seized the vehicle. It is hard to square 14
this authority with the City’s argument that Ford Motor Credit’s 15
property interest for due process purposes is limited to the 16
value of the vehicle at the later time of forfeiture. 17
Cf. Shelden v. United States, 7 F.3d 1022, 1031 (Fed. Cir. 1993) 18
(holding that the government must compensate mortgage holders for 19
the depreciation in their security interest between the date the 20
collateral became forfeitable and the date the government 21
obtained a final judgment of forfeiture). 22
Our conclusion accords with the Fourth Circuit’s decision in 23
In re Metmor Financial, Inc., 819 F.2d 446 (4th Cir. 1987). In 24

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that case, the court construed the Comprehensive Drug Abuse 1
Prevention and Control Act, 21 U.S.C. § 881 (1978), which 2
provides for forfeiture of certain drug-related property, to 3
require the government to pay interest on an interest-bearing 4
lien during the pendency of a forfeiture proceeding. The Fourth 5
Circuit explained, 6
[E]ven though forfeiture occurred prior to the actual 7
seizure, the government can succeed to no greater interest 8
in the property than that which belonged to the wrongdoer 9
whose actions have justified the seizure. Ackley purchased 10
the property encumbered by Metmor’s secured note, with 11
interest accruing. His equity was subject to an obligation 12
to repay the borrowed principal and to pay interest on the 13
unpaid balance until all of the principal was repaid. The 14
government now attempts to transform that note into one that 15
is unsecured and interest free. Such a result would deprive 16
Metmor of its stake in the forfeited property and would 17
constitute a taking without due process. 18
19
Id. at 448-49 (emphasis added). 20
The City argues that even if Ford Motor Credit has a 21
property interest in the present value of a seized vehicle, delay 22
does not “deprive[] [it] of that interest,” Sealed v. Sealed, 332 23
F.3d 51, 55 (2d Cir. 2003) (emphasis added); see also N.Y. State 24
Nat’l Org. for Women v. Pataki, 261 F.3d 156, 165 (2d Cir. 2001). 25
Again, we disagree. When the state delays resolution of a claim, 26
the claim holder’s Fourteenth Amendment rights may be implicated, 27
at least if the claim holder is not in equal part responsible for 28
the delay. See Canavan, 802 N.E.2d at 624 (“[A] hearing [is] 29
required to ensure that . . . innocent owners are not deprived 30
for months or years of cars ultimately proved not to be subject 31

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to forfeiture.”); cf. Connecticut v. Doehr, 501 U.S. 1, 11 (1991) 1
(holding that “cloud[ing] title; impair[ing] the ability to sell 2
or otherwise alienate the property; [and] taint[ing] any credit 3
rating” constitute deprivations); British Int’l Ins. Co. v. 4
Seguros La Republica, S.A., 212 F.3d 138, 141 (2d Cir. 2000) (per 5
curiam) (“[E]ven . . . temporary or partial impairments to 6
property rights . . . are sufficient to merit due process 7
protection.” (internal quotation marks and citation omitted)). 8
Here, not only is the present value of the claim diminished by 9
the indeterminacy of its eventual realization, but Ford Motor 10
Credit’s property interest in the underlying asset suffers, as 11
the vehicle depreciates over time. 12
II. The Process Ford Motor Credit Is Due 13
A. The City must permit Ford Motor Credit to participate in 14
forfeiture proceedings. 15
Pursuant to New York City regulations, the City must 16
“provide the claimant and any other interested persons with an 17
adequate opportunity to be heard” before it may forfeit a seized 18
vehicle. 38 R.C.N.Y. § 12-36(b) (emphasis added). The district 19
court interpreted the term “interested persons” to include 20
secured creditors like Ford Motor Credit. See Ford Motor Credit, 21
394 F. Supp. 2d at 610-11. We agree. 22
Section 12-36 explicitly applies only to the driver of a 23
seized vehicle. Compare 38 R.C.N.Y. § 12-36, with 38 R.C.N.Y. § 24
12-31 (defining a “claimant” as “the person from whose person or 25

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9 Although the Supreme Court has held that a state need not 1
permit an “innocent owner defense,” see Bennis v. Michigan, 516 2
U.S. 442 (1996), in Bennis, like every other forfeiture case 3
considered by the Supreme Court, an innocent owner was at least 4
entitled to “notice [and] an opportunity to contest the 5
[forfeiture],” id. at 446. 6
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possession property . . . was taken”). However, the canon of 1
constitutional avoidance, see Edward J. DeBartolo Corp. v. Fla. 2
Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 3
(1988); Courtesy Sandwich Shop, Inc. v. Port of N.Y. Auth., 190 4
N.E.2d 402, 405 (N.Y. 1963), requires that the term “interested 5
persons” be given a broad construction. For instance, an 6
innocent owner must surely be an “interested person.” See Prop. 7
Clerk v. Covell, 528 N.Y.S.2d 299, 301 (Sup. Ct. 1988); see also 8
Prop. Clerk v. Pagano, 573 N.Y.S.2d 658, 661 (App. Div. 1991); 9
Krimstock I, 306 F.3d at 57 n.18. Were an innocent owner not an 10
“interested person,” 38 R.C.N.Y. § 12-36 might well be 11
unconstitutional.9
12
The City argues that while we should construe the term 13
“interested persons” in § 12-36 broadly, it does not include Ford 14
Motor Credit within its ambit; the City contends that Ford Motor 15
Credit cannot be an interested person because it “has [no] 16
information to contribute on the illegal use of [a seized] 17
vehicle.” See Appellants’ Br. at 34. Even accepting the City’s 18
premise -- that only those with something to contribute to the 19
forfeiture proceeding can be “interested persons” -- its argument 20

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10 The City also relies on Foley for the proposition that Ford 1
Motor Credit cannot be an “interested party.” 724 N.Y.S.2d 580. 2
Not only does it read too much into Foley, cf. Molomo, 613 N.E.2d 3
at 567 (noting that Ford Motor Credit “received actual notice of 4
the City’s seizure of the vehicle and . . . [and has] fully 5
participated in legal proceedings pertaining to the vehicle’s 6
disposition”); Ford Motor Credit, 394 F. Supp. 2d at 611 n.5 7
(noting that Foley did not discuss § 12-36), but it ignores that 8
it is federal law that dictates the procedures required by the 9
Fourteenth Amendment, see Krimstock I, 306 F.3d at 60. 10
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fails. Were Ford Motor Credit permitted to participate in 1
forfeiture proceedings, it could protect its interest in the 2
present value of a seized vehicle in several ways: it could 3
expedite the litigation by moving the court to dismiss the action 4
for failure to prosecute, see Duck Jae Lee, 702 N.Y.S.2d at 795; 5
cf. United States v. Eight Thousand Eight Hundred & Fifty Dollars 6
($8,850) in U.S. Currency, 461 U.S. 555, 569 (1983) (noting that 7
a claimant can “file an equitable action seeking an order 8
compelling the filing of [a] forfeiture action or return of the 9
seized property” (citing Slocum v. Mayberry, 15 U.S. (2 Wheat.) 10
1, 10 (1817))), and also perhaps by seeking an order dismissing 11
the case on account of the vehicle owner’s delinquency in meeting 12
deadlines, cf. N.Y. C.P.L.R. 3216; Andrea v. Arnone, Hedin, 13
Casker, Kennedy & Drake, Architects & Landscape Architects, P.C., 14
840 N.E.2d 565, 569 (N.Y. 2005) (“Litigation cannot be conducted 15
efficiently if deadlines are not taken seriously . . . .”).10
16
The City also argues that Ford Motor Credit need not be 17
counted an “interested person” because it could protect its 18

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11 As we have explained, the City may retain a seized vehicle 1
as “arrest evidence” or “trial evidence.” Of course, Ford Motor 2
Credit may not seek the premature forfeiture of a vehicle that 3
the City wishes to retain for such purposes. 4
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interest in the present value of a seized vehicle by obtaining 1
title to the vehicle. However, “a party’s ability to take steps 2
to safeguard its interests does not relieve the State of its 3
constitutional obligation.” Mennonite Bd. of Missions, 462 U.S. 4
at 799. 5
B. The City must commence forfeiture proceedings within 6
twenty-five days from the date Ford Motor Credit makes a 7
demand on a vehicle, provided that a claimant would 8
otherwise be entitled to make a demand on the vehicle. 9
10
Unlike § 12-36, 38 R.C.N.Y. § 12-31 is clear on its face: 11
Ford Motor Credit is not a “claimant” and may not demand a 12
vehicle’s return. We must therefore consider whether the 13
Fourteenth Amendment requires that Ford Motor Credit be treated 14
as a claimant for purposes of triggering the City’s duty to 15
commence a forfeiture action within twenty-five days.11 In 16
answering this question, we have two analytical lenses at our 17
disposal. 18
In $8,850, the Supreme Court applied the four-factor test 19
propounded first in Barker v. Wingo, 407 U.S. 514 (1972), to a 20
challenge on due process grounds to the length of time between 21
the seizure of property and the initiation of a forfeiture 22
proceeding. See 461 U.S. at 565-70; see also United States v. 23
Banco Cafetero Pan., 797 F.2d 1154, 1163 (2d Cir. 1986) (applying 24

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Barker test). Yet in Krimstock I, we held that the Mathews v. 1
Eldridge test applied if property holders wished to challenge the 2
“legitimacy” of the City’s retention and forfeiture of their 3
property. See 306 F.3d at 68. 4
It is not clear whether we should apply Barker or Mathews to 5
this case. On the one hand, Ford Motor Credit seeks principally 6
to expedite the forfeiture process, see, e.g., Appellee’s Br. at 7
29-31, and the district court appears to have relied on Barker, 8
394 F. Supp. 2d at 614. Moreover, the second Mathews factor -- 9
“the fairness and reliability of the existing . . . procedures, 10
and the probable value, if any, of additional procedural 11
safeguards,” 424 U.S. at 343 -- is hard to apply, since the 12
gravamen of Ford Motor Credit’s complaint is not that the City 13
cannot forfeit seized vehicles, but rather that it must do so 14
more quickly. On the other hand, the fourth Barker factor -- 15
“prejudice to the defendant . . . [such that] the claimant [is 16
hampered] in presenting a defense on the merits,” $8,850, 461 17
U.S. at 564, 569 -- is equally hard to apply in this case. And 18
both the City and Ford Motor Credit seem to agree that 19
Mathews should govern. See Appellants’ Br. at 39; Appellee’s Br. 20
at 16. 21
We need not decide the question, however, since § 12-31 is 22
unconstitutional under either application. As the district court 23
explained, “the City has caused substantial delays,” 394 F. Supp. 24

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2d at 614, in violation of Barker. Consideration of the Mathews 1
factors -- “(1) the private interest affected; (2) the risk of 2
erroneous deprivation through the procedures used and the value 3
of other safeguards; and (3) the government’s interest,” 4
Krimstock I, 306 F.3d at 60 -- yields the same conclusion. 5
First, Ford Motor Credit’s interest in the present value of 6
a seized vehicle, while not as great as the interest of the 7
vehicle’s owner in possession of a seized vehicle –- because 8
seized vehicles are not used by Ford Motor Credit as “a mode of 9
transportation . . . [or] the means to earn a livelihood,” id. at 10
61 –- is still considerable. Indeed, the Supreme Court has 11
affirmed the importance of the income stream derived from 12
ownership of property. See United States v. James Daniel Good 13
Real Prop., 510 U.S. 43, 54 (1993) (noting that “Good was renting 14
his home to tenants,” but explaining that even if “the tangible 15
effect of the seizure was limited to taking the $900 a month he 16
was due in rent[,] . . . it would not render the loss 17
insignificant or unworthy of due process protection”); see also 18
Doehr, 501 U.S. at 12. The second Mathews factor also weighs in 19
Ford Motor Credit’s favor, to the extent it can be applied. The 20
owner of a vehicle, if he has in fact used the vehicle in the 21
commission of a crime, has little incentive to demand that the 22
City begin forfeiture proceedings. The risk of delay under the 23
current procedures is thus substantial. Third and finally, the 24

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12 We observe in passing that we do not require the City to 1
prosecute forfeiture cases inefficiently; it may still hold 2
blocks of seized vehicles and seek their forfeiture at one time. 3
13 Cf. Ford Motor Credit, 394 F. Supp. 2d at 615 (“[T]here is 1
no constitutional requirement that the City recognize Ford Credit 2
as a valid claimant for all purposes pursuant to 38 R.C.N.Y. 3
section 12-35(a). Rather, the City has a constitutional 4
obligation to institute forfeiture proceedings within a 5
reasonable time when an interested party, such as a lienholder 6
like Ford Credit, seeks a disposition with respect to a vehicle 7
in which it holds a cognizable property interest.”). 8
9
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government’s interest in refusing to honor a demand that it 1
commence a forfeiture action (after the conclusion of criminal 2
proceedings) is small. Indeed, one would think that the City 3
would wish to prosecute forfeiture cases rapidly, since it 4
obtains at least ten percent of the eventual sale proceeds. 5
Cf. James Daniel Good Real Prop., 510 U.S. at 55-56 (noting a 6
greater risk of erroneous deprivation where the government has a 7
pecuniary interest in retaining property). We thus agree with 8
the district court that “the City has a constitutional obligation 9
to institute forfeiture proceedings within a reasonable time when 10
an interested party, such as a [secured creditor] like Ford 11
[Motor] Credit, seeks a disposition with respect to a vehicle in 12
which it holds a cognizable property interest.” 394 F. Supp. 2d 13
at 615.12 We note only that we read the district court’s opinion 14
to afford Ford Motor Credit the same rights in this respect as a 15
claimant, and no more.13
16
In sum, we agree with the district court that henceforth, 17

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-20-
when Ford Motor Credit has a security interest in a seized 1
vehicle, the City must (1) permit Ford Motor Credit to 2
participate as a party in the forfeiture action and (2) commence 3
the forfeiture action within twenty-five days from the date that 4
Ford Motor Credit makes a demand on the vehicle, provided that a 5
claimant would otherwise be entitled to make a demand on the 6
vehicle. 7
CONCLUSION 8
For the foregoing reasons, the judgment of the district 9
court is AFFIRMED. 10
11

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