Supreme Court chips away at Civil Asset Forfeiture in 9-0 decision

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It’s a good day when all nine justices of the Supreme Court make a stand for liberty.

On Wednesday, the court held unanimously that the excessive fines clause of the Constitution’s Eighth Amendment applies to the states. The ruling is potentially a major win for property owners and individual citizens facing excessive fines, fees, and forfeitures—to say nothing of Tyson Timbs, the man who fought the seizure of his SUV all the way to the Supreme Court. 

Timbs was arrested after selling $225 worth of heroin to undercover police officers on two occasions, and he pleaded guilty. He was sentenced to a year of home confinement and five years’ probation, and was ordered to pay approximately $1,200 in fees and court costs. 

But then, Indiana moved to forfeit the car he was driving when he was arrested: a $42,000 Land Rover, which he had bought with money from his father’s life insurance policy.

The basis for this seizure was a practice called civil forfeiture, a law enforcement tool that lets police seize money or property that is alleged to have been used to commit a crime, or to be the proceeds of the crime. 

Although in this case the state secured a conviction against Timbs, that is hardly the norm in civil forfeiture cases. Very often, law enforcement will seize assets of the accused without an actual conviction. This can be done in cases that are “in rem,” meaning  the property itself is the defendant, not the individual. 

Under federal law and in most states, the owner of the forfeited property does not need to be charged or convicted to be permanently stripped of their home, car, or life savings.

These same laws also typically grant comparatively few due process protections to property owners, and allow law enforcement agencies to keep some or all of the resulting proceeds, and spend these funds with little oversight.

That financial incentive has led many agencies to treat forfeiture as a way to raise revenue, and because winning cases is relatively easy, governments often pursue forfeiture cases even when there is little evidence of actual criminal wrongdoing.

A ‘Deeply Rooted’ Right 

Timbs clearly committed a crime, but his case raised another issue: His SUV, which was seized as an instrumentality of that crime, was valued at more than four times the maximum criminal fine he faced under Indiana law. 

Was this seizure an “excessive fine” in violation of the Eighth Amendment?

Two Indiana courts agreed that it was, but the state Supreme Court held that the clause had never been applied to the states, and therefore are not bound by it.

When first ratified, the Bill of Rights applied only to the federal government. Beginning in the 1920s, the Supreme Court began “incorporating” some of its protections against state governments through the due process clause of the 14th Amendment.

Prior to Timbs’ case, the Supreme Court had incorporated the Eighth Amendment’s two other clauses that bar excessive bail and cruel and unusual punishment, in Schilb v. Kuebel (1971) and Robinson v. California (1962), respectively. But the excessive fines clause had been left out—until now.

Writing for eight of the justices, Justice Ruth Bader Ginsburg’s opinion—announced on her second day back after a lengthy absence—held that “the historical and logical case” for incorporation was “overwhelming.”

In order to be incorporated against a state, a right under the Bill of Rights must be “deeply rooted in this [nation’s] history and tradition,” and “fundamental to our scheme of ordered liberty.” 

As Ginsburg pointed out, “the Excessive Fines Clause traces its venerable lineage” back nearly a millennium, to Magna Carta in 1215 and later to the English Bill of Rights of 1689. Protection against abusive fines was universally understood to be a foundational right under English law—an understanding even the earliest colonists carried with them to the New World.

In fact, Ginsburg noted that by 1787, “the constitutions of eight [states]—accounting for 70 [percent] of the U.S. population—forbade excessive fines.” Today, every state prohibits excessive fines or requires they be proportional. The right against excessive fines is clearly a “deeply rooted” one.

But it is also fundamental to our free society. As the Supreme Court’s opinion notes, “[e]xorbitant tolls undermine other constitutional liberties.” History is replete with examples of this. From England’s Star Chamber to the Black Codes in the American South, arbitrary and excessive fines have been used time and again to undermine individuals’ basic civil rights.

Indiana, for its part, attempted to sidestep the broader issue of incorporation, arguing that the amendment “does not apply to its use of civil in rem forfeitures” because its application specifically to civil forfeiture “is neither fundamental nor deeply rooted.”

Indiana also asked the Supreme Court to overturn a prior case, Austin v. United States (1993), in which the justices unanimously recognized that civil forfeitures have historically been understood to act, “at least in part, as punishment.” Modern forfeiture practices share these punitive overtones, and so long as “in rem” forfeitures are at least partially punitive, they are “subject to the limitations” of the excessive fines clause.

Unanimous Ruling

The justices roundly dismissed Indiana’s arguments. 

First, the justices declined to overturn Austin v. United States. With that decision still in place, the protections it afforded under federal law must now be applied to the states in identical fashion. 

Second, the justices held that incorporating rights through the 14th Amendment requires the Supreme Court to ask “whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.” Thus, the Supreme Court need only show that the general right against excessive fines is fundamental, not whether there is a “deeply rooted” right against excessive civil forfeitures.

Justice Clarence Thomas concurred in the Supreme Court’s judgement, but disagreed as to its method for incorporating the clause. While the majority opinion relied on the due process clause of the 14th Amendment—something that many conservative and libertarian legal scholars have argued against—Thomas would have relied on the 14th Amendment’s privileges or immunities clause to incorporate the right against the states. 

Justice Neil Gorsuch, in a short concurrence, shared Thomas’ sentiment that, as “an original matter” the privileges or immunities clause would be the better avenue for incorporation. 

Thomas maintained that reading substantive rights into the due process clause is “oxymoronic” because due process “speaks only to ‘process’” or procedural protections. He observed that the Supreme Court’s substantive due process doctrine “allow[ed] the Court to fashion fundamental rights without any textual constraints … [such as in] the Court’s most notoriously incorrect decisions [including] Roe v. Wade [and] Dred Scott v. Sandford.”  

While there was some disagreement among the justices as to the best path to incorporation, all nine agreed that the excessive fines clause applies both to the federal and state governments. And once a right is incorporated, Ginsburg wrote, “there is no daylight between the federal and state conduct it prohibits.” 

Justice for Victims

Incorporating the excessive fines clause gives the victims of unjust property seizures a new avenue to recover their money or property in court. But its real impact won’t be known until the courts settle another important question: What is an “excessive” civil forfeiture? 

That’s a question for another day, but hopefully Timbs v. Indiana will mark a turning point in a broader effort to rein in abusive property seizures by state and local governments across the nation.

Republished from The Daily Signal with permission. By  Jason Snead @jasonwsnead Jason Snead is a senior policy analyst in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Read his research and Elizabeth Slattery @EHSlattery who writes about the proper role of the courts, judicial nominations, and the Constitution as a legal fellow at The Heritage Foundation. Read her research. She co-hosts SCOTUS101, a podcast about everything that’s happening at the Supreme Court.

Also on this subject:

Supreme Court Chips Away at Egregious Scam of Civil Asset Forfeitureby Dan Mitchell

It’s not easy being a libertarian. Thanks to senseless and harmful government policies, you run the risk of being perpetually outraged.

Well, we have some good news about that final example.

In a unanimous decision, the Supreme Court has chipped away at the odious practice of civil asset forfeiture.

Professor Ilya Somin, from George Mason University’s Law School, explains the legal issues.

The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is “incorporated” against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic “yes.” As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor. …the Court…previously ruled that the Fourteenth Amendment incorporates nearly all of the rest of the Bill of Rights against the states, including the Excessive Bail and Cruel and Unusual Punishment Clauses of the very same amendment. Justice Ruth Bader Ginsburg’s majority opinion offers a good explanation of why incorporation of the Clause is easily justified under the Court’s precedents.

This morning, the Wall Street Journal opined favorably on the ruling.

Police and prosecutors around America have long used asset forfeiture as a cash cow, but a unanimous Supreme Court ruling Wednesday should make them think twice. The Bill of Rights keeps paying dividends even after 228 years. …Justices left and right agree. In her opinion for the Court, Justice Ruth Bader Ginsburg held that the safeguard on excessive fines, quoting earlier cases, is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” …the Court’s ruling in Timbs v. Indiana puts states and cities on notice. Some police departments have set annual targets for asset seizures, and a limiting legal principle has been nowhere to be found. During oral argument, Indiana’s solicitor general said that if a driver in a Ferrari was going five miles over the speed limit, that could be grounds for police to take the car. …defendants trying to protect their property against unjust state seizure will now have the Constitution firmly on their side.

While this decision is good news, let’s not get too excited.

What we really need is for the Supreme Court to rule that the entire practice of civil asset forfeiture is unconstitutional.

Unlike criminal asset forfeiture, there’s no finding of illegal behavior in cases of civil asset forfeiture. Indeed, in many cases, the government steals the property of people who aren’t even charged with a crime!

That’s why it is so outrageous and immoral.

Here’s a short video on the topic from the Institute for Justice (which, incidentally, deserves credit for the victory at the Supreme Court).

P.S. It’s worth noting that the first two people to lead the Justice Department’s asset forfeiture division have repented their sins and say the racket should be ended. Too bad Trump is on the wrong side.

P.P.S. Given the human misery it has caused, we shouldn’t laugh about asset forfeiture, but this bit of humor is very entertaining.