THE BILL OF RIGHTS GAINS A BIT IN ITS SCOPE

22 Feb. 2019

Dear Friends and Patriots,

          Today we have reason to cheer. Our much battered Constitution just had a small aspect of its guarantees broadened, thanks to none other than a unanimous Supreme Court decision.

          The case was TIMBS v. INDIANA, which was decided on Wednesday, 20 Feb. In that case a man named Tyson Timbs pleaded guilty in Indiana to drug dealing and conspiracy to commit theft.   The court where he pleaded ordered him to forfeit a Land Rover SUV that was worth $42,000. Timbs argued the value of the vehicle was four times the maximum fine he would otherwise receive for his conviction according to existing Indiana state law, and therefore the forfeiture violated the excessive fine clause of the Eighth Amendment. There was also the tangential truth that Mr. Timbs had purchased the vehicle with inherited monies he received from his deceased father’s estate, not with ill-gotten gains, and the state had proffered no actual proof the vehicle was material to the crimes Mr. Timbs pleaded to.  

          There are several aspects of the Bill of Rights involved in this one case. The case involved the Fifth Amendment’s due process clause, “nor shall any person … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation,” the afore-mentioned Eighth Amendment’s excessive fines clause, “Excessive bail shall not be required, nor excessive fines imposed, ….” and the Fourteenth Amendment’s state-level equal protection clauses.

          There are arcane considerations to understand when talking about our Constitution. One such consideration is its legal application. In truth, much of the Constitution originally applied to all things within federal jurisdiction, but not necessarily within any of the states. That fact is borne out by the meaning of the second part of the Fourteenth Amendment, which extended all Constitutional protections to citizens within the states, but only after provisions of that amendment have been fully incorporated. Incorporation in this case means the state has become bound by the provisions of the Constitution due to federal judicial ruling that mandates its compliance. Getting more specific, Indiana had not fully incorporated all aspects of the Eighth Amendment with respect to excessive fines. If it had, TIMBS v. INDIANA wouldn’t have been necessary. Because the Supreme Court ruled for Mr. Timbs and affirmed the application of the Fourteenth Amendment, the ruling itself causes the incorporation of the full meaning of Eighth Amendment protections. Indiana is only now completely bound to the Supreme Court’s interpretation of the meaning of “excessive fines.”

          It may seem strange that a Constitutional amendment passed in 1791 (the Eighth) and another passed in 1868 (the Fourteenth) would still be in the process of incorporation into the body of state law, but it’s absolutely true.

          All who care about the erosion of our civil liberties have reason to cheer this decision. Even more, we have reason to hope one effect of the ruling will be to curtail many of the civil asset forfeiture practices throughout the country. If you’ve been following the horror stories of abuse in the way many law enforcement agencies and courts have exercised the over 400 statutes that regard some aspect of civil asset forfeiture (aka civil confiscation) you should understand the implications.

Civil asset forfeiture has a very long legal history, but was only occasionally used in the US until the 1980s. Once Congress approved a Drug Enforcement Administration (DEA) program to share the value of seized assets with state, county and local police agencies the practice steadily gained in acceptance. The number of abuses of the policies have grown as well. Civil Asset Forfeiture is directly related to TIMBS v. INDIANA because of another Supreme Court case, the 1993 AUSTIN v. UNITED STATES, which ruled that a forfeiture could be considered an excessive fine.

          To understand how civil asset forfeiture works you need to consider two scenarios. Civil cases are actions where government authorities file a civil action en rem. En rem is a Latin term meaning “against the property.” In effect, an en rem filing is not against the owner, but against the property itself. The property becomes the defendant; the law breaker; yes, the criminal. That makes it much easier to legally seize the property and take subsequent actions, such as impound, sell, or auction it off. In a criminal case the filing is a criminal complaint against a defendant, described by the Latin term in personam.   In a criminal proceeding property can be seized or forfeited through subsequent legal action, but the police are required to offer evidence the property is material to the commission of the crime charged, and is subject to state laws relating to the dollar value of any fine. In Mr. Timbs’ case the Indiana Supreme Court held that the seizure of his Land Rover was en rem, though the seizure order was adjunct to his criminal trial.

          The questions today relate to how extensively TIMBS v INDIANA will affect the civil asset forfeiture “industry.” It obviously will, but we should expect a lot of law enforcement resistance. Because of the sharing deal all those state and local police agencies have with the federal government they presently keep as much as 85% of the value of seized assets. It’s become a significant, and sometimes primary source of funding for many police agencies across our nation.

Allow me to depart a bit and make a blatantly non-objective observation about the practice of civil asset forfeiture. In far too many cases those 400+ statutes that allow the practice are grossly abused. The lure of all that easy money has turned many police departments into little more than a pack of badge-wearing, gun-toting thieves.   This is just fact, as attested to years ago when Congress passed the Civil Asset Forfeiture Reform Act (CAFRA) of 2000. CAFRA was intended to increase the burden of proof requirement before law enforcement could proceed to seizure of assets.   Some who have examined the activity of law enforcement in years since believe the major unintended effect of CAFRA was to ensure law enforcement and the judiciary cooperated more closely in applying the statutes. The evidence of that is borne out in the numbers. In 1985 seizures of civil assets amounted to $27M nationwide. By 1993 the program had ballooned and the value of seizures was up to $556M. While $556M is a huge number and one might think CAFRA would cause it to trend down, by 2012 the value of seizures went up eight-fold from 1993, to $4.2B. The numbers themselves should speak to why we should all be concerned.   It’s obviously a growth industry, but one we should all view with extreme skepticism.

The good news of the day is our Constitution benefitted from this week’s ruling, which means we benefitted from it. The bad news is there’s such a big hill to climb on this and related subjects that we have hardly dented the armor of the police state we call America. We are still in jeopardy of having our property seized on very thin pretext. It’s still legal for them to do so. The police don’t actually need probable cause. All they need is an opportunity and the will.

On this subject the law is not on our side.

In Liberty,
Steve