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Review — Forfeiture — “Excessive Fines Clause”

State v. Kirk J. Bergquist, 2002 WI App 39
For Berhquist: Steven H. Gibbs

Issue: Whether the state’s refusal to return guns valued at between $5000 and $7,150, following conviction for disorderly conduct, violated the Eighth Amendment Excessive Fines Clause.


¶8. Although the term “forfeiture” does not appear in this statute, our supreme court has recognized that the result of refusing to return a weapon to a person who committed a crime using the weapon is a forfeiture. See In re Return of Property in State v. Perez, 2001 WI 79, 61, 244 Wis. 2d 582, 628 N.W.2d 820. …

¶9. We are convinced that even though Wis. Stat. § 968.20(1m)(b) does not contain the word “forfeiture,” it prescribes one. The determinative issue, therefore, is whether the statute prescribes a forfeiture subject to the Excessive Fines Clause.

¶10. The Excessive Fines Clause limits the government’s power to extract payments, whether in cash or in kind, as punishment for an offense. Austin v. United States, 509 U.S. 602, 609-10 (1993). …

¶11. Applying the Austin analysis here, we conclude that the Excessive Fines Clause applies to Wis. Stat. § 968.20(1m)(b). In State v. Williams, 148 Wis. 2d 852, 858, 436 N.W.2d 924 (Ct. App. 1989), we recognized that § 968.20(1m)(b) satisfies two legitimate police power objectives: deterrence and preventing the same firearms from being used again in criminal activities. In Perez, our supreme court agreed with this assessment…”

The trial court concluded that forfeiture of the guns would be grossly disproportionate; the state doesn’t contest this analysis, and the court of appeals affirms on that basis. ¶¶13-14.

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