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Supreme Court to Tackle Civil Forfeiture Lawsuit



The Washington Post
Tuesday, November 27, 2018

Washington — After Tyson Timbs pleaded guilty in 2015 to selling heroin worth $225 to undercover cops, he got a year of home detention and five years of probation.

The state of Indiana got his $42,000 Land Rover SUV.

The state hired a private law firm to file a civil suit to forfeit the car, under a law that allows seizure of vehicles used “to facilitate violation of a criminal statute.” The car’s value was four times what the law allowed as the maximum monetary penalty for Timbs’crime.

The Supreme Court on Wednesday will consider whether the Constitution’s prohibition on excessive fines applies to a state law such as Indiana’s.

Timbs’ case has united a range of groups that are not often on the same page — among them the U.S. Chamber of Commerce, the NAACP Legal Defense and Education Fund, the American Civil Liberties Union and the conservative American Civil Rights Union.

They all urge the court to take a hard look at civil forfeiture laws, which Justice Clarence Thomas wrote in an opinion last year have “become widespread and highly profitable.”

“This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses,” Thomas wrote, referencing reporting by The Washington Post and the New Yorker.

“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings,” Thomas wrote. “Perversely, these same groups are often the most burdened by forfeiture.”

In a brief to the Supreme Court in the Timbs case, the Chamber of Commerce makes a similar claim.

“Unfortunately, and with increasing frequency, state and local legislatures are authorizing — and executive officials are seeking — excessive fines and forfeitures for relatively modest violations of the law by businesses and individuals,” it says.

Lawyers for Timbs say his case provides not only a vivid example of the procedure but also an intriguing constitutional question for the court, focusing on the Eighth Amendment.

The Constitution’s Bill of Rights protects against actions of the federal government. But the Supreme Court over time has applied them to state and local governments under the due-process clause of the 14th Amendment. (In 2010, for instance, the court held that the Second Amendment applied to state and local government laws on gun control.)

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Two of those commands — regarding bail and cruel and unusual punishments — have been incorporated to apply to state and local governments. But not the ban on excessive fines.

Timbs, 37, said his addiction grew from a reliance on painkillers prescribed for foot pain. He moved from Ohio to Marion, Ind., to live with his aunt and to try to make a fresh start.

“As I’ve said a million times,” Timbs said in a recent interview, “unfortunately, I came with me.”

With money he received from a life-insurance policy after his father’s death, Timbs bought the Land Rover. “The rest of the money I spent on drugs,” he said. When that ran out, he undertook the small-time heroin dealing.

After he pleaded guilty, Timbs was sentenced to the home detention, probation and a court-supervised treatment program for addiction. But he wanted the vehicle back, partly to get to the factory job he holds in a town about 35 miles away. (He borrows his aunt’s car now.)

Lower state courts noted that Timbs had used his vehicle in the commission of his crime, but added that “forfeiture of the Land Rover . . . was grossly disproportionate to the gravity” of the crime.

But the Indiana Supreme Court held that the excessive-fines clause did not apply to the states. Citing Indiana’s status as “a sovereign state within our federal system,” the court said that it would not “impose federal obligations on the state that the federal government itself has not mandated.”

Timbs is represented by lawyers from the Institute for Justice, the libertarian legal organization that often brings property rights cases to the Supreme Court. It was a natural fit, said Wesley Hottot, a lawyer for the group.

“Civil forfeiture is one of the greatest threats to property rights today,” Hottot said in an interview.

Hottot’s petition to the Supreme Court said two federal appeals courts and the highest courts in 14 states have found that the excessive-fines clause applies to state and local governments. But he said that Indiana was joining courts in Montana, Mississippi and Michigan in finding that it does not.

The petition noted what it called a series of abuses from around the country. Included is a Justice Department report that said city officials in Ferguson, Missouri — the town beset by racial conflict after the police shooting of Michael Brown — “have consistently set maximizing revenue as the priority for . . . law enforcement activity.”

Indiana argues that while the Constitution protects against excessive fines, that is not what Timbs is contesting.

“Here the right question is not whether the Excessive Fines Clause is incorporated as a general matter, but whether the Clause, in conjunction with the Fourteenth Amendment, prohibits the particular state action against which Timbs has lodged a constitutional objection — the . . . forfeiture of his Rover as an instrumentality of drug trafficking,” wrote Indiana Solicitor General Thomas Fisher.

There is a long history of government seizing property, the state argues.

Even if the Supreme Court sides with Timbs, it does not mean the Land Rover is his. The case would return to Indiana for its high court to decide whether seizing the vehicle was, in fact, excessive, Hottot said.

Until then, that Land Rover sits somewhere in a police impound lot.

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