Indiana’s civil forfeiture framework has received ample attention from the state legislative and judicial branches in recent years, but now, the nation’s highest court will weigh in on a case that could have implications in Indiana and nationwide.
The question the United States Supreme Court has agreed to answer in Tyson Timbs and a Land Rover LR2 v. State of Indiana, 17-1091, is one of constitutional importance: Does the Eighth Amendment’s Excessive Fines Clause apply to the states? If the answer is yes, then Tyson Timbs, a Grant County man, argues the federal protection should prevent the state from forfeitures like that of his $42,000 vehicle.
Timbs’ Land Rover was seized in 2013 after he was arrested and charged with theft and drug counts. Both the Grant Superior Court and the Indiana Court of Appeals overturned the forfeiture, finding its seizure was “grossly disproportionate” to Timbs’ offenses, noting the Land Rover was worth more than four times the amount he could be statutorily required to pay in fines.
The Eighth Amendment question was addressed only fleetingly during the lower court proceedings, but the Indiana Supreme Court seized on that issue when it issued its November 2017 ruling that upheld the Land Rover’s forfeiture. The justices unanimously found the Excessive Fines Clause has not been incorporated to the states, then determined the state proved its entitlement to the vehicle under Indiana law.
After that ruling, the Virginia-based Institute for Justice took up Timbs’ case and filed a petition for a writ of certiorari with the U.S. Supreme Court in January. Though the state argued the Timbs case was not the appropriate vehicle for reviewing the Eighth Amendment question, the justices granted cert on June 18.
Both Timbs’ cert petition and the Indiana Supreme Court’s decision identify the dichotomy that is present on the Eighth Amendment issue. The Indiana justices pointed to differing statements on that issue in two U.S. Supreme Court opinions: Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) and McDonald v. City of Chicago, 561 U.S. 742 (2010).
In Cooper, the federal justices held that the 14th Amendment’s Due Process Clause “makes the Eighth Amendment’s prohibition against excessive fines and cruel and unusual punishments applicable to the States.” The McDonald court, however, noted that “(o)nly a handful of the Bill of Rights protections remain unincorporated,” including the Excessive Fines Clause.
The state Supreme Court determined both statements were dicta, but held that the McDonald statement should be given more weight because it was made more recently. Given “the lack of clear direction from the Supreme Court,” the Indiana justices “decline(d) to subject Indiana to a federal test that may operate to impede development of our own excessive-fines jurisprudence under the Indiana Constitution.”
But according to Timbs’ cert petition, that ruling conflicts with holdings in 14 states and two federal circuits. Only Montana, Mississippi, Michigan and Indiana have declined to incorporate the Excessive Fines Clause, while states across the country — including Illinois, Kentucky and Ohio — and the 8th and 9th Circuit Courts of Appeals have found the clause applies.
Institute for Justice Attorney Sam Gedge said the four minority states reached a contrary conclusion because their courts did not engage in an incorporation analysis, but instead said the U.S. Supreme Court has not told them to give the clause effect. But Gedge noted other clauses in the Eighth Amendment, including protections against cruel and unusual punishments, have been incorporated to the states.
“They (the Eighth Amendment clauses) all secure a parallel set of rights to be free from excessive fines and punishments,” Gedge said. “If one clause is incorporated, then the others should be incorporated, as well.”
‘A legal proving ground’
Indiana civil forfeiture attorney Todd Ess noted the Timbs case is going to the Supreme Court at a time when Indiana’s civil forfeiture framework is in the midst of what he calls a reformation that serves as the “legal proving ground” for civil forfeiture reform.
Aside from Timbs, the Institute for Justice is challenging another aspect of Indiana’s civil forfeiture proceeds in a case out of Marion County, Jeana M. Horner, et al. v. Terry R. Curry, et al., 18S-PL-00333. That case, which alleges Indiana’s practice of allocating civil forfeiture proceeds to prosecutors’ offices and law enforcement before being deposited into the Common School Fund is unconstitutional, has been granted emergency transfer by the Indiana Supreme Court.
The federal courts have also weighed in on Indiana’s civil forfeiture practices, with Southern District Chief Judge Jane Magnus-Stinson ruling in August 2017 that Indiana Code section 34-24-1-1(a)(1), read in conjunction with statutory provisions of the same chapter, is unconstitutional. That’s because the statute allows for the seizure of a person’s vehicle without a “post-seizure, pre-forfeiture hearing,” a due process violation Magnus-Stinson said violates the Fifth and 14th Amendments.
That decision in Leroy Washington v. Marion County Prosecutor, et al., 1:16-cv-02980, served as the basis for legislative reform via Senate Enrolled Act 99, which is set to take effect on July 1. Under SEA 99, prosecutors must now file a probable cause affidavit in the county where a seizure occurred within seven days of the seizure. If a trial judge does not find probable cause to support the seizure, the property must be returned to the owner of record.
Sen. Rod Bray, the Martinsville Republican who authored SEA 99, said discussions about the proportionality of civil forfeitures relative to the underlying offense have come up, but no action was taken on that issue in the bill. However, SEA 99 does create reporting requirements designed to inform the Legislature about the value of property that is seized and other similar information.
With that information, Bray said the goal is to get a better idea of the civil forfeiture practices in each county. From there, and with the guidance set to come from the U.S. and Indiana supreme courts, the senator said lawmakers can begin to discern whether additional reforms should be made.
The judicial and legislative review of Indiana’s civil forfeiture framework highlights what Ess calls “systemic problems” within Hoosier civil forfeiture procedures. Gedge agreed, raising specific concerns about the fact that Indiana law allows forfeiture proceeds to go to police and law enforcement, a “profit motive” he said could encourage forfeitures as a revenue source.
While Bray said the legislature could revisit civil forfeiture in the future, he also said SEA 99 has been widely received as a good first step in the right direction.
Setting the tone
Considering the federal constitutional question in Timbs is different than the state issues raised in Horner, Gedge said the SCOTUS ruling in Timbs likely won’t influence the outcome of the Horner case. Ess agreed that Timbs and Horner deal with different questions, but said Timbs has the potential to set the tone for how courts resolve other civil forfeiture issues.
“It’s not going to be a panacea, but it will send a message that this reformation is happening and we are looking at civil forfeitures in a different light,” Ess said.
When asked to comment on the Supreme Court’s grant of cert to Timbs, the Indiana Attorney General’s Office, which will represent that state, said it is looking forward to “addressing the important questions raised by this case in our nation’s highest court.”•