Cops Taking Property From The Innocent Is “Legitimate,” South Carolina Supreme Court Rules

In a major blow against government accountability, the South Carolina Supreme Court last week upheld the state’s civil forfeiture laws, which let police permanently confiscate cash, cars, and even homes, without ever filing criminal charges. By overturning a lower court ruling that declared civil forfeiture unconstitutional, the decision jeopardizes property rights for thousands of people across the Palmetto State.

A sweeping investigation by the Greenville News and Anderson Independent Mail identified at least 1,510 cases—nearly 40% of all forfeiture cases in the state—where the owner was never convicted of a crime. And under state law, if an owner doesn’t formally file a claim for their seized property, law enforcement agencies win a “default judgment” and keep what was taken. In South Carolina, over 70% of forfeiture cases were won by default.

Worse, state law provides a powerfully perverse incentive to police for profit. Once a property has been forfeited, the seizing agency keeps the first $1,000 and then 75% of the remainder. Prosecutors receive 20%, while a mere 5% is sent to the general fund. Since 2009, law enforcement has generated nearly $97 million in state forfeiture revenue.

“This ruling is both shocking and extraordinarily disappointing,” said Robert Frommer, a senior attorney at the Institute for Justice, which is litigating the case. “South Carolina’s forfeiture laws violate citizens’ property and constitutional rights, yet the court ruled that it’s up to the legislature—the very entity that enacted those laws—to protect those rights.”

The case dates back to 2017, when Travis Green was arrested on multiple charges around Myrtle Beach. In addition to confiscating narcotics, the 15th Circuit Drug Enforcement Unit seized $20,771 in cash from Green’s wallet and an outdoor garage closet. Although Green pled guilty, he challenged the government’s attempt to forfeit his property.

In a surprise decision, the 15th Circuit Court ruled civil forfeiture was unconstitutional in 2019. More specifically, the court held that South Carolina’s seizure laws infringed on the protections for due process and against excessive fines. Following the decision, all forfeiture cases were stayed within the circuit. Prosecutors then appealed the case to the state’s highest court.

The South Carolina Supreme Court could have issued a landmark ruling affirming constitutional rights. Instead, it punted. The court refused to curb civil forfeiture, arguing that “the government has a strong, legitimate interest in forfeiting property connected to criminal activity,” even if that property is owned by someone who wasn’t charged with a crime.

Further citing a supposed “utter dearth of case law” that struck down forfeiture laws, the South Carolina Supreme Court concluded the state’s own forfeiture regime was “not facially invalid.”

Yet in 2018, a New Mexico federal district court struck down Albuquerque’s civil forfeiture laws as unconstitutional. In an exhaustive 91-page decision, Judge James Browning meticulously ruled that the city’s vehicle seizure laws violated the right to due process. Rather than grapple with that analysis, the South Carolina Supreme Court merely handwaved that ruling as an “outlier.”

That prompted a fierce dissent from Chief Justice Donald Beatty, who rebuked the court for defending an “illusion of due process.” “The majority clings to precedent regarding an ancient legal fiction, despite its misgivings, because this is the way things have always been, and then it insulates the fiction from further scrutiny behind an unassailable presumption of constitutionality,” he wrote.

This “blind recitation of prior case law” the chief justice noted, ignores how “civil forfeiture has expanded far beyond its historical roots and far beyond the contemplations of our nation’s founders and earlier decisions justifying its use,” decisions that were overwhelmingly limited to admiralty cases.

“Without question,” Beatty added, “the government can have no legitimate interest in compelling the forfeiture of property from an innocent owner or one who has not been afforded due process.” Such a system “cannot withstand constitutional scrutiny.”

Even though the South Carolina Supreme Court failed to fully scrutinize civil forfeiture, the majority nevertheless insisted that only the state legislature could alter or abolish the practice. Curbing civil forfeiture, the court claimed, would “encroach upon the General Assembly’s constitutional exercise of legislative power.”

This concern is “misplaced,” Beatty retorted. “This Court does not intrude upon legislative authority when it simply fulfills its appellate role of reviewing the constitutionality of existing legislation and expressly leaves any future statutory changes to the General Assembly,” the Chief Justice wrote.

In recent years, South Carolina legislators have considered bills that would fully abolish civil forfeiture and replace it with criminal forfeiture, which only authorizes forfeiture after a criminal conviction. If enacted, South Carolina would join four states—Maine, Nebraska, New Mexico, and North Carolina—in eliminating the practice.

“Regardless of what happens in the courts, the Institute for Justice, along with a broad and bipartisan group of advocates, stand ready to work with legislators to fix South Carolina’s flawed forfeiture process once and for all,” said Institute for Justice Senior Legislative Counsel Lee McGrath.