SCOTUS to Decide Civil Forfeiture Under 8th Amendment; Timbs v. Indiana

[Fife]

On Monday, SCOTUS agreed to hear Timbs v. Indiana in the coming term. This will be a good one to watch. It could be a major stepping-stone to demonetizing the WOD and the Thin Blue Line Gang's racket.

There are two important questions:

1. Does the 14th Amendment incorporate the Excessive Fines Clause of the 8th against the states; and
2. If so, are civil forfeiture schemes in violation of the 8th (and how in the hell not a violation of ordinary due process as well)?

Supreme Court Will Hear Case on the Excessive Fines Clause that Could End Up Curbing Asset Forfeiture Abuse
The case will decide whether the Excessive Fines Clause of the Eighth Amendment applies to the states. If so, it will also have to address how much it restricts asset forfeiture.

The more difficult questions raised by Timbs are the extent to which the Excessive Fine Clause covers asset forfeiture as well as ordinary criminal fines, and what counts as "excessive."

Asset forfeiture abuse is a serious problem that often victimizes innocent people and particularly harms the poor. For these reasons, among others, it has attracted widespread opposition on both right and left. In many states, owners have little opportunity to contest forfeiture, thereby enabling authorities to hold on to their seized property for months or even years, without so much as a hearing. In recent years, many states have enacted laws curbing asset forfeiture and a few have even abolished civil forfeiture altogether. Unfortunately, Attorney General Jeff Sessions last year reinstituted a federal policy that helps state and local law enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves. Sessions' actions drew bipartisan opposition, but reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.

Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns). Nonetheless, the Supreme Court has already ruled that at least some asset forfeitures are covered by the Clause in the 1998 case of United States v. Bajakajian. A narrow 5-4 majority consisting of the unusual coalition of Justice Thomas and four liberals struck down a criminal asset forfeiture on the grounds that the Clause covers forfeitures that are used as "punishment" for an "offense" and apply "only upon a person who has himself been convicted" of the offense in question. This reasoning seems to exclude in rem civil forfeitures, which, technically, are proceedings against the targeted property rather than the owner, and are often applied even against the possessions of owners who have not been convicted or even tried for any offense, simply on the theory that their property was used to commit a crime by someone else. In an opinion written by Justice Anthony Kennedy, the four conservative dissenters in Bajakajian argued that the majority's seeming exclusion of civil forfeitures was a mistake, and that such forfeitures should not "be left completely unchecked by the Constitution." It is not entirely clear whether Bajakajian really does exclude all civil forfeitures, or whether Thomas' opinion for the Court is best interpreted as holding that criminal forfeiture is covered, without making a definitive ruling on the civil kind.

As to the 14th A. incorporation stuff: https://reason.com/volokh/2018/06/18/su ... -the-exces

[SuburbanFarmer]

We can only hope...

[Kath]

On Monday, SCOTUS agreed to hear Timbs v. Indiana in the coming term. This will be a good one to watch. It could be a major stepping-stone to demonetizing the WOD and the Thin Blue Line Gang's racket.

Keep us posted. What's your best guess on the ruling?

[nmoore63]

Civil Forfeiture = Tyranny

[Fife]

The decision came down today. RBG wrote the 8-0 opinion, Gorsuch wrote a concurrence, and Thomas concurred in the decision. No dissents.

I'm going to read the opinions when I get a chance, and I'm expecting wonderful treats from both Justice Repo Man and Justice Thomas regarding privileges and immunities, and the continuing evil of Slaughterhouse.


https://www.supremecourt.gov/opinions/1 ... 1_5536.pdf


Opinion analysis: Eighth Amendment’s ban on excessive fines applies to the states

The Supreme Court today ruled that the Eighth Amendment’s ban on excessive fines applies to the states. The decision is a victory for an Indiana man whose luxury SUV was seized after he pleaded guilty to selling heroin. It is also a blow to state and local governments, for whom fines and forfeitures have become an important source of funds.

. . .

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.”

Even Indiana, the court noted, did not seriously challenge whether the ban on excessive fines applies to the states. Instead, it argued that the ban applies only to payments imposed as punishment and does not apply to this case, which involves the forfeiture of property used to violate the law, a procedure that was not traditionally regarded as a fine. But because the state did not make that argument in the Indiana Supreme Court, the U.S. Supreme Court emphasized today, the court would not consider it. And it doesn’t matter whether the ban on excessive forfeitures of property was traditionally regarded as fundamental, the court explained; what matters is that the broader right to be protected from excessive fines has been regarded that way.

Justice Clarence Thomas agreed that the ban on excessive fines applies to the states, but he would have reached that result in a different way. Instead of relying on the due process clause of the 14th Amendment, Thomas would hold that the ban on excessive fines is “one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.” Justice Neil Gorsuch echoed that thought in a separate opinion, but (unlike Thomas) he joined the court’s opinion, stressing that “nothing in the case turns on that question, and, 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.”

[Fife]

Well, the opinion stops at just incorporating the 8th amendment to the states through the 14th. No huge whoop.

Because SCOTUS 14th amendment incorporation comes through "substantive due process" by practice, we find RBG (remember her?) in the opinion paying due reverence to McDonald v. Chicago (2010) (remember what that one's about?), which is extra nice.

Thomas does very well (with a h/t from Gorsuch) in his normal routine of showing that the whole "substantive due process" gag is garbage, as opposed to the actual basis for incorporation, "privileges and immunities."

In so doing, he gives props to McDonald, while taking nice pot-shots at some of the shittiest decisions we have to live with (for now) that came through the "substantive due process" twisty-tube -- Roe, Casey, Obergefell, Dred Scott, some of the real SCOTUS shit-stains.

Because this Clause speaks only to “process,” the Court has “long struggled to define” what substantive rights it protects. McDonald, supra, at 810 (opinion of THOMAS, J.). The Court ordinarily says, as it does today, that the Clause protects rights that are “fundamental.” Ante, at 2, 3, 7, 9. Sometimes that means rights that are “‘deeply rooted in this Nation’s history and tradition.’” Ante, at 3, 7 (quoting McDonald, supra, at 767 (majority opinion)). Other times, when that formulation proves too restrictive, the Court defines the universe of “fundamental” rights so broadly as to border on meaningless. See, e.g., Obergefell v. Hodges, 576 U. S. ___, ___–___ (2015) (slip op., at 1–2) (“rights that allow persons, within a lawful realm, to define and express their identity”); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”). Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” McDonald, supra, at 811 (opinion of THOMAS, J.). And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v. Wade, 410 U. S. 113 (1973); Dred Scott v. Sandford, 19 How. 393, 450 (1857).

Thomas doesn't go in to full-bore mode and give us another take-down of Slaughterhouse and the stunting and warping of the 14th amendment done by the SCOTUS; wasting so much of the sacrifice of a million plus dead and wounded Americans in the 1860s.

Maybe he's getting ready to retire soon?

[GloryofGreece]

It does violate due process and it will be a good thing if they rule again forfeiture. Police can be racket for the normie world.

[Speaker to Animals]

Not can be. Are.

[clubgop]

Because SCOTUS 14th amendment incorporation comes through "substantive due process" by practice, we find RBG (remember her?) in the opinion paying due reverence to McDonald v. Chicago (2010) (remember what that one's about?), which is extra nice.

Dirty dick devastated.

[GloryofGreece]

Not can be. Are.

Im trying to account for some of the good deputies in rural America and be optimistic when I can be.