Theft by a fellow citizen is a crime. After all, the Declaration of Independence did originally say that people had a right to property. But while theft by a fellow citizen is a crime, theft by the government is perfectly legal.
Civil asset forfeiture is when private property is confiscated by law enforcement under the suspicion that it has been or may be used in committing a crime. However, a person does not have to have committed a crime in order to have their property taken. In essence, it is the property that is on trial, not the person that owns it, and it is the duty of the owner to prove that the property was not going to be used with any criminal intent.
Virginia’s civil forfeiture regulations are some of the loosest in the country. The Institute for Justice gave Virginia a D-, along with 28 other states. Law enforcement is allowed to keep all of the seized property and there is little oversight to ensure that the system is not abused.
Here in Blacksburg, the practice of civil asset forfeiture is not very common. According to a Freedom of Information request, the practice was used six times in 2017 by the Blacksburg Police Department. Three of the cases are still open, but for the three that have been closed, two of the seizures were returned to their owners, while one was confiscated permanently.
It’s unclear why this is still legal. The practice of civil asset forfeiture seems to go against the Fourth and Eighth Amendments. The Fourth Amendment prohibits “unreasonable searches and seizures,” while the Eighth Amendment offers people protection from “excessive fines.”
There is now a chance to rectify this serious miscarriage of justice. The Supreme Court is set to hear the case Indiana v. Timbs, which has the potential to become the first constitutional limit placed on civil asset forfeiture. Tyson Timbs tried to sell heroin to undercover cops and was subsequently arrested. He agreed to pay $1200 in court fees and to be placed under house arrest for a year. But the state also took his Land Rover, arguing that the vehicle could be used to sell more heroin.
Now he is going before the Supreme Court, arguing that the theft of his car violated his Eighth Amendment rights. Given the various histories of the Supreme Court justices on issues of privacy, there is a good chance that the Court will rule in favor of Timbs, though nothing is certain. Justices Thomas, Ginsburg and Breyer all supported the unanimous decision in Reno v. Condon, which helped to protect the privacy of drivers in South Carolina, indicating that these justices could be swayed if they perceive civil asset forfeiture to be an invasion of a person’s privacy. In the most recent term of the Supreme Court, Chief Justice Roberts sided with his more liberal colleagues in an important privacy rights case, so he also has the potential to side with the appellee.
Adding to the strength of Timbs argument is the strong libertarian beliefs of Justice Neil Gorsuch, appointed by President Trump to replace Justice Antonin Scalia after his death a year earlier. Gorsuch was joined by Justice Sonia Sotomayor in what quickly became a roast of Indiana Solicitor General Thomas M. Fisher and his understanding of precedent, with some of the other justices jumping in to assist. Fisher seemed to argue that the Bill of Rights does not apply to the states, which — as any decent constitutional scholar should know — is not how the Supreme Court has ruled since the passage of the Fourteenth Amendment.
The case United States v. Bajakajian is the closest there is to a precedent on the constitutionality of excessive fines. Bajakajian failed to report the full extent of the cash he was carrying on a flight from the United States, and law enforcement sought to confiscate the full sum of his money. The Supreme Court held that the government’s power to fine is limited by the Excessive Fines Clause of the Eighth Amendment.
Civil asset forfeiture is not all bad. According to law enforcement, it has helped to take power from drug cartels and it can be used to hold politicians accountable to the taxpayers. But people have the right to not only life and liberty but property as well, and serious reforms are needed. Without oversight, the benefits of civil forfeiture are heavily outweighed by the costs.