Justice Thomas on Civil Forfeiture: Challenging the Government’s Overbroad Seizure of Property


At first glance, the names of asset forfeiture cases like United States v. Approximately 64,695 Pounds of Shark Fins and State of Texas vs. One Gold Crucifix may sound like satire. However, decisions resulting from cases like these are highly influential in the field of civil forfeiture law and have increased publicity on the matter, as elaborated in a 2013 New Yorker expose.[1] In much of the country today, civil forfeiture law empowers federal, state and local governments to seize property on the mere suspicion that it has been used in some illegal act, without ever charging the owners of a crime. To recover their property, the owner must demonstrate that it was not involved in any criminal activity, inverting the traditional burden of proof. As civil forfeiture has become more widely used by police departments across the country to raise revenue, it has begun to attract increased scrutiny.[2] A number of piecemeal legislative solutions have attempted to balance the government’s interests with citizen’s due process rights, often in response to particular excesses. In Kansas, New Mexico and North Carolina, state legislatures have abandoned the practice altogether. A number of others have passed laws limiting law enforcement’s ability to seize property without a conviction[3] and other states, like Alabama, are considering similar reforms.[4] At the federal level, Attorney General Jeff Sessions’s proposal to expand federal forfeiture programs led to unexpectedly strong pushback from the House of Representatives.[5] The next frontier for this reevaluation of civil forfeiture and due process is, of course, the courts. Justice Thomas’s clear distaste for civil forfeiture, in his statement respecting the denial of certiorari in Leonard v. Texas, indicates that opponents of civil forfeiture may have found a legal champion.

In some ways, Thomas is an unlikely hero for this movement. In 1996, he joined a 5-4 majority opinion in Bennis v. Michigan, a case some argue significantly contributed to the excesses of modern civil forfeiture regimes by weakening the due process protections that limited asset forfeiture.[6] (Interestingly enough, the only other justice currently on the Court who joined the Bennis majority was Ginsberg, a staunch liberal; Justices Kennedy and Breyer were in the minority). In Bennis, the police issued an abatement order to seize a car co-owned by a married couple because the husband, Mr. Bennis, had been found having sex in the car with a prostitute. Mrs. Bennis sued, arguing that the abatement order was an unconstitutional taking of her property because she neither knew about nor participated in the illegal acts that had prompted it. Chief Justice Rehnquist wrote for a 5-4 majority rejecting the argument, ruling that the Fifth and Fourteenth Amendments did not require an innocent-owner defense in seizure cases because the justification for forfeiture had always been the guilt of the property and not the owner.[7] While this broadened the scope of previous precedent, it also had some dramatic implications. Without an innocent-owner defense, it became more difficult to challenge forfeiture, creating loopholes in the law that state governments and overzealous law enforcement could potentially exploit.[8]

In his concurrence, Thomas unsurprisingly relies on an originalist argument for this conclusion. Without any of the historical context, he agrees that the forfeiture regime may seem like a violation of due process. However, given the weight of “the history of forfeiture laws and 200 years of this Court's precedent,” he concluded that the Michigan statute’s lack of an innocent-owner defense to the abatement order did not pose a constitutional problem.[9] His argument is distinguishable from Justice Ginsburg in her concurrence, in which she construes the ruling narrowly and highlights the facts that make it reasonable within the totality of circumstances.[10] Instead, Thomas admits readily that the result is "intensely undesirable,” but concludes that this is just proof that “the Federal Constitution does not prohibit everything that is intensely undesirable.”[11]

Following this opinion in 1996, it is perhaps striking to read Thomas’s cert denial comment in the context of his recent opinions. Specifically, Leonard v. Texas (2017) is a paradigmatic case of civil asset forfeiture, exactly the type of case that has made headlines and maintains similar facts to Bennis yet contrasts Thomas’s arguments in his past opinions. In Leonard, the plaintiffs challenged the forfeiture of over $200,000 that police seized from their car. The Court of Appeals held that the seizure was legitimate based on the suspicion that it was either from the sale of or for the purchase of drugs, despite some conflicting evidence that it was from the sale of a home in Pennsylvania. As in forfeiture cases, the government only needs to meet a preponderance of the evidence standard.[12] The Supreme Court denied cert in Leonard for procedural reasons – Leonard had raised her constitutional arguments too late – but Thomas expressed an intense interest in reaching the merits and challenging the status quo.

His comment takes direct aim at modern civil forfeiture regimes by sketching the outlines of an originalist argument, which would demand radical changes to their scope. He cites his nearly two-decades-old originalist concurrence in Bennis explicitly, but reinterprets it as a limiting construction. On this reading of his concurrence, special exemptions to standard due process tests for forfeiture laws can be sustained only if they’re similar to the historical forfeiture laws that existed during the founding of these cases. Thomas argues that most current laws do not and establishes two distinguishing factors. First, he argues, contemporary statutes are much broader than their founding-era analogues, which were typically limited to cases involving specific kinds of property in contexts like customs and piracy. In those cases, forfeiture proceedings were “often justified by necessity, because the party responsible for the crime was frequently located overseas.” Second, he notes, there are good reasons to believe that the government may have had to present arguments in a criminal context more frequently, or at very least, may have had to meet a higher burden of proof than modern statutes require.[13]

Of course, this six-page comment barely scratches the surface of originalist arguments and certainly doesn’t come close to settling the question. That will have to wait for a better test case and an oral argument on the merits. Still, with the most comprehensive federal legislation seemingly stalled, the Supreme Court will likely receive that case soon enough. When it does, it might find a changed Justice Thomas ready to challenge the civil forfeiture system and rid the system of “egregious and well-chronicled abuses.”[14]

[1] Stillman, Sarah. "Taken." The New Yorker, August 2013. www.newyorker.com/magazine/2013/08/12/taken.

[2] Holcomb, Jefferson E., Marian R. Williams, William D. Hicks, Tomislav V. Kovandzic, and Michele Bisaccia Meitl. "Civil Asset Forfeiture Laws and Equitable Sharing Activity by the Police." Criminology & Public Policy 17, no. 1 (2018): 101-27. doi:10.1111/1745-9133.12341.

[3] Ingraham, Christopher. "In Wisconsin, Authorities Now Have to Convict You of a Crime before They Can Take Your Cash." Wonkblog. April 5, 2018. www.washingtonpost.com/news/wonk/wp/2018/04/05/in-wisconsin-authorities-now-have-to-convict-you-of-a-crime-before-they-can-take-your-cash.

[4] Sheets, Connor. "Alabama Lawmakers Propose Ending Civil Asset Forfeiture by Police." Alabama Media Group. January 24, 2018. www.al.com/news/index.ssf/2018/01/alabama_lawmakers_introduce_bi.html.

[5] Somin, Ilya. "House Votes to Curb Asset Forfeiture." Washington Post. September 13, 2017. www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/13/house-votes-to-curb-asset-forfeiture.

[6] See Cain, Elizabeth B. "The Absurdity of Civil Forfeiture Law Exposed: Supreme Court Upholds Punishment of Innocent in Bennis v. Michigan and Highlights the Need for Reform." DePaul Law Review 57, no. 3 (Spring 1998): 667-700; and Root, Damon. "This Awful SCOTUS Decision Helped Create Today's Civil Asset Forfeiture Racket." Reason. November 27, 2017. www.reason.com/blog/2017/11/27/this-awful-scotus-decision-helped-create.

[7] Bennis v. Michigan, 516 U.S. 442 (1996).

[8] Cain, Elizabeth B. "The Absurdity of Civil Forfeiture Law Exposed: Supreme Court Upholds Punishment of Innocent in Bennis v. Michigan and Highlights the Need for Reform." DePaul Law Review 57, no. 3 (Spring 1998): 667-700.

[9] Bennis v. Michigan, 516 U.S. 442, 454 (1996) (Thomas, J. concurring).

[10] Bennis v. Michigan, 516 U.S. 442 (1996) (Ginsburg, J. concurring).

[11] Bennis v. Michigan, 516 U.S. 442, 454 (1996) (Thomas, J. concurring).

[12] $201,100.00 U.S. Currency v. Texas, No. 09-14-00478-CV (Tex. App.—Beaumont [9th Dist.] 2015), pet. denied.

[13] Leonard v. Texas, 137 S. Ct. 847, 580 U.S., 197 L. Ed. 2d 474 (2017).

[14] Leonard v. Texas, 137 S. Ct. 847, 580 U.S., 197 L. Ed. 2d 474 (2017).