Earlier today, I moderated a panel of expert speakers on the topic of “Civil Forfeiture of Property” at the 12th Annual Brigham-Kanner Property Rights Conference at William and Mary Law School in Williamsburg, Virginia.
Sara Sun Beale of Duke Law, Scott Bullock of the Institute for Justice, and Sandra Guerra Thompson of the University of Houston Law School were our speakers. Here are my introductory remarks:
Is the right of private property a “poor relation” to other civil rights, as the Supreme Court once warned? Or is the Takings Clause like the Pirate Code in Pirates of the Caribbean — more like what you’d call ‘guidelines’ than actual rules?
If you were to look only at civil forfeiture laws — what one of our speakers has eloquently referred to as “policing for profit” — you might think so.
These laws allow government to seize private property without first convicting or even charging the owner with a crime. Yes, the police may need probable cause or reasonable suspicion, but given the size and scope of municipal, state, and federal criminal law, we’re all guilty of something — they just need to get around to noticing. And it may not be limited to traditional “crimes,” but may extend to Orwellian thoughtcrime. For example, the State of Colorado has moved to seize $135,000 from the bakers who refused to bake a cake for a same sex wedding.
Civil forfeiture highlights the disparities in the protection of fundamental rights such as private property. This is not exactly a new phenomenon, and I return to the Pirate’s Code, since it has been a part of American law since at least United States v. The Brig Malek Adhel, 43 U.S. 201 (1844). In that case, the Court upheld a federal statute which allowed maritime authorities to seize and bring in any ship (and crew) who might be pirates. “Innocence,” wrote the Court, “will not exempt the vessel.”
Our speakers will evaluate the impact of civil forfeiture laws on property rights, and consider what — if any — reforms are needed.
We had very good presentations and discussion, and we ended with this question: when does a Fourth Amendment seizure become a Fifth Amendment taking?