Property Rights

The Seemingly Interminable Saga of the Timbs Asset Forfeiture Case Continues

It went all the way to the US Supreme Court, and is now back in the Indiana state Supreme Court for the third time.

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The long-running Timbs v. Indiana asset forfeiture case is back in the Indiana Supreme Court for the third time. For almost eight years, the state of Indiana has waged a legal battle to seize and keep Tyson Timbs' Land Rover (valued at about $40,000), after he was caught selling illegal drugs to an undercover cop (an offense for which he served a year under house arrest and five years probation). The state seized the car, using the civil asset forfeiture process, which allows the government to confiscate property that was in some connected to a crime, often even if the link was dubious, at best, and even if the owner was never charged or convicted of any offense.

Abusive forfeitures are a widespread problem that often victimizes innocent people and particularly harms the poor.  In many states, law enforcement agencies get to keep the proceeds from seized assets, which incentivizes them to pursue asset forfeiture instead of devoting time and effort to actually combatting crime.  I described the problems caused by asset forfeiture abuse in greater detail in my 2019 testimony before the Arkansas State Advisory Committee to the US Commission on Civil Rights. The outrageous injustices of the asset forfeiture system have earned widespread condemnation from scholars and activists across the political spectrum, many of whom agree on little else.

In 2017, the Indiana Supreme Court upheld the seizure of Timbs' vehicle on the basis that the Excessive Fines Clause of the Eighth Amendment does not apply to state governments. In an important 2019 ruling, the federal Supreme Court unanimously reversed the state court decision, and held that the Excessive Fines Clause does indeed apply to state and local governments, and also that it forbids at least some asset forfeitures.

After the case was remanded to the Indiana Supreme Court, that court issued a decision establishing standards for the application of the Excessive Fines Clause to asset forfeitures that seemed likely to lead to the invalidation of the seizure of Timbs' land rover. Last May, a state trial court applying the federal and state supreme court rulings finally ordered the return of the car to Timbs, some seven years after the case began.

Undaunted, the state has continued its Inspector Javert-like quest to establish possession of the Land Rover. It is now back in the Indiana Supreme Court, trying to get the trial court decision reversed. Reason's Billy Binion has a helpful summary of the where the case now stands:

In May 2020, Timbs reclaimed the car, but only after a legal saga that saw his case ping-pong up and down the rungs of the U.S. court system….

A trial court ruled in his favor…, writing that seizing the vehicle—which was worth four times the value of the maximum financial penalty for the crime Timbs committed—was indeed "excessive."

Indiana was unfazed. "The state is once again asking the Indiana Supreme Court to hold that there is no proportionality limit on how much property they can forfeit, that they can forfeit a Bugatti if it goes five miles over the speed limit, regardless of what an obvious mismatch and injustice that would be," says Sam Gedge, an attorney at the Institute for Justice, the legal nonprofit representing Timbs.

Their alternative argument isn't much better. The state maintains that, even if proportionality is on the table, "when it comes to punishing anybody who struggled with drug addiction, no punishment is too high," Gedge explains. "So [the state] can basically take everything they own, and that shouldn't violate the excessive fines clause."

These arguments strike me as somewhere between weak and utterly risible. The whole concept of an "excessive" fine implies there must be at least some degree of proportionality between the offense the owner supposedly committed and the value of the property seized. Indeed, proportionality is central to the Indiana Supreme Court's earlier decision in the Timbs case itself, where that court ruled that judges applying the Excessive Fines Clause in asset forfeiture cases must determine whether the forfeiture would be "grossly disproportionate" to the offense in question. In the process, they must weigh such factors as the severity of the offense and the value of the property to the owner. You don't have to be a property rights expert to see that this test is all about proportionality.

Similarly, nothing in the Indiana Supreme Court ruling or the text, original meaning, and history of the Eighth Amendment creates a special exception for drug offenses. To the contrary, draconian seizures of property belonging to small-time drug offenders like Timbs are clear examples of unconstitutional excessiveness, if anything is.

Thus, it seems likely that the state will suffer another defeat, and Timbs will ultimately prevail (again!). But, as I have written before, the almost interminable saga of this case highlights the need for more comprehensive asset forfeiture reform:

[T]he fact that this case has dragged on for so long is an indication of how hard it can be for owners to recover their property once it has disappeared into the maws of the asset forfeiture system. Law enforcement is loathe to disgorge its ill-gotten gains. And, unlike Timbs, most owners do not have the benefit of excellent pro bono representation from the Institute for Justice, one of the nation's leading public interest law firms. In many situations, the cost of using the legal system to recovery seized property is greater than the value of property itself. So owners have little choice but to give up, even if they are entirely in the right.

To fully address these issues, we need both stronger judicial enforcement of constitutional limits asset forfeitures, and more legislative reform of the kind already enacted in many—but by no means all—states.

The new Biden Administration can help by repealing Trump's  2017 revival of the federal "equitable sharing" program, under which state and local asset forfeitures are "adopted" by the federal government. The feds then share the proceeds with state and local law enforcement agencies—even in cases where state law otherwise bars the latter from profiting from the seized assets.

NOTE: Tyson Timbs is represented by the Institute for Justice, a prominent public interest law firm, with which I have longstanding connections, and for which I have done pro bono work on other property rights cases. I did not, however, have any involvement in this particular case. IJ has a section of its website devoted to the Timbs case here.

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  1. These arguments strike me as somewhere between weak and utterly risible.

    Did you consider exploring the actual arguments, and not the way the lawyer for the other side presented them to sympathetic media outlets?

    1. One could ask you the same. Are you arguing that the said arguments are not weak and utterly risible? Or are you arguing that the argument is not an argument? I claim right here that your comment is not an argument but a baseless refutation without evidence. Monty Python should sue you for copyright infringement.

      1. I’m arguing that the strawman arguments (to put it charitably) presented in the block quote are not the actual arguments presented by the state.

        1. The rebut the arguments in the article with your own actual quotes. Tell us why you think the article is being unfair. Because personally, that block quote looks like a pretty reasonable representation of the state’s arguments to me.

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        2. I’m arguing that the strawman arguments (to put it charitably) presented in the block quote are not the actual arguments presented by the state.

          You’re not. You’re insinuating that.

    2. Looks like he considered it, did it, and linked to the posts where he did it.

      1. You were able to find the link to the State’s latest argument to the SSC? If so, can you tell us which one it is?

  2. What if Timbs had sold the vehicle when it was returned but before the state’s appeal went forward? Would that have been legal? And then what would the state do? Go after the money, or would they try and recover the vehicle from the new owner because it was the physical vehicle that was used in the crime, and therefore an accomplice or whatever justification they use to seize that particular property?

    Also, if Timbs wins does he just get to keep the old vehicle, which undoubtedly depreciated a great deal over the years, or could he recover the difference in value?

    1. “Also, if Timbs wins does he just get to keep the old vehicle, which undoubtedly depreciated a great deal over the years, or could he recover the difference in value?”

      Exactly … the land rover is probably worth *much* less now … and what about all the years that the state deprived Timbs of the use of the vehicle?

    2. “Also, if Timbs wins does he just get to keep the old vehicle, which undoubtedly depreciated a great deal over the years, or could he recover the difference in value?”

      It’s not just that — if it’s been sitting for years on an impound lot, exposed to the weather, it likely isn’t even safe to drive.

      Let’s start with the tires, which both become “D” shaped and crack if they sit in one place without being moved — this is a real problem the National Guard encounters with its vehicles if they aren’t driven often.

      Then there are all the steering linkages that bind up because they haven’t been moved, likewise ball joints, etc. Snap one of those and things will get really interesting, really quickly.

      Animals (particularly mice) can and do build nests in vehicles — the exhaust manifold and over the Cat Converter are particularly favorite places, up and out of the wind, and these *will* start fires if not found & removed. I’ve even seen mice inside body panels, once finally evicting one by emulating Bull Connor and using a garden hose.

      Mechanically, you can get everything up to and including engine seizure — the pistons rusting to the cylinder wall (due to lack of lubrication) and the engine unable to turn over.

      It *really* isn’t good for a vehicle not to be driven at least 20 continuous miles at least once each month. For years I told undergrads not to park their car when they arrived in September, not drive it at all, and then honestly expect it to start when they wanted to drive home for Thanksgiving. Some listened — others didn’t….

    3. I’m not sure about this case, but this was a civil asset forfeiture case. In those cases the forfeiture is the result of finding the object rather than the owner of the object liable. Very insidious…

      To answer the question, I think the car goes back to the state regardless of the current owner.

      1. But if we follow that logic to its natural conclusion the police should never be able to sell such a vehicle either (or spend money when they seize that). They should lock up the seized assets as accessories to the crime.

        But if that’s the case, then it doesn’t seem right to lock up these assets forever unless they were involved in murder. At some point these assets should be at least eligible for parole.

  3. I want to preserve this law enforcement tactic, affirmed in 1827 by the Marshall Court. The assets of the tech billionaires should be seized in civil forfeiture for the billions of federal internet crimes committed on their platforms. They have committed millions themselves, inflating their viewerships to advertisers. Half their viewers are not human.

    Then auction them off like the Ferrari of a drug dealer.

    1. I know you’re being sarcastic but just in case others are reading, the civil asset forfeiture affirmed in 1827 was a very different tactic. In it’s origin, CAF was a way of taking custody of property that was self-evident contraband but for whom the owner could not be proven. And most importantly, for whom the owner would never step forward (because doing so would be admission of a crime).

      For those who want to read it, the case was US v 350 Chest of Tea. At the time, tea was subject to import taxes and had to be stamped to show that the taxes were paid. Police found these boxes without the stamps. They prosecuted some of the people involved in the scam but could not prove who the actual owners of the tea were. So they’ve got as many people locked up as they can but they’ve still got a pile of tea. You can’t just leave it sitting there. Someone needs to take ownership and do something with it. CAF proceedings provide the legal basis for the government taking custody of the unowned contraband items.

      The original version of CAF was reasonable. If, for example, police interrupt a drug deal and everyone gets away but a kilo of heroin is left in the middle of the street, police still need a legal basis to take custody and destroy it. That version has little resemblance to the current abuse of CAF.

      1. Can we agree, antitrust is dubious constitutionally, expensive, risky, slow?

        Civil forfeiture is immediate, and the burden falls to the tech billionaires to retrieve their assets. If someone has commiitted billions of federal crimes, why not seize their assets?

        1. Rossami. Nice review and analysis. Not being sarcastic. Thank you.

  4. How can the federal government coopt state and local police against a state’s will? If the state doesn’t want its citizens’ property seized (or wants it only with a higher burden of proof), how can the federal government tell a state’s own employees no, you don’t have to listen to your employer, you can go ahead and disobey it?

    Why isn’t “federalizing” state and local police getting challenged under Prinz v. united States? Why is this different from “federalizing” them for the purpose of doing background checks on guns, the issue in Prinz? Sure, the police departments may not want to complain aboit it. But why can’t an individual whose property was seized under the federal program in a state where state law allows it make a 10th Amendment challenge on grounds the federal program is coopting state police to violate state law?

    1. Printz — and especially the practices of local officials after the Supreme Court ruled — established that the federal government cannot directly command local law enforcement bodies like that, but that those law enforcement bodies can do those things on their own. The state would need to forbid their police from working on joint state-federal task forces, at least in certain circumstances.

    2. How is a federal court telling state police “you can’t take that guy’s property” an example of “federalizing” state police?

      1. It doesn’t have to forbid working on joint state federal task forces. It just has to forbid its employees from seizing property without stronger evidence of connection to a crime than federal law permits, at any time while on its payroll.

      2. The situation is the opposite. Under federal law, they CAN take the propery. State law says they can’t. The Printz argument is that when the federal government tells state employees they can do what state law says they can’t, it is commandeering state employees.

        The argument is similar to the one the 9th Circuit used in United Statesv. California to find that California can lawfully require its prison administrators not to pass information about state prisoner release dates to the federal government.

        Just because a state allows its officials to cooperate with the federal government in some respects doesn’t mean the federal government and federal law gets to control them in every respect.

  5. This case is a good argument against prosecutorial immunity. FWIW.

  6. Why isn’t criminal asset forfeiture simply limited to any object that was involved in the crime itself? Not simply an “instrumentality” of the crime, but actually part of it?

    For example, drugs in a drug deal, money for randomware, the computer used to conduct a cyberaftack (thats probably a little more difficult under the proposed standard, but you get the point), the bank account used to launder money, etc …

    Like “you used a car to get to a drug deal, we can take the car” is obviously ridiculous, but I’m not against the practice in general! And I don’t even think you should require a conviction if the thing is obviously contraband. And even in a similar case to this … like if plane was modified for the sole purpose of carrying cocaine and you caught it filled with cocaine … you could probably take that. It doesn’t seem difficult to come up with a standard that makes sense to everyone.

    1. If something is obviously contraband, then it should be easy for prosecutors to get a conviction. We have seen way too much abuse of this to give the government any leeway on this.

    2. In Pennsylvania they took the house of the mother. Son dealt drugs from the basement. Is the house an instrumentality of crime? The PA Supreme Court reversed the seizure because the mother was not involved in the crime nor consented to the crime. She had knowledge of the activity, after a raid. It continued.

  7. Go IJ! Rip ’em a new one!

    My favorite charity cause by far these days.

  8. Asset forfeiture abuse could be stopped in its tracks by adopting the following rules:

    1. Asset forfeiture cases are decided by juries.

    2. Burden of proof is on the government to show the property was involved in a crime.

    3. If the government loses it pays the property owner’s legal fees plus depreciation of the asset plus incidentals for loss of use.

    1. Agree that the burden of proof should be on the government. I’ve tried to get my head around the convoluted argument why civil asset forfeiture doesn’t violate the due process clauses of the 5th and 14th amendments, and can’t follow the “logic” beyond “we are able to get away with this *because we can*”.

      That said, I think it is reasonable to apply a lower standard of proof, perhaps even “preponderance of the evidence” standard. But the ball should be in the government’s court, not the “defendant’s” .

      I’m not so sure about the part about paying the property owner’s legal expenses – we don’t do that for criminal trials so why would this be any different?

      1. Because in criminal trials the government has to prove guilt beyond a reasonable doubt which limits the number of frivolous prosecutions. It may not eliminate them entirely.

        With asset forfeiture, however, it’s not unusual for attorney fees to be far greater than what he value of the asset, so the property owner is going to lose no matter what the court does. The prospect of having to pay would deter the government from frivolous seizures and level the playing field

    2. 1. Juries regularly will be as tough on people as the government.

      2. The big issue here is how big a burden. If it is a low burden, such as probable cause or something, it won’t stop things in its tracks.

      3. This sounds promising but the government has deep pockets. The risk probably will be fairly low. It also will rest on how hard it will be for them to lose.

    3. Who do you think has the burden of proof currently?

  9. I doubt the state’s case is merely “when it comes to punishing anybody who struggled with drug addiction, no punishment is too high.” That does sound ridiculous. But, it isn’t actually their position, full stop.

    This is an area that was subject to a lot of abuse. But, reading the specific facts of this case, I did not find Mr. Timbs that great of a representative of the problem. I support his 8A incorporation argument. Prof. Volokh years ago cited my comment that the Supreme Court in dicta assumed the fines provision was incorporated. I’m glad they cleaned that up.

    Also, at some point, the state might want to just accept the loss. But, (to cite the Reason article cited) the state did not “steal” Timbs car here. Timbs actually committed a crime (as compared to many victims of asset forfeiture). The Binion article says the Land Rover is worth 4x (the Supreme Court repeatedly assumed single digit multipliers are reasonable in related punitive fines cases) the criminal penalty. It isn’t a home or something.

    An argument is made that his car is a “tool essential to maintaining employment” … a car might be, but some 40K Land Rover? Furthermore, it is noted that he didn’t obtain it with his proceeds. BUT, again quoting a previous Reason article, the claim IS “on the ground that it had been used to commit a crime.”

    This all might still be excessive. But, not “no punishment is too high.” An expensive car. Not merely to punish people for advancing drug abuse. Taking something used for the crime itself.

    If Mr. Timbs has a good case that on the actual merits, not overblown rhetoric, that it is excessive, fine. A lot of other people probably have a better case all the same. If his case helps to deal with excesses in asset forfeiture, still good, on that level.

    1. That’s not the entirety of their argument but that is something the prosecutors said during the case. Yes, they really said something that ridiculous. They rejected any limits whatsoever on their power to confiscate.

      And, yes, the state did just “steal” Timbs’ car. If the state wanted to confiscate his car as part of his punishment, they needed to do that as part of his criminal trial. They didn’t. He was convicted of his crime, sentenced to a punishment and completed that punishment. The state shouldn’t be able to unilaterally add to that punishment under the fiction of civil asset forfeiture.

      1. This.

        I think it is a ridiculous fiction that people pretend these forfeitures aren’t for the purpose of and don’t have the effect of punishing the accused (often just accused, though in this case convicted). (Because, if it was punishment, then reasonable doubt and all that.) Of course, when asked to defend the practice, their justification always ends up with, as Joe above, well, the guy was a criminal so…..they deserve to be punished.

        Look, the penalty for a crime is whatever the penalty specified in the statute is. Making the penalty vary by the value of what you are driving, wearing (why not take his shoes too?), living in at the time is just randomizing punishment which is not, in fact, a good thing. Also, I have yet to hear of wealthy people losing their stuff. Has Weinstein or Cosby lost the homes in which they committed their crimes? Or Weinstein his company as he was using his company every bit as much as Timbs was using his car to commit a crime. But, if you have money to fight, then police won’t do something quite so ridiculous. Yes, the justice system is always tilted to the wealthy and powerful, but this makes it that much worse.

        Decide what the penalty for a crime is and punish that. Confiscate contraband that is not legal for anyone to possess. If you can prove that an asset was purchased with ill-gotten gains, then prove that in court. But just taking people’s cars or the cash they have is wrong. Even more so when the people whose property is stolen have to prove their and their properties’ innocence.

    2. The issue here was that Mr. Timbs’ car was forfeited not through a criminal forfeiture but through a civil one. In short, the government could have forfeited his car even if Mr. Timbs was *never convicted* of (or even charged with) a crime. Thus, while Mr. Timbs’ conviction and the forfeiture of his Land Rover aren’t entirely separate issues, the state’s argument here isn’t “the seizure of the Land Rover was punishment in addition to Mr. Timbs’ sentence”, the state’s argument is “because the Land Rover might have been used in the commission of a crime, we can seize it, regardless of: 1) its value, and whether that value is proportionate to the crime we allege that Mr. Timbs committed; and 2) whether we’ve charged Mr. Timbs with the crime we allege that he committed, let alone convicted him of said crime.”

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