And Then There Were Four

Supreme CourtThe Supreme Court made a huge ruling on February 20, 2019 that likely went unnoticed by most. However, if you are currently taking Constitutional Law II or preparing for the bar examination this summer, listen up.

The provisions contained in the Bill of Rights are applicable only to the Federal government and not to State governments Barron v. City of Baltimore, 32 U.S. 243, 244 (1833). However, as the years have gone by the Supreme Court has incorporated the majority of the first eight amendments and made them applicable to the states through the Due Process Clause of the 14th Amendment. Not including the unincorporated 9th and 10th Amendments, only five other provisions have remained unincorporated; the 3rd Amendment regarding quartering of soldiers, the 5th Amendment right to a Grand Jury, the 7th Amendment right to a jury trial in a civil case where the amount in controversy is above $20.00, and up until this recent ruling, the 8th Amendment’s clause regarding excessive fines (the provisions against cruel and unusual punishment and excessive bail have been incorporated, this does not however guarantee a right to bail).

It’s been nearly a decade since the Supreme Court last incorporated one of these enumerated rights. See McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010) (holding, the 2nd Amendment right to bear arms applicable to the states through the Due Process clause of the 14th Amendment).  Before McDonald, it has been nearly forty years. This Supreme Court opinion, written by Justice Ginsberg, now clearly holds that excessive fines are incorporated by the Due Process Clause of the 14th Amendment and are applicable against the states. 7 Justices joined the majority opinion, while Justice Thomas concurred only in the judgment, making an argument he has made many times before when substantive Due Process was at issue, that it is his belief these rights should be incorporated through the Privileges and Immunities clause of the 14th Amendment and not the Due Process clause. Justice Gorsuch also filed a concurring opinion with a similar rationale to that of Justice Thomas.

So, what does all this mean? Well for law enforcement the implications could be monumental. The case involved civil forfeiture of a $42,000.00 Land Rover following an arrest for possession with intent to distribute heroin. In her opinion, which you can read here Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (U.S. Feb. 20, 2019), Justice Ginsberg found the fact that the car’s value was 4 times the amount of the fine imposed for the actual crime itself was excessive. The opinion however does not express a bright line rule for what is considered excessive. In many ways the Supreme Court seemed to be recycling the old adage of Justice Stewart used when deciding if a piece of pornography was obscene, “I know it when I see it” Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964). Assuming the proceeds from these civil forfeitures are quite important to the budgets of police departments, it becomes easy to see why this decision could have wide reaching implications.

Law students should take an important point away as to why this is significant. While there is a plethora of fantastic study material and aids in your law library that can be crucial in understanding any given subject, they are not perfect. The law constantly evolves and changes. Many times, as in this instance, the evolution happens before a new edition of your favorite study guide can be amended to include the most recent judicial determinations. So, while these guides are essential to any study plan, they are not always accurate. Listen to your professor and monitor changes in the law. The fact that the study guide you used says one thing will not change the fact that the answer you put, may now, simply be wrong.

~by Matt B. King

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