AP NEWS

U.S. Supreme Court ban on excessive forfeitures likely will affect Spokane police

February 21, 2019

The U.S. Supreme Court ruled Wednesday that police agencies can only seize property during arrests that is proportional to the alleged crime. But the significance of the ruling on local law enforcement is not yet clear.

On Wednesday, the high court unanimously sided in favor of Tyson Timbs, of Marion, Indiana. Investigators seized Timbs’ $40,000 Land Rover after he was arrested in 2013 for allegedly selling about $400 worth of heroin.

Reading a summary of her opinion in the courtroom, Justice Ruth Bader Ginsburg noted that governments employ fines “out of accord with the penal goals of retribution and deterrence” because fines are a source of revenue.

Spokane City Councilman Breean Beggs said he expects the ruling to change the dynamic about what police agencies seize.

“I would say it’s a significant change,” said Beggs, who is an attorney. “The old rule was if someone was using a vehicle to sell drugs, you get the vehicle. If they were using the house, you get the house. Now, the court says civil forfeiture has to be proportional.”

Beggs said he expects that officers will continue to seize cash if they can show the money came from the sale of drugs.

But it’s less clear whether officers can seize a vehicle or a house, even if they can show that either was used by suspects as part of the criminal activity.

Beggs said the Timbs case from Indiana best exemplifies the change. Timbs lost his $40,000 vehicle, which he had purchased with money he received from the death of his father, over a drug charge that did not result in any jail time.

“Locally, our police department is going to have to advise our officers about how not to get on the wrong side of excessive,” he said.

Beggs helped pass an ordinance in 2017 that requires City Council approval before the Spokane Police Department spends proceeds from civil forfeitures, something that received blowback from the department.

The ordinance “didn’t control whether or not the police could attempt to do a civil forfeiture,” Beggs said. “But we controlled how they spend the money. The chief has to recommend and the City Council has to approve” how those proceeds are spent.

“It was intended to interrupt any perception that the police were choosing what property they were choosing to seize based on what they wanted to spend it on,” he said.

Spokane County Sheriff’s spokesman Deputy Mark Gregory said Sheriff Ozzie Knezovich had not been briefed about the ruling and would not be available for comment Wednesday.

But in 2017, Spokane police Maj. Eric Olsen, who at the time oversaw investigations and administration of the department, said civil forfeitures worked as a deterrent to crime.

“Asset forfeiture is a huge tool to fight crime, because it takes the profit incentive out of crime, and it takes their instrumentalities to commit crime,” Olsen said at the time.

According to internal police data, the department netted about $170,000 annually from local asset forfeiture between 2012 and 2015.

Under former police Chief Frank Straub, the department’s seizure practices were criticized from within by several members of the command staff who said the unit had been created to raise revenue.

The same concern has been raised nationally by the Institute for Justice, which previously published a report called “Policing for Profit.” The report, which was based in statistics from the U.S. Department of Justice and law enforcement from several states, found several troubling trends about the use of seized property.

“Every year, police and prosecutors across the United States take hundreds of millions of dollars in cash, cars, homes and other property – regardless of the owners’ guilt or innocence,” the study reads. “Under civil forfeiture laws, the government can seize this property on the mere suspicion that it is connected to criminal activity.”

Timbs, who was the subject of the Indiana case and the Wednesday ruling, was represented by an attorney from the Institute for Justice.

“The decision is an important first step for curtailing the potential for abuse that we see in civil forfeiture nationwide,” Sam Gedge, a lawyer with the organization, told Associated Press.

As it did in earlier cases applying parts of the Bill of Rights to the states, the Supreme Court based its decision on the part of the 14th Amendment that says “no state shall deprive any person of life, liberty or property without due process of law.” That same provision, the due process clause, also was used in cases that established a woman’s right to an abortion and knocked down state laws against interracial marriage and gay sex.

The 14th Amendment was passed after the Civil War to ensure the rights of newly freed slaves.

Justice Clarence Thomas supported the decision, but for different reasons. He wrote that he would have used a different part of the 14th Amendment to achieve the same result.

He wrote that cases that employ the due process clause “are some of the court’s most notoriously incorrect decisions,” including the landmark Roe v. Wade abortion case and the 1857 Dred Scott case that held that African-Americans were not citizens.

Thomas said he would have relied on the Constitution’s language forbidding states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States.”

Justice Neil Gorsuch also expressed his preference for the privileges or immunities clause.

For Timbs, he said he was curious to find out how often law enforcement agencies seize property from other people like they did to him.

“At first it was about getting my truck back because I was mad, and I wanted my stuff back. Now it’s a lot different,” Timbs told the Associated Press. “They do it a lot around here, and apparently it’s done all over the country.”

The Associated Press contributed to this story.