Civil Forfeiture: Can States Seize Your Private Property?

Supreme Court to Decide Whether States Can Seize Private Property in Civil Forfeiture

Mark Nestmann
August 6, 2009

I've never been convinced that the U.S. Supreme Court has any interest in actually defending the Constitution and Bill of Rights. Among other decisions "protecting" our freedoms, the Supreme Court has:

• Upheld the power of state and local governments to seize private property from one group of people for the benefit of a more powerful private interest.


• Upheld the power of the federal government to prohibit farmers from growing crops on their own land for their own consumption.


• Upheld the right of the President to invalidate contracts calling for the settlement of debts in gold or other precious metal, rather than in fiat dollars.

I could go on and on, but the record is clear that for more than two centuries, the Supreme Court has systematically eviscerated the freedoms the Founding Fathers bestowed upon us.

For that reason, I'm not particularly optimistic about the prospects for the latest legal challenge to the horrific practice of "civil forfeiture" to reach the Supreme Court. (Civil forfeiture is a legal procedure in which prosecutors can seize your property without accusing you, much less convicting you, of any crime.)

The Court has agreed to hear a challenge to a law in Illinois that permits the State to seize someone's property without a warrant, and then indefinitely delay a hearing to determine whether there is probable cause to detain the property (Alvarez vs. Smith, Case No. 08-351).

My guess is that the Court will uphold the right of Illinois to simply seize your property and deny you any right to challenge the seizure in court. I make this prediction not only because of the Court's long record of upholding laws and regulations that destroy our rights, but because of a long line of decisions specifically upholding draconian civil forfeiture statutes.

In 1827, the Court confirmed that the government could confiscate your property in a civil forfeiture without a criminal conviction and that property of people entirely innocent of any wrongdoing whatsoever could be forfeited. In 1878, the Court again upheld the right of the government to seize property from an entirely innocent owner. It did so again in 1921 and then, to make sure we really got the point, made the same determination in 1996.

In 2000, Congress enacted a civil forfeiture reform statute that established an "innocent owner" defense for most federal civil forfeitures. But in forfeiture under state law, no innocent owner defense may be available. Even if it is available, in states like Illinois, the government may indefinitely delay legal proceedings to allow you to assert it.

Civil forfeiture is a legal abomination that has no place in a civilized society. A Supreme Court interpreting the Constitution and Bill of Rights as written wouldn't merely restrict civil forfeiture, but abolish it at all levels of government.

There's not a snowball's chance in a blast furnace that will happen in this case. The best we can hope for is that the Court will invalidate the Illinois law due to the ability of the state to effectively deny civil forfeiture victims the right to a hearing. And I'm not optimistic.