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February 22, 2019

SCOTUS: States Subject to Limits on Seizure, Too

How excessive is the practice of civil assess forfeiture? The justices were unanimous.

While numerous high-profile Supreme Court cases have been decided by the narrowest of 5-4 margins, every so often there comes a slam-dunk case so egregious that the High Court’s right and left wings unite. In this case, all but two concurred with an opinion written by … Ruth Bader Ginsburg. We’ll return to the reasoning for the concurring but different opinions of justices Neil Gorsuch and Clarence Thomas a little later.

At question in the case of Timbs v. Indiana: How far is too far when it comes to asset forfeiture by authorities? As the Ginsburg opinion queried: “Is the Eighth Amendment’s Excessive Fines Clause an ‘incorporated’ protection applicable to the States under the Fourteenth Amendment’s Due Process Clause? Like the Eighth Amendment’s proscriptions of ‘cruel and unusual punishment’ and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of government’s punitive or criminal law-enforcement authority.”

The case stemmed from the 2015 arrest of Indiana resident Tyson Timbs, who eventually pleaded guilty to selling heroin to an undercover police officer. While Timbs was sentenced to house arrest and five years’ probation, the state also seized a 2012 Land Rover Timbs had purchased with proceeds from his late grandfather’s life insurance policy. The car, valued at $42,000, was worth over quadruple what the maximum fine for the offense would have been, and that disparity was ruled by two lower Indiana state courts to be excessive.

However, the state appealed to the Indiana Supreme Court, and it overruled the lower courts on their belief that the prohibition on excessive fines found in the Constitution only applied to the federal government — thus, the state of Indiana was within its rights under forfeiture law to seize Timbs’ asset despite it not having been purchased with illegally obtained funds. They argued that, since Timbs had transported the heroin with the car, it was fair game for seizure.

But the state’s case before the Supreme Court was weak from the start, leaving the solicitor general to defend a hypothetical seizure of a luxury car for the offense of driving five miles an hour over the speed limit. Thus, a 9-0 whitewash wasn’t really a surprise.

While both Gorsuch and Thomas agreed with the final decision, Gorsuch added a one-page concurrence that considered whether the case should have been decided based on the Privileges or Immunities Clause rather than by the Due Process clause. Thomas took the point further, writing his own separate opinion that harshly criticized the “due process” logic:

Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” … And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions … [including] Roe v. Wade [and] Dred Scott v. Sandford.

Thomas’s concurrence, which provides much of the second half of the 26-page opinion, provides a good history lesson on the evolution of law against excessive fines.

Not only was Justice Thomas’s concern regarding proper precedent not answered completely, but as the Wall Street Journal editorial board pointed out, the Timbs decision also left as a mystery just how outrageous a fine had to be to merit consideration as “excessive.” Surely — and unfortunately — this question will be left to play out in the legal system over the coming years.

The battle over excessive fines, though, is only a small part in the tug-of-war that has pitted law-and-order prosecutors who believe asset forfeiture is a deterrent to crime against civil libertarians who believe it’s a “gigantic law-enforcement scam,” with seizures of significant assets possible under the most circumstantial of evidence.

As our own Arnold Ahlert wrote in 2017, it’s “a process whereby government can seize property and cash they suspect is related to the commission of a crime” [emphasis added]. Note the word “suspect,” which is far different than the word “prove.” Unfortunately, the burden of proof in forfeiture cases is placed on the accused, who have to fight the unlimited resources of the government in order to reclaim what is legally theirs.

Tyson Timbs certainly doesn’t fit the profile of a hero, but he dared to make a stand against government overreach and scored a rare victory. Let’s hope it brings new awareness to the frequent abuses of a system that was supposed to ensure crime didn’t pay but instead became a cash cow for local and state governments.

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