Last week, the Supreme Court scored a victory for liberty in Nelson v. Colorado. Until last Wednesday, a Colorado defendant exonerated of a criminal conviction had to prove their own innocence to retrieve money they paid to the state because of their invalid convictions. This should strike most people as contrary to due process, and seven Supreme Court justices agreed. We had written an amicus brief urging the Court to hold that the government can’t simply keep other people’s money after the state has lost its sole justification for taking the money in the first place.
We can hope the Court’s holding will echo. In particular, this case could reinvigorate the fight against civil asset forfeiture. Across the nation, police seize the property of innocents because it has a connection–often tenuous–to criminal activity. Typically, these people must prove their own innocence to get back their property. For example, in 2014, Zaher El-Ali had sold a Silverado pick-up. Since the buyer was making payments, El-Ali still held title to the truck. When the police arrested the buyer for cocaine possession while he was driving the truck, they seized the vehicle. El-Ali could only get it back if he proved that he didn’t know it was being used illegally. Otherwise, the police would keep the truck or sell it off. To date, the Supreme Court has mostly sanctioned this “policing for profit.”
The decision in Nelson, though, might signal a shift. The Court, for instance, made this unequivocal statement: “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” By extension, this would logic would apply to Mr. El-Ali and many other property owners when the police steal their property despite no wrongdoing. After all, plunder with a badge is still plunder.
The sole dissenter, Justice Thomas, also addressed an important issue, even if he reached the wrong result. According to Justice Thomas, exonerees don’t have a property interest in money taken from them because of a conviction, even if the conviction turns out later to be invalid. Once that property leaves the defendant’s hands, Justice Thomas said, they’ve lost any ownership interest in it.
This bizarre and unjust conclusion stems from an old canard that has long hounded woebegone property owners. The basic notion is this: state law defines property, so the state can whisk away your stuff by deeming it to no longer be property under the law. This parlor-trick approach to property rights is not only unjust but comically circular: the state can’t take away your property without due process of law, but they can take it away by deciding that it’s no longer property. Got that? Good. Now please return to your seats and remain buckled for the remainder of the flight.
The majority opinion implicitly rejects Justice Thomas’s views on property rights. The Court, however, should have addressed the issue head-on by embracing the truth that property rights are fundamental and transcend the whims of state government. But then, that may have been too much to ask for. As it stands, liberty had its way in Nelson v. Colorado, and that’s cause enough for celebration.