Why South Carolina’s Forfeiture Statutes are Unconstitutional

South Carolina’s forfeiture statutes are unconstitutional and need to be reformed.

For too long, police have abused the forfeiture process, enriching their departments at the expense of citizens who, in some cases, have not even committed a crime. Forfeiture funds have become a source of recurring expenses for law enforcement agencies, supplementing their budgets and allowing them to purchase things like military equipment and other items the legislature would never approve.

Police often seize money that they know they cannot prove is connected to drug sales or proceeds.

Why? Because they also know that, in most cases, it will be difficult for the person to find an attorney to take their case because there is not enough money at stake to pay the legal fees. A thousand here, a thousand there, motorists can’t justify the expense to fight it, and the money flows into the bank accounts of law enforcement agencies and solicitor’s offices.

In some cases, forfeiture is an effective tool that takes resources away from drug dealers and other criminals. That’s law enforcement’s go-to argument for why we should not take their cash cow away from them.

In many other cases, though, forfeiture is nothing more than armed robbery committed by government-sanctioned criminals wearing a uniform and badge…

Why SC’s Forfeiture Statutes are Unconstitutional

It’s not enough to say, “Hey, police shouldn’t steal from citizens. It’s wrong.” You can’t just trust people to do the right thing. Even, maybe especially, in government. Instead, we must prove why it’s wrong, choosing just the right words and citing to the right appellate opinions to show a court why stealing from citizens violates the US Constitution.

Eighth Amendment and Timbs v. Indiana

Timbs v. Indiana is a beginning. But what was the holding in Timbs v. Indiana? When it was first decided, many people were saying this was the end of forfeitures… I’m guessing those people didn’t actually read the case.

The US Supreme Court said that the Eighth Amendment’s Excessive Fines Clause applies to the states through the Fourteenth Amendment.

That’s it.

It did not hold that forfeiture statutes are unconstitutional or even reach the merits of the case below, other than to reverse the lower court’s ruling that the Excessive Fines Clause does not apply to the states. It allowed the trial to go forward in the lower court, where the defendant will try to make the case that his forfeiture action violated the Excessive Fines Clause.

But the same arguments apply to many forfeiture actions across the country and in SC – when there is no proof that a defendant has committed a crime, how is it legal and just to take their property? Even when a person has committed a crime, should forfeiture of that person’s property be proportional to the crime that was committed?

Horry County Police Department Seeks $53,000 Forfeiture for Six Grams of Cocaine

In just one recent case, the Horry County Police Department made arrests in an animal cruelty case in Loris, SC. In the defendant’s home, police also found pipes used to smoke narcotics, just over six grams of cocaine, and not quite $53,000 in cash.

Because the money was “found in proximity” to drugs, even though it was a small amount of drugs, SC’s forfeiture laws say police can seize it. The burden of proof then shifts to the defendant to prove that the money is not proceeds from drugs…

The defendant was charged with possession with intent to distribute (any time someone possesses more than one gram of cocaine they can be charged with possession with intent to distribute) – SC Code Section 44-52-370 provides that the maximum penalty for possession with intent to distribute first offense is 0-15 years in prison and a maximum fine of $25,000 – half the amount that police seized from the defendant in this case.

Similarly, an attorney I know handled a case where police seized approximately $800 from a motorist after arresting him for a mostly burnt marijuana cigarette (a roach). Why?

Did the police think that a half-smoked joint is probable cause that the money is proceeds from a drug deal? Was he going to sell the half-smoked joint? Use the $800 to buy another joint (if you don’t know, $800 will buy a lot of marijuana –a quarter pound or more depending on the location and seller).

The money came from his student loan, he told the police it was his student loan, and he had the documents to prove it. The only reason he was able to get his money back was because an attorney agreed to handle the case pro-bono – it’s just not feasible to litigate a forfeiture case for 1/3 of $800. What happens to every other forfeiture victim who cannot find an attorney to take their case pro bono?

Why are police allowed to seize $800 from a motorist based on a roach? Why does a motorist with a roach in his ashtray need to prove where his money came from? How is that anything other than the state-sanctioned robbery of motorists?

Burden of Proof

SC’s forfeiture statutes are unconstitutional because they place the burden of proof on individuals to prove their innocence. For example, in Harjo v. City of Albuquerque, 326 F.Supp.3d 1145 (D. N.M., 2018), the federal court found that a New Mexico forfeiture program violated due process by placing the burden of proof on innocent property owners.

As in the New Mexico case, SC’s forfeiture statutes violate Due Process because they do not require any meaningful proof of a crime committed by the defendant. The state only needs to show probable cause that the money was found in proximity to drugs – at that point, the burden shifts to the defendant to prove their innocence. If they can’t prove their innocence, the state keeps their money…

No Mandatory Judicial Review

SC’s forfeiture statutes are unconstitutional because they do not mandate judicial review of a seizure. The law says that the state must file a forfeiture action within a reasonable time of the seizure, without defining a reasonable time and without any consequences for the state’s failure to file.

There are no provisions for a pre-seizure hearing – police can and do seize your money right there on the side of the road. There are no provisions for a post-seizure hearing, either. Once they seize your money, they are supposed to file a lawsuit. If they don’t, you must sue them to get your money back.

Because SC’s forfeiture laws do not provide for a pre-seizure or even a post-seizure hearing, they violate Due Process under both the federal and SC constitutions.

Unconstitutional Incentivization

SC’s forfeiture laws also violate Due Process because forfeiture officials (police who seize money, assistant solicitors, contract attorneys hired by the state to prosecute forfeiture actions) are unconstitutionally incentivized to prosecute forfeiture actions.

What does that mean?

Forfeiture programs are self-funding, and they are a cash cow for law enforcement agencies and solicitors’ offices in South Carolina. South Carolina’s forfeiture laws dictate the method by which law enforcement agencies divide up their profits from roadside seizures – 75% of the money is kept by the agency that made the seizure, 20% is kept by the solicitor’s office, and only 5% goes to the general fund of the state.

The first $1000 is always kept by the agency that makes the seizure – when they seize $800 of a college student’s tuition money because he has a roach in the ashtray, that police department gets to keep all of it.

The money is kept in a separate bank account by the agency and can only be spent by that agency – ensuring that 1) each agency gets to keep their portion of the money that they take from motorists, and 2) each agency gets to control how that money is spent.

Agencies are authorized to make “recurring expenses” from their forfeiture accounts, which creates a secondary budget/slush fund that they must rely on to make purchases and pay bills from each year. If it was a good year, there’s lots of money to spend. If it was a bad year, you’re not getting all the toys you want to have (helicopters, tanks, you know, just the essentials for community police).

If you are an attorney (or judge) handling forfeiture cases in SC, look at:

  • Harjo v. City of Albuquerque, 326 F.Supp.3d 1145 (D. N.M., 2018);
  • Flora v. Sw. Iowa Narcotics Enforcement Task Force, 292 F.Supp.3d 875 (S.D. Iowa, 2018);
  • Timbs v. Indiana, 586 U.S. ___ (2019);
  • Nelson v. Colorado, 581 U.S. ___ (2017);
  • Tumey v. Ohio, 273 U.S. 510 (1927);
  • Ward v. Village of Monroeville, 409 U.S. at 58, 93 S.Ct. 80;
  • Marshall v. Jerrico, Inc., 446 U.S. 238, 251, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980).

To the SC legislature: fix SC’s broken forfeiture laws.

To SC attorneys: don’t just settle forfeiture cases, allowing the state to keep part of their stolen money – when your clients permit, fight forfeitures and ask the courts to declare the forfeiture laws unconstitutional.

To SC Courts: declare the forfeiture laws unconstitutional. Demand that the legislature fix our forfeiture laws to bring them into line with the Bill of Rights and to end the highway robbery that is happening in many cases.

SC Forfeiture Attorney in Myrtle Beach

If the police took your money during a traffic stop or after your arrest, we want to help if we can. Daniel A. Selwa is a criminal defense and civil asset forfeiture attorney in Myrtle Beach, SC.

Call now at (843) 492-5449 or send an email for a free consultation to discuss your case and to find out how we can help.

sc forfeiture statutes are unconstitutional

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