Court ruling will curb asset forfeiture abuses

By Thomas Mitchell
The U.S. Supreme Court has finally brought the hammer down on the abusive law enforcement practice of civil asset forfeitures — seizing
of cars, money and property simply because it might have some tenuous link to some alleged crime.
The court has unanimously ruled that such seizures can violate the Eighth Amendment prohibition against excessive fines. The case involved Indiana resident Tyson Timbs, who was convicted of selling $385 worth of cocaine in 2013. He was sentenced to a year home detention, five years probation and fined $1,200. Police also seized his $42,000 Land Rover even though the maximum fine under the law was $10,000.
The Indiana Supreme Court had held that the Excessive Fines Clause in the Eighth Amendment applies only to the federal government and not to the state, but the justices ruled that the Due Process Clause of the 14th Amendment, passed after the Civil War, makes the Eighth Amendment applicable to states as well.
The high court opinion penned by Justice Ruth Bader Ginsburg noted, “When ratified in 1791, the Bill of Rights applied only to the Federal
Government. … ‘The constitutional Amendments adopted in the aftermath of the Civil War,’ however, ‘fundamentally altered our country’s
federal system.’ … With only ‘a handful’ of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates
the protections contained in the Bill of Rights, rendering them applicable to the States.”
Ginsburg also noted that the concept of prohibiting excessive fines dates to the Magna Carta, which required economic sanctions “be
proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.”
Wesley Hottot, an attorney with the Institute for Justice, who argued the case on behalf of Timbs before the court in November, said the
“ruling should go a long way to curtailing what is often called ‘policing for profit’ — where police and prosecutors employ forfeiture
to take someone’s property then sell it, and keep the profits to fund their departments. This gives them a direct financial incentive to
abuse this power and impose excessive fines.”
Justices Clarence Thomas and Neil Gorsuch concurred with the court’s conclusion but quibbled on how the Constitution should be interpreted to reach that conclusion. Thomas’ concurring opinion said the case has nothing to do with due process but rather strikes to the core protection afforded by the 14th Amendment, which protects privileges and immunities.
The 14th reads in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.”
Asset forfeitures arguably constitute due process, but certainly can abridge the immunity from excessive fines.
Thomas recounted that the 14th Amendment was specifically passed to address this very issue of excessive fines that were passed in Southern states as part of the Black Codes.
“For example,” Thomas wrote, “under Mississippi law, adult ‘freedmen, free negroes and mulattoes’ ‘without lawful employment’ faced $50 in fines and 10 days’ imprisonment for vagrancy. … Those convicted had five days to pay or they would be arrested and leased to ‘any person
who will, for the shortest period of service, pay said fine and forfeiture and all costs.’ … Members of Congress criticized such laws ‘for selling [black] men into slavery in punishment of crimes of the slightest magnitude.’”
Thomas concluded, “The attention given to abusive fines at the time of the Fourteenth Amendment, along with the ubiquity of state
excessive-fines provisions, demonstrates that the public continued to understand the prohibition on excessive fines to be a fundamental
right of American citizenship.”
This ruling should help curb asset forfeiture abuses that have occurred in Nevada. In 2013 police seized $167,000 from a man driving
a motor home through Elko County. A judge later ordered the money returned.
Over a two-year period Humboldt County deputies seized $180,000 in cash from motorists. One deputy was caught on tape telling a tourist,
“You’ll burn it up in attorney fees before we give it back to you.”
The U.S. attorney’s office in Las Vegas demanded a local woman forfeit the $76,667 in salary she earned while running an office for her brother, who was later convicted of mortgage fraud. A federal judge called the forfeiture effort an “egregious miscarriage of justice.”
This ruling should put a stop to such abuses.

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