Supreme Court Says Civil Asset Forfeiture Violates Constitutional Protections Against Excessive Fines

from the time-to-start-breaking-up-the-blue-line-cartel dept

Great news on the asset forfeiture front, courtesy of the highest court in the land. The Supreme Court has ruled that forfeitures can violate the Eighth Amendment's protections against excessive fines.

The case the Supreme Court ruled on deals with Indiana native Tyson Timbs. Timbs sold $260 worth of heroin to undercover officers. He pled guilty to criminal charges. The state decided to forfeit his $42,000 Land Rover via civil asset forfeiture, routing around the criminal system to make it easier for cops to make off with his vehicle. Timbs challenged this forfeiture as an excessive fine, given that the max fine for his criminal charges was $10,000.

This case made its way to the state's Supreme Court, which overturned the lower court's decision finding in favor of Timbs and the US Constitution, which Indiana had incorporated. The state's highest court stated that this clause of the Eighth Amendment did not apply to civil asset forfeiture. This was a bizarre position to take, as the Supreme Court pointed out during oral arguments.

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.

The Supreme Court's decision [PDF] makes it clear the US Constitution protects citizens from excessive fines, even if those fines are meted out at the state level. If the Constitution has been incorporated by the states (and it has!), the protections apply.

Held: The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause. Pp. 2–9. (a) The Fourteenth Amendment’s Due Process Clause incorporates and renders applicable to the States Bill of Rights protections “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” McDonald v. Chicago, 561 U. S. 742, 767 (alterations omitted). If a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.

The state tried to argue the protections only covered in personam (vs. a person) forfeiture -- the kind normally seen in criminal cases where property is seized as compensation for fines or as direct, provable ill-gotten goods obtained as the result of criminal activity.

In rem forfeiture -- the civil route -- lowers the evidentiary bar law enforcement must meet to take property away from citizens. In most cases, there are no criminal charges involved -- only accusations of criminal origin that force citizens to prove a negative to reclaim their seized property.

Here's where this decision has the chance to disrupt a majority of states' civil asset forfeiture programs: the Supreme Court says these incorporated protections also apply to in rem seizures.

As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.

Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated. For example, in Packingham v. North Carolina, 582 U. S. ___ (2017), we held that a North Carolina statute prohibiting registered sex offenders from accessing certain commonplace social media websites violated the First Amendment right to freedom of speech. In reaching this conclusion, we noted that the First Amendment’s Free Speech Clause was “applicable to the States under the Due Process Clause of the Fourteenth Amendment.” Id., at ___ (slip op., at 1). We did not, however, inquire whether the Free Speech Clause’s application specifically to social media websites was fundamental or deeply rooted. See also, e.g., Riley v. California, 573 U. S. 373 (2014) (holding, without separately considering incorporation, that States’ warrantless search of digital information stored on cell phones ordinarily violates the Fourth Amendment). Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.

So, the rhetorical question posed by this decision is one that's going to be asked of hundreds of state-level civil asset forfeiture programs: if there are no criminal charges, wouldn't ANY seizure of property be "excessive?" It certainly appears a lack of criminal charges would be fatal to in rem seizures, which almost always happen without accompanying charges. This case may not have been specifically about civil asset forfeiture, given Tyson Timbs' guilty plea, but the state made it about it by refusing to acknowledge its incorporation of the Bill of Rights.

This may start a scramble by law enforcement to suss out just how much of the Bill of Rights their particular state has incorporated. Given the Supreme Court's disdain for arguments to the contrary, pushing legal challenges to forfeiture programs uphill is a non-starter. This case was a 9-0 rout in favor of protecting Americans from excessive fines and fees -- in this case taking the form of civil asset forfeiture. This hopefully will be the starting point for nationwide reform of these abusive programs.

Filed Under: 8th amendment, asset forfeiture, civil asset forfeiture, excessive fines, excessive punishment, incorporation, indiana, scotus, states rights, supreme court, trevor timbs


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  1. icon
    Thad (profile), 22 Feb 2019 @ 11:02am

    So, the rhetorical question posed by this decision is one that's going to be asked of hundreds of state-level civil asset forfeiture programs: if there are no criminal charges, wouldn't ANY seizure of property be "excessive?"

    I think it's quite clear that the justices (and Thomas in particular) are eager to overturn CAF entirely (or at least severely restrict it), but that was outside the scope of this case.

    This won't be the end of it, but it's a good start.

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

  2. icon
    Bamboo Harvester (profile), 22 Feb 2019 @ 11:03am

    Finally

    Some of us have been pushing this since 1970, when Nixon put in that ridiculous RICO act.

    It's going to be "interesting" seeing how RICO cases are effected by this decision.

    The worst part is that it took half a century for an obvious Constitution-violating law to be heard by SCOTUS.

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

  3. identicon
    Glenn, 22 Feb 2019 @ 11:06am

    I guess I'm confused about something here: are there states that are actually saying that there are parts of the Constitution and Bill of Rights that don't apply to those states and the people in them? I must not have been paying close enough attention. (And apparently I'm not the only one.)

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

  4. identicon
    kallethen, 22 Feb 2019 @ 11:14am

    I think it's rather telling that this was an unanimous decision.

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

  5. identicon
    Anonymous Coward, 22 Feb 2019 @ 11:21am

    Leave it to Techdirt to generalize the Supreme Court ruling. The Supreme Court simply ruled that the case they heard, Timbs vs Indiana, that the lower courts ordered Timbs to hand over his SUV, which he paid with money from his dad's insurance policy. The vehicle was valued at $42,000. The most fines that he would have had to pay would be around $10,000, which they were demanding "excessive" fines.

    The Supreme Court didn't rule about all civil excessive, only with the excessive fines portion of civil forfeiture. Timbs didn't pay for the vehicle with drug money but rather he paid for the vehicle with non-criminalized money.

    Thing is, this ruling is extremely limited insofar as it perhaps to "value" of the items that were turned over by order of the court. It doesn't prevent law enforcement from continuing their asset forfeiture programs.

    I would watch the youtube video in its entirety because it was created by a Michigan Lawyer who goes over the ruling in detail. He's an attorney that specializes with consumer protective laws.

    Sources:

    https://www.youtube.com/watch?v=sphGNvpCKBQ&t=193s

    https://www.vox.com/policy-and -politics/2019/2/20/18233245/supreme-court-timbs-v-indiana-ruling-excessive-fines-civil-forfeiture

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

  6. identicon
    Bruce C., 22 Feb 2019 @ 11:24am

    Re:

    Agreed, CAF in rem makes sense where the assets themselves are illegal, like illegal drugs, counterfeit goods (within limits of trademark/copyright/patent law), stuff that violates consumer safety regulations etc. But beyond that? Nuh-uh.

    And an anonymous ruling, too. Is it just low-hanging fruit? Or are they making a subtle point to those who accuse them (and the judiciary in general) of political bias?

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

  7. identicon
    Anonymous Coward, 22 Feb 2019 @ 11:32am

    Re:

    Quoting from the ruling: "As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree."

    If there is no criminal charge, how can any in rem seizure be justified? The gripe Techdirt and the rest of us have with CAF isn't the concept itself, it's that it's being abused by almost every law enforcement jurisdiction in the country. Many of the current CAF protocols are predicated on the ability to seize assets "on a hunch", and they get away with it because the process to appeal and reclaim your property is complex and expensive.

    This ruling will short-circuit the recovery process for a lot of outstanding seizures. I also hope that any future seizures that are based "on a hunch" or even a drug dog alerting where no drugs are found subject the offending agency to civil conversion lawsuits in addition to recovery of property.

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

  8. identicon
    Anonymous Coward, 22 Feb 2019 @ 11:32am

    Re:

    The problem is if in rem forfeiture is subject to the excessive fine clause then any forfeiture without any accompanying proceedings being brought against the individual are automatically excessive. If you arent having any charges brought against you, your required fines are $0 making any forfeiture an excessive fine.

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

  9. identicon
    Anonymous Coward, 22 Feb 2019 @ 11:38am

    Quoting the syllabus

    Held:  . . . .

    From the Legal Research FAQ 2.2.1:

    The actual opinion of the Court is preceded by a "syllabus," written by a Court employee, summarizing the issues decided. The Syllabus is not part of the opinion, and should be relied on only for a quick overview of the case. The Supreme Court once rebuked a litigant for carelessly quoting a Syllabus rather than the opinion it inaccurately summarized. See United States v. Detroit Lumber Co., (1906).

    (Pincite omitted; hyperlink added.)

    And from US v Detroit Lumber (1906) itself:

    In the first place, the headnote is not the work of the court, nor does it state its decision — though a different rule, it is true, is prescribed by statute in some States. It is simply the work of the reporter, gives his understanding of the decision, and is prepared for the convenience of the profession in the examination of the reports.

    The article's quotation from the work of the reporter does deserve comment.

     

    (Adapted from a 2010 Techdirt comment.)

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

  10. identicon
    Anonymous Coward, 22 Feb 2019 @ 11:38am

    Re:

    I'm missing the nuances of this case, then. Was it solely about excessive fines, even tho it was CAF that was used to garner that fine? That couldn't rule on that part of it, too? What kind of case, then, will it take for SCOTUS to make a final, definitive ruling on CAF, instead of just "a good start"? A direct constitutional challenge to CAF?

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

  11. icon
    Thad (profile), 22 Feb 2019 @ 12:12pm

    Re:

    The Bill of Rights originally restricted the federal government against passing certain laws, but not the states. The Fourteenth Amendment's due process clause has led to something called the incorporation doctrine, which holds that, for example, the First Amendment applies to state legislatures, not just Congress.

    However, courts have held that incorporation doesn't apply to the entire Bill of Rights, only to parts of it. For example, Ken White notes that the Fifth Amendment right to a grand jury does not apply to state charges, only federal ones.

    So it's actually sort of a complicated subject. States have to recognize some parts of the Bill of Rights under incorporation, but not others. This case decided that the "excessive fines" clause is one of the ones states do have to recognize.

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

  12. identicon
    Anonymous Coward, 22 Feb 2019 @ 12:13pm

    Re:

    That is indeed the arguments the states were making thus Gorusch's statement are we really litigating incorporation of the bill of rights. The supreme Court was not amused

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

  13. icon
    James Burkhardt (profile), 22 Feb 2019 @ 12:23pm

    Re: Re:

    This case did not challenge CAF. Instead, the arguments heard by the judges were specifically that the forfeiture violated the 8th amendment bar of excessive fines. As is the right tradition of the supreme court, they only rule on the issues in front of them, and as is the somewhat more questionable decision, try to narrowly answer only the arguments put before them, even when they hint there is an adjacent issue that can resolve a broader argument.

    The court notes several times that the substantive arguments of if civil asset forfeiture as a program is legal are beyond the scope of this challenge largely because it is undeniable whether CAF is legal or not, that the facts in this case mean the forfeiture was in violation of the 8th amendment, and since that was the challenge, it resolves the case in the narrow fashion the court prefers.

    Likely, in this case, as a convicted felon who plead guilty, the appellant felt challenging CAF entirely might have a negative perception by the court, that he was challenging any fine applied. Or perhaps that he was unsure how the court would rule on asset forfeiture as a while and felt the excessive fines challenge was a more solid challenge that didn't face the same risk while serving to accomplish the goal, the return of the vehicle.

    With this ruling and the signalling of the court's ruling, you can expect a glut of 8th amendment challenges to civil forfeiture cases. This may lead to a future supreme court case where a state chooses to fight to the hilt, likely over a forfeiture not connected to a criminal conviction, that provides the court with an opportunity to rule on civil forfeiture.

    That hypothetical case will likely need to have several factors.

    1) A high value forfeiture. It needs to be worth the cost of litigation to both the owner of the property and the agency which seized it. Most asset forfeiture isn't worth fighting the forfeiture.

    2) The person whose property is forfeited must be left with the financial resources to challenge the forfeiture. Many large forfeitures from innocents tend to ruin the person as they are carrying what can be described as 'life savings'.

    3) The lower courts need to rule for the forfeiture, or the agency must be willing to appeal the return of the forfeited funds. Most cases that are challenged don't reach the supreme court. Legal challenges to seizures that meet components 1 & 2 either run out of money or are successful before they reach that point. This becomes the big issue, as you are unlikely to get the supreme court to hear an appeal of a lower court victory on the basis that you want a broader precedent, and I can't think of a case where a deep pocketed forfeitee with no associated criminal charges has lost anywhere close to the SCOTUS.

    I think the best case will be a relatively well off but not famous individual who faces forfeiture of enough value to matter but not enough for them to worry about losing and makes purely constitutional argument challenging the civil forfeiture program entirely, denying the courts the out that this individual seizure was invalid, and forcing litigating the issue of civil forfeiture as policy. It still might be dropped by the state, returning the property and denying standing to challenge CAF.

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

  14. identicon
    Anonymous Coward, 22 Feb 2019 @ 12:24pm

    Re: Re:

    I'm missing the nuances of this case, then. Was it solely about …?

     

    The question presented to the Supreme Court by petitioner and, following certiorari, briefed to the court, was:

    Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.

    The respondent, Indiana, briefed the slighly different, alternative question:

    Whether the Excessive Fines Clause, via the Due Process Clause, is incorporated against state in rem forfeitures.

    Justice Ginsburg's opinion for the court stated the question as—

    The question presented: Is the Eighth Amendment’s Excessive Fines Clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s Due Process Clause?

    And her opinion notes—

    The State of Indiana does not meaningfully challenge the case for incorporating the Excessive Fines Clause as a general matter. Instead, the State argues that the Clause does not apply to its use of civil in rem forfeitures because, the State says, the Clause’s specific application to such forfeitures is neither fundamental nor deeply rooted.

    Later on in the opinion she also writes—

    As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures.

    But she concludes—

    Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.

    So, the upshot of all this is that the case was about whether the Eighth Amendment's Excessive Fines clause may be invoked to protect persons against state action, as a protection “incorporated” against the states by the Due Process clause of the Fourteenth Amendment? Iow, can someone haul the Excessive Fines clause out in an argument when a state is proceeding against them?

     

    (Briefs via ScotusBlog.)

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

  15. icon
    Thad (profile), 22 Feb 2019 @ 12:25pm

    Re: Re:

    That's my understanding, yes (though IANAL).

    Glancing through the opinion, it appears that what happened is that the police seized Timbs's Land Rover under CAF, then after he pleaded guilty, the state sued to keep it. The trial court ruled that the state was not entitled to keep it due to the excessive fines clause, and that's the ruling that subsequent appellate courts have examined.

    So that's what the Supreme Court ruled on: whether or not the trial court was correct in ruling, in a civil suit, that the state could not keep the vehicle because of the excessive fines clause.

    The court ruled on the specific argument presented to it, not on the broader question of whether CAF is legal in the first place.

    I believe that it would indeed take a direct constitutional challenge to CAF to reach a direct constitutional ruling on CAF. If, for example, someone were to sue a state for seizing their assets under CAF, and appeal that suit all the way to the SCOTUS, then we'd see SCOTUS rule on CAF.

    As I said, I think the likely result of such a ruling would be either to ban CAF outright, or severely restrict it. The justices don't seem too impressed by it; as I mentioned, Thomas in particular has indicated in opinions over the past few years that he's waiting for a case where he can put an end to it, and this particular case was decided unanimously.

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

  16. identicon
    Anonymous Coward, 22 Feb 2019 @ 12:56pm

    Re: Re:

    The counter-argument will be that civil forfeiture in general isn't a "fine," it only was in this case because there was an actual fine (up to $10,000) in play.

    I look forward to this case being used in a property owner's argument for the return of property, which might be the standing needed to challenge civil forfeiture in general as James Burkhardt mentions above.

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

  17. icon
    Uriel-238 (profile), 22 Feb 2019 @ 1:25pm

    [SCOTUS] only rules on the issues in front of them

    I had thought that was a specific strategy of Roberts in order to better reach consensus. Justice Roberts seems particularly aware of how party-line 5-4 rulings strain public confidence in the legal system and the law (Which hasn't stopped him from letting some doozies slip through*). In order to prevent those, he'd push for final rulings to be extremely narrow if doing so would secure a unanimous opinion.

    Was it a tradition before the Roberts court to keep rulings narrow?

    * Arguably when his Federalist Society masters tap his obedience implant which he must obey without question.

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

  18. icon
    James Burkhardt (profile), 22 Feb 2019 @ 2:17pm

    Re: [SCOTUS] only rules on the issues in front of them

    I admittedly can't say that it was, I was writing from a perspective of someone whose entire adult life had experienced Roberts as the Chief Justice, but given that this court remains a Justice Roberts-lead court, I think the statement as applied to the current SCOTUS stands. I also don't see that strategy going away in this period of elevated partisan tension anytime soon.

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

  19. icon
    Thad (profile), 22 Feb 2019 @ 2:33pm

    Re: [SCOTUS] only rules on the issues in front of them

    I'm having trouble finding more historical information on this subject too (every search result for "supreme court" narrow rulings is about goddamn Masterpiece Cakeshop), but I suspect it's both: I'm guessing that ruling on the facts of the individual case rather than examining outside arguments is a longstanding tradition, and the current partisan nature of the court and Roberts's concern for its reputation have further enshrined that doctrine.

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

  20. identicon
    Anonymous Coward, 22 Feb 2019 @ 3:53pm

    Re: Re: [SCOTUS] only rules on the issues in front of them

                Was it a tradition before the Roberts court to keep rulings narrow?

    I'm guessing that ruling on the facts of the individual case rather than examining outside arguments is a longstanding tradition…

    Article III both grants and limits the judicial power of the United States to “case and controversies”. The conceptual separation between that judicial power and the Article I legislative power is foundational theory. The articulation of the great principle predates the drafting and adoption of the present constitution.

    But as Chief Justice Marshall observed in the 1803 case of Marbury v Madison

    Those who apply the rule to particular cases, must of necessity expound and interpret that rule.

    So in considering the deep question of the breadth or narrowness of a court's ruling — which ruling, in one strict sense, merely and solely decides a particular case or controversy — we are immediately confronted with a non-trivial issue.

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

  21. icon
    Uriel-238 (profile), 22 Feb 2019 @ 4:20pm

    The Roberts Court and narrow rulings

    I was asking for clarification, myself. I remember when he was appointed by George W. Bush, and was at that time he opined the US Supreme Court should make narrow rulings when it can.

    Since the historical cases I'm most familiar with were pretty sweeping (Roe v. Wade, Brown v. Board of Education, et. al.) I assumed that the Supreme Court often made wide-sweeping determinations. But then my sampling is way too small.

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

  22. identicon
    Anonymous Coward, 22 Feb 2019 @ 4:21pm

    Re: Re: Re:

    "it resolves the case in the narrow fashion"

    Wow!

    The most important part of the court ruling was that the 8th amendment applied to the states.

    This ruling is a big shot over the bow of the continue violation of the 4th and 5th amendments by internet companies.

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

  23. identicon
    OGquaker, 22 Feb 2019 @ 4:37pm

    Our latest 'I like beer, don't you like beer' addition to SCOTUS is wrong: quote from McDonald v. Chicago 524 U.S. 742 (2010) footnote 13;

    "We never have decided whether the Third Amendment or the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause."

    Like that film that trashed all the social gains of the 1960s, Forrest Gump, an idiot can accidentally stumble the right direction.

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

  24. identicon
    Anonymous Coward, 22 Feb 2019 @ 4:52pm

    Re: Re: Re:

    So that's what the Supreme Court ruled on: whether or not the trial court was correct in ruling, in a civil suit, that the state could not keep the vehicle because of the excessive fines clause.

    They didn't go that far. They were ruling on whether the state court made an error by not considering whether the fine was excessive. SCOTUS say they did make that error: states are not allowed to impose excessive fines, and state courts will need to consider that question in their rulings.

    So, now, the case goes back down to the state level. It's hard to imagine the fine won't be knocked out as excessive, but officially that's still an open question.

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

  25. identicon
    Anonymous Coward, 22 Feb 2019 @ 4:55pm

    Re: Re:

    The problem is if in rem forfeiture is subject to the excessive fine clause then any forfeiture without any accompanying proceedings being brought against the individual are automatically excessive.

    That's a reasonable argument, but not one that's been accepted by a court yet. IOW: this isn't close to being over.

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

  26. identicon
    OGquaker, 22 Feb 2019 @ 5:00pm

    opps; Neil & Brett, both frat boys from where i stand

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

  27. identicon
    Rekrul, 22 Feb 2019 @ 5:46pm

    In rem forfeiture -- the civil route -- lowers the evidentiary bar law enforcement must meet to take property away from citizens.

    I'd argue that it removes the evidentiary bar since law enforcement does not need to provide any evidence whatsoever in order to initiate a forfeiture. Nor am I aware of any requirement for them to present any evidence at a hearing to determine the legality of the seizure. All the burden is on the property owner to prove their property innocent.

    Also, now that I think about it, if the legal standard is presumed innocent until proven guilty, how do they get away with presuming that the property is guilty until proven innocent?

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

  28. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Feb 2019 @ 5:59pm

    out_of_the_blue isn't going to like this, is he?

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

  29. identicon
    Paul Brinker, 22 Feb 2019 @ 6:09pm

    Re:

    Under the current system, they sue the property itself, the property fails to hire a lawyer or make any statements on its behalf, while the other side makes claims that the property was illegal.

    Its the failure to defend itself that's at case here. This forces the former owner to attempt to step in and defend the property with out being a party to the suit itself.

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

  30. identicon
    Anonymous Coward, 22 Feb 2019 @ 7:44pm

    Re: Re:

    Every police department in this country should give back what was stolen. Usurping the US Constitution is a crime greater than any crime thesse citizens committed or were suspected to have committed.

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

  31. icon
    Uriel-238 (profile), 22 Feb 2019 @ 8:25pm

    Gorsuch and Kavanaugh

    They were both stolen bench seats after the providence of a black swan election (which has also been stolen by a foreign interest, maybe with the direct involvement of our current President). The seats were handed over to an esoteric society who have no less intention than to to dominate the nation by a coup de'tat in the federal courts and reshape it in its own neo-feudal image.

    It sounds like the backstory of a science-fiction galactic empire epic, only it's actually happening. Here. Today.

    Kavanaugh has the character to serve on the highest court in exactly the same way Trump has the character to sit in the White House. Both lampoon their position and make fools of the rest of us.

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

  32. identicon
    Anonymous Coward, 23 Feb 2019 @ 7:09am

    Re: Re: Re: Re:

    The most important part of the court ruling was that the 8th amendment applied to the states.

    This ruling is a big shot over the bow of the continue violation of the 4th and 5th amendments by internet companies.

    How do you get from the constitution applying to states, which are part of government, to companies which are not part of government.

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

  33. identicon
    Anonymous Coward, 23 Feb 2019 @ 8:08am

    Re: [SCOTUS] only rules on the issues in front of them

    Was it a tradition before the Roberts court to keep rulings narrow?

     

    I am going to point you to Justice Brandeis' concurrence in Ashwander v TVA (1936):

    The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

    1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding . . .

    2. The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." . . .

    3. The Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." . . .

    4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . .

    5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. . . .

    6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. . . .

    7. "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." . . .

    (Significant elisions; all footnotes and citations omitted.)

    So you may answer for yourself whether these ‘rules’ set forth in this concurrence to a 1936 case provide evidence of a ‘tradition’, and if they do provide such evidence, then what is the nature of that tradition? Certainly, Justice Brandeis confines himself here to rules for constitutional decisions, but, in fair context, so do I think your inquiry may be cabined.

    I myself am not now fairly certain how to sensibly divide the court's historic constitutional rulings into determinable categories of ‘broad’ and ‘narrow’. It appears to me that the ultimate effect of a ruling or opinion in some particular case cannot be known with any certainty until the rule of decision has been repeatedly applied by the lower courts, and also amplified or clarified, restated, or ignored, or overturned, or merely disapproved (all perhaps sub silentio) in subsequent cases, by later opinions.

    The court's own characterization of a ruling, at the time it is handed down, seems to me no great predictor of the rulings' final reach or breadth.

    What does a constitutional case stand for? a generation, or a century, or two, down the road?

    “We must never forget that it is a constitution we are expounding.” (*)

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

  34. icon
    That One Guy (profile), 23 Feb 2019 @ 9:26am

    Re: Re:

    Which is utterly insane when you spend more than a few seconds thinking about it, and highlights just how greedy and/or corrupt those who continue to hang on to the practice are.

    The property in question came from somewhere and was owned by someone; acting as though a lawsuit impacting the property isn't impacting the previous/current owner, such that the rights that would protect a person don't protect their property, is a grossly dishonest dodge around those protections in an attempt to score an easy win.

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

  35. identicon
    Pixelation, 23 Feb 2019 @ 9:34am

    Re: Re: Re:

    "The person whose property is forfeited must be left with the financial resources to challenge the forfeiture."

    I wonder if the right situation could be crowdfunded? It would be good to see forfeiture seriously curtailed.

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

  36. icon
    Uriel-238 (profile), 23 Feb 2019 @ 11:26am

    Constitutional rights

    This raises a point I've never fully understood. For instance, I've heard the opinion that when leaving a reseller with my purchased goods, it's illegal for a store agent to detain me and inspect my receipt and belongings, thanks to Fourth Amendment protections. (Also they can't demand that I surrender my stuff to a coat-check while I'm their guest).

    But then a company like Facebook when I'm its guest may freely govern what I can or cannot say or post (over which there are many great controversies: Breastfeeding pics are taken down while cat-abuse videos persist). Similarly, the public plaza near the Salt Lake Temple is owned by the --mormons-- Church of Jesus Christ of Latter Day Saints and even minor public displays of affection by gay couples are disallowed (which has resulted in more than one kiss-ins on the site).

    The Bill of Rights seems to apply to all people, whether Americans or not -- except when they don't. And can be ignored by institutions other than the state and federal governments -- except when they can't.

    If (for instance) we decide private security companies can search and seize property without warrant, cause or punity, then it creates an incentive for the DoJ to just start hiring PMCs to do their investigation and apprehension work.

    In the meantime, law enforcement officers will gladly lie to the rest of us shlubs about what powers they legally have and what rights we don't have, in order to secure justification for search, seizure and arrest.

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

  37. icon
    Toom1275 (profile), 23 Feb 2019 @ 2:52pm

    Re: Re: Re:

    There's also, as someone mentioned earlier, the requirement that the property must prove a negative - that it wasn't used or obtained illegally.

    Made all the harder with the fungible nature of money.

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

  38. icon
    Toom1275 (profile), 23 Feb 2019 @ 2:55pm

    Re: Re: Re: Re:

    "So we can prove that you made $260 through illegal means. That means the next 26,000 things you bought after that were each paid for with $0.01 of that dirty money, tainting it all. Now prove otherwise."

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

  39. icon
    jcwconsult (profile), 23 Feb 2019 @ 7:36pm

    Civil forfeiture without a conviction for a related crime is theft. PERIOD! All the officials involved should be prosecuted for larceny with resulting jail sentences if convicted.

    This must become the law in every state to end the abusive thefts from those not convicted of crimes.

    James C. Walker, National Motorists Association

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

  40. identicon
    Anonymous Coward, 24 Feb 2019 @ 3:54am

    Re: Re: [SCOTUS] only rules on the issues in front of them

    One decision in a long time that is a breath of fresh air let into our country. Watch them scurry around it now.

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

  41. identicon
    Anonymous Coward, 24 Feb 2019 @ 4:07am

    Re: Re: Re: Re:

    The seizure of the LandRover was obviously more than the limit of the fine of $10,000. To see that Indiana state court go on blunderously to protect what these cops did makes me want to PUKE.

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

  42. identicon
    Anonymous Coward, 24 Feb 2019 @ 4:09am

    Re: Finally

    Thank you.

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

  43. identicon
    Anonymous Coward, 24 Feb 2019 @ 4:15am

    Re:

    Yes, but what about the show of THUMBS.. Scotus has been sitting on for the last half a century? Do they go back to sitting on their thumbs for other obvious unconstitutional laws in America?

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

  44. icon
    Toom1275 (profile), 24 Feb 2019 @ 8:03am

    Re: Re:

    .. You do understand that SCOTUS has to wait for such cases to both reach them through the appeal system and be of the nature they hear, right?

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

  45. identicon
    Anonymous Coward, 24 Feb 2019 @ 9:29am

    Re: The Roberts Court and narrow rulings

    I assumed that the Supreme Court often made wide-sweeping determinations.

    Fwiw, earlier another commenter here linked a Vox article, “Why the US Supreme Court’s new ruling on excessive fines is a big deal” (Feb 20, 2019), in which author German Lopez, in his leading paragraph, characterizes Timbs as “sweeping”.

    … a sweeping ruling…

    And in a recent article in Slate, “The Supreme Court Just Struck a Huge, Unanimous Blow Against Policing for Profit” (Feb 20, 2019), author Mark Joseph Stern writes:

    In one sense, Ginsburg’s opinion is sweeping…

    So at least two writers think the adjective “sweeping” applies to the Roberts court determination in Timbs.

    Perhaps we might ask whether “sweeping” is almost the same as “wide-sweeping” ? Or not quite? At any rate, is it the exact opposite of “narrow” ?

    Or maybe somebody somewhere ought to be whacked with a broom…

     

    (The Slate article came to my attention via some criticism of it over at Doug Berman's Sentencing Law and Policy blog.)

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

  46. icon
    Eldakka (profile), 24 Feb 2019 @ 9:17pm

    Re: Finally

    IANAL.

    As I understand it, RICO is a federal law.

    This ruling, as I understand it, is with respect to states and whether state courts need to apply the 8th Amendment as per the 14th.

    I doubt this would impact Federal prosecutions in Federal Courts enforcing Federal Laws.

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

  47. identicon
    Anonymous Coward, 24 Feb 2019 @ 10:55pm

    Re:

    Given that he's used his TOR addresses to "censor" your truth? He didn't!

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

  48. identicon
    Rekrul, 25 Feb 2019 @ 12:05pm

    Re: Re:

    Under the current system, they sue the property itself, the property fails to hire a lawyer or make any statements on its behalf, while the other side makes claims that the property was illegal.

    Its the failure to defend itself that's at case here. This forces the former owner to attempt to step in and defend the property with out being a party to the suit itself.

    Even so, as I understand it, they still don't have to present any evidence beyond simply stating that they believe the property is illegal, while the property (or the former owner) has to prove that it's not illegal, which is still guilty until proven innocent.

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

  49. identicon
    Anonymous Coward, 26 Feb 2019 @ 10:40am

    Re: Re: Re:

    the supreme court, they … try to narrowly answer only the arguments put before them

    Mr Justice Rehnquist dissenting in Monell v Dept of Social Services (1978):

    [I]n Marbury [v Madison (1803)] itself, the argument of Charles Lee on behalf of the applicants—which . . . is reproduced in the Reports of this Court where anyone can see it—devotes not a word to the question of whether this Court has the power to invalidate a statute duly enacted by the Congress. Neither this ground of decision nor any other was advanced by Secretary of State Madison, who evidently made no appearance.

    Monell partially over-ruled an earlier case, Monroe v Pape (1961). Mr Justice Rehnquist's dissent there is responding to Mr Justice Powell's concurrence in Monell, in which the latter states:

    In Monroe and its progeny, we have answered a question that was never actually briefed or argued in this Court . . .

    So, of course, Mr Justice Powell is saying that a good reason to reconsider a ruling is that it answers a “question [] was never actually briefed or argued in this Court.”

    But Mr Justice Rehnquist does push back on that.

    Perhaps the key word in James Burkhardt's comment here is “try”. Maybe they do indeed try on that score.

     


    (Just as an aide-mémoire Monell was brought to the forefront of my attention today via the DC Circuit's citation to Justice Stevens' dissent (at 842) in Oklahoma City v Tuttle (1985).)

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

  50. identicon
    Anonymous Coward, 27 Feb 2019 @ 8:56am

    Re: Re: Re:

    That Scotus has refused to hear many a case, have they not? ..numerous cases that are far beyond search results on internet.

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

  51. identicon
    Anonymous Coward, 27 Feb 2019 @ 9:08am

    Re:

    CAF, is it being offered as a perk for recruitment? That really would be blatant violation of law, right?

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


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