Supreme Court poised to strike a blow against policing for profit

In 2015, Tyson Timbs" Land Rover was confiscated by Indiana authorities after he pled guilty to selling $225 of heroin to undercover officers to finance his opiate addiction. Because Timbs briefly carried drugs in the SUV, a mercenary-esque private law firm hired by the state claimed it could seize and sell the vehicle, turning over some of the profit to Indiana while pocketing the rest as a contingency fee.

"Every year, the government obtains billions of dollars from prosecutors who expropriate property with some tenuous connection to a crime. Most states use the money to fund law enforcement," says Slate's Mark Stern.

This "policing for profit," allows law enforcement and prosecutors to seize and sell private property - regardless of whether the individual is ever charged with a crime. Asset forfeiture has led to serious abuses that particularly victimize poor and minority property owners. That's what happened to Timbs - so he sued, insisting that extreme forfeiture violates the Constitution.

At trial, Indiana argued the seizure was legal as the SUV was used to transport narcotics. Timbs, however, contended that forfeiture of his $42,000 Land Rover violated the Excessive Fines Clause of the 8th Amendment given that the value of the vehicle was four times the $10,000 maximum fine the court could have imposed.

While both trial and appellate courts sided with Timbs, the Indiana Supreme Court ruled that the Excessive Fines Clause had never been applied to the states.

Originally, the Bill of Rights (including the Excessive Fines Clause) applied only to the federal government. After the Civil War, Congress drafted the 14th Amendment with the intent to "incorporate," or "apply" the Bill of Rights against state governments," according to Stern. Throughout the 20th century, the Supreme Court held that almost all these rights did apply to the states. Yet, the question of incorporation of the Excessive Fines Clause had never actually been ruled upon by the high court.

The Supreme Court has articulated that the state and federal governments must recognize protections in the Bill of Rights that are "fundamental to our scheme of ordered liberty," and "deeply rooted in this nation's history and tradition."

Representing Timbs, Wesley Hottot argued just that when the Bill of Rights was ratified, nine of 13 state constitutions contained bans on excessive fines. By the 14th Amendment's 1868 ratification, all but two state constitutions contained similar language.

The justices spent the majority of Hottot's argument time questioning the scope of the right - i.e., what exactly qualifies as "excessive" in regard to property forfeiture.

Indiana Solicitor General Thomas Fisher did not fare so well at the lectern. A mere 14 seconds into his argument, Justice Neil Gorsuch interrupted: "Can we just get one thing off the table?" he asked. "We all agree that the excessive fines clause is incorporated against the states. … Can we at least agree on that?"

Fisher attempted to dodge, but Gorsuch cut him off sharply, noting that most of the Bill of Rights was incorporated "in, like, the 1940s." Gorsuch continued, "and here we are in 2018, still litigating incorporation … Really? Come on, General."

NPR's Nina Totenberg noted that things did not improve for Fischer: "Justice Stephen Breyer [tested] the limits of Fisher's argument. Could the state seize a "Bugatti, Mercedes, or a special Ferrari … if the driver was speeding 5 miles an hour over the limit?'" "'The answer," the pained-looking Fisher replied, "is yes.'"

Adding insult to injury, Justice Brett Kavanaugh inquired: "Isn't it just too late in the day to argue that any of the Bill of Rights is not incorporated?"

By argument's end, it seemed probable the justices will, at the very least, hold that the constitutional right does indeed apply to the states. If correct, the specter of property forfeitures violative of the Excessive Fines Clause will loom large over state law enforcement agencies and likely deter unlawful seizures. What's certain is that Tyson Timbs" case will be an important victory for civil liberties and property rights for all.

Joseph C. Alfe, of Chicago, and Grant D. Talabay, of Woodstock, are members of the board of directors of the Chicago Lawyer Chapter of the American Constitution Society.