Indiana’s Top Court Adds More Due Process To Forfeiture, Says A Jury Needs To Be Part Of The Process

The courts in Indiana have made significant moves in recent years to do what the legislature won’t: limit asset forfeiture abuse.

A case that made its way from Indiana’s Supreme Court to the US Supreme Court ended with a declaration that certain forfeitures violated constitutional protections against excessive fines. In that case, Tyson Timbs was arrested after selling $260 of heroin to undercover cops. For that offense, his $42,000 Land Rover was seized. The consecutive courts reached the same conclusion: seizing a $42,000 vehicle for a crime tied to a maximum fine of $10,000 was “excessive.” And that’s a violation of the Fourteenth Amendment.

And that’s on top of another federal court decision that found the state’s seizure of vehicles for real (or imagined) crimes also violated the Constitution. In this case, the problem was the process, which allowed law enforcement to take its time processing the forfeiture while denying property owners any attempt to regain their property until the government was done screwing around.

This is another blow to Indiana’s forfeiture programs. And this one deals with civil asset forfeiture, which doesn’t even require the government to secure a conviction, much less definitively prove the property owner was ever involved in criminal activity. (h/t Gabriel Ogunjobi at Reason)

In this case, Alucious Kizer fled from his car during a traffic stop, tossing a variety of drugs behind him as he ran. Officers recovered these drugs and $2,435 in cash. For some reason, the cops decided not to charge Kizer with any crime and moved ahead with a civil forfeiture of the cash. Kizer challenged this forfeiture, demanding a jury be convened to decide whether or not the government’s claims that the money was “traceable as proceeds” of criminal activity were valid.

The state asked for that motion to be struck, stating that there was no legal requirement for it to defend forfeitures in front of a jury. The trial court originally agreed with the state. Then it reversed course, stating that it preferred to err “on the side of awarding Defendants more rights and due process by honoring the right to a jury trial” in civil forfeiture proceedings.

The state appeals court reversed this decision, setting up Kizer’s appeal to the state Supreme Court. And, thanks to the assistance of the Institute for Justice, the man who began this long-shot representing himself has scored a win for every resident of the state.

The state’s arguments basically boiled down to “this has always been an administrative procedure that has never involved a jury.” According to the state, the Indiana Supreme Court should do nothing more than hold that the way things have always been done is the way things should always be done.

The state’s top court disagrees. In a relatively short opinion [PDF], the state Supreme Court says due process rights also apply to civil forfeitures.

The State insists that Kizer has no right to a jury trial because “[i]n rem civil forfeitures pursuant to Indiana’s drug forfeiture laws are a special statutory procedure” intended exclusively for trial by the court. Kizer disagrees, arguing that the State’s theory would effectively deprive Hoosiers of a jury trial when filing suit under any modern statutory scheme.

We agree with Kizer.

It’s as if the state was so interested in ensuring an unimpeded path to taking property from people it had no idea what it was asserting. And this unforced error means others challenging similar forfeiture schemes elsewhere have another argument to use: that exempting civil forfeitures from jury trials means governments are free to engage in any civil lawsuit without having to put their case in front of a jury.

That’s clearly a ridiculous thing to assert. And yet, it forms the basis for most civil forfeiture programs in the country, where the government “sues” the seized property and presents its case in a mostly-non-adversarial fashion to a judge. The owner of the seized property is considered almost completely extraneous. And no prosecutor who never bothered to press criminal charges is going to look forward to presenting a case against some stuff cops took using nothing more than some boilerplate assumptions about (uncharged) criminal activity.

The court says the denial of a jury trial is definitely a violation of the state’s constitution.

In applying the analytical framework set forth above, we conclude that Article 1, Section 20 of the Indiana Constitution protects the right to a jury trial for in rem civil forfeitures.

After a long history lesson (well worth reading, by the way) detailing the long sordid history of civil forfeiture in the state, the court says the state’s constitution guarantees the right to a jury trial, even in cases like these.

In sum, we conclude that the present action for in rem forfeiture of money as the instrument and proceeds of crime is readily analogous to the traditional common-law forfeiture of property used in violation of the law—not to equitable disgorgement. And, in keeping with Indiana’s constitutional guarantee, this is an essentially legal action that triggers theright to trial by jury.

We’ll see how this alters the state’s forfeiture programs. Obviously, it doesn’t prevent cops from taking stuff from people and claiming (without evidence) that the property is either the result of criminal activity or intended for use in criminal activity. But now the dice roll gets a little trickier: if someone challenges the forfeiture, the state will have to make its case in front of a jury, which means the property owner gets to make their own case in court and everything gets a whole lot more adversarial.

Cops love unearned wins. And law enforcement people are just like people everywhere: they prefer to do easy things. Placing a jury speed bump on the path to unearned riches might be all the deterrent needed to limit forfeiture to instances where cops have plenty of evidence, rather than just an over-abundance of opportunity.