Will U.S. Supreme Court Limit Civil Asset Forfeiture?

The U.S. Supreme Court recently heard oral arguments in Timbs v. Indiana, regardingwhether the Excessive Fines Clause of the Eighth Amendment applies against the states. That clause remains one of the few provisions of the Bill of Rights that has not yet been ruled applicable to the states through the doctrine of incorporation. 

Civil Asset Forfeiture

As Petitioner Tyson Timbs noted in his petition for certiorari, fines and forfeitures have grown significantly at the state and local levels. In basic terms, civil asset forfeiture is a legal tool that allows law enforcement officials to seize property that is alleged to have played a role in criminal activity. To seize property, the owner of the property does not need to be convicted of a crime. Rather, civil asset forfeiture proceedings charge the property itselfwith being involved in a crime.

Civil asset forfeiture proceedings are proceedings in rem, literally, “against a thing,” rather than the typical adversarial legal proceeding in which the two parties are human beings or, at least, an office staffed by human beings, such as an attorney general’s office.  This leads to curious case titles like, “State of New Jersey v. $4194.00 in U.S. Currency” (A-4340-11 (App. Div. 2014)) and “United States v. 1855.6 Pounds of American Paddlefish Meat and 982.34 Pounds of American Paddlefish Caviar,” filed recentlyin Indiana.  

Because forfeitures are civil actions, the government bears the burden of proving its case by a preponderance of the evidence rather than “beyond a reasonable doubt,” as the standard would be for a criminal trial.  This means that if the government shows it is more likely than not that there exists some nexus between the property—any property of any value—and the crime, the government may seize the property.

The stated goal of civil asset forfeiture is to punish criminals by forcing them to forfeit the fruits of their crimes. Thereafter, the proceeds can be used to fund further law enforcement activities. However, in recent years, civil asset forfeiture has come under fire for being used as a way for local governments to generate revenue, and the topic has arisen in popular culture, including a segment on “Last Week Tonight with John Oliver.”

Eighth Amendment’s Excessive Fines Clause

The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” While the Supreme Court has previously held the Eighth Amendment’s ban on excessive bail and cruel and unusual punishment applies to the states, it has not addressed excessive fines. 

The Court has, however, addressed federal fines. In Austin v. United States, the Supreme Court held that federal in remforfeitures that are punitive in nature are “subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.” Later, in United States v. Bajakajian, the Court held thata forfeiture of a large amount of currency ran afoul of the Eight Amendment because it was “grossly disproportional to the gravity of [the] offense.”

Facts of Timbs v. Indiana

Tyson Timbs is an Indiana man who was forced to forfeit his $42,000 Land Rover after being convicted on state drug charges in Indiana. On two occasions, Timbs sold heroin to undercover police officers as a means of funding his own drug habit. Police arrested Timbs while he was driving to a third drug deal, and he ultimately pleaded guilty. He was sentenced to home detention and probation. 

Several months after Timb’s arrest, a private law firm filed a case to forfeit his vehicle on behalf of the State. The trial court held an evidentiary hearing on the State’s forfeiture request and ultimately determined that forfeiture would be “grossly disproportional to the gravity of [Petitioner’s] offense” and thus unconstitutional under the Eighth Amendment’s Excessive Fines Clause. “While the negative impact on our society of trafficking in illegal drugs is substantial,” the court acknowledged, “a forfeiture of approximately four (4) times the maximum monetary fine is disproportional to [Petitioner’s] illegal conduct.” 

A divided panel of the Indiana Court of Appeals affirmed, agreeing that the forfeiture of Petitioner’s vehicle would be unconstitutionally excessive. The Indiana Supreme Court reversed. That Court held that the U.S. Supreme Court has never expressly found that the excessive fines clause of the Eighth Amendment applies to the states, and principles of federalism precluded the imposition of “federal obligations on the State that the federal government itself has not mandated.”

Issues Before the Supreme Court

The Indiana Supreme Court’s decision is at odds with two federal circuit courts of appeal and at least 14 state high courts that apply the Excessive Fines Clause to the states. The Supreme Court must now resolve the split among these courts. 

Given that the rest of the Eight Amendment has been incorporated, the Supreme Court is likely to apply the Excessive Fines Clause to the states. The justices’ questioning during oral arguments suggested as much. When counsel for Indiana Solicitor General Thomas Fisher took the podium, Justice Neil Gorsuch said, “We all agree that the Excessive Fines Clause is incorporated against the states…can we at least get the theoretical question off the table?” Justice Brett Kavanaugh added, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

The more contentious questions will likely be the extent to which the Excessive Fine Clause applies to asset forfeiture, and what rises to the level of “excessive.” One of the highlights of oral argument was when Justice Stephen Breyer asked Indiana solicitor general Thomas Fisher whether Indiana could seize “a Bugatti” or other high-end car from a person convicted of speeding five miles over the limit.  Fisher replied that it could, because in remforfeitures “have always been harsh.” Justice Breyer was incredulous.  

As Justice Elena Kagan put it, “it just seems as though there are two questions. And one question is incorporating the right, and the other question is the scope of the right to be incorporated.”  Certainly, Justice Breyer believes the scope of “excessive” should be widened beyond the State of Indiana’s understanding.  Where the rest of the Court will fall, or whether the justices will tackle the scope question at all, will be revealed when theCourt releases its opinion in Timbs v. Indiana,before the end of the term in June 2019. We encourage you to check back for updates. 

For more information about the caseor the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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