In 2017, California instituted a new lawthat prohibits law enforcement from seizing any asset valued over $40,000 in what is known as civil asset forfeiture. Civil asset forfeiture is nothing more than official theft by the state under the color of law. Basically, it allows law enforcement to seize property suspected of being used or in any way connected to suspected criminal activity. This may be a house, a car, jewelry, cash or any asset.

Civil asset forfeiture has, for example, been used to seize the home of a grandmother from which her grandson was allegedly selling drugs without her knowledge. Prior to the change in law in California (and still applicable for assets under $40,000), and in many other states, the owners of the property had to prove innocence—even when there are no charges yet filed and certainly before there is any conviction. In fact, it is estimated that in over 80 percent of all civil asset forfeiture cases in the United States the owners of the property were never even charged with the alleged crime. Yet law enforcement can and does keep the property. The hurdles owners are required to pass to challenge the forfeiture are legally complex and expensive.

As hard as it is to believe, civil asset forfeiture has been an important law enforcement “tool” – or better termed, a legal way to fund law enforcement coffers, for that is what happens to the assets seized – the “proceeds” go directly to the seizing agency. Unamerican? Perverse? Legal theft? Yes, and more. And the United States Supreme Court agrees!

On February 20, 2019 and in a unanimous decision, Timbs v. Indiana, 586 U.S. ___ (2019), the Supreme Court ruled that civil asset forfeiture is a violation of the Eighth Amendment’s prohibition against excessive fines. The ruling is applicable to all 50 states under the Fourteenth Amendment. Although it got little press, this is an important decision. Civil asset forfeiture not only has become a major source of funding for many law enforcement agencies but has been used as an intimidation tool by the police. Under this ruling, civil asset forfeiture is prohibited in all 50 states. The decision, authored by Justice Ginsberg, is short and sweet.

Justice Ginsberg observed that the Excessive Fines Clause (under the Eighth Amendment) dates back to the Magna Carta (for those who forgot their history lessons, that document was written in 1215) and has carried forward throughout English and American law to the modern era where it was enshrined in the Eighth Amendment. Justice Ginsberg noted that there is a good reason the prohibition against excessive fines have been a continuous feature of Anglo-American law: Excessive fines weaken the citizenries’ civil liberties, they can be used by the state to retaliate, and can become a source of revenue to the state. No doubt, all these hazards have become a feature of civil asset forfeiture in the United States. It is, quite frankly, surprising to me that it took this long. Law enforcement has been stealing from the public under the guise of civil asset forfeiture for over 30 years.

Orange County criminal defense attorney William Weinberg has been defending citizens suspected or accused of a crime for over 25 years. If you have been the subject of a civil asset forfeiture or any criminal accusation, Mr. Weinberg is available for a free consultation to discuss your options. He may be reached at his Irvine office at (949) 474-8008 or by emailing him at bill@willaimweinberg.com.