For those of you who watch the “Coffee with Steven” companion video to these blogs, you may remember last week I referenced a Supreme Court case that I wanted to discuss. That case is Timbs v. Indiana… and it is an important one.
So, to understand the importance of the case, we must understand the importance of the following: money, Colonial angst, Constitutional protections and, frankly, hubris. Tea leaf readers may also see some signaling on the upcoming New York Rifle and Pistol v. City of New York.
First, we need a little background. Law enforcement agencies have been using a tool known as “asset forfeiture” for quite some time. Essentially, the argument is that property used as part of a criminal event should be forfeited to the state, more specifically, the law enforcement agency making the arrest… think of it as the equivalent of a letter of marque.
In Indiana there was a heroin dealer named Timbs. (These stories always have the best heroes, don’t they?)
Well, Timbs’ pop died and he received an inheritance. He used his inheritance to purchase a Range Rover that cost him about $40,000. He then used said Range Rover to deliver heroin to his customer (that’s when he was caught). He was convicted, and the State sought to have title in the Range Rover transferred to itself as part of the Asset Forfeiture Statute.
The trial court in Indiana said… Whoa, cowboy, the fine for trafficking heroin is $10,000 (yep, apparently there is a statutory fine for heroin trafficking in Indiana, who knew?!), and you want to seize his car worth $40,000??? That sounds like a violation of the Eighth Amendment to the Constitution!
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Rights codified in the Bill of Rights only apply to federal intrusions on said rights. States are free to screw you, the citizen, all they want. This was the vision the Framers had… In fact, it was absolutely necessary to set it up this way to achieve the political will necessary for ratification. After the Civil War, we passed the Fourteenth Amendment. This amendment allows for the incorporation of rights directly to State constitutions, essentially preventing the State from screwing with its own citizens. The problem is incorporation only takes place when the Supreme Court says it has taken place.
The Eighth Amendment’s prohibition on excessive fines (elegantly referred to as the “Excessive Fines Clause”) has never been incorporated to State Constitutions.
That is til now.
The State of Indiana was less than pleased that it couldn’t get Timbs’ sweet ride, so it appealed to the Indiana Appellate Court. It got no love there either. The appellate court agreed with the trial court. So, relentless in their pursuit of justice… (or cash)… the Indiana court went to the State Supreme Court with the demand it gets this damn car! The Indiana Supreme Court was more receptive to the State's argument and stated that since the Eighth Amendment’s excessive fines clause was only a federal prohibition on excessive fines, the State was free to plunder at will.
Timbs then had the temerity to appeal to the U.S. Supreme Court.
The Supremes reversed the Indiana Supreme Court in an unanimous ruling. Ironically, it was in a decision authored by the great Statist herself, Ruth Bader Ginsberg. To make it more delicious, she used as part of her reasoning the Supreme Court case, McDonald v. Chicago 561 U.S as part of her justification of incorporation. (McDonald was the post Heller case that stated emphatically the Second Amendment is incorporated into State constitutions.)
To further her reasoning, she wrote that the “due process” clause of the Fourteenth Amendment is the nexus that incorporates the Eighth to the States. To do this, she references the case of Packingham v. North Carolina 582 U.S. 2017 dealing with sex offenders and restrictions on free speech… an interesting choice of authority.
Justice Gorsuch (who continues his trajectory towards my “favorite justice” status) concurred in his short opinion and suggested that Justice Ginsburg’s conclusion is correct, but her reasoning is flawed. He posits that the Privileges and Immunities Clause of the Fourteenth Amendment is the real bridge to incorporation, not due process.
This is important. If due process is the lynchpin, then all humans are entitled to this civil protection. If it is privileges and immunities, then it would only extend to citizens.
Justice Gorsuch’s feelings about this case were evident during oral arguments. He asked the State, if based on its belief that the Eighth was not incorporated, could a municipality seize a vehicle because the driver was illegally driving in the carpool lane. The State fumbled and stumbled in its reply, but essentially said yes… it is possible… but it would never happen because the State is essentially good and would never abuse its power.
Justice Thomas then weighed in with his own… awesome… concurring opinion.
He goes through a lengthy historical analysis of the grudge that free people have had against excessive fines since, literally, the English Bill of Rights of 1689. (Thomas has a knack for going on deep dives.)
He also takes Justice Ginsburg to task on her due process theory finding instead, as Gorsuch does, the right comes from the privileges of an immunities clause. In fact, relying on due process as a justification in his opinion creates “notorious” decisions:
“…and because of the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions, e.g., Roe v. Wade, 410 U.S. 113 (1973); Dred Scott v. Standford, 19 How. 393, 450 (1857).”
In fact, he thought the legal fiction of a “process violation” goes right into the heart of the due process adherents:
“Petitioner argues that the forfeiture of his vehicle is an excessive punishment. He does not argue that the Indiana courts failed to proceed according to the ‘law of the land’ - that is, according to the written Constitutional and statutory provisions. His claim has nothing to do with any ‘process’ ‘due' him. I, therefore, decline to apply the ‘legal fiction’ of substantive due process.” Justice Thomas Concurring Opinion, Timbs v. Indiana 586 U.S. _(2019)
Ha! and another Ha!
Then, lastly, quoting Justice Story Commentaries on the Constitution of the United States, he gives us in the gun rights community a little red meat as well:
“….included the prohibition on excessive fines as a right, along with the ‘right to bear arms’ and others protected by the Bill of Rights that ‘operates, as a qualification upon powers, actually granted by the people to the government’; without such a ‘restrict[ion],’ the government’s ‘exercise or abuse’ of its power could be ‘dangerous to the people’ Id., §1858, at 718-719.”
So… what does this mean to police departments and municipalities throughout the country who rely on asset forfeiture as a means of funding their departments?
Well… it depends.
The interesting thing about this decision is that it only prohibits the government acquisition of property post-judicial hearing. It does nothing to suggest that the government cannot seize property and keep it until the prosecuting authority determines the State’s desire to bring charges against the defendant. If the defendant abandons the property, or is in no position to reclaim the property, can the State keep it in default?
That remains to be seen. Regardless, most agencies will now have to readjust their programs in light of this ruling. It also means that to maintain the level of readiness and funding to project power into a community, the agency will have to ultimately rely on other funding mechanisms or reduce its presence.
Regardless, for those of us who see the Constitution as a cage that bars the growth and power of government, the bars got a retrofitting with this decision.
Free people now welcome the Excessive Fines Clause into the family of enumerated, incorporated, fundamental rights.