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Political Editors / November 30, 2018

SCOTUS, the States, Forfeiture, and the Eighth Amendment

The court will likely strike down the abusive practice by law enforcement of excessive civil asset seizures.

In hearing arguments for Timbs v. Indiana, Supreme Court justices made it clear that they weren’t buying the state’s position. The issue is one on which we’ve previously written — law enforcement’s authority to use civil asset forfeiture. Specifically, are state governments bound by the Eighth Amendment, which bans the levying of excessive fines upon individuals suspected of a crime?

Justice Neil Gorsuch expressed incredulity toward the Indiana solicitor general’s argument that the state was not beholden to the Eighth Amendment. “Here we are in 2018 still litigating incorporation of the Bill of Rights,” an exasperated Gorsuch said. “Really? Come on, general.” Gorsuch then rather bluntly told the solicitor general that he was going to lose.

The newest member of the court, Justice Brett Kavanaugh, also weighed in on the issue, asking, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

And Justice Stephen Breyer asked the hypothetical question, “What is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari, or even a jalopy?” The solicitor general answered that there would be no problem with a state authorizing such a law, an answer that the justices clearly found problematic.

The Court is expected to issue its ruling sometime before June. In all likelihood, Indiana will lose this case. The only question is how far the justices will go in demanding that states end this abusive practice.

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