Supreme Court Moves to Limit Civil Forfeitures, Policing for Profit Curbed

After the Civil War Congress passed the Confiscation Act. The statute codified an English common law practice that allowed the state to seize property of someone whose property was suspected of being involved in a crime even though the individual owner was not. The proceeds of forfeited property became a dependable source of revenue for local law enforcement jurisdictions. Not surprisingly, the practice became known as “policing for profit.”

In a 1921 case, the U.S. Supreme Court endorsed the legal fiction that a car used to transport liquor banned during prohibition was guilty of a crime and subject to confiscation and by the authorities. Thus civil forfeiture was enshrined in American jurisprudence.

Here’s the problem. You own a house. The police claim it’s been used in an illegal activity. A court lets the state take the house you thought was yours. To get your property back, you have to prove your innocence. If the judge isn’t persuaded, the state can sell your house at auction and keep the cash. You might never be charged but the state can still keep your property.

A real life example of civil forfeiture has included a proprietor of a small business driving home with the cash receipts of the day. The police pull him over for a traffic violation and in the process spot a bundle of cash on the car seat. The police suspect the money was made from drug sales. Even though the driver was not charged with nor found guilty of a crime, the local police kept the cash. The innocent driver-businessman had to hire an attorney to pursue return of the money, incurring significant financial expense. Many poor victims of this practice give up allowing the police department to legally keep the cash to spend on official police expenses.

Between 2000 and 2013, the states received $4.7 billion in shared seized property as administered by the U.S. Department of Justice. It is unknown how much the states seized on their own accord.

This unfair — if not un-American — practice was recently the basis of a case that made it all the way to the U.S. Supreme Court. In the case of Timbs v. Indiana, the plaintiff was arrested for selling $385 of heroin to an undercover detective. After a plea bargain, Timbs was sentenced to a year of home detention and five years probation. He was assessed a $1,200 fee. But the state also seized his $42,000 Land Rover, bought with proceeds from an inheritance. The vehicle was worth more than four times the maximum fine of $10,000 for the original offense. Timbs sued the state for return of the property or its proceeds from a sale. While the Court’s decision was unanimous in holding in favor of Timbs, the decision left many questions unanswered including how to decide when a fine becomes excessive and, therefore, a violation of the U.S. Constitution.

It’s worth noting, during oral argument, Indiana’s solicitor general said that if a driver in a Ferrari was going five miles over the speed limit, that could be grounds for police to take the car. That would seem to be clearly an “excessive” seizure. The next time a victim is trying to protect their property against unjust seizure they will have a strong case to argue the Constitution is on their side by citing Timbs v. Indiana.