What is it about Ferraris? Cops love them. Too much. Sure, they’re “supercars,” and very expensive, though the relative value of a Ferrari to its owner is likely far less than a Toyota Corolla to a working guy without a dime in the bank who needs that car to get to work to feed his kids. And it’s not like they’re really rare, especially not on Long Island.
None of this matters to James B. Ferrari, who was driving his Ferrari Modena coupe at speeds up to 100 mph when he was nabbed for drunk driving.
The Second Circuit US Court of Appeals upheld the government’s confiscation of James B. Ferrari’s Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.
A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state’s drunk driving statute. Ferrari’s attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond — at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime. Ferrari’s attorney insisted that it was the county’s burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.
If this seems confusing, that’s because it is, reflecting numerous steps down the slippery slope before getting to the point where the Second Circuit gives the Ferrari a push. James (because calling him Ferrari is more than a reasonable person can take) was arrested for drunk driving, making the car he was driving the “instrumentality of the crime.” Way back, when forfeiture was sold to the public as the means of “taking the profit out of crime,” this notion would have been absurd. After all, the law abhors a forfeiture. Or, at least, it used to.
So the rule justified by stripping a criminal of the proceeds of the crime shifted ever so slightly to the “instrumentality,” the means by which the criminal committed the crime. After all, if a guy robs with a gun, he shouldn’t be allowed to have his gun back, right? Once the public became inured to the concept of forfeiture in the first place, adding to the categories was easy.
Simultaneously, Mothers Against Drunk Driving began its jihad, persuading people that it kills and it’s tantamount to murdering children. And, indeed, it can be, though it’s the sort of crime that anyone, including an otherwise wonderful, law-abiding citizen, can commit, and which results in harm once in a million times. But when it does, it can be devastating, and MADD won the battle for our hearts, minds and law.
So local laws were enacted permitting the forfeiture of automobiles for drunk driving. This was a radical proposition at first, but as the evils of drunk driving were broadly accepted, the public willingly accepted that no amount of punishment, of pain, was too much for these child killers. Lose the car? Of course. And their children’s cars too, if they could.
But why pre-conviction? The idea was that if the government didn’t nab the property up front, the criminal could spend it, hide it, waste it, conceal it, and defeat the entire purpose of forfeiture. Plus, he could use the Ferrari again.
In this case, James put up a bond for the value of the car. Or, as some wag might put it, to bail Ferrari’s Ferrari out of car jail. As an aside, when cars are seized, and provided they aren’t taken on joy rides by cops or prosecutors, they sit in impound lots. Dogs like them. Other critters like them.
Cars, however, do not like to sit unattended, unloved and unused, and deteriorate quickly. By the time the case was over, the Ferrari would only be a shell of itself. The irony is that the value to be obtained from auctioning off the car later would be minimal, as the car would be trashed by the time it was sold. And no, the county isn’t liable for spoliation if they have to give it back. Just because.
But the court refused to return the Ferrari, and he obtained a judgment for the $95,000 value of the car. The Second Circuit, by Judge Debra Ann Livingston, reversed.
A three-judge appellate panel overturned that judgment in last week’s decision, pointing to Ferrari’s long and sordid history of serious driving offenses, including past DUIs. The court also rejected the notion that a $95,000 penalty violated the Eighth Amendment prohibition on excessive fines by citing New York’s highest court, which held “it is difficult to imagine that forfeiture of an automobile for such a crime could ever be excessive.”
“Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose,” Judge Debra Ann Livingston wrote for the Second Circuit.
Before you shed a tear for the unfairness of the pre-conviction deprivation or the ridiculously disproportionate punishment of losing a Ferrari rather than, say, a Yugo, bear in mind that this is what you get from decades of effort to persuade the public to take extreme punitive action to prevent every tragedy, and how its tentacles expand, step by step, until it all seems so appropriate and, well, normal.
As for the sad tears, save them for the working guy whose Corolla means his children won’t have dinner tonight because he had a beer too many, was the wrong color and lost the job upon which he and his family depended. As for James Ferrari, he took a very hard hit, but at least he won’t miss a meal as a result of this loss.