Comment by ccleve | Hacker News Reader

Comment by ccleve | Hacker News Reader

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?

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