The Supreme Court Signals It May Rein in Abusive Property Seizures

Jason Snead / @jasonwsnead / Elizabeth Slattery / @EHSlattery / November 30, 2018

This week, the U.S. Supreme Court heard oral argument in a case that may rein in abusive property seizures by state and local governments through the highly controversial legal tool known as civil asset forfeiture.The case at issue involves a man named Tyson Timbs, who sold $225 worth of heroin to undercover police officers on two occasions, as a means of raising money to support his own drug habit.

Police arrested Timbs while he was driving to a third drug deal, and he ultimately pleaded guilty.He was sentenced to a year of home confinement and five years of probation, and assessed roughly $1,200 in court costs and fees. Then the state of Indiana moved to forfeit the vehicle he was driving that day: a $42,000 Land Rover, which Timbs purchased with funds from his father’s life insurance policy.Civil forfeiture is the law enforcement practice that allows police to seize currency or property alleged to have been used to commit a crime, or to represent the fruits of that crime.This type of proceeding is known as a civil in rem forfeiture, meaning the defendant is the property itself, and the state does not need to pursue criminal charges or win convictions to permanently strip owners of their homes, cars, or life savings.In the United States, civil forfeiture was largely relegated to admiralty and customs law until the 1980s, when Congress and the states expanded its reach to permit its use against drug kingpins, money launderers, and organized crime.

But federal and most state laws permitted agencies to keep some or all of the proceeds of their seizures, and afforded property owners so few due process protections that the government can successfully win a forfeiture case even when it has little or no evidence of criminal behavior.This was clearly not the case for Timbs, but seizing a $42,000 car as an instrumentality in a minor drug offense, the maximum criminal fine for which was $10,000, raised an important question:

Was the seizure of Timbs’ car unconstitutional under the Excessive Fines Clause of the Eighth Amendment?Both the trial court and an appeals court held that it was, but the Indiana Supreme Court ruled that the U.S. Supreme Court has never explicitly held that the clause applied to the states, a process known as incorporation.Most people would probably be surprised to learn that not all of the guarantees in the Bill of Rights apply against state governments.Though the Supreme Court made it clear in Barron v. Baltimore (1833) that these rights only restricted the federal government, starting in the 1920s, the court began incorporating provisions of the Bill of Rights against state governments through the

Due Process Clause of the 14th Amendment.Today, neither states nor the federal government may abridge free speech, establish official religions, engage in unreasonable searches or seizures, or take property without just compensation.The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”While the Supreme Court has ruled that the prohibitions on excessive bail and cruel and unusual punishment apply against the states in Schilb v. Kuebel (1971) and Robinson v. California (1962), the court has indeed never held that the Excessive Fines Clause applies to the states as well.After this week’s argument, that appears likely to change. At oral argument, the justices appeared to uniformly consider the question of incorporation to be settled.When the lawyer for Indiana,

Solicitor General Thomas Fisher, stood up at the podium, Justice Neil Gorsuch said, “We all agree that the Excessive Fines Clause is incorporated against the states … can we at least get the theoretical question off the table?”Justice Brett Kavanaugh chimed in, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”Fisher was not prepared to concede the point, responding that the court “has never incorporated a right against the states where it could not conclude that there was a relationship that was fundamental or … deeply rooted in our history and tradition.”