Justices take jurisdiction from COA in ‘policing for profit’ case

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Dave Stafford for www.theindianalawyer.com

A case challenging the constitutionality of Indiana’s civil forfeiture laws is heading to the Indiana Supreme Court, just as a separate Indiana civil forfeiture case will be heard next term by the United States Supreme Court.

The Indiana Supreme Court last week circumvented the normal course of appellate review, granting an Appellate Rule 56(A) transfer petition, exercising its discretion to assume jurisdiction over an appeal that “involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination.”

That case is Jeana M. Horner v. Terry Curry, et al., 49D06-1602-PL-004804. The Institute for Justice two years ago filed the suit that alleges law enforcement keeps the money it seizes through civil forfeiture in what it called a “policing for profit” scheme. The institute challenged the practice that it said violated Article 8, Section 2 of the Indiana Constitution, which provides that “… the fines assessed for breaches of the penal laws of the State; and from all forfeiture which may accrue…” must be diverted into the Common School Fund.

In March, Marion Superior Judge Thomas Carroll ruled that the practice was constitutional. The Supreme Court granted transfer June 19, its order indicating a majority of justices favored taking the appeal under Rule 56(A), though the order did not say which justices did not support hearing the case.

The decision came one day after the U.S. Supreme Court agreed to hear a separate Indiana civil forfeiture case contesting law enforcement seizure of property used in criminal activity against the U.S. Constitution’s Eighth Amendment Excessive Fines Clause.

In that case, Tyson Timbs and a 2012 Land Rover LR2, 17-1091, the Institute challenged the seizure of a vehicle worth more than $40,000 — more than four times the maximum civil penalties that could have been levied against Tyson Timbs of Marion for his drug conviction.

The Indiana Supreme Court in November unanimously affirmed the civil forfeiture in Timbs’ case, reaching the opposite conclusion of the Grant Superior Court and a divided panel of the Indiana Court of Appeals, both of which found the seizure was a violation of the Excessive Fines Clause.

The most recent Indiana Supreme Court transfer lists may be read here.

Read more about the Tyson Timbs civil forfeiture case in the June 27 issue of Indiana Lawyer.

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