Supreme Court Appears Ready To Make It Harder For States To Confiscate Property

Nov 28, 2018
Originally published on November 28, 2018 7:29 pm

Updated at 5:34 p.m. ET

At the U.S. Supreme Court Wednesday, a majority of the justices seemed ready to make it more difficult for states to confiscate cars, houses and other property that is even tangentially used in the commission of a crime. It's a process legally known as civil asset forfeiture.

That would be a victory for Tyson Timbs, whose $42,000 Land Rover was seized by the state of Indiana after he was arrested for selling a small amount of heroin to undercover cops for $400. A trial judge ruled that taking the SUV was a grossly disproportionate punishment, on top of other fines and a year of house detention.

An Indiana appeals court agreed. But the state Supreme Court ruled that the Constitution's ban on excessive fines, unlike nearly all the other provisions of the Bill of Rights, has never been applied to the states.

On Wednesday, Indiana Solicitor General Thomas Fisher defended that proposition in the U.S. Supreme Court, facing a chorus of skepticism from justices, conservative and liberal.

Justice Neil Gorsuch led off questioning Fisher. Whatever the scope of the excessive fines clause, he said, "can we at least agree" it applies to the states?

Not when the fine is levied against property, as it is here, Fisher said.

"Really?" shot back Gorsuch, "Come on, General!"

Justice Stephen Breyer hypothesized about the limits of Fisher's argument. Could the state, he asked, seize a "Bugatti, Mercedes or a special Ferrari, or even jalopy" if the driver was speeding 5 miles an hour over the limit?

"The answer," the pained-looking Fisher replied, "is yes."

Arguing the contrary position was Wesley Hottot of the Institute for Justice, representing Timbs.

Chief Justice John Roberts offered the most aggressive questioning, observing that there is a "well-established" distinction between fining someone $500,000 and confiscating assets used in a crime.

Hottot replied that confiscating property is "a very different animal" today than it was hundreds of years ago when pirate ships were the object of civil forfeiture. In contrast, he said, today police can go after every person's property, even in cases where the owner of the property is blameless and has not been charged.

Justice Samuel Alito pointed out that in this case, Timbs had been convicted of a crime. That's correct, Hottot replied, noting that the trial judge in this case sentenced Timbs at the low end of the scale and ruled against the state's attempt to confiscate the truck, saying it was disproportionate.

Several justices wanted Hottot to clarify whether he was asking the court to adopt a proportionality rule.

Not at this stage, Hottot said. All we are asking is that the court overrule the Indiana Supreme Court and declare that the Constitution's ban on excessive fines applies to the states, not just the federal government. That, he said, would give the lower courts the opportunity to work out what standards to apply.

Roberts opined that that may be like asking the court to buy a "pig in a poke."

"You say, don't worry what it means," Roberts said, "just incorporate it [to apply to the states] and then figure it out later on."

Timbs was at Wednesday's argument. He said he isn't sure what his once-glorious SUV is worth today, even if he gets it back.

But not having a car has been a problem not just for him but for the aunt he lives with in rural Marion, Ind.

He is now clean and has a job as a machinist 35 miles away. He is able to get to the job only because his aunt lets him use her car.

"I've been lucky," he said. "Most people don't have an Aunt Wendy. ... She's on dialysis three days a week, and because I have to use her car to go to work, so we can pay bills, she has to take the bus to get to and from her dialysis."

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At the U.S. Supreme Court today, a majority of the justices seemed ready to make it more difficult for states to confiscate cars, houses and other property that is even tangentially used in the commission of a crime. The court has long applied most provisions of the Bill of Rights to the states. But one of the very few exceptions is the Eighth Amendment's ban on excessive fines, and that was the issue today. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In the modern United States, billions of dollars in personal property is seized by law enforcement if that property is involved in any way in a crime. The process is called civil asset forfeiture. Opponents across the political spectrum see it as an often abusive system of policing for profit, with the assets sold and the money going to the government. Today's case was brought by Tyson Timbs, whose $42,000 Land Rover was seized five years ago by the state of Indiana after he was arrested for selling $400-worth of heroin to undercover cops.

TYSON TIMBS: I inherited a life insurance policy from my dad when he passed away, and then I used that money to buy the truck.

TOTENBERG: A trial judge ruled that confiscating the truck was a grossly disproportionate punishment on top of other fines and a year of house detention. An Indiana appeals court agreed. But the state supreme court ruled that the Constitution's ban on excessive fines does not apply to the states. On Wednesday, Indiana's Solicitor General Thomas Fisher defended that proposition in the U.S. Supreme Court, facing a chorus of skepticism from justices conservative and liberal.

Justice Gorsuch - whatever the scope of the excessive fines clause, can we at least agree it applies to the states? No, replied Fisher, not when the fine is levied against property, as it was here. Really, shot back Gorsuch. Come on, General. Justice Ginsburg - whether you label it a fine against a person or a fine against property, let's remember - things don't have rights. It's people that have rights with respect to things. Justice Breyer - under the state's reading, could police seize a quarter-million-dollar Bugatti or even a jalopy if its driver is caught going just 5 miles over the speed limit? After all, the car is the instrumentality of the crime of speeding. A pained-looking Fisher replied that, yes, the state could seize the car.

Arguing the contrary position was Wesley Hottot of the Institute for Justice, representing Timbs. He pointed out that confiscating property is a very different animal today than it was hundreds of years ago when pirate ships were the object of civil forfeiture. In contrast, he said, today police can go after every person's property, even in cases where the owner of the property is blameless and has not been charged. Justice Alito - well, your client was convicted of drug dealing. That's correct, Hottot acknowledged, but he noted that the trial judge sentenced Timbs at the very low end of the scale and ruled that the state's attempt to confiscate the truck was disproportionate.

Are you asking us to adopt a proportionality rule, several justices asked. Not at this stage, said Hottot. All we're asking is that the court overrule the Indiana Supreme Court and apply the ban on excessive fines to the states. That, he said, would be a first step and would give the lower courts the opportunity to develop what standards to apply. Chief Justice Roberts - you're asking us to buy a pig in a poke. You say, don't worry what it means, just incorporate it to the states and then figure it out later.

A decision in the case is expected later in the term. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.