SCOTUS Weighs Limits on Police Seizure of Property

Timbs v. Indiana could open floodgates of asset forfeiture cases

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November 28, 2018

The Supreme Court heard oral arguments Wednesday in a case which could have a profound impact on the ability of states to seize the property of ordinary citizens.

The case, Timbs v. Indiana, is expected by some court watchers to continue the court's steely-eyed suspicion of state laws that concern the seizing of property allegedly associated with criminal activity.

Directly at issue in the case is whether or not the state of Indiana was justified in seizing plaintiff Tyson Timbs's 2012 Land Rover. Timbs, who has a history of opioid abuse, used the car several times in the process of selling heroin to undercover narcotics officers in Indiana. The third time he attempted such a sale, he was pulled over and arrested. The Land Rover, which contained no drugs and was worth some $31,000, was seized.

Timbs plead guilty, and was given a year of home detention and five years' probation. Separately, the state sought to forfeit Timbs's car to itself. A lower court found that "while the negative impact on our society of trafficking in illegal drugs is substantial, a forfeiture of approximately four (4) times the maximum monetary fine is disproportional to [Petitioner's] illegal conduct."

As such, that court concluded that the forfeiture violated the Eighth Amendment, which prohibits "excessive fines." The state appealed that decision to the Indiana Supreme Court, which rejected it on the grounds that the Supreme Court "has never held that the States are subject to the Excessive Fines Clause."

Prior to the passage of the 14th Amendment, it was broadly understood that only the federal government was bound by the rights language of the Constitution. What section one of the 14th Amendment means has been the subject of some contention, but it created the legal grounds by which rights enumerated in the Constitution—free speech, keeping and bearing arms, a jury trial, etc.—had to be respected by the states. The technical term for this is "incorporation" of rights against the states.

The Supreme Court has found itself in the position of having to incorporate rights piece-by-piece. The Second Amendment was only incorporated in 2010, in McDonald v. Chicago; the Third Amendment has never actually been incorporated and likely will not be unless a state tries to house National Guard troops in private residences.

What Timbs is seeking, then, is an incorporation of the Eighth Amendment—specifically, its "excessive fines" clause—against the states. In point of fact, 14 state courts already consider the clause incorporated, but four—Montana, Mississippi, and Michigan in addition to Indiana—contend that they are not bound until the Supreme Court says they are.

"The immediate implication of the Supreme Court ruling in our favor would be that the citizens of Indiana and those of three other states would again enjoy the protections of the excessive fines clause," Wesley Hottot, who argued on behalf of Timbs on Wednesday, told the Free Beacon.

Hottot is a senior lawyer with the Institute for Justice, a libertarian public interest law firm known for its rigorous defense of property rights before the Supreme Court. In this latest foray, IJ has found itself with a broad spectrum of allies, ranging from the conservative Judicial Watch to the far-left Southern Poverty Law Center.

This broad support is likely linked to what Hottot sees as the essential importance of the case: making sure a national right is truly national.

"Today, those state courts believe that the clause doesn't apply within their borders. That doesn't just matter for the people that live there, it matters for anyone who might travel through those states, or sends a package through those states that the police might seize," Hottot said. "It's a big deal to establish that all 330 million Americans coast-to-coast enjoy the protections of the bill of rights."

During oral arguments, Justice Neil Gorsuch berated Indiana's Solicitor General when the latter argued that the Eighth Amendment wasn't incorporated. Gorsuch was joined by Justice Sonia Sotomayor, with the two arguing that Indiana was defending a "star chamber."

According to Hottot, the central question in oral arguments was less whether or not this case was right, but "what comes next?" Incorporating the excessive fines clause may have lasting implications for state seizures of property under the controversial practice of civil asset forfeiture, which permits police to seize property allegedly used in a crime, even if its owner has not been convicted or was not even involved in the crime in the first place.

At least when it came to getting back Timbs's truck, though, Hottot was bullish.

"It went very well for us. We feel confident that the court is ready to incorporate the excessive fines clause. It's never a sure thing. You will have to wait for the opinion. But it went about as well as it could have," he said.