Posted on 12/05/2018 9:36:47 AM PST by NobleFree
This week, the U.S. Supreme Court heard oral argument in a case that may rein in abusive property seizures by state and local governments through the highly controversial legal tool known as civil asset forfeiture.
The case at issue involves a man named Tyson Timbs, who sold $225 worth of heroin to undercover police officers on two occasions, as a means of raising money to support his own drug habit. Police arrested Timbs while he was driving to a third drug deal, and he ultimately pleaded guilty.
He was sentenced to a year of home confinement and five years of probation, and assessed roughly $1,200 in court costs and fees. Then the state of Indiana moved to forfeit the vehicle he was driving that day: a $42,000 Land Rover, which Timbs purchased with funds from his father’s life insurance policy.
Civil forfeiture is the law enforcement practice that allows police to seize currency or property alleged to have been used to commit a crime, or to represent the fruits of that crime.
This type of proceeding is known as a civil in rem forfeiture, meaning the defendant is the property itself, and the state does not need to pursue criminal charges or win convictions to permanently strip owners of their homes, cars, or life savings.
In the United States, civil forfeiture was largely relegated to admiralty and customs law until the 1980s, when Congress and the states expanded its reach to permit its use against drug kingpins, money launderers, and organized crime.
But federal and most state laws permitted agencies to keep some or all of the proceeds of their seizures, and afforded property owners so few due process protections that the government can successfully win a forfeiture case even when it has little or no evidence of criminal behavior.
This was clearly not the case for Timbs, but seizing a $42,000 car as an instrumentality in a minor drug offense, the maximum criminal fine for which was $10,000, raised an important question: Was the seizure of Timbs’ car unconstitutional under the Excessive Fines Clause of the Eighth Amendment?
Both the trial court and an appeals court held that it was, but the Indiana Supreme Court ruled that the U.S. Supreme Court has never explicitly held that the clause applied to the states, a process known as incorporation.
Most people would probably be surprised to learn that not all of the guarantees in the Bill of Rights apply against state governments.
Though the Supreme Court made it clear in Barron v. Baltimore (1833) that these rights only restricted the federal government, starting in the 1920s, the court began incorporating provisions of the Bill of Rights against state governments through the Due Process Clause of the 14th Amendment.
Today, neither states nor the federal government may abridge free speech, establish official religions, engage in unreasonable searches or seizures, or take property without just compensation.
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
While the Supreme Court has ruled that the prohibitions on excessive bail and cruel and unusual punishment apply against the states in Schilb v. Kuebel (1971) and Robinson v. California (1962), the court has indeed never held that the Excessive Fines Clause applies to the states as well.
After this week’s argument, that appears likely to change. At oral argument, the justices appeared to uniformly consider the question of incorporation to be settled.
When the lawyer for Indiana, Solicitor General Thomas Fisher, stood up at the podium, Justice Neil Gorsuch said, “We all agree that the Excessive Fines Clause is incorporated against the states … can we at least get the theoretical question off the table?”
Justice Brett Kavanaugh chimed in, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”
Fisher was not prepared to concede the point, responding that the court “has never incorporated a right against the states where it could not conclude that there was a relationship that was fundamental or … deeply rooted in our history and tradition.” He asserted that applying constitutional protections against property seizures would be a novel and historically unsupported move.
Instead, he argued that the court should overrule its own precedent from a 25-year-old case, Austin v. United States (1993).
In Austin, the court held that civil forfeitures historically have been understood to act, “at least in part, as punishment,” and modern civil forfeiture practices have the same punitive overtones. Given this, the court held that federal in rem forfeitures that are punitive in nature are “subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.”
Later, in United States v. Bajakajian (1998), the court clarified the test of excessiveness in the forfeiture context when it declared the forfeiture of a large amount of currency to be unconstitutional on the basis that it was “grossly disproportional to the gravity of [the] offense.”
The justices did not seem interested in reversing course. When Justice Stephen Breyer asked Fisher whether, under his theory, “a state needing revenue” could forfeit every vehicle found merely to be speeding, Fisher responded, “Yes.”
Several justices seemed perturbed by the implication that states and localities would be able to levy otherwise unconstitutional fines merely by saying they are forfeitures.
Many law enforcement agencies already treat forfeiture as an easy means of seizing their way to bigger budgets. Each year, hundreds of millions of dollars in cash and property are forfeited and the revenues subsequently spent with little oversight or accountability.
Timbs’ attorney, Wesley Hottot of the public interest law firm the Institute for Justice, picked up on this, arguing that exempting forfeitures from the Excessive Fines Clause would permit “governments at all levels to impose constitutionally excessive civil in rem forfeitures based on nothing more than a label.”
But while there seemed to be broad support for incorporating the Excessive Fines Clause, and possibly for holding that the clause does indeed apply to civil forfeitures that are punitive in nature, there was no clear agreement about how to define an “excessive” civil forfeiture.
Justice Samuel Alito wanted to know if the civil forfeiture of a $1,500 Kia and a $250,000 Bugatti should be treated the same under the Excessive Fines Clause.
Hottot responded that forfeiture of any vehicle in this case is excessive because the “vehicle was not instrumental to this crime. It was incidental.”
Chief Justice John Roberts pointed out that the Land Rover was clearly “an instrumentality of the crime” and that “it’s pretty well established” that instrumentalities “can be forfeited.”
Hottot countered that, while true, it could nevertheless be excessive based on, for example, the burden its seizure placed on a property owner—particularly an “innocent owner” who was neither aware of, nor consented to, the misuse of his property.
Such seizures are a real and often tragic phenomenon. For example, the city of Philadelphia attempted to seize the home of Chris and Markela Sourovelis because their son, unbeknownst to them, had sold $40 worth of drugs on the property.
Later in the argument, Justice Elena Kagan said that it “seems as though there are two questions”—whether to incorporate the right, and what “is the scope of the right to be incorporated.”
The Timbs case only asks the first question, and the court can—and likely will—hold that the Eighth Amendment’s protections against excessive fines are incorporated against the state, leaving the more complicated question of how to define an “excessive” civil forfeiture to another day.
If it does, the court will have delivered a significant victory for the property and due process rights of millions of Americans.
I feel like as much of a “law and order” type as most people, but these “civil seizures” are often unfair and actually seem like a form of theft.
Here in Texas, getting Abbott to reign in civil forfeiture is like attempting to get Pam Anderson to condemn excessive plastic surgery.
They're absolutely theft under color of law; if the property was involved in a crime, bring criminal charges against the owner.
If a person has been convicted in a court of law, then I’m OK with a seizure of relevant property. Deal drugs out of your car, lose your car. Deal drugs out of your house, lose your house.
But too often these seizure occur without any court ruling. Then it is - as you said - theft. The Supreme Court must fix this.
Don’t do the crime if you can’t do the time, pay the fine, or have your stuff seized. All punishments are based on inflicting some form of pain through deprivation of freedom, money, or other things of value. I’ve never had a problem with civil seizure, especially in drug cases where everyone knows in the vast majority of cases the money used to buy that fancy hoopty didn’t come from dad’s life insurance policy.
LOL! Politicians would generally rather fatten the till their hands and their cronies' are in.
But this guy was a smack dealer and paid forty two large for a Land Rover. What a stereotype. Let the govt keep the SUV and put it to use in undercover operations. Across the seas to the west, Duterte would have had the perp killed and seized his property anyway.
These property seizures by government violate the Constitution from multiple perspectives; thus, because they violate the “law of the land” they are illegal and un-Constitutional.
What crime? Civil asset forfeiture by definition involves no criminal charge.
I prefer the Founders' America - maybe you should consider relocation to a land more to your liking.
” ... and actually seem like a form of theft. “
... seem ?
Overturn civil forfeiture and Kelo in one fell swoop.
Convict drug dealers for dealing. Sentence them to long sentences.
But don’t make that an occasion for government theft.
I’m not thinking about one particular case. My concern is these seizures of property that go on for months or years even when there has been no conviction. If the state cannot convict you of a crime in that amount of time, then they should return the property, as they have had plenty of time for forensic examination and documentation of the property. Remember, the suspect is still presumed innocent until proven guilty in a court of law.
I would agree about don’t do the crime but civil forfeiture can be used against you simply because you have a large amount of cash on you and no mean s to account for it. People who travel with cash for a particular legal business are very susceptible.
The Supreme Court ruled, for the first time, in 1833, that the entire Bill of Rights did not apply to the states. It was obvious, before then, that some applied and some didn't.
The 1833 ruling was overturned in 1868 when the Fourteenth amendment was ratified, specifically to apply the Bill of Rights to state governments.
Then the Supreme court essentially nullified the Fourteenth amendment through various rulings, including U.S. v. Cruikshank (1876), and Presser v. Illinois (1886).
It wasn't until the 1900's that the Supreme Court started, gradually and intermittently, to enforce the Bill of Rights against the states, on a very limited basis.
Had a friend who was a “little tin god” type cop that loved the asset forfeiture provision in the law. He said it helped to supplement the PD department and it hurts the criminals. I reminded him of his oath to the US Constitution and that the Constitution’s 4th Amendment doesn’t allow confiscation of personal property of one not yet convicted of a crime. My challenge obviously offended him. His retort was; “the law says we can take their property based on suspicion and your not a cop so you don’t know who we have to deal with everyday. The people who lose their property are usually serious criminal scumbags who deserve to lose everything they have.” He’s retired now but his little tin god attitude hasn’t changed.
Kavanaugh chimed in,
“Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”
Anybody that lives in places like Mass know that the 2A NOT incorporated.
(or any place requiring some sort of state fiat license to purchase/ possess)
The worst is the cop that pulls someone over for whatever, riffles through the driver’s wallet, finds cash, and takes it, calling it “suspicious,” “possibly involved in drugs,” blah, blah, blah.
Pure unadulterated theft.
How do you tell the cops from the robbers?
The cops have badges.
This travesty is long overdue to be ended.
“All punishments are based on inflicting some form of pain through deprivation of freedom, money, or other things of value. I’ve never had a problem with civil seizure, especially in drug cases where everyone knows in the vast majority of cases the money used to buy that fancy hoopty didn’t come from dad’s life insurance policy.”
Seizure that is not the result of due process is unconstitutional.
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