The Constitution Matters In Texas, But Not As Much As Money

When Andrew Fleischman finished writing his Fault Lines post about the Texas Supreme Court’s decision in Texas v. One 2004 Lincoln Navigator, he was still shaking his head.  “Why,” he rhetorically asked, would they have gone through all that effort to justify endorsing a constitutional violation?

The decision is one of those sophist’s arguments that reflect the sort of hypertechnical legal reasoning that makes people think “the law is a ass.”  It’s not that the rationale is logically wrong, but that, given the rationale for the opposite result is similarly logical, it reflects a policy choices between two rational positions.  And that’s what makes the decision so hard to fathom.

Why, one has to ask, would the Supreme Court of Texas make the policy choice to turn a blind eye to a violation of the Constitution for the purpose of allowing forfeiture of unlawfully seized assets.  After all, of the many assertions of authority by the government, few are more hated, more easily abused, more subject to error and more onerous for an innocent owner to fight than civil asset forfeiture.

Miguel Herrera was illegally stopped, and so evidence of drugs found in his car was suppressed and the charges against him dismissed. But they wouldn’t give him back his car. Before you think, well, he deserved it, because he had drugs, consider that this decision applies to everyone, not just the guilty.

The issue came before the Texas Supreme Court, which isn’t exactly what it seems. Texas, being Texas, has two “supreme courts,” one for civil cases and the other, the Texas Court of Criminal Appeals, for criminal. This went to the civil side because it involved civil forfeiture. Why? Because someone was smart enough to take a criminal forfeiture, call it “civil,” create a fantasy where the action was government against an inanimate object for offending the sovereign, and thus remove it from the protections that would otherwise apply. Tricky move.

And that’s where the Texas Supreme Court’s analysis happens:

Sure, the Court ruled, you can stop the State from using your car as evidence against you in a criminal trial. But this here case is civil, so Texas gets to keep the stuff it stole.

This argument is premised mostly on the idea of deterrence. While the exclusionary rule was originally designed to prevent the government from using wrongfully obtained goods as a way to provide a remedy for 4th Amendment violations, in recent years the United States Supreme Court has taken to arguing that the sole value of the rule is to prevent future violations of the law by the government. And while the United States Supreme Court has held that the exclusionary rule applies to criminal forfeitures (in a case dealing with a 1958 Plymouth), here, the Texas Supreme Court thinks that more recent rulings have eroded that holding.

The first step in the mental gymnastics is to adopt the word “civil” as if it was real.  Most courts will characterize it as “quasi-criminal,” rather than just civil, because forfeiture is punitive. Texas didn’t bother. There were opinions calling it civil, and that was good enough.  From there, a little history behind the remedy of exclusion helps.

Exclusion is the remedy for a violation of the Fourth Amendment. when law enforcement unreasonably searches and seizes without warrant or probable cause. Why? To create a disincentive for cops to violate your rights as protected by the Fourth Amendment.

In contrast, no lesser jurist than Benjamin Cardozo was against this remedy, famously opining in 1926, “The criminal is to go free because the constable has blundered.” He lost that doctrinal battle, because “blundered” was only part of the problem. Why reward blunderers by excusing their constitutional violations? Why let deliberate violators pretend it was just some mere blunder? Neither of these can be answered in a way that either encourages respect for the Fourth Amendment, protects people’s constitutional rights, or deters cops from doing as they please, regardless of the Constitution.

But it’s that last one, deterrence, that has become the focus of the rule.

Texas declares, without explaining, that the deterrence value of keeping the state from keeping forfeited goods is “marginal at best.”

To be fair, the court quotes snippets of other decisions in support of its “marginal at best” holding.

Thus, “local law enforcement official[s] [are] already ‘punished’ by the exclusion of [illegally obtained] evidence in [both] state . . . [and] federal criminal trial[s], . . . so that the entire criminal enforcement process, which is the concern and duty of these officers, is frustrated.” See Janis, 428 U.S. at 448. “If the exclusionary rule is the ‘strong medicine’ that its proponents claim it to be, then its use in [the criminal-law context] must be assumed to be a substantial and efficient deterrent.” Id. at 453. Given this “substantial and efficient deterrent,” any additional deterrence provided by also applying the rule in the civil-forfeiture context is marginal and “surely does not outweigh the cost to society of extending the rule to that [context].” See id. at 453–54.

By cherry-picking some language that extols the effectiveness of suppression in the criminal context, an iffy proposition given that if it was such an effective remedy, police wouldn’t still be violating the Fourth Amendment regularly, giving rise to rulings such as happened in Herrera’s criminal case, the court indulges in sophistry: if the exclusionary rule is a “substantial and efficient deterrent” in criminal prosecutions, then its effectiveness is “surely” marginal in forfeiture cases. It doesn’t follow, and adding in the word “surely” doesn’t make the logical leap any shorter.

In establishing a rule that informs police that they may suffer the remedy of exclusion in criminal cases for constitutional violations, but not in forfeiture cases, the court creates an incentive to ignore the Fourth Amendment when cops want to seize assets for forfeiture. It’s not that the Fourth Amendment doesn’t apply, but that there is no remedy for its violation. A right without a remedy is no right at all.  And the Texas Supreme Court went to great lengths to perform the gymnastics necessary to achieve an excuse for keeping the cash when the cops violate the Constitution.

So when Andrew Fleischman asks why, why would a court strain reason to the breaking point to excuse a constitutional violation, to eliminate a remedy, and particularly when the very cause of action itself is so susceptible to abuse that its existence relies on the legal fallacy that the res offends the sovereign, there is only one answer.  And it’s a really bad, bordering on cynical answer. The Texas Supreme Court chose the policy of keeping the loot over supporting the Constitution.

And if this wasn’t sad enough, Justice Don Willett, who is one of the handful of judges who has engaged with the public via social media, demonstrated a sense of humor, concurred in this decision, not because he embraces cops violating the Constitution at will as long as it’s only about grabbing money, but because of the Texas quirk of two separate Supreme Courts.

Indeed, criminal law is not only not incidental to the approach; it is the approach. In my view, when we are presented with two paths that diverge in substance—one more civil, the other more criminal—we ought not take the path less traveled by this Court. I therefore join the Court’s opinion because it respects the constitutional (if sometimes confounding) divide between us and the Court of Criminal Appeals.

Without necessarily adopting the sophistry of the majority, this may be the most bitter opinion of all. Constitution? Not my job, as I’m a civil judge. Justice Willett favored respecting the constitutional divide between courts over the constitutional rights of citizens. There is no good explanation here, so cynicism is all that’s left. It’s just about the money.

10 thoughts on “The Constitution Matters In Texas, But Not As Much As Money

  1. KP

    Surely a civil Court is for civilians, and Govts should be excluded from using them at all.

    They write the rules that define criminals and criminal behaviour, so they should only be allowd to play in a criminal Court.

    I’m glad I’m not a lawyer, I don’t know how your head doesn’t explode sometimes Mr SHG.

  2. AR3

    He who has the gold…… is probably wearing or protected by a badge.

    When we set up a system that makes a constitutional violation profitable…… why should we be all that shocked that the profiteers will move in what they perceive as their best interest despite being so arrogantly wrong.

    Only two ways I can think of for changing this…… political change, or the Supremes stomp down on it (as they did in the criminal context of the exclusionary rule in Mapp v. OH…. overruling their Wolf v. CO stance that the States will surely do the right thing).

    Sigh. On-On.

    1. SHG Post author

      Only two ways I can think of for changing this…

      So no one loses sleep tonight wondering what AR3 can think of. You’re too kind, if slightly obvious.

  3. Sabine

    Maybe the cops in Texas want to borrow a few card readers from their neighbors in Oklahoma. More lucrative that way.

      1. Patrick Maupin

        Of course, the bad news from the article you linked is “More than 25 states use the card-reading devices. Their use has been upheld by courts.”

          1. Patrick Maupin

            The governor really, really wants the reader to believe it’s true, which, of course, gets back to your point about what happens when the hoopla dies down. “Everybody else does it” can become self-fulfilling, even if the only other entity doing it right now is Navajo County in Arizona.

            If the figures I have read are right, the burning question is why Navajo County antes up 5.7% but OK antes up 7.7%. Is it because the Navajos are sharp negotiators, because there was a good discount for being an early customer, or because capturing an entire state requires sloshing a lot more graft around?

  4. Mike

    Maybe not germane to your post, but isn’t the Honorable Judge Willett being considered as a possible candidate for the US Supreme Court?

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