The End of Civil Asset Forfeiture – NOT!
The End of Civil Asset Forfeiture – NOT! by Mark Nestmann for International Man
On February 20, the Supreme Court unanimously ruled that the Eighth Amendment prohibition against “excessive fines and fees” applies to the states in civil forfeiture cases and other civil, non-criminal proceedings.
The case involved a man named Tyson Timbs, who was arrested in Indiana in 2015 for selling narcotics to undercover police officers. He pleaded guilty and was sentenced to house arrest and probation. Then the state seized the Timbs’ $42,000 vehicle which he had purchased with the proceeds of his father’s life insurance policy. The only connection between the criminal offense and the vehicle was the fact Timbs had used the vehicle to transport the narcotics to the location of the undercover buy.
Timbs sued to get back his SUV, claiming that the seizure was an “excessive fine” under the Eighth Amendment. After the Indiana Supreme Court rejected that argument, Timbs appealed to the US Supreme Court – and won.
In a civil forfeiture, the legal theory is that your property – not you – is somehow guilty of a crime. Hence the strange names of civil forfeiture cases such as US v. Approximately 64,695 Pounds of Shark Fins or State of Texas v. One Gold Crucifix. Thus, if your property is found to have been somehow involved in or facilitated a crime, you can lose it.
Because civil forfeiture is a civil and not a criminal procedure, none of the protections that a criminal defendant enjoys apply. Your property is presumed guilty. If you can’t prove it’s innocent, you can lose it.
As a result of these procedural oddities, “policing for profit” has increasingly become the norm in many states – and in many cities as well. In one case I wrote about, the city of Philadelphia tried to confiscate a man’s home after his son was arrested for selling $40 worth of illicit drugs in front of it.
But what cops REALLY love seizing is your cash. Often, they use a dog to sniff the cash to establish probable cause and justify the forfeiture. Supposedly, the dog smells drug residues. The problem is, at least 95% of cash is contaminated with drug residues. That means dog sniffs are a bogus way to demonstrate probable cause. Still, they persist, and the courts continue to uphold them.
Consider the case of Emiliano Gomez Gonzolez. During a traffic stop, Nebraska state troopers asked Gonzolez for permission to search his vehicle. During the search, the troopers found bundles of currency totaling $124,700. Based on a dog sniff, police seized all the money. When Gonzolez sued to get it back, the courts rebuffed him, despite testimony from business associates that the cash had been intended to be used to buy a refrigerated truck for a produce business.