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Isiah Kinloch is a hero. He’s also a robbery victim, but not by whom you might think. Kinloch, a Charleston, South Carolina resident, was hospitalized for injuries he received after fighting off a home invader. While in the hospital, local police took the opportunity to search his apartment where they found one ounce of marijuana and $1,800 in cash. The marijuana was used by him for pain management after a major car accident and the cash lawfully earned as a tattoo artist and cobbler. Still, Kinloch was charged with “possession with intent to distribute” and all of his cash seized. Although the police dropped the charges against him, Kinloch’s cash was gone. As Kinloch told The Greenville News, “The robber didn’t get anything, but the police got everything” (1).
A Common Story Kinloch isn’t alone in his loss through theft. In the small State of South Carolina alone, the police raked in $17 million during the last three years by seizing cash and other property of both guilty and innocent alike. Even worse, the poor and ethnic communities are disproportionately targeted, with some 65 percent of the South Carolinians on the receiving end of civil-asset forfeiture during 2014 to 2016 being black males in a State where they only comprise 13 percent of the population (2).
Nationwide, the financial numbers are even worse. In 2014, for example, police departments took in $4.3 billion in civil forfeiture (3). Compare that to the estimated $3.9 billion lost to burglary and it sounds to me as if the burglars are in the wrong line of work. They need to join the police forces.
Legalized Plunder Keep in mind that almost all police departments get to keep all or a large part of the seized funds and property. Not only does this create a tremendous conflict of interest but it encourages very dubious seizures. The New Mexican state legislature recognized the problem and outlawed civil-asset forfeiture, as did those legislatures of North Carolina and Nebraska. States such as South Carolina, on the other hand, promote this corruption. As The Greenville News further reported, “Officers gather in places like Spartanburg County for contests with trophies to see who can make the largest or most seizures during highway blitzes. They earn hats, mementos and free dinners, and agencies that participate take home a cut of the forfeiture proceeds.” How wonderfully medieval.
Economist Walter E. Williams said it best when he wrote, “Frederic Bastiat, a French economist and member of the French National Assembly, lived from 1801 to 1850. He had great admiration for our country, except for our two faults: slavery and tariffs. He said: ‘Look at the United States. There is no country in the world where the law is kept more within its proper domain: the protection of every person’s liberty and property.’ If Bastiat were alive today, he would not have that same level of admiration. The U.S. has become what he fought against for most of his short life. Bastiat observed that ‘when plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.’ You might ask, ‘What did Bastiat mean by ‘plunder’?’ Plunder is when someone forcibly takes the property of another. That’s private plunder. What he truly railed against was legalized plunder” (4).
One Seizure Too Many To all appearances, Indiana resident Tyson Timbs was at first just another victim of legalized plunder. Arrested by undercover police for selling them $400 worth of heroin, they also seized his $40,000 Land Rover, which he had demonstrably bought with the proceeds he had collected from his deceased father’s life-insurance policy. In court, Timbs pleaded guilty to one count of drug dealing, which led to house arrest and later probation. He was also fined $1,200.
But Timbs’ troubles had only begun because soon after his guilty plea and sentencing, the State filed a civil-forfeiture lawsuit to take title to his Land Rover. Assisted by the very capable, non-profit advocacy organization, the Institute for Justice, Timbs prevailed upon the trial court to rule against Indiana. Importantly, the trial court ruled that taking Timbs’ car would be “grossly disproportional” to his offense, an offense for which he had already been punished and that would amount to a penalty far in excess of that prescribed by statute. So, the trial court held that the forfeiture violated the Excessive Fines Clause of the Eighth Amendment. On appeal, the Indiana Court of Appeals agreed.
The Indiana Supreme Court disagreed. Ruling that the Eighth Amendment provides no protection against fines and forfeitures imposed by the States, the State Supreme Court overruled the lower courts. Assisted once again by the determined Institute of Justice, Timbs appealed to the U.S. Supreme Court.
The Supremes Lay Down the Law On February 20, 2019—after the case had been argued last November before the U.S. Supreme Court—the Supreme Court ruled unanimously that the U.S. Constitution’s ban on excessive fines applies not only to the Federal government but also to the individual States and their municipalities (5). This decision was an important expansion of earlier Court decisions that had held that the Fourteenth Amendment was the vehicle for the application of basic individual rights and protections to States and local governments as well as to the U.S. government.
Wesley Hottot, a senior attorney with the Institute for Justice who argued the case for Timbs, explained, “Over the years, the U.S. Supreme Court has explicitly ruled that almost all of the Bill of Rights applies not just to the federal government, but also to state and local authorities,” said Hottot. One of the few outlier provisions, however, was the Excessive Fines Clause, which was at issue in this case. Before now, the U.S. Supreme Court had held that two of the three clauses of the Eighth Amendment apply to the States. The Cruel and Unusual Punishment Clause protects your body, the Excessive Bail Clause protects your freedom, and the Excessive Fines Clause protects your property from unreasonable fines and forfeitures. The Supreme Court has now made it clear that the entire Eighth Amendment applies to governments at every level, so every American’s rights are protected.”
This is an outcome that could help to rein in these rogue police seizures of property from criminal and non-criminal suspects that have become a real cash-cow for “law-enforcement” agencies. Justice Ruth Bader Ginsburg wrote the Court’s majority opinion in favor of Timbs and reading a summary of her opinion in the courtroom, she very correctly observed that governments employ fines all “out of accord with the penal goals of retribution and deterrence” because those fines are a source of revenue.
All of the Justices arrived at the same result, but there was a technical diversion by two of them as to the precise vehicle within the Eighth Amendment that would allow its rights to apply to States and other non-Federal government agencies. Justice Clarence Thomas wrote separately to explain his view (which I agree with, by the way) that the right to be free from excessive fines applies to the States by way of the Fourteenth Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. Justice Gorsuch agreed with Justice Thomas but was more reluctant to distance himself from the majority opinion, stating that “regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.”
“Policing for Profit” Hits a Wall This Court’s decision applies to every one of us. Some of us may never encounter the situation where the police seize our assets or where we face an outrageous fine all out of proportion to the alleged misdeed committed. We may never face the punitive measures that Tyson Timbs has faced, or maybe someday we will. Regardless, we all benefit from a society that is fairer and more just.
In 2016, both the Republican and Democratic parties’ national platforms called for forfeiture reform (6). And an overwhelming majority of Americans oppose civil forfeiture, as shown by polls (7). To that end, in the last several years we have seen 29 states and the District of Columbia reform their civil-forfeiture laws, which is a step in the right direction.
Anyone who values property rights and limits on the power of government should welcome this court decision. Whenever police and prosecutors use civil forfeiture to take someone’s property and then sell that property simply to fund their police departments, a potential for abuse is created that all too often, as we have seen, ripens into actual abuse. This kind of direct financial incentive to abuse this power and impose excessive fines has been dealt a huge blow by the U.S. Supreme Court.
Perhaps Scott Bullock, the President and General Counsel for the Institute for Justice, says it most insightfully: “Increasingly, our justice system has come to rely on fines, fees and forfeitures to fund law enforcement agencies rather than having to answer to elected officials for their budgets. This is not just an ominous trend; it is a dangerous one. We are grateful that the U.S. Supreme Court established that the U.S. Constitution secures meaningful protections for private property and limits the government’s ability to turn law enforcement into revenue generators.” Indeed. WFEndnotes
- Mike Ellis, “He Fought Off a Robber, But Police Seized His $1,800,” The Greenville News, Jan. 28, 2019, at https://www.greenvilleonline.com/in-depth/news/taken/2019/01/27/taken-isiah-kinloch-north-charleston-sc-police-civil-forfeiture-investigation/2460456002/.
- AP staff writer, “Papers: Police seize $17M in 3 years; blacks targeted most,” San Francisco Chronicle, Feb. 2, 2019, at https://www.sfchronicle.com/news/crime/article/Papers-Police-seize-17M-in-3-years-blacks-13583708.php.
- U.S. Department of Justice, “FY 2014 Assets Forfeiture Fund and Seized Asset Deposit Fund – Method of Disposition of Forfeited Property,” accessed March 1, 2019, at https://www.justice.gov/afp/reports-congress/2014-assets-forfeiture-fund-and-seized-asset-deposit-fund-method-disposition-forfeited-property.
- Walter E. Williams, “Plunder: An American Way of Life,” Townhall, Feb. 20, 2019, at https://townhall.com/columnists/walterewilliams/2019/02/ 20/plunder-an-american-way-of-life-n2541635.
- Timbs v. Indiana, Slip Opinion No. 17-1091, Feb. 20, 2019, at https://ij.org/wp-content/uploads/2018/01/Timbs-v.-Indiana-17-1091_5536.pdf.
- Republican Platform 2016, page 15, at https://prod-static-ngop-pbl.s3.amazonaws.com/media/documents/DRAFT_12_FINAL%5b1%5d-ben_1468872234.pdf; Democratic Party Platform, July 21, 2016, pages 15-16, at https://www.presidency.ucsb.edu/sites/default/files/books/presidential-documents-archive-guidebook/national-political-party-platforms-of-parties-receiving-electoral-votes-1840-2016/117717.pdf.
- “Civil Asset Forfeiture,” Cato Institute, accessed March 2, 2019, at https://today.yougov.com/topics/politics/articles-reports/2015/08/28/poll-results-civil-asset-forfeiture; see also “Poll Results: Civil Asset Forfeiture,” YouGov, August 28, 2015, at https://today.yougov.com/topics/politics/articles-reports/2015/08/28/poll-results-civil-asset-forfeiture.