Timbs civil forfeiture suit starts same as 7 years ago

A judge ordered the state to return Tyson Timbs’ Land Rover seized in a drug case after a U.S. Supreme Court reversal. (IL file photo)

It’s been seven years since Marion man Tyson Timbs lost his Land Rover to a law enforcement seizure, but the ensuing forfeiture litigation is now heading into its second round of appeals.

The situation now looks much the same as it did in 2015, when Grant Superior Judge Jeffrey Todd first ruled against the seizure of the Rover, purchased for about $42,000 in money Timbs got from his father’s life insurance policy. The seizure of the vehicle is disproportionate to Timbs’ drug and theft offenses, Todd said in 2015, especially considering the maximum statutory fine of $10,000.

But the difference now is that Todd’s most recent ruling against the forfeiture, handed down in late April, is that the trial judge was working from a proportionality test developed by the Indiana Supreme Court. Using that test, Todd has once again determined the forfeiture would not be proportional and thus ordered the immediate return of the Rover.

The state has already filed a notice of appeal, though Timbs’ lawyers said they have been working to get the Rover back while the appeal is pending. It’s currently in the possession of local law enforcement, his lawyer said.

The state also appealed back in 2015, taking the case all the way up to the Indiana Supreme Court, the United States Supreme Court and back down to the state Supreme Court before returning to Grant County.

Even now, seven years after Timbs’ felony convictions, opinions differ over the seizure’s proportionality. Some say Timbs is trying to improve his life and needs his car to do that, while others say the punishment fits the crime.

As the appellate process begins again, lawyers who work in the civil forfeiture world say they’ll be watching to see what difference the new proportionality test makes in the appellate assessment.

The test

The Land Rover was seized after Timbs was arrested in 2013 in connection with two controlled drug buys, one of which he completed while driving the SUV. He was driving in the Rover to a third controlled buy with an undercover officer when he was pulled over and arrested.

In his April 27 order, Todd noted Timbs became addicted to heroin, the drug he sold, through a hydrocodone prescription. Since then, though, the judge said Timbs has worked to remain clean and has shared his story with others on the road to recovery.

But not having access to his vehicle — his only asset, according to the court’s order — negatively impacts Timbs’ recovery and reintegration, Todd wrote.

“Because employment and treatment are crucial to reintegration into society after committing a criminal offense, the seizure of the Land Rover put the public at risk as it increased the likelihood that Timbs would recidivate,” the judge wrote. “Perhaps of greater import, seizure of the Land Rover runs contrary to one of the touchstones of our penal system — ‘reformation, and not vindictive justice.’”

The key distinction between Todd’s rulings in 2015 and 2020 is the latter’s reliance on the test developed in the Indiana Supreme Court’s 2019 decision in the case. That test calls for a forfeiture proportionality assessment using three factors: the harshness of the punishment or degree to which the forfeiture is remedial or punitive, the severity of the underlying offense, and the claimant’s culpability for the property’s criminal use.

Here, culpability was established, Todd said — Timbs admits to driving the Rover to at least one of the controlled buys. But as to harshness, the trial judge said the forfeiture would be “excessively punitive and unduly harsh.”

Likewise, the offense was of “minimal severity” given that there were no victims — that is, Timbs dealt drugs to an undercover officer, not another person addicted to heroin. He also wasn’t a “kingpin,” the court noted.

“Tyson Timbs was an opiate user who committed a victimless crime in violation of a statute promulgated primarily to punish a class of individuals into which he did not fall,” Todd concluded.

Application

Across the board, the Supreme Court’s three-factor test is viewed as a fair way to assess proportionality in civil forfeiture cases. Todd Ess, an Indianapolis criminal defense attorney who handles civil forfeitures, said the court’s 2019 ruling in Timbs is the first time there’s been any state-based guidance on forfeiture proportionality.

Judge Todd’s application of the test was likewise fair, said Sam Gedge, an attorney with the Virginia-based Institute for Justice, which has represented Timbs.

“It’s looking not just at the market value,” Gedge said, “but also the financial impact to the property owner and other considerations.”

Those considerations included the fact that Timbs has had to rely on his aunt for transportation to and from his jobs and recovery activities, as well as the fact that he was essentially “broke” when his greatest asset was taken away.

But retired Indiana Supreme Court Justice Frank Sullivan contrasts Timbs’ case with Serrano v. State, 946 N.E.2d 1139 (Ind. 2011), the last Indiana Supreme Court case that dealt with the issue of forfeiture. The Serrano court, which included Sullivan, unanimously ordered the return of a seized vehicle.

In Serrano, the defendant acknowledged his drug use, but he argued there was no evidence tying the drugs to his seized truck. The court agreed, ordering the truck’s return.

But here, Sullivan said, it’s undisputed that Timbs used the Land Rover to drive to one of the controlled buys. Additionally, the former justice noted Timbs took a plea that convicted him of only one instance of dealing, which comes with a $10,000 fine.

But Timbs was actually involved in three controlled buys — a $30,000 total — though the third buy was not completed because of his arrest, Sullivan said. What’s more, he continued, the value of the Rover has decreased over time.

Thus, Sullivan theorized that the prosecutor was looking at the “total penalty” when weighing the proportionality of the forfeiture.

“If the total penalty is, he has a Class B felony conviction and he has to forfeit $30,000 worth of property,” he said, “that’s a fair and appropriate penalty, and proportional and not excessive.”

‘Case on point’

As Timbs prepares for a second round appeals, Gedge said it’s “baffling” to him that Indiana Attorney General Curtis Hill is keeping the litigation alive.

In a statement to Indiana Lawyer, Hill said he wants to defend the constitutionality of the state’s forfeiture laws.

“We believe the trial court to be misguided in its contention that Timbs’ offenses were ‘victimless,’” Hill said. “To the contrary, we believe that dealing heroin is a very serious offense, and we believe that the devastation caused by the drug crisis across Indiana bears witness to this sad reality.”

Though the future of the Grant County case is unknown, Ess says some good has come out of the litigation — now, Indiana practitioners have guidance on the proportionality question.

“It provides clarity for us in Indiana,” Ess said. “Up until Timbs was remanded, all we had to rely on was caselaw from other jurisdictions or from federal court.”

Indeed, Ess recalled a case from a few years ago when both he and opposing counsel were stuck on the same question in a forfeiture dispute: “What’s the test?”

The Timbs decision is another positive step on the road to more civil forfeiture practices that are more just and proportional, Ess said. “That’s my sigh of relief,” he said. “It’s a case on point.”•

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