End of the road for civil asset forfeiture?

I have written repeatedly about the abuse of the so-called ‘civil asset forfeiture’ provisions in the law that many government authorities use to seize the assets of people simply because of the suspicion that they may have been involved in a crime. The government holds on to these assets even if the person is not even charged with the crime. It should not be surprising that it is mostly low-income people who are at the receiving end. The people whose assets are seized have to sue the government to get them back, a complicated and expensive process, and many of the affected people simply do not have the resources to do so, so they end up losing their homes and their cars, which are often the only assets they have.

But in an important ruling, the US Supreme Court stated unanimously that the Eighth Amendment to the US Constitution, that says in its entirety that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”, meant that this taking of assets in excess of the value of the crime was unconstitutional and more importantly, that the “excessive fines” clause also applied to state and local governments because of the due process provision of the 14th Amendment.

Amy Howe describes the case that led to this ruling

The case began back in 2015, when Tyson Timbs sold heroin to an undercover police officer. He pleaded guilty to drug charges and was sentenced to one year of home detention, living with his aunt, followed by five years on probation. The state court also ordered Timbs to forfeit his 2012 Land Rover, which he had purchased for approximately $42,000 with the proceeds of his father’s life insurance policy, on the theory that he had used the car to transport drugs.

Timbs challenged the forfeiture of his Land Rover as a violation of the Constitution’s ban on excessive fines, and a state trial court agreed. It reasoned that because the SUV was worth four times more than the maximum fine that the state could impose, requiring Timbs to forfeit it would be “grossly disproportional to the gravity” of Timbs’ crime.

An intermediate appeals court upheld that decision, but the Indiana Supreme Court reversed. It ruled that the U.S. Supreme Court has never specifically said that the Constitution’s ban on excessive fines – part of the Bill of Rights, which was originally interpreted as applying only to the federal government – applies to the states.

Timbs asked the Supreme Court to weigh in, and today the justices held that the Eighth Amendment’s ban on excessive fines does indeed apply to the states. In an opinion by Justice Ruth Bader Ginsburg, the court seemed to regard the basic question before it as an easy one. The justices explained that the “historical and logical case for concluding that” the ban on excessive fines applies to the states through the 14th Amendment – which bars states from depriving anyone “of life, liberty, or property, without due process of law” – is “overwhelming.”

As I have written before, some states and local governments and police departments have used civil asset forfeiture as a way of funding their operations and have been seizing the property of people cavalierly, knowing that few will be able to challenge it. I hope this ruling ends that practice.


  1. sonofrojblake says

    I wouldn’t my breath. Bear in mind that the criminal gang confiscating the goods are an armed criminal gang. Who’s going to stop them?

  2. says

    But… but… but this would mean that taxes *spit* would have to pay for the police state! You don’t want people to have to pay taxes *spit*, would you?

  3. says

    I think you misunderstand the nature of the ruling.

    A key part of the ruling was that the car’s value exceeded the highest fine permitted by law if the owner had been convicted of the underlying crime (as he was in this case).

    If you get convicted of a crime and get fined more than the statutory limit for fines, it is by definition and unreasonable fine and the 8th amendment can be used to reduce the fine even if an attempt on statutory grounds (bizarrely) fails.

    The court noted that if you get convicted and have a fine assessed, and THEN the state goes through civil forfeiture to get more money than would have been assessable in criminal court, the state is evading the statutory limit on fines (and thus a direct appeal to statute would not succeed). However, since the state effectively conceded that a fine over a certain dollar amount for a specific crime would be unreasonable (in this case by setting in statute a maximum lawful fine for that crime), any civil forfeiture that exceeds this amount would be presumptively unconstitutional under the 8th amendment. Even better, if the criminal court originally set a fine as well, then you could pretty easily argue that not only any part of the civil forfeiture value above the statutory limit was unconstitutional, but rather any amount above the statutory limit when considering the fine PLUS the civil forfeiture.

    So this is a good thing … but it’s a very limited good thing.

    What happens if the state does not charge the person with a crime? Then you get no defense to the crime and instead of forcing the prosecutor to offer something in plea bargaining (as happened in this case), the state can instead go straight to civil forfeiture proceedings and allege a crime greater than what they can prove.

    For instance if you find 22 grams of marijuana on someone in a state where amounts less than an ounce are still a crime but a very minor one with a maximum fine of $1000 or so, you can go to a civil forfeiture court and assert that on information and belief the owner of the car was using the vehicle to deliver marijuana to others and that the total amount of marijuana exceeded some large amount (e.g. 500 grams, maybe). Now, no prosecutor has to prove that. In a civil forfeiture proceeding the owner has to prove that the property was NOT involved in the crime alleged …and as we know it can be hard to prove a negative.

    So what happens when the prosecutor alleges you used the vehicle in an ongoing marijuana-delivery enterprise where the total amount delivered was, in the prosecutor’s opinion, more than 500 grams? Well, you can take the stand and say this isn’t true, but then the prosecutor gets to ask you if you’ve ever smoked weed in the presence of anyone else. Of course you’ll say yes. The prosecutor then asks if during the course of smoking weed with others some marijuana owned by one person was shared with any other person. Of course you’ll say yes. The prosecutor will ask if anyone ever chipped in money to the person who provided the marijuana as a thank you. Of course you’ll say yes. The prosecutor will ask if any of the marijuana thus shared ever passed through your car either by picking up the marijuana owner and bringing them to your place (or any other place) or by taking your own marijuana with you in the car. Of course you’ll say yes. They’ll also asked if you believe it’s possible that other people possessed marijuana while riding in your car whether or not you knew about it.

    And with all that established, the prosecutor will then ask a question you can’t answer: Do you know, to the nearest gram, the total amount of marijuana that has passed through your car? You’ll answer no. But even if you have reason to believe that the amount is very low, you can’t know for sure that some friend didn’t have 480 grams in their backpack one day without your knowledge. So can you **prove** that you haven’t had a total of 500 grams pass through your car over time? Nope.

    And of course the prosecutor doesn’t need to ask all the questions above about times you’ve had or some passenger has had marijuana in your car, because they don’t need to prove anything. But they do need to have some reasonable basis for their belief and what you’re inevitably going to confess to (if you don’t want to go to jail for perjury) is going to be more than enough for a reasonable basis for the belief that 500 grams of pot **might** have passed through your car.

    Now where are you? There is no crime on record to which you have pled guilty. You’d actually be in a better position if you had, because then there would be an established limit to your fine. But in this hypothetical case, the prosecutor simply alleges any crime desired so long as it seems almost reasonable. The prosecutor determines which crime to allege based on which crime will have a high enough maximum fine to allow the property to be taken in full.

    In short, this court decision protects people convicted of a specific crime, but the biggest problem with civil forfeiture is its use against people who have never been convicted of a crime. It’s used literally for highway robbery, where cops simply take cash that they “believe” might be either the proceeds of a drug sale and/or intended to buy drugs. People might carry cash for all sorts of reasons, but cops will assert that large amounts of cash are rare as most people use debit or credit cards for ordinary purchases. That most people ALSO occasionally make purchases from craigslist and through other peer-to-peer transactions that typically require cash and that mere possession of cash doesn’t even grant sufficient reasonable suspicion to form the basis for an arrest is of no matter in an action for civil forfeiture.

    So the cops pull you over, they ask you if you know how fast you were going. They ask you if you have any cash in the car. Since having cash isn’t illegal and lying to the cops can get you into trouble in any number of ways, law abiding folks will say, “Yes,” if and when they have such cash. Drug dealers will of course say, “No.” The cops then confiscate the cash and give the owner a “receipt” which can be used to verify the amount taken so that the owner can sue to try to get it back. But if the amount is a mere $1000, that can purchase an amount of illegal drugs whose sale or distribution would bring a fine far more than $1000. So the cops who simply take money without charging a crime can **always** get away with this robbery, and the decision in Tyson Timbs’ case will have no effect.

    Yes, it’s important that the 8th amendment’s clause forbidding excessive bail is applied to the states.

    No, this decision doesn’t do anything to reign in the vast majority of civil forfeiture cases. I’d be surprised if this even affected 1% of all civil forfeitures, though I’m certainly open to statistics showing otherwise.

  4. rrutis1 says

    I kind of read this ruling (IANAL!) as throwing a biscuit to us peons but really a first step for use in future cases against wealthy corporations and individuals (aka the oligarchy) who absolutely are working to make sure the pyramid scheme our economy is built on keeps the money flowing up and never down.

    There are already cases against oil companies regarding withholding information about climate change impacts and if things were to remain as they were there is a possibility of large fines or settlements…even larger than the tobacco cases from the ’90s. And the recent case involving Roundup pesticide had a huge settlement even though it was knocked down immediately. I know that these cases are fined under different laws, but like I said, a first step.

  5. ardipithecus says

    If one has not been even charged with a crime, wouldn’t any fine in excess of zero be “cruel and unusual punishment”?

  6. says


    One would think.

    I, personally, find it amazing that civil forfeiture exists at all, much less in the form it currently takes, when the combination of the 4th, 5th and 8th amendments, in turn as applied against the states (rather than only against the feds) via the 14th would seem to obviously forbid any possible form of asset forfeiture save those cases where specific compensation is bought for fair market value by the government over the objections of the original owner. We call that “eminent domain” and, because fair compensation is required, it is removed to a different category.

    I am still flabbergasted every single time I see a court responding to a civil asset forfeiture filing with anything other than WHAT THE FUCK ARE YOU DOING? even though I’m perfectly well aware that the courts of initial jurisdiction, the trial courts, have no authority to stray from the interpretation of the law spelled out by higher courts.

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