part 2
The Supreme Court Signals It May Rein in Abusive Property Seizures
He asserted that applying constitutional protections against property seizures would be a novel and historically unsupported move. Instead, he argued that the court should overrule its own precedent from a 25-year-old case,
Austin v. United States (1993).In
Austin, the court held that civil forfeitures historically have been understood to act, “at least in part, as punishment,” and modern civil forfeiture practices have the same punitive overtones. Given this, the court held that federal in rem forfeitures that are punitive in nature are “subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.”Later, in
United States v. Bajakajian (199
, the court clarified the test of excessiveness
in the forfeiture context when it declared the forfeiture of a large amount of currency to be unconstitutional on the basis that it was “grossly disproportional to the gravity of [the] offense.”The justices did not seem interested in reversing course. When Justice Stephen Breyer asked Fisher whether, under his theory, “a state needing revenue” could forfeit every vehicle found merely to be speeding, Fisher responded, “Yes.”Several justices seemed perturbed by the implication that states and localities would be able to levy otherwise unconstitutional fines merely by saying they are forfeitures.Many law enforcement agencies already treat forfeiture as an easy means of seizing their way to
bigger budgets. Each year, hundreds of millions of dollars in cash and property are forfeited and the revenues subsequently spent with little oversight or accountability.Timbs’ attorney, Wesley Hottot of the public interest law firm the Institute for Justice, picked up on this, arguing that exempting forfeitures from the Excessive Fines Clause would permit “governments at all levels to impose constitutionally excessive civil in rem forfeitures based on nothing more than a label.”But while there seemed to be broad support for
incorporating the Excessive Fines Clause, and possibly for holding that the clause does indeed apply to civil forfeitures that are punitive in nature, there was no clear agreement about how to define an “excessive” civil forfeiture.Justice Samuel Alito wanted to know if the civil forfeiture of a $1,500 Kia and a $250,000 Bugatti should be treated the same under the Excessive Fines Clause.Hottot responded that forfeiture of any vehicle in this case is excessive because the “vehicle was not instrumental to this crime. It was incidental.”Chief Justice John Roberts pointed out that the Land Rover was clearly “an instrumentality of the crime” and that “it’s pretty well established” that instrumentalities
“can be forfeited.”Hottot countered that, while true, it could nevertheless be excessive based on, for example, the burden its seizure placed on a property owner—particularly an “innocent owner” who was neither aware of, nor consented to, the misuse of his property. Such seizures are a real and often tragic phenomenon. For example, the city of Philadelphia attempted to seize the home of
Chris and Markela Sourovelis because their son, unbeknownst to them, had sold $40 worth of drugs on the property.
Later in the argument, Justice Elena Kagan said that it “seems as though there are two questions”—whether to incorporate the right, and what “is the scope of the right to be incorporated.”The Timbs case only asks the first question, and the court can—and likely will—hold that the Eighth Amendment’s protections against excessive fines are incorporated against the state, leaving the more complicated question of how to define an “excessive” civil forfeiture to another day.