Civil Asset Forfeiture

Indiana Supreme Court Finally Puts an End to the Timbs Asset Forfeiture Case— "Reminiscent of Captain Ahab's Chase of the White Whale Moby Dick"

The case has generated three state supreme court decisions, plus a landmark ruling by the federal Supreme Court.

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Tyson Timbs, with his now-famous Land Rover.

 

Earlier today, the Indiana Supreme Court issued a ruling that is likely to finally end the long-running saga of Indiana v. Timbs, a major asset forfeiture case that has resulted in three separate rulings by the state supreme Court, and a path-breaking decision by the federal Supreme Court, ruling that the Excessive Fines Clause of the Eighth Amendment is "incorporated" against state governments. The case arises from the state's efforts to use civil asset forfeiture to seize Tyson Timbs' Land Rover, which he had used on trips to purchase illegal drugs and (in one instance) try to sell some to a man who turned out to be an undercover police officer.

Civil asset forfeiture is a process by which the government can seize property that was allegedly used in the commission of a crime, often even if the owner was never charged or convicted of any offense. In many states, law enforcement agencies are allowed to keep the proceeds from the property they seize. The system is the source of extensive abuses, which I summarized in my 2019 testimony before the Arkansas State Advisory Committee to the US Commission on Civil Rights.

In this case, Timbs admits that he committed the crimes in question. But he argued that the forfeiture of the Land Rover vehicle violated the Excessive Fines Clause of the Eighth Amendment, in large part because the value of the Land Rover (about $42,000) is vastly greater than the fine for the crimes he committed.

When the case first got to the Indiana Supreme Court in 2017, the justices ruled that the Excessive Fines Clause doesn't even apply to state governments (it was one of the few parts of the Bill of Rights that had never been "incorporated" against the states by the federal Supreme Court). That ruling was overturned in a unanimous 2019 decision by the federal Supreme Court, which held that the Excessive Fines Clause does indeed apply to the states, and that it imposes at least some constraints on asset forfeiture.

However, the Supreme Court did not resolve the issue of how to determine what qualifies as an "excessive" forfeiture, nor whether the forfeiture of Timbs' property was excessive. Thus, the issue went back to the Indiana Supreme Court, which, in October 2019 issued a decision setting out standards for what qualifies as "excessive."

Based on that ruling, the trial court in the Timbs case concluded that the seizure of his vehicle was indeed "excessive," and finally ordered to the return of the Land Rover last year. Even after that, the state persisted. They appealed the case to the state Supreme Court, arguing that the trial court ruling was wrong, and, more generally, that the state supreme court should adopt an approach to measuring excessiveness that is more favorable to law enforcement.

Finally, today, the state Supreme Court ruled in favor of Timbs, in a 4-1 decision:

We chronicle and confront, for the third time, the State's quest to forfeit Tyson Timbs's now-famous white Land Rover. And, again, the same overarching question looms: would the forfeiture be constitutional? Reminiscent of Captain Ahab's chase of the white whale Moby Dick,1this case has wound its way from the trial court all the way to the United States Supreme Court and back again. During the voyage, several points have come to light. First, the vehicle's forfeiture, due to its punitive nature, is subject to the Eighth Amendment's protection against excessive fines. Next, to stay within the limits of the Excessive Fines Clause, the forfeiture of Timbs's vehicle must meet two requirements: instrumentality and proportionality. And, finally, the forfeiture falls within the instrumentality limit because the vehicle was the actual means by which Timbs committed the underlying drug offense. But, until now, the proportionality inquiry remained unresolved—that is, was the harshness of the Land Rover's forfeiture grossly disproportionate to the gravity of Timbs's dealing crime and his culpability for the vehicle's misuse? The State not only urges us to answer that question in the negative, but it also requests that we wholly abandon the proportionality framework from State v. Timbs, 134 N.E.3d 12, 35–39 (Ind. 2019). Today, we reject the State's request to overturn precedent, as there is no compelling reason to deviate from stare decisis and the law of the case; and we conclude that Timbs met his burden to show gross disproportionality, rendering the Land Rover's forfeiture unconstitutional….

[T]he Land Rover's forfeiture is not unconstitutional just because Timbs was poor. Or because he suffered from addiction. Or because he dealt drugs to an undercover officer and not someone who would use them. And it's not simply because the vehicle's value was three-and-a- half times the maximum fine for the underlying offense. Or because he received the minimum possible sentence for his crime and wasn't a sophisticated, experienced dealer. Or because the car, his only asset, was essential to him reintegrating into society to maintain employment and seek treatment. Rather, it's the confluence of all these facts that makes Timbs the unusual claimant who could overcome the high hurdle of showing gross disproportionality…

Applying the proportionality framework set forth in Timbs II, we conclude that Timbs met his high burden to show that the harshness of his Land Rover's forfeiture was grossly disproportionate to the gravity of the underlying dealing offense and his culpability for the vehicle's misuse. Accordingly, we affirm the trial court; and the seven-plus-year pursuit for the white Land Rover comes to an end.

Chief Justice Rush's majority opinion in Timbs III compares the case to Captain Ahab's ill-fated effort to catch Moby Dick. I previously   compared it to Inspector Javert's prolonged  quest to track down a man whose only offense was breaking parole on a sentence for stealing a loaf of bread to feed his sister's starving children. Readers can decide for themselves which literary analogy is better!

While this result is a happy outcome for Timbs, it may have only limited impact on asset forfeiture more generally. The Court emphasized that only "grossly disproportionate" forfeitures qualify as "excessive," and that such cases are rare.

Moreover, there is some merit to the concurring and dissenting opinions' claim that the majority's multi-part test for determining what counts as "gross disproportionality" is imprecise and subjective. While some may worry that this will enable defendants to keep property they supposedly should not, I worry that lower-court judges sympathetic to the War on Drugs (which accounts for a high percentage of asset forfeitures) can use the test in ways that make it very difficult for property owners convicted of drug offenses to ever get a forfeiture overturned.

Today's result is better than the even more permissive standard advocated by the state, and certainly better than the pre-Timbs world in which the Excessive Fines Clause wasn't even applied against state governments. Among other things, this decision and Timbs II provide strong protection for owners who have not in fact committed any crime. But we still have a long way to go to fully eliminate the massive abuses caused by the asset forfeiture system, not all of which can be addressed through even the most rigorous enforcement of the Excessive Fines Clause.

Fortunately, legislative reforms have been enacted  in many states. There are also ongoing efforts to challenge asset forfeiture under both state and federal constitutional provisions. The Biden Justice Department could help by repealing the Trump administration'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.

Like Moby Dick, the struggle against asset forfeiture is a long and tangled tale, of which the Timbs case is just one extraordinarily lengthy chapter. Hopefully, it will ultimately have a happier ending than Captain Ahab's voyage.

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 commented on the latest Indiana Supreme Court ruling here.

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  1. The assets of the tech billionaires should be seized in civil forfeiture for the billions of internet crimes committed on their platforms. They have committed millions of frauds by overstating their viwerships to advertisers. Half their viewers are not even human. They converted the personal information of users without compensating them. I am interested in mandamusing the DOJ to do its job.

    1. I was going to call this case another example of lawyer utter failure and stupidity. But, think of the salaries and fees generated by this case, and the lawyer got what it wanted, worthless, rent seeking make work and fraudulent wages, doing nothing to stop crime. What are estimates of total cost? $million, $2 million?

      The IJ can make itself useful by seeking to retrieve these costs from the personal assets of the prosecutors, not from the taxpayer. Even a failed attempt will be useful. To deter. The IJ will never do that, because they owe their jobs to the other side, not to the client. This decision is a test of the IJ, deterrence of lawyer oppression or just more lawyer rent seeking.

  2. Disappointed that Republican Attorney General Todd Rokita was strongly on the side of confiscation. Being a “law and order Republican” is generally good, but being a “we can screw you over so we will do so” is not so good.

  3. The one thing I have seen asked and never answered is — what is that vehicle worth now — has it been maintained, has it been driven, has it been stored properly? Is it a piece of junk from sitting idle for years, is it a piece of junk from abuse at the hands of cops who took delight in trashing it?

    1. That’s my thought: The odds he gets that car back in working order are pretty slim.

    2. The car is a celebrity. It is worth $thousands more than its book value. He should take it to a collector car auction.

    3. Even if he got it back in working order, the value of car (trade-in-value) is heavily affected by the year model and not by mileage.

      For example a 2016 toyota camry with 100k miles is going to worth more than a 2013 toyota camry with 50k miles, even considerably higher usage.

      1. Sure, but Daivd does have a point: This car has celebrity status, he might be able to get a bit more for it on that basis.

        Assuming the cops didn’t trash it the moment they realized he was getting it back.

        1. This car has celebrity status

          But only to the relatively tiny % of the population who both know and care about that status. So you have to not only find those people, you have to find the subset of them who are currently in the market for a vehicle like that. That’s doable, no doubt…but it’s much less likely than simply taking out a for-sale ad for any other vehicle and getting buyers willing to pay fair market value.

          1. Keeping up with the CAR-dashians!

  4. “And it’s not simply because the vehicle’s value was three-and-a- half times the maximum fine for the underlying offense.”

    They literally went out of their way to reject the most direct and easily justifiable basis for the ruling, in order to go for a basis that allows for arbitrary decisions and provides no guidance at all.

    I wish I could say I’m shocked, but this is the sort of behavior I’ve come to expect from our courts.

    1. What they should have done was to simply rule that civil forfeiture is a fine against the owner of the property, and has to be treated just like any monetary fine. Nice, clean, sensible, gives crystal clear guidance, and eminently defensible.

      Instead they went with a ‘shocks the judicial conscience’ standard that provides no guidance at all, licenses them to be utterly arbitrary, and really has no obvious legal basis.

      1. And assumes that the court has a conscience, which is not always true.

    2. well now, its time to increase the fines, that is what any self respecting drug warrior politician will look to do.

      then we can go to court over excessive fines and one year many decades down the road decide that drugs aren’t all the bad.

    3. Are you sure no arbitrary results would arise under your proposed rule?

      If it only turns on the value of the property, then, among the set of people using their vehicles to commit the same offense as Timbs did here, all else being equal, those with luxury cars are likely to avoid forfeiture, while those with beat up clunkers have more risk of losing them. One could arguably describe that sort of outcome as arbitrary, I think.

      Moreover, the court stated that “the car, [Timbs’] only asset, was essential to him reintegrating into society to maintain employment and seek treatment.” That logic seems to apply regardless of the value of the car in question. Someone who uses a rundown Chevy to commute to a job that can only be reached by drving needs that car just as much as someone else who does the same but in an Audi. Putting a greater chance of forfeiture on the former compared to the latter again might be viewed as somewhat unfair.

      Just accepting the decision on its own terms and not taking a position on any other of its aspects, I think one could see some reasons why it didn’t adopt your proposed rule.

      1. To be clear, I don’t think civil forfeiture should be a thing to begin with. The precedents for it, as I understand, had to do with smuggled contraband with no apparent owner. The idea of bringing a legal action against property with a known owner is the sort of thing that should be met with derisive laughter, or hot tar and feathers if the laughter doesn’t work.

        But even assuming a defendant who is indigent, except for ownership of property greatly in excess value of the maximum fine for what they’ve been convicted, you could sell it for market value and give them back the surplus. Not just confiscate it and keep the whole sum.

        That’s just a way to evade the limit on fines.

        1. “civil forfeiture”

          This is not a civil forfeiture case. Rather forfeiture after conviction.

          1. Fair enough, but what’s the case for seizing the car and keeping the whole value, when that whole value exceeds the limit on a legal fine?

            1. He was using it for crimes. Criminal tools are often forfeited.

              1. “The justification for doing it is that we’re doing it.”

  5. Why not simply say that a seizure is excessive if the value of the item is more than the maximum fine?

    1. Well, obviously because they want to permit such seizures in cases where they don’t particularly like the owner.

    2. “Why not simply say that a seizure is excessive if the value of the item is more than the maximum fine?”

      How do you adequately punish a major crime figure?

      Dude gets millions from his criminal activity but on the specific crime we finally get him on, we can’t touch that because the fine is too low.

      1. The obvious reply is that you only get to punish people for the crimes you are able to CONVICT them for. Doesn’t matter how certain you are they’re a major criminal making millions off organized crime: If you can’t prove it in court, you don’t get to ticket him five million dollars for parallel parking.

        1. “ticket him five million dollars for parallel parking”

          Isn’t summer to hot for burning strawmen?

          Murder in Ohio has a $25,000 max fine. You won’t agree to have a drug lord lose his millions even for murder.

          1. “ticket him five million dollars for parallel parking”

            Isn’t summer to hot for burning strawmen?

            That’s not even remotely a straw man. You’re arguing in favor of imposing fines/punishment that are excessive for the crime someone was convicted of just because you “know” that he’s guilty of other crimes that he wasn’t convicted of. Brett’s hypothetical is a somewhat exaggerated version of that, but it’s a difference in degree, not of kind.

            Murder in Ohio has a $25,000 max fine. You won’t agree to have a drug lord lose his millions even for murder.

            That sounds like an argument for a higher fine for murder, not for using the existing one as a way to punish someone for crimes that they haven’t been convicted of.

  6. “Poor” man’s $42,000 Land Rover. “Took away his way to earn money”.

    I don’t like the theft of property and money by simply declaring it proceeds or tools of crime, but some of the rhetoric needs work.

    1. Yeah, calling somebody who can afford a Land Rover “poor” seems a stretch.

      1. He was poor after he spent all his money on a Land Rover.

        1. Definitely poor after the cops took it.

    2. Meh. “Poor man’s” is a relative term, and compared to what the higher end Land Rover models sell for (north of $100K) it isn’t really stretching the meaning of that term to apply it to one that cost $42K.

      1. I personally think applying “poor” to anybody in, at a minimum, the top half of the income distribution, does violence to the meaning of “poor”.

        Sure, a $42K car looks cheap compared to a car that costs as much as a low end house. A Cessna looks cheap compared to a Jet-stream, but poor people don’t own either.

        1. I personally think applying “poor” to anybody in, at a minimum, the top half of the income distribution, does violence to the meaning of “poor”.

          Only if one insists on interpreting “poor” as used in that expression literally because one doesn’t understand the meaning of that expression.

          Sure, a $42K car looks cheap compared to a car that costs as much as a low end house.

          Which is what the term means. It’s not a reference to one’s absolute place in the overall income distribution, but the cost of an item relative to others in its category/product line. When Volkswagen and Porsche collaborated to make the 914, Porsche’s need was for a replacement of it’s entry-level 912. Because of this the 914 was commonly referred to as the “poor man’s Porsche”, even though it’s price was clearly beyond the means of actual “poor” people. It was a reference to it’s place within Porsche’s model line-up. By comparison, Volkswagen sold the 4-cyl version (as opposed to the 6-cyl Porsche one) as the replacement for what was previously their top-of-the-line model, the Type 34 Karmann Ghia. One could have called that the “rich man’s Volkswagen” in the same spirit, and it would obviously not have referred to those who were “rich” relative to their place in the income spectrum in the U.S. at that time.

        2. Also, the expression “poor man’s” is also commonly used in reference to something that is simply of lower quality compared with something else, having nothing at all to do with cost. For instance, “He uses a lot of puns, but isn’t funny. He’s a poor man’s Oscar Wilde.”

          1. OK, that makes sense. “poor man’s” used as an adjective, rather than possessive.

            1. BTW, I’d like to point out that Brett’s comment above is an example of how an actual adult…as opposed to a dishonest, insecure child…responds when they realize they were mistaken about something.

    3. “some of the rhetoric needs work”

      How about?

      “the car, his only asset, was essential to him” being able to sell drugs?

  7. I see this as the failure and ineptness of the legislative body. Like abortion, the people really need to speak and settle this. It may take decades of laws passed, then adjusted by future legislative actions. All people will never be happy, but not feeling powerless, like they feel when faceless decision handed down from on high in language and reasoning incomprehensible to most, leave no recourse.

  8. How will Timbs be made whole? Even if he isn’t entitled to interest for the time value of his loss, a seven year older vehicle, even if it’s still rumning after having been seized for all this time, is obviously worth a lot less than it was worth seven years ago.

    Also, the decision emphasizes that its definition of gross disproportionality is a high hurdle, and it’s a very rare defendant who can show a confluence of multiple factors each of which is individually insufficient to show it. It concedes the excessive fines clause applies, but does so very grudgingly, and in a way that appears not to have much actual teeth.

    1. It was basically a case of the court not really wanting to do anything about the problem, but being faced with having to rule for Timbs on SOME basis, if they didn’t want the case going back to the Supreme court and maybe ending up with a strong ruling.

      It was the least ruling they could get away with, without likely being overturned.

    2. “How will Timbs be made whole?”

      Yes, how will we make a drug dealer whole. Such a burning question.

  9. Due process – ie the lack of due process remains a problem

    1. The whole POINT of civil forfeiture is the lack of due process. If you were going to give the defendant due process, you wouldn’t use it.

      1. Again, this is not a civil forfeiture but forfeiture after conviction.

        1. Again, this is not a civil forfeiture but forfeiture after conviction.
          How does work? The statute always the state to confiscate personal property, to pay fines? I find that hard to believe. Determining value is something ripe for corruption.

          1. No, the forfeiture is separate from the fine, tools used in crimes and proceeds from crime can be seized. The car was a tool used in his crime.

  10. I understand why the state was fighting this case as aggressively as it was used as the vehicle to set the state standard for what constitutes an excessive fine and was not out of personal animosity toward the defendant, but three trips to the State Supreme court….all I have to say is “ouch” if any private citizen was trying to fund that type of adequate representation out of their pocket. Would like to hear what IJ’s total legal bill is for the representation (and if they can recover any fees at any stage).

  11. Picayune, but: In the subheading, “federal Supreme Court” is a peculiar formulation. The shade of meaning is perhaps that this particular court is a constitutional court of the state, not just of the government. One wouldn’t refer to the “federal Congress” or the “federal President.” “United States Supreme Court” or “Supreme Court of the United States” (though hopefully not abbreviated according to the Secret Service style guide) is perhaps the better formulation.

    (“Federal Constitution” is a different case, though, since the constitution is the instrument of the federation of the states.)

    https://books.google.com/ngrams/graph?content=federal+Supreme+Court%2CSupreme+Court+of+the+United%2C+federal+constitution&year_start=1700&year_end=2019&corpus=28&smoothing=3&direct_url=t1%3B%2Cfederal%20Supreme%20Court%3B%2Cc0%3B.t1%3B%2CSupreme%20Court%20of%20the%20United%3B%2Cc0%3B.t1%3B%2Cfederal%20constitution%3B%2Cc0

    Mr. D.

    1. I’ll allow it.

  12. One more illustration of why our archaic drug warriors — authoritarian, bigoted, stale-thinking, conservative prudes — should be leashed and neutered by better Americans.

    1. Yes, I despise archaic drug warriors, such as our current President and vice-President.

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