Tyson Timbs was a heroin addict arrested for dealing 4 grams of heroin and conspiracy to commit theft in Indiana in May 2013. He pled guilty, accepting one year of home detention, five years probation, and enrollment in an addiction rehabilitation program. That would have been the end of it, except police charged someone else with selling the same heroin: Timbs' car.
It’s a widely used legal practice called civil asset forfeiture, or civil in rem forfeiture, which allows law enforcement to seize property that they suspect is connected to criminal activity. The legal theory behind it is, essentially, that property, itself, can be guilty of a crime if it was used to commit that crime. The theory was used to justify confiscating captured pirate ships, for example. The goal was to stop the recurrence of crime by cutting off a criminal’s resources, even if law enforcement failed to convict the suspected criminal.
Instead of charging the suspect, police literally charge the suspect’s property. A case is filed against the property in civil court and titled: “U.S. v. $50,000” or “U.S. v. 2010 Honda Civic,” depending on what property was seized.
If a judge finds the property to be connected to the commission of a crime, then it can be seized and kept by the authorities who seized it; popularly referred to as “policing for profit.” Most state and federal laws do not require that the owner be convicted or even suspected of a crime for their property to be seized. The property could be anything from cash proceeds of a drug deal, a plot of land on which marijuana was grown, or, as in Timbs’ case, the car used to transport contraband.
Most property owners cannot fight a forfeiture because it’s too expensive to hire a lawyer and pay the court costs. Often it’s more expensive than the property itself. If the owners don’t contest the forfeiture, the property is forfeited by default.
However, in this case, Timbs did contest the forfeiture of his car.
His lawyers argued that, while Timbs did use the car to transport heroin, the forfeiture was an excessive fine in violation of the 8th Amendment. Timbs’ car was approximately worth $42,000, but the most a criminal court could have fined Timbs for his drug offense was $10,000. Because his car was worth more than three times the value of the maximum fine, Timbs’ lawyers argued, the fine was “grossly disproportionate to the gravity of Timbs’ offense,” the standard to prove this kind of 8th Amendment violation.
This is a common argument used by property owners to fight a forfeiture, but it rarely works because courts have wide discretion to determine what “grossly disproportionate” means. Even so, both the trial court and the reviewing appellate court agreed with Timbs. They held that the forfeiture was an excessive fine in violation of the 8th Amendment and, therefore, Timbs' car should be returned.
However, the Indiana Supreme Court overturned those decisions. Not because the court disagreed it was an excessive fine, but because the court decided the 8th Amendment did not apply.
The court argued that, because the U.S. Supreme Court had never definitively ruled that the Excessive Fines clause was an incorporated protection applicable to state law, state courts were not bound to apply it. In other words, because the forfeiture was made under state rather than federal law, the Excessive Fines clause didn’t apply and Timbs could not use it to argue against the forfeiture of his car.
This argument wasn’t made by the state’s attorney when they appealed to the Indiana Supreme Court. One sentence in the state’s brief said that there was no evidence the Excessive Fines clause was incorporated, but, even if it was the forfeiture would still not be grossly disproportionate. The incorporation argument was first seriously addressed during oral arguments by Justice Mark Massa and Justice Geoffrey Slaughter, both of whom questioned Justin Roebel, the state’s attorney, about incorporation.
Roebel made it clear that, while the state didn't believe the protection was incorporated, it didn’t matter. He argued that the state should still win because the seizure of Timbs’ car was not “grossly disproportionate.” Justice Slaughter wrote the unanimous majority opinion stating that, because there was no evidence to suggest the Excessive Fines clause was incorporated, Timbs’ argument was invalid and the state could keep the car.
Timbs appealed to the U.S. Supreme Court, which heard oral arguments in November 2018. Wesley Hottot, Timbs’ lawyer, argued that the Excessive Fines clause was incorporated under the Due Process clause of the 14th Amendment. Indiana Solicitor General Thomas Fisher argued for the state, and had to defend an argument they had never seriously believed in. What’s worse, as every justice agreed, it was clearly a losing argument.
Every justice seemed like they went into oral arguments already having dismissed the state’s incorporation argument. Justice Neil Gorsuch, in particular, grilled Fisher on the incorporation argument right out of the gate. Early on in Fisher’s argument, Gorsuch cut him off and asked: “Whatever the Excessive Fines clause guarantees...it applies against the states, right?” When Fisher pushed back on that conclusion, Gorsuch said: “Most of these incorporation cases took place in the 1940s, and here we are in 2018 still litigating the incorporation of the Bill of Rights. Really? Come on, General.”
The justices focused the majority of their questions on the issue of how to determine what “grossly disproportionate” means and the scope of what the Excessive Fines clause protects, even though that wasn’t the issue they were technically supposed to address. Justice Ruth Bader Ginsburg wrote the unanimous opinion of the court, definitively ruling that the Excessive Fines clause is incorporated against the states and, therefore, Timbs has a right to raise that argument.
The case was remanded back to the Indiana Supreme Court, which will now likely be forced to decide the real issue: Is the forfeiture of Timbs’ car an excessive fine?
Oral arguments were held on June 28, 2019. Regardless of what they rule, the case will likely be appealed back to the U.S. Supreme Court where the justices may decide to articulate a more specific standard for determining gross disproportionality.
It’s been over six years since police arrested Timbs and seized his car. It will likely be at least another year before Timbs gets a final decision on whether the car is still his.