Civil forfeiture case back before Indiana justices on SCOTUS remand

For the third time in three years, Marion resident Tyson Timbs took his case before a Supreme Court.

The first time was in 2017, when the Indiana Supreme Court reversed the denial of the state’s forfeiture action against Timbs’ $40,000 Land Rover. The vehicle was seized after Timbs was arrested for selling heroin to an undercover officer.

The next time was in 2018, when Timbs went all the way to United States Supreme Court. There, he got a partial victory when the federal justices unanimously held that the Eighth Amendment’s Excessive Fines Clause — which Timbs had used to challenge the forfeiture of his vehicle — applies to the states.

But SCOTUS didn’t rule on how the Excessive Fines Clause should apply to civil in rem forfeitures. That issue was the heart of arguments heard before the Indiana Supreme Court again on Friday.

The facts of the case are well-established: Timbs became addicted to heroin after receiving an opioid prescription, and he frequently drove back and forth between Marion and Richmond to get his supply. When he came to the attention of law enforcement, they set up two controlled buys before arresting him.
The Marion man used his Land Rover to drive to Richmond and back, and he also drove it to one of the two controlled buys. The state seized the vehicle on the latter ground, but both the trial court and Indiana Court of Appeals declined to allow the forfeiture before the Indiana Supreme Court reversed.

Indiana Solicitor General Thomas M. Fisher continued to advocate for the forfeiture action during Friday’s arguments, telling the state justices the Rover was rightfully seized as an instrumentality of Timbs’ crime. But Samuel Gedge, an attorney with the Virginia-based Institute for Justice, which is representing Timbs, said the Rover was only incidentally related to the crimes.

Friday’s arguments focused on two main themes: instrumentalities of crimes, and the proportionality of forfeitures.

On the former point, Fisher said the question is binary: property either is an instrumentality of a crime, or it isn’t. But Chief Justice Loretta Rush and Justice Geoffrey Slaughter both pressed Fisher on why the answer to the instrumentality question couldn’t fall on a scale.

Justice Christopher Goff expressed specific concern about Fisher’s binary argument, saying such a view has fallen out of favor and likely would not withstand further scrutiny. He applied similar logic to the proportionality question, noting that courts must make inquiries into a defendant’s ability to pay before appointing a public defender.

The argument also hit on another major question: whether courts should consider a property owner’s financial situation when determining whether a forfeiture is “grossly disproportionate” to the underlying crime. In an amicus brief led by the American Civil Liberties Union, amici urged the justices to adopt such economic considerations into the proportionality analysis.

But to all of that, Fisher maintained that the core inquiry in a forfeiture proceeding is whether the property was used to commit a crime. He stood by a now-infamous response he gave to a hypothetical presented by Justice Stephen Breyer at SCOTUS — if the drivers of both a jalopy and a Bugatti were pulled over for driving 5 mph over the speed limit, both vehicles would be subject to forfeiture as instrumentalities of a crime.

If property is established as an instrumentality, Fisher said, then the proportionality assessment is not necessary.

But Gedge said the state’s position misframes the relevant question. According to Gedge, the question is not whether Timbs did something bad while in his car, but whether the car itself was used to commit his crimes.

Here, Gedge said the sole basis for the forfeiture of the Land Rover was the first controlled heroin buy that Timbs drove to. The car had nothing to do with the crime other than transporting Timbs to the scene, Gedge said, making it only incidentally related and not subject to forfeiture.

As to proportionality, Rush asked Gedge whether courts should consider the general harm a crime causes, or the specific harm caused by the offender. He advocated for a focus on the latter, but Rush pushed him on that point, noting Timbs committed a drug crime in the midst of a nationwide drug scourge that has far-reaching impacts.

In response, Gedge pointed to United States v. Bajakajian, 524 U.S. 321 (1998), which he said stands for the proposition that courts should look to an offender’s specific culpability. He advocated for a totality-of-the-circumstances test to assess proportionality.

Justice Steven David asked Gedge what factors should go into that test, then seemed to become frustrated when Gedge did not provide a straightforward answer. Gedge acknowledged that he could not give a direct answer because a “one-size-fits-all” test wouldn’t work. Still, he said looking at the totality of the circumstances in an Eighth Amendment context is not that different than in a Fourth Amendment context.

Among the factors Gedge said could be considered would be a property owner’s financial situation, their specific culpability and the results of the underlying criminal case. Fisher, however, said there was no historical support for considering financial situations in a proportionality analysis.

Speaking with Indiana Lawyer after the arguments, Timbs said he was frustrated by statements he thinks are intended to paint him in a bad light. Like his attorneys, Timbs said courts should look to a property owner’s entire circumstances before subjecting their property to forfeiture. Assets such as a car, Gedge told the court, are often a “lifeline.”

Timbs has previously told Indiana Lawyer that without his Land Rover — which he purchased with proceeds he received from his father’s life insurance policy — he has to rely on his aunt for transportation to and from work. He used to see his vehicle every day when he drove past the Grant County law enforcement center, but the truck has since been moved and he no longer knows where it is.

Still, Timbs said his drawn-out court battle has had one bright side: he’s had something to focus on during his addiction recovery. Though it’s been stressful to take his case all the way up to the Supreme Court and back down again, he said he feels as though his efforts matter.

“It’s been stressful sometimes,” he said, “but I feel like I stand for something now.”

The full oral arguments can be watched here.