Will Forfeiture Actions be Held Unconstitutional? SCOTUS Hears Oral Arguments in Timbs v. Indiana

On November 28, 2018, oral argument was heard in Tyson Tibbs v. Indiana, Cause No. 17-1091 before the Supreme Court of the United States. At the SCOTUS site, you can read the full transcript of this oral argument in Tibbs, or download it in various formats (MP3, etc.).

This is a forfeiture case.  It is being monitored by criminal defense lawyers around the country (as well as prosecutors) because of the very real possibility the United States Supreme Court may return a decision changing the ability of governments to take private property through forfeiture proceedings. 

Follow the path of the Tibbs case through its online SCOTUS docket which includes links to briefing.

Constitutional Provisions Argued Against Forfeiture in Timbs

The arguments before the United States Supreme Court in Timbs are based upon one key constitutional protection found in the Bill of Rights, but other constitutional provisions also come into play here.

1.  Excessive Fines Clause

Mr. Tibbs, along with the 2012 Land Rover LR2 taken from him by Indiana authorities, file as petitioners to SCOTUS seeking a writ of certiorari to the Indiana Supreme Court.  Tibbs’ constitutional challenge seems simple enough on the surface.

After all, Tibbs brings before the High Court only one single issue (“the question presented”): whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment. 

He’s asking the High Court to find in his favor, insofar as the taking of the Land Rover violates the Eighth Amendment to the U.S. Constitution which states as follows:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Timbs is arguing this excessive fines clause places constitutional restrictions on the ability of Indiana and other states — as well as counties, municipalities, etc. — to take property in forfeiture proceedings.

2.  Other Constitutional Provisions

Also of importance here are two other provisions of the federal constitution, which provide:

A.  Constitution is The Supreme Law of the Land

This Constitution … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.  U.S. Const. art. VI, cl. 2.

B.  Due Process and Equal Protection

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  U.S. Const. amend. XIV, § 1.

How Tyson Timbs Lost His Land Rover to Indiana Forfeiture

As he explains in his Petition, Tyson Timbs’ story begins in the winter of 2012, when he was paid life insurance proceeds as beneficiary on his father’s policy.  He got around $73,000.00.

Timbs decided to take a chunk of that money and buy himself a new vehicle; ultimately, he closed the deal on a 2012 Land Rover LR2 for $41,558.30.

Difficult Time for Mr. Timbs

It was a difficult time for Tyson Timbs: not only had he suffered the death of his father, but he had developed an addiction to the pain medication hydrocodone after getting hurt on the job.  As is often the unfortunate result of taking opioids, Mr. Timbs began to need more and more of it. When he could not get any more hydrocodone pills, he turned to buying heroin.

For how easily someone can turn from opioid pain medications to street heroin, read our earlier discussion in: Heroin Use among Teens and Young Adults: Dallas, Fort Worth Suburbs Will See More Heroin Arrests As Popularity of Heroin Continues to Rise.

Mr. Timbs admirably fought against his addition, and moved from his home in St. Mary’s, Ohio, to live with his aunt in Marion, Indiana.  He was living in Indiana at the time he received his father’s life insurance proceeds.

Falls Back into Addiction

After he bought the new Land Rover, he still had over $31,000 in his pocket.  Sadly, while living in Marion, his resolve weakened and once again Tyson Timbs began to buy heroin.  He used up the rest of the life insurance money on it, and when the cash ran out Tyson’s need did not.

So, Mr. Timbs began looking for other sources of revenue to fund his need for heroin.  He began selling the drug to others.  This led to his downfall: Tyson Timbs ended up selling a small amount of heroin to undercover police officers.

As for the vehicle, he would sometimes drive his Land Rover to various places to make the sale.  It was while Mr. Timbs was on his way in his Land Rover to the third drug sale involving a confidential police informant that he was pulled over.

Arrested and Plea Deal with Rehab

He was arrested. The police seized the Land Rover.  It is to be noted that at the time of his arrest, no drugs were found in Land Rover.

Timbs was charged with violating Indiana criminal laws outlawing dealing in a controlled substance.   A plea deal was made; Timbs pled guilty to lesser charges and was sentenced to six years.

It was a good deal, because this was not prison time:  the first year was to be served in home detention and the remaining five years on probation.  He was also to attend an addiction-treatment program under court supervision and he agreed to pay various costs and fees that totaled around $1000.00.

The Land Rover

Independent proceedings began regarding the Land Rover several months after his arrest.  A civil lawsuit was filed not by prosecutors but by a private law firm, working on contingent fee, seeking forfeiture of the Land Rover on behalf of the State of Indiana.

Trial Court: No Forfeiture

After Timbs made his plea deal and his conviction was entered of record, there was an evidentiary hearing before the trial judge.  The court found:

1. Timbs purchased the Land Rover legally with his life-insurance proceeds. This was not a claim that the vehicle had been purchased with illegal funds.
2. Timbs used the Land Rover to transport heroin.
3. Forfeiture would be “grossly disproportional to the gravity of [Petitioner’s] offense” and thus unconstitutional under the Eighth Amendment’s Excessive Fines Clause.
4. The trial judge explained in his ruling that “[w]hile the negative impact on our society of trafficking in illegal drugs is substantial, a forfeiture of approximately four (4) times the maximum monetary fine is disproportional to [Petitioner’s] illegal conduct.”

State Appeals Court: No Forfeiture

The decision was appealed.  The government still wanted his SUV.

On appeal to the Indiana Court of Appeals, the trial court decision was affirmed. This reviewing court concluded that while SCOTUS “has yet to hold that the Excessive Fines Clause is applicable to the States,” the Indiana appeals court’s own precedent had already ruled the Excessive Fines Clause applies in state forfeiture proceedings.

Again, it was found that forfeiture of Petitioner’s vehicle would be unconstitutionally excessive when comparing the value of the Land Rover (about $40,000) to the maximum criminal penalty that could be imposed for the offense under the Indiana criminal statute ($10,000).

Indiana Supreme Court: Go Ahead With Forfeiture

The case moved forward to the Indiana Supreme Court.  (The State of Indiana really, really wanted that Land Rover.)

When faced with the forfeiture action, the Indiana Supreme Court decided that it would not apply the Excessive Fines Clause to the case, even as it acknowledged that its holding broke from the weight of authority.  The state’s highest court would allow the state to take the vehicle despite the two lower court rulings, past state precedent, and the reality that allowing Indiana to keep the Land Rover was a huge windfall when comparing the amount of heroin involved in the case versus the market value of the Land Rover.

So, the case of Mr. Timbs and his Land Rover was taken by counsel at the Institute for Justice, which then filed the present case with the Supreme Court of the United States.

They are asking if the fundamental guarantee against excessive fines in the Eighth Amendment applies to the States, because taking this expensive motor vehicle for a crime of selling around $200 in illegal drugs is obviously disproportionate and excessive. 

See, “He Sold Drugs for $225. Indiana Took His $42,000 Land Rover,” written by Adam Liptak and published by the New York Times on June 25, 2018.

What is Forfeiture?

We have discussed the power of government to take private property in connection with criminal proceedings many times before.   Forfeiture has been authorized by both state lawmakers (like the current forfeiture laws passed by the Texas Legislature) and federal statutes passed by Congress.

In both jurisdictions, the government is allowed to take a citizen’s property through a process called “forfeiture.” There are three kinds of forfeiture proceedings:

1. Federal asset forfeiture defined in 19 U.S.C. § 1607. Here, federal agencies seize property if they have probable cause to so, including all cash and currency as well as personal property that is valued up to $500,000.  Real property is not included here.
2. Criminal forfeiture, where after someone is arrested on criminal charges, he has his property seized by the government under the argument it has been “used or derived from the crime.” When the person is found guilty, then his ownership in that evildoing property is “forfeited” to the government.
3. Civil forfeiture,where no criminal arrest much less any criminal conviction is required.  In these situations (common examples: money laundering investigations and federal structuring cases), the government targets the property itself.  A lawsuit is filed and if the court can be convinced by the state that the property in question is tied to criminal activity in some way, the judge can order it to be forfeited to the government.

For more details on forfeiture, read our past discussions in:

• Federal Forfeiture Reform: 81% Property Seized By DOJ from People Never Charged With a Crime
• Forfeiture Victory for Police: They Can Seize and Keep Assets Even In an Illegal Search Says Texas Supreme Court
• Lessons of The Gas Pipe Bust: Traffic Stop Leads to Major Synthetic Marijuana Bust and Big Federal Forfeiture Grab
• The Forfeiture Epidemic: When the Government Just Takes Your Property and Keeps It.

Abuse of Power in Forfeiture Proceedings

The problem recognized by most all criminal defense lawyers today is the process of forfeiture has become a recognized part of the budget of way too many local and state governments.

They could not make ends meet if they did not go out and take property from citizens in forfeiture proceedings. 

Read more about this in:

• Are Police Just Taking Property For Their Own Profit and Use? You Betcha.
• Forfeiture Funds are Back as Equitable Sharing Program Gears Up in Dallas County and State of Texas

This is not new.  This abuse of forfeiture powers by government entities to boost their bottom line has been going on for a very long time.  It is a problem already recognized by the Supreme Court of the United States.

Justice Thomas Recognizes Abuses of Power, Using Texas Examples

For instance, read the following explanation from Associate Justice Clarence Thomas, using examples from Texas, in Leonard v. Texas, 137 S. Ct. 847, 580 U.S., 197 L. Ed. 2d 474 (2017) (citations omitted):

“[C]ivil forfeiture has in recent decades become widespread and highly profitable. … And because the law enforcement entity responsible for seizing the property often keeps it, these entities have strong incentives to pursue forfeiture.

“This system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses. According to one nationally publicized report, for example, police in the town of Tenaha, Texas, regularly seized the property of out-of-town drivers passing through and collaborated with the district attorney to coerce them into signing waivers of their property rights…. In one case, local officials threatened to file unsubstantiated felony charges against a Latino driver and his girlfriend and to place their children in foster care unless they signed a waiver. … In another, they seized a black plant worker’s car and all his property (including cash he planned to use for dental work), jailed him for a night, forced him to sign away his property, and then released him on the side of the road without a phone or money….  He was forced to walk to a Wal-Mart, where he borrowed a stranger’s phone to call his mother, who had to rent a car to pick him up. …

“These forfeiture operations frequently target the poor and other groups least able to defend their interests in forfeiture proceedings. …  Perversely, these same groups are often the most burdened by forfeiture. They are more likely to use cash than alternative forms of payment, like credit cards, which may be less susceptible to forfeiture. And they are more likely to suffer in their daily lives while they litigate for the return of a critical item of property, such as a car or a home.”

The Injustice Suffered By Mr. Timbs

In the Timbs case, the reality of how forfeiture powers are used today is clear.  Consider first the crime for which he was charged: it was for a small amount of a controlled substance, without any violence involved, which resulted in very lenient sentencing by the judge.

Mr. Timbs was sent to rehab, had one year of home detention, and then five years of probation.  The judge did not put him behind bars, but set him on a path where he could have victory over his addiction.

Now, consider the Land Rover.  This vehicle was essentially Tyson Timbs’ legacy from his late father, a new SUV valued at around $41,000.00.  It was at least four times higher in value than the maximum criminal penalty defined in the state penal code for Mr. Timbs’ offense.

Tyson Timbs has not been able to drive that vehicle since the day of his arrest.

Indiana has fought very, very hard to keep that SUV.  Indiana is still fighting to keep it. Why?  One has to wonder how much the contingent fee was the private law firm who filed the forfeiture proceeding charged, much less the legal fees and costs expended in the appellate process.

Where is the Land Rover and Who’s Driving It?

Another thing to wonder:  while, as Justice Thomas points out, Mr. Timbs is presumably facing a life without wheels right now – where is the Land Rover and who has access to its keys?

Does anyone remember the forfeited Ford SUV involved in an accident while then Dallas DA Craig Watkins was driving it?

The Temptations of Forfeiture

The problems with forfeiture extend past the inequality of excessive fines.  Forfeiture abuse also involves the temptation of those pretty things and all that cash setting there in the state coffers.

For other stories involving misuse of forfeiture assets by those in power, see:

• DA Watch: Former Jim Wells County DA Joe Frank Garza Spent Millions In Drug Money On Vegas Trips And 3 Secretaries
• Texas DA Pleads Guilty To Felonies: Will Serve Jail Time, Pay Fine – And Return $2.16 Million He Took
• Cop Watch: Refugio Chief Of Police Indicted After Fed Investigation

Institute for Justice Video: Policing for Profit

Finally, for even more detail on how big the forfeiture problem is in this country, watch this updated video from the Institute for Justice (who is representing Mr. Timbs before the Supreme Court) explaining the current state of forfeiture in this country:

Defending Victims of Forfeiture Actions in Texas

Those who are concerned they are being investigated for federal or state crimes, as well as anyone who has had their property taken by the government in a forfeiture proceeding needs to defend against these actions in a fast and zealous manner.  An experienced and aggressive criminal defense is very important when property has been taken by the state.

It is hoped that soon, forfeiture abuses will be lessened by a positive result by SCOTUS in the Timbs case, ruling that the excessive fine clause of the Eighth Amendment does apply in state forfeiture actions.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”