The decision in an Indiana civil forfeiture case surprised almost no one. Based on the tone of the oral arguments, the United States Supreme Court’s ruling that the Eighth Amendment Excessive Fines Clause is incorporated to the states was a given to most attorneys.
The opinion handed down Feb. 20 in Tyson Timbs v. Indiana, 17-1091 brought nationwide uniformity to the incorporation question, attorneys say. The Indiana Supreme Court — along with courts in a handful of other states — had held that the Excessive Fines Clause had not been made applicable to the states, but the Timbs ruling specifically found incorporation via the 14th Amendment’s Due Process Clause.
But Justice Ruth Bader Ginsburg’s opinion in Timbs declined to answer one key question: When does the Eighth Amendment prohibit civil forfeiture?
“In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, we ask whether the right guaranteed — not each and every particular application of that right — is fundamental or deeply rooted,” Ginsburg wrote for the unanimous court.
Thus, questions remain for lawmakers, attorneys and judges nationwide who are grappling with civil forfeiture reform. When does a forfeiture become an excessive fine? What factors should be considered in the excessiveness analysis?
Answering those questions, attorneys say, will require a combination of legislative reform and judicial review. Such review has been happening for years in Indiana, where a trifecta of civil forfeiture cases could expose the Hoosier state to significant changes in how law enforcement approaches civil forfeiture.
The incorporation question
Timbs came before the nation’s highest court after Tyson Timbs, a resident of Marion, was convicted of drug and theft-related charges. Though state statute would only have required him to pay up to $10,000 in fines, the state seized Timbs’ $42,000 Land Rover, arguing it was subject to forfeiture because it had been used to transport heroin.
Both the Grant Superior Court and Indiana Court of Appeals declined to allow the forfeiture, finding it would be disproportion to Timbs’ crimes. The Indiana Supreme Court, however, reversed, finding the Excessive Fines Clause had not been explicitly incorporated to the states.
In overturning Indiana’s highest court, the federal justices rejected the state’s argument that the clause had been incorporated only to in personam, not in rem, proceedings. SCOTUS also declined the state’s invitation to overturn Austin v. United States, 509 U.S. 602 (1993), which held that forfeitures that are at least partially punitive are considered “fines” under the clause in the context of federal forfeitures.
But Ginsburg noted in her opinion that the Indiana Supreme Court had not specifically addressed whether the forfeiture of Timbs’ Land Rover was excessive, as the lower state courts did. Thus, the case was remanded back to the state’s high court to make the excessiveness determination.
In a written response to Timbs, the Indiana Prosecuting Attorneys Council noted the U.S. Supreme Court did not give the Indiana Supreme Court any guidance on how to determine whether the forfeiture in Timbs’ case — or in any case — is excessive. IPAC said prosecutors will continue to pursue forfeiture of property used in the commission of crimes and will look to the Indiana Supreme Court for clarification on when the Excessive Fines Clause might curb a forfeiture action.
“That’s the whole point of litigation,” Indianapolis criminal defense attorney Todd Ess said. “The prosecutor will argue that it’s not excessive, and then it’ll just have to go into a balancing test looking at different factors.”
Those factors could include the value of the property at issue, the way in which the property was used, the nature of the underlying crime and/or the maximum penalty that could be imposed for that crime, among other considerations, Ess said. Such considerations fall to the courts, but from an attorney’s perspective, Ess said some prosecutors might intentionally put more thought into whether a forfeiture action would be reasonable under those factors.
As an example, Ess — who devotes much of his practice to civil forfeiture defense — pointed to an argument advanced by Indiana Solicitor General Thomas M. Fisher during the November oral arguments. Faced with a hypothetical question from Justice Stephen Breyer, Fisher said it would be appropriate to seize either a Bugatti or a jalopy if a driver was going 5 mph over the speed limit. In that situation, Fisher said the main consideration would not be the value of the vehicle, but rather the fact that the vehicle was being used to break a law.
“If anything, maybe that attitude will kind of change now,” Ess said.
Limiting bad actors
Attorneys generally agree that while Timbs won’t change much about the practice of civil forfeiture, the case may change how lawyers approach those practices. For example, Indianapolis criminal defense attorney Jeff Cardella said the decision might have a more significant impact in counties “where prosecutors target low-level offenders merely because the individual happens to own valuable property.”
“It won’t prevent forfeiture,” Cardella wrote in an email to Indiana Lawyer, “but it will prevent forfeiture of property where the forfeiture is wildly disproportionate to the offense.”
Similarly, Harry Sandick, a former assistant U.S. attorney in the Southern District of New York, said Ginsburg’s opinion serves as a limiting factor that will prohibit so-called bad actors from taking advantage of forfeiture for financial gain. Such bad actors are frequently discussed in terms of policing-for-profit, an issue forfeiture critics say arises when law enforcement is allowed to keep some or all of their forfeitures proceeds for themselves. That practice is allowed under Indiana law.
Further, Indiana University Robert H. McKinney School of Law professor Shawn Boyne raised concerns about the fact that prosecutors in civil forfeiture proceedings have a lower burden of proof than they would in criminal proceedings. States have taken different approaches to resolving these issues, Boyne said, noting that 11 states now require a criminal conviction before law enforcement can begin a forfeiture action.
These limiting factors are beneficial, Sandick said, because in tough economic times, it could become tempting for law enforcement to look to forfeiture proceeds as a means of raising revenue.
Though the U.S. Supreme Court answered the Eighth Amendment question in Timbs, Ess noted there are still three forfeiture-related questions Hoosier courts must address.
First, the Indiana Supreme Court must decide on the proportionality of the forfeiture of Timbs’ Land Rover under the Excessive Fines Clause. Additionally, Hoosier justices are currently sitting on a case that could decide whether Indiana’s practice of diverting some forfeiture funds away from the Common School Fund is a violation of Article 8, Section 2 of the Indiana Constitution. Justices heard arguments in that case, Jeana M. Horner, et al., v. Terry R. Curry, et al., 18S-PL-00333, in October.
Finally, the Indiana General Assembly in 2018 passed a series of civil forfeiture reforms designed to increase due process for people whose property is seized, a change made in response to the ruling in Leroy Washington v. Marion County Prosecutor, et al., 1:16-cv-02980. But on Feb. 26, the 7th Circuit Court of Appeals remanded Washington with instructions for the Indiana Southern District Court to determine if the legislative reforms resolved the due process issues identified in the Washington ruling, which was litigated by Cardella.
Ess has long referred to Indiana as the “legal proving ground” for civil forfeiture reform. Now, he said the Hoosier state is poised to have a trifecta of decisions that could significantly impact the civil forfeiture landscape.•