Olivia Covington for www.theindianalawyer.com

A lawsuit challenging Indiana’s civil forfeiture procedures will be heard by the United States Supreme Court after the justices granted a writ of certiorari to a case that a national legal organization says will have significant implications on Eighth Amendment protections nationwide.

The justices on Monday agreed to hear Tyson Timbs and a 2012 Land Rover LR2, 17-1091. The Virginia-based Institute for Justice filed the cert petition in January on behalf of Tyson Timbs, a Grant County man who used proceeds from his father’s life insurance policy to purchase a $42,000 Land Rover in 2013.

Timbs then began using the Land Rover to buy and sell heroin, to which he was addicted, in Marion, Richmond, and Ohio. Timbs was eventually arrested as part of a series of controlled buys and pleaded guilty to Class B felony dealing and Class D felony conspiracy to commit theft. The Marion man was sentenced to six years, with one year executed on home detention, and agreed to pay $1,203 in fees and costs.

Meanwhile, according to the IJ’s cert petition, a private law firm filed a case on behalf of the state to forfeit the Land Rover. Though the Grant Superior Court noted Timbs had used the vehicle for illegal drug activity, it also found it was purchased legally and that its forfeiture would be “grossly disproportionate” to Timbs’ offense.

A divided panel of the Indiana Court of Appeals agreed, with majority judges Paul Mathias and Chief Judge Nancy Vaidik noting the statutory cap on fines is set at $10,000.
“Although we do not suggest that forfeiture of any asset valued over the maximum fine is automatically a violation of the Excessive Fines Clause, it is instructive to our analysis that the value of the asset sought by the state is well in excess of the maximum fine,” Mathias wrote in October 2016.

Now-retired Judge Michael Barnes dissented, writing that the Land Rover “did not have only a tangential relationship to the crime or the defendant.”

“It should not matter that Timbs committed the crime using an expensive new Land Rover rather than an old, inexpensive ‘beater,’” he wrote.

The state appealed Timbs’ case to the Indiana Supreme Court in March 2017, and the justices unanimously overturned both lower court rulings the following November. Justice Geoffrey Slaughter wrote for the court that the Eighth Amendment’s Excessive Fines Clause has not been incorporated to the state’s through the 14^th Amendment, so the justices declined to “subject Indiana to a federal test that may operate to impede the development of our own excessive-fines jurisprudence under the Indiana Constitution.”

Thus, the court ruled the state had proven it was entitled to forfeit the Land Rover under Indiana Code section 34-24-1-1 (Supp. 2012). But in the cert petition, Timbs and the IJ challenged the justices’ Eighth Amendment ruling as breaking with nationwide precedent.

“Although two Circuits and at least 14 state high courts apply the Excessive Fines Clause to the States, a minority of courts — in Montana, Mississippi, Michigan, and now Indiana — believe that the Clause does not apply,” the IJ wrote. “… As a result, Petitioner Tyson Timbs — along with 6.6 million residents of Indiana and more than 13 million residents of the three other minority jurisdictions — enjoys Eighth Amendment protection against fines and forfeitures imposed by the federal government but not against those imposed by state and local authorities.”

In its opposition to the cert petition, the state, represented by Solicitor General Thomas M. Fisher, said Timbs’ case was not an appropriate vehicle to address the Eighth Amendment issue because neither party addressed that issue at length in state court. Additionally, the state argued that SCOTUS would be charged both with determining whether the 14^th Amendment incorporates the Excessive Fines Clause and whether that clause “restricts States’ use of civil asset forfeitures specifically.”

“Delaying consideration of the incorporation question would give the lower courts an opportunity to engage in the substantive ‘selective incorporation’ analysis required by the Court’s precedents,” Fisher wrote in May. “Indeed, denying Timbs’s petition would implicitly reiterate the obligation of lower courts to apply the appropriate test rather than await an answer from the Court.”

A spokesman for Attorney General Curtis Hill’s office said the office is looking forward to “addressing the important questions raised by this case in our nation’s highest court.” He also said Fisher has argued three times before the Supreme Court, including Crawford v. Marion County Election Board, the voter identification case.

In a statement released through IJ, Timbs said he is “fighting to stay clean,” has served his punishment and now wants to keep his life on track.

“Without my car, it is incredibly difficult to do all the things the government wants me to do to stay clean, like visit my probation officer, go to AA, and keep my job,” Timbs said. “Right now, I’m borrowing my aunt’s car to go to work so we can pay the bills, and she has to take a bus back and forth to her kidney dialysis appointments. You need a car to do all of these things.”

FOOTNOTES: Read more on Timbs’ case and on the IJ’s litigation against Indiana civil forfeiture practices in the June 27-July 10 issue of Indiana Lawyer.