For the third time, the case regarding the forfeiture of a Marion man’s Land Rover went back before the Indiana Supreme Court on Thursday. Justices were asked once again to allow the state to forfeit the vehicle that Tyson Timbs was driving in 2013 when he was arrested for drug dealing.
The case of State of Indiana v. Tyson Timbs, 20S-MI-289, has been much-litigated. Since the initial ruling from the Grant Superior Court in 2015 denying the state’s forfeiture petition, the case has wound through the appeals process, going as high as the U.S. Supreme Court.
According to the state, because Timbs was driving the Rover – which he purchased with money inherited from his father’s life insurance policy – during three controlled buys that led to his arrest for heroin dealing, the Rover is an instrumentality of crime and thus forfeitable. Both the trial court and the Indiana Court of Appeals disagreed, finding the forfeiture would be disproportionate to his crime.
The federal justices answered that question with a yes, remanding the case to the Indiana Supreme Court for a second review under the Eighth Amendment. The state justices developed a proportionality test for examining forfeitures under the Excessive Fines Clause, then remanded the case for the trial court to apply the new test to Timbs.
In April 2020, the Grant Superior Court again ruled in Timbs’ favor, once again declining to endorse the forfeiture petition. The Rover has been returned to Timbs, but the state filed a direct appeal to the Indiana Supreme Court to once again take possession of the vehicle.
In its April order, the trial court described Timbs’ convictions — dealing in heroin and conspiracy to commit theft — as being “victimless” crimes because he only sold drugs to undercover officers. As Sam Gedge, a lawyer with the Virginia-based Institute for Justices, repeatedly told the justices on Thursday, drug dealing was not Timbs’ “trade.”
Even so, Indiana Solicitor General Thomas Fisher said Timbs’ crimes were still significant. With the Rover, he put some $30,000 into the heroin trade by frequently driving from Marion to Richmond to purchase drugs. In the context of the opioid epidemic, Fisher said, those buys are significant.
What’s more, Fisher said, Timbs did not suffer “catastrophic consequences” due to the loss of his vehicle. Though he did not have a car of his own, he was able to use his aunt’s vehicle to get to and from work and treatment programs.
“It was still a serious Class B felony,” Fisher told the justices. He quoted one of the officers involved in the controlled buys, he testified, “It doesn’t get much higher than that.”
Gedge, however, painted Timbs as a drug addict, not a drug dealer, who sold drugs only at the behest of law enforcement. The lawyer opined that likely, law enforcement saw a low-income man driving a nice car and wrongly assumed the vehicle was purchased with drug money.
The state urged the justices to reconsider the proportionality test developed in October 2019, arguing instead that the court should focus primarily on the question of whether the property to be forfeited is an instrumentality of the crime. Gedge, however, said the fact-specific nature of the proportionality test makes it appropriate.
Though he argued that Timbs’ Rover should not be forfeited under the test, Gedge said not all defendants would be able to likewise prevail. He discussed a “spectrum of culpability,” where he said Timbs falls on the low end, pointing to his sentence of one year of community corrections and the rest on house arrest.
“If Timbs was the guy in Marion who sold drugs and he happened to get caught, that might put him more toward being culpable,” Gedge argued. “Here … we haven’t disputed that he was an addict, but drugs were not his trade.”
Fisher, however, maintained that the standard of “gross disproportionality” laid out by the Supreme Court has to mean an extreme set of facts that would make a forfeiture unconstitutional. Those facts aren’t present in this case, he said.
“It wasn’t just one or two buys. He used the Rover over and over and over again to buy drugs,” Fisher said. “Couple that with a Class B felony and a Class D felony, and this is serious business. I don’t see how you get away from that.”
Each of the five justices asked questions during arguments, covering issues such as limiting principles, the proportionality standard under the Cruel and Unusual Punishment Clause and the effect the forfeiture had on Timbs and his family, among other issues.
The full oral arguments can be viewed online.