Defining What's Excessive In Police Property Seizures Remains Tricky | KCUR

Defining What's Excessive In Police Property Seizures Remains Tricky

Apr 9, 2019
Originally published on April 9, 2019 7:24 am

Tyson Timbs won his Supreme Court case in February, but he still doesn't have his Land Rover.

"I want my truck back. I've always wanted it back," says Timbs, whose Land Rover was seized by police in Indiana. They took it after he was arrested for selling a small amount of heroin to undercover cops. He served a period of house arrest and probation for the drug crime — punishments he accepted.

But Timbs never accepted that police were entitled to his $42,000 vehicle, which he'd bought with proceeds from an insurance settlement.

"I thought it was kind of ridiculous that they could take my vehicle so easily," he says.

And yet this kind of confiscation is common. Called "civil asset forfeiture," it was developed as a law enforcement tactic in the drug war of the 1980s. Authorities use the lower standard of proof of civil law to take property — usually cars or cash — based on the suspicion it's associated with crime. In Timbs' case, police suspected he'd used the Land Rover to transport heroin. Since the tactic was developed, billions of dollars in assets have been seized this way.

Policing for profit

The technique attracts the ire of activists on the left and right, and occasionally it bursts into public view after especially egregious seizures.

One of the most visible opponents of civil asset forfeiture is a libertarian-leaning nonprofit called the Institute for Justice. It has argued for years that the billions of dollars in forfeited property amounts to a system of "Policing for Profit." They took on Timbs' case, arguing that the seizure of the truck constituted an "excessive fine," in violation of the Eighth Amendment of the U.S. Constitution.

If we look at these forfeitures that are occurring today, many of them seem grossly disproportionate to the crimes being charged. - Sonia Sotomayor, Supreme Court Justice

During arguments last October, the justices seemed to agree that something is out of whack with forfeitures.

"If we look at these forfeitures that are occurring today," Justice Sonia Sotomayor said, "many of them seem grossly disproportionate to the crimes being charged."

In February, the court ruled unanimously in Timbs' favor. But the victory was a narrow one.

What constitutes an "excessive fine?"

"It's a landmark ruling because it made clear that the states have to comply with the excessive fines clause" of the Bill of Rights, says Wesley Hottot, the Institute for Justice lawyer who argued the case. But what's still undetermined is what constitutes an "excessive fine."

[T]here's no meat on the bones! And the meat will be when the Supreme Court defines what 'excessive' is. We're just not there yet. - Lisa Soronen, State and Local Legal Center

"I do think it will result in a case-by-case development of where the line is," Hottot says. "How much property can the government take from a person in connection with a crime? Can they take your car? Maybe. Can they take your cash? Maybe. ... We don't know the answers to those important questions yet."

Lisa Soronen is executive director of the State and Local Legal Center, which took Indiana's side in the case. She also believes the Timbs case is just the beginning of a longer process — she says it's a legal "skeleton."

"But there's no meat on the bones! And the meat will be when the Supreme Court defines what 'excessive' is," Soronen says. "We're just not there yet."

Others think Timbs may have a quicker effect. In Georgia, a lawyer named Matt Cavedon says it strengthened his hand when he challenged the county's seizure of his client's moped. Police took it when his client was caught riding it while in possession of a couple of grams of meth.

"This was actually his main mode of transportation," Cavedon says.

Cavedon was negotiating with the prosecutor for the return of the moped around the time the Timbs case was decided. "Being able to bring in a part of the Bill of Rights, and say that prohibited this seizure — that mattered a lot," he says.

Hall County Assistant District Attorney Wanda Vance denies the Timbs case made a difference. She says she gave the moped back mostly because it simply wasn't worth her time.

"I personally had spent as a prosecutor days working on this one asset forfeiture," Vance says. "So it just got to be to where we made kind of the decision that it just wasn't in the interest of justice anymore for us to continue."

Abandoning property to the state

That's an important factor. When someone contests a civil asset forfeiture, it costs time and money, for the prosecution, but also for the property owner. Because it's a civil case, no one is entitled to free legal representation, so challenging a forfeiture can quickly cost more in lawyer fees than the property is worth. In the moped case, Cavedon took the case pro bono, because he's an alumnus of the Institute for Justice's campaign against civil asset forfeiture.

That financial barrier means people often abandon their property to the state, rather than challenge a forfeiture. And, says Seattle attorney Hottot, that slows down the process of letting the courts determine what the protection against "excessive fines" really means.

"It's hard for the law to develop in a way that favors property owners when the amount in controversy is so much less than what it costs to litigate," Hottot says. "The more societally efficient remedy here is for lawmakers to fix this."

A few legislatures have acted. New Mexico eliminated civil asset forfeiture, requiring the state to get a criminal conviction before claiming property.

In Minnesota, legislators of both parties are pushing for restrictions on what the state terms "administrative asset forfeiture," and they say their effort got "moral support" from the Supreme Court's unanimous Timbs ruling.

A needed tool in fighting crime

Law enforcement groups are worried about the shifting political climate on this issue.

"Our goal is to put a pause" on this legislation, says Dakota County Sheriff Tim Leslie. He says there's a mushrooming meth trade in his part of Minnesota, and he needs asset forfeiture to disrupt the crime networks by seizing property, even when the culprits can't be found for prosecution.

"Why are we moving toward less tools in the toolbox?" he asks. At the same time, he acknowledges the political pressure created by high-profile seizure cases such as Timbs.

"Those outrageous examples, we have to face those," he says. "But we just don't want the pendulum to swing too far. We want to still have some tools for the outrageous things that we see going on" in drug trafficking networks.

Copyright 2019 NPR. To see more, visit https://www.npr.org.

RACHEL MARTIN, HOST:

Police can seize someone's property - cash or cars - even if they just suspect it's associated with a crime. And the property owner may not even be charged with anything. The practice is allowed under a powerful tool called civil asset forfeiture. It was revived in the 1980s. Activists on both the right and the left say forfeiture is routinely abused. And in February, the Supreme Court gave them a win. So far, though, there's little sign the ruling is preventing police from taking people's stuff. Here's NPR's Martin Kaste.

MARTIN KASTE, BYLINE: When Tyson Timbs was caught selling about $200 worth of heroin, he pleaded guilty and served six months of home detention, followed by probation. He accepted that. What he didn't accept was that the police also seized his Land Rover.

TYSON TIMBS: I want my truck back. I've always wanted it back.

KASTE: He bought the $42,000 vehicle with insurance money. But the police kept it on the theory that he'd used it to transport small amounts of heroin.

TIMBS: I didn't feel like it was right. I wanted to try and do something about something because I thought it was kind of ridiculous that they could take my vehicle like that so easily.

KASTE: He fought the case for years, right up to the Supreme Court. And during oral arguments last fall, the justices seemed to agree that something is out of whack with forfeitures. Here's Justice Sonia Sotomayor.

(SOUNDBITE OF ARCHIVED RECORDING)

SONIA SOTOMAYOR: Many of them seem grossly disproportionate to the crimes being charged.

KASTE: And Timbs won the case unanimously. But the ruling itself was pretty narrow. It simply says that the Eighth Amendment's protection against excessive fines applies to the states too. And the states already had that protection in their constitutions, says Lisa Soronen.

LISA SORONEN: So presumably, the case will have no real impact at all.

KASTE: Soronen's executive director of the State and Local Legal Center, which took Indiana's side in this case. Sure, she says, the court has now made it crystal clear that excessive fines are unconstitutional. But what's still not clear is what that means.

SORONEN: Timbs v. Indiana is like the skeleton. So now we know there's bones in the closet, right? But there's no meat on the bones. And the meat will be when the Supreme Court defines what excessive is. We're just not there yet.

KASTE: She expects this process will take years, just as it took the court years to define excessive force. But others think Timbs may have a quicker effect. In Georgia, a lawyer named Matthew Cavedon says it strengthened his hand when he challenged the county's seizure of his client's moped.

MATTHEW CAVEDON: This was actually his main mode of transportation.

KASTE: He was negotiating with the prosecutor over the moped around the time that the Timbs case was decided.

CAVEDON: Being able to bring in a part of the Bill of Rights and say that that prohibited this seizure, that mattered a lot.

KASTE: But the prosecutor denies that Timbs made the difference. Hall County assistant district attorney Wanda Vance says she gave the moped back because it simply wasn't worth her time anymore.

WANDA VANCE: I personally had spent, as a prosecutor, days working on this one asset forfeiture. So it just got to be - to where we made kind of a decision that it wasn't in the interest of justice anymore for us to continue.

KASTE: And that's an important detail here. It costs money for both sides to contest a forfeiture. This is civil law, so you don't get a free lawyer. And a lot of people just end up abandoning their stuff to the state. That means fewer forfeitures get challenged and fewer cases get to the high courts that might help to define what excessive means. Wesley Hottot is the lawyer on the Timbs case. He's with the libertarian-leaning Institute for Justice. He says Timbs could take this case all the way to the Supreme Court only because the institute was willing to cover the cost - three-quarters of a million dollars is his guess.

WESLEY HOTTOT: It's hard for the law to develop in a way that favors property owners when the amount in controversy is going to be so much less than what it costs to litigate.

KASTE: Instead of waiting for the courts, he wants lawmakers to step in. And some of them are. In the Minnesota legislature this year, Representative John Lesch says the Timbs ruling has lent moral support to a bill limiting forfeiture, though he says some lawmakers in both parties are still hesitant to cross law enforcement.

JOHN LESCH: I got an email from a Democratic senator forwarded to me just the other day. And then it was copied by his local sheriff. He said, if my local sheriff is against this, there's no way this bill is getting my vote.

KASTE: Law enforcement says it needs civil asset forfeiture, especially to confiscate drug money when the traffickers can't be found and prosecuted. Dakota County Sheriff Tim Leslie says the bill in the Minnesota legislature would make it harder for him to disrupt the growing meth networks in his region. But he also acknowledges the political importance of high-profile cases such as Timbs.

TIM LESLIE: Those outrageous examples, we have to face those. But we just don't want the pendulum to swing too far. We want to still have some tools for the outrageous things that we see.

KASTE: As to Tyson Timbs, whether he ever gets his truck back is still undecided. The Supreme Court left that decision to the courts in Indiana.

Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.