Just what is ‘excessive’?

The use of civil asset forfeiture has increased exponentially without oversight, but a recent SCOTUS ruling may be the first step in tapping the brakes on the practice.

June 2019

Chuck Robinson


The Supreme Court recently took a step in the direction of reining in civil asset forfeiture, a means state officials often use to seize money and other property suspected of being involved in a crime. It requires no conviction of a crime.

The Supreme Court did not make the act of civil asset forfeiture illegal. It did, however, rule that it can’t be excessive. It also is subject to review, and it can be challenged.

The Feb. 20 ruling was unanimous. It also was just a start. More lawsuits are expected to determine what “excessive” means and other issues.

In some instances, professional truck drivers have had assets seized through this process. For instance, if a driver is found by authorities to possess a substantial amount of cash, the authorities can presume the cash was from illegal means and seize it. The trucker then must prove the cash was “innocent” of any crime through a difficult process set up by the authorities that seized the money.

Recent Supreme Court case

In the recent Supreme Court case, Timbs v. Indiana, a small-time drug dealer named Tyson Timbs had pleaded guilty to selling $225 worth of heroin to undercover police officers. He was sentenced to one year of house arrest and five years of probation. He also was ordered to pay $1,200 in fees and fines.

After the sentencing, Indiana authorities seized Timbs’ Land Rover. It had been bought with money from an insurance policy payout he received when his father died. Indiana authorities claimed it had been used in heroin delivery.

An Indiana state court denied the forfeiture request, ruling that seizing the $42,000 vehicle was grossly disproportionate for a crime for which the maximum criminal fine would be $10,000. The Indiana Supreme Court overruled the lower court. It said the U.S. Constitution’s Excessive Fines Clause of the Eighth Amendment didn’t apply to state and local authorities.

The U.S. Supreme Court said, no, it did apply. The high court did not rule that the seizure was too much. It only said that a court could rule on it. Timbs has more legal hurdles to clear before getting his property returned to him.

It may be surprising that the Bill of Rights did not automatically apply to states. Before the 14th Amendment, the Bill of Rights only applied to federal jurisdiction. Since then, the Supreme Court has previously ruled over the years that most of the provisions of the Bill of Rights apply to states. The excessive fines clause was one of the few provisions not ruled to apply to states until this case.

Case does not stop civil asset forfeitures

Timbs was represented by Wesley Hottot, an attorney for the libertarian public interest law firm Institute for Justice. The institute names its four major issues as “private property, economic liberty, free speech and school choice.”

Civil asset forfeitures will not stop because of this ruling, Hottot said.

“People are still going to lose their property without being convicted of a crime. They’re still going to have their property seized,” Hottot told The New York Times. “The new thing is that they can now say at the end of it all, whether I’m guilty or not, I can argue that it was excessive.”

Arkansas traffic stop

Arkansas law enforcement authorities are trying to keep more than half a million dollars taken from the cab of a semitrailer after a traffic stop 4½ years ago.

On Sept. 24, 2014, on Interstate 40 in Faulkner County, Ark., the semitrailer driven by Yu Lin Yuan and a co-driver for LNG Express Inc., New York, was pulled over for having swerved onto the right shoulder of the highway.

Officers found two postal boxes taped shut with packing tape containing rubber band-bound bundles of money in them totaling $579,475.

Law enforcement authorities seized the money and used civil asset forfeiture to keep it. No charges were brought. There was no conviction. There was no traffic citation.

The justification for taking the money rested on these arguments, according to court documents:

  • A drug-sniffing dog was led around the boxes and alerted officers to the presence of narcotics.
  • The drivers were headed to Stockton, Calif., a place “known to law enforcement as a source area for high-grade marijuana.”
  • Insufficient detail of the source of the money.

The drivers told the officers that the money belonged to the company owners, who explained $400,000 was from an undocumented loan made to LNG by a Chinese company owned by the general manager’s nephew and the rest was personal savings of the company president and general manager.

While a panel of judges from U.S. District Court for the Eastern District of Arkansas in Little Rock agreed to forfeiting the money to the state, the full court disagreed and cleared the way for an appeal.

Federal review of civil asset forfeiture

Before the war on drugs in the 1970s and 1980s, civil asset forfeiture was rarely used. In 1984, a law allowed federal law enforcement agencies to keep and use the proceeds from asset forfeitures instead of the funds going into the Treasury Department’s general fund.

Several problems with civil asset forfeiture were outlined in a March 2017 report from the U.S. Department of Justice Office of Inspector General.

The OIG reviewed on the federal department’s oversight of cash seizure and forfeiture activities. It focused on the Drug Enforcement Administration because it was the source of 80% of the department’s cash seizures in fiscal years 2016 and 2017.

The OIG listed these reasons for concern about the DEA’s seizure and forfeiture activities:

  • No judicial oversight.
  • Property can be seized without the owner or possessor of the property being charged with a crime.
  • The departments’ “largely proscribed” practice of adopting state seizures for federal forfeiture as a means to circumvent state laws limiting forfeitures.

The OIG assessed 100 DEA cash seizures selected because of the potential for civil liberty concerns. Most seizures took place at transportation facilities, such as airports, parcel distribution centers, train stations and bus terminals, or were a result of a highway traffic stop. LL

Chuck Robinson

Chuck Robinson formerly was senior copy editor for a weekly trade publication serving the fresh produce industry. He has served trade publications, horticultural journals and community newspapers for 25 years.