Property Rights

This Week, Supreme Court Will Hear an Important Case that Could Help Curb Asset Forfeiture Abuse

The case both addresses important legal issues, and could have substantial practical implications.


On Wednesday, the Supreme Court will hear oral arguments in Timbs v. Indiana, an important property rights/asset forfeiture case. George Will recently published an excellent Washington Post column describing some of the issues at stake:

Tyson Timbs made a mistake, but not one as important as Indiana's Supreme Court made in allowing to stand the punishment the state inflicted on him. He was a drug addict — first with opioids prescribed for a work-related injury, then heroin — when his father died. He blew the $73,000 insurance payout on drugs and a $41,558 Land Rover, which he drove when selling $225 worth of drugs — two grams of heroin — to undercover police officers. Timbs's vehicle was seized and kept, which amounted to a fine more than 184 times larger than the sum involved in his offense….

The seizure was done under Indiana's version of civil forfeiture laws, which allow governments to seize property used in the commission of a crime. As they are often used, such laws are incentives for abusive governments, because the entity that seizes the property frequently is allowed to profit by keeping or selling it. Lucrative law enforcement will become lawless.

Under the "incorporation" doctrine, the Supreme Court has explicitly applied, through the 14th Amendment, most of the Bill of Rights' protections, piecemeal, against states' behaviors….

But although two federal judicial circuits and at least 14 state high courts apply the excessive-fines clause [of the Eighth Amendment] to the states, and although seven times the court (or two or more justices writing separately) has said that the Eighth Amendment as a whole applies to the states, it has never had an occasion to explicitly apply the excessive-fines clause….

I discussed Timbs in greater detail in this post, written back in June, when the Supreme Court first decided to hear it:

[T]he case will address the question of whether the Excessive Fines Clause of the Eighth Amendment applies against states, as well as the federal government. If the Supreme Court decides that the Clause does apply against the states, it will also have to consider exactly what kinds of fines qualify as "excessive" and to what extent the Clause applies to asset forfeitures, as well as more conventional fines….

[T]he Bill of Rights was originally intended to restrict only the federal government. But, as leading scholars on both right and left have come to recognize, the framers of the Fourteenth Amendment sought to apply the Bill of Rights against the states, as part of their more general effort to curb state governments' abusive mistreatment of minorities and others, most notably recently freed African-American slaves. As Eugene describes in some detail, the Supreme Court initially refused to apply the Bill of Rights to the states, even after the Fourteenth Amendment. But has gradually ruled that nearly all of the individual rights listed there are in fact incorporated. Multiple lower court decisions have ruled that the Third Amendment - one of the few provisions not yet addressed by the Supreme Court - should be incorporated, as well.

Rejecting incorporation of the Excessive Fines Clause would be an extreme anomaly at a time when the Court has already incorporated both the rest of the Eighth Amendment (which forbids "excessive bail" and "cruel and unusual punishment"), and also every other provision of the Bill of Rights that protects property rights. It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not….

The more difficult questions raised by Timbs are the extent to which the Excessive Fine Clause covers asset forfeiture as well as ordinary criminal fines, and what counts as "excessive."

Asset forfeiture abuse is a serious problem that often victimizes innocent people and particularly harms the poor. For these reasons, among others, it has attracted widespread opposition on both right and left.

Asset forfeiture technically differs from a fine because the former involves seizure of specific property that was allegedly used in the course of committing a crime, rather than imposition of punishment against a perpetrator (which, if it takes the form of a fine, can be paid using any assets the defendant owns). Nonetheless, the Supreme Court has already ruled that at least some asset forfeitures are covered by the Clause in the 1998 case of United States v. Bajakajian

The last big issue that the Court may have to address in Timbs is what counts as an "excessive" fine. In Bajakajian, the Court ruled that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." This is far from a precise standard, and it often will not be easy to tell where mere ordinary disproportion ends, and the "gross" kind begins.

Timbs itself may be an easy case when it comes to "grossness." The state of Indiana seized the defendant's brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 - a very large disparity. But if the Excessive Fines Clause is applied against the states, which prosecute the vast majority of criminal cases (and the lion's share of civil asset forfeitures, as well), federal courts are likely to have to deal with much closer cases in the future….

Like the asset forfeiture issue more generally, the Timbs case unites a wide range of groups across the political spectrum. The property owner is being represented by the Institute for Justice, a prominent libertarian public interest law firm. Organizations as varied as the ACLU, the Chamber of Commerce, the NAACP Legal Defense and Educational Fund, and the Pacific Legal Foundation, have all filed amicus briefs supporting Timbs. This unusual coalition reflects the fact that asset forfeitures are an affront to property rights, and disproportionately victimize the poor and racial minorities. However, asset forfeitures did enjoy the strong support of recently departed Attorney General Jeff Sessions, who last year reinstituted a federal policy that helps state and local law enforcement agencies circumvent state limitations on forfeiture and keep a hefty share of the profits for themselves. Sessions' policy drew widespread bipartisan opposition. But reforms that passed the House of Representatives by unanimous vote have stalled in the Senate.

NOTE: The defendant in Timbs is represented by the Institute for Justice, a leading public interest law firm with which I have a longstanding association. Among other things, I have worked with them on a number of other property rights cases. However, I have no involvement in this case. IJ's website has a lot of interesting information on the background of the case here.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. He blew the $73,000 insurance payout on drugs and a $41,558 Land Rover

    Extremely bad judgment should not be a crime.

    1. Ummm, did you see the part about selling the heroin? Reasonable people can disagree about whether drug laws work, but there are about 60,000 opiod deaths a year, so its not like Indiana is just criminalizing profligate spending.

      1. I guess I was seeing it from the libertarian perspective.

        1. Do you support gun bans? Do you support mandatory cake baking? If so, you’re not a libertarian, so stop calling yourself that.

          1. You’ve been around here long enough to know — if you pay attention to what others actually say — that Arthur doesn’t call himself a libertarian and never did. Maybe we need a typeface or emoji for irony — at least for some of us.

            1. I am a libertarian by the standards of the Volokh Conspiracy, at which everyone qualifies as a libertarian (and movement conservatives label themselves “often libertarian”).

        2. Libertarian or not, this seems like an excessive punishment.

          Not to mention the number of civil asset forfeitures that result from situations without criminal convictions?or even charges.

          Civil asset forfeitures are literally highway robbery. This practice should have been stopped long ago.

  2. What about the abuse of confiscation without a conviction, or sometimes without even any criminal charges? Will that be addressed in this case?

    1. Yep. I’d have been happier if the case going to SCOTUS had been one where the person whose money was seized was not guilty of any crime at all.

      1. I suppose if they decide that confiscation as a fine can be excessive, then confiscation absent a conviction or even a criminal charge should be even more so, although it’s seems that would be more an illegal “taking” than an excessive fine.

        I wonder if any of the amicus briefs mention that aspect?

      2. IIRC, the legal fiction they use in forfeiture against those not convicted of any crimes, is that it’s a civil action against the property, not the owner of the property. (Conveniently, property lacks civil rights, such as the right to a jury trial…) It’s that legal lie that would have to be struck down, before any rights of the owner could be vindicated.

        Unfortunately, the legal system does love it’s lies.

        1. Only an out of control judiciary could decide that a person isn’t being deprived of property without due process if the action is brought against the property itself, and not the person.

          1. Civil asset forfeiture made sense in its original context – but we are a long, long way from that context.

            Civil asset forfeiture was a response to early smuggling at a time when smugglers might thrown their contraband overboard or, if the situation was desperate enough, might go overboard themselves, abandoning the boat and cargo. At that point, the authorities have the property and know that it is illegal by its nature but they do not know who the owners are. So they can’t prosecute the owners. And they can’t leave the contraband lying around. CAF gave them a legal fig leaf to take custody of the property.

            In modern terms, CAF should still be applicable if, for example, the police find drugs abandoned somewhere – they should be able to confiscate the drugs themselves on nothing stronger than a showing that the drugs are in fact contraband materials. The idea of confiscating everything the alleged drug dealer owns without bothering to convict the owner, however, is an abomination.

  3. In deciding this case, the Supreme Court might choose to clarify the much more basic question of how it determines which rights, whether enumerated in the original Bill of Rights or not, to regard as incorporated or fundamental rights under the 14th Amendment.

    The NAACP chose a remarkably originalist approach in arguing that the 14th Amendment incorporates those rights essential to preventing states from re-subjugating newly freed black people and re-instituting de facto slavery. It characterized excessive fines as an essential element of state-sponsored debt peonage, and hence coming within this framework. It said the framers of the 14th Amendment would have seen excessive finds as coming within its scope.

    But if the Supreme Court chose to take up on the NASCP’s proposal, it might choose to do so in a way that is as much a limitation as an extension.
    Consider abortion. Many states enacted anti-abortion laws shortly after the 14th Amendment was passed and regarded it as part of a general progressive tendency that began with abolishing slavery. It is hard to see how laws against abortion and such would be unconstitutional under such an originalist approach.

    1. I agree with the NAACP’s approach. Those rights were the ones that the privileges or immunities clause was intended to incorporate. And of course, gun rights are of the most essential.

      1. The interesting thing about the court not incorporating via the privileges or immunities clause is that the rights incorporated via due process are available to citizen and alien alike.

        The privileges clause applies only to citizens, while due process applies to all.

  4. “It would be especially strange to conclude that the Excessive Bail Clause is incorporated while the Excessive Fines Clause is not…”

    It would be especially strange to conclude that the criminal-jury clause of the Sixth Amendment is incorporated, but the grand-jury clause of the 5th Amendment and the civil-jury clause of the Seventh Amendment was not incorporated, yet here we are.

    1. It’s a consequence of the Court’s pathological reluctance to just come out and admit the Slaughterhouse cases were wrongly decided, and declare them bad law, utterly void. And restore the P&I clause to it’s honest meaning, as Thomas advocates.

      This piecemeal incorporation under the due process clause has really warped 14th amendment jurisprudence, in a lot of ways. But we appear stuck with it for now, too many members of the Court hate overturning even bad precedents.

      Law is the only profession I can think of where, once a mistake is made, it is treasured instead of being seen as something in need of correction.

      1. Sounds like you’re now pushing for “activist judges.”

        But. . . that can’t be right. . . .

        1. Sure it can be right. I don’t complain about “activist” judges: Judges are supposed to actively enforce the law and Constitution. I complain about malfeasance by judges, which can be passively refusing to enforce the law, or actively corrupting it.

          I think the complaints about judicial “activism” mostly come from office holders, who’d prefer that the courts just let them do anything they want.

        2. Deferring to a wholly illegitimate precedent is the activist move. Overturning it is not.

      2. Law is the only profession I can think of where, once a mistake is made, it is treasured…

        I have some bad news for you about science. And indeed any large institution with a dominant paradigm.

        Change can suck; pure idealism is no way to run a society. Policy continuity has a value all it’s own. That the law formalizes this doesn’t make it any more or less crazy than all the other places that functionally do the same thing.

        1. It’s the difference between between clinging to mistakes while pretending they’re true, and clinging to them while admitting they’re mistakes. Only law does the latter, explicitly values precedents that are KNOWN to be mistaken.

          1. I don’t see the difference – that there is a chain of command and only someone with the appropriate authority can change policy, right or wrong, isn’t specific to the judiciary. And it is a system that exists for a reason, along with managerial fictions.

            As for the specific example of Slaughterhouse cases not being overruled by the top of the chain of command, you seem to think that a costless endeavor. I don’t think it is at all accepted that that is the case. Quite the opposite in my law school, actually.

            And listening to your and Bob’s disparate opinions about incorporation, that provides another reason not to want to open that can of worms – as with both sides’ reluctance to hold a constitutional convention, the final outcome may not be what you hope it is.

            1. I’d love to have a Constitutional convention. You leftists can then show your true colors by coming up with a fifty page document protecting every form of abortion, every position one can have deviant sex in, and every positive right welfare giveaway.

              1. You forgot revoke 2A.

                You know that’s going to happen eventually.

                1. People die eventually, too. Nations also die.

                  But I’m not expecting the 2nd amendment to be repealed any time soon, too many people value it, and they’re almost all armed.

                2. I think once the Dems have imported enough third-world Hispanics to flip Texas, they will indeed treat the 2A as dead letter. But most of us won’t give our guns up.

              2. Libertarians support the right of consenting adults to have sex in any deviant position they want to. What you want is theocracy.

            2. I’m not reluctant to hold a constitutional convention. I doubt the outcome would be as good as the constitution we have now, but what good is the best constitution in the world, if it isn’t actually being followed?

              It’s my hope that a constitutional convention would remove all excuses to go “living constitution” for a while.

              1. It’s pretty radical to monkey with a text you like based on your hope it might tamp down a jurisprudential philosophy you disagree with.

                You’re accepting a lot of risk there – there’s a lot more potential downsides than upsides, seems to me. Kinda like if we started monkeying with incorporation.

                1. “Living Constitutionalism” is not a “philosophy I disagree with.” It’s an illegitimate bastardization.

                  1. Yes, it’s like describing embezzlement as “accounting practices you disagree with”. Living constitutionalism is judges embezzling constitutional change.

  5. Timbs itself may be an easy case when it comes to “grossness.” The state of Indiana seized the defendant’s brand new Land Rover LR2, a vehicle worth about $42,000, even though the maximum fine for his actual offense was only $10,000 – a very large disparity. But if the Excessive Fines Clause is applied against the states, which prosecute the vast majority of criminal cases (and the lion’s share of civil asset forfeitures, as well), federal courts are likely to have to deal with much closer cases in the future….

    They shouldn’t have to. The notion that forfeiture is not a fine defies common sense. The simple solution is to do away with it. If the legislature wants to impose a fine for some criminal offense let it do so. But don’t let law enforcement make up its own rules.

    1. “But don’t let law enforcement make up its own rules.”

      They didn’t.

      “Indiana’s version of civil forfeiture laws, which allow governments to seize property used in the commission of a crime.”

      Forfeiture is done under statutory provisions.

  6. Incorporation doctrine is of course grossly incorrect and unconstitutional, not supported by the text of the amendment at all.

    Having said that, while we are stuck with this federal court power grab, it makes no sense to incorporate the rest of 8A and mot the excessive fines portion.

    Having said that, this forfeiture after conviction of this drug dealer is in no way excessive so he should win the principle but lose the car.

    1. It’s excessive in the sense that it’s not based on statute. Even if he was driving a $1,500 beater, seizing the car isn’t part of the crime.

      1. I don’t think that is right. Forfeiture is conducted per a separate statute.

  7. The original intent of asset forfeiture was to prevent mob bosses from using their available resources to defend themselves in court (and more nefarious ways of getting out of a conviction).

    It is a foreseeable consequence based on the incentives that it would spread.

  8. In other news, but somewhat related, the Supreme court just ruled 8-0 in favor of Weyerhaeuser Co.

    The EPA can’t take your property rights away just because they think they might need your property some time in the future as habitat for a species that doesn’t even live there.

  9. We’ll see whether Gorsuch really has libertarian instincts or whether authoritarian instincts over-ride them.

  10. Completely separate from how one thinks the Supreme Court should re, the Indiana Supreme Court’s ruling was impeccable, squarely addressing the issue, applying the correct legal standard, and reaching the unimpeachably correct result.

    According to Obergefelle v. Hodges, the identification of fundamental rights cannot be reduced to any standard or formula and is not bound by history or precedent, but is based on the use of reasoned judgement.

    Applying this standard, the Indiana Supreme Court correctly looked through Supreme Court precedent to determine if the Supreme Court had excercised reasoned judgment on the matter, and concluded it hadn’t, precedent had left it open. It therefore correctly concluded that in the absence of reasoned judgment, it had no basis for concluding that a fundamental right existed. All it could do would be to speculate about what a future Supreme Court might conclude. In the absence of formulas, standards, history, or precedent, its guess would be no better than anyone else’s. Applying its rule that laws are presumed constitutional until proven otherwise, it correctly concluded that Obergefelle v. Hodges eliminated all the usual bases lower courts have used to overcome the presumption, and hence means there is never a basis for overcoming the presumption of constitutionality until the US Supreme Court actually rules on the matter.

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