What do Civil Forfeiture and the 8th Amendment have to do with HOAs?

By Deborah Goonan, Independent American Communities

Yesterday, the U.S. Supreme Court made its historic ruling that 8th Amendment’s protection against Excessive Fines applies to state and local governments across the country.

The SCOTUS decision united all nine Justices, as well as liberal and conservative politicians and think tanks.

Following this decision, one reader wrote and asked me: “Will this ruling also apply to HOA fines and home confiscations?”

That’s a great question. And, as a non-attorney, I’ll share my thoughts in today’s post.

But first, let me provide some background for readers who may not be familiar with the practice of Civil Forfeiture, and how the matter of excessive fines reached the SCOTUS.


Background story on SCOTUS ruling

According to the Institute for Justice, the events leading up to yesterday’s SCOTUS decision all started in a small town in Indiana. Following an injury, a man by the name of Tyson Timbs found himself addicted to painkillers, eventually using heroin. In 2013, at the height of his bout with substance abuse, Timbs began selling heroin to finance his own addiction. One day, he sold a small amount of heroin (worth $400) to an undercover officer.

Timbs was arrested, and he entered a guilty plea for one count of drug dealing. He then served house arrest, 5 years of probation, and paid $1,200 in related fees. An IJ press release states, “Most importantly, the arrest was a wake-up call for Tyson. He got his life back on track, holding down a job and taking steps to battle his addiction.”

However, the state of Indiana also seized Timb’s $42,000 Land Rover. The state argued that it had the right to seize a vehicle used in the commission of a drug crime.

However, the maximum fine for Timb’s crime is only $10,000, less than one-fourth the value of his Land Rover. As Timbs continues to get his life in order, he needs reliable transportation to work.

Working with IJ attorneys, Timbs sued to get his car back. Both trial and appeals court judges agreed with IJ’s argument that civil forfeiture of his Land Rover was equivalent to an excessive fine, in direct violation of 8th Amendment protections.

The Eighth Amendment of the U.S. Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Not wanting to give up the Land Rover, the state’s private attorney appealed. Ultimately, the Indiana Supreme Court denied Timb’s request for return of his vehicle, allowing the civil forfeiture to stand. Incredibly, Indiana Supreme Court insisted that its state law is not subject to the 8th Amedment’s prohibition on excessive fines.

And, believe it or not, according to a report in the Washington Post, three other states hold the same stance as Indiana Supreme Court – Michigan, Mississippi, and Montana.


SCOTUS upholds 8th Amendment in state and local governments

IJ petitioned the Supreme Court of the U.S. to clarify whether or not the 14th Amendment of the Constitution obligates all states to uphold 8th Amendment protections against excessive fines.

As expected, yesterday the SCOTUS ruled that 8th Amendment protections against excessive fines do apply to every state in the U.S., including Indiana.

In the written Opinion, Justice Ruth Bader Ginsburg wrote,

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago. Even absent a political motive, fines may be employed ‘in a measure out of accord with the penal goals of retribution and deterrence,’ for ‘fines are a source of revenue,’ while other forms of punishment ‘cost a State money.’ This concern is scarcely hypothetical”

The court notes that this ruling also applies to all excessive fines imposed by government, not just those related to taking of private property by means of civil forfeiture.


Many advocates fight against Civil Forfeiture and Excessive Fines

Institute for Justice has spent the last several years fighting against what it calls ‘policing for profit,’ where officers of the law and the court use civil forfeiture to seize private property, then sell that property for cash proceeds.

They say Police Departments and Prosecutors have raised billions of dollars from sale of seized property to fund law enforcement and local government operating budgets.

Southern Policy Law Center and Cato Institute also oppose Civil Forfeiture and imposition of Excessive Fines, because they bury poor people in debt that they can never repay. Such hopeless situations only make poverty worse, and increase the odds of repeating crime.

Several news and media organizations have conducted in-depth investigations into abusive fines and property seizures. For example, the Greenville News TAKEN investigation found:

  • South Carolina government agencies collected $17 million in civil asset forfeitures in a three-year period
  • 65% of forfeitures were property of black men, even though black men only represent 13% of the population of S.C.
  • In 19% of civil forfeiture cases, no one was charged with a crime
  • In 800 cases, criminal charges did not lead to a conviction

As a result of this investigation, South Carolina state legislators are now working on a bill that would at least require a criminal conviction before civil forfeiture could be considered as an enforcement option.

That’s a step in the right direction.


U.S. Supreme Court strikes blow to civil forfeiture, limits states’ ability to raise money from excessive fines

Nathaniel Cary, The Greenville News, Published 11:19 a.m. ET Feb. 20, 2019 | Updated 10:24 a.m. ET Feb. 21, 2019

In a victory for property rights and a blow to South Carolina law enforcement’s use of civil asset forfeiture revealed by The Greenville News’ groundbreaking TAKEN investigation, the U.S. Supreme Court ruled unanimously Wednesday that states can’t use forfeiture or other fees and fines to impose excessive punishment or to raise money.

The 9-0 decision united the conservative and liberal justices in a decision that immediately will affect how states such as South Carolina use civil forfeiture.

The court ruled that their decision applies to states. The decision, however, does not eliminate the use of forfeiture.

Read more (Video):
U.S. Supreme Court strikes blow to civil forfeiture, limits states’ ability to raise money from excessive fines

Also as part of its investigation of civil asset forfeiture abuse in South Carolina, the Greenville News published a series called TAKEN, which includes the story of the City of Conway threatening to take away the home of 72-year-old Ella Bromell, a black woman who was unable to stop some young men in her neighborhood from congregating on her porch to sell drugs.

For years, a SC city tried to seize a widow’s home. It still might.
It started in 2007 when people in her neighborhood were selling drugs outside of her home while she was at work or asleep.
Mike Ellis, The Greenville News (Video)

The report tells the story of Bromell’s 10-year legal battle to prevent the city of Conway from taking away her home, even though the elderly woman never participated in any criminal activity.

Bromell explains in her video interview that, even though a judge finally ruled in 2017 that the city cannot take her home, she remains fearful of going outside or talking to police. A life-long resident of her neighborhood, she has become a prisoner in her own home, worried that she might be arrested, or that she still might lose her home.


Parallels to HOAville

Once again, a Constitutional rights battle on behalf of Americans who do not live in HOA-governed housing bears an alarming resemblance to the very same kind of battles fought by HOA residents across the U.S.

On this website, the reader will find thousands of posts, hundreds of them documenting HOA abuse of power. HOAs imposing ridiculous and excessive fines. Homeowners and condominium associations threatening and carrying out foreclosures over alleged assessment debts totaling a mere fraction of the home’s value. In about half of the U.S., an association-governed community can foreclose without court approval from a judge. In some cases, an HOA foreclosure wipes out the first mortgage lien (known as HOA priority lien), potentially leaving an investor at a foreclosure auction with a windfall, and the former owner still on the hook for repaying the mortgage.

Many homeowners experience the horrors of HOA bullies, HOA lawsuits, and being labeled the troublemaker in their communities.

All of these well-docmented facts prompted my reader’s question:

“Will this ruling also apply to HOA fines and home confiscations?”

As a non-attorney, and a supporter of equal rights and protections for American property owners and housing consumers, I certainly hope so.

But, I’m afraid that further legal challenges will be necessary to extend Constitutional protections to HOA-governing bodies.

The HOA industry, led by various community association trade groups and developers of common interest communities will certainly continue to argue that HOAs are private organizations based upon contractual agreements.

They will argue that, in their view, HOA’s are not governments or even quasi-governmental organizations.  They are likely to continue to insist that the U.S. and State Constitutions need not apply to private organizations such as homeowners, condominium, and cooperative associations.


Some Constitutional rights do apply to HOAs

Obviously, the provisions of Fair Housing Acts apply to HOAs, at least in theory. (See this website for numerous examples of Fair Housing complaints against HOAs.)

And, in the past several years, IAC has documented several important court rulings that protect First Amendment rights to free speech and religious freedoms in HOAs.

But piecemeal HUD and case law decisions are a slow, inefficient path to justice for millions of Americans who now reside in association-governed communities. And in many parts of the country, it’s next to impossible to avoid owning or renting a home ruled by an HOA.

At some point, one or more of Civil Rights and Property Rights think tanks and advocacy groups need to recognize the simple truth.

All Americans should be entitled to equal protection under the 14th amendment of the U.S. Constitution. And I’m referring to the entire Bill of Rights and every Constitutional amendment, not just a select few.


First, we must change the prevalent, but misguided notion that HOAs are merely ‘contractual communities,’ a mindset that is promoted and nurtured by the industry that builds and sells HOA-governed communities.

At its root, this political argument is all about the money.

What’s truly needed, in my opinion, is one sweeping SCOTUS ruling that clarifies that U.S. Constitutional constraints and protections apply to all Americans, no matter where they choose to live or own property.

I hope I and all of my readers live to see the day when this happens.


Additional References:

U.S. Supreme Court Rules Unanimously That States Cannot Impose Excessive Fines
Ruling Requires Cities and States—Not Just the Federal Government— To Abide by the Eighth Amendment’s Excessive Fines Clause
Press Release: February 20, 2019, John Kramer, Institute for Justice, Vice President for Communications

Supreme Court limits power of states and localities to impose fines, seize property By Robert Barnes, Washington Post, February 20 at 4:32 PM (Videos)

Supreme Court strikes blow against states that raise revenue by hefty fines, forfeitures Richard Wolf, USA TODAY Published 10:17 a.m. ET Feb. 20, 2019 | Updated 3:26 p.m. ET Feb. 20, 2019

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