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Putting A Lid On The Seizure Business

Indiana Statehouse dome (detail).
Indiana Statehouse, home of the Indiana Supreme Court. Photo by Wikimedia Commons user Jasont82.

When a Supreme Court as divided as this one unanimously agrees on anything, the country should take notice – all the more so when that unanimous ruling concerns the often divisive topic of how police departments operate.

In Timbs v. Indiana, the court affirmed the seemingly obvious proposition – obvious to everyone except the Indiana Supreme Court, anyway – that the U.S. Constitution prohibits states from imposing excessive fines, including seizure of property, on people accused or convicted of a crime. This sets the stage to end the widespread and widely abused practice of civil asset forfeiture.

As I have written before, property forfeiture laws that allow police departments to keep cash or other property that they confiscate encourage officers to stretch “probable cause” beyond the breaking point. State legislators and Congress have tried to crack down on the practice, but so far it remains stubbornly entrenched across the country. The Justice Department’s suspended “equitable sharing” program was eventually reinstated at the federal level, and state-level forfeiture programs, on the whole, never slowed down.

A friend of the court brief from the American Civil Liberties Union noted the scope of the problem: In 2017, 10 million Americans collectively owed more than $50 billion in criminal fines, fees and forfeitures. But civil forfeitures are especially pernicious because of how the system works. Prosecutors accuse an individual of a crime, and then draw a connection – tenuous or otherwise – from that crime to the individual’s cash, car, home or other valuables. The assets are seized in a civil proceeding, and individuals can often find it very difficult to recover their property, regardless of whether they themselves are ever charged with a crime. And, in many cases, the law enforcement agency doing the seizing gets to add the value of the confiscated goods to its own coffers.

Even if you believe forfeiture is an effective deterrent for certain sorts of crime, allowing police departments to keep what they take is an invitation to abuse at best and to corruption at worst. A system where police have a financial stake in their own law enforcement activities virtually guarantees a misallocation of policing resources.

The opinion in Timbs v. Indiana, written by Justice Ruth Bader Ginsburg, is relatively concise. It notes that the Eighth Amendment guarantees that no excessive fines may be imposed, and that the question in this case is not whether the forfeiture in question was excessive, but whether the Eighth Amendment applies to actions by the states.

Tyson Timbs pleaded guilty in an Indiana court to dealing in a controlled substance and conspiracy to commit theft, garnering a sentence of a year of house arrest and five years of probation. The trial court also ordered Timbs to pay fees and costs of about $1,200. However, Timbs’ $42,000 SUV, which the police had seized, was the further object of a civil suit for forfeiture, representing the loss of much more than the $10,000 maximum penalty Timbs’ conviction allowed. Under Indiana law, the state and the private law firm it hired to bring the case would be entitled to split the vehicle’s value.

In reversing a lower court decision, the Indiana Supreme Court also did not weigh in on whether the seizure represented an excessive fine. Instead, it claimed that the Eighth Amendment did not apply because the applicable clause only constrains federal actions. When the Bill of Rights was drafted, it did apply only to the federal government. However, since just after the Civil War, the courts have held that only a handful of the protections in the Bill of Rights have not been “incorporated” under the 14th Amendment to extend to the states as well. As Ginsburg pointed out, the 14th Amendment’s Due Process Clause incorporates the protection against excessive fines as one “fundamental to our scheme of ordered liberty,” stretching back beyond our own country’s history as far as the Magna Carta.

Or, as Justice Neil Gorsuch put it more bluntly during oral arguments in November: “Here we are in 2018, still litigating incorporation of the Bill of Rights. Really?”

Gorsuch and Justice Clarence Thomas wrote concurrences that focused on the specific mechanism of how the 14th Amendment properly incorporates the Bill of Rights, but their concurrences illustrate no disagreement with the court’s overall finding. Indiana, and every state, cannot impose excessive fines any more than the federal government can. The case also establishes that civil lawsuits against property count as fines in this context.

Timbs v. Indiana does not strike down all existing civil asset forfeiture programs outright. It does, however, lay the legal groundwork to do so. Ginsburg’s opinion did not decide the question of whether seizing the SUV represented an excessive fine, but rather sent the question back to the Indiana Supreme Court. However, this decision opens the door for a future challenges that will more directly ask the Supreme Court to weigh in on such programs.

A definitive ruling against extrajudicial forfeitures is long overdue. And when even this fractured court is unanimous in setting the stage, it is reasonable to hope that we will get that definitive ruling sooner rather than later.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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