The longtime Timbs v Indiana property loss case is before the Indiana Supreme Court for the third time. For nearly eight years, the state of Indiana has been litigating to seize and hold Tyson Timbs’ Land Rover (valued at approximately $ 40,000) after he was caught selling illegal drugs to an undercover police officer (a criminal offense for which he served for one year) under house arrest and five years probation). The state seized the car using civil asset revocation, which enables the government to seize property that was related to a crime, often even when the link was in doubt at best and even when the owner was never charged or was convicted of a crime.
Abusive losses are a widespread problem that often falls victim to innocent people and particularly harms the poor. In many states, law enforcement agencies are able to keep the proceeds of seized assets, encouraging them to pursue the loss of assets rather than spending the time and effort actually tackling crime. I detailed the problems caused by asset abuse in my 2019 testimony before the Arkansas State Advisory Committee to the U.S. Civil Rights Commission. The outrageous injustices of the system of asset forfeiture have received widespread condemnation from scholars and activists across the political spectrum, many of whom agree little else.
In 2017, the Indiana Supreme Court upheld the seizure of Timbs’ vehicle on the grounds that the excessive fines clause of the Eighth Amendment did not apply to state governments. In a key ruling in 2019, the Federal Court of Justice unanimously overturned the Regional Court’s decision, ruling that the excessive fines clause actually applies to state and local governments and prohibits at least some asset losses.
After the case was referred back to the Indiana Supreme Court, that court issued a ruling setting standards for the application of the excessive fines clause to property losses that likely resulted in the invalidation of the seizure of Timbs’ Land Rover. Last May, a state court applying the judgments of the federal and state supreme courts finally ordered the return of the car to Timbs, about seven years after the trial began.
Undaunted, the state has continued its Inspector Javert-like search to establish possession of the Land Rover. It’s now back on the Indiana Supreme Court trying to overturn the court’s decision. Billy Binion at Reason has a helpful summary of the current status:
In May 2020, Timbs claimed the car back, but only after a legal saga in which his ping-pong case went up and down the rungs of the U.S. judicial system.
A lawsuit ruled in his favor … and wrote that the vehicle’s confiscation – worth four times the maximum fine for the crime Timbs committed – was indeed “excessive”.
Indiana was unimpressed. “The state is again calling on the Indiana Supreme Court to rule that there is no proportionality limit on loss of property, that a Bugatti can be forfeited if it is five miles above the speed limit, regardless of what the apparent mismatch is and that would be injustice, “said Sam Gedge, an attorney at the Institute for Justice, the legal nonprofit that Timbs represents.
Your alternative argument is not much better. The state claims that even when proportionality is on the table, “when it comes to punishing someone struggling with drug addiction, no penalty is too high,” said Gedge. “So [the state] can basically take anything they own, and that shouldn’t be against the excessive fines clause. “
These arguments seem to me to be somewhere between weak and absolutely risky. The whole concept of an “excessive” fine implies that there must be at least some degree of proportionality between the crime allegedly committed by the owner and the value of the property confiscated. Indeed, proportionality is central to the earlier Indiana Supreme Court ruling in the Timbs case itself, in which that court ruled that judges applying the excessive fines clause in asset forfeiture cases must rule whether the forfeiture would be “grossly disproportionate” to the offense in question. In doing so, they must weigh factors such as the severity of the crime and the value of the property to the owner. You don’t have to be an expert on property rights to see this test is all about proportionality.
Similarly, nothing in the Indiana Supreme Court decision or text, original meaning, and history of the Eighth Amendment creates a specific exception for drug offenses. On the contrary, draconian property seizures from petty drug abusers like Timbs are clear examples, if any, of unconstitutional excess.
Hence, it is likely that the state will suffer another defeat and Timbs will eventually (again!) Prevail. As I wrote earlier, the almost endless story of this case underscores the need for a broader reform of property loss:
[T]The fact that this case has dragged on is an indication of how difficult it can be for owners to recover their property once it has disappeared into the throat of the system of asset forfeiture. Law enforcement agencies loathe to diminish their illicit profits. And unlike Timbs, most of the owners don’t have the benefit of excellent pro bono representation from the Institute for Justice, one of the leading public interest law firms. In many situations, the cost of using the legal system to recover confiscated property is greater than the value of the property itself. So owners have no choice but to give up, even if they are perfectly right.
In order to fully address these problems, we need both stronger judicial enforcement of foreclosures of the constitutional boundaries and more extensive legal reform, as has already been passed in many – but by no means all – states.
The new Biden administration can help by undoing Trump’s revival of the 2017 federal “Equitable Sharing” program, where state and local asset losses are “passed” by the federal government. The government then shares the proceeds with state and local law enforcement agencies – even in cases where state law would otherwise prevent them from profiting from the seized assets.
NOTE: Tyson Timbs is represented by the Institute for Justice, a well-known public interest law firm with which I have a long history and which I have volunteered on other property rights cases. However, I was not involved in this particular case. IJ has a section of his website here devoted to the Timbs case.