Friday, December 14, 2018


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Tyson Timbs holds a photo of his vehicle seized after a drug arrest.

Source: Institute for Justice
Tyson Timbs holds a photo of his vehicle seized after a drug arrest.

A former heroin addict appears poised to win a major legal victory at the Supreme Court after a day of argument in which the justices appeared deeply skeptical of the case against him.

They also took his $42,000 Land Rover. Timbs bought the car with some of the life insurance money he was issued following the death of his father. He spent the rest of the money, about $30,000, on heroin, using the Range Rover to shuttle it to Indiana from out of state.

On Wednesday, Timbs appeared at court to ask for the car back. He argued that he’s protected from the seizure by the 8th Amendment’s protection against excessive fines.

During an hour of argument, the justices appeared inclined to rule in his favor. That would move him one step closer to getting his car back — and deliver a victory to the bipartisan slate of civil society and business groups who supported him.

The Bill of Rights and the states

Ultimately, the case boils down to whether the 8th Amendment applies to the states. Most elements of the Bill of Rights have been incorporated over the years, but not all of them. Most recently, the Supreme Court said the 2nd Amendment protected gun owners from certain state gun control efforts in the landmark 2010 ruling McDonald v. Chicago.

A state court sided with Timbs and found that the forfeiture of the car was disproportionate to the crime he committed, citing Indiana’s maximum fine of $10,000 for any felony. But the top court in Indiana reversed that ruling, saying the excessive fines provision had never been incorporated.

On Wednesday, justices on the Supreme Court seemed to have little patience for that argument. Indiana’s solicitor general, Thomas Fisher, faced tough questions from virtually every justice on the bench, including both of President Donald Trump’s nominees to the high court, Neal Gorsuch and Brett Kavanaugh. He seemed to fail to deliver satisfactory responses.

“Most of the incorporation cases took place in, like, the 1940s,” Gorsuch said. “And here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, General.”

Kavanaugh, who was confirmed to the court last month, seemed to share Gorsuch’s frustration.

“Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?” he asked.

State and federal courts are divided about whether the 8th Amendment applies to states. High courts in Montana, Mississippi, Michigan and Indiana have said that it does not, while at least 14 states have said it does.

Fines weigh on small biz, poor communities

States have grown increasingly reliant on fines and fees, as well as asset forfeiture, to supplement tax collection in recent years. In a brief, the American Civil Liberties Union wrote that 48 states have increased their criminal fees since 2010. In some cities, fines account for 10 percent or more of total revenue.

The impact of fees and asset forfeiture on individuals can be calamitous. Most states permit suspending the driver licenses of those who fail to meet their payments, which can lead to lost work, missed medical appointments, or worse. Ten million people owe a collective $50 billion in fines, fees and forfeitures, according to a 2017 report from Harvard Kennedy School and the National Institute of Justice.

The controversy over forfeitures gained steam after the 2014 shooting of Michael Brown, a black 18-year-old, by a white police officer in Ferguson, Missouri.

A Justice Department investigation of the police department that followed the shooting found that the emphasis on revenue collection “has compromised the institutional character of Ferguson’s police department, contributing to a pattern of unconstitutional policing” and inflicted unnecessary harm on the population of the city.

Meanwhile, the Chamber of Commerce, a conservative business group, said the fines are hitting small businesses and strangling economic growth.

'Things don't have rights'

Indiana argued that the excessive fines protection shouldn’t apply to Timbs because the seizure of the car does not amount to a fine at all.

Instead, Fisher, the state’s solicitor general, said that Timbs lost his car under what is known as an “in rem forfeiture,” or a proceeding in which the property itself is the defendant.

That is what lends the case the somewhat unusual-sounding name, Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana, No. 17-1091.

Justice Ruth Bader Ginsburg urged Indiana’s attorney to be cautious with that argument Wednesday.

“Let’s remember that it’s — things don’t have rights or obligations in and of themselves,” she said. “It’s people that have rights or obligations with respect to things.”

Fisher said that even if the court determines that the forfeiture amounts to a fine, the excessive fines protection should not apply to Indiana. He said the court had never incorporated a right that was not fundamental or “deeply rooted in our history and tradition.”

Indiana is supported by a group of organizations representing local governments, including the National Association of Counties, the National League of Cities, and the U.S. Conference of Mayors.

A ruling is expected by late June.

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