Finally, Asset Forfeiture Is Ruled Unconstitutional — Sort Of

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by John Rubino

Among all the many things governments do that seem to violate the Constitution — not to mention common sense and basic fairness – asset forfeiture stands out.

Believe it or not, states and cities now partially fund themselves by arresting people, taking their stuff and then failing to return said stuff after deciding not to prosecute. Or prosecuting, fining and jailing someone, and still keeping their car, house, cash or whatever in addition to the legally mandated punishment.

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Somehow, these – let’s call them what they are – thieves had the gall to argue that this practice was both legal and just. But yesterday the Supreme Court ruled unanimously that it’s neither of those things because, duh, the Bill of Rights applies to the states as well as the federal government. From today’s Wall Street Journal:

Justices Against Unjust Forfeiture

The Supreme Court says state seizures can violate the Constitution.

Police and prosecutors around America have long used asset forfeiture as a cash cow, but a unanimous Supreme Court ruling Wednesday should make them think twice. The Bill of Rights keeps paying dividends even after 228 years.

Tyson Timbs was caught selling heroin in Indiana. The maximum fine under state law was $10,000, yet the cops seized his $42,000 Land Rover. He had bought the car with legal money, but police said it was still forfeit because he had used it to transport the drugs.

In state courts, Mr. Timbs argued that this out-of-proportion penalty violated the Eighth Amendment, which bars “cruel and unusual punishments” and “excessive fines.” Lower courts ruled in his favor. But the Indiana Supreme Court held that the ban on excessive fines didn’t apply to the states.

This was always a questionable claim, as we wrote last year, since most of the Bill of Rights has been incorporated to the states under the 14th Amendment’s Due Process Clause. On that point Justices left and right agree. In her opinion for the Court, Justice Ruth Bader Ginsburg held that the safeguard on excessive fines, quoting earlier cases, is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.”

Justice Ginsburg traces the clause back as far as Magna Carta. When the 14th Amendment was ratified in 1868, she adds, 35 of the 37 states banned excessive fines in their constitutions. “In short,” she writes, “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.” That includes, importantly, its application under previous rulings to civil forfeiture, which is more prone to abuse.

Justice Neil Gorsuch joined the Court’s opinion, while also filing a one-page concurrence asking whether “the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause.” Justice Clarence Thomas’s separate concurrence expands at length on this argument, insisting that freedom from excessive fines has little to do with “due process” properly understood.

This is a familiar argument from the Court’s originalist wing, including the late Justice Antonin Scalia. In McDonald v. Chicago, the 2010 case that incorporated the Second Amendment to the states, Scalia expressed his own misgivings with the idea of “substantive due process.” Yet he joined the majority opinion.

Justices Gorsuch and Thomas are welcome to keep advancing this view, and it’s true that substantive due process has sometimes been abused to justify judicial inventions. But by now it is well-trod judicial ground, and there is no legal overreach in this case.

The important practical point is that the Court’s ruling in Timbs v. Indiana puts states and cities on notice. Some police departments have set annual targets for asset seizures, and a limiting legal principle has been nowhere to be found. During oral argument, Indiana’s solicitor general said that if a driver in a Ferrari was going five miles over the speed limit, that could be grounds for police to take the car.

The Justices did not set a standard for what counts as an “excessive” seizure, so specific cases will no doubt play out in challenges to police abuses in lower courts. But defendants trying to protect their property against unjust state seizure will now have the Constitution firmly on their side.

As the article makes clear, this ruling doesn’t end asset forfeiture but does provide Constitutional justification for victims who want their stuff back. So expect a tidal wave of lawsuits that end up costing rapacious police departments, mayors and governors more than the theft is worth. This is not the end, in other words, but it is the beginning of the end.

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One form of government theft down, several dozen more to go.

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