Ohio Supreme Court Says There’s Nothing Wrong With Cops Seizing A $31,000 Truck Over An $850 Criminal Offense
from the guess-it-all-depends-on-what-'excessive'-means dept
In 2019, the Supreme Court of the United States resolved a long-running lawsuit over asset forfeiture. Indiana resident Tyson Timbs had his $42,000 Land Rover seized by law enforcement following his sale of $260 of heroin to an undercover officer.
The basis of his challenge were the 8th and 14th Amendments of the US Constitution, both of which have been long-adopted by the state of Indiana. The Eighth Amendment’s Excessive Fines Clause came into play here, folded in by the 14th Amendment’s Due Process Clause. The Supreme Court held that seizing a $42,000 vehicle was excessive (in terms of fines) when the criminal offense maxed out at $10,000 in fines.
That decision has been pretty much ignored by Ohio’s top court, which has decided $31,000 is not an excessive fine when the underlying offense tops out at $850 in fees.
After being convicted of drunk driving for the third time in 10 years, the government took away Medina County resident James O’Malley’s 2014 Chevy Silverado, which was worth $31,000 and was his only significant asset.
O’Malley challenged the state law that allows the government to seize vehicles used in crimes. He argued it violated the Eighth Amendment to the U.S. Constitution by requiring him to pay an excessive fine and vehicle owners face forfeiture while non-owners don’t face the same penalties.
A divided Ohio Supreme Court on Thursday upheld the state’s forfeiture law.
Three DUIs is serious business. That much cannot be argued, even if they were spaced out over the course of ten years. Following his no contest plea, O’Malley sought the return of his vehicle. O’Malley’s challenge was likely inspired by the Timbs case, which resulted in a decision finding some forfeitures unconstitutional.
The trial court said the fine was not “excessive” because the vehicle was involved in the crime, O’Malley had previous criminal convictions for the same violation, that his current situation would not be made worse by lack of access to a car (he was unemployed at the time), and that he had a good chance of re-offending, something that would be minimized by removing the vehicle from the equation. It said the fact that the value of the vehicle was more than 11 times the total maximum fine still didn’t make it excessive, given the other factors in play. The state appeals court arrived at pretty much the same conclusion.
Unfortunately for O’Malley, his seizure occurred about eight months before the Supreme Court delivered its decision. Even more unfortunately, the state Supreme Court has its own ideas about what is or isn’t “excessive,” in terms of constitutional rights.
The decision [PDF] says the end justifies the means, what with so much public safety being at stake. What’s a $31,000 truck when there’s plenty of justification for the government to do pretty much whatever it wants to get drunk drivers off the road?
It appears that the General Assembly meant to deter vehicle owners from engaging in drunk driving or furnishing their vehicles to those who would engage in drunk driving—the thought being that the loss of a vehicle would be a significant deterrent that would keep more drunk drivers off the road. It was also reasonable for the General Assembly to think that taking away a repeat offender’s vehicle would make it harder for those inclined to drink and drive on a regular basis to commit those offenses in the future. […] Accordingly, there are many sound policy reasons for the classification, and the statute thus survives a rational-basis analysis.
But the state also suspends drivers licenses, fines people, and imprisons them for multiple violations. All of those are deterrents as well, but none of those are 11 times more excessive than the maximum penalty for a third violation.
The court at least agrees some forfeitures of this sort could violate the Excessive Fines Clause. But it says this isn’t one of them. The state Supreme Court notes the US Supreme Court’s decision, acknowledging that some sort of balancing test is needed to determine whether a fine is excessive. Since the US Supreme Court didn’t actually craft rules of its own, but rather provided a list of factors to be considered, the state Supreme Court is free to craft its own reasonableness test. Except that it chooses not to do that.
The application of these multifactor proportionality tests generally varies depending on whether the forfeiture is in personam or in rem and depending on whether the property to be forfeited is real property, personal property, or something else. The problem is that there does not appear to be any consensus. Nevertheless, O’Malley and his amicus curiae ask us to do what other federal and state courts have done: set forth a multifactor test that would include in the proportionality analysis considerations of the defendant’s financial ability to pay and the extent to which the forfeiture would harm the defendant’s livelihood. While we appreciate the allure of a seemingly airtight checklist that ideally would—but in practice may not—address all future contingencies, we do not believe—for both practical and principled reasons—that it is necessary or appropriate for us to establish the multifactor test sought in this case.
The state court says it won’t be setting a standard, which means it’s free to pick and choose whatever factors it wants to recognize on a case-by-case basis, turning constitutional questions into a roulette wheel. All forfeiture victims can do is put their money down and spin the wheel.
O’Malley loses here.
In balancing the value of the forfeiture and the gravity of the offense, we conclude that O’Malley has not proven by clear and convincing evidence that the forfeiture is grossly disproportional to the gravity of the offense. The legislature chose to punish repeat OVI offenders with the forfeiture of the vehicle that was used in the offense. The legislature’s choice of punishment is entitled to significant weight. O’Malley chose to engage in drunk driving for a third time in ten years on one of the busiest travel days of the summer. This too is entitled to weight. Further, although his vehicle was clearly of value and was important to him, he did not demonstrate that the loss of this vehicle would be significant. Though O’Malley was unemployed during the duration of his trial, he is, by all accounts, a young, able-bodied adult. And at the time of the trial court’s forfeiture order, O’Malley had few expenses, given that he lived with his grandmother. The value of the vehicle and its importance to O’Malley are simply not enough to overcome the gravity of the offense. Therefore, O’Malley has not demonstrated that the forfeiture of his $31,000 vehicle was grossly disproportional to his offense.
The court does, at least, point out that limiting a balancing test to the value of seized property in relation to the criminal penalties imposed lends itself to a two-tiered justice system where poorer people with cheaper vehicles would more often find seizures of their vehicles declared reasonable while richer people with more expensive vehicles could see themselves retain possession because their value is far greater than the severity of the crime.
And, while that’s a good point, that’s not the only factor to be considered. There’s the financial impact it will have on the arrested person, which lends itself to better protecting poor people from excessive fees. That’s why it’s a multifactor test. But the biggest factor in this court’s decision appears to be the government’s interest: the legislature authorized mandatory seizures of vehicles on a third offense, and, because it addresses a public safety concern, that’s pretty much all that needs to be discussed.
The dissent calls out the contradictory reasoning of the majority:
Judging from the historical pedigree of the Excessive Fines Clause, I conclude that the confiscation of a defendant’s sole financial asset in O’Malley’s circumstances is an automatic violation of that provision. It recalls England’s “ ‘forfeiture of estate’ ” of 300 years ago, when the Crown confiscated all the real and personal property of a felon. Fried, Criminal Law: Rationalizing Criminal Forfeiture, 79 J.Crim.L. & Criminology 328, 329 (1988), fn. 1. But here, O’Malley has not committed a felony.
Surely, if the Excessive Fines Clause means anything, it means that the government cannot confiscate a defendant’s entire net worth when the maximum fine set by the legislature is less than one-tenth of the value of the forfeited asset.
O’Malley can still appeal this, sending it to the same court that gave Tyson Timbs a victory. If this lightning strikes twice, the US Supreme Court may have to suss out a multi-factor test to be applied in lower courts. Otherwise, state courts will continue to cherry pick factors that lend themselves to the desired outcome.