South Carolina Judge Says State's Asset Forfeiture Programs Are Unconstitutional

from the and-SC's-programs-are-similar-to-others-all-over-the-nation dept

Asset forfeiture certainly seems unconstitutional. But we don’t have a lot of case law actually saying that. Something that began in the United States as a way to punish wrongdoers located elsewhere in the world, but whose property (usually a ship and its contents) had sailed into US jurisdiction, is now used by American law enforcement to take cash, vehicles, and whatever else they can haul away from people they think smell like weed.

The US government followed British law for its take on asset forfeiture. And yet, it was hardly ever used until the 20th century. Things ratcheted up during Prohibition, then faded away again. The New Prohibition — the never-ending Drug War — brought it back. And it’s bigger than ever, despite the public’s growing awareness that most of what’s called “civil asset forfeiture” is just legalized theft.

The Supreme Court of the United States said one state’s forfeiture program was unconstitutional. Citing the Eighth Amendment’s protection against excessive fines, the Court said a program that allows cops to take a $42,000 vehicle from a person charged with a crime that only generates a $10,000 maximum fine is unconstitutional. This was criminal asset forfeiture — there was a conviction involved — but the ruling seemed to signal seizures where no criminal charges are brought would make any amount excessive.

The other recent ruling against forfeiture came from a federal judge in New Mexico. The Albuquerque Police Department’s seizure of vehicles from drivers arrested for driving under the influence was called unconstitutional. It was also unlawful. A law passed by the state legislature banned this practice, but the PD didn’t actually stop until after this ruling.

So, asset forfeiture continues pretty much unabated. Fortunately, there’s been another ruling handed down that says pretty much everything about civil asset forfeiture is unconstitutional… in multiple ways. The downside is that, for now, it only affects part of one state.

A South Carolina circuit court judge in Horry County has ruled the state’s civil asset forfeiture law unconstitutional, in violation of the U.S. Constitution’s Fourth, Fifth and 14th amendments.

While the decision by 15th Circuit Court Judge Steven H. John doesn’t set precedent beyond his courtroom, it could set the table for a state appellate court to determine whether South Carolina needs to enact reforms to its law.  

South Carolina’s asset forfeiture programs are definitely in need of reform. Troopers camp on outbound highways to shake down drivers for cash. Cops respond to reports of crime by looking through victims‘ houses for any contraband that might excuse walking off with their cash. In one case, cops searched the house of a murder victim and helped themselves to $1,700 they found while looking for evidence of the crime they could hardly be bothered to investigate. Then they moved forward with the forfeiture, sending the notice of the PD’s claim to the murder victim.

The decision [PDF] doesn’t pull any punches. Judge John can’t find anything he likes about the state’s forfeiture programs. First up, it’s the Eighth Amendment, which — as incorporated by South Carolina’s Constitution — forbids excessive fines. Here, the judge draws the line the Supreme Court of the United States didn’t: forfeitures without convictions makes any seizure excessive. [emphasis in the original]

This Court finds that South Carolina’s forfeiture statutes violate both the federal and South Carolina constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

[S]outh Carolina’s forfeiture statutes would allow law enforcement to seize millions in assets from an individual when the maximum fine authorized by law is minimal or when no crime has been committed at all. This unfettered authorization to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed — indeed, without evidence proving that the individual committed an offense — compels this Court to find that the statutory scheme is unconstitutional and must be invalidated…

The Fifth and Fourteenth Amendments are violated by the burden shifting that occurs during forfeiture proceedings. This forces citizens to prove the seized property was acquired through legal means while only asking the government to show courts there’s a small possibility it’s correct in its assumptions of illegal origin. The entire process is backwards. Any system that allows the government to take property from individuals without even charging them with a crime wreaks havoc on the due process supposedly guaranteed by the Constitution.

But that’s not the only violation of these rights. The judge points out that the perverted incentives forfeiture programs create do further damage to the Constitution.

Forfeiture programs in South Carolina have an unconstitutional incentive to prosecute forfeiture cases because, in practice, these programs set their own budget and can spend forfeiture funds in any amount and on any items that they choose, including recurring expenses, and without any meaningful oversight. “Thus, there is a ‘realistic possibility’ that forfeiture officials’ judgment ‘will be distorted by the prospect of institutional gain’ — the more revenues they raise, the more revenues they can spend.”

Because the revenues generated by the forfeiture programs are used to pay the expenses of the forfeiture programs, to justify the salaries of forfeiture employees, and to maintain a level of discretionary spending that would not otherwise be available to the agencies involved, enforcement personnel have an institutional financial incentive to vigorously pursue forfeitures regardless of the merits of the action.

On top of that, there’s the quasi-judicial process, which is designed to efficiently separate people from property cops have seized from them. That’s another string of Fifth and Fourteenth Amendment violations.

Under S.C. Code the seizing agency is required to file a forfeiture action within a reasonable time of the seizure. The statute does not define a reasonable time. The law permits a seizure without a warrant if the seizure is made as incident to arrest or if probable cause exists to believe that the property was used in violation of the drug laws… The statute does not have a provision for any type of pre-seizure or post-seizure hearing to determine if probable cause exists… [T]he law does not provide for any judicial review or judicial authorization prior to or subsequent to the seizure.

In practice, many seizures under South Carolina’s forfeiture laws are not followed up by the filing of a forfeiture action, leaving many defendants with the choice of retaining an attorney to file a civil action against the state or simply allowing law enforcement to keep their money or property.

Because the statutes do not require a pre-seizure or post-seizure hearing, S.C. Code 44-53-520 and S.C. Code 44-53-530 do not comply with the due process clause of Article 1, Section 3 of the South Carolina Constitution or the Fifth and Fourteenth Amendments of the United States Constitution.

Judge John pitches a shutout. Asset forfeiture in almost any form is unconstitutional. Civil asset forfeiture in any form is unquestionably unconstitutional. Where the government chooses to take this from here will be interesting. Does it take the loss and limit the damage to this judge’s courtroom, meaning it will have to hope any forfeiture proceedings it engages in are routed around this new damage? Or does it challenge the ruling and risk having this spread across the state? If the agencies affected are greedy enough, they might just act against their own interest. And that could be good news for South Carolinians.

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Comments on “South Carolina Judge Says State's Asset Forfeiture Programs Are Unconstitutional”

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That One Guy (profile) says:

... yes, that will do nicely

A judge that not only rules the practice of robbery-at-badgepoint unconstitutional, points out exactly how, and is willing and able to point out the warped incentives it creates? Where’s a cloning machine when you need one?

Now if all the other judges will take note and follow suit such that the legal abomination will finally suffer a well overdue death that’d be all the better.

JoeCool (profile) says:

Re: who can legally appeal his verdict?

Don’t worry, these people are not just greedy, but stupid as well. They’ll certainly appeal thinking only of their "lost" millions of ill-got goods. They also probably believe in the corruption culture, so they believe they’ll win at the next level. The sad thing is, they’re probably right. This may have to go to the SCOTUS before it gets resolved, but with the last ruling on Criminal Asset Forfeiture, maybe they’re ready to take on Civil Asset Forfeiture as well.

hegemon13 says:

Re: Re: who can legally appeal his verdict?

SCOTUS may weigh in on the federal Constitutional violations if the case gets that far, but they have no say in the state violations. And since each violation here cites both state and federal constitutional articles, it’s doubtful the SCOTUS would even hear the case, since their opinion would have no real impact on the outcome. Even if they invalidated the federal violations, the state violations would remain, and it would still be a loss for asset forfeiture in the state (and a win for all other South Carolinans.)

Henry Bowman (profile) says:

Re: who can legally appeal his verdict?

If you look at who the defendant’s lawyers were in each of these cases, chances are excellent that they were the Institute for Justice, a legal firm dedicated to defending the economic rights of Americans. All their work is PRO BONO to their clients, and funded strictly by charitable donations. You can make a donation at, or even just rack up passive donations to them by choosing them as your Amazon Smile charity. Freedom-loving Americans will thank you.

Anonymous Coward says:

Re: who can legally appeal his verdict?

Not really. The DEU would have to hire them; random groups can’t just decide to appeal other people’s cases. And then, unless the DEU told them to lose, it would certainly be unethical to lose on purpose; you need act in the interests of your client, not for your organization’s aims. But even if that somehow happened, once it was clear that no effort was being made to win, the appeals court would probably make the decision "unpublished" so it would have no precedential value.

This comment has been deemed insightful by the community.
Peter says:

"we didn't know"

"…., despite the public’s growing awareness that most of what’s called "civil asset forfeiture" is just legalized theft….."

This the public whose attention span on legal issues is severely limited. And yet, thousands of Judges, who’s entire adult life has been spent studying the law and it’s consequences, seem to be supremely ignorant of the whole topic.

And for all the decades, multiple thousands of lawsuits and media reports this has been happening, ONE Judge has only just noticed that this law violates several parts of the Constitution. Truly justice is deliberately blind.

Anonymous Coward says:

If the agencies affected are greedy enough, they might just act against their own interest.

This is almost guaranteed. They’ve all become addicted to free, easy cash and the boats and guns that affords them. I do sincerely hope they push this and that their string of losses takes them all the way to the SCOTUS. It’s about damn time law enforcement was put back in its place.

Anonymous Coward says:

The US government followed British law for its take on asset forfeiture. And yet, it was hardly ever used until the 20th century.

Umm, I can think of some reasons for that.

"The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world. […] He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance. […] He has affected to render the Military independent of and superior to the Civil Power. […] He has plundered our Seas, ravaged our Coasts, burnt our Towns, and destroyed the Lives of our People. […] We, therefore […] solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, Free and Independent States; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved […]."

BG (profile) says:

How did this ever start?

This judgement is quite sensible and long overdue in my opinion but I’m puzzled as to how it got so bad in the first place.

In Ireland we have something similar and the authority to seize criminal assets resides solely in the hands of the Criminal Assets Bureau (CAB). They have to go to a judge with the list of assets, get it approved before they can actually seize anything. Some criminals have appealed the seizures but not once has a seizure been overturned to the best of my knowledge.

Outside of CAB nobody has the authority to do this and it has been fairly successful in so far as it crippled some drug gangs. Power vacuums meant new gangs rise up to take their place but overall asset seizure has helped remove some criminals from the playing field.

I don’t understand how a tool such as this was ever put in the hands of local police across the US to misunderstand (accidentally or otherwise), abuse and misuse. It makes far more sense for it to be used at the federal level rather than local police level.

nasch (profile) says:

Re: How did this ever start?

I don’t understand how a tool such as this was ever put in the hands of local police across the US to misunderstand (accidentally or otherwise), abuse and misuse. It makes far more sense for it to be used at the federal level rather than local police level.

There’s a key word in there: federal. Because of our federal system, the national Department of Justice has (theoretically) limited authority. They can investigate and prosecute violations of federal law, but they have no (or very limited) jurisdiction to get involved in state and local matters. Most European countries, including Ireland, are unitary states, where the regional governments (states, counties, provinces, etc.) have much less autonomy.

Tanner Andrews (profile) says:

what they call "persuasive"

Does it take the loss and limit the damage to this judge’s courtroom

It does not necessarily stop at this courtroom. While it is not binding precedent, except maybe for the county courts in that circuit, it is likely that it will be submitted to the state’s unofficial trial court reporter.

With that, and no binding precedent, attorneys are likely to cite it as persuasive authority. That is, essentially, saying that one judge already agreed with our argument and so should you.

Attorneys often cite persuasive authority rather than binding authority. If there is any question, the good ones will mention that it is persuasive rather than binding, urging that the court adopt the "well-reasoned opinion of" the judge in cited case.

You see this crossing state lines, even. For instance, few states have the history of open government that Florida had from the last 1960s even unto the early 2000s. Florida is rapidly trying to destroy its good reputation, with the legislature spending much time each year carving out new exemptions, but courts in other states cite Florida cases to aid in interpretation of their open government laws.

I have every confidence that attorneys fighting asset forfeiture, nationwide, will cite this judge’s opinion. Especially in cases without conviction, it does provide an answer as to the constitutionality of such takings.

Yes, I use the term "takings" intentionally and in a Fifth Amendment sense.

The Original Invisible Chickenking says:


CAF in Tennessee is way out of control. Those dogs stole $12,500 cash from me because I had 72 grams of legally purchased Weed from NJ in my trunk on I-40, which they illegally searched. I wasn’t smoking, drinking or speeding. It was a DWB offense. I’ve played by the rules my whole life and got cheated by lazy, cowardly, jealous-ass cops every decade of my life, I’m DONE! Now, I’m the cheater!!!
They ruined my life. That was all the money I had. I was born in the 1900’s and now I’m homeless.
I have an upcoming Hearing in Nashville and if those bitches don’t give me back my money, I will become that “Black Nigger” (that they secretly fear) running loose on their Nashville streets. I’ll be making a profit off of their children’s addiction to the Fentanyl I will be flooding their neighborhoods with.. Misery loves company…

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