A circuit court judge in Horry County, SC, has issued an Order declaring that SC forfeiture laws are unconstitutional.

According to the Greenville News Online, the Horry County Solicitor asked the court to reconsider its ruling in a motion hearing yesterday, but the court has not issued a ruling on the motion to reconsider yet.

Attorneys, civil rights advocates, and citizens affected by the state and federal government’s policy of stealing cash from motorists on the side of the road – or their vehicles, or their homes – have been speaking out about the need for civil asset forfeiture reform for years. Finally, a case here and a case there, the lower courts across the country are setting in motion an appellate court process to review the constitutionality of these laws and their effect on everyday Americans.

Why did the Horry County Court declare SC forfeiture laws are unconstitutional? Have other courts reached the same conclusion? What can you do if police seize your money on the side of the road?

Why SC Forfeiture Laws are Unconstitutional

In Richardson v. Green, the trial court said, “No” to the Horry County Solicitor and refused to approve the seizure of over $20,000 in a drug investigation.

Instead, the Court signed an Order declaring that SC forfeiture laws are unconstitutional because they violate the Excessive Fines Clause of the US and SC Constitutions and because they violate Due Process under the US and SC Constitutions by placing the burden on property owners to prove their innocence, by institutionally incentivizing forfeiture officials to seize money and prosecute forfeitures, and by not providing a process for judicial review either pre- or post-seizure:

This Court finds that South Carolina’s forfeiture statutes, S.C. Code Sections 44-53-520 and 44-53-530, violate the prohibition on excessive fines found in the Eighth Amendment to the U.S. Constitution and Article I, Section 15 of the S.C. Constitution.

Furthermore, this Court finds that S.C. Code Sections 44-53-520 and 44-53-530 violate due process under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section Three of the S.C. Constitution in that the forfeiture statutes 1) place the burden on the property owner to prove their innocence, 2) unconstitutionally institutionally incentivize forfeiture officials to prosecute forfeiture actions, and 3) do not mandate judicial review or judicial authorization prior to or subsequent to the seizure.

That’s four separate grounds for why SC forfeiture laws are unconstitutional.

The Excessive Fines Clause

The Court found that SC forfeiture laws are unconstitutional because they violate the Excessive Fines Clauses of the US and SC Constitutions:

This Court finds that South Carolina’s forfeiture statutes violate both the federal and S.C. constitutional protections against excessive fines by permitting the government to seize unlimited amounts of cash and other property without regard to the proportionality of the crime that may have been committed. Indeed, they allow the government to seize unlimited amounts of cash and other property when no crime has been committed, without a criminal conviction and without proof of a crime having been committed beyond a determination of probable cause.

For example, South Carolina’s forfeiture statutes would allow law enforcement to seize millions of dollars in assets from an individual when the maximum fine authorized by law is minimal, or when no crime has been committed at all. This unfettered authorization to seize unlimited amounts of property from citizens without regard to the proportionality of the offense committed – indeed, without evidence proving that the individual committed an offense – compels this Court to find that the statutory scheme is unconstitutional and must be invalidated under the federal and state constitutional prohibitions on excessive fines and pursuant to the U.S. Supreme Court’s decision in Timbs v. Indiana, 586 U.S. ___ (2019).

According to the Greenville News article, this is the first time that Timbs v. Indiana has been applied in the country since the US Supreme Court decision was issued:

The decision marked the first time the U.S. Supreme Court’s recent ruling on excessive fines in the case of Timbs vs. Indiana has been applied in the country since the ruling, said Wesley Hottot, the attorney who argued that case before the Supreme Court.

The Order may be appealed to the SC Supreme Court – putting the members of the state’s highest court in the position of deciding whether SC forfeiture laws are unconstitutional. Although the state legislature can amend SC’s forfeiture laws and there are constant “rumblings” about proposed legislation, it is unclear whether they will act to fix the forfeiture laws.

Burden of Proof

The court found that SC forfeiture laws are unconstitutional because the burden of proof is on the property owner:

Although, in some cases, the affirmative defense rules pronounced by the U.S. Supreme Court permit the burden of proof to be placed on the defendant in a criminal case, see Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), these rules only apply if the government first proves some wrongful act by the defendant. Because S.C.’s forfeiture statutes do not require meaningful proof of any wrongful act by the defendant, they unconstitutionally shift the burden of proof to defendants who, in some cases, are not even charged with a crime. See Martin v. Ohio, 480 U.S. 228, 233-34, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), Nelson v. Colorado, 581 U.S. ___ (2017) (invalidating a Colorado statute that required a defendant to “prove her innocence by clear and convincing evidence to obtain the refund of costs, fees, and restitution paid pursuant to an invalid conviction”).

The forfeiture laws allow the government to seize a person’s property “when a defendant has not been convicted of a crime, when a defendant has not even been charged with a crime, or when the government has not provided any meaningful evidence that the property is connected with a crime.”

Unconstitutional Incentivization

The court also found that SC forfeiture laws are unconstitutional because they provide a financial incentive for law enforcement to seize and keep citizens’ cash and property:

Because forfeiture programs in South Carolina are self-funding, they violate due process in that they create an institutional incentive for forfeiture program officials to vigorously pursue forfeitures even where there is no basis for a forfeiture and when leniency would be more appropriate. See Tumey v. Ohio, 273 U.S. 510 (1927).

Enforcement personnel are responsible for conducting investigations following a seizure, including verifying whether the seizure was justified and determining whether to return a defendant’s property, demand the full amount of forfeiture money or property, or negotiate a settlement in which a defendant who has not been proven guilty must relinquish some of their property, ensuring the continued flow of forfeiture funds.

Furthermore, the very existence of the forfeiture programs depends on the maintenance of income generated by the programs.

Basically, if the person prosecuting a case on behalf of the government, or their agency, has a financial incentive to make seizures, that creates an unconstitutional conflict of interest. The danger is that forfeiture officials will make decisions based on their own financial interests or the financial interests of their agency rather than the merits of the individual cases or what Justice requires.

Insufficient Judicial Review

The court’s final reason for finding that SC forfeiture laws are unconstitutional is the lack of judicial review or judicial authorization either before or after the property is seized:

Under South Carolina Code § 44-53-530(c), the seizing agency is required to file a forfeiture action within a reasonable time of the seizure. The statute does not define a reasonable time. The law permits a seizure without a warrant if the seizure is made as incident to arrest or if probable cause exists to believe that the property was used in violation of the drug laws. See, S.C. Code § 44-53-520(b)(1) and (4). The statute does not have a provision for any type of pre-seizure or post-seizure hearing to determine if probable cause exists.  For a seizure under subsection (b)(1) and (4), the law does not provide for any judicial review or judicial authorization prior to or subsequent to the seizure.

Although the statute requires the state to file a forfeiture action “within a reasonable time of the seizure,” that does not provide enough protection for citizens:

• There is no judicial review or authorization prior to seizure of assets;
• There is no judicial review within a “reasonable time” after the seizure;
• When the state does file a forfeiture action, according to the Greenville News article, it takes an average of 17 months for the case to go before a judge; and
• In many cases, citizens are forced to sue the government to get their property back.

Although the court’s order does not address it, many victims of SC’s forfeiture laws cannot file their own lawsuit or effectively defend against a government forfeiture action because they cannot afford to pay an attorney to handle the case for them.

Why Haven’t Courts Addressed These Issues Before?

Although many advocates in SC’s legal community have been saying SC forfeiture laws are unconstitutional for years, it can be difficult to get “the right case” on appeal.

Why?

• If a solicitor’s office does not like the outcome of an individual case but does not want to “make bad law,” they can decline to appeal a bad result;
• If a solicitor’s office is likely to win a case but it is not a case they want the defendant to appeal, they can either dismiss the action or negotiate a settlement before trial; and
• Most defendants in forfeiture actions do not have attorneys – most forfeitures are of “small amounts” of cash that forfeiture defendants cannot afford to litigate. If police take $1200 from a motorist’s wallet, there’s just not enough money at stake to cover attorney fees to file or defend a lawsuit.

Although the Richardson v. Green case may not have been “the right case for appeal” either, the court’s analysis seems to be that the law is “facially unconstitutional” – it is unconstitutional regardless of the underlying facts – as opposed to “unconstitutional as applied” to the facts of any individual case.

What Other Courts Have Declared Forfeiture Laws Unconstitutional?

The Horry County Court cites other lower-court cases, including Harjo v. City of Albuquerque, where a federal district court in New Mexico found that a civil forfeiture scheme operated by the City of Albuquerque was unconstitutional for the same reasons – the burden of proof was on the property owner to prove their innocence and the City had an unconstitutional financial incentive to seize property.

A federal district court in Iowa reached the same conclusion last year in Flora v. Sw. Iowa Narcotics Enforcement Task Force:

Similarly, in Flora v. Sw. Iowa Narcotics Enforcement Task Force, 292 F.Supp.3d 875 (S.D. Iowa, 2018), the District Court for the Southern District of Iowa found that “a special Iowa police task force charged with, among other things, drug investigation, enforcement, and civil asset forfeiture,” had an unconstitutional profit incentive where “the task force distributed ten percent of any successful civil forfeiture to the county attorney’s office, twenty percent to the state, and the remaining funds back to the task force.” Id. The District Court denied the task force’s summary judgment motion on profit incentive because: “(i) the profit-sharing agreement did not ‘limit forfeiture shares to expenses accrued by the Task Force and the [county attorney’s office] in pursuing the forfeitures’; and (ii) whether the task force received excessive funds from its seizures ‘rest[ed] on the sole determination of the Task Force Unit Supervisor.’ Harjo, 326 F.Supp.3d at 1196, citing Flora, 292 F.Supp.3d at 904.

How are the laws that were declared unconstitutional in these cases like SC’s forfeiture laws?

The common thread in these cases, and possibly the clearest argument for why SC forfeiture laws are unconstitutional, is the financial incentive for law enforcement to seize money and property from people. The Horry County Order breaks down why SC forfeiture laws “institutionally incentivize” forfeiture officials:

Facts that demonstrate an unconstitutional incentive to prosecute forfeiture cases under South Carolina’s forfeiture scheme include:

• Forfeiture revenues in each agency are directed to a designated special revenue fund;
• These funds are used to pay expenses directly associated with the program;
• These funds are used to pay for discretionary items that would otherwise be unavailable to law enforcement agencies;
• The funds are used to pay for recurring expenses, creating a secondary budget within each agency that is not subject to legislative approval and that results in agency dependence on forfeiture funds to continue paying those expenses;
• The existence of forfeiture programs in each agency depends on the revenue generated by forfeitures;
• Forfeiture revenue is used to justify the salaries of forfeiture officials;
• Declines in forfeiture revenue may require the elimination of positions of forfeiture officials;
• Declines in forfeiture revenue would require the elimination of significant discretionary spending by each agency involved; and
• In practice, officials involved in the forfeiture programs control how forfeiture income is budgeted and spent with little or no oversight from the legislature.

Under SC forfeiture laws, 75% of the assets or cash seized goes directly to the agency that seized it, and the agency has complete discretion on how the money is spent. 25% of the money goes to the prosecutor’s office that handles the forfeiture action, and only 5% goes to the general fund of the state.

Articles About Why SC Forfeiture Laws are Unconstitutional

If you want to learn more about why SC forfeiture laws are unconstitutional, SC attorneys and media outlets have been writing about it for years:

• Why forfeiture laws are preventing the US from implementing common-sense, evidence-based drug policies;
• Horry County judge declares SC forfeiture laws unconstitutional;
• Civil asset forfeiture in SC – policing for profit;
• Asset forfeitures in SC;
• Forfeiture reform in the SC legislature goes nowhere;
• SC could abolish forfeiture;
• SC forfeiture laws are a formula for greed, theft, and corruption.

A two-year investigation into civil asset forfeiture in SC, called Taken,

…examined more than 3,200 cases in South Carolina from 2014 to 2016 and found:

• Agencies in South Carolina seized more than $17 million from people over the course of three years. The bulk of that money ended up in the hands of law enforcement to pay for drug-crime fighting;
• About 65% of the cases involved black men though black men make up just 13% of the state’s population; and
• Prosecutors have up to two years after police seize money to file a civil court case justifying the seizure. On average, when a person petitions to have money or property returned, the case takes 17 months from the time of the seizure to be resolved, regardless of the outcome of any related criminal charges.

What’s next?

According to the Greenville News article, there is a pending motion to reconsider that was filed by the Horry County Solicitor’s Office – the court might still decide to change its ruling. If not, the case will be heard by the SC Supreme Court if the solicitor decides to appeal the ruling.

If not, more courts may follow Horry County’s lead in finding SC forfeiture laws are unconstitutional, and it is possible the SC legislature will take up the issue again next year.

Forfeiture Defense Attorney in Charleston, SC

If your property has been seized by SC law enforcement, Charleston, SC asset forfeiture lawyer Grant B. Smaldone may be able to help you by answering the government’s forfeiture complaint or by filing a civil rights lawsuit against the agency that took your property.

Call now at (843) 808-2100 or send an email to schedule a free consultation.