Supreme Court Appears Poised to Rein In Civil Asset Forfeiture:

The Supreme Court appears ready to impose at least some limits on civil asset forfeiture at the state level.

Earlier this week, the Supreme Court heard oral argument in a case involving the controversial issue of civil asset forfeiture, in which defendants in criminal cases often find assets such as cash in bank accounts, automobiles, and other items, seized by the police and sold at a public auction, in some cases regardless of whether they are found guilty of the underlying offense or not:

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. Mr. 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 five miles per hour.

“What is to happen,” Justice Breyer asked, “if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes or a special Ferrari or even jalopy?”

Mr. 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 M. Gorsuch urged Mr. 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.

Mr. Fisher hedged.

Justice 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 M. 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 G. Roberts Jr. seemed inclined to try to give lower courts more guidance, saying he was disinclined “to buy a pig in a poke.”

Amy Howe comments on the oral argument for SCOTUSBlog:

Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”

Justice Elena Kagan, who sits on the other end of the bench from Gorsuch and whose views are sometimes the opposite of Gorsuch’s as well, appeared to agree. There seem to be two questions here, she told Fisher. One is whether the excessive fines clause applies to the states; the second question involves the scope of the right if it does. “And really,” she suggested to Fisher, “what you’re arguing is about the scope of the right.”

There seemed to be significantly less agreement among the justices on the scope of the right – that is, whether fines like the forfeiture of Timbs’ car do indeed violate the excessive fines clause. Chief Justice John Roberts was unsympathetic, telling attorney Wesley Hottot, who represented Timbs, that Timbs’ Land Rover “was an instrumentality of the crime. This is how he got to the deal place and how he carried the drugs.” If a defendant was carrying the drugs in his car, Roberts stressed, “I think it’s pretty well-established” that the car can be forfeited.

Roberts and Justice Samuel Alito also expressed concern about how courts would decide whether a fine was excessive. Alito asked Hottot whether a forfeiture would be excessive if, instead of a Land Rover, Timbs had been driving a 15-year-old Kia or a $250,000 Bugatti. Roberts chimed in, asking Hottot whether it would matter if a defendant were very wealthy or very poor, so that the same fine would affect him differently.

And Justice Stephen Breyer voiced unease about a potential incongruence between long prison sentences for relatively minor crimes, on the one hand, and a bar on substantial civil forfeitures on the other. It “seems odd,” Breyer posited, that the state can send someone to jail for life for stealing a golf club under a three-strikes law, but the state might not, if Timbs prevails, be able to seize the defendant’s Mercedes.

Justice Sonia Sotomayor was more sympathetic to Timbs and other opponents of civil forfeiture. “If we look at these forfeitures that are occurring today,” she emphasized, “many of them seem grossly disproportionate to the crimes being charged.”

Fisher urged the justices to limit the scope of the right and hold that, even if the excessive fines clause applies to the states, it does not extend to cases like Timbs’, involving civil forfeitures of property. But he faced an uphill battle, because to reach that result the justices would have to overrule a 1993 decision holding that the excessive fines clause does apply to civil forfeitures of property that are intended, at least in part, as punishment – something that there did not seem to be any appetite among the justices today to do.

The incorporation issue should be an easy question for the Justices to answer, and it may end up being the point at which the Justices decide to leave the case, thus leaving the more complicated question of whether or not a specific act of civil forfeiture violates the “excessive fines” provision of the Eighth Amendment for lower courts to work out, with the probability that the Supreme Court will eventually have to develop some kind of national standard. As a general rule, of course, the Supreme Court has decided over the course of a series of cases decided since the 1940s that most of the provisions of the Bill of Rights apply to the state through the 14th Amendment’s due process clause. Since this incorporation has, thanks to the nature of the way cases are presented to the Court, happened on a case-by-case basis, with the most recent such case having been decided in 2010 in McDonald v. Chicago in which the Court held that the Second Amendment as interpreted by District of Columbia v. Heller applied to the states. Still, there remain some provisions of the Bill of Rights do not apply to the states. These include the Grand Jury Clause in the Fifth Amendment, there the requirement of unanimity for criminal juries that has been read into the Sixth Amendment, the Seventh Amendment’s requirement of juries in civil cases, the Third Amendment, and the Excessive Fines Clause of the Eighth Amendment.  This case seeks to change that with respect to the Excessive Fines Clause, and based on the questions asked by Justices on both sides of the aisle it seems fairly clear that there is a majority, if not unanimity on this particular issue.

This case, though, asks the Court to go beyond the question of Incorporation and find that the seizure of the Defendant’s automobile was, under the facts of this case, excessive and in violation of the Eighth Amendment. The roots of the case lie in the arrest of Tyson Timbs on drug possession and distribution charges. At the time Timbs was arrested, authorities used the civil asset forfeiture provisions of Indiana law to seize a $42,000 Land Rover owned by Timbs. Timbs was later able to prove that he had obtained the proceeds to purchase the vehicle with the proceeds from a life insurance policy taken out by his late father Unfortunately for Mr. Timbs used the Land Rover to drive to a drug deal that turned out to be a police sting operation. Timbs later plead guilty to selling $225 worth of heroin to an undercover cop and was sentenced to one year of house arrest, five years probation, and fines totaling $1,200. Despite this apparent plea agreement, Indiana kept the vehicle with the apparent intention of selling it and keeping the proceeds.

Timbs filed a lawsuit seeking to get the vehicle back and, at least in the initial rounds, found success in Court. At the trial court level, the trial Judge found that the proposed sale violated the Eighth Amendment’s Excessive Fines Clause. In support of this argument, the Judge noted that the vehicle was worth four times the maximum fine for the crimes with which Timbs had been charged and that it was thirty times the fines that were actually imposed in the case. An intermediate appeals court at the state level agreed with the trial court Judge, but Indiana’s Supreme Court sided with the state, partly on the ground that the U.S. Supreme Court had not ruled on the question of whether the Excessive Fines Clause applied to the states. It is that ruling that is being appealed to the Justices.

Given the fact that the question presented for appeal was limited strictly to the incorporation issue, it seems likely that the Justices will take the “easy” way out and rule solely on this question. If that is indeed how things proceed then, as I noted, it seems clear from the oral argument that the Court is likely to be unanimous or nearly so on this issue. The more complicated issue is the question of what an “excessive fine” is under the Eighth Amendment. In dealing with Federal law, the courts have held that asset forfeiture can be unconstitutional in some cases, and presumably, those rules would be applied in cases arising under state law. However, it’s likely that the Justices would prefer leaving the contours of what the ban on “excessive fines” means in the context of state law for the lower courts to work out. Thus, my expectation is that they will fall short of ruling whether or not the seizure of Timbs’ Land Rover was an excessive fine and remand the case to the lower courts for a resolution on that issue. That being said, even a finding as limited as the aforementioned incorporation ruling would be significant and could go a long way toward helping the cause of criminal justice reform on this issue.

A ruling on this case likely won’t be handed down until some time next year. In the meantime, you can read the pleadings that have been filed in this case at the SCOTUSBlog information page for the case.

Here’s the transcript of the oral argument:

TImbs v Indiana by on Scribd

FILED UNDER: Crime, Law and the Courts, Policing, Supreme Court, US Constitution, , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Kathy says:

    Civil forfeiture should be outlawed.

    There is sense in seizing the proceeds of a crime, for providing restitution when possible to those affected. But anything beyond that is little different from the infamous Roman proscription Lists (minus loss of life), or the shakedown MbS carried out in Saudi Arabia.

  2. Just Another Ex-Republican says:

    Yeah. I can understand the seizure argument (not sure I agree with it, but I at least understand it), but how it’s legal to sell before guilt/innocence is determined, and then not compensate if found not guilty, is beyond me.

  3. de stijl says:

    Civil asset forfeiture, as practiced, is a cash grab by law enforcement agencies to balance their budget and then to buy “cool ass” military gear that no police department should ever use or have access to.

    CAF, if it happens, should go to the state general fund, and NOT TO THE COPS WHO MADE THE *GD* ARREST. Let’s please stop incenting cops to practice state-sanctioned embezzlement now.

    And the assets can be seized, but not disbursed to the state until they can prove their case in court and secure a proper conviction. No conviction, no swag bag. If you can’t prove it, you can’t take it.

    Also, whatever Radley Balko sez.

  4. de stijl says:

    Also, whatever Radley Balko sez.

    Radley Balko is a person worth paying attention to. He is def not a pundit – he is a reporter and he pays especial attention to systemic police behavior and militarization.

    He comes from an American libertarian place than I am not terribly comfortable with (he wrote for Reason / Hit & Run for years – later for HuffPost, odd trajectory, now WaPo), but he *is* a straight reporter and at the end of the end of the day he tells the truth and doesn’t bury countervailing information. He makes his point with interviews and truthfully reported facts, and not on fanciful conjecture or “some said” nonsense.

    If you have an interest in the topic of cop behavior that fails to meet community standards, Radley Balko is your man. Solid recommend.


    Twitter @radleybalko

    Interesting quote : “According to Balko, during the 1970s, there were about 300 SWAT raids a year; however, “As of 2005…100 to 150 per day”.

  5. James Joyner says:

    @de stijl: I’ve been a Balko fan for some 15 years. But this is rather silly:

    “According to Balko, during the 1970s, there were about 300 SWAT raids a year; however, “As of 2005…100 to 150 per day”.

    While I share his concern about the militarization of police, SWAT didn’t exist until the late 1960s (Philly and especially LA). It got popularized with the 1975 television series presenting fictionalized accounts of the LA version and slowly spread.

  6. mattbernius says:

    I thought I had commented on this the first time around, but apparently I never submitted it. Any positive movement on Civil Asset forfeiture at the federal level is good news. And this ruling, if they find that these provisions do extend to the states will be a huge step in reigning in for-profit policing.

    The entire topic of fees and fines is, like most of criminal justice in the US, really scary when you start to look into it — especially when you see how for-profit policing is used — often in lieu of taxes — to bolster local economies while praying on the most at risk within a community.