Judge Thapar shows conservative judges protect the ‘little guy’
Quin Hillyer
Judge Amul Thapar of the United States Sixth Circuit Court of Appeals last week wrote an opinion showing again that conservative jurisprudence is often likely to favor the “ordinary person” and the “human element.”
That message is the recurrent theme in a recent book by Thapar called The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him. And it was on display in his concurring opinion in Ingram v. County of Wayne, released Aug. 31. In it, he went beyond two fellow judges in denouncing the abusive use of a law-enforcement tool called “asset forfeiture,” by which authorities seize vehicles (in this case) or other property used by people suspected of committing crimes.
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In this case, all three judges agreed that Wayne County, Michigan, appears to be seizing cars without providing the car owners anywhere near adequate opportunity to contest the seizure or recover the vehicles in a timely manner. Thapar, in going further than the other two judges, emphatically wrote that “the County’s scheme is simply a money-making venture — one most often used to extort money from those who can least afford it.”
The case involved three separate people victimized. Detroit police seized vehicles even though the vehicles themselves had not been used in the course of a crime and even though the vehicle owners themselves were not the actual perpetrators — even of a crime suspected of being committed by others. Melisa Ingram, for example, lent her car to her then-boyfriend, who in turn was pulled over by cops who suspected he was driving around to procure prostitutes. Because they had no proof, they let the boyfriend go without charges — but they seized the car anyway!
County officials would not let Ingram get her car back unless she either paid $1,355 in fines and fees or waited four full months to see a judge to argue that the car never should have been seized in the first place. As she needed the car for her own work as an insurance adjustor, she paid the money she never should have owed to recover the car that never should have been taken. The fees and fines, by the way, pushed her into personal bankruptcy.
Then it happened again, this time because the boyfriend went to a barbeque where drugs and sex work were suspected (again, only suspected) of being present. This time the cost to recover her car would have been $1,800, which she could not afford. This time, she never was able to reclaim her vehicle.
Two other cases were consolidated with Ingram’s, both of them similarly outrageous.
The judges unanimously blew the whistle on these police abuses, but only insofar as the county afforded no realistically timely hearing in which the car owners could contest the seizure. The court ordered Wayne County henceforth to provide preliminary hearings within at least two weeks of the forfeiture.
Thapar wrote that he would have required the county to provide a hearing much more quickly, within 48 hours. The more important distinction, though, was in the reasoning the judges used. Thapar said the case precedent the other judges applied was itself flawed. It “harms ordinary people. It prevents them from helping themselves.” The precedent provides “squishy standards” that “don’t provide sufficient guidance for anyone” because the judges arrived at the two-week rule as part of a subjective “balancing test” rather than a non-negotiable rule.
This was wrong, Thapar wrote: “Time and again,” he noted, “the Supreme Court has disregarded balancing tests when history and tradition supply a more rights-protective framework.” Thapar arrived at his proposed 48-hour-hearing rule — much more convenient for the car owner — as a “bright-line rule to protect liberty,” based on the Due Process Clause of the 14
th
Amendment.
In the Constitution and in American tradition, Thapar wrote, “property and liberty always have been intertwined,” and “speedy process [always] was an important protection for both rights.” Then the judge provided a concise but thorough history lesson evincing that assertion. Better yet, he then explained why the right is important in practical, not just theoretical, terms.
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“Cars are central to the way we live,” Thapar wrote. “So people whose cars are taken will want a hearing right away, not in two weeks. Indeed, for many people Wayne County seizes cars from, it’s their only way of transportation.” And, “simply put, if the government wants to take away a piece of property that is essential to the way most of us live, it should provide a hearing within 48 hours,” which is the same time frame afforded those arrested for an actual crime.
Much more can and should be said about how “asset forfeiture” is practiced across the country. For now, though, Thapar’s eloquent concurrence sets a standard: The Constitution provides firm rights, not balancing options, against government overreach. Those rights have practical effects that safeguard liberty and property not just for the rich and famous but for those whose only powers lie in those constitutional protections.