Asset Forfeiture

Supreme Court Delivers Unanimous Victory for Asset Forfeiture Challenge

The Eighth Amendment prohibition against excessive fines and fees applies to states as well, SCOTUS rules, opening a new way to challenge outlandish forfeitures.

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JONATHAN ERNST/REUTERS/Newscom

States are bound by the Eighth Amendment's prohibition against excessive fines and fees when they seek to seize property or other assets from individuals charged or convicted of a crime, the U.S. Supreme Court ruled unanimously on Wednesday.

It's a decision that hands a major victory to critics of civil asset forfeiture, and it opens another avenue to legal challenges against that widely used (and often abused) practice by which states and local governments can seize cars, cash, homes, and pretty much anything else that is suspected of being used to commit a crime.

The case before the Supreme Court, Timbs v. Indiana, involved the seizure of a $42,000 Land Rover SUV from Tyson Timbs, who was arrested in 2015 for selling heroin to undercover police officers. He pleaded guilty to his crimes and was sentenced to one year of house arrest and five years of probation. On top of that, the state of Indiana seized his 2012 Land Rover—which he had purchased with money received from his late father's life insurance payout, not with the proceeds of drug sales—on the ground that it had been used to commit a crime.

Timbs challenged that seizure, arguing that taking his vehicle amounted to an additional fine on top of the sentence he had already received. The Indiana Supreme Court rejected that argument, solely because the U.S. Supreme Court had never explicitly stated that the Eighth Amendment applied to the states.

On Wednesday, the high court did exactly that.

"For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history," wrote Justice Ruth Bader Ginsburg in the opinion. "Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies," she wrote, or can become sources of revenue disconnected from the criminal justice system.

Indeed, some local governments do use fines and fees as a means to raise revenue, and that has created a perverse incentive to target residents. After the 2014 shooting of Michael Brown in Ferguson, Missouri, a federal investigation into the city government found that 20 percent of its general fund came from criminal fines. And Ferguson is not alone in relying heavily on revenue from fines. Making clear that the Eighth Amendment applies to the states will make it far easier to challenge unreasonable fines and fees—including not just asset forfeiture cases, but also situations where local governments hit homeowners with massive civil penalties for offenses such as unapproved paint jobs or Halloween decorations.

Some of those cases are already getting teed up. As C.J. Ciaramella wrote in this month's issue of Reason, a federal class action civil rights lawsuit challenging the aggressive asset forfeiture program in Wayne County, Michigan, that was filed in December argues that the county's seizure of a 2015 Kia Soul after the owner was caught with $10 of marijuana should be deemed an excessive fine.

More broadly, Timbs is a good reminder of how ridiculous the argument in favor of civil asset forfeiture really is. During oral arguments in November, Indiana's solicitor general got boxed into a corner by Justice Stephen Breyer, who managed to twist the government's lawyer into arguing that Indiana should be allowed to seize vehicles for as small an offense as driving 5 mph over the speed limit, which literally elicited laughter in the courtroom.

After Wednesday's ruling, there's a better chance that more civil asset forfeiture cases will be laughed right out of court for being what they obviously are: unconstitutional, excessive punishments that don't fit the crime.

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91 responses to “Supreme Court Delivers Unanimous Victory for Asset Forfeiture Challenge

  1. Good riddance. It canna come too soon. Too bad it won’t take down a lot of politicians, judges, cops, and prosecutors with it.

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  2. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies,” she wrote.

    But moderate fines to restrict speech are ok? This woman makes me nervous.

    1. Maybe you should actually read the opinion? Because what you claim has nothing whatsoever to do with what she wrote (and the rest of the Court unanimously agreed with).

  3. Holy shit, unanimous too. This is very good.

    1. That’s when you know you done fucked up.

    2. The majority of Supreme Court decisions are either unanimous or 5-4.

  4. I would love to hear comment on the Thomas concurrence in opinion.

    1. AFAICS, he is arguing (as he has before) that the privileges/immunities clause in the 14th amendment should be restored to its broader interpretation by overturning the Slaughterhouse Cases. That would in his opinion allow courts to more clearly distinguish what rights of US citizenship ARE fundamental and where the federal govt must protect them (those privileges and immunities) – and what rights are not a part of US citizenship but may be left to states.

      At core while he may not have an underlying agenda beyond a purist original meaning/intent/text – the change he wants would undermine the existing legal basis of decisions like Roe v Wade because ‘privacy’ is not deemed a fundamental right of US citizenship in the Constitution.

      1. Gorsuch expressed sympathy with Thomas’s approach but decided to go along with using Due Process anyway.

    2. Also, Thomas doesn’t believe in the constitutionality of “substantive” due process. I’m inclined to agree. The argument is simple: “substance” is the “what” of rights while “process” is the “how”, and these are very different. Due process should mean fair judicial procedures (right to a jury trial, right to a lawyer, right to favorable evidence, etc.), not defining rights outside of the justice system as it has been used.

  5. Back in 1999, in United States v. Bajakajian, the Clinton Administration wanted to confiscate $357,144 simply because Mr. Bajakajian, who was trying to take his own cash out of the country (for a legitimate purpose), didn’t report his action. Justice Thomas joined with the four court “liberals” to give poor Mr. Bajakajian a break. Voting to allow the cash grab were CJ Rehnquist, along with Justices Kennedy, O’Connor, and il Nino, aka “the Originalist”. Glad to see the Court is smartening up on some things.

    1. The right side of history is a great place to be.

      1. Then this must sadden you – the state can no longer use asset forfeiture to easily impose its will.

        1. don’t know about the Revver…. but this gladdens my heart something wonderful. That the state AND fedGo
          v can no longer wield such power or threat of it over anyone as a means to easily impose its will.That very concept flis in the face of all that establishes THIS country separate from all the others.

      2. Yet arty continues to look on from the other side, face pressed up against the window.

        1. The window at the back of the short bus, laving it with his tongue.

      3. And yet you oppose the Right at every turn…

  6. This is really good news – it was to be expected, given the previous coverage, but it’s still a good win.

    I wonder if this case will be able to be used to fight other unethical practices of some local courts. For instance, here in Missouri, even after the Ferguson aftermath, we have a major issue with local, mostly rural, jurisdictions charging room and board to the people they are forcing into prison.

    So you get convicted on some relatively minor charge – shoplifting something that is worth less than $20 – get thrown in jail for a month, and when you get out, they hit you with a hotel bill for your stay that might be $20 per day or more. When you can’t pay, you either get thrown back in prison, or you are forced to appear before a judge on a monthly basis to explain why you can’t pay. Miss one of those, and you’re back in jail again . . .

    Tony Messenger is a columnist with the St. Louis Post-Dispatch. I don’t normally agree with him on much, but he’s done a very nice job documenting a number of cases of this sort of thing all over the state:

    https://preview.tinyurl.com/yxkvxq9b

  7. I can drive 5 over the speed limit again!

    1. Still, to be safe do it in an old Chevy Vega

      Thje copper will be so astounded at what he thinks he is seeing he won’t believe his radar gun readout. And he’ll likely be too well entertained at what he sees he won’t be able to persue and “contact” to even ask you for the $40K he suspects you’ve got hidden in that old Derelictus Wrecks.

  8. Another shot taken by Thomas against Substantive Due Process. Is this the first time Gorsuch has also openly jumped on the P&I train? I still hope to see the death of Slaughterhouse in my lifetime.

    1. Should’ve said PorI train … looks ugly though … P(or)I?

      1. ha nobody gets those straight.

        >>> I still hope to see the death of Slaughterhouse in my lifetime.

        word.

        1. ha nobody gets those straight.
          You don’t want to bitwise and P with I.

    2. I still hope to see the death of Slaughterhouse in my lifetime.

      I’m not sure why overturning those cases is so significant.

      Yes I get that a strong privileges/immunities clause is part of the 14th

      But the actual details/context of the Slaughterhouse Cases – here a review of two books about them – indicates to me that simply overturning those cases is a problem too

      Are you saying there was a different way to get to the same outcome or are you saying the outcome was bad?

      1. Because overturning those cases significantly strengthens the BoR by removing due process workarounds by the govt. and should force the courts to apply strict scrutiny for amendments 1-8 none of this intermediate scrutiny or rational basis bullshit.

  9. No comments because there’s very little opportunity to bash the liberals here despite DJs weak attempt.

    1. Or because everyone agrees? God you’re dumb.

  10. The next step is to establish that any fine at all is an excessive fine absent a conviction. That would be the real end of civil forfeiture abuse.

      1. “Your Honor, take a good look at the defendants…”

        “I’m looking, I’m looking.”

        1. I order the defendants to be taken immediately from the court to my chambers.

      2. Does the cash get an attorney? Can it be put on the stand? (I envision a stack of pennies)

    1. The takings clause was incorporated in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago.

  11. This is good, but it’s sad that I’m surprised when the SC does the right thing.

  12. Wow, I didn’t know that the 8th have never been incorporated. It’s cool to observe a historic decision first hand.

    1. It was incorporated a long time ago. It took a long time for the courts to accept it.

  13. Will this ruling apply to Federal agencies which fine owners of companies, the shareholders, for the criminal actions of management and employees of the companies, such as Well Fargo, while not prosecuting the offenders?

  14. Will this cover the local taxing authorities that seize your property for taxes owed, sell your property to their connected friends for the price of the tax and fail to compensate you for the difference in the value?

    1. I don’t think so. What you are talking about is not a fine, punishment, or forfeiture. It also has nothing to do with crime either, so it has no bearing on the 8th amendment which deals with punishments for crimes. For that reason, this issue belongs in civil law and while a worthy fight for sure, it would be a completely different fight.

      1. Not to put to fine a point on it, but Civil asset forfeiture had nothing to do with crime (which was why government was able to seize property without ever charging a person, let alone convicting). This Frankenstein monster was specifically written into civil law as an endrun around citizens rights.

        As to the first part of your argument, you are correct in that tax sales are not a fine. They are however punishment and forfeiture. It’s kind of hard to get around. You are displacing someone from their property and disposing of it for less than market value. The far better alternative taken in most regions is public tax sales. Any thing beyond the value of the taxes that are unpaid goes to the person who didn’t pay the taxes. In the area where I live, properties with taxes not paid for 3 years are subject to this. This allows localities to maintain services via the revenue stream and prevents people from just refusing to pay taxes forever.

  15. Holy shit! I would never have guessed this in a million years, given the proclivities of the SCOTUS to make godawful rulings.

  16. Haven’t gotten notice, but I’ll bet IJ was involved here.

    1. Involved? It was their case.

      I need to up my monthly contribution.

      1. Indeed, I got an email. They’ll get more this year.

      2. Hoo boy! I can’t wait to see the Reason Mag cover with this IJ win on it! I might have to frame it and hang it on a wall!

  17. “For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history,” wrote Justice Ruth Bader Ginsburg in the opinion. “Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies,” she wrote, or can become sources of revenue disconnected from the criminal justice system.

    Dead women do tell tales.

  18. I’ll see this when I believe it. Heller got my hopes up only to see them dashed.

    1. You can keep your property as long as it stays locked up in your home.

  19. This is great. And I also applaud Gorsuch for also arguing for incorporation due to “privileges and immunities” along with Thomas.

    However I am confused:

    Article 1 of the Constitution of the State of Indiana states:

    Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.

    Yet Indiana’s SC argued that the 8th amendment to the US Constitution (at least the excessive fines) had never been formally incorporated. But what about their own state’s clause???? Either the punishment did constitute an excessive fine, in which case it violated the State constitution, or it did not, in which case it doesn’t matter if the 8th Amendment had been incorporated or not.

    1. “…Either the punishment did constitute an excessive fine, in which case it violated the State constitution, or it did not, in which case it doesn’t matter if the 8th Amendment had been incorporated or not.”

      Third alternative:
      The state did not find it excessive.
      Forth alternative:
      The plaintiff didn’t contest the issue under the state constitution.
      Picky, picky, and yep, that’s what the law is.

      1. I thought about the third alternative you mentioned, but I can find no where that the Indiana Supreme Court made a finding of fact related to the fine not being excessive. It seems it completely hinged on the idea that the States are simply not bound by the prohibition on excessive fines.

        In addition, the question before the Supreme Court was not whether or not the fine was excessive. So it doesn’t sound like anyone made the case that it wasn’t excessive.

        I do acknowledge that the fourth alternative is possible, and probably likely. What I don’t understand is why the plaintiff’s attorneys didn’t start with that.

        1. “I do acknowledge that the fourth alternative is possible, and probably likely. What I don’t understand is why the plaintiff’s attorneys didn’t start with that.”

          Dunno, but IJ is pretty selective regarding their clients and their appeal claims.
          Could be his first lawyer figured he had a better chance under US law, and lost, then IJ, just picked up the case and didn’t bother with IN law.
          Could be…

      2. Yes, indeed. The law is all about distinctions. That’s why we have case law.

  20. Serious question, why don’t we see a decision that incorporates all Constitutionally-protected rights instead of doing it piecemeal like this? Has there ever been a case or even compelling argument against incorporation of any rights?

    Someone posted this summary last week regarding incorporation of the Bill of Rights and I thought it was pretty interesting. Re-posting for those interested.

    1. Ah, from my own link I see that the right to a grand jury (5A indictment clause) was specifically not incorporated by Hurtado.

    2. Simply because each decision only adjudicates the matters in controversy. I can’t think of any case in which all potentially protected rights under the Constitution come up together. Therefore, piecemeal adjudication. That’s how it works.

  21. Could this help the newly bankrupt Paul Manafort?

      1. Apparently his politics are wrong for people to care. (/sarc)

  22. Excellent news!
    Civil asset forfeiture is downright evil. Glad to see one more step towards abolishing it entirely.

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  24. Every morning on my way into work I see the same cop at the same location pulling over individuals that happened to be running a little late to work. I know, they shouldn’t be speeding but the fact that the location is nowhere near a school zone or busy with pedestrian activity angers the fuck out of me! Policing for profit is highway robbery.

    1. My proposal is that every dollar gleaned through fines, asset forfeiture, or any related mechanism should be placed interested a fund a divided equally on per-capita basis to be returned to the taxpayers. Do this at every level of government.

      Government should not be authorized to appropriate a single dollar more that what is explicitly authorized as taxes by our supposed representatives in the legislature.

      1. Placed instead into*

  25. Governments at ALL LEVELS exist for the most part to favor themselves. If you don’t believe me, look at the “government” (Crookedment is more like it) of my former place of residence, the city of Carver in the county of Carver, MN. In fact, look at ANY governmental body in Minnesota and you will find it to be fascistic in nature, one of the MANY reasons we left that horrid state. Progressive politics are basically communistic without (for the time being) the concentration camps.

  26. Well, this is good news, but if I read it aright, the decision falls far short of what it SHOULD be.

    It declares that such seizure/forfeiture actions are “excessive fines or punishment” in cases where one has been indicted or convicted of a crime. Well it is, and good job for fixing THAT.

    But how about folks like the pastor from Texas who was driving in his own car, through Maryland, on his way to BUY A VAN FOR HIS CHURCH which deal had been worked out online and by phone, and was driving up to pay for and get the van to bring back home. He was foolish/ignorant/trusting enough to drive through Maryland, one of which state’s Armed Government Workers began flashing some coloured lights whilst behind him, pulling him over, searching his car (not doing anything wrong, nothing to conceal, right?) and in due course inspected the cash, which he promptly seized, desite having been told WHO his contact was, his mission, and the purpose for the cash, wihich if memory serves aright, was in excess of $20K. Trooper wrote not even a fix it ticket, went on his way with the cash….. last I heard the church were still trying to get the money returned. They had documentation of how it came to be in this man’s possession.
    SO.. no crime, not even articulated suspicion of one, a church gets fleeced for $20K+, no real recourse.

    1. DIs gotta END. The underlying lie is that the cash is somehow human enough to serve as a defendant in a legal action. Funny, I don’t recall the Constitition providing that cash money is human enough to defend against any accusation. It cannot, on its own behalf, hire an attorney, testify in its own behalf, nor cross examine witnesses or evidence against it.

    2. Your understanding of this decision is incorrect. All this does is explicitly incorporate the 8th amendment against the states, allowing individuals to make excessive punishment defenses.

      But you are right in that it does not appear to offer anything in cases where the assets were seized civilly without a corresponding criminal prosecution.

  27. Nice. Pity it didn’t get to the seizure of stuff from people not accused of, and/or never prosecuted/convicted fo a crime.

  28. I! J!
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    I! J!
    I! J!

  29. It is nice to see SCOTUS rule unanimously that the Constitution means EXACTLY what it clearly says. Too often some of the justices rule that…well…it’s a “living document” and we’re going to rule that you can (Wink! Wink!) do what we WISH it said.

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  32. Very surprised to see Ginsburg come out against arbitrary government theft of private property for once. I still hope to see Suzette Kelo bitch-slap her someday, though.

    -jcr

  33. And she quoted from MacDonald, in which she voted against.

    Is she actually taking MacDonald seriously?

  34. It’s about time, but I doubt it will stop government for very long. As each day passes, they become strapped for cash. This is going to get a lot worse along with rising taxes and outright theft.

    1. If you watch any of the game warden programs (Northwest Law, etc) you will hear the wardens in voice over explaining that the fines for fish and game violations, along with registration fees, are all applied to fish and game functions, including but not limited to stocking of lakes, maintaining forests and campsites, etc. It’s a dicey area.

  35. This is very good news. Civil forfeiture is expropriation, every much as senator Little White Dove’s wealth tax. It is worth thinking about why so many conservatives are in favor of it. The left does not have all the authoritarians.

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  37. This is good news on the asset forfeiture front. But really, it took a Supreme Court decision? Won’t this decision harm federalism? Or is this an illustration of what’s bad about federalism?

    1. Only SCOTUS has the authority to make binding rulings about what the Constitution means. The State court can state its opinion on the 8th Amendment, but it has no binding effect on other states.

  38. Unfortunately, The Court did not simply say that Asset Forfeiture, aka Civil Asset Forfeiture, aka Theft Under Color Of Law, as all to often practiced is no more. It is a process that, in the U.S.A., shall no longer be practiced by any level of government. Unfortunately, while The Court’s ruling leans in that direction, it did not “lean” far enough, for it should have flatly ruled to eliminate the practice.

  39. Indeed, Gary Johnson was on the side of forcing accommodation as I recall. Still probably the least awful candidate, but not very libertarian to many people that claim it.

  40. Only the property confirmed from illegal or should be protected by the law.
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