A Small Victory Against Civil Asset Forfeiture at the Supreme Court

The Supreme Court issued an opinion on Wednesday that is a shot across the bow of defenders of civil asset forfeiture. In a unanimous judgment, the justices incorporated the Excessive Fines Clause of the Eighth Amendment to the states. The Court didn’t rule on the dubious constitutionality of civil asset forfeiture, leaving that issue for another day.

Although the decision wasn’t a necessary a broadside against civil asset forfeiture, the ruling adheres to the precedent established in Austin v. United States (1993), in which the Court determined that Excessive Fines Clause applied to forfeiture cases. The precedent hadn’t been incorporated to the states; that is, until now.

The plaintiff in the case, Tyson Timbs, became addicted to prescription drugs because of pain in his foot. After his prescription ended, Timbs turned to heroin to self-medicate. He sold about $400 worth of heroin to undercover police officers in Indiana and was arrested. He pled guilty and was sentenced to one year of home confinement and five years of probation. Timbs was also required to complete a drug treatment program and pay around $1,200 in court costs and fees.

Law enforcement used a private law firm initiate forfeiture proceedings against Timbs’ Land Rover because, they claimed, he used the vehicle to transport a controlled substance. He had purchased the Land Rover for $42,000 with cash that he received from a payout from his father’s life insurance policy. Needless to say, the car was not the fruits of a criminal enterprise.

A trial court rejected the forfeiture of the Timbs’ Land Rover on the grounds that the permanent seizure of the vehicle was disproportionate to the crime. The trial court’s judgment was upheld on appeal. The Indiana Supreme Court, however, reversed the lower court rulings because the Excessive Fines Clause of the Eighth Amendment hadn’t been incorporated to the states.

It was almost a foregone conclusion after oral arguments in Timbs v. Indiana that the Excessive Fines Clause would be incorporated to the states. The only real question was whether the Supreme Court would consider forfeitures to be covered by the clause. This would have required the Court to reverse Austin, which justices weren’t willing to do.

In the opinion issued on Wednesday, Justice Ruth Bader Ginsburg wrote, “We…decline the [Indiana]’s invitation to reconsider our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive.”

When it came to incorporation, the matter was consistent with how the oral arguments played out. “As a fallback, Indiana argues that the Excessive Fines Clause cannot be incorporated if it applies to civil in rem forfeitures. We disagree,” Justice Ginsburg wrote. “In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted. Indiana’s suggestion to the contrary is inconsistent with the approach we have taken in cases concerning novel applications of rights already deemed incorporated.”

“The right against excessive fines traces its lineage back in English law nearly a millennium, and from the founding of our country, it has been consistently recognized as a core right worthy of constitutional protection. As a constitutionally enumerated right understood to be a privilege of American citizenship, the Eighth Amendment’s prohibition on excessive fines applies in full to the States,” she added.

The only real disagreement in the decision was the path taken to incorporate the Excessive Fines Clause to the states. The Supreme Court has incorporated the Bill of Rights selectively through the Due Process Clause of the Fourteenth Amendment. Under precedent established in Barron v. Baltimore (1833), the Bill of Rights applies to only federal citizenship, not to state citizenship. The Court has, over the past hundred years or so, incorporated rights on a case-by-case basis.

Some legal scholars, however, believe the more appropriate path to incorporate the Bill of Rights to the states is through the Privileges or Immunities Clause of the Fourteenth Amendment. The clause was rendered moot by the Supreme Court in the Slaughter-House cases (1873), but it has had a revival in recent years.

In 2010, the attorney, Alan Gura, arguing on behalf of Otis McDonald made the case for incorporation of the Second Amendment through the clause. Justice Antonin Scalia brow beat Gura. “[W]hy are you asking us to overrule 150, 140 years of prior law, when — when you can reach your result under substantive due — I mean, you know, unless you are bucking for a — a place on some law school faculty,” Justice Scalia said. “What you argue is the darling of the professoriate…but it’s also contrary to 140 years of our jurisprudence.”

Another attorney, Paul Clement, made the case for incorporation in McDonald v. Chicago through substantive due process. The Court adopted Clement’s rationale and incorporated the Second Amendment through substantive due process, rather than privileges or immunities. Justice Clarence Thomas concurred in the judgment but made a case for incorporation in his concurrence.

In Timbs, Justice Thomas and Justice Neil Gorsuch concurred in the judgment but wrote for incorporation through the Privileges or Immunities Clause rather than the Due Process Clause. “I therefore decline to apply the ‘legal fiction’ of substantive due process,” Justice Thomas wrote.

The debate over incorporation through the Due Process Clause or the Privileges or Immunities Clause will undoubtedly continue in legal circles, but that is a separate matter from the Supreme Court’s opinion in Timbs. Ultimately, the decision deals a blow to law enforcement agencies that use forfeiture proceeds as a way to boost or supplant their budgets.

What happens next is remains to be seen. More than two-dozen state legislatures have adopted civil asset forfeiture reforms. Of these, 23 have increased evidentiary standards to mitigate abuse. Not all reforms are equal, however, and Congress has yet to pass any civil asset forfeiture reform legislation. This would be an issue that attracts bipartisan support and should be on the agenda for the 116th Congress.