Justices Seem Ready to Back Owner of Seized Land Rover in Case on Excessive Fines
Posted November 28, 2018 4:49 p.m. EST
WASHINGTON — Thomas M. Fisher, Indiana’s solicitor general, faced unusually intense skepticism from the Supreme Court on Wednesday when he argued that the Constitution had nothing to say about civil forfeiture laws that allow states and localities to take and keep private property used to commit crimes.
The case concerned a Land Rover seized from a small-time drug offender. Fisher defended that action and went further, saying local law enforcement officials were free to take all kinds of property used to commit even the most trivial offenses.
Justice Stephen G. Breyer asked whether officials could take the vehicles of drivers caught exceeding the speed limit by 5 mph.
“What is to happen,” Breyer asked, “if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes or a special Ferrari or even jalopy?”
Fisher said there would be no constitutional problem with a state law authorizing such seizures. That answer did not seem to satisfy the justices.
The Supreme Court has ruled that the Eighth Amendment, which bars “excessive fines,” limits the ability of the federal government to seize property. The question for the justices on Wednesday was whether the clause also applies to the states.
The Bill of Rights originally restricted the power of only the federal government, but the Supreme Court has ruled that most of its protections apply to the states — or were incorporated against them, in the legal jargon — under the 14th Amendment, one of the post-Civil War amendments. But the Supreme Court has never squarely addressed the status of the excessive fines clause.
Justice Neil Gorsuch urged Fisher to concede that the clause did apply to the states even if it might permit the seizure at issue. “Can we at least agree on that?” he asked.
Gorsuch, frustrated, said it would be odd to treat one part of the Bill of Rights differently from the others. “Most of the incorporation cases took place in like the 1940s,” he said. “And here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, General.”
Justice Brett Kavanaugh made a similar point. “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?” he asked.
There seemed little question on Wednesday that the court would rule that the clause does limit fines imposed by states.
The court had agreed to decide only that question, and its eventual ruling could stop there, leaving open whether civil forfeitures amount to fines and whether particular seizures are excessive. But the court has already determined that civil forfeitures by the federal government are subject to the clause.
Still, Justice Elena Kagan said the court’s ruling could be quite limited. “We could incorporate this tomorrow and it would have no effect on anybody,” she said.
Chief Justice John Roberts seemed inclined to try to give lower courts more guidance, saying he was disinclined “to buy a pig in a poke.”
The case started when Indiana seized a $42,000 Land Rover from a drug addict named Tyson Timbs, who had bought the vehicle with the proceeds of his father’s life insurance policy. He used the vehicle to drive to a drug deal, and he pleaded guilty to selling $225 of heroin to undercover police officers.
Timbs was sentenced to a year of house arrest followed by five years of probation. He also agreed to pay an array of fees and fines adding up to about $1,200.
Using its civil forfeiture law, Indiana also sought to take the Land Rover.
Timbs won the early rounds in Indiana’s lawsuit. Judge Jeffrey D. Todd, of the Grant County Superior Court, said the Eighth Amendment’s second clause protected Timbs. The Land Rover, the judge wrote, was worth about four times the maximum fine Timbs could have been ordered to pay, which was $10,000. It was also worth more than 30 times the fines that were actually imposed.
An appeals court agreed. But the Indiana Supreme Court ruled against Timbs, saying the U.S. Supreme Court had never issued a definitive ruling on whether the excessive fines clause applies to the states.
Justice Samuel A. Alito Jr. noted that the Supreme Court had been wary of imposing limits on prison sentences said to be too harsh and asked why it should not take a similar stance toward fines.
Wesley P. Hottot, a lawyer for Timbs, responded that fines were different. Keeping people in prisons costs money, he said, while fines raise money. “There’s good reason, there’s good history, for being concerned about the sovereign power to raise revenue using punishment,” he said.
Hottot said the question before the justices in the case, Timbs v. Indiana, No. 17-1091, was a straightforward one of “constitutional housekeeping.” The Supreme Court, perhaps unanimously, seemed inclined to agree.