Two years ago, the Legislature significantly curtailed local police departments’ ability to seize property without charging the owner with a crime.
On Wednesday, the U.S. Supreme Court heard arguments in a case that could restrict the controversial practice, known as civil forfeiture, even further.
The 2016 New Hampshire law prohibited civil forfeiture in the majority of cases until the owner of the property was actually convicted of a crime. But lawyers in the Supreme Court case, Timbs v. Indiana, argued that even in cases where police have obtained a conviction, it may be unconstitutional to seize the person’s money and property.
In certain cases, such seizures are equivalent to excessive additional fines on top of the criminal sentence and therefore violate the Eighth Amendment, said Sam Gedge, an attorney for the nonprofit Institute for Justice, which is representing Tyson Timbs in the case.
The court must decide whether the Eighth Amendment’s prohibition against excessive fines applies to state governments as well as the federal government. It is one of the last areas of the Bill of Rights for which the court has not explicitly recognized an application to states.
“It’s kind of a vital safety check on the most excessive forfeitures,” Gedge said. “Our position has never been that if you convict somebody criminally you can never forfeit their property ... our position is that it’s possible to excessively fine people by taking too much of their property.”
Civil forfeiture has been a rare area of bipartisan agreement in recent years, with both liberal and conservative groups arguing that the seizures violate due process rights and encourage police to take property — such as cars, homes, or cash — and ask questions later.
But police say it is a vital tool to dissuade drug dealers.
“Oftentimes, this personal property is paid for with the proceeds of unlawful, illegal drug transactions and no one should profit from the unlawful sale of drugs,” said Londonderry police Lt. Patrick Cheetham, the past president of the New Hampshire Police Association, who has testified before the state Legislature on the importance of civil forfeiture.
“Here in New Hampshire, we’re facing a continued opioid and fentanyl crisis,” he added. “And as a deterrent to those who would sell these deadly drugs — whether it be through their home, their vehicle, or other means — this is one other tool that law enforcement uses to dissuade killers who are selling deadly drugs.”
The Supreme Court case centers around the seizure of Timbs’ $42,000 Land Rover.
In 2015, Timbs, of Indiana, pleaded guilty to selling drugs to undercover police officers. He was sentenced to a year of house arrest, five years probation, and roughly $1,200 in fines as part of the criminal case.
But Indiana police also seized his car through a civil forfeiture.
The maximum possible fine for Timbs’ crime, under Indiana law, would have been $10,000. Seizing the Land Rover effectively imposed a fine four-times the maximum allowed by law, his lawyers argued.
Gedge was optimistic after Wednesday’s arguments in Washington, D.C., and reports from national media outlets that were in the courtroom strongly suggested that the justices were ready to apply the Eighth Amendment’s protections to state governments
New Hampshire civil liberties advocates would welcome the changes that would mean for civil forfeiture.
“Anything that further restricts the abuse of civil asset forfeiture is a good thing,” said state Rep. Michael Sylvia, R-Belmont. “I’d prefer to see the federal government scale back the program.”
Sylvia has sponsored several bills in recent years that would restrict local law enforcement’s ability to work around the state forfeiture law by partnering with a federal agency to pursue the forfeiture in federal court.
The federal forfeiture program, known as equitable sharing, allows local law enforcement to retain 80 percent of the profits from seized property and it does not require that the owner be convicted of a crime first.
“That just seems, to us, like a significant due process problem,” said Gilles Bissonnette, legal director for the ACLU of New Hampshire. “If the government believes that the property has some nexus to the criminal activity, the government should have to prove it. That doesn’t happen in the federal system.”
State law requires a conviction and police may only keep 45 percent of the proceeds from civil forfeiture.
New Hampshire police are limited in what they can spend that money on. It primarily goes to drug investigations and, in some cases, outreach and prevention programs.
“Not every crime gets solved, that doesn’t mean the crime didn’t occur,” said Tuftonboro police Chief Andrew Shagoury, president of the New Hampshire Association of Chiefs of Police.
“I understand that people have concerns ... but what programs are funded by that money are going to go back on taxpayers if not funded by the criminals.”