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The case's outcome may help clarify how constitutional limits on criminal fines and "asset forfeitures" apply to states and localities.
WASHINGTON — An Indiana man whose $42,000 Land Rover was taken by the state after he sold less than $400 of heroin to undercover police had his case heard by the U.S. Supreme Court on Wednesday, with his lawyer arguing the U.S. Constitution restricts such property seizures.
State and local “civil asset forfeiture” has come under increased scrutiny in places around the U.S. during recent years, with critics saying the practice is prone to abuses that can be particularly problematic for poor and minority communities.
Central to Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana are questions about whether a clause in U.S. Constitution’s Eighth Amendment, which bars excessive fines, places constraints not only on federal power, but on state and local governments as well.
Several justices, including the two who President Trump has nominated during his time in office, seemed to possibly signal during Wednesday’s oral arguments that they believe it does. The clause is one of the last parts of the Bill of Rights the court has not “incorporated” against, or applied to, the states under the 14th amendment.
But Indiana introduced somewhat of a curveball into the case by arguing that historically “in rem” property forfeitures have been different from fines imposed against people and, as a result, the excessive fines clause is not applicable under the circumstances.
The state says even if the court does interpret the clause to cover property seizures, then that standard should not be applied to states.
After Thomas Fisher, Indiana’s solicitor general began to make his argument on Wednesday, Justice Neil Gorsuch, who President Trump appointed to the court last year, swiftly pressed him on the matter of whether the excessive fines clause should be incorporated.
“Can we just get one thing off the table?” Gorsuch asked.
“We all agree that the excessive fines clause is incorporated against the states,” he then added. “Whether this particular fine qualifies because it's an in rem forfeiture, another question.”
Fisher replied by saying he had “two responses,” prompting Gorsuch to quip, “I think a ‘yes’ or ‘no’ would probably be a good starting place.”
The solicitor general went on to elaborate, saying he thought the answer was “yes” with respect to fines against people. He then pivoted to drawing a distinction with regard to property seizures, eventually saying that it “depends” whether the clause applies to states.
Gorsuch followed up with a somewhat exasperated-sounding response. “Here we are in 2018,” he said, “still litigating incorporation of the Bill of Rights. Really? Come on, general.”
Trump’s latest appointee to the court, Justice Brett Kavanaugh, a bit later added: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”
Justice Stephen Breyer posed a theoretical scenario to Fisher where a state demands someone caught speeding—perhaps in a Ferrari or Mercedes—must forfeit their vehicle.
“There is no excessive fines issue there,” Fisher replied.
After some more back-and-forth, with the justice adding that his scenario involves someone only going five miles-per-hour over the speed limit, Fisher held that the vehicle could be forfeitable.
“In rem forfeitures,” the lawyer added, “have always been with us and they have always been harsh.”
When the court has decided in the past whether to incorporate parts of the Bill of Rights against states, it has weighed whether the right is “fundamental” to America’s “scheme of ordered liberty” and “deeply rooted” in the nation’s history and traditions.
In trying to ground their arguments under this framework, legal briefs for the two sides featured information to support their cases that dated back hundreds of years, some of it to the era when the Magna Carta was crafted in 13th century England.
As Tyson Timbs’ lawyer, Wesley Hottot, with the libertarian-leaning Institute for Justice, argued his case, Chief Justice John Roberts suggested it was possible to see a distinction between the government fining someone $500,000 and taking property used in an illegal act.
“I mean the action is not against the individual,” Roberts said. “It’s against the asset. And so you will lose assets that you use in crime.”
But Hottot countered that the issues the chief justice raised had strayed into “excessiveness analysis,” as opposed to the incorporation analysis he posited was before the court.
“We ask ourselves not whether civil in rem forfeitures, a right against excessive in rem forfeitures is somehow deeply rooted and, hence, can be incorporated,” the lawyer said later.
“We ask whether the freedom from excessive fines, which has been recognized since the 13th Century, is incorporated.”
Timbs used about $42,000 in proceeds from his father’s life insurance policy to buy a 2012 Land Rover, according to a court brief filed on his behalf. The filing says that Timbs had difficulties with opioid medication abuse, and eventually turned to using heroin.
A confidential informant later connected him with undercover police officers posing as heroin buyers. He sold the officers heroin twice. One transaction was $225, another was $160. En route to a third deal, officers pulled over and arrested Timbs and seized his Land Rover.
Timbs eventually pleaded guilty to one count of drug dealing, and to another count of conspiracy to commit theft. He was sentenced to one year of home detention and five years probation and paid various fees related to his case that totaled around $1,203.
But the state took action to keep his vehicle, alleging that it had been involved in his crimes.
The trial court ruled that the seizure was “grossly disproportionate” to the gravity of the offenses and unconstitutional under the Eighth Amendment. A divided state appeals court issued a similar ruling.
But then the Indiana Supreme Court sided against Timbs.
The state high court declined to review the vehicle forfeiture based on the excessive fines clause and said that the U.S. Supreme Court “has never held that the States are subject to” the constitutional provision.
Timbs attended the Supreme Court arguments on Wednesday.
Outside the court afterwards he said he's currently working as a machinist and gets around driving his aunt's 2012 Dodge Avenger.
His lawyer said it's unclear where the Land Rover is these days. For several years, he said, Timbs could see it parked in an impound lot, but more recently it's reportedly been moved.
Timbs said he was surprised that the case went all the way to the Supreme Court. "I wanted to give up a long time ago," he said. "It's been five, six years and I'm still talking about when I was arrested. That's not me anymore."
"Hopefully something will change," he added, referring to the issues at stake in the case.
After reviewing a transcript of the arguments, Louis Rulli, a professor at the University of Pennsylvania law School, whose research covers civil forfeiture issues, said the tone of the questioning appeared to support the notion that the justices would more likely than not decide that the excessive fines clause applies to the states.
He said he also thought the court will decline to go down the path of separating property forfeitures from punitive fines.
But even if the court does incorporate the excessive fines clause against the states, Rulli expects difficult related legal questions could remain unanswered—such as how courts analyze whether a government's seizure of private property is excessive.
“It’s a critical case because civil forfeiture is a much-abused program throughout the states," he said.
“There’s such a financial incentive for government to take property that’s embedded in our civil forfeiture laws," Rulli added, "there has to be the counteracting response and protections of our Bill of Rights."
Emily C.R. Early, a staff attorney with the Southern Poverty Law Center, noted that when people can't afford to pay government fines, or don't have the means to fight back against a property forfeiture, "there are often times devastating consequences."
Jail, suspended driver's licenses, or collections actions were among the possibilities she mentioned.
Early believes it's unlikely a ruling in favor of Timbs will spur states and localities with aggressive fine and forfeiture practices to immediately roll them back. But she said it would give groups like the Southern Poverty Law Center a new pathway to mount challenges against them in court under the Eighth Amendment.
Bill Lucia is a Senior Reporter for Government Executive's Route Fifty and is based in Washington, D.C.