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The U.S. Supreme Court limited police seizures of property this week in a decision that could begin curbing the civil asset-forfeiture process criticized as "policing for profit."
Justice Ruth Bader Ginsburg’s decision for a unanimous court does not directly affect civil asset forfeitures in Missouri, Illinois or most states. But Missouri Rep. Shamed Dogan, R-Ballwin, was “emboldened” by the decision. He used it to orchestrate committee passage of a tough bill that would cut off the biggest source of seized money that police use for new squad cars, prisons and weapons.
Dogan won unanimous passage of HB 444 in his Special Committee on Criminal Justice. If the bill becomes law, it would bar police from spending cash seized from people never charged or convicted of a crime.
St. Louis Public Radio found in an investigation of civil asset forfeiture that police seize millions in cash and other property from people who are not carrying drugs and are never charged with a crime.
A state report released this week by State Auditor Nicole Galloway shows that pattern is continuing. Most of the $9 million in property seized by police in Missouri in 2018 came from those cases where no criminal charge was filed. The Dogan bill could cut off more than $5 million from police department funding.
Dogan tweeted about the court decision: “I was not ALMOST giddy about the SCOTUS ruling. I was the giddiest!!!”
In a telephone interview, he said Ginsburg’s opinion prompted him to toughen up his bill to stop local police from sending seized cash to the federal Equitable Sharing Program, which allows them to spend the seized money even if there is no crime charged or drugs found.
“After the Supreme Court ruling, I was emboldened and took a vote count on whether they (the committee) would be willing to go all the way to end turning over money to Equitable Sharing. The court restricted the ability to take money from someone who was convicted of a crime. I thought it won’t be long before they take on civil asset forfeiture where there is no criminal conviction, like in Missouri. We’re just reaffirming the intent of the Missouri law which says you have to have a criminal convictions and local law enforcement agencies aren’t going to profit.”
In the Supreme Court case Tyson Timbs of Marion, Indiana, had bought a $42,000 Land Rover with proceeds from his father’s life insurance policy. He sold heroin from his car. Police seized the car when they arrested him. Timbs got a year of home detention, probation and a fine on the heroin charge.
The state hired a private lawyer to go to court to keep the car, with the lawyer to collect a contingency fee. A lower court ruled that keeping a $42,000 car for a crime where the maximum fine was $10,000 was an excessive fine under the 8th Amendment. But the Indiana Supreme Court said it didn’t have to abide by the 8th Amendment.
When the Bill of Rights was added to the Constitution in 1791, it applied only to the federal government. After the Civil War and the 14th Amendment, protections of the Bill of Rights were applied to the states. But it was a piecemeal, provision-by-provision process.
Ginsburg wrote that “historical and logical case ... is overwhelming” for adding the “excessive fines” protection of the 8th Amendment to the list of protections that states have to follow. That means all states now have to comply with the excessive-fine protection.
Ginsburg noted that Anglo-American law has protected people from excessive fines since the Magna Carta in 1215. The protection was reaffirmed in the English Bill of Rights in the 17th century, and most states had excessive fines protections when the Constitution was ratified.
After the Civil War, Ginsburg noted, "black codes" in the South levied big fines for minor violations, such as vagrancy, in an effort to reimpose involuntary servitude on the recently freed slaves.
Initial press reports said the decision was a major blow to “policing for profit.” Actually, legal experts say it’s far from clear how much impact the decision will have directly.
David B. Smith, one of the nation’s legal experts on civil asset forfeiture and a critic of its abuses, wrote in an email, “State law enforcement will not find it any harder to conduct civil asset forfeiture. The Court could have used this case to warn states and municipalities engaged in ‘policing for profit’ that their practices may violate the Due Process Clause…. But it didn't.”
Smith was particularly disappointed the court didn’t criticize Indiana’s practice of farming out forfeiture cases to private lawyers. He wrote they should had used “the case to address some of the other stark problems with Indiana's corrupt forfeiture system — the worst in the country — but chose not to do so. RBG mentions the fact that the prosecution was farmed out to a private lawyer who worked on a contingent fee contract for the state. This is shocking and unique to Indiana. How can it be tolerated by Indiana's courts? It's obviously a blatant due-process violation, but the Court says nothing about it. RBG mentions it, but leaves it at that.”
Smith and other experts also noted that the decision had no bearing on the major abuse of the system where local law enforcement can use the federal Equitable Sharing Program to avoid tough state reform laws such as Missouri’s. In Missouri, this means that police could continue to avoid funneling the money to schools, as the state law requires, because police will claim the Equitable Sharing Program allows them to keep the money for themselves.
But, if the decision gives Dogan’s bill enough momentum to pass, it would close off the federal workaround. That would be the most significant reform in forfeiture practice in Missouri in decades.
A 1993 Missouri law, passed after an earlier asset-forfeiture scandal, required that state forfeitures occur only when there was a state criminal conviction, and that the money go to schools, not police.
Many departments used the federal Equitable Sharing Program to circumvent the law. St. Louis Public Radio reported earlier this week that St. Charles County and Phelps County led the way in collecting money for themselves rather than funnel it to schools. They collected millions in highway interdictions where no criminal charges were filed.
That practice continued last year, according to 2018 figures just released by the Missouri Auditor’s office. In fact, collections have increased.
In 2018, Missouri police seized $9 million, as compared with $7 million the previous year. Of the $9 million, $5.7 million was transferred to the federal workaround that circumvents state law.
St. Charles County and Phelps County continued to dominate the cash seizures going the federal route. St. Charles County sent $2.9 million through the federal program and Phelps $1.9 million.
Of the 63 seizures in those two counties combined, only six involved criminal charges.
If Dogan’s reform bill passes, the federal detour around state limits on forfeitures will shut down.
William Freivogel is a journalism professor at the University of Illinois Carbondale.
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