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SUPREME COURT OF THE UNITED STATES

No. 92-6073

RICHARD LYLE AUSTIN, PETITIONER v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[June 28, 1993]

Justice Blackmun delivered the opinion of the Court.

In this case, we are asked to decide whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U. S. C. §§881(a)(4) and (a)(7). We hold that it does and therefore remand the case for consideration of the question whether the forfeiture at issue here was excessive.

On August 2, 1990, petitioner Richard Lyle Austin was indicted on four counts of violating South Dakota's drug laws. Austin ultimately pleaded guilty to one count of possessing cocaine with intent to distribute and was sentenced by the state court to seven years' imprison-ment. On September 7, the United States filed an in rem action in the United States District Court for the District of South Dakota seeking forfeiture of Austin's mobile home and auto body shop under 21 U. S. C. §§881(a)(4) and (a)(7). Austin filed a claim and an answer to the complaint.

On February 4, 1991, the United States made a motion, supported by an affidavit from Sioux Falls Police Officer Donald Satterlee, for summary judgment. According to Satterlee's affidavit, Austin met Keith Engebretson at Austin's body shop on June 13, 1990, and agreed to sell cocaine to Engebretson. Austin left the shop, went to his mobile home, and returned to the shop with two grams of cocaine which he sold to Engebretson. State authorities executed a search warrant on the body shop and mobile home the following day. They discovered small amounts of marijuana and cocaine, a .22 caliber revolver, drug paraphernalia, and approximately $4,700 in cash. App. 13. In opposing summary judgment, Austin argued that forfeiture of the properties would violate the Eighth Amendment. The District Court rejected this argument and entered summary judgment for the United States. App. 19.

The United States Court of Appeals for the Eighth Circuit "reluctantly agree[d] with the government" and affirmed. United States v. One Parcel of Property, 964 F. 2d 814, 817 (1992). Although it thought that "the principle of proportionality should be applied in civil actions that result in harsh penalties," ibid., and that the Government was "exacting too high a penalty in relation to the offense committed," id., at 818, the court felt constrained from holding the forfeiture unconstitutional. It cited this Court's decision in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663 (1974), for the proposition that, when the Government is proceeding against property in rem, the guilt or innocence of the property's owner "is constitutionally irrelevant." 964 F. 2d, at 817. It then reasoned: "We are constrained to agree with the Ninth Circuit that `[i]f the constitution allows in rem forfeiture to be visited upon innocent owners . . . the constitution hardly requires proportionality review of forfeitures.'" Ibid., quoting United States v. Tax Lot 1500, 861 F. 2d 232, 234 (CA9 1988), cert. denied sub nom. Jaffee v. United States, 493 U. S. 954 (1989).

We granted certiorari, 506 U. S. ___ (1993), to resolve an apparent conflict with the Court of Appeals for the Second Circuit over the applicability of the Eighth Amendment to in rem civil forfeitures. See United States v. Certain Real Property, 954 F. 2d 29, 35, 38–39, cert. denied, 506 U. S. ___ (1992).

Austin contends that the Eighth Amendment's Excessive Fines Clause applies to in rem civil forfeiture proceedings. See Brief for Petitioner 10, 19, 23. We have had occasion to consider this Clause only once before. In Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U. S. 257 (1989), we held that the Excessive Fines Clause does not limit the award of punitive damages to a private party in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages. Id., at 264. The Court's opinion and Justice O'Connor's opinion, concurring in part and dissenting in part, reviewed in some detail the history of the Excessive Fines Clause. See id., at 264–268, 286–297. The Court concluded that both the Eighth Amendment and §10 of the English Bill of Rights of 1689, from which it derives, were intended to prevent the government from abusing its power to punish, see id., at 266–267, and therefore "that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government," id., at 268.

We found it unnecessary to decide in Browning-Ferris whether the Excessive Fines Clause applies only to criminal cases. Id., at 263. The United States now argues that

"any claim that the government's conduct in a civil proceeding is limited by the Eighth Amendment generally, or by the Excessive Fines Clause in particular, must fail unless the challenged governmental action, despite its label, would have been recognized as a criminal punishment at the time the Eighth Amendment was adopted." Brief for United States 16 (emphasis added).

It further suggests that the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be considered criminal under Kennedy v. Mendoza-Martinez, 372 U. S. 144 (1963), and United States v. Ward, 448 U. S. 242 (1980). Brief for United States 26–27. We disagree.

Some provisions of the Bill of Rights are expressly limited to criminal cases. The Fifth Amendment's Self-Incrimination Clause, for example, provides: "No person . . . shall be compelled in any criminal case to be a witness against himself." The protections provided by the Sixth Amendment are explicitly confined to "criminal prosecutions." See generally Ward, 448 U. S., at 248. The text of the Eighth Amendment includes no similar limitation. See n. 2, supra.

Nor does the history of the Eighth Amendment require such a limitation. Justice O'Connor noted in Browning-Ferris: "Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment. After deciding to confine the benefits of the Self-Incrimination Clause of the Fifth Amendment to criminal proceedings, the Framers turned their attention to the Eighth Amendment. There were no proposals to limit that Amendment to criminal proceedings . . . ." 492 U. S., at 294. Section 10 of the English Bill of Rights of 1689 is not expressly limited to criminal cases either. The original draft of §10 as introduced in the House of Commons did contain such a restriction, but only with respect to the bail clause: "The requiring excessive Bail of Persons committed in criminal Cases, and imposing excessive Fines, and illegal Punishments, to be prevented." 10 H. C. Jour. 17 (1688–1689). The absence of any similar restriction in the other two clauses suggests that they were not limited to criminal cases. In the final version, even the reference to criminal cases in the bail clause was omitted. See 1 W. & M., 2d Sess., ch. 2, 3 Stat. at Large 440, 441 (1689) ("That excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted"); see also L. Schwoerer, The Declaration of Rights, 1689, p. 88 (1981) ("But article 10 contains no reference to `criminal cases' and, thus, would seem to apply . . . to all cases").

The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government's power to punish. See Browning-Ferris, 492 U. S., at 266–267, 275. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the Government's power to extract payments, whether in cash or in kind, "as punishment for some offense." Id., at 265 (emphasis added). "The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law." United States v. Halper, 490 U. S. 435, 447–448 (1989). "It is commonly understood that civil proceedings may advance punitive and remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties." Id., at 447. See also United States ex rel. Marcus v. Hess, 317 U. S. 537, 554 (1943) (Frankfurter, J., concurring). Thus, the question is not, as the United States would have it, whether forfeiture under §§881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.

In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose. We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish. We said in Halper that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." 490 U. S., at 448. We turn, then, to consider whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment and whether forfeiture under §§881(a)(4) and (a)(7) should be so understood today.

Three kinds of forfeiture were established in England at the time the Eighth Amendment was ratified in the United States: deodand, forfeiture upon conviction for a felony or treason, and statutory forfeiture. See Calero-Toledo, 416 U. S., at 680–683. Each was understood, at least in part, as imposing punishment.

"At common law the value of an inanimate object directly or indirectly causing the accidental death of a King's subject was forfeited to the Crown as a deodand. The origins of the deodand are traceable to Biblical and pre-Judeo-Christian practices, which reflected the view that the instrument of death was accused and that religious expiation was required. See O. Holmes, The Common Law, c. 1 (1881). The value of the instrument was forfeited to the King, in the belief that the King would provide the money for Masses to be said for the good of the dead man's soul, or insure that the deodand was put to charitable uses. 1 W. Blackstone, Commentaries *300. When application of the deodand to religious or eleemosynary purposes ceased, and the deodand became a source of Crown revenue, the institution was justified as a penalty for carelessness." Id., at 680–681 (footnotes omitted).

As Blackstone put it, "such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture." 1 W. Blackstone, Commentaries *301.

The second kind of common-law forfeiture fell only upon those convicted of a felony or of treason. "The convicted felon forfeited his chattels to the Crown and his lands escheated to his lord; the convicted traitor forfeited all of his property, real and personal, to the Crown." Calero-Toledo, 416 U. S., at 682. Such forfeitures were known as forfeitures of estate. See 4 W. Blackstone, at *381. These forfeitures obviously served to punish felons and traitors, see The Palmyra, 12 Wheat. 1, 14 (1827), and were justified on the ground that property was a right derived from society which one lost by violating society's laws, see 1 W. Blackstone, at *299; 4 id., at *382.

Third, "English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws." Calero-Toledo, 416 U. S., at 682. The most notable of these were the Navigation Acts of 1660 that required the shipping of most commodities in English vessels. Violations of the Acts resulted in the forfeiture of the illegally carried goods as well as the ship that transported them. See generally L. Harper, The English Navigation Laws (1939). The statute was construed so that the act of an individual seaman, undertaken without the knowledge of the master or owner, could result in forfeiture of the entire ship. See Mitchell v. Torup, Parker 227, 145 Eng. Rep. 764 (Ex. 1766). Yet Blackstone considered such forfeiture statutes "penal." 3 W. Blackstone, at *261.

In Calero-Toledo, we observed that statutory forfeitures were "likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer." 416 U. S., at 682. Since each of these traditions had a punitive aspect, it is not surprising that forfeiture under the Navigation Acts was justified as a penalty for negligence: "But the owners of ships are to take care what master they employ, and the master what mariners; and here negligence is plainly imputable to the master; for he is to report the cargo of the ship, and if he had searched and examined the ship with the proper care, according to his duty, he would have found the tea . . . and so might have prevented the forfeiture." Mitchell v. Torup, Parker, at 238, 145 Eng. Rep., at 768.

Of England's three kinds of forfeiture, only the third took hold in the United States. "Deodands did not become part of the common-law tradition of this country." Calero-Toledo, 416 U. S., at 682. The Constitution forbids forfeiture of estate as a punishment for treason "except during the Life of the Person attainted," U. S. Const., Art. III, §3, cl. 2, and the First Congress also abolished forfeiture of estate as a punishment for felons. Act of April 30, 1790, ch. 9, §24, 1 Stat. 117. "But `[l]ong before the adoption of the Constitution the common law courts in the Colonies—and later in the states during the period of Confederation—were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes.'" Calero-Toledo, 416 U. S., at 683, quoting C. J. Hendry Co. v. Moore, 318 U. S. 133, 139 (1943).

The First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture. It does not follow from that fact, however, that the First Congress thought such forfeitures to be beyond the purview of the Eighth Amendment. Indeed, examination of those laws suggests that the First Congress viewed forfeiture as punishment. For example, by the Act of July 31, 1789, §12, 1 Stat. 39, Congress provided that goods could not be unloaded except during the day and with a permit.

"[A]nd if the master or commander of any ship or vessel shall suffer or permit the same, such master and commander, and every other person who shall be aiding or assisting in landing, removing, housing, or otherwise securing the same, shall forfeit and pay the sum of four hundred dollars for every offence; shall moreover be disabled from holding any office of trust or profit under the United States, for a term not exceeding seven years; and it shall be the duty of the collector of the district, to advertise the names of all such persons in the public gazette of the State in which he resides, within twenty days after each respective conviction. And all goods, wares and merchandise, so landed or discharged, shall become forfeited, and may be seized by any officer of the customs; and where the value thereof shall amount to four hundred dollars, the vessel, tackle, apparel and furniture, shall be subject to like forfeiture and seizure."

Forfeiture of the goods and vessel is listed along side the other provisions for punishment. It is also of some interest that "forfeit" is the word Congress used for fine. See ibid. ("shall forfeit and pay the sum of four hundred dollars for every offence"). Other early forfeiture statutes follow the same pattern. See, e.g., Act of Aug. 4, 1790, §§ 13, 22, 27, 28, 1 Stat. 157, 161, 163.

Our cases also have recognized that statutory in rem forfeiture imposes punishment. In Peisch v. Ware, 4 Cranch 347 (1808), for example, the Court held that goods removed from the custody of a revenue officer without the payment of duties, should not be forfeitable for that reason unless they were removed with the consent of the owner or his agent. Chief Justice Marshall delivered the opinion for a unanimous Court:

"The court is also of the opinion that the removal for which the act punishes the owner with a forfeiture of the goods must be made with his consent or connivance, or with that of some person employed or trusted by him.

"If, by private theft, or open robbery, without any fault on his part, his property should be invaded, while in the custody of the officer of the revenue, the law cannot be understood to punish him with the forfeiture of that property." Id., at 364.

The same understanding of forfeiture as punishment runs through our cases rejecting the "innocence" of the owner as a common-law defense to forfeiture. See, e.g., Calero-Toledo, 416 U. S., at 683; Goldsmith-Grant Co. v. United States, 254 U. S. 505 (1921); Dobbins's Distillery v. United States, 96 U. S. 395 (1878); United States v. Brig Malek Adhel, 2 How. 210 (1844); The Palmyra, 12 Wheat. 1 (1827). In these cases, forfeiture has been justified on two theories—that the property itself is "guilty" of the offense, and that the owner may be held accountable for the wrongs of others to whom he entrusts his property. Both theories rest, at bottom, on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence.

The fiction "that the thing is primarily considered the offender," Goldsmith-Grant Co., 254 U. S., at 511, has a venerable history in our case law. See The Palmyra, 12 Wheat., at 14 ("The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing"); Brig Malek Adhel, 2 How., at 233 ("The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatsoever to the character or conduct of the owner"); Dobbins's Distillery, 96 U. S., at 401 ("[T]he offence . . . is attached primarily to the distillery, and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner"). Yet the Court has understood this fiction to rest on the notion that the owner who allows his property to become involved in an offense has been negligent. Thus, in Goldsmith-Grant Co., the Court said that "ascribing to the property a certain personality, a power of complicity and guilt in the wrong," had "some analogy to the law of deodand." 254 U. S., at 510. It then quoted Blackstone's explanation of the reason for deodand: "`that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture.'" Id., at 510–511, quoting 1 W. Blackstone, at *301.

In none of these cases did the Court apply the guilty-property fiction to justify forfeiture when the owner had done all that reasonably could be expected to prevent the unlawful use of his property. In The Palmyra, it did no more than reject the argument that the criminal conviction of the owner was a prerequisite to the forfeiture of his property. See 12 Wheat., at 15 ("[N]o personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature"). In Brig Malek Adhel, the owners' claim of "innocence" was limited to the fact that they "never contemplated or authorized the acts complained of." 2 How., at 230. And in Dobbins's Distillery, the Court noted that some responsibility on the part of the owner arose "from the fact that he leased the property to the distiller, and suffered it to be occupied and used by the lessee as a distillery." 96 U. S., at 401. The more recent cases have expressly reserved the question whether the fiction could be employed to forfeit the property of a truly innocent owner. See, e.g., Goldsmith-Grant Co., 254 U. S., at 512; Calero-Toledo, 416 U. S., at 689–690 (noting that forfeiture of a truly innocent owner's property would raise "serious constitutional questions"). If forfeiture had been understood not to punish the owner, there would have been no reason to reserve the case of a truly innocent owner. Indeed, it is only on the assumption that forfeiture serves in part to punish that the Court's past reservation of that question makes sense.

The second theory on which the Court has justified the forfeiture of an "innocent" owner's property is that the owner may be held accountable for the wrongs of others to whom he entrusts his property. In Brig Malek Adhel, it reasoned that "the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." 2 How., at 234. It repeated this reasoning in Dobbins's Distillery:

"[T]he unlawful acts of the distiller bind the owner of the property, in respect to the management of the same, as much as if they were committed by the owner himself. Power to that effect the law vests in him by virtue of his lease; and, if he abuses his trust, it is a matter to be settled between him and his lessor; but the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner." 96 U. S., at 404.

Like the guilty-property fiction, this theory of vicarious liability is premised on the idea that the owner has been negligent. Thus, in Calero-Toledo, we noted that application of forfeiture provisions "to lessors, bailors, or secured creditors who are innocent of any wrongdoing . . . may have the desirable effect of inducing them to exercise greater care in transferring possession of their property." 416 U. S., at 688.

In sum, even though this Court has rejected the "innocence" of the owner as a common-law defense to forfeiture, it consistently has recognized that forfeiture serves, at least in part, to punish the owner. See Peisch v. Ware, 4 Cranch, at 364 ("the act punishes the owner with a forfeiture of the goods"); Dobbins's Distillery, 96 U. S., at 404 ("the acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner"); Goldsmith-Grant Co., 254 U. S., at 511 ("`such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by the forfeiture'"). More recently, we have noted that forfeiture serves "punitive and deterrent purposes," Calero-Toledo, 416 U. S., at 686, and "impos[es] an economic penalty," id., at 687. We conclude, therefore, that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.

We turn next to consider whether forfeitures under 21 U. S. C. §§881(a)(4) and (a)(7) are properly considered punishment today. We find nothing in these provisions or their legislative history to contradict the historical understanding of forfeiture as punishment. Unlike traditional forfeiture statutes, §§881(a)(4) and (a)(7) expressly provide an "innocent owner" defense. See §881(a)(4)(C) ("no conveyance shall be forfeited under this paragraph to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner"); §881(a)(7) ("no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner"); see also United States v. 92 Buena Vista Avenue, Rumson, 507 U. S. ___, ___ (1993) (slip op., at 10) (plurality) (noting difference from traditional forfeiture statutes). These exemptions serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less. In United States v. United States Coin & Currency, 401 U. S. 715 (1971), we reasoned that 19 U. S. C. §1618, which provides that the Secretary of the Treasury is to return the property of those who do not intend to violate the law, demonstrated Congress' intent "to impose a penalty only upon those who are significantly involved in a criminal enterprise." 401 U. S., at 721–722. The inclusion of innocent-owner defenses in §§881(a)(4) and (a)(7) reveals a similar congressional intent to punish only those involved in drug trafficking.

Furthermore, Congress has chosen to tie forfeiture directly to the commission of drug offenses. Thus, under §881(a)(4), a conveyance is forfeitable if it is used or intended for use to facilitate the transportation of controlled substances, their raw materials, or the equipment used to manufacture or distribute them. Under §881(a)(7), real property is forfeitable if it is used or intended for use to facilitate the commission of a drug-related crime punishable by more than one year's imprisonment. See n. 1, supra.

The legislative history of §881 confirms the punitive nature of these provisions. When it added subsection (a)(7) to §881 in 1984, Congress recognized "that the traditional criminal sanctions of fine and imprisonment are inadequate to deter or punish the enormously profitable trade in dangerous drugs." S. Rep. No. 98–225, p. 191 (1983). It characterized the forfeiture of real property as "a powerful deterrent." Id., at 195. See also Joint House-Senate Explanation of Senate Amendment to Titles II and III of the Psychotropic Substances Act of 1978, 124 Cong. Rec. 34671 (1978) (noting "the penal nature of forfeiture statutes").

The Government argues that §§881(a)(4) and (a)(7) are not punitive but, rather, should be considered remedial in two respects. First, they remove the "instruments" of the drug trade "thereby protecting the community from the threat of continued drug dealing." Brief for United States 32. Second, the forfeited assets serve to compensate the Government for the expense of law enforcement activity and for its expenditure on societal problems such as urban blight, drug addiction, and other health concerns resulting from the drug trade. Id., at 25, 32.

In our view, neither argument withstands scrutiny. Concededly, we have recognized that the forfeiture of contraband itself may be characterized as remedial because it removes dangerous or illegal items from society. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 364 (1984). The Court, however, previously has rejected government's attempt to extend that reasoning to conveyances used to transport illegal liquor. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 699 (1965). In that case it noted: "There is nothing even remotely criminal in possessing an automobile." Ibid. The same, without question, is true of the properties involved here, and the Government's attempt to characterize these properties as "instruments" of the drug trade must meet the same fate as Pennsylvania's effort to characterize the 1958 Plymouth Sedan as "contraband."

The Government's second argument about the remedial nature of this forfeiture is no more persuasive. We previously have upheld the forfeiture of goods involved in customs violations as "a reasonable form of liquidated damages." One Lot Emerald Cut Stones v. United States, 409 U. S. 232, 237 (1972). But the dramatic variations in the value of conveyances and real property forfeitable under §§881(a)(4) and (a)(7) undercut any similar argument with respect to those provisions. The Court made this very point in Ward: the "forfeiture of property . . . [is] a penalty that ha[s] absolutely no correlation to any damages sustained by society or to the cost of enforcing the law." 448 U. S., at 254.

Fundamentally, even assuming that §§881(a)(4) and (a)(7) serve some remedial purpose, the Government's argument must fail. "[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Halper, 490 U. S., at 448 (emphasis added). In light of the historical understanding of forfeiture as punishment, the clear focus of §§881(a)(4) and (a)(7) on the culpability of the owner, and the evidence that Congress understood those provisions as serving to deter and to punish, we cannot conclude that forfeiture under §§881(a)(4) and (a)(7) serves solely a remedial purpose. We therefore conclude that forfeiture under these provisions constitutes "payment to a sovereign as punishment for some offense," Browning-Ferris, 492 U. S., at 265, and, as such, is subject to the limitations of the Eighth Amendment's Excessive Fines Clause.

Austin asks that we establish a multifactor test for determining whether a forfeiture is constitutionally "excessive." See Brief for Petitioner 46–48. We decline that invitation. Although the Court of Appeals opined "that the government is exacting too high a penalty in relation to the offense committed," 964 F. 2d, at 818, it had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry. Prudence dictates that we allow the lower courts to consider that question in the first instance. See Yee v. City of Escondido, 503 U. S. ___, ___ (1992) (slip op., at 16).

The judgment of the Court of Appeals is reversed and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.