In the

Supreme Court of the United States

TYSON TIMBS AND A 2012 LAND ROVER LR2, Petitioner,

v.

STATE OF INDIANA, Respondent.

 

BRIEF FOR RESPONDENT

QUESTION PRESENTED

Whether the Excessive Fines Clause, via the Due Process Clause, is incorporated against state in rem forfeitures.

INTRODUCTION

This case began with the State of Indiana's routine forfeiture action against Tyson Timbs's Land Rover. Indiana law authorizes forfeiture of the Rover because Timbs used it to traffic heroin, but he argues that its value far exceeds the gravity of his crime and that the Eighth Amendment's Excessive Fines Clause-which he contends applies to the States un­der the Fourteenth Amendment-bars the forfeiture.

Timbs's claim fails at the starting gate: The Exces­sive Fines Clause does not impose a proportionality requirement on state forfeitures, a feature of American law for more than three hundred years. Even though forfeitures sometimes produce harsh results -the owner's innocence "has almost uniformly been rejected as a defense courts did not suggest that the Excessive Fines Clause might limit forfeitures until the last quarter of the twentieth century. Indeed, only five earlier state-court cases even mentioned the ar­gument Timbs makes here; all squarely rejected it.

The history of forfeitures suggests two pos­sible conclusions: the Excessive Fines Clause does not apply to forfeitures-potentially conflicting with Austin v. United States, or the Fourteenth Amendment does not apply the Clause against the States. Either way, history re­quires the Court to reject Timbs's claim.

 

STATEMENT OF THE CASE

The investigation into Timbs's heroin trafficking began with a tip from a confidential informant and continued with two controlled drug purchases; each time, officers bought two grams of heroin from Timbs and scheduled a subsequent sale. Police arrested Timbs and seized the Rover while he was on his way to the third sale. While he was in custody, Timbs told officers that he would use the Rover to pick up heroin several times a week, and at the forfeiture hearing, he said that doing so put "a lot" of miles on the vehicle.

The State charged Timbs with two counts of Class B felony dealing in a controlled substance and one count of Class D felony conspiracy to commit theft. Timbs pled guilty to the conspiracy count and one of the drug-dealing counts in exchange for dismissal of the remaining dealing charge. The court sentenced Timbs to one year of home detention and five years of probation; Timbs also agreed to pay investigation costs of $385, an interdiction fee of $200, court costs of $168, a bond fee of $50, and a court-cer­tified drug-and-alcohol assessment fee of $400, for a total of $1,203.00 in fees and costs.

Indiana law authorizes the State to bring "an ac­tion for forfeiture" against property seized as an in­strumentality of certain crimes, including vehicles used to transport heroin. The forfeiture action is entirely separate from any criminal prosecution, and, because the State brings the action against the property itself. The federal gov­ernment and nearly every other State utilize similar forfeiture proceedings.

Accordingly, after the State seized the Rover, but while Timbs's criminal case was still pending, private lawyers acting under the authority of an elected pros­ecuting attorney filed a complaint on the State's be­half seeking forfeiture of the Rover under Indiana Code. Timbs's answer denied the allegations without raising any constitutional arguments. After Timbs had pled guilty, the trial court held a hearing on the State's forfeiture ac­tion, and it found that the Rover met the statutory criteria for forfeiture because it was used to "transport a controlled substance for the purpose of committing the crime of dealing in a schedule I controlled substance."

Nevertheless, the trial court held-without hear­ing any argument from the parties on the point-that the forfeiture would violate the Excessive Fines Clause. It noted that the Rover was valued at about $40,000, and that the maximum fine ap­plicable to the drug-dealing charge to which Timbs had pled guilty was $10,000. Although Indiana law sets $10,000 as the maximum fine for all felonies, including murder, the trial court concluded that the approximately four-to-­one ratio between the value of the Rover and the max­imum fine for the drug-dealing charge was "grossly disproportional" and therefore unconstitutional un­der the Excessive Fines Clause.

After filing an unsuccessful motion to correct er­ror, the State appealed the trial court's decision, which the Indiana Court of Appeals affirmed. The State then sought transfer to the In­diana Supreme Court, which reversed, holding that the Excessive Fines Clause does not bar the forfeiture because the Fourteenth Amendment does not incor­porate the Excessive Fines Clause against the States.

SUMMARY OF ARGUMENT

1. The question presented by this case is whether the right Timbs claims-that is, the right to be free from disproportionate forfeitures-is "funda­mental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition." Timbs recognizes that this question is answered by examin­ing the historical evidence. He is mis­taken, however, about which evidence is relevant. Be­cause this case involves an in rem forfeiture, the ques­tion is not whether in personam fines were tradition­ally subject to proportionality review, but in­stead whether proportionality requirements were his­torically applied to in rem forfeitures.

The Court should also reject the urging of amici to discard the settled framework for deciding incorpora­tion questions in favor of constructing a new incorpo­ration doctrine from the ground up. The historically informed, straightforward approach the Court de­scribed and used in McDonald is "well established." Upsetting current doctrine would cre­ate numerous collateral consequences, all without changing the answer to the question presented by this case: The right Timbs claims is neither fundamental to, nor deeply rooted in, America's legal tradition and therefore does not apply against the States.

2. For the vast majority of American history, forfeitures have not been subject to a proportion­ality requirement. Even before the Revolution, au­thorities brought proceedings against property used to violate the law. These proceedings sometimes resulted in severe consequences; courts have always rejected, for example, the innocence of the forfeited property's owner as a defense. Yet, in spite of the many opportunities to complain of "disproportionate" forfeitures, not a single decision issued prior to the end of the twentieth century said that either a federal or state Excessive Fines Clause imposes a pro­portionality requirement on these forfeitures-even though virtually every State has such a Clause and even though courts regularly enforced Excessive Fines Clauses against criminal fines. The only five state-court cases prior to 1988 even to acknowledge the possibility of an Excessive Fines Clause limit on forfeitures all explicitly rejected it. The courts' silence is powerful evidence that no such proportion­ality requirement exists, particularly in light of other challenges occasionally brought against forfei­tures based on constitutional provisions having noth­ing to do with proportionality.

The traditional conception of forfeitures ex­plains why the Excessive Fines Clause is inapplicable here. As multiple nineteenth-century treatises ex­plained, forfeitures are not penalties, and the Excessive Fines Clause applies only to a ''punishment for some offense." And it is hard to see how any proportionality requirement could be squared with courts' consistent approval of forfeitures suffered by innocent owners.

3. The historical evidence establishes that, both before and after the ratification of the Fourteenth Amendment, the American legal tradition did not con­sider forfeitures to be subject to a proportion­ality requirement. Accordingly, two potential inter­pretations are available. The better interpretation reads the Excessive Fines Clause not to apply to forfeitures and thereby fully harmonizes the his­torical evidence: It explains why Timbs cites many courts and commentators calling excessive fines un­constitutional but no authorities saying the same about forfeitures. And Austin, which held that the Excessive Fines Clause does apply to two specific federal forfeitures, is no reason to refuse to hold the Excessive Fines Clause inapplicable to state forfeitures. If anything, the Court's subsequent decisions-to say nothing of the historical evidence ­have undermined Austin's reasoning.

If the Court interprets the Excessive Fines Clause to encompass forfeitures, however, historical evidence permits just one other interpretation-that the Clause does not apply to the States. No evidence demonstrates that the American legal tradition ever recognized a rule prohibiting state forfeiture of an instrumentality of crime where the value of the property is disproportionate to the seriousness of the violation. In short, no right of forfeiture pro­portionality is "deeply rooted" in American history or tradition. The right Timbs claims, therefore, cannot be applied against the States.

ARGUMENT

I.  The Question Before the Court Is Whether the Excessive Fines Clause, Via the Due Process Clause, Imposes a Proportionality Requirement on State In Rem Forfeitures

A. The Court should ask whether a pro­portionality requirement for in rem forfeitures is a fundamental and deeply rooted feature of American law

Reaching the right answer in this case requires first asking the right question. Here the right question is not whether the Excessive Fines Clause is incorporated as a general matter, but whether the Clause, in conjunction with the Fourteenth Amendment, prohibits the particular state action against which Timbs has lodged a consti­tutional objection-the in rem forfeiture of his Rover as an instrumentality of drug trafficking. Timbs claims a constitutional right to be free from "disproportionate" in rem forfeitures. To enforce this right against Indiana, he must show that it "is fundamental to our scheme of ordered liberty, or as we have said in a related context, is deeply rooted in this Nation's history and tradition."

1. The Court must examine the history of in rem forfeitures because the Court's incorporation cases frame the incorporation question in terms of the spe­cific right asserted. In McDonald, for example, the Court did not look at the history of the Second Amend­ment in general but examined the history of the "right to keep arms for self-defense."

The Courts' other incorporation cases have taken the same right-specific approach. For example, rather than incorporate all of the rights encompassed by the first clause of the Fourth Amendment all at once­ "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," The Court first incorporated the Clause's reasonableness requirement and about fifteen years later incorporated the Clause's warrant requirement,. Similarly, rather than incorpo­rate the "right to an impartial jury," wholesale, the Court has held that this Clause requires States to provide a jury trial to de­fendants charged with serious offenses, but that it does not incorporate a right to a unanimous verdict.

Focusing on the specific claimed right is particu­larly important here because the forfeiture Timbs challenges is very different from the criminal fines to which his historical evidence relates. The State im­posed the forfeiture pursuant to an in rem civil pro­ceeding against the Rover, not an in personam crimi­nal proceeding against Timbs. "It is not true, that informations in rem are criminal pro­ceedings. On the contrary, it has been solemnly ad­judged that they are civil proceedings." The validity of the forfeiture therefore turns not on Timbs's culpa­bility but on the Rover's-whether it was used to transport drugs for the purpose of drug dealing. And Indiana courts determine which-or how much-property goes to the State by considering the property's involvement in the crime, not the crime's severity.

Timbs ignores this distinction. He frames the question presented at a high level of generality, ask­ing "whether the Eighth Amendment's Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment," without addressing in rem forfeitures in particular. And virtually all of the historical evidence he presents relates to criminal fines, not in rem forfeitures.

Whether the Constitution would prohibit a hypothet­ical $40,000 criminal fine for Timbs's crime is irrele­vant. The only relevant question is whether the Con­stitution -specifically, the Excessive Fines Clause, via the Fourteenth Amendment- imposes a propor­tionality requirement on the State's in rem forfeiture of his Rover.

2. Even if the Court were to view the incorporation question at a higher level of generality and ask whether the Excessive Fines Clause as a whole is fun­damental to, and deeply rooted in, the American legal tradition, the history of in rem forfeitures still would be essential to reaching the right answer. The Exces­sive Fines Clause can be "incorporated in the concept of Due Process" only if all its protections-in­cluding its purported protection against dispropor­tionate in rem forfeitures-are "fundamental to our scheme of ordered liberty" and "deeply rooted in this Nation's history and tradition." The historical pedigree of the Excessive Fines Clause's restriction against disproportionate criminal penalties cannot by itself justify applying other purported constitutional limitations against the States.

The Court has never applied a purported constitu­tional limitation against the States after finding that it fails the "fundamental ... or ... deeply rooted" test. In McDonald, for exam­ple, the Court marshalled statements from the found­ing and Fourteenth Amendment ratification periods demonstrating that "the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms for self-defense among those funda­mental rights necessary to our system of ordered lib­erty."

In short, there is no precedent for incorporating all limitations recognized by a clause in the Bill of Rights where some of those limitations lack fundamental grounding in American history and traditions.

Whether the Court views the incorporation in­quiry on a right-by-right or a clause-by-clause basis, it should focus on in rem forfeitures specifically-not merely in personam fines. Timbs must identify histor­ical evidence showing that the American legal tradi­tion has consistently applied, and recognized as sig­nificant, his claimed right to a proportionality re­quirement for in rem forfeitures. History is particularly important here be­cause the meaning of the Excessive Fines Clause, as in "other Eighth Amendment contexts," is "illumi­nated by its history." The applicability of the Eighth Amendment always has turned on its original meaning, as demon­strated by its historical derivation. The history forecloses Timbs's argument: In rem forfeitures have been common throughout Amer­ican history, but courts did not recognize the right Timbs claims-much less declare it fundamental ­until the end of the twentieth century.

II.      History Shows That In Rem Forfeitures Were Not Originally Understood to Be Subject to an Excessive Fines Clause Proportionality Requirement

The historical evidence all points in a single direc­tion: The right Timbs claims is neither fundamental to, nor deeply rooted in, America's legal tradition. Alt­hough in rem forfeitures have always existed in Amer­ican law-and frequently have been harsh-from be­fore the Revolution through most of the twentieth cen­tury, no court even suggested that a state or federal Excessive Fines Clause imposed a proportionality re­quirement on these forfeitures. Unchallenged practice is highly probative of the Constitution's original meaning, and it is particularly so here in light of the other constitutional challenges occasionally brought against in rem forfeitures, and in light of the applica­tion of the Excessive Fines Clause's proportionality requirement to in personam fines. Observers some­times suggested that the Due Process Clause imposes limitations on in rem forfeitures-albeit limitations unrelated to proportionality-which makes it all the more striking that they did not identify any propor­tionality limitation stemming from the Excessive Fines Clause.

The historical understanding of in rem forfeitures both explains the silence regarding any Excessive Fines Clause limitation and further substantiates the significance of this silence. American law has long dis­tinguished in rem forfeitures from in personam fines; the former are not penalties, while the latter are. Be­cause the Excessive Fines Clause applies only to pen­alties, it does not apply to in rem forfeitures. Moreo­ver, any proportionality requirement would funda­mentally contradict the longstanding rule that the guilty property of even an innocent owner can be the subject of in rem forfeiture, and would do nothing to further the original central purpose of the Excessive Fines Clause.

(BENŐS COMMENT - WE ARE NOW OFFERED ANOTHER LONG HISTORY LESSION)

No contemporaneous evidence attests to the exist­ence, much less the fundamentality, of a rule requir­ing in rem forfeitures to be proportional, and the few cases to consider this rule before the late twentieth century rejected it. Even if  the Excessive Fines Clause applies to in rem forfeitures, it cannot apply to the States.

CONCLUSION

The judgment should be affirmed.