WASHINGTON — The grandeur and history of the United States Supreme Court stood in stark contrast to the small-town Indiana roots of a potentially landmark civil forfeiture case federal justices heard Wednesday.
Justices of the nation’s highest court listened to oral arguments in a case that traces to Marion, where Tyson Timbs was arrested on theft and drug charges after he sold heroin to police officers as part of a series of controlled buys. Timbs began using heroin as a substitute for a painkiller he had previously been prescribed.
At the time of his arrest in 2013, Timbs was driving his Land Rover, a vehicle he had purchased the year before for $42,000, using proceeds he received from his father’s life insurance policy. The Land Rover was seized as an instrumentality of Timbs’ crimes, but a Grant County judge declined to approve the forfeiture, finding the vehicle’s value was grossly disproportionate to the charged offenses.
A divided Indiana Court of Appeals agreed, noting the vehicle was worth roughly four times more than the $10,000 Timbs could have been statutorily required to pay in fines. But the Indiana Supreme Court reversed, finding the Eighth Amendment’s protections against excessive fines had not been incorporated to the states and, thus, was not a defense available to Timbs.
That decision propelled the case to the U.S. Supreme Court, where justices on Wednesday peppered Indiana Solicitor General Thomas M. Fisher, representing the state, and Seattle attorney Wesley Hottot, representing Timbs through the Institute for Justice, with questions about American legal traditions, proportionality requirements and constitutional incorporation.
Seated in high-back black leather chairs in front of heavy red and gold curtains, the nine jurists where initially faced with one central question: has the Eighth Amendment’s Excessive Fines Clause been incorporated to the states through the 14th Amendment? Hottot’s position was that the clause has been incorporated because forfeitures are considered fines pursuant to Austin v. United States, 509 U.S. 602 (1993). Austin held that the clause applies to certain federal in rem forfeitures, and Hottot said that case and other precedent have held that the clause is likewise applicable to the states.
The incorporation of the Excessive Fines Clause stems from its tradition in Anglo-American legal history, Hottot said. Freedom from excessive fines has been fundamental in the law dating back as far as the Magna Carta and continuing through to the English Bill of Rights and the U.S. Constitution, he said, and such fundamental constitutional provisions are incorporated to the states.
Before Fisher could begin his argument, Justice Neil Gorsuch, a Donald Trump appointee, posed a yes or no question to the solicitor general: can’t all parties agree that the clause is incorporated to the states? Fisher answered affirmatively, but only as it applies to in personam proceedings. Civil forfeiture proceedings are in rem, meaning they are against the property and not the person, and such proceedings have traditionally not been understood to be subject to the clause. It’s only been in the last 25 years that courts have begun suggest that civil in rem forfeiture could be subject to the clause, Fisher said, a fact he said defeated Timbs’ legal history argument.
Gorsuch, however, disagreed. “Really? Come on, General,” the justice said.
But Fisher maintained that the court had to look at a complete history of civil forfeiture and the Excessive Fines Clause to correctly decide the case. According to the state, legal history shows that while protections from excessive fines have long been part of the American legal tradition, courts have not found that those protections extended to in rem forfeitures. Rather, Fisher said courts have long held that because forfeitures apply to the property, not to the person implicated in the underlying crime, even innocent property owners could not raise a constitutional defense to the forfeiture.
Looking at the case in this historical context, Fisher said the best option would be for the justices to explicitly overturn Austin. He noted that the case of Hudson v. United States directly overruled United States v. Halper, which he said Austin was premised on, while United States v. Bajakajian said in rem forfeitures were traditionally considered nonpunitive.
In his argument for incorporation, Hottot highlighted the fact that the Indiana Supreme Court declined to find incorporation of the Excessive Fines Clause without explicit guidance from SCOTUS, which the state justices said they did not have. That decision means that Hoosiers currently do not enjoy the protections of that Eighth Amendment provision, Hottot said, thus necessitating an incorporation ruling from the nation’s highest court.
Aside from the basic incorporation question, the justices also questioned Fisher and Hottot on the issue of the proportionality of the fine. Both Justice Samuel Alito, a George W. Bush appointee, and Justice Stephen Breyer, a Bill Clinton appointee, honed in on this issue, presenting the attorneys with hypothetical punishments and asking the attorneys to opine on the appropriateness of those punishments.
For example, Alito noted that after Timbs pleaded guilty to some of his charges, he served one year on home detention on five years on probation. If Timbs had instead served those six years in prison, the justice asked Hottot why that sentence would be OK, but the forfeiture of the $42,000 vehicle was not.
In response, Hottot said questions of excessiveness are fact-intensive, so responding to Alito’s hypothetical situation would be a matter of examining the circumstances surrounding the crime and the resulting forfeiture. But more generally, Hottot said the issue before the court is not the proportionality of fines, but whether citizens have the right to assert the Excessive Fines Clause as a defense.
Then in a hypothetical presented to Fisher, Breyer asked the solicitor general if there would be any constitutional violation in forfeiting a vehicle because the driver was speeding. When Fisher answered negatively, the justice then asked if it would make a difference whether the driver was driving an older model Kia or a new Bugatti. Fisher again said no, holding to his position that in rem proceedings against property are not subject to the Excessive Fines Clause.
Speaking with reporters after the oral argument, Indiana Attorney General Curtis Hill, who was in attendance, agreed with Fisher that the appropriate standard for civil forfeiture cases “is to address the issue of the property as an instrumentality, the nexus to the criminal activity.”
“You can get into issues of value and whether it’s excessive … but the basic is, it’s being utilized in the offense,” Hill said.
But Hottot, who spoke to reporters alongside Timbs and other IJ attorneys after the argument, repeated that the main issue in the case, from their perspective, is ensuring citizens can claim an Eighth Amendment defense against excessive fines. Timbs agreed, noting that losing his Land Rover has forced him to drive his aunt’s car for the last five years and has negatively impacted his self-esteem.
“I wanted to give up a long time ago, because this (litigation) isn’t always easy,” Timbs said. “It’s been five, six years and I’m still talking about when I was arrested. That’s the old me, that’s not me anymore.
“So I still have to deal with those things, but it’s worth it,” he said. “It’s gotten people talking about it (civil forfeiture), and hopefully something will change.”