Supreme Court Appears Inclined To Apply The Eighth Amendment To Civil Asset Forfeiture

from the on-the-road-to-recovery? dept

The Supreme Court heard oral arguments recently in a case that may result in some involuntary reforms to state civil asset forfeiture laws. The case involves Tyson Timbs, an Indiana resident who had his $42,000 Land Rover seized by law enforcement after selling $260 worth of heroin to undercover cops.

Despite securing a conviction, law enforcement chose to forfeit Timbs' vehicle in civil court. This may have been to keep Timbs from challenging the seizure as excessive, given the crime he was charged with maxxed out at a $10,000 fine. This is how Timbs is challenging this forfeiture, however. That's how this case has ended up in the top court in the land.

A lower court in Indiana found in his favor, finding the seizure to be a violation of Timbs' Eighth Amendment protections against excessive fines. The state's top court overturned this ruling, prompting the appeal to the US Supreme Court. The state argues the Eighth Amendment's protections do not apply to civil asset forfeiture. This is a curious position, because it's basically stating Indiana's government gets to pick and choose what guaranteed rights its residents have access to.

From the oral arguments [PDF], it sounds like the court is going to rule in Timbs' favor and find that these Eighth Amendment protections apply to state-level forfeitures -- civil or criminal. The state's Solicitor General, Thomas Fisher, failed to impress the court at almost every turn.

It all starts with Justice Gorsuch trying to set the ground level for discussion: that it's undisputed fact the Eighth Amendment's excessive fines clause applies in Indiana.

JUSTICE GORSUCH: General, before we get to the in rem argument and its application to this case, can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states. Whether this particular fine qualifies because it's an in rem forfeiture, another question.

But can we at least get the -- the theoretical question off the table, whether you want to do it through the Due Process Clause and look at history and tradition, you know, gosh, excessive fines, guarantees against them go back to Magna Carta and 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history, or whether one wants to look at privileges and immunities you might come to the same conclusion. Can we at least -- can we at least agree on that?

MR. FISHER: I have two responses to that. First -­

JUSTICE GORSUCH: Well, I -- I think -- I think a "yes" or "no" would probably be a good starting place.

As Fisher tried to argue around that by claiming it really should only apply to cases of criminal forfeiture ("in personam" [against a person] rather than "in rem" [against property] forfeitures), Gorsuch again shut him down, showing a bit of exasperation while doing so.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?

MR. FISHER: Well, again, that depends.

JUSTICE GORSUCH: I mean, most -- most of the incorporation cases took place in like the 1940s.

MR. FISHER: Right.

JUSTICE GORSUCH: And here we are in 2018 -­

MR. FISHER: Right.

JUSTICE GORSUCH: -- still litigating incorporation of the Bill of Rights. Really? Come on, General.

This was followed by new installation Brett Kavanaugh trying to get the state's lawyer to admit the state had adopted the Eighth Amendment and its clauses -- which includes protections against excessive fines, no matter what form they take.

The state's lawyer believes the Court should leave the state court ruling alone, and allow Indiana to go on claiming the Eighth Amendment doesn't apply to civil forfeiture. To do so, the state basically argues people have rights but their possessions don't. This led to Justice Ginsburg reminding the government's lawyer that property belongs to people who have rights.

So, whether you label it in rem or in personam, let's remember that it's -- things don't have rights or obligations in and of themselves. It's people that have rights or obligations with respect to things.

The state's insistence that the excessive fines clause does not apply to civil asset forfeiture allows Justice Breyer to strike at the heart of this form of forfeiture and the abuse it encourages because it's so often unchecked by local laws.

JUSTICE BREYER: Well, in your view, an in rem civil forfeiture is not an excessive fine, is that right?

MR. FISHER: Yes, that is -- that is true.

JUSTICE BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy? (Laughter.)

MR. FISHER: There -- no, there is no -- there is no excessive fines issue there. I -- what I will say and what I think is important to -- to remember is that there is a constitutional limit, which is the proof of instrumentality, the need to prove nexus.

JUSTICE BREYER: That isn't a problem because it was the Bugatti in which he was speeding. (Laughter.)

MR. FISHER: Right.

JUSTICE BREYER: So -- so there is all the nexus.

MR. FISHER: Historically -­

JUSTICE BREYER: Now I just wonder, what -- what is it? What is it? Is that just permissible under the Constitution?

MR. FISHER: To forfeit the Bugatti for speeding?

JUSTICE BREYER: Yeah, and, by the way, it was only five miles an hour -­

MR. FISHER: Yeah.

JUSTICE BREYER: -- above the speed limit.

MR. FISHER: Well, you know, the answer is yes. And I would call your attention to the -­

JUSTICE BREYER: Is it yes?

MR. FISHER: Yes, it's forfeitable.

Not a single justice who spoke was on the state's side. If the ruling comes down in favor of Timbs, it still may be a narrow ruling, which will mute its impact. If all SCOTUS wants to do is say the Eighth Amendment excessive fines clause applies in Indiana, but not specifically to civil forfeitures, the state can continue with forfeiture business as usual. But if it applies that clause to civil forfeiture, the state is going to have a hard time justifying taking expensive stuff from people they've charged with minimal violations or haven't charged at all.

The biggest effect will be felt by those who've had their property seized by the government via this process. They'll actually have something far better than the minimal protections afforded them. As it stands now in many states, trying to reclaim property is an expensive, labyrinthine process that heavily favors the government. Being able to challenge a seizure on Constitutional grounds means the government has to prove far more than the property could imaginably be tied to criminal activity. It would also have to demonstrate the punishment doesn't outweigh the crime.

The potential downside is this: prosecutors may stack charges until they roughly equal the value of whatever's been seized. This could result in a lot of defendants having the book thrown at them while the state processes their property through civil proceedings.

Even with this downside, it's heartening to see the nation's highest court recognizes the perverse incentives of civil forfeiture and the damage it does to citizens and their inherent rights. Hopefully, this will make the court more receptive of future forfeiture cases where broader precedent may be set that will stem the flow of abuse resulting from this highly-questionable law enforcement practice.


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  • icon
    radix (profile), 30 Nov 2018 @ 3:54pm

    I am but a lowly citizen, not versed in the intricacies of the legal system, but I've always thought: criminal cases involve the state vs a private party; civil cases involve two private parties.

    Why are states/cities/whatever even allowed to choose which system is more favorable? If a person has harmed the public at large, it's a criminal case. If they have not, it's up to the damaged party to file a civil case.

    Governments being allowed to file civil complaints in the first place seems to be the root of this problem.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Monkey (profile), 30 Nov 2018 @ 4:01pm

      Re:

      And not only that, it's a civil case against property

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 1 Dec 2018 @ 10:11am

      Re:

      Criminal cases are always the government vs a defendant. Civil cases could be between two private parties, or a government could be one (or both, I assume) of the parties.

      If a person has harmed the public at large, it's a criminal case.

      If a person violated the criminal code, it's a criminal case. If not, it's civil.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Monkey (profile), 30 Nov 2018 @ 4:00pm

    NEED VIDEO!!!

    I wish SOO much to be able to see a recording of them grilling the Solicitor General

    reply to this | link to this | view in chronology ]

  • identicon
    Christenson, 30 Nov 2018 @ 4:17pm

    Optimism

    Colt me optimistic, but I see that he judicial mood changing will th various rulings against the cops. I hope cautiously for a broad ruling with damages for victims.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Nov 2018 @ 4:41pm

      Re: Optimism

      Step one would be not allowing them to have unions and lobbyists who create laws giving the police more rights then the people they are interacting with. They are supposed to enforce laws, not have laws created on their behalf. Right now you can be jailed for life if you harm a police dog who is killing you. That is not right.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 30 Nov 2018 @ 5:53pm

        Re: Re: Optimism

        Except that this is a Reagan era (?) law intended to be directed at drug cartel leaders. In their inevitable fashion the legislators made the law with enough loopholes to allow the present day quagmire. There shouldn't be any forfieture without criminal conviction, let alone anything else. And the idea that the 'criminal' (aka accused or relative of the victim) being charged rent for space to store 'evidence' is just purly greed. And since it is not law enforcement that collects that rent, then there must be some kickbacks.

        In this case it is not the unions or lobbyist that created the laws, though I agree that they are probably benefiting from them. Both monitarily and otherwise. Dues and lobbying payments come from...somewhere.

        reply to this | link to this | view in chronology ]

    • identicon
      Thad, 3 Dec 2018 @ 8:16am

      Re: Optimism

      Colt me optimistic, but I see that he judicial mood changing will th various rulings against the cops.

      I don't know that this is a matter of the judicial mood changing or just of cases finally getting brought before the Supreme Court.

      Thomas in particular has made it pretty clear in past opinions that he was looking for an opportunity to overturn CAF but none had presented itself. SCOTUS can't make a ruling on an argument that isn't presented to the court.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 30 Nov 2018 @ 7:21pm

    'The constitution applies to all states, just not IN them'

    Unless they want to argue that the constitution doesn't actually apply within the various states, it seems like this should be really easy.

    The 8th prohibits excessive fines.

    Taking something like a car or house simply because the owner happened to be convicted of a crime is most certainly excessive.

    Therefore the 8th prohibits such theft.

    Likewise the idea that constitutional protections don't apply because the property is being charged rather than the person is beyond absurd, and needs to be literally laughed out of every court it's brought up in, given how utterly ridiculous it is. Money, cars and houses do not magically spring into being, with nary an owner it sight, so if you're taking property you are most certainly going to be impacting a person.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Dec 2018 @ 6:50pm

      Re: 'The constitution applies to all states, just not IN them'

      The constitution does not apply in the 100 mile border zone.

      The state just needs to argue that that as long as the forfeiture actions are within 100 miles of the state border...

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 1 Dec 2018 @ 7:12pm

        Re: Re: 'The constitution applies to all states, just not IN them'

        I bet they have an international airport or two that will take care of all of the governements needs.

        Oops, I didn't meant to give them an idea. I am surprised they didn't make that arguement, yet, though it might be too late now.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 1 Dec 2018 @ 7:46pm

          Re: Re: Re: 'The constitution applies to all states, just not IN them'

          If it wouldn't risk having that legal abomination ruled to be valid I'd almost hope that it was raised, followed shortly after by being shot down for good.

          The idea that something like 2/3rds of the people in the country are bound by the laws but not protected by the constitution is an idea that never should have even been considered in any serious fashion, and one that needs to die, the sooner the better.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Dec 2018 @ 12:37pm

        Re: Re: 'The constitution applies to all states, just not IN them'

        Well, that leaves Delaware and Rhode Island out.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Nov 2018 @ 8:35pm

    As the thinking populace beat their plowshares into swords. The Patriot Act is also unconstitutional, you think the court gives a damn?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Dec 2018 @ 4:57am

      Re:

      Patriot act is exactly why tHEY brought down the twin towers.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 3 Dec 2018 @ 8:20am

        Re: Re:

        Balderdash. 9/11 was about foreign policy. "They hate us for our freedoms" is touchy-feely nonsense.

        Al Qaeda doesn't give a shit about whether or not the US is wiretapping its citizens.

        reply to this | link to this | view in chronology ]

    • identicon
      Thad, 3 Dec 2018 @ 8:18am

      Re:

      The Patriot Act is also unconstitutional

      I think parts of it probably are. You might want to be more specific.

      you think the court gives a damn?

      The Court has largely rejected challenges to the PATRIOT Act based on standing. That doesn't necessarily mean the Court is indifferent, but it is something of a catch-22 in that it's very hard to demonstrate standing if you can't prove you're being spied on.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2018 @ 4:25am

    Wow, color me lucky that I don't have any assets for the police to take! HA - FU COPPERS.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 1 Dec 2018 @ 7:02am

      Re:

      It doesn't have to belong to you - it could be your parents', or your significant other's property. We've seen articles where they took cars or houses from people not directly involved at all, rather, it involved a spouse or child.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Dec 2018 @ 4:52am

      Re:

      They'll take your liabilities. Most vehiicles are liabilities unless they are collectible investments. I have no doubt, they'll steal your shoes if they can steal your house!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2018 @ 7:47am

    i think it is important to keep in mind that this is not us against the cops. the cops are the leading edge of this abomination, but it is the various governments that are the heart of the problem.

    it is encouraging that the supreme court has taken notice and is giving notice. hopefully this will continue until the rogues are back in their dens.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 1 Dec 2018 @ 2:33pm

      Re:

      it is the various governments that are the heart of the problem

      The police are agents of the government. To absolve them of any blame for overreaching on asset forfeitures is to ignore that basic fact.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 1 Dec 2018 @ 2:50pm

        Re: Re:

        Just because it my be legal for someone with a badge to rob someone does not mean it's required that they rob anyone, and as such when they do they still have full responsibility for the act.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Dec 2018 @ 10:18am

        Re: Re:

        i never said absolve. i'm talked focus. the root of this problem isn't a branch.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2018 @ 4:47am

    Itts incredible that we have these people arrguing over what is common sense knowledge way back as far as 1225! Just give him back his vehicle.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2018 @ 5:40pm

    What a joke.

    The SCUSA appears to maybe, possibly start, on the other hand most likely not, well maybe think about start enforcing the 8th Amendment for for government.

    What happened to all the others amendments?

    And what about applying the Constitution equally to everyone and applying the 4th, 5th, and 8th to corporations?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2018 @ 8:17pm

    Forget the eight amendment!! Go with the fifth for god's sake! Civil Asset Forfeiture is BLATANTLY AND FRAGRANTLY unconstitutional.

    To wit:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, **Bold**nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    reply to this | link to this | view in chronology ]

  • icon
    Thad (profile), 3 Dec 2018 @ 8:25am

    Bears adding that, aside from oral arguments, Clarence Thomas has made it pretty clear in past opinions that he believes CAF is unconstitutional. Expect him to rule in favor of the plaintiff too.

    This seems pretty clear-cut; I wouldn't be surprised at a unanimous ruling.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2018 @ 12:41pm

    How about making people pay for their prosecution? Only happens on conviction, and they government isn't about to pay for the cost of an effective defense if you win.

    reply to this | link to this | view in chronology ]


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