Supreme Court paves way for reform of civil asset forfeiture

• The Supreme Court struck a blow against civil asset forfeiture last month, ruling 9-0 that the Eighth Amendment’s ban on excessive fines also applies to the states.
• Civil forfeiture laws allow police to seize an individual’s property even if that person hasn’t been proven guilty of a crime.
• Despite the court’s unanimous agreement, many experts have cautioned against assuming that the problem of civil asset forfeiture will simply go away now.

A blow against civil asset forfeiture

The U.S. Supreme Court struck a significant blow against the practice of civil asset forfeiture last month with a 9-0 ruling that the Constitution’s ban on excessive fines as stated in the Eighth Amendment also applies to the states.

Civil forfeiture laws allow police to seize an individual’s property even if that person hasn’t been proven guilty of a crime. All they need is probable cause for believing the seized assets were used as part of criminal activity (often drug trafficking). Once taken, police can keep the property, such as cash, cars, or guns, as profit. This is why critics like to use the term “policing for profit.”

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” Justice Ruth Bader Ginsburg wrote. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies. . . Even absent a political motive, fines may be employed in a measure out of accord with the penal goals of retribution and deterrence.”

In the case in question, Indiana resident Tyson Timbs sold heroin from his $42,000 Land Rover, which he had purchased with money from his father’s life insurance policy. When police arrested him they seized his vehicle as well, even though the maximum fine for the crime he was charged with was $10,000.

The state went to court to keep the car. It lost to a lower court that ruled keeping the car was an excessive fine under the Eighth Amendment, but the Indiana Supreme Court said the state wasn’t bound by the Eighth Amendment in this situation. Timbs took the case to the Supreme Court.

“Over the years, the U.S. Supreme Court has explicitly ruled that almost all of the Bill of Rights applies not just to the federal government, but also to state and local authorities,” said Wesley Hottot, a senior attorney with the Institute for Justice, who argued the case on behalf of Timbs. “One of the few outlier provisions, however, was the Excessive Fines Clause, which was at issue in this case. Before now, the U.S. Supreme Court had held that two of the three clauses of the Eighth Amendment apply to the states. The Cruel and Unusual Punishment Clause protects your body, the Excessive Bail Clause protects your freedom, and the Excessive Fines Clause protects your property from unreasonable fines and forfeitures. The Supreme Court has now made it clear that the entire Eighth Amendment applies to governments at every level, so every American’s rights are protected.”

Immediate and future impact

Despite the court’s unanimous agreement, many experts have cautioned against assuming that the problem of civil asset forfeiture will simply go away.

“The hope for critics of civil forfeiture is that the Supreme Court’s decision. . . will make it easier to fight such seizures — and civil forfeiture in general — in court, or perhaps deter police from the seizures to begin with,” Vox reported.

Under the current system, however, nothing other than the threat of lawsuits stands in the way of police continuing the practice.

“State law enforcement will not find it any harder to conduct civil asset forfeiture.” David B. Smith, one of the nation’s legal experts on civil asset forfeiture and a critic of its abuses, told St. Louis Public Radio in an email. “The Court could have used this case to warn states and municipalities engaged in ‘policing for profit’ that their practices may violate the Due Process Clause. . . . But it didn’t.”

Among the questions the Court’s decision did not address was what, exactly, constitutes an “excessive” fine, leaving it to the lower courts to work it out in their particular contexts. It’s not uncommon in U.S. law for the Supreme Court to issue a broad pronouncement and then allow the lower courts to work out the specifics.

“Today’s ruling does not itself put an end to (civil forfeiture). It simply creates a means for lawyers to better contest those illegal civil asset forfeitures,” Southern Poverty Law Center lawyer Samuel Brooke told the Root. “But to the individual who cannot afford an attorney, they are in the same situation today they were in two days ago.”

Brooke noted that the system at the root of the problem is still in place and in need of change at the local level. Many local governments, he said, are still in a position of being dependent on fines and revenue from practices like civil forfeiture that create a “two-tiered system of justice,” disproportionately burdening the poor.

“If anyone calls himself a conservative and wants to make sure the government is not overreaching, he should not be comfortable with these abusive practices,” Brooke concluded.

One local lawmaker who was emboldened by the Supreme Court’s decision is Missouri State Rep. Shamed Dogan (R-Ballwin), who seized on the decision to catalyze the committee passage of a difficult bill to stop the largest source of civil forfeiture money that police make use of for new cars, prisons and weapons.

HB 444 passed unanimously through Dogan’s Special Committee on Criminal Justice. If signed into law, it would effectively block police from using cash seized from people never charged with a crime.

Lawyers at the Institute for Justice are optimistic the ruling will pave the way for broader change throughout the legal system.

“(The civil forfeiture) decision was the Court’s first opportunity to reexamine this doctrine in over 20 years,” said IJ Senior Attorney Darpana Sheth, who also leads the Institute’s Initiative to End Forfeiture Abuse. “We hope it will be the first in a series of cases that the Court takes on to fundamentally reconsider the constitutionality of civil forfeiture.”

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