The South Carolina Supreme Court upheld the state’s civil forfeiture law in an order issued Sept. 14 but acknowledged the state Legislature could decide to change the law to make it more fair to those who’ve had possessions reserved by law enforcement.
The decision comes more than 20 months after the court heard oral arguments in a case that presented a constitutional challenge to the state law. The court ruled the case did not meet the high bar to strike down the state law.
“Several states have amended their statutory schemes to impose more stringent requirements on the government; however, the fact that certain states have legislatively altered their civil forfeiture laws provides no support for judicially changing ours,” the order said. “Legislative alteration might be a good thing, but we are not called upon to decide whether a change in the law would be wise.”
The case originated out of the 15th Circuit Solicitor’s Office in Horry County following the seizure of nearly $20,000 in 2017 from Travis Lee Green, a convicted Myrtle Beach drug dealer. Fifteenth Circuit Court Judge Stephen John placed a stay on all forfeiture cases in the circuit, asked for arguments for and against the constitutionality of the state’s law and then ruled the state law violated both the state and US constitutions.
The solicitor’s office appealed that ruling to the Supreme Court, which reversed the lower court’s ruling and remanded the case back to the circuit court for a jury trial on the merits of Green’s forfeiture case.
The challenge drew attention from state and national advocates against forfeiture laws, including the American Civil Liberties Union, SC Appleseed Legal Justice Center, the Southern Poverty Law Center and the National Police Accountability Project. Attorney General Alan Wilson wrote an argument in favor of the solicitor and the state’s existing law.
Robert Frommer, an attorney with the Institute for Justice, a national constitutional justice advocacy law firm that presented arguments in the case, said he was disappointed with the ruling and was evaluating whether to appeal the decision to the US Supreme Court.
“Today’s decision is very disappointing not just for Travis but for all South Carolinians,” Frommer said. “Both the majority and dissent recognize that legislative reform would be appropriate here and we call on the Legislature to do just that.”
The Post and Courier reached out for comments from 15th Circuit Solicitor Jimmy Richardson and the Battle Law Firm, which argued the case.
As part of its order, the court did modify the state’s current test of proportionality to “expressly require an inquiry into whether a forfeiture is grossly disproportionate to the underlying criminal offense.” That change came after the 2019 US Supreme Court decision in Timbs vs. Indiana that ruled the US Constitution’s clause against excessive fines also applied to states.
The tenor of the court’s decision urged careful scrutiny of the merits of forfeiture cases by circuit courts while it left the current framework of the law unchanged.
Four justices agreed the circuit court decision should be overturned. Chief Justice Don Beatty agreed with the majority on the constitutionality of the law but dissented on due process, saying the civil court process in forfeiture cases unduly places the burden of proof on a property owner. Justice George James wrote the majority opinion on the case.
“The current statutory scheme places an undue burden on property owners, many of whom are never charged with a crime, to prove they are not guilty of any wrongdoing in order to reclaim their property,” Beatty wrote in his dissent.
The order came more than five years after a Post and Courier investigation into civil asset forfeiture and three years after an investigation by The Greenville News spurred a fresh look by the General Assembly into the law and led some police departments across the state to proactively change policies to limit the use of forfeiture.
A legislative task force convened to study the law and present changes, and a bill that initially held widespread support among state Representatives failed to pass the House.
The order’s conclusion left it up to the General Assembly to make any further changes.
“Of course, if the General Assembly believes our state’s civil asset forfeiture laws should be amended to address the potential for abuse or be updated to align more closely with federal law, it may do so,” it said.
Follow Nathaniel Cary on Twitter at @nathanielcary
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