Leonard v. Texas, 580 US__ (2017), Statement of J. Thomas respecting cert denial; Isn’t it Awesome when Liberals and Conservatives Can Come Together for Some Collective Outrage?

This cert denial involves civil forfeiture, the practice of law enforcement’s simply taking the property of suspected criminals and converting that property (or its proceeds) to their own personal use. In this case, it appears that the cert petition raised a due process challenge for the first time in the petition, and without giving the lower court an opportunity to pass on the claim. For that reason, the Court could not take up the case. But this statement offers, in my opinion, fairly compelling reason to believe the Court may reach out to address this issue when the claim is properly before the Court. Good. It’s about time.

Ms. Leonard’s son and a friend were stopped for a traffic infraction. Law enforcement conducted a search of the car and found a safe in the trunk. The son and his passenger gave conflicting stories about the content of the safe. Law enforcement obtained a search warrant and found the safe contained $201,100 and a bill of sale for a home in Pennsylvania. The state initiated civil forfeiture proceedings, claiming that the money was “substantially connected to criminal activity.” The Court of Appeals of Texas affirmed the trial court’s finding that the “suspicious circumstances of the stop” and the “contradictory stories” told by the occupants of the car supported, by a preponderance of the evidence, that the money was either the proceeds of a drug sale, or was intended to be used in such a sale. It does not appear that drugs were found in this car, or what the basis for this supposed drug connection was. Ms. Leonard testified at a hearing that the money was not related to drugs, but instead were proceeds from a house she sold in Pennsylvania. The court did not find her testimony sufficient to establish that she was an innocent owner.

So how did we get to a place where this kind of bullshit is even remotely legal? Justice Thomas explains. Modern forfeiture statutes are designed to punish the owner of property used for criminal purposes. See, e.g., Austin v. United States, 509 U.S. 602, 618–19 (1993). When prosecutors prosecute people, it’s called exercising jurisdiction “in personam,” and it comes with a whole host of constitutional protections. When they seek property, they proceed “in rem” which comes with a much smaller panoply of protections (like no right to a jury trial, or heightened standard of proof). So because of this “distinct legal regime” civil forfeiture has become extensively used throughout the country, and highly profitable. In many places, law enforcement is allowed to keep 100% of the proceeds from these seizures which has led to well-documented abuse. Justice Thomas notes that in Tenaha, Texas, for example, officers were regularly seizing the property of out-of-town drivers and collaborated with the district attorney to coerce them into signing waivers of their property rights. In another case, law enforcement threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend, and place their children in foster care, unless they signed over their property. And:

“In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money…He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up.”

Id. at 3.

The United States Supreme Court has justified the use of civil forfeiture by referencing the historical practice that existed at the time of the country’s founding. However, as Justice Thomas notes, the practice of forfeiture was much narrower at that time, generally only applying in cases of customs and piracy. Proceeding in rem in those cases made sense because the parties who were guilty of the crimes lived overseas and were beyond the personal jurisdiction of the United States. The forfeiture laws were also much more narrow in terms of the kinds of property that could be attached, and typically only covered instrumentalities of the crime (such as vessels), and not the proceeds of crimes (which is how these statutes are designed these days). But also, Justice Thomas notes that it’s not clear that, historically, these actions were necessarily civil actions. Some of the early US Supreme Court cases suggest they were criminal actions, which would call for additional procedural protections (again, jury trial, higher standard of proof). See, e.g. Boyd v. United States, 116 U.S. 616, 633–634 (1886) (“We are …clearly of [the] opinion that proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal”).

Given the historical precedence of these kinds of claims, but their continued expansion over the years, it seems highly likely that the Court is prepared to curtail the Government’s power in this context. For those of us who have been watching this phenomenon, it has long appeared like highway robbery. It looks like perhaps the Court agrees.