An Eight-Year Battle

The Indiana Supreme Court has considered the state’s use of civil asset forfeiture against Tyson Timbs three times.[1] In the first case, it reversed the ruling of both the trial court and the appellate court that the forfeiture of Timbs’ Land Rover was “grossly disproportionate” and thus a violation of his Eighth Amendment right to be free from excessive fines. It did so because it believed the Eighth Amendment’s Excessive Fines Clause had not been incorporated against the states.[2]

Two years later, the U.S. Supreme Court ruled in Timbs’s case that the Excessive Fines Clause was incorporated against the states through the Fourteenth Amendment.[3] The Court unanimously stated that “the historical and logical case for concluding that the Fourteenth Amendment incorporates the Excessive Fines Clause is overwhelming.”[4] The Court also reaffirmed that civil in rem forfeitures are considered fines under the Eighth Amendment, but it provided lower courts with no guidance on how to determine whether an in rem civil forfeiture action is “excessive.”[5]

Since the U.S. Supreme Court did not articulate a standard for how the Eighth Amendment should apply to in rem forfeitures—including the one at issue in the case—this job fell to the Indiana Supreme Court on remand. The court crafted a two-part test that requires judges to consider both “instrumentality” and “proportionality” to determine whether an in rem fine is constitutional.[6] The instrumentality prong requires the court to find that property was the “actual means by which an underlying offense was committed.”[7] In determining whether a fine is proportional, judges must consider (1) the harshness of the punishment, (2) the severity of the underlying offenses, and (3) the claimant's culpability or blameworthiness for the property's use.[8] If these three factors indicate that a seizure is grossly disproportional, it violates the Eighth Amendment’s prohibition of excessive fines.

After formulating this test, the Indiana Supreme Court remanded the case to the trial court for it to analyze whether the proportionality requirement had been met, noting that the state had fulfilled the instrumentality requirement by showing that the seized property was related to the alleged offense.[9] The trial court held another hearing and found that Timbs had presented enough evidence to show that the forfeiture was grossly disproportional and therefore unconstitutional.[10] The state then filed another appeal arguing that the Indiana Supreme Court should overrule the standard it had created just two years before.[11]

Applying The New Standard

In this third consideration of the controversy between Tyson Timbs and the State of Indiana, the justices upheld and applied the standard they created less than two years ago. The justices said the state presented no compelling reason for them to “depart from the principles of stare decisis.”[12] The justices then analyzed the proportionality prong of their own test based on the facts presented during the trial court’s prior analysis by reviewing the harshness of punishment, the severity of the offenses, and Timbs’s culpability.

Culpability

The justices described culpability as a spectrum ranging from “entirely innocent of the property’s misuse” on the low end[13] to “used the property to commit the underlying offense” on the high end.[14] Timbs admitted that he had used the Land Rover during the first and third (uncompleted) heroin transactions. The justices agreed with the trial court that Timbs's culpability was at the high end of this spectrum.[15]

Harshness

To determine the harshness of the forfeiture in light of the circumstances of the case, the justices had previously noted that courts should consider the following factors:

  1. the property’s role in the underlying offense(s);
  2. the property’s use in other lawful or unlawful activities;
  3. the extent to which the forfeiture would remedy the harm caused by the underlying offense(s);
  4. the property’s fair market value;
  5. the other sanctions imposed on the property owner; and
  6. the effects that the forfeiture will have on the property owner.[16]

Analyzing all of these factors, the justices agreed with the trial court that this forfeiture was significantly more punitive than remedial in nature, even though the vehicle was used in the underlying offense and other illegal activities.[17] They specifically noted that drug offenses are not “victimless,” but that Timbs’s offenses caused no “specific injuries to specific victims” as with violent or property crimes.[18] The facts that seemed to carry the most weight for Chief Justice Loretta Rush were that the seizure inhibited Timbs from maintaining employment and seeking treatment and that the forfeiture was imposed on top of one year in home detention, five years on probation, and an additional $1,200 in fees.[19] The court’s analysis and the articulated factors seem to reveal that the justices will frown upon the use of forfeiture merely as a punitive sanction when another form of punishment has been imposed.

Severity

Severity is similar to harshness, but the court provided a partially different set of factors by which to determine whether the severity of the offense justified the forfeiture. Those factors include:

  1. the seriousness of the offense,
    1. according to the possible statutory penalties;
    2. according to the sentence imposed;
    3. compared to other variations of the offense;
  2. the actual harm caused by the offense committed; and
  3. the relationship of the offense committed to any other criminal activity.

The justices strongly rejected key arguments made by the state and found that the severity of the offense was minimal and therefore this factor leaned against allowing forfeiture of the vehicle. The Chief Justice noted that the statutory maximum is relevant here, but that the maximum is reserved “for those who commit the worst variations of the crime” and that “the sentence actually imposed may provide even more precise insight into the offense’s severity.”[20] This meant that Timbs's actual sentence of six years of suspended prison time—the statutory minimum—was more relevant to the severity determination than the statutory maximum of 20 years. The majority also noted that property owners suffering from addiction to illicit drugs does not categorically inflate the severity of any drug trafficking offenses but instead tends to explain why some individuals might engage in such activities.[21]

Ultimately, even in the face of high culpability and low severity, the majority agreed with the trial court that the forfeiture of Mr. Timbs’s Land Rover was “grossly disproportional.”[22] The Chief Justice clarified that simply because the seizure in the case was unconstitutional does not mean that all forfeitures in similar cases will be unconstitutional, and that judges must analyze the factors anew in future cases.[23]

Concurring Opinion – Subjectivity and the Rule of Law

Justice Geoffrey Slaughter’s concurrence reiterates his dissent from the Indiana Supreme Court’s second consideration of this controversy when it created the standard it applied in this case.[24] He only reluctantly accepted the majority’s holding in this case because it is a “plausible and defensible” application of the precedent.[25] Citing a law review article written by Justice Antonia Scalia, Justice Slaughter noted that the harshness and severity requirements of the court’s test rely on subjective analyses that can result in vastly different outcomes in cases with the same or similar facts.[26] He said that the test is “hard to square with the rule of law” and urged the court to rethink this subjective test.[27]

Dissenting Opinion – Proving the Concurrence

Justice Mark Massa—who joined the majority when it created the instrumentality and proportionality test—argued in his dissent that the court should have reached a different conclusion based on these facts.[28] He agreed that the forfeiture of the Range Rover was disproportional, but only mildly because he is “skeptical that dealing in heroin can ever be a crime of minimal severity” given the impact of the opioid crisis in Indiana.[29] The disagreement between Justice Massa and the majority opinion provides some credence to Justice Slaughter’s concerns that the majority’s test is subjective and open to manipulation so judges can achieve their desired outcomes.



[1] State v. Timbs, 169 N.E.3d 361 (Ind. 2021); State v. Timbs, 134 N.E.3d 12 (Ind. 2019); State v. Timbs, 84 N.E.3d 1179 (Ind. 2017).

[2] Timbs, 84 N.E. 3d at 1181-85; See also State v. Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016).

[3] Timbs, 139 S. Ct. at 687–91. See Christopher R. Green, Timbs v. Indiana - Post-Decision SCOTUScast, The Federalist Society (Mar. 20, 2019), https://fedsoc.org/commentary/podcasts/timbs-v-indiana-post-decision-scotuscast; Vikrant P. Reddy, Courthouse Steps Decision Teleforum: Timbs v. Indiana, The Federalist Society (Feb. 21, 2019), https://fedsoc.org/events/courthouse-steps-decision-teleforum-timbs-v-indiana.

[4] Timbs, 139 S. Ct. at 689.

[5] Id. at 689-91.

[6] Timbs, 134 N.E.3d at 24-36 (“[T]o stay within the bounds of the excessive fines clause, a use-based fine must meet two requirements: (1) the property must be the actual means by which an underlying offense was committed, and (2) the harshness of the forfeiture penalty must not be grossly disproportional to the gravity of the offense and the claimant's culpability for the property's misuse.”).

[7] Id. at 27.

[8] Id. at 35-38.

[9] Id. at 39-40.

[10] Timbs, 169 N.E.3d at 367.

[11] Id. at 367-70.

[12] Id. at 369-70.

[13] Fifteen states have specifically adopted reforms to prevent the forfeiture of property from innocent owners of property being used in criminal activity without their permission or involvement, but most states still place the burden on property owners to prove their own innocence. See Institute for Justice, Civil Forfeiture Reforms on the State Level (2021), https://ij.org/activism/legislation/civil-forfeiture-legislative-highlights/; see also Lisa Knepper et al., Policing for Profit: The Abuse of Civil Asset Forfeiture, Institute for Justice (3d ed. 2020), https://ij.org/wp-content/themes/ijorg/images/pfp3/policing-for-profit-3-web.pdf.

[14] Id. at 372 (quoting Timbs, 134 N.E.3d at 37-38).

[15] Timbs, 169 N.E.3d at 372.

[16] Id. (citing Timbs, 134 N.E.3d at 36).

[17] Id. at 373.

[18] Id. at 373-74.

[19] Id. at 373-75.

[20] Id. at 375 (quoting Timbs, 134 N.E.3d at 37).

[21] Timbs, 169 N.E.3d at 375-376 (“They rather explained why he agreed to sell a small amount of drugs to an undercover officer—to help feed his addiction.”)

[22] Id. at 376-77.

[23] Id.

[24] Timbs, 134 N.E.3d at 40-41 (Slaughter, J., dissenting).

[25] Timbs, 169 N.E.3d at 377-78, 380 (Slaughter, J., concurring).

[26] Id. at 377-78 (Slaughter, J., concurring).

[27] Id. at 378, 380-81 (Slaughter, J., concurring).

[28] Timbs, 134 N.E.3d 12.

[29] Timbs, 169 N.E.3d at 381-82 (Massa, J., dissenting).

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