November 2016 • Volume 104 • Number 11 • Page 12
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Illinois Appellate Court overturns forfeiture on Eighth Amendment grounds
The Illinois fifth appellate district invalidated seizure by law enforcement of a Harley Davidson trike, basing its ruling on the Eighth Amendment's excessive fines clause.
Civil forfeiture, the process of the state seizing assets used in the commission of, or related to a crime, has been a topic of public debate in recent years. The Chicago Reader recently published an article about the use of civil forfeiture in Chicago, noting that civil forfeiture generates billions of revenue every year for law enforcement agencies across the country. See http://www.chicagoreader.com/chicago/police-department-civil-forfeiture-investigation/Content?oid=23728922.
In many situations, a person who is not being charged with a crime is faced with the risk of losing assets to forfeiture laws. In some situations, individuals can recover their property. A recent ruling from the Illinois fifth appellate district has taken a new approach to civil forfeiture by invalidating a seizure based on the Eighth Amendment's excessive fines clause.
In People v. 2010 Harley-Davidson, 2016 IL App (5th) 150035, the fifth district held that the civil forfeiture of a $35,000 Harley-Davidson trike was a violation of the Eighth Amendment. The vehicle's owner, Petra Henderson, was a passenger when her husband, Mark, was arrested and charged with aggravated DUI while driving the vehicle.
Petra raised two issues on appeal: 1) whether she had consented to the use of the motorcycle and 2) whether the forfeiture violated the excessive fines clause. If an individual can demonstrate that a vehicle was used without the knowledge and consent of the owner, then it may not be subject to forfeiture.
In this case, the fifth district found that the weight of the evidence demonstrated that Petra had consented to Mark driving the vehicle. Most observers, however, find the Eight Amendment analysis to be the most compelling aspect of the opinion.
DuPage County attorney Donald J. Ramsell says that the fifth district's ruling is a "breakthrough case" and, to his knowledge, the first in Illinois to find a forfeiture excessive under the Eighth Amendment's excessive fine clause. Ramsell says that there is no "innocent owner defense" to a forfeiture action - even the owner of a stolen car may risk forfeiture if that car is used to commit a crime. "This case spells out that even if the state proves up its statutory right to forfeiture, it can be overridden by the fact that the fine itself is excessive," he says.
On the other hand, David J. Robinson, an Illinois Appellate Prosecutor, says the case is "unique." He notes that while there have been some opinions from the fourth district that found a forfeiture excessive, none were decided on an Eighth Amendment basis. While Robinson doesn't find the result surprising, he is surprised by the court's rationale.
A three-prong forfeiture test
The court's opinion lays out a three-prong test for determining whether a forfeiture is constitutionally excessive. The test, adopted by the Illinois Supreme Court, looks at "(i)the inherent gravity of the offense compared with the harshness of the penalty; (ii) whether the property was an integral part of the commission of the crime; and (iii) whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use." Id., ¶ 28.
As to the first prong, the court stated that driving erratically, as well as under the influence, poses a serious public safety concern. What's more, Mark's license was revoked at the time that he was arrested. "Illinois courts have long recognized that driving with a revoked license is 'one of the most serious driving offenses one can commit absent bodily injury when the underlying revocation stems from a DUI conviction.'" Id., ¶ 30.
However, the court also pointed out that Petra, while culpable for allowing Mark to drive, was not the person who committed the crime. "We also believe that in nearly all cases, the acquiescing owner will be less culpable than the actual offender." Id., ¶ 31.
Turning to the harshness of the penalty, the court found that the seizure of a $35,000 vehicle was "particularly harsh" even though there was no evidence in the record concerning Petra's overall financial situation. Id., ¶ 35. Given the value of her vehicle and the fact that she did not commit the offense, the court found that the first prong of the test weighed in her favor.
As to the second and third prongs, the court noted that Petra's vehicle was clearly central to Mark's offense of driving under the influence, which satisfies the second prong of the test. Turning to the third factor, the court stated that whether the criminal conduct involving the motorcycle was pervasive in time and space "concerns more than simply how long and how far Mark drove the motorcycle." Id., ¶ 39. The court stated that the third factor also involves an inquiry into whether the property "played an extensive or pervasive role in the commission of the crime." Id. But, because that same factor satisfied the second prong of the test, the court declined to find that aspect of the third factor to be relevant to the case.
Instead, the court noted that Mark drove the vehicle about 12 blocks, which likely only took a few minutes. As such, the third factor weighed slightly against forfeiture. In sum, the court found that the harshness of the penalty "was grossly disproportionate to [Petra's] conduct," making the penalty a violation of the Eight Amendment. Id., ¶ 41.
Robinson says that the appellate prosecutor's office has filed a petition for rehearing in this case. For more on the Harley Davidson case, see "Wanna drive drunk? Borrow a Bentley" in the September 29 Illinois Times. For more on civil forfeiture generally, see Hon. Anthony W. Vaupel, "Civil Asset Forfeitures: A Step-by-Step Guide," in last month's Journal.