That means that they can seize property or cash under a certain value with near impunity because the cost of recovering it is greater than the cost of the goods themselves. This makes it a fantastic tool against the poor, since they'll have no real remedies.
You only really started to hear about Civil Forfeiture once the police started going too far and taking things from the wealthy or powerful, but they've been at this for years, take vehicles from accused but un-prosecuted "drug dealers."
In some states, having more than $10,000 in cash on your person is automatically considered "evidence of criminal activity". That means that the police, just by seeing that you have more than $10k in cash, can simply seize it and then force you to spend your time and additional money proving that the money didn't come from crime.
And, of course, every cent of the cash they take goes to their own department, so they are incentivized to look for cash during traffic stops just so they can literally commit highway robbery...
It's also not unusual for an officer to record that they found $15k in cash, only for the person they seized it from to call foul, stating that they had more. Since there is literally nothing protecting the citizen in this situation, they are left without any legal remedy, and the cop gets to pocket your cash for his own illicit purposes.
This is a system that encourages corruption with the justification of profit.
From my perspective it was more like police brutality: the internet and cameras were what made awareness mainstream by making it easy to spread (especially in areas where the local media has a credulous relationship with the police) and harder to dismiss.
If one became popular, what magic would prevent it from being added to the same software they use to extract other information from phones?
Those have their own drawbacks. Digital currency can often be tracked (not made to be anonymous). They might or might not have high currency fluctuations, security issues (could be even the device / site you're using), high transaction costs, etc.
If you already have cash it seems easier to just do a bank transfer (at least it is within most of Europe).
False generally, and specifically false for federal law forfeitures, where the burden is explicitly on the government to prove that the property is legally subject to forfeiture provided anyone with an interest in the property sized has asserted that interest.
If the property is subject to forfeiture (e.g., as an instrumentality of crime), the owner may still defeat forfeiture by establishing their own personal innocence, under the innocent owner rule: in this case the burden is on the owner, but this only comes into play when the property is proven subject to forfeiture. See, generally, 18 USC Sec. 983(c) and (d).
If a claim is filed, the government can either pursue civil or criminal forfeiture. In the case of civil forfeiture there is a right to a trial by jury.
However, this isn't automatic. The person has to either have the legal knowledge to know how to file a claim, or they need a lawyer. In many cases no claim is filed because the legal fees necessary to recover the asset will be greater than the value of the asset.
Basically if the government sizes a few grand in cash, it will cost you too much to recover it to make it worth it. Also if you're not legally sophisticated, or too poor to pay a lawyer (and can't find free legal help), you're not going to get your money back.
Edit: additionally, what happens when the government doesn't follow the law? You bring them to court? That's still guilty until proven innocent unless there's a strong IG which is not the case
The problem with relying on the 8th alone is that the word "excessive" is imprecise, and there's good reason for the Supreme Court to defer to local legislatures to define what it means, except in extreme cases. Deciding criminal penalties are normally within the powers of the state.
I think the more important amendment is the 5th: ("nor shall private property be taken for public use, without just compensation."). This "takings" clause is what civil forfeiture is all about.
The 5th Amendment has been fully incorporated, and is binding on the states: https://www.law.cornell.edu/wex/incorporation_doctrine
In cases where there is no rational connection to a crime (and there are many such cases), the taking can in no way be construed as a fine.
If you look at the 5th and the 8th together to try to divine the intent of the founders, it's clear that they were trying to limit government overreach of exactly this kind. This case should be a slam dunk.
While I agree with you personally, I think legally that would be very far from a slam dunk case.
The situation in this case seems similar to the one in Bennis v. Michigan, where SCOTUS already ruled that the civil forfeiture did not violate the takings clause of the 5th amendment. So the 5A angle seems like a risky argument.
On the other hand, the waters surrounding the 8th amendment are very murky. As recounted in the Indiana SC decision, their basis for determining that the excessive fines clause is unincorporated comes from the 2010 McDonald decision, a case that had nothing to do with the 8th amendment at all. It was only mentioned in passing, so this was not a holding but merely dictum. SCOTUS had previously said in dictum that the excessive fines clause was incorporated. So there hasn't been a full holding, plus two contradictory dictums in a relatively short period. That's fairly murky, whereas Bennis vs Michigan is basically clear with regards to the 5th amendment.
I just read the opinion in Bennis. The core of it is that the state may take property if the use of the property constitutes a public nuisance. If a ship is used for piracy or drug running, for example, then it can be taken.
In Bennis, there was a car jointly owned by a husband and a wife. The husband used the car with a prostitute. The wife didn't know. The question before the court was if the state's taking of the car violated the wife's 5th amendment rights, because she owned half of it and had nothing to do with the crime. Almost the entirely of the opinion concerned whether an innocent owner could have property taken if the property had been used to commit a crime by someone else. The court held that yes, it could, and that wasn't a violation of the 5th amendment.
Most of these civil forfeiture cases can be distinguished because the property taken usually wasn't used in the commission of a crime. People have had large amounts of cash taken from them even though they did nothing more than run a red light or drive too fast. In that case, the money can hardly been seen as having been an instrument of the crime.
It's unfortunate that in this particular case, the druggie did use his car to transport and to buy and sell drugs. This isn't the best case to challenge civil asset forfeiture generally. Perhaps "excessive fines" is the best they'll be able to do. Although if the court is really enlightened, they'll distinguish between an asset which is primarily used for crime (a crack house or a pirate ship) and one which is used only in passing (like this car).
For example, in this thread, people keep saying that United States v. Ursery upheld Civil Forfeiture, but it did no such thing. The case was about whether CF is a criminal punishment for double-jeopardy, but it did not address the legality of CF itself.
In this case, they are also not directly deciding on CF. They are deciding on whether the 8th amendment applies to the States based on the 14th amendment. If they decide that it does, then the case goes back to the Indiana Supreme Court, who will have to decide if the fine is excessive, like the lower courts found.
But every other civil forfeiture case will still have to argue in a court whether the forfeiture counts as an excessive fine.
But I'm still confused on one point: It seems like the supreme court has already ruled that the 8th Amendment applies to the states in Roper v. Simmons[0], Robinson v. California [1], and others. To me this pretty directly means that a state law dictating a cruel and unusual punishment is unconstitutional.
So if supreme court isn't deciding whether cruel and unusual punishments at the state level are unconstitutional in general (a previous ruling), and it isn't deciding whether this specific civil forfeiture was cruel and unusual (a decision to be made by the state court), what exactly are they deciding? Is there some unplugged hole in the middle, like whether any CF case (regardless of details) could be cruel and unusual? Or is there some other reason that the previous rulings don't apply here?
> Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment
[1] http://www.scotusblog.com/case-files/cases/timbs-v-indiana/
[2] http://www.supremecourt.gov/DocketPDF/17/17-1091/33939/20180...
[1]: http://reason.com/volokh/2018/06/19/supreme-court-will-hear-...
To my untrained eye a $27,000 fine for failing to properly signal a lane change is a little bit on the excessive side.
It appears to be going to the supreme court b/c the Indiana Supreme Court said that the amendment regarding excessive fines doesn't apply to the states.
So the real question being asked to the SC in this case is "Must states abide by the 8th amendment?"
Since they must 1st, 2nd, and others - I don't see why they would not be required to do so.
[1] https://www.forbes.com/sites/instituteforjustice/2014/03/12/...
I posit it's a better way (assuming SCOTUS makes decides an actual Constitutional question) than legislation, since it precludes legislators merely reinstating the practice later.
I've heard previously that they go so far as saying the charges are against the property itself so the owner has no standing to sue the government which keeps them from ever determining the constitutionality of civil forfeiture.
Masterpiece Cake Shop was as well. The court ruled in his favor, but was able to wiggle out of resolving the constitutional questions because of explicit bias on the part of the CO Civil Rights Commission.
(And especially considering that the present-day SCOTUS has been accused of repeatedly eroding Miranda v. Arizona, see especially Berghuis v. Thompkins in 2010.)
It's possible they'll rule that civil forfeiture was acceptable in this one specific case, and they'll go out of their way to make it clear that their ruling only applies to this specific case.
In this case there is little doubt that the target was dealing drugs, prompting one judge to write that "one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself." The only issue is whether the seizure was excessive, and there will always be judges who think that no punishment is too great for a proven heroin dealer.
Saying forfeiture abuse proliferated "even under Obama" is like saying even under Rod Blagojevich corruption proliferated in Illinois. Not exactly a surprise.
Only so much the Feds can do in matters of local and state level policing.
That’s why you need the SC to rule on stuff.
> “I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases,” Judge Barnes wrote. “Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.”
---
He's, of course, well aware that the Land Rover is worth far more than the maximum fine was for the crime, so that's not what he meant by "the legal consequences to which he exposes himself". The only thing I can figure that he means is basically "tough luck, forfeiture exists on the books, you've exposed yourself to it, that's your bad." But saying "the law allows it" is hardly helpful when the issue at hand is (apparently) whether or not the law is constitutional. The only thing I can think is he felt his opinion was on the narrow facts of the case and not the broader constitutionality, or that case law had already settled this.
1. http://www.businessinsider.com/heres-what-police-bought-with...
2. https://www.forbes.com/sites/instituteforjustice/2014/06/05/...
As I recall, the whole concept of civil asset forfeiture was originally to discourage crime by removing the profit from criminal activity when the property was at hand, but the owner was outside the jurisdiction or otherwise unreachable. The long history of forfeiture is mostly seizing the property because the actual criminal was untouchable.
It has since morphed into cops acting as highwaymen to fund their activities beyond the bounds of their regular budget. In this case, the alleged criminal was actually charged, in custody, given due process criminally, and fined. The cops, not satisfied with the fines already levied, stole his car, too.
In my non-lawyerly opinion, if the Supreme Court would like for forfeiture to continue largely unchanged, they should reverse and return the guy's car, and cite so many case specifics that this would be practically useless as precedent. If they confirm, there is a chance that public backlash will eliminate forfeiture through legislatures. If they reverse on principles rather than specifics, that would set precedent easily usable by everyone better respected than a heroin dealer. I hope for the latter, but I don't think the current court has the right makeup to tear the filthy entrails out of forfeiture.
Money is fungible, so I would be sympathetic to an argument that claimed he had made in the vicinity of $40k from selling drugs (which could not be confiscated for whatever reason, maybe he spent it all on drugs for his own use or something) and so it was justified to seize his car.
But from the way it's described, I don't see why the state doesn't think it can justify confiscating an arbitrarily large amount of property from a person who has committed an arbitrarily small drug crime. e.g. if this guy owned a $400,000 house and sold $20 worth of drugs out of it, can they take his house?
The number one reason for addicts to get into the business of selling drugs is to support their own habit - you can only do that if you turn a profit, even if you put that profit right back into buying drugs for yourself.
This looks to be the defense:
The Indiana Supreme Court ruled against Mr. Timbs, on interesting grounds. It said the Eighth Amendment’s prohibition of excessive fines did not apply to ones imposed by states.
From the 14th Amendment Section 1, it's disturbing that the following isn't obvious to any high school graduate:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.
Equally disturbing is the thought that Illinois might just win this case anyway.
It's interesting to consider what might happen if reason prevails. A lot of people have lost a lot of property over the years to to forfeiture. I can't imagine all of them will pass on the opportunity for compensation and punishment.
But our personal opinions aside, I don't think the Indiana Supreme court decision is really very surprising from a legal perspective. The eight amendment is selectively incorporated and the excessive fines clause is not incorporated. The 14th amendment gave the courts the justification they needed to incorporate parts of the bill of rights, but for better or worse, not everything in the bill of rights has been incorporated yet, and there is nothing the Indiana supreme court can do about that.
It would certainly exceed their legal jurisdiction for a state court to decide that a federal constitution amendment is incorporated.
And while I hope this case prompts SCOTUS to fully incorporate the 8th amendment, we should also be demanding more of our state governments. Federalism gives states the power. The power to do bad, but also the power to do good. Why is that we so often have to depend on federal courts to protect our rights?
Why don't the legislators of Indiana provide protections against excessive fines in their own constitution, and why do their citizens not demand it? We all want the SC to swoop in and save the day, but we should also face these questions and figure out what we need to do as a society to change this.
Interesting - what does "incorporation" mean in this context?
A lot of Second Amendment advocates say we need the right to bear arms to protect ourselves from a tyrannical government. Civil forfeiture is an excellent example of tyranny. If the Supreme Court decides it's legal, I better see an armed uprising.
The "other side" says: Seizing Land Rovers from drug dealers helps fund underfunded rural police departments, and keeps them from having to raise taxes on law-abiding citizens.
I have no doubt that every aspect of this viewpoint is debatable. However, that's the viewpoint, per your request.
Seriously though. The police are a service provider who are employed by and act on behalf of all citizens. If we want functioning law enforcement, we should be willing to pay for it.
We might not appreciate it on a daily basis, but functioning law enforcement saves individuals a lot of money. Imagine if they didn't exist and everyone had to to organise their own security.
Although obviously cops have gone way to far with seizing shit and very stupidly if the person's criminal charges are dropped (or some times not even filed) they don't automatically get their seized goods back.
If a wealthy drug dealer has cars, boats, houses and whatnot that are used in the course of committing crimes, the government should be able to seize them to stop them from continuing to be used for this purpose. If a drug dealer has a large amount of cash earned from the sale of drugs, he should not be able to use his ill-gotten gains to pay for lawyers or escape or anything else. Also, the seizures help local law enforcement defray the cost of catching the criminal, a cost they would not have had to incur had he not been a criminal.
Again, I think these are terrible arguments, but there you are.
3x civil forfeiture victim chiming in.
3k 10k 48k
Never charged with a crime.
What would you like to know LOL.
This is even more egregious. He will probably get it back eventually through much legal maneuvering but it shouldn't be this easy to screw up some poor soul's life because of a few bad apples this law was enacted for, namely hard to impossible to prosecute drug cartels. These forfeiture laws are basically hammers turning every case into a nail, regardless of merit.
A bit off topic but someone should tell this guy that a LR doesn't make you more of a man, especially if you buy it using the life insurance of your father. The best for him would be to actually sell the LR(if he ever gets it back), buy car that he can afford and use the rest of the money to put his life in order.
My college girlfriend and her family migrated from Mexico in the early 70's, worked their asses off and all became pretty successful. They mostly owned restaurants (pizza, not tacos), but other businesses, too. One of her brothers owned a chain of used car lots in Northern California. He was a hard-working dude, with a wife and two sons.
One of her brother's auto-detailers got busted for possession of a small amount of marijuana, which back in 1992 was actually a crime. The local cops claimed that the detailer was dealing for her brother, who was using his dealerships to distribute drugs and launder the profits. They seized his car lots, all the cars, his house, and froze his bank accounts. All total, the cops seized around half-a-million of cash and assets.
The DA refused to bring a case, mainly because (1) the detailer didn't even know her brother; he only worked at the shop for less than a month, (2) the detailer was busted for possession in his own apartment, no where near work, (3) the detailer originally said he sold drugs at the shop, however, taped interviews clearly showed the cops pressuring the detailer to say that; it was like watching a POW read a pre-written statement, and (4) there was simply no other evidence, nothing. The cops found no drugs and any of his lots or his home. The DA even criticized the local cops' behavior in his statement, dropping the case.
The DA dropped the case and said the local cops screwed up, so her brother should get all his assets returned, right? Wrong. His legal issues were just getting started. Looking back, it's clear the cops never had any intention of a criminal case.
Her brother sued to get his assets returned, but the system is all-in for the cops, and they know it. And they know how to work it. The cops' attorney would file for delays, demand ridiculous documentation, and just not show up to court appointments, causing more delays. For example, the cops' attorney argued about the value of the seized vehicles, and demanded that her brother have them appraised, however, he couldn't have access to the vehicles to do the appraisals because, after months of back-and-forth, it turns out that the vehicles were already distributed (sold at auction), just days after the initial forfeiture. It was even rumored that one of the cops gave one of the seized vehicles (a Mustang) to his girlfriend, less than a week after the initial forfeiture. Her brother also was not allowed access to his home where all of his records were kept, however, police were seen coming and going for months.
Oh yeah, remember how the DA never filed the case? That was another thing the cops' attorney argued - basically, since there was never a criminal trial, her brother was never found not guilty and thus the cops didn't know if he was a drug dealer or not. They claimed their policy allowed them to return assets to those proven not guilty in court. See how that works?
This whole back-and-forth process went on for over two years. I'm skipping A LOT of details. Finally, the police department offered $50,000, take it or leave it. Her brother's attorney advised he take it, noting that the situation would only get worse, the city was prepared to drag out the case indefinitely. He didn't get his house back, any of the vehicles, or his business - nothing. He took his money and moved back to Mexico with his wife and kids. He now owns a chain of restaurants - that's right, pizza. None of them even liked pizza. I always found that strange. LOL
Anyone who supports 'civil forfeiture' has simply never seen the effects on innocent lives. The defense I hear all the time is "Who cares? They're all drug dealers.", or "I don't believe it. Why would the cops seize assets from an innocent person?", and "What's so difficult about getting your stuff back, after it was seized?" But I saw a good man's life destroyed by this horrible policy. I buried my anger/frustration about this for years, thinking this bad policy couldn't possibly last, but unfortunately I was wrong. It's only gotten worse over the last 25 years. A lot worse.
Input the location and get walked through questions and have the paperwork filed automatically.
You could charge a percentage of the total value being claimed.
Similar to the apps to fight parking tickets.
Thomas has made his position clear about this in the past, Roberts sensibilities are often libertarian, and the others are liberals.
I'd be interested in knowing if I'm missing something important here.
“I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases,” Judge Barnes wrote. “Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.”
This sort of intersection between hard biological reality on the one hand (in this case, predictable consequence of highly addictive drugs), and the hard-nosed moralizing of a judge, reminds me of something Robert Sapolsky has been trying to impart about what we should give consideration to when looking for the ultimate sources of culpability when biological factors are involved, and whether or not we ought to see negative social behavior as a crime or a disease. Sapolsky has written a recent book about this topic, Behave: The Biology of Humans at Our Best and Worst.
Mr. Timbs’s habit started with an opioid addiction and progressed to heroin. He used his Land Rover to get drugs and, on at least two occasions, to sell them. The buyers were undercover police officers.
