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U.S. Supreme Court to hear civil forfeiture case (nytimes.com)
575 points by wcbeard10 on June 25, 2018 | hide | past | web | favorite | 235 comments

Civil Forfeiture is essentially "guilty until proven innocent." And I don't mean that hyperbolically, I mean literally if the state takes property or cash under Civil Forfeiture you have to prove your property innocent to get it returned (via expensive civil litigation).

That means that they can seize property or cash under a certain value with near impunity because the cost of recovering it is greater than the cost of the goods themselves. This makes it a fantastic tool against the poor, since they'll have no real remedies.

You only really started to hear about Civil Forfeiture once the police started going too far and taking things from the wealthy or powerful, but they've been at this for years, take vehicles from accused but un-prosecuted "drug dealers."

What's worse is they don't even need a shred of evidence to take your stuff.

In some states, having more than $10,000 in cash on your person is automatically considered "evidence of criminal activity". That means that the police, just by seeing that you have more than $10k in cash, can simply seize it and then force you to spend your time and additional money proving that the money didn't come from crime.

And, of course, every cent of the cash they take goes to their own department, so they are incentivized to look for cash during traffic stops just so they can literally commit highway robbery...

It's also not unusual for an officer to record that they found $15k in cash, only for the person they seized it from to call foul, stating that they had more. Since there is literally nothing protecting the citizen in this situation, they are left without any legal remedy, and the cop gets to pocket your cash for his own illicit purposes.

This is a system that encourages corruption with the justification of profit.

In some states it is illegal to defend against civil forfeiture practices using hidden compartments in your vehicle to store 100% legal property (e.g. cash, jewelry, confidential information)

Interesting article about a guy who was sentenced to 24 years in federal prison for building hidden compartments for customers of his car stereo shop:


From the article:

    > "calculated ignorance of illegal
    > activity is not an acceptable excuse"
I.e. the court's argument is that he was perfectly aware that he was building these for drug cartels. If we take that judgement at face value I don't see the problem with this. You don't get to wink wink nudge nudge your way out of being a knowing accomplice to a crime.

By that logic, shouldn't gun companies be prosecuted for the crimes committed by the drug cartels who use their weapons?

Given the current state of affairs in the US and the publicly available statistics on gun crime, one could argue that continuing to manufacture guns is knowingly supplying criminals, no?

It's a slippery slope..

A better analogy is an FFL knowingly selling firearms to cartel members, which is already illegal.

No. The guy in the article wasn't prosecuted for every hidden compartment he made, just the ones he made that he was well aware were going to be used for illegal activity. Just like guns, the vast majority of them won't be used for anything illegal, even though some of them will be. But the moment you knowingly and willingly facilitate criminal activity, you become a party to the crime. That's true with guns, secret compartments, candy bars, or anything else.

That's absurd. The legal test is whether a reasonable person could have known that they were an accomplice to a crime.

The article makes it clear that this man knew he was building these for cartels, and tried to weasel his way out by claiming he'd never seen drugs with his own eyes, but had seen almost a million in cash from some very shady guys.

This would be like running a "Taxi service" that catered to Balaclava wearing gentleman exiting a bank, claiming that you had no idea you were helping with a robbery. Perhaps they're just really ugly businessmen in a hurry? Would that mean nobody could drive a Taxi anymore? Of course not.

You were downvoted but you make a good point, and I think your example is better than mine.. Point taken.

as opposed to people actually using those compartments in an illegal fashion. Out of control government...

Which states?

OH and CA both have laws on the books against creating (hidden compartment) or operating a vehicle with a hidden compartment if it's intended for something illegal. Drugs and guns is the common justification, but I wonder what would happen if you had say 15k in cash in a compartment.

Dont. Excessive free cash is very typically seized.

I don’t think we have enough data to say it’s ‘very typically seized’ - certainly it is at times, and in egregious and outrageous fashion, but I don’t think ‘very typically’ is accurate.

I personally have on many occasions had well in excess of 10,000 on my person and have never had it seized.

And you were pulled over, and it was discovered?

I mean, even if you were, that constitutes X data points, which is hardly representative.

You're asking him to prove a negative. The onus should be on you.

Not at all - one can very reasonably assume that 'very frequently' means after it has been discovered during a traffic stop, in which case it is valid to ask how often djrogers has been in that situation.

A mostly unrelated and offtopic comment: It's been a misconception that the $20 and $100 U.S. Dollar bills contain some RFID-like passive tracking capability embedded within the "ribbon" security feature. If you want to have an expensive and uneventful couple minutes, put a $20 in a microwave for a few seconds to "disable" the chip, but be sure to have a cup of water around. The foil-beanie wearing crowd claims that the result of the microwaving, which burns Jackson's face, is proof. Nevermind the actual fact that a majority of the ink on the front of the bill is on Jackson's face, and that the ink contains metal used for pigmenting and other proprietary security measures which is likely the reason it smolders or catches fire first.

Anyways, the reason I bring this up is to highlight the paranoia of some that think that long-range RFID scanners can actually locate large stacks of highly valuable "untraceable" currency, which might be used by the highway patrol to identify potential targets to pull over for civil asset forfeiture reasons.


The stacks of cash with the ribbon and magnetic ink can be scanned for. Think of those plastic and metal ribbon security stickers stores use.

His main point was we don't have enough data for the 'very typically' label. To prove this, you need some sort of data.

Instead lostcolony was asking for evidence that this is not the case, implying that we should accept 'very typically' with no evidence, and expect proof of absence to change our minds.

Actually, no, I wasn't asking for evidence that this was not the case. I was asking for why we should treat djrogers' personal experience as evidence for why it isn't 'very typical'. Does his personal experience even match the criteria smrtinsert implied? And even if it does, why should we consider it, giving how few data points it is, of such poor sampling quality (given a single subject).

I was asserting nothing about how typical seizure is or isn't, just how poor djrogers' supplied anecdotal data was.

Without a conclusive study, the only proven conclusion is that "large amounts of cash are sometimes seized, sometimes not". However, a study could reveal that this happens very typically, or not very typically (for some definition of typical). In either case, that is not proving a negative.

That's exactly my point. Stating that seizure is 'very typical' as fact, and if someone says you have no evidence, the retort shouldn't be "Prove it isn't."

No one said I had no evidence (the original statement for this subthread wasn't mine), and my retort wasn't "prove it isn't", but "your supplied anecdotal data is not actually helpful".

I totally agree the original post to this subthread supplied no data. That's obvious. But to counter it with badly qualified anecdotal evidence does nothing to actually counter it.

Did police ever search you, find that cash, and not take it? Congratulations on your privilege. Lots of other people, including those without bank accounts or other means of moving their wealth around, have lost money this way.

More than $10k in cash is considered "evidence of criminal activity" in many jurisdictions.

It's one thing to have a few bank envelopes with $10k in cash and a withdrawal receipt in a zip lock bag or something that's pretty obviously non-criminal. It's another thing to get pulled over in a $90/day rental with $15k hidden under a blanket in the trunk. The latter will almost always end up getting seized.

I hope, and if this applies to you maybe this will be a wake up call, nobody reading this walks around with lump sums of cash like this without a receipt from the ATM or bank teller. I hope not.

And how would that help? Playing policeman’s advocate, maybe you left half of what you just withdrew at home? How would you prove you were carrying the whole amount?

update, its now less than $5,000 and greater than $2,999...ever wonder why the debit/cc cards for poor can only have cash loaded on the card less than $2,999?

> You only really started to hear about Civil Forfeiture once the police started going too far and taking things from the wealthy or powerful

From my perspective it was more like police brutality: the internet and cameras were what made awareness mainstream by making it easy to spread (especially in areas where the local media has a credulous relationship with the police) and harder to dismiss.

Maybe so, but did you read the article? This is a person who the Government decided to do a forfeiture after a conviction. I'm glad the SCOTUS is looking at this because it seems to be adding additional penalties after a conviction. However, in the past additional penalties implemented after a conviction (like sex offender registries) have been upheld.

It's not a good thing SCOTUS is looking at a convicted drug dealer for a CAF case. If this gets upheld the bar to get another CAF case in front of the Court will be even higher, and police departments will continue stealing from citizens on the side of the highway with impunity.

I think this case is actually a really good one to look at, as there are clear 8th Amendment issues. He already was sentenced for the crime in question, but the asset seized has over 4x the value of the maximum fine for the crime he was guilty of.

How is that not "cruel or unusual" ? Also, it presents a hardship for his rehabilitation- he needs to have employment as terms of his release, and if he can't get to work because of the forfeiture of his means of transportation, that presents additional burden to holding up his end of the agreement.

He was handed a $40,000 penalty for a $250 crime because the law enforcement agency wanted to sell his Land Rover. How is that justice?

Incorrect application of civil forfeiture laws is one very good reason to have a digital currency. I'm not justifying its use for any illicit purposes but its pretty hard for a cryptocurrency to be seized during a traffic stop.

> its pretty hard for a cryptocurrency to be seized during a traffic stop.

If one became popular, what magic would prevent it from being added to the same software they use to extract other information from phones?

The magic of memory. They can't coerce you to divulge your password for your wallet.

The government is doing a nice business in seized bitcoin, thanks. http://bitcoinist.com/us-government-to-sell-over-2000-seized...

I didn't say the government couldn't seize bitcoin or cryptocurrencies, only that it is a lot less likely if you get pulled over for a traffic stop. If law enforcement conducts a raid or can otherwise prove someone has been using cryptocurrencies for illicit purposes they have every right to seize it.

> Incorrect application of civil forfeiture laws is one very good reason to

Those have their own drawbacks. Digital currency can often be tracked (not made to be anonymous). They might or might not have high currency fluctuations, security issues (could be even the device / site you're using), high transaction costs, etc.

If you already have cash it seems easier to just do a bank transfer (at least it is within most of Europe).

> Civil Forfeiture is essentially "guilty until proven innocent." And I don't mean that hyperbolically, I mean literally if the state takes property or cash under Civil Forfeiture you have to prove your property innocent to get it returned (via expensive civil litigation).

False generally, and specifically false for federal law forfeitures, where the burden is explicitly on the government to prove that the property is legally subject to forfeiture provided anyone with an interest in the property sized has asserted that interest.

If the property is subject to forfeiture (e.g., as an instrumentality of crime), the owner may still defeat forfeiture by establishing their own personal innocence, under the innocent owner rule: in this case the burden is on the owner, but this only comes into play when the property is proven subject to forfeiture. See, generally, 18 USC Sec. 983(c) and (d).

When the feds seize an asset they general do it via administrative forfeiture, which generally only requires probably cause. Once they seize it, the owner has 60 days to file a claim. If no claim is filed, the government keeps the asset.

If a claim is filed, the government can either pursue civil or criminal forfeiture. In the case of civil forfeiture there is a right to a trial by jury.

However, this isn't automatic. The person has to either have the legal knowledge to know how to file a claim, or they need a lawyer. In many cases no claim is filed because the legal fees necessary to recover the asset will be greater than the value of the asset.

Basically if the government sizes a few grand in cash, it will cost you too much to recover it to make it worth it. Also if you're not legally sophisticated, or too poor to pay a lawyer (and can't find free legal help), you're not going to get your money back.

And? Most civil forfeiture is from small town cops, not the feds. Yea your one type of case is less problematic, but the majority of real life cases are still guilty until proven innocent

Edit: additionally, what happens when the government doesn't follow the law? You bring them to court? That's still guilty until proven innocent unless there's a strong IG which is not the case

> And? Most civil forfeiture is from small town cops, not the feds

The significant civil forfeiture crisis has been driven by federal law forfeitures (particularly related to the War on Drugs), executed by local agencies, because federal law authorizes local agencies to conduct forfeitures and allows local agencies to keep (a share of) proceeds of such forfeitures, while most state forfeiture laws dedicate the proceeds of forfeitures to state general funds. This provides a strong incentive for local agencies to use federal law forfeitures as a revenue stream for the agency, an incentive which does not exist for state law forfeitures in most states.

What bothers me about the article is that they say that the basis of the claim is the 8th Amendment ("excessive fines"). I hope that is not the only argument the lawyers made.

The problem with relying on the 8th alone is that the word "excessive" is imprecise, and there's good reason for the Supreme Court to defer to local legislatures to define what it means, except in extreme cases. Deciding criminal penalties are normally within the powers of the state.

I think the more important amendment is the 5th: ("nor shall private property be taken for public use, without just compensation."). This "takings" clause is what civil forfeiture is all about.

The 5th Amendment has been fully incorporated, and is binding on the states: https://www.law.cornell.edu/wex/incorporation_doctrine

In cases where there is no rational connection to a crime (and there are many such cases), the taking can in no way be construed as a fine.

If you look at the 5th and the 8th together to try to divine the intent of the founders, it's clear that they were trying to limit government overreach of exactly this kind. This case should be a slam dunk.

Mandatory disclaimer that I think civil forfeiture sucks.

While I agree with you personally, I think legally that would be very far from a slam dunk case.

The situation in this case seems similar to the one in Bennis v. Michigan, where SCOTUS already ruled that the civil forfeiture did not violate the takings clause of the 5th amendment. So the 5A angle seems like a risky argument.

On the other hand, the waters surrounding the 8th amendment are very murky. As recounted in the Indiana SC decision, their basis for determining that the excessive fines clause is unincorporated comes from the 2010 McDonald decision, a case that had nothing to do with the 8th amendment at all. It was only mentioned in passing, so this was not a holding but merely dictum. SCOTUS had previously said in dictum that the excessive fines clause was incorporated. So there hasn't been a full holding, plus two contradictory dictums in a relatively short period. That's fairly murky, whereas Bennis vs Michigan is basically clear with regards to the 5th amendment.

Good catch.

I just read the opinion in Bennis. The core of it is that the state may take property if the use of the property constitutes a public nuisance. If a ship is used for piracy or drug running, for example, then it can be taken.

In Bennis, there was a car jointly owned by a husband and a wife. The husband used the car with a prostitute. The wife didn't know. The question before the court was if the state's taking of the car violated the wife's 5th amendment rights, because she owned half of it and had nothing to do with the crime. Almost the entirely of the opinion concerned whether an innocent owner could have property taken if the property had been used to commit a crime by someone else. The court held that yes, it could, and that wasn't a violation of the 5th amendment.

Most of these civil forfeiture cases can be distinguished because the property taken usually wasn't used in the commission of a crime. People have had large amounts of cash taken from them even though they did nothing more than run a red light or drive too fast. In that case, the money can hardly been seen as having been an instrument of the crime.

It's unfortunate that in this particular case, the druggie did use his car to transport and to buy and sell drugs. This isn't the best case to challenge civil asset forfeiture generally. Perhaps "excessive fines" is the best they'll be able to do. Although if the court is really enlightened, they'll distinguish between an asset which is primarily used for crime (a crack house or a pirate ship) and one which is used only in passing (like this car).

Yea, I agree that in Bennis, the focus is more on the wife's innocence and how that should impact the case. Personally, I agree with Stevens in his dissent that it has a huge impact, as the majority's logic taken to its conclusion would justify all manner of absurdities. Stevens imagines the state seizing an airline's jumbo jet should a single passenger (unaffiliated with the airline) board it with drugs.

> Although if the court is really enlightened, they'll distinguish between an asset which is primarily used for crime (a crack house or a pirate ship) and one which is used only in passing (like this car).

Agreed. The connection between the cars and crimes in both of these cases in incredibly tenuous.

The Stevens dissent in Bennis really rips the majority to pieces. I'm hopeful Ginsburg and Thomas have grown more skeptical of civil forfeiture in the interim, though I do wish our state and federal legislators would be a little less useless and clean up the civil forfeiture legislation.

I'm sure that Roscoe Filburn thought his case was a slam dunk, as well. I mean, who in their sane mind, upon reading the Constitution, could conclude that what it means is what SCOTUS said it means in that case?

What I've learned recently is that most people only read headlines when it comes to Supreme Court cases, and the headlines are written to be intentionally misleading. Most Supreme Court cases have a lot of nuance to them that most people miss.

For example, in this thread, people keep saying that United States v. Ursery upheld Civil Forfeiture, but it did no such thing. The case was about whether CF is a criminal punishment for double-jeopardy, but it did not address the legality of CF itself.

In this case, they are also not directly deciding on CF. They are deciding on whether the 8th amendment applies to the States based on the 14th amendment. If they decide that it does, then the case goes back to the Indiana Supreme Court, who will have to decide if the fine is excessive, like the lower courts found.

But every other civil forfeiture case will still have to argue in a court whether the forfeiture counts as an excessive fine.

You seem to have a more accurate perspective on this case than most of the comments. Thank you for posting.

But I'm still confused on one point: It seems like the supreme court has already ruled that the 8th Amendment applies to the states in Roper v. Simmons[0], Robinson v. California [1], and others. To me this pretty directly means that a state law dictating a cruel and unusual punishment is unconstitutional.

So if supreme court isn't deciding whether cruel and unusual punishments at the state level are unconstitutional in general (a previous ruling), and it isn't deciding whether this specific civil forfeiture was cruel and unusual (a decision to be made by the state court), what exactly are they deciding? Is there some unplugged hole in the middle, like whether any CF case (regardless of details) could be cruel and unusual? Or is there some other reason that the previous rulings don't apply here?

[0] https://www.oyez.org/cases/2004/03-633

[1] https://www.oyez.org/cases/1961/554

You can track the progress of the case through SCOTUSBlog [1] with associated filings like the writ of certiorari [2]. The precise question presented in this case is:

> Whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment

[1] http://www.scotusblog.com/case-files/cases/timbs-v-indiana/

[2] http://www.supremecourt.gov/DocketPDF/17/17-1091/33939/20180...

Apparently[1] it is not about the 8th amendment as a whole, but only about the excessive-fines clause. Everyone seems to agree that the rest of the amendment has already been incorporated.

[1]: http://reason.com/volokh/2018/06/19/supreme-court-will-hear-...

It will be interesting how they determine if the fines were excessive in all the cases where there were never any charges filed and the government simply seized property under the presumption of guilt.

To my untrained eye a $27,000 fine for failing to properly signal a lane change is a little bit on the excessive side.

I'm worried that because this is a case in which the defendant actually did deal drugs, the court will rule in favor of the civil forfeiture laws and the SC case will then be used as a precedent to justify broader use of civil forfeiture. But IANAL, so maybe the danger isn't as big as I fear.

Considering the lower courts all agreed that the forfeiture was excessive, I'm not inclined to worry too much about that.

It appears to be going to the supreme court b/c the Indiana Supreme Court said that the amendment regarding excessive fines doesn't apply to the states.

So the real question being asked to the SC in this case is "Must states abide by the 8th amendment?"

Since they must 1st, 2nd, and others - I don't see why they would not be required to do so.

It's because of selective incorporation. (https://www.law.cornell.edu/wex/incorporation_doctrine). For example, the Second Amendment wasn't incorporated against the states until 2010 in McDonald v. City of Chicago.

I can't for the life of me understand why the 10th amendment does not have a more prominent place in the American political system than it does. It is because government would be hamstrung if they respected it? It would seem to the layman that is the entire reason it exists!

Technically you're right. The 10th amendment has been largely neutered by selective incorporation, a very broad reading of the commerce clause, and other decisions.

That said, the world in which the 10th amendment is very strong and the fourteenth is weak is much worse for civil rights. Suddenly the states can declare official support for Christianity, ban dissenting speech, shut down newspapers they dislike, search you or even imprison you without a warrant, or quarter troops in your house.

"Quartering Troops" sounds archaic, but every now and then lawmakers propose it, like forcing private airlines to provide discounted or free arrangements for servicemen traveling. (As opposed to negotiating rates with them, or soliciting competitive bids). These proposals usually don't get very far, but it shows you that the Government still thinks it's OK to _force_ a citizen or private business to give free services or accommodations to soldiers.

(For example, see https://www.huffingtonpost.com/2011/06/08/congressman-bruce-... and https://www.huffingtonpost.com/2011/06/08/delta-troops-afgha... The Government should reimburse him, and try to negotiate the best rates from the Airlines. I'd be all for the Airlines offering a discount, but they shouldn't be forced to.)

Disregarding what the law says, the material reality is that American society today largely respects and thinks highly of the US military, and is not as skeptical of federal government's standing armies.

This, by the way, tells you a great deal about how far away the modern American society is from its own founding principles - and especially so among the people who otherwise profess their infatuation with them (and who tend to be more pro-military and pro-police).

aren't we already quartering troops with the proportion of taxes that support the DoD?

I think the idea is that directly quartering troops is certain to be much more capricious and unequal than paying taxes. Everyone (with some narrow exceptions) is supposed to pay taxes, while only those families who have nice houses in convenient locations (and beautiful teenage daughters!) will have to quarter troops directly.

No. They aren't forcing a particular private party to provide personal accommodations to an individual soldier.

At the margin, people would begin moving to different states.

The current system has some pros (which you enumerate), but also some massive cons in the form of high exit costs, since you're exiting the entire federal apparatus rather than the government of a single state.

> At the margin, people would begin moving to different states.

"They can simply move away" is a fantasy solution. 99% people would/could not move until/unless it became a crisis situation.

Sure, you could move, but what about your infirm parents? The costs are already high for between-states moves.

Completely agreed. The argument I heard made before is "if people can just move, why do gay people live in [state with no civil protections for gay rights]?" It's an easy one to answer. Family, job, social connections, money; those are just a few. Then comes the question of how free should each state be or not be? What if you are born, for example, both gay and a native Texan[0]? Should Texas have the right to "force" you out of where you were born and bred simply because a majority of its legislature detests gay people?

0 - The choice of Texas was deliberate because I am a native Texan so I'm not "picking on" any state other than "my own."

I grew up moving as my father changed jobs, and I continued the practice on my own when I turned 18. I'm at least 1k miles from any family, and I've had to make new friends many times. It's really not that big of a deal for many people. I think most people I know in Colorado were not born here.

I don't disagree. I, also, don't live where I was born or grew up, though it took a few decades of my existing on this planet before I was ready to move more than one county away from where I was born. But, like others point out, we are decidedly in the minority.

My anecdote is to point to the rest of my parents' children along with my parents' siblings and their children. All told, you wind up with about a hundred people (big families, lots of cousins). Out of all of them, I am the only one who does not live in Texas. And, out of all of them, I am one of only five who do not live in the 30-county area known as "Northeast Texas."

It's not like my extended family members are destitute or have some external tie to where they all live (e.g. they're not all "Texas Bluebonnet Genetic Researchers" or something like that). Yet none of them could fathom living anywhere else and every year at the big family reunion, I am still (quite a few years later) peppered with earnest, wide-eyed questions about how it is to live so far from "home."

As for your experience in Colorado, my experience and that of those who I know is that it "non-natives" tend to make friends with other non-natives than with native-born people. Why? The native-born people who live where they were raised still have those social and familial connections that were made over many years. Combine that with the trend of people seeking and making fewer friend connections as they grow older and the odds grow more slim.

It's not a big deal for most affluent well educated people (I live 18,456km from my birthplace and most of my family), but according to a 2015 study only 20% of Americans live more than a few hours drive from their parents and most live within 18 miles (https://www.nytimes.com/interactive/2015/12/24/upshot/24up-f...)

Me too, but I'm pretty sure we're in the minority. Most people I've talked to my entire lives did not move nearly as much as I did (I went to a different school for each grade from 3-9).

There is a reason communist countries had to close their boarder. Because if they didn't, too many of the good people would leave andv that would hurt the country to much. If enough people could leave a communist country to cause them to worry, then surly moving from oppressive states should be common

It cuts both ways. One central government squishing civil rights or 50 states each having to squish civil rights? I do tend to agree to the supremacy of the bill of rights which is supposed to be just a restatement of natural rights and is a hands off to government in general.

Because the 10th provides little that is particularly concrete, and because the prevailing interpretation of other clauses has been fairly broad. That is to say, by and large the federal government has been acting withing the powers granted by the constitution, but at the moment those powers are held to be quite broad. Interstate commerce clause, in particular, means that the government can do quite a bit to regulate, so long as it is in some manner related to interstate trade. I don't personally agree with these interpretations, but they are the prevailing ones.

Likewise, incorporation doctrine is derived from the constitution. So anything that is considered barred by incorporation is therefore "prohibited by it[the constitution] to the States".

It has, in the past, been called "a truism" by the courts, and that's not a totally unreasonable read. Still, there issue has come up in court from time to time, and the wikipedia page ( https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... ) lists some examples.

Interstate commerce has been interpreted very broadly... So broadly that consuming things you grew yourself is under subject of interstate commerce.


Even before that, there was a case where the federal government had limited the amount of wheat a farm could grow (to control prices), and came after a farmer who exceeded those limits for the sake of feeding his own livestock. This is, to the best of my knowledge, the earliest supreme court case where purely personal use counted as "interstate commerce".


Wickard's use was not purely personal. He grew more wheat than he used, and he sold that excess on the interstate market (or, from a different viewpoint: he sold wheat up to the allowable limit and gave the rest to his livestock). This directly impacted the interstate commerce of wheat, because growing his own wheat meant there was less demand for wheat from other farmers. Scaled up to an entire nation, this would have rendered the wheat control law toothless. Generally, this law has been upheld consistently in this context, though SCOTUS has struck down cases where a good was tangentially related to Congress but the targeted act/good was not actually a commercial transaction (or the avoidance of a commercial transaction, as in Wickard).

As I recall, the argument in the decision, however, was specifically that self-production for personal consumption affects the market (because you're not buying the product that you're producing).

Following that logic, Congress can regulate breathing, so long as there's a market for air.

That would be an incorrect understanding of the ruling and a misapplication of legal logic.

Wickard is limited to cases where there is a tangible good, produced and sold as part of an interstate market. Subsequent cases have limited the scope of Wickard further than that--Lopez held that the transaction or good regulated must actually be a part of an interstate market or would have a direct and discernable impact on the interstate market for the regulated good or transaction.

In the case of air--there are already markets for air in the context of medical treatment and transportation (i.e., airplanes). But breathing is not a transaction since there is no economic exchange nor is it even a voluntary act. Even if breathing could be treated as a transaction, the breathing of uncontained air is one of the few goods that can be classified as purely local (the only other physical goods I can think of that are purely local are real estate and improvements to real estate because they are immovable). Moreover--as breathing is currently free--Congress would have to establish that a market for breathable uncontained air could exist in a meaningful sense.

However, the ICC has been used to regulate water...Theoretically it could even be extended to regulating the act of drinking water that has or would flow through multiple states, but any such attempt would likely not receive sufficient support in Congress to become law, and any court ruling on this point would likely result in a law overruling the decision.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Generally, after ratification the 10th Amendment was treated as a truism: essentially a useless amendment that simply confirmed the federal system of government. The words of the man who drafted the amendment, and who opposed it's inclusion:

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

For much of the 20th Century, the justification for most federal laws infringing on state activity has been the Commerce Clause, which was extremely broadly written.

Most recently, the 10th Amendment has been interpreted to mean the federal government cannot force the states to enforce federal laws (see, e.g., Printz and the recently decided Murphy).

>the Commerce Clause, which was extremely broadly written.

Not really, however in Wickard the Supreme Court simply ignored the entire words written, any context, and any rational thought processes around the words written to come up with a massive expansion of federal power that basic renders the enumeration clause pointless, and granting the federal government almost unlimited authority over everything

>>>>[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Seems narrow and precise to me, how 9 supposedly intelligent people came away reading in to the passage "Yes Congress can regulate how much wheat a man grows on his own farm for his own consumption" defy's all logic and reason

Because they didn't decide based on the Constitution, or on the facts of the case. They decided based on what would be convenient for the war effort in World War II.

As Francis Schaeffer said, "If there are no absolutes by which to judge society, then society is absolute." If your ultimate value is "whatever is good for society" or "the nation", there is nothing you cannot trample on in support of that value - even the Constitution.

Which highlights the problem as the Supreme Court should not factor what is "good for society" nor what is "good for the nation" neither of which has any relevance to what is constitutional or not.

Sorry, could you explain what the 10th amendment is? (The Wikipedia page has some assumed knowledge that I do not have as I'm not American.)

The basic reading would be, that unless the Constitution defines a power of the federal government, that power resides with the states and citizens. As mentioned in the Wikipedia article, its addition was basically CYA, as it was and is true regardless of its enshrining within the Constitution. As such, its existence does not really mean anything beyond what the Constitution already meant. It just provides a handy shortcut to say, "the federal government should not have had the power to enforce this on the states."

This is actually a rather important principle, and most people don't realize how many federal laws that work at the state level use funding carrots rather than criminal-punishment sticks for enforcement. For instance, the penalty for not following the unpopular and eventually dismantled "No Child Left Behind Act" was that your state would not receive federal education funding.

> The Act required states to develop assessments in basic skills. To receive federal school funding, states had to give these assessments to all students at select grade levels.


> federal laws ... use funding carrots rather than criminal-punishment sticks

There are limits to this, some of which are set out in South Dakota v. Dole, 483 U.S. 203 (1987). These limits (quoting wikipedia) are:

* The spending must promote "the general welfare."

* The condition must be unambiguous.

* The condition should relate "to the federal interest in particular national projects or programs."

* The condition imposed on the states must not, in itself, be unconstitutional.

* The condition must not be coercive.

Especially the last condition is relevant. It means the withdrawal of funding cannot be so harsh as to be clearly funding. I believe the actual wording used is that the threat of withdrawal cannot be a 'gun to the head' of the states.

Do you have a background in law?

Reading through this comment thread is very interesting, I just can't help but try to understand how so many geeks are so well versed in case law :)

Not in the slightest, I recall hearing about this on the "What can trump teach us about con-law" (constitutional law).

I don't even live in america, but the system is interesting and rather well represented in the media. Few countries are as attached to their constitution as the US.

The law is just a programming language for government, thus a lot of programmers are attracted to it.

Especially since we see the government in need of debugging, but we don't see the cause of the bugs in the source code...

It means that anything not expressly prohibited in the constitution is up to the states to decide.

What most people don't get (even in the USA) is that the constitution doesn't grant powers to people. It only restricts the government from acting on the people. People were born with the right to speak freely and defend themselves as they see fit - the government can't change that for example.

So the 10th says if it isn't mentioned it is a power that belongs to the people or the states. For example, weed isn't mentioned in the constitution so technically it's a 10th issue for states to decide - HOWEVER - this is thing called the commerce clause...

Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter. So it gets complicated. But... In the end, some states have legalized in the state in part referring to 10A, it's their right to do - but if you are in a "weed state" and light up at a DEA office - expect to be arrested and charged with a federal crime.

* The thing about commerce clause is that almost everything can move from state to state. So that's a little bit of an annoying topic depending on the issue and which side you're on. For example, I can manufacture a gun in my state that isn't legal in another state, commerce clause has been tried to limit 2A.

>Commerce clause means that if something moves from state to state, that sure does seem like a Federal matter

To clarify (as you no doubt know, but other readers might not), this has been taken by courts to mean that any type of good that is traded between states is fair game for federal involvement, even if the actual product in question never has and never will travel outside of the state, or be bought or sold whatsoever.

This isn't true...the interstate commerce clause may only regulate wholly intrastate commerce if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation. See Gonzalez v. Raich (permitting the criminalization of marijuana farming of marijuana that could only legally be sold in-state because marijuana as a good could be sold across state borders).

There aren't any cases governing wholly-intrastate physical goods no such goods exist, and generally when attempting to regulate otherwise purely local commerce (i.e., restaurants and civil rights), it is generally not a case of federal powers but rather of civil rights.

>if the law regulates interstate commerce and the targeted intrastate transactions would affect the interstate commerce subject to regulation

Right, but the issue is that's so laughably wide that it's meaningless. Esp as the internet has made things easier, you can be certain it's legally arguable to "prove" that even a small time seller of some good is measurably impacting big company X.

No, it's not so laughably wise as to be meaningless. For example, the interstate commerce clause cannot regulate service transactions (healthcare, legal, accounting, etc.).

Esp as the internet has made things easier, you can be certain it's legally arguable to "prove" that even a small time seller of some good is measurably impacting big company X.

That's not how it works at all. But what do I know? I've only successfully practiced law for a decade in state and federal courts.

Yes! Good point. It's remarkable commerce clause passed this many years of scrutiny. It's extremely difficult to think of things it doesn't apply to.

On what is this analysis based? No offense to the parent, but I've learned that analyses of law by non-attorneys, while they can be valuable in regard to principles, are about as accurate as an attorney's analysis of a software project.

Dude. I wrote an ELI5 for a non-American to get the idea of what 10A and some factors around it. Not everything needs an in depth dissertation.

Feel free to reply to him with your expert analysis that contradicts my simple overview.

The full text reads:

>The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

What, exactly, this means has been a matter of ongoing debate for much of the amendment's existence. Some of the more fervent states' rights advocates have considered it a hard check on the power of the federal government, while at other times it has been considered little more than a truism.

My own personal read on it is that it defines the nature of state and federal lawmaking power, from the perspective of the constitution. Federal law is strict. The constitution allows it certain specific powers and subjects it is allowed to govern, and it must stay within those. State laws, from a federal perspective, are permissive. The constitution bars certain powers from the states, but anything not banned they are allowed to regulate.

In practice, this means less than it might, because the constitution's powers allow the federal government a lot of room to regulate and govern. At the state level, incorporation doctrine also limits their powers a fair bit.

In terms of judicial history, the 10th is one of the less significant parts of the Bill of Rights, becoming an issue in court far less than, say, the First Amendment (freedom of speech/press/religion) or Fourth (limits to search and seizure/ warrant requirements). On the other hand, it has come up more often than the Third (forced quartering of troops during times of peace).

>On the other hand, it has come up more often than the Third (forced quartering of troops during times of peace)

I'm surprised no one has made a 3rd amendment argument against so called "wiretap rooms" in our nation's ISPs


The Supremacy clause of the constitution means that state law can’t be contrary to the constitution. So if the 8th amendment applies in this case, the state law is overruled.

The article says it's the due process clause (the 14th Amendment) which extends Constitutional law to the states.

Thanks for this link! I'm learning a lot that I never really even knew to know about.

It's a mess. It's probably the best mess they could put together - but it's still a mess.


"Your own link makes note that selective incorporation doesn't apply to the bill of rights."

No, it doesn't. In fact, it clearly states the opposite noting that the 3rd, 7th, 9th and 10th amendments in the Bill of Rights have not been incorporated.

On that page you can even find a table noting when each amendment in the Bill of Rights was incorporated. It quite clearly tells you that the 2nd amendment was incorporated in 2010 in McDonald v. City of Chicago.

Nothing you said in this comment is correct.


The table is correct. 100% correct. It's maintained by a law school, and is verified by a professor of Constitutional Law at least annually.

As a lawyer, I trust the Cornell Legal Information Institute. I have used it in my practice.


The LII is literally just an accessible form of the various federal codes, statutes, regulations, and certain administrative rulings. It can be verified against paper copies or against paid services like Westlaw and Nexis.

The LII has been around for more than a decade. The LII is used by progressives, conservatives, libertarians, socialists, the current (Trump) administration and the former (Obama) administration, all with no complaints. It has been used by lawyers and judges on every side of the aisle. If there was any bias, it would have come out by now.

What point are you trying to make? That Cornell law school is trying to be political here?

I don't have an agenda here, nor did I learn about these facts from the link above. You are simply spreading misinformation.

You are incorrect, Sir. Grandparent is correct. May I recommend that you re-read the link? It says exactly the opposite of what you claim.


Respectfully, I think you should take a breath and re-read the comments to which you’re responding. I’m as big a supporter of the RKBA as you’ll find, and I didn’t read anything “anti-gun” into them.

This discussion is around the incorporation doctrine, not the Second Amendment.

How would Heller vs. DC have incorporated anything? DC is a federal district; there were no states involved in that case.

As I recall, Heller v. DC established the precedent that the RKBA is an individual right, while McDonald v. Chicago established that the Second Amendment was incorporated through the Fourteenth Amendemnt’s “Due Process” clause.

That is correct.

>Heller v. DC established the precedent that the RKBA is an individual right

Yes. Well, it always an individual right 250 years of clear examples in texts, but a lot of people tried "the militia argument" which was funny because "a well regulated militia" was immediately followed by "the right of the people to keep and bear arms shall not be infringed". The idea was that antigun people claimed the militia was an official organization like the modern national guard and not the reality of militias which includes any able bodied person able to fight for defense of state and self. Like you and me.

Heller was "the case" the ended the "collective rights" nonsense argument. The SCOTUS case that means the federal government has no power to keep people from bearing arms. All McDonald wanted to do was keep a gun on him outside of his house and IL/Chicago refused to issue permits - the easy way to see the difference is Heller was the people's right, McDonald just clarified it means outside of your home.

That is not a correct summary of the cases. Here is the final paragraph from the majority opinion in McDonald:

"In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States.... We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. It is so ordered."

> if ANYTHING it would have been incorporated federally

> incorporated federally

From Wikipedia:

> Incorporation […] is the doctrine by which portions of the Bill of Rights have been made applicable to the states.

You seem to be operating outside of your area of expertise. There is no such thing as "federal incorporation" because the Constitution already applies to the federal government.

I recommend reading (at least the very end of) the majority opinion in McDonald before making any further arguments about which case established what.

You're correct that this isn't really the type of case that will set a precedent for the most troublesome applications of civil forfeiture. I wish cases like these [1] would reach the Supreme Court. In one of those cases, a man that had just won $50,000 in cash from a casino had it seized, even though he wasn't cited for a traffic offense or charged with any crime. It would be nice if legislators simply outlawed the practice, but the political will doesn't exist. A Supreme Court case where property was seized without any charges is likely the only way we will see any progress on civil forfeiture.

[1] https://www.forbes.com/sites/instituteforjustice/2014/03/12/...

> A Supreme Court case where property was seized without any charges is likely the only way we will see any progress on civil forfeiture.

I posit it's a better way (assuming SCOTUS makes decides an actual Constitutional question) than legislation, since it precludes legislators merely reinstating the practice later.

Political will is getting there. A couple of states have banned the practice, and more are removing the incentive that police departments have to do it(that the funds go to the police).

If they just drop the case or the person wins in the lower courts and gets their money back then it will never get to the Supreme Court, they have to fight to keep the money (which they don't if it's obvious they'll lose) in order for it to reach the higher levels.

I've heard previously that they go so far as saying the charges are against the property itself so the owner has no standing to sue the government which keeps them from ever determining the constitutionality of civil forfeiture.

I've heard previously that they go so far as saying the charges are against the property itself so the owner has no standing to sue the government which keeps them from ever determining the constitutionality of civil forfeiture.

This is generally how the cases are titled - U.S.A vs $200,000 US currency, for example. Here's a list of recent federal court cases where the defendant is "currency" [1]. You can also view publicly posted forfeiture notices, which give an indication of the magnitude of this problem, here [2]. But the owner can still attempt to get it back, it's just usually at a very high legal cost.

[1] https://prnt.sc/jzcl8c

[2] https://www.forfeiture.gov

It would be a wild dereliction of the duty of SCOTUS to let the facts of a particular case influence their judgement on a broader legal question. Many cases get sent back to lower courts without resolving a broader legal question because the facts of a particular case weren't quite perfectly aligned to make it an appropriate vehicle to resolve a broad question. The political gerrymandering cases decided thus far this term are a good example.

> The political gerrymandering cases decided thus far this term are a good example.

Masterpiece Cake Shop was as well. The court ruled in his favor, but was able to wiggle out of resolving the constitutional questions because of explicit bias on the part of the CO Civil Rights Commission.

This is getting off topic, but: I read Masterpiece as saying that, if you're going to apply the rules against a Christian baker, you have to apply the same rules against a gay baker (CO Civil Rights ignored complaints from Christians against gay bakers who wouldn't put some Christian message on their cake).

I think this is the right approach. A Christian could go to a gay baker, asking for a cake that quoted a Bible verse that said that homosexuality is a sin. A gay rights convention could ask a Christian baker for a cake that said "Christianity is bigotry". The rules for one have to be the rules for the other.

My preferred answer: Put a gay baker and a Christian baker in a room. Tell them to come up with the rules. The rules will apply to both of them. Give them two hours. You'll get a reasonable proposal. Make that the rules.

>My preferred answer: Put a gay baker and a Christian baker in a room. Tell them to come up with the rules. The rules will apply to both of them. Give them two hours. You'll get a reasonable proposal.

I disagree. A racist white shopkeeper and a black shopkeeper set to the same task in the 1960s would not come up with the Civil Rights Act; they would come up with something that segregated people further. I think the same would occur here.

Whatever its other faults, SCOTUS is usually pretty good about not letting crummy defendants blind them to setting good precedent. For example, Miranda warnings came about when they threw out the conviction of a man who had almost certainly kidnapped and raped a teenager.

This has always fascinated me. It's very strange to think about the fact that society works this way, and that it has to.

It doesn't seem strange at all. It's not the Supreme Court's fault that the defendant or plaintiff in any particular case are scummy or sympathetic, nobodies or famous, weak or powerful. They are aware that their decisions will affect many more people.

They need to create law which caters for the for the wrongly accused as much as it does the rightly accused.

Everything you said is actually pretty strange. I'm on board with it, but the default what-humans-try-on-the-first-pass approach is to consider each case on its own merits including the people involved (and runs smack-bang into the various -isms, eg, racism). The idea that a scummy and a sympathetic defendant will get the same treatment is genuinely weird and not at all an instinctive approach to justice. This system is under constant pressure to revert back to more primitive approaches, where 'good people' get good outcomes and 'bad people' get bad outcomes. It just happens that, in practice, what we have now is better than that.

> Everything you said is actually pretty strange. ... The idea that a scummy and a sympathetic defendant will get the same treatment is genuinely weird and not at all an instinctive approach to justice.

This is like a topsy-turvy world. The idea that a scummy or sympathetic defendant would not get the same treatment is genuinely weird and not at all an instinctive approach to justice.

Equal treatment under the law is justice. The only thing that should distinguish a scummy or sympathetic defendant are the __facts__ in their respective cases. Not the law.

By the time a case reaches the Supreme Court, it is never really about the defendant—the facts of a case are almost never in dispute—the question is usually a very narrow disagreement over a particular matter of law.

Charitably, this viewpoint misses a great deal of history. Less charitably, it also misses a great deal of what's actually going on right here right now. Poor defendants plea out. Rich defendants don't get charged, because prosecutors know they can afford to go to trial.

Of course I'm not saying that poor people are "scummy", whatever that means. No one in this thread has to say it, because the courts say it every day.

I’m only talking about the Supreme Court.

It's the same thing that puzzles some people about the ACLU.

Miranda v. Arizona was decided over 50 years ago. How relevant is the behavior of SCOTUS 50 years ago to predicting their present-day behavior? The membership is completely different, and there have been countless other changes in law and American society and culture over that period. (I'm not necessarily disagreeing with your point, which may well be right, but your example might not be the best example to demonstrate it.)

(And especially considering that the present-day SCOTUS has been accused of repeatedly eroding Miranda v. Arizona, see especially Berghuis v. Thompkins in 2010.)

> Miranda v. Arizona was decided over 50 years ago. How relevant is the behavior of SCOTUS 50 years ago to predicting their present-day behavior? The membership is completely different, and there have been countless other changes in law and American society and culture over that period.

Because the Supreme Court is an institution with an institutional culture. Furthermore, its members obsessively study it's past decisions and their reasoning, so I'd expect its culture to have quite a bit of inertia.

There are some disturbing indications that the more conservative current members feel less constrained by traditions and precedent. I don’t have the quotes handy but they were pretty explicit.

that inherently seems off; conservatives are defined by trying to follow traditions and precedent. Not changing is their thing

I assume it’s related to Originalism: it’s time to return to first principles.

I was thinking the same thing. There are tons of examples of forfeiture happening because of 'assumed illegality', especially when it comes to having money on you - that could have been a better way for the SC to strike it down harshly. I still don't agree with it in this case, but I don't think it helps the case that he did sell Heroin, which is a sore subject these days.

You should read a little bit more about this case. The actual question the Supreme Court is deciding here is whether the 8th amendment applies to rulings issued by state courts. Something that should be seemingly obvious but it's actually not entirely settled in existing case law.

IANAL either, but the Supreme Court generally prefers to set very narrow precedents.

It's possible they'll rule that civil forfeiture was acceptable in this one specific case, and they'll go out of their way to make it clear that their ruling only applies to this specific case.

In my mind, this is more a risk with smaller courts and SCOTUS exists on a higher plane. In my mind.

It would be great to see the Supreme Court take up one of the more egregious cases involving huge cash seizures from people with no criminal record, and where there is no evidence that a crime took place. Unfortunately, most of those are eventually settled by the government.

In this case there is little doubt that the target was dealing drugs, prompting one judge to write that "one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself." The only issue is whether the seizure was excessive, and there will always be judges who think that no punishment is too great for a proven heroin dealer.

Even if they have a criminal record, that isn’t probable cause.

The fact that this monstrosity of justice has continued, even under presidents such as Obama, make me so angry and upset. It's exactly what happens when you let the police do whatever they want, without someone to curtail their behavior. Unfettered power equals unfettered corruption, and the fact this keeps occurring in 2018 is astounding and upsetting.

Obama never showed any desire to curtail executive powers. In fact, he was championing exactly the opposite approach - that executive has the power to produce new regulatory legislation and ignore existing legislation they don't like, as soon as they perceive Congress does not do what they want it to do. No wonder Obama did nothing for civil forfeiture reform - that would be the exact opposite of his policy of infinite executive powers. His administration was not just ignoring forfeiture abuse - it was actively encouraging it, e.g. by means of infamous "equitable sharing" program, that allows the law enforcement to directly profit from seized property: https://www.usnews.com/opinion/articles/2016-04-11/obamas-do...

Saying forfeiture abuse proliferated "even under Obama" is like saying even under Rod Blagojevich corruption proliferated in Illinois. Not exactly a surprise.

You would think a professor in Constitutional Law would be eager to plug a whole that the police were taking advantage of, namely suing the money instead of suing the person. Yet all there was was deafening silence. So disappointing when people don't see things like this.

Pournelle's Iron Law of Bureaucracy [1] presents a problem for anyone seeking to rectify the problem of an organization having too much power. In order to fix the problem, you first need power, which means that you need to create the institutional structures needed to secure that power, which means you have just exacerbated the problem. If you then actually follow-through with your original goal, nobody will listen to you, because you have (by definition) removed your power. More pithily, "Organizations whose top priority is not the continued existence of the organization are replaced by organizations whose top priority is."

The only way to fix an organization that's outgrown its social purpose is for that organization to fail, outright, and then have its functions subsumed by other entities outside of the organization that can pick up the pieces. Sometimes the failure comes from internal dysfunction, sometimes it comes from external competition, but most of the time it's a mix of both, as internal dysfunction drives away competent insiders who then form the locus of external resistance.

[1] https://www.jerrypournelle.com/reports/jerryp/iron.html

Obama eventually did plug the hole...

It wasn't that big of an issue until after the recession (i.e., during his second term), so it simply wasn't on his radar while he dealt with more pressing issues.

Moreover, civil forfeiture is allowed under federal law under very broad terms. It took quite a bit of time after it became an issue to draft a policy that would allow it to continue but end the excesses. Obama couldn't simply stop enforcing the law because the GOP and various state/local law enforcement agencies were prepared to sue in court to keep the gravy train going, and such a lawsuit would have kept the practice fully legal until long after his second term ended.

Indeed, Congress could have ended civil forfeiture immediately but simply eliminating the law allowing for it. But GOP members of Congress blocked every such attempt.

I don't remember any serious effort at ending civil forfeiture while Democrats held majority in both House and Senate. Could you provide the link?

I think both parties have very little interest in ending civil forfeiture currently, and the executive has even less as it's reducing their power. Placing it on the GOP only is just wrong - they both share the blame on this.

> Obama couldn't simply stop enforcing the law because the GOP and various state/local law enforcement agencies were prepared to sue

That didn't stop him from discretionary stopping to enforce other laws he didn't like. Surely, they could sue, but he has the resources of the whole Federal Government, and as we've seen recently, single injunction from a friendly federal judge (Obama must have had at least one?) could stop any regulation nationwide. If he really wanted it, he could organize it so that the practice would be stopped at least until it propagates through the courts up to SCOTUS (probably several years) and he surely could stop any federal participation in the practice, and issue guidelines severely deprecating the practice. And of course one shouldn't underestimate the power of the President, especially one like Obama, just plain speaking on the matter publicly. Obama did so with many matters. On the matter of civil forfeiture, he did the exact opposite. I see no other explanation for this but his complete approval of the practice.

"Obama eventually did plug the hole..." citation?

This - from 2015 - seems to pre-date my link from 2016 that says equitable sharing was reinstated. So he maybe temporarily plugged the hole but then took the plug out. Well, technically Lynch did, but we don't assume she'd do it over Obama's disagreement.

That seems like a portion of the hole, but probably not the whole hole?

He did what he had the power to do. Getting rid of the whole hole would have required Congress to cooperate, which was a tall order when one party vowed that it was its mission to guarantee his failure.

States rights...

Only so much the Feds can do in matters of local and state level policing.

That’s why you need the SC to rule on stuff.

Civil forfeiture cases are argued before the judiciary branch. The power is not unfettered.

They're usually argued against the actual item being seized, not the owner of the item. Since a pile of money can't really hire an attorney, there's no argument to the contrary, and the state wins.

That's not how it works.

Anyone can put in a claim on the property (most commonly the person that it was seized from) and argue in front of a court (with a lawyer) that they are the rightful owner.

That's after the seizure happens. But during the seizure, you'll have cases like State of California vs $25,000 in cash.

It doesn't really matter what sort of administrative name is put on the case. An individual who files a claim on the property still gets their day in court. That trial represents a check on the power of the police which means (as I originally stated) that this power is not unfettered.

Judges Barnes' Appeals court dissent is perplexing:

> “I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases,” Judge Barnes wrote. “Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.”


He's, of course, well aware that the Land Rover is worth far more than the maximum fine was for the crime, so that's not what he meant by "the legal consequences to which he exposes himself". The only thing I can figure that he means is basically "tough luck, forfeiture exists on the books, you've exposed yourself to it, that's your bad." But saying "the law allows it" is hardly helpful when the issue at hand is (apparently) whether or not the law is constitutional. The only thing I can think is he felt his opinion was on the narrow facts of the case and not the broader constitutionality, or that case law had already settled this.

This seems like judge-speak for "I can't relate to this guy and I don't have any sympathy for him, so screw him!"

I’m always surprised that civil forfeiture isn’t considered a violation of both the fourth and fifth amendments. The fifth amendment says “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation“, and the fourth requires probably cause to seize property. Civil forfeiture is somehow allowed without due process or probable cause. And the money kicks back to police departments, which is a clear public use, and there is definitely no just compensation.

I think I understand the logic of civil forfeiture, but what is the justification for seizing a $40,000 vehicle when the state has only proven (according to the article) that he sold about $225 worth of drugs? It says he plead guilty to one charge - was the other for a significantly larger amount, that he was perhaps convicted of? Based on the info presented in the article it would seem difficult to argue that he acquired the Land Rover with ill-gotten funds.

The justification is the police department gets to sell the vehicle and use the cash. And sometimes they can use that for parties. Providing police with more toys is the justification for the theft of property.

1. http://www.businessinsider.com/heres-what-police-bought-with...

2. https://www.forbes.com/sites/instituteforjustice/2014/06/05/...

Article states that both the Land Rover and the drugs were purchased using the payout from a life insurance policy. It is unclear whether any of the drugs were ever sold at a premium over the original purchase price.

As I recall, the whole concept of civil asset forfeiture was originally to discourage crime by removing the profit from criminal activity when the property was at hand, but the owner was outside the jurisdiction or otherwise unreachable. The long history of forfeiture is mostly seizing the property because the actual criminal was untouchable.

It has since morphed into cops acting as highwaymen to fund their activities beyond the bounds of their regular budget. In this case, the alleged criminal was actually charged, in custody, given due process criminally, and fined. The cops, not satisfied with the fines already levied, stole his car, too.

In my non-lawyerly opinion, if the Supreme Court would like for forfeiture to continue largely unchanged, they should reverse and return the guy's car, and cite so many case specifics that this would be practically useless as precedent. If they confirm, there is a chance that public backlash will eliminate forfeiture through legislatures. If they reverse on principles rather than specifics, that would set precedent easily usable by everyone better respected than a heroin dealer. I hope for the latter, but I don't think the current court has the right makeup to tear the filthy entrails out of forfeiture.

> Article states that both the Land Rover and the drugs were purchased using the payout from a life insurance policy. It is unclear whether any of the drugs were ever sold at a premium over the original purchase price.

Money is fungible, so I would be sympathetic to an argument that claimed he had made in the vicinity of $40k from selling drugs (which could not be confiscated for whatever reason, maybe he spent it all on drugs for his own use or something) and so it was justified to seize his car.

But from the way it's described, I don't see why the state doesn't think it can justify confiscating an arbitrarily large amount of property from a person who has committed an arbitrarily small drug crime. e.g. if this guy owned a $400,000 house and sold $20 worth of drugs out of it, can they take his house?

Yes, they can seize houses, even when the accused doesn't own the house but just lives there, and the owner was not aware of any crime taking place.



By my limited understanding, I believe that they could, as there is no limit akin to maximum fines with regards to civil forfeiture - as in this case, where the maximum of $10k was circumvented. Moreover, it does not require proof of guilt or a conviction, ripening its possibility for abuse.

Well, there is a constitutional limitation on excessive fines and punishments. But the statutes typically don't specify.

They would allow seizure of one's shoes for jaywalking, and not just the shoes the offender was wearing, but all those in his closet, too. The laws as written are insufficiently protective against official abuse, so now that they have become routinely abused, it would be wise to revise.

> It is unclear whether any of the drugs were ever sold at a premium over the original purchase price.

The number one reason for addicts to get into the business of selling drugs is to support their own habit - you can only do that if you turn a profit, even if you put that profit right back into buying drugs for yourself.

It’s not a given that an oddity would be capable of running a successful dealing business. After all, they’ve already broken the #1 rule of dealing - don’t get high on your own supply...

A successful business is not the goal of an addict who deals, just enough flow of cash/product to skim some (product) off the top for themselves.

Unfortunately, in the past, the SCOTUS tends to side with law enforcement on civil asset forfeiture cases. But since Justice Thomas has spoken against it, I am cautiously optimistic that this might be the time that they rule in favor of the citizen. Civil asset forfeiture has gotten way out of hand. We really need some sort of precedent to start curbing the flagrant abuse we are seeing all over the country.

My thoughts exactly. Thomas is, clearly, more on the law-and-order side of the current court, and his opinion (or the part of it quoted in this article anyway) sounded pretty negative on the practice, at least as it currently exists. It doesn't seem like he would have written in favor of taking the case if he wanted to stay with the status quo. But, I am not a lawyer.

To be fair, civil forfeiture is against the law, so being on the law-and-order side is a good thing. Law-and-order also means applying law and order to the government.

> SCOTUS tends to side with law enforcement on civil asset forfeiture cases

Has SCOTUS ruled on an asset forfeiture case before?

United States v. Ursery, No. 95-345

It boggles the mind to think that forfeiture is alive and well today, some police departments even brag about the state-sponsored hooliganism they're committing, and the practice has never been seriously challenged in the Supreme Court.

This looks to be the defense:

The Indiana Supreme Court ruled against Mr. Timbs, on interesting grounds. It said the Eighth Amendment’s prohibition of excessive fines did not apply to ones imposed by states.

From the 14th Amendment Section 1, it's disturbing that the following isn't obvious to any high school graduate:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Equally disturbing is the thought that Illinois might just win this case anyway.

It's interesting to consider what might happen if reason prevails. A lot of people have lost a lot of property over the years to to forfeiture. I can't imagine all of them will pass on the opportunity for compensation and punishment.

To start, I am totally horrified by civil forfeiture, so please no one construe this as defending it.

But our personal opinions aside, I don't think the Indiana Supreme court decision is really very surprising from a legal perspective. The eight amendment is selectively incorporated and the excessive fines clause is not incorporated. The 14th amendment gave the courts the justification they needed to incorporate parts of the bill of rights, but for better or worse, not everything in the bill of rights has been incorporated yet, and there is nothing the Indiana supreme court can do about that.

It would certainly exceed their legal jurisdiction for a state court to decide that a federal constitution amendment is incorporated.

And while I hope this case prompts SCOTUS to fully incorporate the 8th amendment, we should also be demanding more of our state governments. Federalism gives states the power. The power to do bad, but also the power to do good. Why is that we so often have to depend on federal courts to protect our rights?

Why don't the legislators of Indiana provide protections against excessive fines in their own constitution, and why do their citizens not demand it? We all want the SC to swoop in and save the day, but we should also face these questions and figure out what we need to do as a society to change this.

The eight amendment is selectively incorporated and the excessive fines clause is not incorporated.

Interesting - what does "incorporation" mean in this context?

> The incorporation doctrine is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment.


The linked document contains a table explaining which parts of the bill of rights have been incorporated.

I can tell you from experience Fort Wayne Indiana is one of those departments that brag about it.. “LOOKS LIKE WE GETTING NEW TAZERS!!”

I've said this before in another thread and I'll reiterate it...

A lot of Second Amendment advocates say we need the right to bear arms to protect ourselves from a tyrannical government. Civil forfeiture is an excellent example of tyranny. If the Supreme Court decides it's legal, I better see an armed uprising.

Can someone please argue the position of the side in favor of civil forfeiture?

Although I don't agree with it, I am knowledgeable about the side in favor of civil forfeiture. (I grew up in Indiana, and my dad was an attorney there.)

The "other side" says: Seizing Land Rovers from drug dealers helps fund underfunded rural police departments, and keeps them from having to raise taxes on law-abiding citizens.

I have no doubt that every aspect of this viewpoint is debatable. However, that's the viewpoint, per your request.

You could also charge a fee to everyone who calls 911.

Seriously though. The police are a service provider who are employed by and act on behalf of all citizens. If we want functioning law enforcement, we should be willing to pay for it.

We might not appreciate it on a daily basis, but functioning law enforcement saves individuals a lot of money. Imagine if they didn't exist and everyone had to to organise their own security.

Imagine if they didn't exist and everyone had to to organise their own security.

In many locations this is effectively the situation. Police show up after crimes are over. Sometimes they help the victims of crime, sometimes they don't. The crimes that police interrupt are largely the victimless ones; after all there is no victim to report the crime so if they want to prosecute they had better catch the accused in the act.

Somebody will say that this only appears to be the case because police have already put lots of criminals in prison. Since there are few criminals remaining, we don't have to worry so much about crimes happening now. I can't agree, at least in USA. Our prison population is 4-5 times what it should be. If they imprison multitudes, they don't get credit for the possibility that some of the imprisoned actually should be imprisoned.

If some crack dealer buys a car or house using drug money, instead of just carrying cash, he can still have that illegally paid for goods taken away. Like if some guy buys an escalade with crack money the cops can take the escalade as it was paid with illegal gains. Or with cash if you have a ton of cash that the cash was proceeds from drug deals in the past that can't be proven but they shouldn't be able to keep the drug cash just because they couldn't prove every sale of drugs by the dealer. Like if they catch a dealer with wads of cash, obviously the cash likely was from selling more drugs.

Although obviously cops have gone way to far with seizing shit and very stupidly if the person's criminal charges are dropped (or some times not even filed) they don't automatically get their seized goods back.

I do not agree with this argument, but it goes like this:

If a wealthy drug dealer has cars, boats, houses and whatnot that are used in the course of committing crimes, the government should be able to seize them to stop them from continuing to be used for this purpose. If a drug dealer has a large amount of cash earned from the sale of drugs, he should not be able to use his ill-gotten gains to pay for lawyers or escape or anything else. Also, the seizures help local law enforcement defray the cost of catching the criminal, a cost they would not have had to incur had he not been a criminal.

Again, I think these are terrible arguments, but there you are.

Right, but that's an argument for after the crime has been proven. It's not an argument for seizing property just on the thought that one might be involved in crime.

The counter-argument here would be that the drug dealer should not be able to use the cash(and other assets) they obtained through their crimes to defend themselves. Waiting until conviction would mean that the alleged criminal could exhaust those assets as part of his defense.

I don't think that counter argument can be made. Until the crime is proven, the assumption has to be that those assets were gotten legally. Otherwise, really, what's to stop police from seizing the assets of anyone who's case might be shaky?

"the end justifies the means"

Cruel and unusual. It's not usual, because everyone has different stuff. Why should someone with a nice car be punished more than someone with no car? There is no justice there. It's cruel, because his car was for more than just the drugs. It's like chopping off someone's hand, because they stole with it- barbaric.

As a poker player who routinely travels with thousands of dollars in cash, I really hope they fix this ridiculous situation.

Feel like I should be hosting a reddit ama for this subject.

3x civil forfeiture victim chiming in.

3k 10k 48k

Never charged with a crime.

What would you like to know LOL.

Out of curiosity, why were you carrying that much cash anyway?

Lol I didn’t exactly have a legal reason. But definetly very legal in many states today. Just an entepneur a little ahead of his time I guess.


This is even more egregious. He will probably get it back eventually through much legal maneuvering but it shouldn't be this easy to screw up some poor soul's life because of a few bad apples this law was enacted for, namely hard to impossible to prosecute drug cartels. These forfeiture laws are basically hammers turning every case into a nail, regardless of merit.

>> I don’t feel like much of a man, because I don’t have a vehicle.

A bit off topic but someone should tell this guy that a LR doesn't make you more of a man, especially if you buy it using the life insurance of your father. The best for him would be to actually sell the LR(if he ever gets it back), buy car that he can afford and use the rest of the money to put his life in order.

I feel this will be an easy one for the supreme court.

The fact that Clarence Thomas, widely considered to be the most conservative justice on the court, is on the record as being against the constitutionality of Civil Forfeiture is a really good sign that this shockingly still-legal tactic's days are numbered.

Can someone make an app that handles civil forfeiture appeals automatically?

Input the location and get walked through questions and have the paperwork filed automatically.

You could charge a percentage of the total value being claimed.

Similar to the apps to fight parking tickets.

Police and criminals no different. Only that the police is the mafia running a legal protection racket. All incentives are there for civil forfeiture. what drives human actions are incentives.

Does anyone here happen to know if China has an equivalent to the practice of civil forfeiture?

Cruel but not at all unusual.

Sorry for the long post, but I have to tell this story, as I saw 'civil forfeiture' up-front-and-center 25 years ago.

My college girlfriend and her family migrated from Mexico in the early 70's, worked their asses off and all became pretty successful. They mostly owned restaurants (pizza, not tacos), but other businesses, too. One of her brothers owned a chain of used car lots in Northern California. He was a hard-working dude, with a wife and two sons.

One of her brother's auto-detailers got busted for possession of a small amount of marijuana, which back in 1992 was actually a crime. The local cops claimed that the detailer was dealing for her brother, who was using his dealerships to distribute drugs and launder the profits. They seized his car lots, all the cars, his house, and froze his bank accounts. All total, the cops seized around half-a-million of cash and assets.

The DA refused to bring a case, mainly because (1) the detailer didn't even know her brother; he only worked at the shop for less than a month, (2) the detailer was busted for possession in his own apartment, no where near work, (3) the detailer originally said he sold drugs at the shop, however, taped interviews clearly showed the cops pressuring the detailer to say that; it was like watching a POW read a pre-written statement, and (4) there was simply no other evidence, nothing. The cops found no drugs and any of his lots or his home. The DA even criticized the local cops' behavior in his statement, dropping the case.

The DA dropped the case and said the local cops screwed up, so her brother should get all his assets returned, right? Wrong. His legal issues were just getting started. Looking back, it's clear the cops never had any intention of a criminal case.

Her brother sued to get his assets returned, but the system is all-in for the cops, and they know it. And they know how to work it. The cops' attorney would file for delays, demand ridiculous documentation, and just not show up to court appointments, causing more delays. For example, the cops' attorney argued about the value of the seized vehicles, and demanded that her brother have them appraised, however, he couldn't have access to the vehicles to do the appraisals because, after months of back-and-forth, it turns out that the vehicles were already distributed (sold at auction), just days after the initial forfeiture. It was even rumored that one of the cops gave one of the seized vehicles (a Mustang) to his girlfriend, less than a week after the initial forfeiture. Her brother also was not allowed access to his home where all of his records were kept, however, police were seen coming and going for months.

Oh yeah, remember how the DA never filed the case? That was another thing the cops' attorney argued - basically, since there was never a criminal trial, her brother was never found not guilty and thus the cops didn't know if he was a drug dealer or not. They claimed their policy allowed them to return assets to those proven not guilty in court. See how that works?

This whole back-and-forth process went on for over two years. I'm skipping A LOT of details. Finally, the police department offered $50,000, take it or leave it. Her brother's attorney advised he take it, noting that the situation would only get worse, the city was prepared to drag out the case indefinitely. He didn't get his house back, any of the vehicles, or his business - nothing. He took his money and moved back to Mexico with his wife and kids. He now owns a chain of restaurants - that's right, pizza. None of them even liked pizza. I always found that strange. LOL

Anyone who supports 'civil forfeiture' has simply never seen the effects on innocent lives. The defense I hear all the time is "Who cares? They're all drug dealers.", or "I don't believe it. Why would the cops seize assets from an innocent person?", and "What's so difficult about getting your stuff back, after it was seized?" But I saw a good man's life destroyed by this horrible policy. I buried my anger/frustration about this for years, thinking this bad policy couldn't possibly last, but unfortunately I was wrong. It's only gotten worse over the last 25 years. A lot worse.

Can't wait for the 5-4 decision reaffirming civil forfeiture.

John Oliver on Civil Forfeiture:


I'm calling it now: 6-3. Thomas, Roberts, Ginsburg, Breyer, Sotomayor and Kagan in the six.

Thomas has made his position clear about this in the past, Roberts sensibilities are often libertarian, and the others are liberals.

However, liberals upheld forfeiture in United States v. Ursery, 1996. The only dissent in that case was Stevens.

I'm not familiar with Ursery and have only skimmed a few sources, but I saw nothing suggesting that the legality of civil forfeiture per se was even disputed in that case. If I read Stevens's dissent correctly, it challenges only the constitutionality of one of the involved criminal cases, arguing that because the previously seized property did not represent proceeds of a crime, the perpetrator had a legitimate property right of which the government had deprived him. Therefore, the forfeiture already served as a punishment for the crime, so double jeopardy precludes a subsequent criminal trial on the same offense.

I'd be interested in knowing if I'm missing something important here.

Wouldn't liberals be pro-forfeiture?

No? "Liberal" doesn't mean "pro-government". What definition are you using that suggests they would?

Are conservatives pro-government?

Define "pro-government".

The colloquial definition used by most of the US citizenry and on television news programs on both 24-hour cable networks and broadcast television.

That doesn't make that definition correct...

> The colloquial definition used by most of the US citizenry and on television news programs on both 24-hour cable networks and broadcast television.

Could you be more specific?

'Liberal' in the US is associated with the expansion of the welfare state, preferring having government solve all social problems, and abridging individual freedoms if the greater good is served.

And what does that have to do with forfeiture?

Fiscally liberal, socially liberal.

You may be conflating liberal (those who agree with the political ideology) with liberal (used inaccurately to describe supporters of the Democratic Party), though I doubt you would find significant support for civil forfeiture among either group.

Why do you say that?

Why would they?

No...you're thinking of conservatives which tend to lean more authoritarian than liberals.

No, because Liberals care about the entire Constitution, not just the second amendment.

All justices are constitutional, thats their job.

I am appalled at the opinion of Judge Barnes:

“I am keenly aware of the overreach some law enforcement agencies have exercised in some of these cases,” Judge Barnes wrote. “Entire family farms are sometimes forfeited based on one family member’s conduct, or exorbitant amounts of money are seized. However, it seems to me that one who deals heroin, and there is no doubt from the record we are talking about a dealer, must and should suffer the legal consequences to which he exposes himself.”

This sort of intersection between hard biological reality on the one hand (in this case, predictable consequence of highly addictive drugs), and the hard-nosed moralizing of a judge, reminds me of something Robert Sapolsky has been trying to impart about what we should give consideration to when looking for the ultimate sources of culpability when biological factors are involved, and whether or not we ought to see negative social behavior as a crime or a disease. Sapolsky has written a recent book about this topic, Behave: The Biology of Humans at Our Best and Worst.

...but he's talking about a dealer, not a user?

He was a user, though! And presumably became a dealer as a result (although this is not clear):

Mr. Timbs’s habit started with an opioid addiction and progressed to heroin. He used his Land Rover to get drugs and, on at least two occasions, to sell them. The buyers were undercover police officers.

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