Archive for November 28th, 2018

Things In Oral Argument Did Not Go Well For Indiana

posted by Judge_Burke @ 19:34 PM
November 28, 2018

Observers of the United States Supreme Court know to be cautious about predicting the decision of the Supreme Court based upon the oral arguments. Earlier today there was a post in the blog about the excessive fines clause.  According to the Associated Press, Mark Sherman, things did not go well in oral argument for Indiana:

WASHINGTON (AP) — The Supreme Court left little doubt Wednesday that it would rule that the Constitution’s ban on excessive fines applies to the states, an outcome that could help an Indiana man recover the $40,000 Land Rover police seized when they arrested him for selling about $400 worth of heroin.

A decision in favor of 37-year-old Tyson Timbs, of Marion, Indiana, also could buttress efforts to limit the confiscation by local law enforcement of property belonging to someone suspected of a crime. Police and prosecutors often keep the proceeds.

Timbs was on hand at the high court for arguments that were largely a one-sided affair in which the main question appeared to be how broadly the state would lose.

The court has formally held that most of the Bill of Rights applies to states as well as the federal government, but it has not done so on the Eighth Amendment’s excessive-fines ban.

Justice Neil Gorsuch was incredulous that Indiana Solicitor General Thomas Fisher was urging the justices to rule that states should not be held to the same standard.

“Here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, general,” Gorsuch said to Fisher, using the term for holding that constitutional provisions apply to the states.

Justice Stephen Breyer said under Fisher’s reading police could take the case of a driver caught going 5 mph (8 kph) above the speed limit.

“Anyone who speeds has to forfeit the Bugatti, Mercedes or special Ferrari, or even jalopy,” Breyer said.

Fisher agreed.

It was unclear whether the justices also would rule to give Timbs his Land Rover back or allow Indiana courts to decide that issue. Some justices seemed willing to take that additional step.

“If we look at these forfeitures that are occurring today … many of them are grossly disproportionate to the crimes being charged,” Justice Sonia Sotomayor said.

But Chief Justice John Roberts said the question of whether what happened to Timbs was excessive might be a closer call. Timbs drove his car to the place where he twice sold small amounts of heroin to undercover officers, and he carried the drugs in the car, Roberts said. Police have long been allowed to seize property in such situations.

“You will lose assets you used in the crime,” Roberts said. “You can see how that makes a lot of sense.”

Lawyer Wesley Hottot, representing Timbs, told the justices that in rural areas people drive places. He said the use of the Land Rover was incidental to the sale of the drugs.

The case has drawn interest from liberal groups concerned about police abuses and conservative organizations opposed to excessive regulation.

Timbs said his own view of the case has changed over time.

“At first it was about getting my truck back because I was mad, and I wanted my stuff back. Now it’s a lot different,” he said. “I was curious to see how often they did this to people. They do it a lot around here, and apparently it’s done all over the country.”

Timbs’ criminal sentence included no prison time, a year of house arrest and five years on probation.

In earlier cases applying parts of the Bill of Rights to the states, the court used the due process clause of the 14th Amendment, passed after the Civil War to ensure the rights of newly freed slaves.

The court also has relied on that clause — “no state shall deprive any person of life, liberty or property without due process of law” — in cases that established a woman’s right to an abortion and knocked down state laws against interracial marriage and gay sex.

The story of how Timbs ended up in the Supreme Court began with steel-toed boots he bought for work in a truck factory. The boots hurt his feet, but he couldn’t immediately afford the insoles he was told to buy. A doctor wrote a prescription for hydrocodone. Before long, Timbs was hooked on heroin.

He tried several times to get clean but said he wasn’t ready. A more than $70,000 life insurance payout he received after his father’s death seemed a blessing, but it wasn’t, he said.

“A drug addict shouldn’t have a whole lot of money,” said Timbs, who used some of the money to buy the Land Rover.

Timbs hasn’t driven the car since his arrest in 2013. He lives with his aunt, and she allows him to use her 2012 Dodge Avenger, for which he said he is especially appreciative.

“But it’s definitely not a Land Rover,” Timbs said.

A decision in Tyson Timbs and a 2012 Land Rover LR2 v. Indiana, 17-1091, is expected by June.



Excessive Fines

posted by Judge_Burke @ 16:45 PM
November 28, 2018

SCOTUS will decide whether the excessive fines clause applies to states. Mark Walsh has this article in the December 2018 issue of ABA Journal magazine. Here is an excerpt:


Timbs’ appeal to the U.S. Supreme Court reached the justices at a time when there has been renewed attention to the potentially onerous burdens of civil fines and forfeitures.

In 2017, in a statement respecting the denial of certiorari in the case Leonard v. Texas, Justice Clarence Thomas expressed concerns about modern civil forfeiture practices.

“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,” Thomas wrote, adding that he was skeptical that historical forfeiture practices, which tended to arise in the realms of customs and piracy, could support “the contours of modern practice.”

Timbs has attracted support from a wide range of organizations, including the American Bar Association, the American Civil Liberties Union, the U.S. Chamber of Commerce and the Pacific Legal Foundation.

The ABA in its amicus brief told the justices about its Working Group on Building Public Trust in the American Justice System, which is addressing the concern that excessive judicial fines and fees “disproportionately harm the millions of Americans who cannot afford to pay them, entrenching poverty, exacerbating racial and ethnic disparities, diminishing trust in our justice system and trapping people in cycles of punishment simply because they are poor.”

A group of legal scholars filed an amicus brief in support of Timbs that says, “State and local governments have been levying greater and greater fines and relying heavily on forfeitures in recent years, often at the expense of people who can least afford to pay. Fines and forfeitures are punishments, but they can also make money for cities and states, which gives governments an incentive to increase these punishments to excessive levels.”

Colgan, who has signed onto the scholars’ brief in support of Timbs, says, “We only have four cases in which the Supreme Court has interpreted the excessive fines clause, so we have a lot of open questions.”


Indiana argues that there is a problem with the idea that the forfeiture of Timbs’ Land Rover was disproportionate to his fines. “In our view, the excessive fines clause is about punishment for the criminal,” says Indiana Solicitor General Thomas M. Fisher. “When you’re talking about in rem forfeiture, you’re talking about an action against the property. It’s a separate proceeding.”

The state points out that after his arrest, Timbs admitted to the police that he would use his Land Rover to pick up heroin several times per week. At the forfeiture hearing, he said that doing so put “a lot” of miles on the vehicle.

“If you are trying to conceptualize the seizure of the property as proportional to something, you have to compare it to the role the property played in the crime,” he says.

Both sides’ briefs delve heavily
into the history of the incorporation of the Bill of Rights against the states and into historical practices of fines and forfeitures. One of the state’s examples is meant to show that in rem forfeitures—legal actions directed against property instead of a person—have sometimes been quite draconian and disproportionate.

In an 1833 case, a federal court upheld the seizure of The Louisa Barbara, a 400-ton passenger vessel, because its 178 passengers exceeded a federal weight limit by one passenger.

“When we look at in rem forfeitures, we can see some harsh consequences in history,” Fisher says. “Yet no court has ever suggested there were any constitutional barriers to that.”

Lawyers for Timbs contend that Indiana is ignoring some more recent history. In Austin v. United States, in 1993, the Supreme Court held that forfeitures of property used in certain drug crimes authorized by two federal statutory provisions were “monetary fines” subject to the excessive fines clause.

By arguing that forfeitures aren’t fines, “the state attempts to relitigate Austin,” says Wesley P. Hottot, one of Timbs’ lawyers with the Institute for Justice, an Arlington, Virginia-based public interest legal organization.

The court has incorporated the Eighth Amendment’s other two provisions against the states—those barring excessive bail and cruel and unusual punishment. “The Supreme Court should finish the job and require the states to incorporate the excessive fines clause as a check against the government’s power to punish,” Hottot says.

Timbs has served his house arrest and probation, and he says he is now clean of using drugs. He drives some 35 miles each day to his factory job in Huntington, Indiana, where he is a machinist in a John Deere plant.

He borrows his aunt’s car. It’s a 2012 Dodge Avenger, a modest sedan, since his Land Rover is still in possession.

“I’ve been made aware that if I get it back, it might not be in the best condition,” Timbs says. “I wrote that truck off a long time ago.”

But he hasn’t written off the legal battle he is waging. “I feel like I stand for something,” Timbs says. “I’m coming out of a life of addiction where I didn’t mean a lot to anyone. Now I feel like I’m doing something good with this.”