Petition for Writ of Certiorari — Timbs v. Indiana, 139 S. Ct. 45 (2018) (No. 17-1091)

No, 17-____

Iu Tye

Supreme Court of the Hnited States

°

TYSON TIMBS AND A 2012 LAND ROVER LR2,

Petiti

v.

STATE OF INDIANA,

Respondent.

On Petition For A Writ Of Certiorari

To The Indiana Supreme Court

PETITION FOR A WRIT OF CERTIORARI

DARPANA M. SHETH Wes.ey P. Horror*

SAMUEL B. GEDGE INSTITUTE FOR JUSTICE

INSTITUTE FOR JUSTICE 10500 NE 8th Street,

901 North Glebe Road, Suite 1760

Suite 900 Bellevue, WA 98004

Arlington, VA 22203 (425) 646-9300

(703) 682-9320

dsheth@ij.org *Counsel of Record

agedge@ij.org

Counsel for Petitioners

i

QUESTION PRESENTED

Whether the Eighth Amendment's Excessive

Fines Clause is incorporated against the States under

the Fourteenth Amendment.

‘i

PARTIES TO THE PROCEEDINGS

Petitioners are Tyson Timbs and his 2012 Land

Rover LR2. Respondent is the State of Indiana. Addi-

tional plaintiffs before the trial court were the J.E.A.N.

Team Drug Task Force, the Marion Police Department,

and the Grant County Sheriff's Department.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .....................ccc0ccc0eeeees i

PARTIES TO THE PROCEEDINGS ................... ii

TABLE OF AUTHORITIES .................c:ccccceceeeeees v

INTRODUCTION ...........cccccccccecceeeeeeesenennnnneenenenes 1

OPINIONS BELOW.................ccccccceceeeeeeeeenennnnnnnnes 4

JURISDICTION .............00000cceeeseeeeeeeeeeeeeeneneneeeeeeeees 4

CONSTITUTIONAL PROVISIONS INVOLVED..... 4

PERE S EINE crcccccccncnovccccccccveccnnenecnocnescccooooconecocees 5

REASONS FOR GRANTING THE PETITION. ..... 10

I. The Indiana Supreme Court’s decision

deepens an existing conflict over whether

the Excessive Fines Clause applies to the

eR iscescrecsanenceseeneecesvesscsncetouseanseintereseseteee 11

A. Two Circuits and at least 14 state high

courts apply the Excessive Fines

Clause to the States ...................66:008 13

B. Indiana joins Montana, Mississippi,

and the Michigan Court of Appeals in

holding that the Excessive Fines

Clause does not apply to the States.... 19

Il. The Indiana Supreme Court’s decision

conflicts with this Court’s precedent......... 21

Ill. The question presented raises issues of

national importance that warrant this

SI CE csveccetevccsncevesesnsssceesecencensceenee 27

iv

TABLE OF CONTENTS — Continued

Page

A. The Excessive Fines Clause is a key

protection against punitive economic

sanctions by States and municipali-

GERI se cencnentosnvesnednasonesésubessenensescncstonsnecces 27

B. National uniformity is critical ............ 33

C. This case is a good vehicle for deciding

the question presented ........................ 36

ei itntictenentnrtindbiniiuntsantesctoneaninesenespenes 38

APPENDIX

Opinion of the Indiana Supreme Court (Nov. 2,

Se accenpecthncerienscidinnsasinaissiidatenbiiidanantinanesiiiodinpetentes App. 1

Opinion of the Court of Appeals of Indiana (Oct.

Se SE crcrtitnssnantnnteninanennimenneniinaiaseemnennend App. 13

Order of the Indiana Superior Court, Grant

County, Court 1 (Aug. 28, 2015).................... App. 27

Order of the Indiana Superior Court, Grant

County, Court 1 (Oct. 21, 2015)...................... App. 31

Order of the Indiana Superior Court, Grant

County, Court 1 (Nov. 9, 2017)....................... App. 32

Order of the Indiana Superior Court, Grant

County, Court 1 (Nov. 15, 2017)..................... App. 33

Vv

TABLE OF AUTHORITIES

Page

CASES

$100 v. State, 822 N.E.2d 1001 (Ind. Ct. App.

STi inisipuiasisnistncintadhaiiesiieindiiesbiipsnbicticanedibnsmnidanssibiaainieeipenieinsens 8

Agresta v. City of Maitland, 159 So. 3d 876 (Fla.

eas A I SIRT sicerticincatnriintnmndannengeetennsecetens 18

Atkins v. Virginia, 536 U.S. 304 (2002)....................... 23

Attorney-Gen. v. One Green 1993 Four Door

Chrysler, 217 A.D.2d 342 (N.Y. App. Div. 1996) ........ 18

Austin v. United States, 509 U.S. 602

EE isdbiedsigsieseniaientinitgataniaddupiegunnipetsesninsees 2, 22, 23, 37

Baze v. Rees, 553 U.S. 35 (2008) ..................... 10, 12, 22

Bond v. United States, 564 U.S. 211 (2011)................ 34

Booth v. Maryland, 482 U.S. 496 (1987), over-

ruled on others grounds, Payne v. Tennessee,

ee Cee SID haticitehstctrenieneesocnnainisemneeseszese 10, 22

Bowman v. State, 81 N.E.3d 1127 (Ind. Ct. App.

2017), pet. for transfer pending.........................0.---+- 35

Broussard v. Par. of Orleans, 318 F.3d 644 (5th

SE IIE cncbdenhiccintsinsdiencumugiimnianniesiatinnininastniarmenens 14

Browning-Ferris Indus. of Vt. v. Kelco Disposal,

mG Oe passim

Claflin v. Houseman, 93 U.S. 130 (1876).................... 26

Commonwealth v. 1997 Chevrolet, 160 A.3d 153

PTL TIT icsiiciisccmsistasisuiniilichinhdéieaneidaitininitaniidetiabiapiainidensane 17

Commonwealth v. Fint, 940 S.W.2d 896 (Ky.

TE eri ee ar an ee a CE 16

vi

TABLE OF AUTHORITIES — Continued

Page

Cooper Indus. v. Leatherman Tool Grp., 532 U.S.

a iccturtdeniiartnionsiimnnnnnipeene passim

Cripps v. La. Dep’t of Agric. & Forestry, 819 F.3d

221 (5th Cir.), cert. denied, 137 S.Ct. 305

Dami Hosp., LLC v. Indus. Claim Appeals Office,

No. 16CA0249, 2017 WL 710497 (Colo. App.

Feb. 23, 2017), cert. granted in part sub nom.

Colo. Dep’t of Labor & Emp. v. Dami Hosp.,

LLC, No. 17SC200, 2017 WL 3977989 (Colo.

I, Beis ee acinscitanineninnenninesmishinrananaticheteenmenanes 18

Davanne Realty v. Edison Twp., 972 A.2d 1164

(N.J. Super. Ct. App. Div. 2009), aff’d, 990 A.2d

Dean v. State, 736 S.E.2d 40 (W. Va. 2012)................. 18

Disc. Inn, Inc. v. City of Chicago, 803 F.3d 317

(7th Cir. 2015), cert. denied, 136 S. Ct. 1209

Se acnctanscnstenstiintscantaiutiditiniiinetateelinnianeimance 14

Ex parte Kelley, 766 So. 2d 837 (Ala. 1999) ............... 15

Galloway v. City of New Albany, 735 So. 2d 407

iI SII sosccicsnlachsbaSahsnieticibatiiacibiaishidebnsaanibteatigiiieivenens 20

Garcia v. Wyoming, 587 F. App’x 464 (10th Cir.

ETT wiiGhiiataceninsestacssitiinidadtsianepeiitamaimneeeesetineeens 14

Hall v. Florida, 134 S. Ct. 1986 (2014)....... 2, 10, 12, 22

Harmelin v. Michigan, 501 U.S. 957 (1991) ... 10, 22, 33

Hopkins v. Okla. Pub. Emps. Ret. Sys., 150 F.3d

ey NN Mee artinrientidiinneensianinitnasiaihideccnmmaatmninesennnes 14

Vii

TABLE OF AUTHORITIES — Continued

Page

Howlett v. Rose, 496 U.S. 356 (1990) .......... 1, 21, 26, 38

Idaho State Police ex rel. Russell vy. Real Prop.,

156 P.3d 5661 (Idaho 2007).......................c.ccccccccceeeees 15

In re 1982 Honda, 681 A.2d 1035 (Del. 1996)............ 15

In re Forfeiture of $25,505, 560 N.W.2d 341

ES EE 20

In re Forfeiture of 5118 Indian Garden Rd., 654

N.W.2d 646 (Mich. Ct. App. 2002) .....00.0....... eee. 20

In re McKinney, 948 N.E.2d 1154 (Ind. 2011)............ 31

In re Prop. of Flores, 711 N.W.2d 733 (lowa Ct.

eet hanicadinseeianvinndainihenidinscieniiteiiddaneeebeecwnes 18

Ingraham v. Wright, 430 U.S. 651 (1977)..................... 2

Kennedy v. Louisiana, 554 U.S. 407

Sei ntendtesisisitaaienitniiteiinddinpitintaingimnecone 10, 12, 22, 36

Knapp v. Schweitzer, 357 U.S. 371 (1958), over-

ruled by Murphy v. Waterfront Comm’n, 378

RE ee 19

Knox Cty. Council v. Sievers, 895 N.E.2d 1263

ee ee CE einiteniitrnnectsnnnnesennnesiarsennmiiens 31, 32

Leonard v. Texas, 137 S. Ct. 847 (2017)............ 3, 29, 30

Levingston v. Washoe Cty., 916 P.2d 163 (Nev.

1996), opinion modified on reh’g on other

grounds, 956 P.2d 84 (Nev. 1998)...........................- 17

McDonald v. City of Chicago, 561 U.S. 742 (2010).... passim

ese

TABLE OF AUTHORITIES — Continued

Page

Minneapolis & St. L.R. Co. v. Bombolis, 241 U.S.

ee i hcdnciresicntccnnicnccedncapcantitsediaasqspiansremmneisimsemncenes 38

One (1) Charter Arms, Bulldog 44 Special v. State

ex rel. Moore, 721 So. 2d 620 (Miss. 1998).............. 19

One (1) 1979 Ford 15V v. State ex rel. Miss.

Bureau of Narcotics, 721 So. 2d 631 (Miss.

Sil iosecesustetsutiniapetedensnetmnnemntnniaaniinaniante 19, 20

One 2011 Chevrolet Silverado 1500 v. Panola Cty.

Narcotics Task Force, 169 So. 3d 967 (Miss. Ct.

ie ei icesatetnitecstiainialaasiiietiadiatishinieiisiaiesinalaniatiniaiamerineneen 20

One Car v. State, 122 S.W.3d 422 (Tex. App

Sa Te a wisisnteinitivinhennntenennrandintiqninsindasienpitindinnibbasidainipititeietes 18

People ex rel. Lockyer v. R.J. Reynolds Tobacco

Co., 124 P.3d 408 (Cal. 2005), as modified (Jan.

Sis ST icicashniensilalvateiinideeiadeibbisinaiadatidagaaiaipimtianindinenscecees 15

People ex rel. Waller v. 1989 Ford F350 Truck,

642 N.E.2d 460 (TIL. 1994) 20. eceeeeeeeeeeees 16

People v. Antolovich, 525 N.W.2d 513 (Mich. Ct.

Es ee eridibrencinipnndnicudininntntdinbeneneieememnnpemnnncerens 20

People v. Castillo, No. 243968, 2004 WL 243417

(Mich. Ct. App. Feb. 10, 2004) ....0..0..... cece 20

Pervear v. Commonwealth, 72 U.S. 475 (1866)........... 19

Plessy v. Ferguson, 163 U.S. 537 (1896)...................... 34

Pub. Emp. Ret. Admin. Comm’n v. Bettencourt,

47 N.E.3d 667 (Mass. 2016) ......0.......0......cccceeeeeeeeeee 16

Qwest Corp. v. Minnesota Pub. Util. Comm’n,

427 F.3d 1061 (8th Cir. 2005).......20... eee cece eee 13

TABLE OF AUTHORITIES — Continued

Page

Reyes v. N. Tex. Tollway Auth., 830 F. Supp. 2d

ee 12,13

Robertson v. United States ex rel. Watson, 560

ee TE cricersencenctitiininigniiiesivetntapmidinatinemtcnermennes 27

Roper v. Simmons, 543 U.S. 551 (2005)...................... 10

Sargent v. State, 27 N.E.3d 729 (Ind. 2015)......... 32, 33

Simic v. City of Chicago, 851 F.3d 734 (7th Cir.

Suse accinttiitiinneentatuscensnncinbeiiabtinicnaneccesientininnectnemesetess 14

State v. 2003 Chevrolet Pickup, 202 P.3d 782

Ss: STI rictiectictiinnennicisaindinedencnsnisiainidnndiianmaistibannnateanpions 19

State v. A House, 886 P.2d 534 (Utah 1994)............... 17

State v. Bergquist, 641 N.W.2d 179 (Wis. Ct. App.

UIT iiceibiita ihc bdhcilsnitidetitahrowitipntibiaiiniatlenieinitpniananicnenernte 18

State v. Hill, 635 N.E.2d 1248 (Ohio 1994)................ 17

State v. Leyva, 985 P.2d 498 (Ariz. Ct. App. 1998) ...... 18

State v. Real Prop., 994 P.2d 1254 (Utah 2000).....17, 18

State v. Rewitzer, 617 N.W.2d 407 (Minn. 2000)........ 16

Tellevik v. Real Prop., 921 P.2d 1088 (Wash. Ct.

ns Tt icncintiisintetensernainediiciinenndenetgindliimanceseenseetnens 18

Thompson v. Oklahoma, 487 U.S. 815 (1988).....2, 10, 22

Thorp v. State, 450 S.E.2d 416, 417 (Ga. 1994),

abrogated on other grounds by Howell v. State,

656 S.E.2d 511 (Ga. 2008)........................2ceeeeeeeeeeeee 15

Trop v. Dulles, 356 U.S. 86 (1958)...............ccccceeceeeeeeee 23

United States v. Bajakajian, 524 U.S. 321 (1998)......... 8

TABLE OF AUTHORITIES — Continued

Page

Vanderbilt Mortg. & Fin. v. Cole, 740 S.E.2d 562

Fey. Weihh Sei ensscvetccssncsccnsnisnidnsceonencapeanienbamedinasseness 18

Vanderbilt Mortg. & Fin. v. Flores, 692 F.3d 358

TS Saene Bape irtasnctnccnscccaccnsmsnsincnesnatenemisaniasniennans 14

Washington v. Glucksberg, 521 U.S. 702 (1997)......... 22

Wilson v. Comm’r of Revenue, 656 N.W.2d 547

I, GID tccecistinsisectasensiicsitapeitiaietininttanipcitaiaiisesiaasstinaas 16

Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000)....... 13

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)....... 34

CONSTITUTIONAL PROVISIONS

ees CII, GIT, Wt is Ditccescescescocesssicorecensescesencsenieabiniaia 26

See Ge, III, Wit eccccsccssccccsssccesconnsesesoutican passim

U.S. Const. amend. XTV, § 1 .....................02...020 4,12, 23

Te, GE, GR, BO Ci tcrccnnsescnscsnncosnvectesncngniusieniaiaaiia 9

CopEs, STATUTES AND RULES

a ee ic icnccintinccvitinncnsisstescesnatinieemitaniiniieia 4

i ee irentiestntccseccsscatscastninsiactenceniinnbliin 30

Ind. Code § 36-43-4-2(a) ...........csesccccccccosesosesessssscssccesees 6

Ind. Code § 35-48-4-2(a)(1(C) ...........cccceceeseeeeeeneeeeeenes 6

Ind. Code §§ 35-50-2-4 to -7.............csccceessseeessseseeeeeeenens 8

xi

TABLE OF AUTHORITIES ~ Continued

OTHER AUTHORITIES

Beth A. Colgan, The Excessive Fines Clause:

Challenging the Modern Debtors’ Prison, 65

Beth A. Colgan, “Fines, Fees, and Forfeitures” in

Reforming Criminal Justice — Volume 4: Pun-

ishment, Incarceration, and Release (Erik

Ee

David P. Smith, Prosecution and Defense of For-

feiture Cases (LexisNexis 2017)................6.6..006

Findings and Report on Civil Drug Forfeitures

in Division 2, Including a Limited Number of

Cases in the Other Four Divisions of the Del-

aware Circuit Court (Ind. Cir Ct., Delaware

George F. Will, A Missouri town demands sub-

stantive due process, The Wash. Post (Dec. 11,

EE

Heather Gillers et al., Cashing in on crime: In-

diana law allows prosecutors to farm out for-

feiture cases to private lawyers — who get a cut

of the money, The Indianapolis Star, Nov. 14,

EES EE eee

Institute for Justice, Dick M. Carpenter II et al.,

Policing for Profit: The Abuse of Civil Asset

Forfeiture (2d ed. Nov. 2015) ................ccccccccceceeeeeees

TABLE OF AUTHORITIES ~— Continued

Jennifer S. Mann, Lawsuit filed against

Pagedale for ticketing high grass and other

cae) eietatione, St. Lauie Tut Sagates Cten

GS ianaictictnsncmsscensnannnenatiatnneicinasinaiibeneednmintaspenens

Joseph T. Hallinan, Police can take crime cash

but can’t dish it out, The Indianapolis Star,

Laurence Claus, The Antidiscrimination Eighth

Amendment, 28 Harv. J.L. & Pub. Pol'y 119

ee brescsnessercsnnecmsmensseeenmeemntenennnenes

Office of the Att'y Gen., Order No. 3946-2017

(Federal Forfeiture of Property Seized by

State and Local Law Enforcement Agencies)

ee

Office of the Inspector Gen., U.S. Dep't of Jus-

tice, Audit of Henry County Sheriff's Office's

Equitable Sharing Program Activities, New

Castle, Indiana (Feb. 2017) ...............ccceeeeeeseeeeeveeees

Paris Lewbel, Take a look inside Indy’s FedEx

hub, the second-largest in the U.S., Indy Chan-

GS GERD, TER, GEG cccencnvccosececcceececessesnsvcncssnnseeveccseeces

Pls.’ Mot. Summ. J., State v. Jaynes, No. 49D01-

1111-M1-043642, 2012 WL 12974140 (Ind. Su-

per. Ct., Marion Cty. filed May 23, 2012)................

sss

TABLE OF AUTHORITIES — Continued

Steven G. Calabresi & Sarah E. Agudo, Individ-

ual Rights Under State Constitutions When

the Fourteenth Amendment Was Ratified in

1868: What Rights Are Deeply Rooted in Amer-

ican History and Tradition? 87 Tex. L. Rev. 7

U.S. Dep’t of Justice, Jnvestigation of the Fergu-

son Police Department (Mar. 4, 2015) .....................

1 Wm. & Mary, 2d Seas., ch. 2, 3 Stat. at Large

EE

1

INTRODUCTION

This case presents an unsettled question of na-

tional importance: whether the Excessive Fines Clause

of the Eighth Amendment is incorporated against the

States. Although the majority of state and federal

courts to consider this question have applied the

Clause to the States, a growing minority of state courts

have chosen not to. The Indiana Supreme Court in this

case aligned itself with that minority view, relying on

a sentence of “dicta” from McDonald v. City of Chicago,

561 U.S. 742 (2010), while acknowledging an open

break with other jurisdictions. See App. 8-9. Unless

and until this Court “authoritatively” holds that the

Excessive Fines Clause is incorporated against the

States, the Indiana Supreme Court announced that it

would “decline to find or assume incorporation”—or

even engage with the incorporation analysis. App. 8.

The Indiana Supreme Court’s decision deepens a

growing divide on the question presented. 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. And

despite their “coordinate responsibility” to give effect

to federally protected rights, Howlett v. Rose, 496 U.S.

356, 367 (1990), each of these jurisdictions has written

off the Excessive Fines Clause without evaluating this

Court’s incorporation precedent. As a result, Petitioner

Tyson Timbs—along with the 6.6 million residents of

Indiana and more than 13 million residents of the

three other minority jurisdictions—enjoys Eighth

2

Amendment protection against fines and forfeitures

imposed by the federal government but not against

those imposed by state and local authorities. See gen-

erally Austin v. United States, 509 U.S. 602, 621-22

(1993) (holding that the Excessive Fines Clause ap-

plies to civil forfeitures imposed by the federal govern-

ment).

Beyond exacerbating a split of authority, the Indi-

ana Supreme Court's decision also breaks with this

Court’s precedent. The Eighth Amendment embodies

three “parallel limitations” on the government's power

to punish: the Cruel and Unusual Punishments

Clause, the Excessive Bail Clause, and the Excessive

Fines Clause. Browning-Ferris Indus. of Vt. v. Kelco

Disposal, Inc. , 492 U.S. 257, 263 (1989) (quoting Ingra-

ham v. Wright, 430 U.S. 651, 664 (1977)). Together,

these Clauses operate to secure a single, fundamental!

right to be free from excessive punishments. For that

reason, this Court has repeatedly observed that the

three Clauses are incorporated in equal measure

against the States. See, e.g., Hall v. Florida, 134 S. Ct.

1986, 1992 (2014); Cooper Indus. v. Leatherman Tool

Grp., 532 U.S. 424, 433-34 (2001); Thompson v. Okla-

homa, 487 U.S. 815, 819 n.1 (1988) (plurality opinion).

And by any measure, the Excessive Fines Clause is

deeply rooted in our nation’s legal tradition, making it

an obvious candidate for incorporation.

Moreover, the question presented is especially

pressing today. As disagreement among courts has

deepened, fines and forfeitures have exploded at the

state and local levels. Civil forfeiture in particular—

3

the basis for this case—-is now “widespread and highly

profitable,” causing “egregious and well-chronicled

abuses.” Leonard v. Texas, 137 S. Ct. 847, 848 (2017)

(Thomas, J., statement respecting denial of certiorari).

State and local governments “have strong incentives

to pursue forfeiture” in part because “many States

permit 100 percent of forfeiture proceeds to flow di-

rectly to law enforcement.” Jd. Additionally, prosecu-

tors enjoy procedural advantages in civil-forfeiture

cases—for example, no criminal conviction is needed,

the standard of proof is lower than in criminal cases,

and property owners have no right to appointed coun-

sel. And in Indiana, prosecutors sometimes have a per-

sonal financial stake in civil forfeiture because in

many cases—including this one—the government

farms out forfeiture prosecutions to private lawyers on

a contingency-fee basis. The impulse to use economic

sanctions “for raising revenue in unfair ways” could

hardly be stronger. See Browning-Ferris Indus., 492

U.S. at 272.

This Court has recognized that the Excessive

Fines Clause is an essential check on the government's

tendency to “use| | the civil courts to extract large pay-

ments or forfeitures for the purpose of raising reve-

nue.” Jd. at 275. But that protection carries little

weight if state courts can “decline” to apply it, as the

Indiana Supreme Court did here. See App. 9. Only this

Court can resolve the inherently national question

whether the Excessive Fines Clause is incorporated

4

against all 50 States. Because this case is an ideal

vehicle for doing so, the Court should grant certiorari.

°

OPINIONS BELOW

The opinion of the Indiana Supreme Court is re-

ported at 84 N.E.3d 1179. See App. 1-12. The opinion of

the Indiana Court of Appeals is reported at 62 N.E.3d

472. See App. 13-26. The opinions of the Grant County

Superior Court are unpublished, but included in the

Appendix at App. 27-34.

>

JURISDICTION

The Indiana Supreme Court entered judgment on

November 2, 2017. See App. 1. Petitioners request a

writ of certiorari pursuant to 28 U.S.C. § 1257(a).

°

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the U.S. Constitution

provides: “Excessive bail shall not be required, nor ex-

cessive fines imposed, nor cruel and unusual punish-

ments inflicted.”

Section 1 of the Fourteenth Amendment to the U.S.

Constitutiou provides, in relevant part: “No State shall

make or enforce any law which shall abridge the priv-

ileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty,

5

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”

=

as

STATEMENT

1. After his father died, in the winter of 2012, Pe-

titioner Tyson Timbs (“Petitioner”) received around

$73,000 in life-insurance proceeds. He used $41,558.30

to buy a car—the Land Rover LR2 at issue in this case.

At the time, Petitioner had recently moved to Mar-

ion, Indiana, to live with an aunt while he worked on

rebuilding his life. Back home in St. Mary’s, Ohio, he

had become addicted to hydrocodone—an opioid medi-

cation prescribed to him for a work-related injury.

When he could no longer find pills on the street, he be-

gan using heroin.

For a short time in Marion, Petitioner overcame

his addiction. But following his father’s death, he be-

gan using heroin again. With a new Land Rover and

more than $31,000 left to spend, Petitioner began driv-

ing the vehicle to Richmond, Indiana, and Ohio—some-

times on a daily basis—to buy heroin for his personal

use.

His money soon ran out, and Petitioner began

looking for new ways to fund his addiction. With the

help of a confidential informant, he arranged several

drug transactions with undercover officers. On the

first such occasion, Petitioner drove across Marion in

6

the Land Rover and sold officers two grams of heroin

for $225. Hrg. Tr. 26:25-27:02 (July 15, 2015). A few

days later, he walked from his aunt’s house to a nearby

gas station, where he sold officers another two grams

for $160. Hrg. Tr. 29:16-29:20. While driving to a third

transaction, Petitioner was pulled over and arrested.

No drugs were found in the vehicle (apart from a pre-

scription pill in the pocket of Petitioner’s traveling

companion). The Land Rover was seized.

The State of Indiana charged Petitioner with two

counts of dealing in a Schedule I controlled substance

(a class B felony, see Ind. Code § 35-48-4-2(a)(1)(C)) and

one count of felony conspiracy to commit theft (a class

D felony, see id. § 35-43-4-2(a)).'

Petitioner pleaded guilty to one count of dealing

and to the count of conspiracy to commit theft. The

trial court sentenced him to six years, with the first

year to be served in home detention and the remaining

five years on probation. Petitioner agreed to attend an

addiction-treatment program under court supervision.

He also agreed to pay police costs of $385, an interdic-

tion fee of $200, court costs of $168, a bond fee of $50,

‘ In a post-arrest interview, detectives asked why Petitioner

and his companion had no heroin in the Land Rover at the time

of their arrest, given they were traveling to a meeting at which

undercover officers expected to buy heroin. Petitioner told them,

“we thought about maybe just pulling up and, if he would’ve gave

me the money, just driving away . . . 'm not really sure what we

were going to do.” State’s Trial Ex. 1 at 19:23-20-:00, 21:03-21:25.

These statements appear to have been the basis for Petitioner’s

theft charge.

7

and a $400 fee for undergoing a drug-and-alcohol as-

sessment with the probation department.

2. Several months after Petitioner’s arrest, a pri-

vate ‘aw firm filed a case to forfeit his vehicle on behalf

of the State. The complaint “referred only to May 31,

“213”—the date on which Petitioner was arrested

while driving to the unconsummated third transaction

with officers. See App. 21.

Following Petitioner’s conviction, the trial court

held an evidentiary hearing on the State’s forfeiture

request. The court found that Petitioner purchased

the Land Rover legally using life-insurance proceeds

but used the vehicle to “transport ... heroin back to

Marion.” App. 28 {{ 2-3. Based on the record, the court

determined that forfeiture would be “grossly dispropor-

tional to the gravity of [Petitioner’s] offense” and thus

unconstitutional under the Eighth Amendment’s Ex-

cessive Fines Clause, App. 29-30 44 6-9. “While the

negative impact on our society of trafficking in illegal

drugs is substantial,” the court acknowledged, “a for-

feiture of approximately four (4) times the maximum

monetary fine is disproportional to [Petitioner’s] illegal

conduct.” App. 30 { 9.

3. A divided panel of the Indiana Court of Ap-

peals affirmed. App. 13-26. The court concluded that

“(t]he United States Supreme Court has yet to hold

that the Excessive Fines Clause is applicable to the

States.” App. 17-18 n.4 (citing Browning-Ferris Indus.

of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 276 (1989)).

Based on its own precedent, however, the court held

8

that the Clause applies in state forfeiture proceedings.

App. 17-18 n.4 (citing $100 v. State, 822 N.E.2d 1001,

1011 (Ind. Ct. App. 2005)).

After conducting the proportionality assessment

required under this Court’s excessive-fines precedent,

the court of appeals affirmed that forfeiture of Peti-

tioner’s vehicle would be unconstitutionally excessive.

App. 20 (citing United States v. Bajakajian, 524 U.S.

321, 334 (1998)). The court compared the value of the

Land Rover (about $40,000) to the maximum criminal

penalty that could be imposed for Petitioner’s offense

($10,000). App. 20-21.” The court considered the “finan-

cial burdens [that] had already been imposed on [Peti-

tioner] when he pleaded guilty.” App. 21. It further

concluded that the State’s request for forfeiture was

based on a single, unconsummated sale of heroin on

May 31, 2013. App. 21. “If the State wished to seek for-

feiture of the Land Rover based on [Petitioner’s] other

criminal acts,” the court reasoned, “it should have done

so more clearly in its forfeiture complaint.” App. 21-22.

Regardless, the court observed, “the only evidence be-

fore the trial court was that [Petitioner] sold heroin

twice, both times as a result of controlled buys.” See

App. 22 (noting that “[t]he remaining times he trans-

ported heroin, it was apparently for his own use”).

Based on this record, the court affirmed that

? Indiana sets a uniform $10,000 maximum fine for every

class of felony. See Ind. Code §§ 35-50-2-4 to -7.

9

“(florfeiture of the Land Rover . . . was grossly dispro-

portionate to the gravity of [Petitioner’s] offense.” App.

24.8

4. The Indiana Supreme Court granted review

and unanimously reversed. App. 1-12. Surveying deci-

sions that have addressed the incorporation of the Ex-

cessive Fines Clause, App. 5-7, the court concluded that

this Court “has never held that the States are subject

to the Excessive Fines Clause,” App. 5. Given the “lack

of clear direction from the Supreme Court,” the court

“decline[d] to find or assume incorporation.” App. 8. Be-

cause this Court has not “decide[d] the issue authori-

tatively,” the Indiana Supreme Court believed that no

incorporation analysis was warranted. App. 8. Citing

Indiana’s status as “a sovereign state within our fed-

eral system,” the court held that it would not “impose

federal obligations on the State that the federal gov-

ernment itself has not mandated.” App. 9.

The Indiana Supreme Court acknowledged that

its holding broke from the weight of authority. See App.

8. The court further acknowledged that “our colleagues

on the Court of Appeals and the trial court may be cor-

rect in foretelling where the Supreme Court will one

’ The dissenting court-of-appeals judge agreed that “the Ex-

cessive Fines Clause of the Eighth Amendment may come into

play in a forfeiture case,” App. 25, but disagreed that forfeiture of

Petitioner’s Land Rover would be excessive, App. 26. Like the trial

court, the court-of-appeals majority addressed the Excessive

Fines Clause alone, noting that Petitioner did not raise the sepa-

rate protection against excessive fines under the Indiana Consti-

tution. See App. 18 n.4 (citing Ind. Const. art. I, § 16).

10

day lead on whether to apply the Clause to the States.”

App. 9-10. Nonetheless, the court declined to apply the

Excessive Fines Clause absent further instruction

from this Court.

ee

4

REASONS FOR GRANTING THE PETITION

Four Terms ago, this Court remarked—correctly—

that all three Clauses of the Eighth Amendment apply

to the States: “The Eighth Amendment provides that

‘lelxcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual! punishments in-

flicted,’” and “(t]he Fourteenth Amendment applies

those restrictions to the States.” Hall v. Florida, 134

S. Ct. 1986, 1992 (2014). The Court has reaffirmed the

same principles on a half-dozen other occasions: in

2008, Kennedy v. Louisiana, 554 U.S. 407, 419; Baze v.

Rees, 553 U.S. 35, 47 (plurality opinion); in 2005, Roper

v. Simmons, 543 U.S. 551, 560; in 1991, Harmelin v.

Michigan, 501 U.S. 957, 962 (opinion of Scalia, J.); in

1988, Thompson v. Oklahoma, 487 U.S. 815, 819 n.1

(plurality opinion); and in 1987, Booth v. Maryland,

482 U.S. 496, 501 n.5, overruled on other grounds,

Payne v. Tennessee, 501 U.S. 808 (1991). Put simply,

“the Fourteenth Amendment ... makes the Eighth

Amendment’s prohibition against excessive fines and

cruel and unusual punishments applicable to the

States.” Cooper Indus. v. Leatherman Tool Grp., 532

US. 424, 433-34 (2001).

11

The Indiana Supreme Court nonetheless con-

cluded that this Court has been insufficiently “defini-

tive” on the incorporation of the Excessive Fines

Clause. App. 9. For that reason, it “decline|[d] to find or

assume incorporation until the Supreme Court decides

the issue authoritatively.” App. 8. The court reached

this conclusion based on what it labeled “dicta” in

McDonald v. City of Chicago—in which this Court ad-

dressed incorporation of the Second Amendment, not

the Eighth. See App. 8-9. Indiana thus aligned itself

with a growing minority of jurisdictions that decline to

apply the Excessive Fines Clause when state and local

authorities impose economic sanctions.

Given the surge in punitive fines and forfeitures

at the state and local levels, the issue of the Clause’s

incorporation is more pressing now than ever. Only

this Court can answer the inherently national question

of incorporation, and this case presents the ideal vehi-

cle for resolving that question.

I. The Indiana Supreme Court’s decision

deepens an existing conflict over whether

the Excessive Fines Clause applies to the

States.

The Indiana Supreme Court’s decision turned on

what it called a “lack of clear direction” from this

Court. App. 8. While acknowledging that other courts

“have either applied the Excessive Fines Clause to

challenged state action or assumed without deciding

that the Clause applies,” the court elected to “await

12

guidance” from this Court. App. 8. This decision deep-

ens an existing split over whether state courts are re-

quired to enforce the federal protection against

excessive fines under the Eighth and Fourteenth

Amendments.

In large part, this growing divide stems from what

state courts—and lower federal courts—have per-

ceived as mixed signals from this Court. In 1989, for

example, this Court suggested that it had yet to “decide

whether the Eighth Amendment’s prohibition on ex-

cessive fines applies to the several States through the

Fourteenth Amendment.” Browning-Ferris Indus. of

Vit. v. Kelco Disposal, Inc., 492 U.S. 257, 276 n.22.

Twelve years later, however, the Court remarked that

“the Due Process Clause of the Fourteenth Amend-

ment ... makes the Eighth Amendment's prohibition

ments applicable to the States.” Cooper Indus. , 532 U.S.

at 433-34. But in 2010, the Court noted that “[wle

never have decided whether ... the Eighth Amend-

ment’s prohibition of excessive fines applies to the

States through the Due Process Clause.” McDonald v.

City of Chicago, 561 U.S. 742, 765 n.13. At other times,

the Court has observed that all three Clauses of the

Eighth Amendment apply to the States equally. See,

eg., Hall, 134 S. Ct. at 1992; Kennedy, 554 U.S. at 419;

Baze, 553 U.S. at 47 (plurality opinion).

These conflicting statements have left state and

federal ccurts split, leading to “a surprising amount of

confusion as to whether the Excessive Fines Clause

has been incorporated against the states.” Reyes v. N.

13

Tex. Tollway Auth., 830 F. Supp. 2d 194, 206 (N.D. Tex.

2011). The majority of courts that have addressed the

issue have applied the Clause to the States (Section A,

infra). A lopsided minority—now including Indiana—

have declined to do so (Section B, infra).

A. Two Circuits and at least 14 state high

courts apply the Excessive Fines Clause

to the States.

The Eighth and Ninth Circuits have applied the

Excessive Fines Clause to the States. So, too, have the

high courts of Alabama, California, Delaware, Georgia,

Idaho, Illinois, Kentucky, Massachusetts, Minnesota,

Nevada, Ohio, Pennsylvania, Utah, and West Virginia.

These courts view the matter as beyond serious

dispute. In Qwest Corp. v. Minnesota Public Utilities

Commission, 427 F.3d 1061 (8th Cir. 2005), for exam-

ple, the Eighth Circuit reviewed a local exchange car-

rier’s challenge to a state agency's $25.95-million

penalty. Drawing on Cooper Industries, the court held

that “[t}he Eighth Amendment’s prohibition of exces-

sive fines applies to the states through the Due Process

Clause of the Fourteenth Amendment.” /d. at 1069 (cit-

ing Cooper Indus, 532 U.S. at 433-34). Likewise in

Wright v. Riveland, 219 F.3d 905 (9th Cir. 2000), the

Ninth Circuit held that a Washington statute author-

izing deduction of inmate funds “is punitive and sub-

ject to Eighth Amendment scrutiny” under the

Excessive Fines Clause. Jd. at 915. And two other

14

Circuits—the Fifth and the Seventh——have frequently

remarked on the “open question” of incorporation be-

fore forging ahead on the assumption that the Exces-

sive Fines Clause applies to the States. Simic v. City of

Chicago, 851 F.3d 734, 739 (7th Cir. 2017); see also

Cripps v. La. Dep't of Agric. & Forestry, 819 F.3d 221,

234 (5th Cir.), cert. denied, 137 S. Ct. 305 (2016); Disc.

Inn, Inc. v. City of Chicago, 803 F.3d 317, 319-20 (7th

Cir. 2015), cert. denied, 136 S. Ct. 1209 (2016); Vander-

bilt Mortg. & Fin. v. Flores, 692 F.3d 358, 374 & n.14

(5th Cir. 2012); Broussard v. Par. of Orleans, 318 F.3d

644, 652 (5th Cir. 2003).*

At the state-court level—-where judicial review of

state and local fines normally occurs—at least 14 state

courts of last resort have applied the Excessive Fines

Clause to the States:

Alabama. The Alabama Supreme Court holds

that “[t|he forfeiture provisions of our Code are subject

to the Excessive Fines Clauses of the Alabama Consti-

tution, Art. I, § 15, and the Eighth Amendment to the

* The Tenth Circuit appears to have taken both sides of the

issue. In 1998, the court analyzed the forfeiture of a state pension

under the Excessive Fines Clause, rejecting the constitutional

claim without commenting on incorporation. See Hopkins v. Okla.

Pub. Emps. Ret. Sys., 150 F.3d 1155, 1162-63. But, in a recent un-

published decision, the court affirmed the diamissal of a pro se

appeal in part because “the Excessive Fines Clause has never

been incorporated by the Fourteenth Amendment and applied to

the states.” Garcia v. Wyoming, 587 F. App’x 464, 469 (10th Cir.

2014).

15

United States Constitution.” Ex parte Kelley, 766 So.

2d 837, 840 (Ala. 1999).

wise recognizes that “|t}he Due Process Clause of the

Fourteenth Amendment to the Federal Constitution

... Makes the Eighth Amendment's prohibition

against excessive fines and cruel and unusual punish-

ments applicable to the States.” People ex rel. Lockyer

v. R.d. Reynolds Tobacco Co., 124 P.3d 408, 420 (Cal.

2005), as modified (Jan. 18, 2006) (quoting Cooper In-

dus. , 532 U.S. at 433-34).

Delaware Supreme Court has held that “it is clear that

civil forfeitures imposed pursuant to Delaware law are

subject to the constraints of the Excessive Fines

Clause of the Eighth Amendment.” Jn re 1982 Honda,

681 A.2d 1035, 1039 (Del. 1996).

Georgia. Answering certified questions, the Geor-

gia Supreme Court has held that “[t/he prohibition

against excessive fines of the Eighth Amendment does

apply to civil in rem forfeitures under [the State’s civil-

forfeiture law].” Thorp v. State, 450 S.E.2d 416, 417

(Ga. 1994), abrogated on other grounds by Howell v.

State, 656 S.E.2d 511 (Ga. 2008).

Idaho. The Idaho Supreme Court “has decided

that the Eighth Amendment’s prohibition on ‘excessive

fines’ applies to civil in rem forfeitures brought under

[the State’s civil-forfeiture law].” Idaho State Police ex

rel. Russell v. Real Prop., 156 P.3d 561, 564 (Idaho

2007).

16

Illinois. Th Illinois Supreme Court holds that

the Excessive Fines Clause applies to state-law forfei-

tures. People ex rel. Waller v. 1989 Ford F350 Truck, 642

N.E.2d 460, 466 (Ill. 1994); see also id. (“[Wle remand

with instructions for the circuit court to expressly con-

sider and determine the excessive fine issue.”).

Kentucky. The Kentucky Supreme Court has

recognized that “a punitive forfeiture is subject to scru-

tiny to determine if it violates the ‘excessive fines’

clauses of the Eighth Amendment to the United States

Constitution and section 17 of our Constitution, which

contain identical language.” Commonwealth v. Fint,

940 S.W.2d 896, 897-98 (Ky. 1997) (internal citation

omitted).

Massachusetts. The Supreme Judicial Court of

Massachusetts holds that “[t/he due process clause of

the Fourteenth Amendment to the United States Con-

stitution ‘makes the Eighth Amendment’s prohibition

against excessive fines and cruel and unusual punish-

ments applicable to the States.’” Pub. Emp. Ret. Ad-

min. Comm'n v. Bettencourt, 47 N.E.3d 667, 672 0.7

(Mass. 2016) (quoting Cooper Indus., 532 U.S. at 433-

34).

Minnesota. The Minnesota Supreme Court has

invalidated fines under “the Excessive Fines Clauses

of the United States and Minnesota Constitutions”

alike. State v. Rewitzer, 617 N.W.2d 407, 415 (Minn.

2000); see also Wilson v. Comm’r of Revenue, 656

N.W.2d 547, 557 (Minn. 2003).

17

Nevada. The Nevada Supreme Court holds that

the Excessive Fines Clause places limits on state-law

forfeitures. Levingston v. Washoe Cty., 916 P.2d 163,

169 (Nev. 1996) (“While we conclude that excessive

fines analysis applies to civil forfeiture actions, insuf-

ficient evidence was presented to the district court to

determine whether (the government's] forfeiture of the

10th Street home violated the Excessive Fines

Clause.”), opinion modified on reh’g on other grounds,

956 P.2d 84 (Nev. 1998).

Ohio. The Ohio Supreme Court “holdis| that

forfeiture of property, pursuant to [the State’s civil-

forfeiture law], is a form of punishment for a specified

offense and, therefore, is a ‘fine’ for purposes of Section

9, Article I of the Ohio Constitution and the Eighth

Amendment to the United States Constitution.” State

v. Hill, 635 N.E.2d 1248, 1256 (Ohio 1994).

Pennsylvania. The Pennsylvania Supreme Court

holds that “[t}he Eighth Amendment, and, specifically,

the Excessive Fines Clause, is made applicable to the

states through the Fourteenth Amendment to the

United States Constitution.” Commonwealth v. 1997

Chevrolet, 160 A.3d 153, 162 n.7 (Pa. 2017) (citing

Cooper Indus. , 532 U.S. at 433-34).

Utah. The Utah Supreme Court has recognized

that “a forfeiture pursuant to [the State’s civil-

forfeiture law] is . . . subject to the limitations of the

Eighth Amendment’s Excessive Fines Clause.” State v.

A House, 886 P.2d 534, 541 (Utah 1994); see also State

v. Real Prop., 994 P.2d 1254, 1256 (Utah 2000)

18

(invalidating forfeiture as excessive fine “on the basis

of the United States Constitution alone”).

West Virginia. The Supreme Court of Appeals of

West Virginia holds that “(t]he Excessive Fines Clause

of the U.S. Constitution is applicable to the states

through the Fourteenth Amendment.” Vanderbilt

Mortg. & Fin. v. Cole, 740 S.E.2d 562, 570 n.10 (W. Va.

2013) (citing Cooper Indus., 532 U.S. at 433-34); see

also Dean v. State, 736 S.E.2d 40, 42 syl. 6 (W. Va.

2012).°

No.

2017 WL 710497, at *1 (Colo. App. Feb. 23, 2017), cert. granted in

part sub nom. Colo. Dep't of Labor & Emp. v. Dami Hosp., LLC,

No. 178C200, 2017 WL 3977989 (Colo. Sept. 11, 2017) (agreeing

(NJ. 2010); In re Prop. of Flores, 711 N.W.2d 733 (table), at *4

(lowa Ct. App. 2006); One Car v. State, 122 S.W.3d 422, 423 n.2,

428 (Tex. App. 2003); State v. Bergquist, 641 N.W.2d 179, 180 (Wis.

Ct. App. 2002); State v. Leyva, 985 P.2d 498, 504 (Ariz. Ct. App.

1998); Tellevik v. Real Prop., 921 P.2d 1088, 1093-94 (Wash. Ct.

App. 1996); Attorney-Gen. v. One Green 1993 Four Door Chrysler,

217 A.D.2d 342, 345 (N.Y. App. Div. 1996).

19

B. Indiana joins Montana, Mississippi, and

the Michigan Court of Appeals in hold-

ing that the Excessive Fines Clause does

not apply to the States.

The Indiana Supreme Court acknowledged part-

ing ways with the weight of authority on the question

presented. In so doing, the court aligned itself with a

growing minority of jurisdictions that have written off

the nationwide force of the Excessive Fines Clause.

In a civil-forfeiture case, like this one, the Mon-

tana Supreme Court refused to treat the Excessive

Fines Clause as incorporated against the States. State

v. 2003 Chevrolet Pickup, 202 P.3d 782, 783 (Mont.

2009). Reasoning that this Court has not clearly incor-

porated the Clause, the Montana Supreme Court de-

clined to “hold that the Eighth Amendment to the

federal constitution is applicable to Montana, when the

federal courts have not done so.” Id.

The Mississippi Supreme Court has taken a simi-

lar approach. Relying on a decision that predates the

Fourteenth Amendment, that court has twice re-

marked that “|t}he United States Supreme Court has

never held that the Excessive Fines Clause of the

Eighth Amendment is applicable to the states.” One (1)

Charter Arms, Bulldog 44 Special v. State ex rel. Moore,

721 So. 2d 620, 623 (Miss. 1998) (citing Pervear v. Com-

monwealth, 72 U.S. 475 (1866) and Knapp v. Schweit-

zer, 357 U.S. 371 (1958), overruled by Murphy v.

Waterfront Comm’n, 378 U.S. 52 (1964)); One (1) 1979

Ford 15V v. State ex rel. Miss. Bureau of Narcotics, 721

20

So. 2d 631, 634 (Miss. 1998). For this reason, Missis-

sippi courts evaluate excessive-fines defenses using a

unique state constitutional test. See Galloway v. City

of New Albany, 735 So. 2d 407, 412 (Misa. 1999) (dis-

cussing four-part test); One 2011 Chevrolet Silverado

1500 vy. Panola Cty. Narcotics Task Force, 169 So. 3d

967, 970 (Miss. Ct. App. 2014) (same).

Michigan’s lower courts have likewise rejected in-

corporation. Although the Michigan Supreme Court

has not considered the issue, the intermediate court of

appeals has three times declined to address properly

raised arguments on the ground that “the United

States Supreme Court has never determined that the

Excessive Fines Clause is applicable to the states

through the Fourteenth Amendment.” Jn re Forfeiture

of $25,505, 560 N.W.2d 341, 347 (Mich. Ct. App. 1996);

see also In re Forfeiture of 5118 Indian Garden Rd. , 654

N.W.2d 646, 648 (Mich. Ct. App. 2002) (similar); People

v. Antolovich, 525 N.W.2d 513, 515 (Mich. Ct. App.

1994) (“We decline to determine whether the $25,000

fine imposed violates the Eighth Amendment of the

United States Constitution.”). But see People v. Cas-

tillo, No. 243968, 2004 WL 243417, at *1 (Mich. Ct.

App. Feb. 10, 2004) (non-precedential) (“[Wle note that

the Supreme Court recently held that the Due Process

Clause of the Fourteenth Amendment ‘makes the

Eighth Amendment’s prohibition against excessive

fines ... applicable to the States.’”). Like the high

courts of Indiana, Montana, and Mississippi, the

Michigan Court of Appeals conducted no meaningful

analysis of whether the Fourteenth Amendment

21

incorporates the Clause against the States. Rather, the

court refused to apply the Clause based on the absence

of a sufficiently definitive ruling from this Court.

In sum, the state courts taking the minority posi-

tion have placed the onus on this Court to more clearly

hold that the Excessive Fines Clause is incorporated.

All of these courts—like the Indiana Supreme Court in

this case—have decided that they will not enforce

excessive-fines defenses under the Eighth Amendment

until this Court decides the question presented.

Ii. The Lodiana Supreme Court’s decision con-

flicts with this Court’s precedent.

Review is also warranted because the Indiana Su-

preme Court’s decision conflicts with this Court's in-

corporation precedent. By any measure, the Eighth

Amendment’s protection against excessive fines is

deeply rooted in our nation’s legal tradition, making it

a clear candidate for incorporation. By declining to ap-

ply the Clause, the Indiana Supreme Court thus broke

with this Court’s precedent at a fundamental level.

The court compounded that error by failing to under-

take the incorporation analysis. By “awaitling|] guid-

ance” from this Court, App. 8, the Indiana Supreme

Court neglected its “coordinate responsibility” to deter-

mine whether the Clause protects people like Peti-

tioner from excessive fines imposed by state and local

authorities, see Howlett v. Rose, 496 U.S. 356, 367

(1990).

22

1. The Excessive Fines Clause applies to the

States under a straightforward application of this

Court’s precedent. Along with the other Civil War

Amendments, the Fourteenth Amendment “fundamen-

tally altered our country’s federal system.” McDonald,

561 U.S. at 754. And under the selective-incorporation

doctrine, “almost all of the provisions of the Bill of

Rights” apply not just to the federal government, but

to the States and municipalities as well. Id. at 764; see

also id. (“The Court ... shed any reluctance to hold

that rights guaranteed by the Bill of Rights met the

requirements for protection under the Due Process

Clause.”). In determining whether one of the Bill of

Rights’ provisions applies to the States, the Court asks

whether the right in question “is fundamental to our

scheme of ordered liberty,” id. at 767 (emphasis omit-

ted), and, relatedly, whether it “is ‘deeply rooted in this

Nation’s history and tradition,” id. (quoting Washing-

ton v. Glucksberg, 521 U.S. 702, 721 (1997)). Unsurpris-

ingly, virtually all of the rights the Framers enshrined

in the first eight amendments satisfy this test.

The Eighth Amendment’s protection against ex-

cessive fines is no different. On at least seven occa-

sions, this Court has said that the Clause applies to the

States by way of the Fourteenth Amendment.* Like the

protections against “cruel and unusual punishments”

and “excessive bail”—-which the Court long ago applied

* Hall, 134 S. Ct. at 1992; Kennedy, 554 U.S. at 419; Baze, 553

US. at 47 (plurality opinion); Cooper Indus., 532 U.S. at 433-34;

Harmelin, 501 U.S. at 962 (opinion of Scalia, J.); Thompson, 487

US. at 819 n.1 (plurality opinion); Booth, 482 U.S. at 501 n.5.

23

to the States—the Excessive Fines Clause “prevent(|s]

the government from abusing its power to punish.”

Austin v. United States, 509 U.S. 602, 607 (1993) (em-

phasis omitted). Together, the three Clauses “place! |

limits on the steps a government may take against an

individual, whether it be keeping him in prison, impos-

ing excessive monetary sanctions, or using cruel and

unusual punishments.” Browning-Ferris Indus., 492

US. at 275. By working in harmony “to prohibit all ex-

cessive punishments,” Atkins v. Virginia, 536 U.S. 304,

311 n.7 (2002), the Clauses secure Americans’ life, lib-

erty, and property, see U.S. Const. amend. XIV, § 1.

There is thus “no reason to distinguish one Clause of

the Eighth Amendment from another for purposes of

incorporation.” Browning-Ferris Indus. , 492 U.S. at 284

(O’Connor, J., concurring in part and dissenting in

part). All three Clauses stand as “parallel limitations”

securing the same unitary right to be free from dispro-

portionate punishment. See id. at 263 (majority opin-

ion); cf Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality

opinion) (“The basic concept underlying the Eighth

Amendment is nothing less than the dignity of man.”).

Like the rest of the Eighth Amendment, of

course, the Excessive Fines Clause is also “deeply

rooted” in our constitutional tradition. See McDonald,

561 U.S. at 767. At the time of ratification, “at least

eight of the original States . . . had some equivalent of

the Excessive Fines Clause in their respective Decla-

rations of Rights or State Constitutions.” Browning-

Ferris Indus., 492 U.S. at 264. The Eighth Amend-

ment’s language was borrowed from the Virginia

24

Declaration of Rights, which drew from the 1689 Eng-

lish Bill of Rights, which in turn declared that “exces-

sive Bail ought not to be required, nor excessive Fines

imposed; nor cruel and unusual Punishments in-

flicted.” 1 Wm. & Mary, 2d Sess., ch. 2, 3 Stat. at Large

440, 441 (1689), quoted in Browning-Ferris Indus. , 492

U.S. at 266-67. Blackstone traced the constitutional

protection against excessive fines back further still, to

Magna Carta, and before that to the reign of Henry II.

See 4 William Blackstone, Commentaries *372; see gen-

erally McDonald, 561 U.S. at 768 (looking to Black-

stone and the English Bill of Rights to determine that

the Second Amendment is incorporated).

The same mistrust of the government’s power

to punish inspired the Eighth Amendment. The “pri-

mary focus” of the Amendment “was the potential

for governmental abuse of its ‘prosecutorial’ power,”

Browning-Ferris Indus. , 492 U.S. at 266, with the Ex-

cessive Fines Clause in particular “limiting the ability

of the sovereign to use its prosecutorial power, includ-

ing the power to collect fines, for improper ends,” id. at

267. In adopting the Eighth Amendment, the Framers

thus “uncritically claim|ed] a liberty of their heritage.”

See Laurence Claus, The Antidiscrimination Eighth

Amendment, 28 Harv. J.L. & Pub. Pol’y 119, 134 (2004).

Relying on Anglo-American legal traditions, they rec-

ognized that economic sanctions can ° »:pose burdens

no less punishing than incarceration; an excessive fine,

after all, can “amount|| to imprisonment for life.” 4

William Blackstone Commentaries *373. When the

Fourteenth Amendment was ratified, in 1868, these

25

same concerns persisted. By that time, 35 state consti-

tutions included protections against excessive fines.

See Steven G. Calabresi & Sarah E. Agudo, Individual

Rights Under State Constitutions When the Fourteenth

Amendment Was Ratified in 1868: What Rights Are

Deeply Rooted in American History and Tradition? , 87

Tex. L. Rev. 7, 82 (2008); cf McDonald, 561 U.S. at 769,

777 (looking to state constitutions during the periods

surrounding ratification of the Bill of Rights and the

Fourteenth Amendment to determine incorporation).

For these reasons, the Framers counted the pro-

tection against excessive fines as among those funda-

mental rights that are essential to our system of

ordered liberty, and the Fourteenth Amendment's

ratifiers intended that protection to apply to the

States.

2. Like the courts of Montana, Mississippi, and

Michigan, the Indiana Supreme Court took account of

none of these principles. In that court’s view, it was

enough that this Court has not issued a “definitive

holding” on the question of the Excessive Fines

Clause’s incorporation. App. 9. And because “Indiana is

a sovereign state within our federal system,” the court

“elect(ed]| not to impose federal obligations on the State

that the federal government itself has not mandated.”

App. 9. Until this Court “decides the issue authorita-

tively,” the Indiana Supreme Court thus announced

that it would “decline to subject Indiana to a federal

test that may operate to impede development of our

own excessive-fines jurisprudence under the Indiana

Constitution.” App. 8, 9 (emphasis in original).

26

Far from being “cautious,” App. 8, this reasoning

raises grave constitutional concerns in its own right.

Our federal system “charges state courts with a coor-

dinate responsibility” to give effect to all Americans’

federally protected rights. Howlett, 496 U.S. at 367.

This includes deciding whether federal constitutional

provisions like the Excessive Fines Clause protect

against penalties levied by state and local govern-

ments. For “the Constitution and laws passed pursuant

to it are as much laws in the States as laws passed by

the state legislature.” Id. ; see also Claflin v. Houseman,

93 U.S. 130, 137 (1876) (explaining that federal and

state courts both must enforce “the laws of the United

States”). By declining to engage with this issue, the In-

diana Supreme Court thus effectively “den|ied| a fed-

eral right.” Howlett, 496 U.S. at 369.

By dismissing the Excessive Fines Clause as “a

federal test” that could “impede development” of state

law, App. 9, the Indiana Supreme Court also misunder-

stood the supremacy of the federal Constitution, see

U.S. Const. art. VI, cl. 2. State courts—no less than fed-

eral courts—must give effect to the Constitution. And

it is never the case that a constitutional protection

should remain unincorporated simply to avoid interfer-

ing with state laws. See McDonald, 561 U.S. at 790

(plurality opinion) (“Incorporation always restricts ex-

perimentation and local variations, but that hae not

stopped the Court from incorporating virtually eve: y

other provision of the Bill of Rights.”). Yet the Indiana

Supreme Court’s reasoning begins and ends with that

flawed premise. See App. 9. The Court should thus

grant certiorari, reaffirm the state courts’ coordinate

27

duty to enforce federally protected rights, and hold

that the Excessive Fines Clause is incorporated

against the States.

Itl. The question presented raises issues of na-

tional importance that warrant this Court’s

review.

As suggested by the number of courts that have

considered the question presented, see pp. 13-21, su-

pra, whether the Excessive Fines Clause applies to the

States is an important and recurring issue. It is im-

portant in all 50 States (and countless localities),

which levy fines and forfeit property on a daily basis.

And it is important to the many Americans every year

targeted for punitive economic sanctions by state and

local authorities. As the Indiana Supreme Court put it,

only a “definitive holding” from this Court (App. 9) will

guarantee that the Clause can act as a truly national

counterweight to the “terrifying force of the criminal

justice system.” Robertson v. United States ex rel. Wat-

son, 560 U.S. 272, 273 (2010) (Roberts, C.J., dissenting

from dismissal of certiorari). There is no reason to wait

to resolve the question presented, and this case is the

perfect vehicle in which to do so.

A. The Excessive Fines Clause is a key pro-

tection against punitive economic sanc-

tions by States and municipalities.

The main evil addressed by the Excessive Fines

Clause—like its precursors in the English Bill of

28

Rights and Magna Carta—is the sovereign impulse to

“usel | the civil courts to extract large payments or for-

feitures for the purpose of raising revenue or disabling

some individual.” See Browning-Ferris Indus. , 492 U.S.

at 275. This constitutional safety valve is as urgently

needed today as ever. Particularly at the state and lo-

cal levels, “many lawmakers use economic sanctions in

order to avoid increasing taxes while maintaining gov-

ernmental services, with some lawmakers even includ-

ing increases to revenues generated from economic

sanctions in projected budgets.” Beth A. Colgan, The

Excessive Fines Clause: Challenging the Modern Debt-

ors’ Prison, 65 UCLA L. Rev. (forthcoming 2018) (foot-

notes omitted).

Like the Stuart practices that inspired the Exces-

sive Fines Clause, modern economic sanctions also

“target the politically vulnerable.” Jd. “Fines, fees,

and forfeitures can have devastating consequences on

those who are financially vulnerable, particularly in

low-income communities and communities of color

that are most likely to be heavily policed.” Beth A.

Colgan, “Fines, Fees, and Forfeitures” in Reforming

Criminal Justice — Volume 4: Punishment, Incarcera-

tion, and Release 212 (Erik Luna ed. 2017) (footnote

omitted). In Ferguson, Missouri, for example, the U.S.

Department of Justice determined that “[clity officials

have consistently set maximizing revenue as the

priority for . . . law enforcement activity.” U.S. Dep't of

Justice, Investigation of the Ferguson Police Depart-

ment, at 9 (Mar. 4, 2015). The roughly 3,000 residents

of nearby Pagedale—five miles to the south of

29

Ferguson—have been fined for trivial offenses like

missing curtains, aging paint, walking on the left side

of crosswalks, and enjoying a beer within 150 feet of a

grill. See George F. Will, A Missouri town demands sub-

stantive due process, The Wash. Post (Dec. 11, 2015),

https://goo.gi/Jfq667. From 2010 to 2013, the number

of non-traffic tickets in Pagedale increased 495%, with

the city collecting $356,601 in associated fines and fees

in 2013 alone. Jd. In 2014, authorities issued nearly

enough non-traffic tickets for each household within

city limits to receive two. See Jennifer S. Mann, Law-

suit filed against Pagedale for ticketing high grass and

other code violations, St. Louis Post-Dispatch (Nov. 4,

2015), https-//goo.g/Qmc86R.

In civil-forfeiture cases, like this case, the Exces-

sive Fines Clause is a vitally important check on the

government’s impulse to punish disproportionately. In

the majority of States and at the federal level, when

property is forfeited most (and often all) of the result-

ing proceeds flow to law-enforcement coffers, fre-

quently those of the seizing agency. As a result, state

and federal agencies have increasingly resorted to civil

forfeiture as a revenue-raising tool. In 2012 alone,

agencies in 26 States and the District of Columbia took

in more than $254 million through forfeiture. Institute

for Justice, Dick M. Carpenter II et al., Policing for

Profit: The Abuse of Civil Asset Forfeiture 11 (2d ed.

2015), https://goo.gi/sY32sT. (Between 2001 and 2014,

total deposits in the Department of Justice and Treas-

ury forfeiture funds approached $29 billion. Jd. at 10.)

Nationwide, the modern civil-forfeiture system “has

30

led to egregious and well-chronicled abuses.” Leonard

v. Texas, 137 S. Ct. 847, 848 (2017) (Thomas, J., state-

ment respecting denial of certiorari). And, like eco-

nomic sanctions generally, forfeitures “frequently

target the poor and other groups least able to defend

their interests in forfeiture proceedings.” Id.

Indiana vividly illustrates these national prob-

lems. As one prosecutor declared after law enforcement

acquired a financial stake in civil forfeiture, “the stat-

ute is limited only by your own creativity.” Joseph T.

Hallinan, Police can take crime cash but can’t dish it

out, The Indianapolis Star, Feb. 2, 1986, at 6B. More-

over, Indiana’s forfeiture system has inspired a unique

set of abuses. Unlike every other State, Indiana allows

local prosecutors to outsource their civii-forfeiture

cases to private-sector lawyers on a contingency-fee

basis. See Ind. Code § 34-24-1-8. Petitioner’s case, for

example, was prosecuted by a private law firm. See

App’x of Appellant at 10-11, State v. Timbs, No. 27A04-

1511-MI-1976 (Ind. Ct. App. filed Mar. 30, 2016) (com-

plaint); see generally David P. Smith, Prosecution and

Defense of Forfeiture Cases ¥ 1.01, at 1-13 (LexisNexis

2017) (“The biggest scandal of all is Indiana’s institu-

tionalized bounty hunter system in which state DAs

contract with private attorneys to handle all of the

county’s civil forfeiture cases for a contingent fee of a

quarter or a third of all the property they forfeit.”).

This system of mercenary prosecutors only magni-

fies the Excessive Fines Clause’s animating concern:

that state power will be harnessed “for raising revenue

in unfair ways, or for any other improper use.”

31

Browning-Ferris Indus., 492 U.S. at 272. Predictably,

private-sector lawyers pocket hundreds of thousands

of dollars based on forfeitures. See generally Heather

Gillers et al., Cashing in on crime: Indiana law allows

prosecutors to farm out forfeiture cases to private law-

yers — who get a cut of the money, The Indianapolis

Star, Nov. 14, 2010, at Al. One deputy prosecutor liti-

gated criminal cases while moonlighting as a contin-

gency-fee lawyer in parallel forfeiture proceedings.

“On numerous occasions when the ethics of the asset

forfeiture procedures were called into question,” the

Indiana Supreme Court later found, “[the prosecutor]

turned a blind eye and acted to protect his private in-

terest in his continued pursuit of forfeiture property.”

In re McKinney, 948 N.E.2d 1154, 1155-56 (Ind. 2011).

In the same county, a local trial court investigated the

same system, which it termed “a carefully crafted as-

sault on the judicial system and court adjudication of

civil forfeitures.” Findings and Report on Civil Drug

Forfeitures in Division 2, Including a Limited Number

of Cases in the Other Four Divisions of the Delaware

Circuit Court, at 6 (Ind. Cir. Ct., Delaware Cty. Aug. 18,

2008), https://goo.gi/TCHk4S; see also id. at 13 (“The

handling of civil drug forfeitures amounts to fraud on

the court.”).

Elsewhere in Indiana, a county council sued its lo-

cal sheriff and prosecutor over their “respective roles

most notably the handling of funds therefrom.” Knox

Cty. Council v. Sievers, 895 N.E.2d 1263, 1265 (Ind. Ct.

App. 2008). As alleged in that case, the state auditing

32

agency “found a deficiency balance of $51,987.00 in the

Drug Seizure Fund,” id., but law-enforcement officials

refused to produce even basic information “concerning

the financial aspects of [the county’s] civil forfeiture

proceedings,” id. at 1266. And last year, a federal audit

found that Indiana’s Henry County and a neighboring

police department misspent more than $300,000 in

federal forfeiture money on “unallowable purchases”

and “unallowable salary and fringe benefit costs.”

Office of the Inspector Gen., U.S. Dep’t of Justice, Audit

of Henry County Sheriff’s Office’s Equitable Sharing

Program Activities, New Castle, Indiana at 4 (Feb.

2017), https-//goo.gl/A56PuJ.

For ordinary citizens—many of them low-level

drug offenders or innocent property owners—the

real-world consequences are profound. With economic

sanctions serving as both punishment and revenue

source, “law enforcement Weapons of Mass Destruc-

tion” are increasingly deployed against “pedestrian

targets.” Sargent v. State, 27 N.E.3d 729, 735 (Ind.

2015) (Massa, J., dissenting). In one case, Indianapolis

law enforcement sued to forfeit a teenager’s car, which

was found with “a large quantity of Gatorade bottles

and assorted snacks and candies” stolen from a play-

ground concession stand. See Pls.’ Mot. Summ. J., State

v. Jaynes, No. 49D01-1111-MI-043642, 2012 WL

12974140 (Ind. Super. Ct., Marion Cty. filed May 23,

2012). In another case, the State tried to forfeit a

woman’s 1996 Buick Century after she attempted to

shoplift four iPhones. Sargent, 27 N.E.3d at 731. When

the Indiana Supreme Court rejected that forfeiture on

33

statutory grounds, see id. at 733, even a dissenting jus-

tice voiced bewilderment at the State’s “overreach,” id.

at 735 (Massa, J., dissenting); see also id. at 734 (“But

really? Firing Sargent and having her righteously

prosecuted for felony theft was not enough? The State

had to take her car, too?”).

The abuse of fines and forfeitures is not unique to

Indiana. Nor is it new. The pressure to generate “royal

revenue” is a well-recognized byproduct of any system

of economic sanctions. See Browning-Ferris Indus. , 492

U.S. at 271. Unlike every other form of punishment—

all of which cost the government money—‘“fines are

a source of revenue.” Harmelin, 501 U.S. at 978 n.9

(opinion of Scalia, J.). So “[t]heve is good reason to be

concerned that fines, uniquely of all punishments, will

be imposed in a measure out of accord with the penal

goals of retribution and deterrence.” Jd. Because “the

State stands to benefit” from levying fines, id., there is

a singular risk that governments—federal, state, and

local alike—will exercise their punitive powers with an

eye toward revenue, rather than justice. The Excessive

Fines Clause is an essential check on the many unjust

punishments that can result from such perverse incen-

tives. Cf McDonald, 561 U.S. at 918 (Breyer, J., dissent-

ing) (considering “the extent to which incorporation

will further other, perhaps more basic, constitutional

aims”).

B. National uniformity is critical.

Few questions are more demanding of national

resolution than which provisions of the Bill of Rights

34

apply to the several States. By setting a constitutional

floor securing individual liberty, the Fourteenth

Amendment “fundamentally restructured the relation-

ship between individuals and the States.” Zelman v.

Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J.,

concurring). That principle makes this Court’s inter-

vention particularly warranted in a case like this. As

the Indiana Supreme Court recognized, this Court

plays a unique role in deciding incorporation issues.

See App. 8-9. All 50 States, as well as their residents,

need to know which federal protections apply in state

proceedings. In this way, every question of incorpora-

tion bears on the nation as a whole, and this Court

alone can provide a nationwide answer.

Of course, the federal-state balance is not just “a

matter of rights belonging only to the States.” Bond v.

United States, 564 U.S. 211, 222 (2011). It also “pro-

tects the liberty of the individual from arbitrary

power,” id., with the Fourteenth Amendment “add|ing|

greatly to the dignity and g'ory of American citizen-

ship, and to the security of personal liberty,” Plessy v.

Ferguson, 163 U.S. 537, 555 (1896) (Harlan, J., dissent-

ing). To be a meaningful right of American citizenship,

however, a right must have equal force throughout the

nation. Today, the Eighth Amendment’s protection

against excessive fines applies in some places, but not

others. The Clause protects people in Idaho, but not

Montana; it protects people in Alabama, but not Mis-

sissippi; and—with the Indiana Supreme Court’s deci-

sion in this case—it protects people in Illinois, but not

Indiana.

35

By “electiing| not to impose federal obligations on

the State,” App. 9, the Indiana Supreme Court has also

undermined the rights of people far beyond Indiana’s

borders. For instance, Indianapolis is home to one of

the nation’s central FedEx hubs,’ which state and local

law enforcement routinely comb for cross-country ship-

ments of cash to seize. See generally Bowman v. State,

81 N.E.3d 1127, 1131 (Ind. Ct. App. 2017), pet. for

transfer pending (holding parcel-seizure practices un-

lawful). In 2017 alone, Indianapolis prosecutors sued

to forfeit—or to transfer to the federal government—

over $1.5 million in currency seized in this fashion."

With the Indiana Supreme Court’s decision in this

case, whether citizens fighting these seizures enjoy

any protection under the Excessive Fines Clause de-

pends on happenstance: whether a particular ship-

ment is routed through Indiana and whether a

prosecutor there decides to seek forfeiture in a state

forum or a federal one. The prosecutor may elect to

transfer the property to federal agencies for forfeiture

under federal law, in which case the Clause would ap-

ply. See generally Office of the Att’y Gen., Order No.

3946-2017 (Federal Forfeiture of Property Seized by

State and Local Law Enforcement Agencies) (July 19,

2017). Or the prosecutor may proceed in state court, in

which case the Clause would not apply.

" See Paris Lewbel, Tuke a look inside Indy’s FedEx hub, the

second-largest in the U.S., Indy Channel (Dec. 15, 2017),

https//goo.gV/g2wp4 1.

* This figure is derived from filings available on Indiana's

online case-management system.

36

This situation calls out for correction. Federally

protected rights should never depend on state borders,

much less on how commercial carriers choose to route

their shipments. “The National Government and,

beyond it, the separate States are bound by the pro-

scriptive mandates of the Eighth Amendment to the

Constitution of the United States, and all persons

within those respective jurisdictions may invoke its

protection.” Kennedy, 554 U.S. at 412. Despite the

Court’s many statements to this effect, however, state

courts and ordinary Americans are in need of a “defin-

itive holding” on whether the Excessive Fines Clause

applies to the States. See App. 9.

C. This case is a good vehicle for deciding

the question presented.

This case offers an excellent vehicle for resolving

the question presented. The Excessive Fines Clause

was the sole basis for the decisions of the trial court,

App. 27-30, and court of appeals, App. 13-26. Both

courts believed that the Clause was incorporated and

so they applied the Clause and ruled in Petitioner’s fa-

vor on the merits, holding that forfeiture of his vehicle

would be “grossly disproportionate to the gravity of

{his} offense.” App. 24, 29-30. The Indiana Supreme

Court did not consider whether the lower courts cor-

rectly applied the Clause, however. App. 4 (“Before ad-

dressing whether forfeiture of Timbs’s Land Rover

would be an excessive fine, we must decide the ante-

cedent question of whether the Excessive Fines Clause

applies to forfeitures by the State.”). Instead, the state

37

high court reversed on one ground: This Court has not

“authoritatively” held that the Clause applies to the

States. App. 8. That decision turned on no factual find-

ings or matters of state law. And, like the lower courts

in Austin, the Indiana Supreme Court “had no occasion

to consider what factors should inform [the Eighth

Amendment analysis] because it thought it was fore-

closed from engaging in the inquiry.” See Austin, 509

U.S. at 622. The incorporation question ceuld not be

more cleanly presented.

Nor is there any reason to delay addressing the is-

sue, which this Court raised nearly three decades ago.

See Browning-Ferris Indus. , 492 U.S. at 276 n.22. Fur-

ther percolation serves little purpose. Every court that

has dealt with this issue has (tacitly or expressly)

looked to this Court for guidance. The courts that apply

the Clause to the States do so because they view this

Court’s prior statements as commanding incorpora-

tion. See supra pp. 13-18. Conversely, those courts that

decline to apply the Clause have read the very same

statements and concluded they leave the incorporation

issue unsettled. See supra pp. 19-21. Those courts tak-

ing the minority position—Montana, Mississippi, the

Michigan Court of Appeals, and now Indiana—have

not analyzed whether the Clause applies to the States

under this Court’s incorporation precedent. Rather,

like Indiana, they have decided that, until this Court

issues a “definitive holding,” they will “elect not to im-

pose federal obligations on the State that the federal

government itself has not mandated.” See App. 9.

38

This Court should grant review, hold that the Ex-

cessive Fines Clause applies to the States, and reaffirm

that state courts—like the federal courts—bear “the

duty to safeguard and enforce the right of every citi-

zen.” Howlett, 496 U.S. at 368 (quoting Minneapolis &

St. L.R. Co. v. Bombolis, 241 U.S. 211, 222 (1916)).

,

a

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

DARPANA M. SHETH WESLEY P. Horrot*

SAMUEL B. GEDGE INSTITUTE FOR JUSTICE

INSTITUTE FOR JUSTICE 10500 NE 8th Street,

901 North Glebe Road, Suite 1760

Suite 900 Bellevue, WA 98004

Arlington, VA 22203 (425) 646-9300

(703) 682-9320 whottot@ij.org

dsheth@ij.org *Counsel of Record

Counsel for Petitioners

App. 1

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Curtis T. Hill, Jr. David W. Stone IV

Attorney General of Indiana Stone Law Office

Justin F. Roebel al Legal —_—

Deputy Attorney General eee,

In the

Indiana Supreme Court

No. 27804-1702-MI-70

STATE OF INDIANA,

Appellant (Plaintiff below),

v.

TYSON TIMBS,

Appellee (Defendant below).

Appeal from the Grant Superior Court 1,

No. 27D01-1308-MI-92

The Honorable Jeffrey D. Todd, Judge

On Petition to Transfer from the Indiana Court

of Appeals, No. 27A04-1511-MI-1976

November 2, 2017

App. 2

Slaughter, Justice.

The State sought to forfeit Defendant’s Land

Rover after he used it to transport illegal drugs. The

trial court held the proposed forfeiture would violate

the Eighth Amendment’s Excessive Fines Clause. We

conclude the Excessive Fines Clause does not bar the

State from forfeiting Defendant’s vehicle because the

United States Supreme Court has not held that the

Clause applies to the States through the Fourteenth

Amendment.

Factual and Procedural History

Defendant, Tyson Timbs, used life-insurance pro-

ceeds after his father’s death to pay $42,058.30 for a

Land Rover in January 2013. Over the next four

months, Timbs regularly drove the Land Rover be-

tween Marion and Richmond, Indiana, to buy and

transport heroin. Timbs’s trafficking came to the atten-

tion of a confidential police informant, who told a mem-

ber of the Joint Effort Against Narcotics team that he

could buy heroin from Timbs. Police set up a controlled

buy, and the informant and an undercover detective

bought two grams of heroin from Timbs for $225. Police

made another controlled buy a couple of weeks later,

acquiring another two grams of heroin for $160. Dur-

ing the second buy, the detective set up a third con-

trolled buy with Timbs. The day the third buy was to

occur, police apprehended Timbs during a traffic stop.

The Land Rover had 1,237 miles on its odometer when

App. 3

Timbs bought it in January, and more than 17,000

miles when police seized the vehicle in late May.

In June 2013, the State charged Timbs with two

counts of Class B felony dealing in a controlled sub-

stance and one count of Class D felony conspiracy to

commit theft. Nearly two years later, in 2015, Timbs

pleaded guilty to one count of Class B felony dealing

and one count of Class D felony conspiracy to commit

theft in exchange for the State’s dismissing the re-

maining charge. The trial court accepted the plea and

sentenced Timbs to six years, with one year executed

in community corrections and five years suspended to

probation. Timbs also agreed to pay police costs of

$385, an interdiction fee of $200, court costs of $168, a

bond fee of $50, and a $400 fee for undergoing a drug-

and-alcohol assessment with the probation depart-

ment.

Within a couple months of bringing criminal

charges, the State also sought to forfeit the Land

Rover. After a bench trial, the court issued written

findings that denied the State’s action, concluding that

forfeiture would be an excessive fine under the Eighth

Amendment. “The amount of the forfeiture sought is

excessive, and is grossly disproportional to the gravity

of the Defendant’s offense.” The trial court observed

that the maximum statutory fine for Timbs’s Class B

felony was $10,000 on the day he was arrested and

noted the vehicle was worth approximately four times

this amount when he bought it just a few months ear-

lier. The court made no finding about the vehicle’s

value on Timbs’s arrest date. Based on its holding, the

App. 4

court ordered the State to release the vehicle immedi-

ately. A divided Court of Appeals affirmed. State v.

Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016). We granted

transfer, thus vacating the Court of Appeals’ opinion,

and now reverse.

Standard of Review

Before addressing whether forfeiture of Timbs’s

Land Rover would be an excessive fine, we must decide

the antecedent question of whether the Excessive

Fines Clause applies to forfeitures by the State.

Whether a Bill of Rights provision applies to the States

is a purely legal question. We review such questions de

novo. State v. Harper, 8 N.E.3d 694, 696 (Ind. 2014).

Unlike legal questions, a trial court’s factual determi-

nations are reviewed for clear error. Fischer v. Hey-

mann, 12 N.E.3d 867, 870 (Ind. 2014). We will not

reweigh evidence or determine the credibility of wit-

nesses, and we will consider only the evidence favora-

ble to the judgment and the logical inferences drawn

from it. Ind. Trial Rule 52(A); Hitch v. State, 51 N.E.3d

216, 226 (Ind. 2016).

Discussion and Decision

lL. The United States Supreme Court has never

enforced the Excessive Fines Clause against

the States, and we opt not to do so here.

The framers’ original conception was settled long

ago that the Bill of Rights applies only to the national

government and cannot be enforced against the States.

App. 5

See Barron v. Baltimore, 32 US. (7 Pet.) 243, 247

(1833). Only after ratification of the Fourteenth

Amendment did the Supreme Court, in the early twen-

tieth century, begin to apply various provisions of the

Bill of Rights to the States through the doctrine of se-

lective incorporation. Justice Black’s argument for to-

tal incorporation of the Bill of Rights, see, ez.,

Adamson v. California, 332 U.S. 46, 71-72, 89 (1947)

(Black, J., dissenting), has never carried the day.

McDonald v. City of Chicago, 561 U.S. 742, 761-63

(2010).

To date, the Supreme Court has incorporated most

of the first eight amendments — with a few notable ex-

ceptions: the Third Amendment’s protection against

quartering soldiers, the Fifth Amendment’s grand-jury

requirement, and the Seventh Amendment’s right to a

civil jury trial. Jd. at 765 n.13 (citations omitted). At

issue here is whether the Eighth Amendment’s Exces-

sive Fines Clause is enforceable against the States. We

hold it is not.

The Eighth Amendment provides: “Excessive bail

shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. Const.

amend. VIII. The Supreme Court has never held that

States are subject to the Excessive Fines Clause. The

Court initially declined to decide the Clause’s incorpo-

ration status.

Because of the result we reach today, we need

not answer several questions that otherwise

might be necessarily antecedent to finding the

App. 6

Eighth Amendment’s Excessive Fines Clause

applicable to an award of punitive damages,

... fineluding] whether the Eighth Amend-

ment’s prohibition on excessive fines applies

to the several States through the Fourteenth

Amendment|.|

Browning-Ferris Industries of Vt., Inc. v. Kelco Dis-

posal, Inc., 492 U.S. 257, 276 n.22 (1989).

A dozen years later, in a case involving not a fine

but another punitive-damages award, the Supreme

Court stated in dictum that the Fourteenth Amend-

ment’s Due Process Clause “makes the Eighth Amend-

ment’s prohibition against excessive fines and cruel

and unusual punishments applicable to the States.”

Cooper Indus., Inc. v. Leatherman Tool Group, Inc. , 532

US. 424, 433-34 (2001) (citing Furman v. Georgia, 408

U.S. 238 (1972) (per curiam)). A prominent treatise on

criminal procedure observed that Cooper's statement

incorporating the Excessive Fines Clause was merely

dictum. “In noting that the due process clause also in-

corporated the Eighth Amendment prohibitions

against excessive fines and cruel and unusual punish-

ments, the Court cited Furman v. Georgia, . . . which

involved an application of the prohibition against cruel

and unusual punishments.” Wayne R. Lafave et al.,

Criminal! Procedure § 2.6(b), n.45 at 833 (4th ed. 2015).

Despite Cooper’s 2001 dictum that the Clause can

be enforced against States, the Supreme Court’s most

recent pronouncement on this subject, in 2010, sug-

gests the Clause has not been incorporated after all.

McDonald, 561 U.S. at 765 n.13. McDonald was an

App. 7

incorporation case. At issue was whether the Second

Amendment’s individual right to keep and bear arms,

recognized in District of Columbia v. Heller, 554 US.

570 (2008), is enforceable against the States. McDon-

ald held that it is — a position commanding the support

of five Justices, four of whom agreed it was enforceable

through the Due Process Clause. Only Justice Thomas

believed the basis for decision should be the Privileges

and Immunities Clause. McDonald, 561 U.S. at 805-58

(Thomas, J., concurring in part and in the judgment).

En route to deciding that the Second Amendment ap-

plies to the States, McDonald observed that “[olnly a

handful of the Bill of Rights protections remain unin-

corporated”, id. at 765, and included on that list “the

Eighth Amendment’s prohibition on excessive fines.”

Id. at 765 n.13. Citing only Browning-Ferris and not

Cooper, the Court stated, “We have never decided

whether the ... Eighth Amendment’s prohibition of

excessive fines applies to the States through the Due

Process Clause.” Id.

It is not self-evident why the McDonald Court did

not mention Cooper. Perhaps the omission was an over-

sight, though we will not conclude lightly that the Su-

preme Court whiffed on the existence or meaning of its

precedent. The more likely explanation is that McDon-

ald was treating Cooper’s statement as superfluous to

Cooper’s holding and therefore dictum. Just as

Cooper’s statement that the Excessive Fines Clause is

enferceable against the States is dictum, so too is

McDonald’s statement that the Clause is not.

App. 8

So where does that leave us? Given the lack of

clear direction from the Supreme Court, we have a cou-

ple of options. One option is to ignore McDonald and

follow the lead of some courts that have either applied

the Excessive Fines Clause to challenged state action

or assumed without deciding that the Clause applies.

See, e.g., Hamilton v. City of New Albany, Indiana,

Fed. Appx. __, 2017 WL 2615453, at *5 (7th Cir. Jun.

16, 2017) (vacating summary judgment for city on

plaintiff’s federal excessive-fines claim and remanding

for trial without mentioning incorporation or McDon-

ald); Cripps v. Louisiana Dep’t of Agriculture and For-

estry, 819 F.3d 221, 234 (5th Cir. 2016) (“Assuming

arguendo that the Excessive Fines Clause applies, the

record indicates that each of Plaintiffs’ offenses re-

sulted in fines that do not exceed the limits prescribed

by the statute authorizing it.”); Discount Inn, Inc. v.

City of Chicago, 803 F.3d 317, 320 (7th Cir. 2015) (hold-

ing that “the fines imposed by the challenged [city] or-

dinances are not excessive even if the ‘excessive fines’

clause is applicable”); Public Employee Retirement Ad-

min. Comm’n v. Bettencourt, 47 N.E.3d 667, 672 n.7,

681 (Mass. 2016) (holding forfeiture violates federal ex-

cessive-fines clause based on Cooper without mention-

ing McDonald).

A second option is to await guidance from the Su-

preme Court and decline to find or assume incorpora-

tion until the Supreme Court decides the issue

authoritatively. We choose this latter, more cautious

approach for two reasons. First, although the Supreme

Court has addressed this issue only in dicta, its

App. 9

statement in McDonald that the Clause has not been

incorporated is entitled to more weight because it is

the Court’s most recent. Second, Indiana is a sovereign

state within our federal system, and we elect not to im-

pose federal obligations on the State that the federal

government itself has not mandated. An important cor-

ollary is that Indiana has its own system of legal, in-

cluding constitutional, protections for its citizens and

other persons within its jurisdiction. Absent a defini-

tive holding from the Supreme Court, we decline to

subject Indiana to a federal test that may operate to

impede development of our own excessive-fines juris-

prudence under the Indiana Constitution.

Although we ultimately disagree with our Court of

Appeals’ decision to apply the Excessive Fines Clause

to the State’s forfeiture, we understand the Court’s

reason for doing so. After all, the State specifically ad-

vised the Court that it “need not decide [the issue of

incorporation] . . . because the penalties imposed were

not unconstitutionally excessive.” Despite the State’s

choice not to wage the incorporation battle here, we

need not abide a party’s consent to a misstatement or

misapplication of law. Stephenson v. State, 864 N.E.2d

1022, 1030 (Ind. 2007). We reserve to ourselves — not

the parties — the prerogative to pronounce what law

governs a particular dispute. The parties’ consensus

here to subject the State’s forfeiture to review under

the Clause does not require that we follow su’ \nd we

decline to do so, mindful that our colleagues on the

Court of Appeals and the trial court may be correct in

App. 10

foretelling where the Supreme Court will one day lead

on whether to apply the Clause to the States.

To be clear, our decision on incorporation should

not be read to prejudge the merits of pending or pro-

spective forfeiture challenges based on other provi-

sions of state or federal law. Our narrow holding here

is confined to the Court of Appeals’ reliance on a provi-

sion of the United States Constitution — the Excessive

Fines Clause — that the Supreme Court has never en-

forced against the States. We decline to address other

potential problems with the State’s forfeiture because

Timbs raised only an excessive-fines challenge under

federal law.

Il. Based on the trial court’s findings, the State

proved it is entitled to forfeit the Land

Rover.

Because we have resolved the Eighth Amendment

issue against Timbs, we turn to whether the State

proved its entitlement to forfeit the vehicle under In-

diana law. The governing statute provides, in pertinent

part, that to obtain forfeiture the State must show that

a person used the vehicle to transport an illicit sub-

stance listed in the statute for the purpose of dealing

or possessing the substance.

Sec. 1.(a) The following may be seized:

(1) All vehicles ... , if they are used ... by

the person ... in possession of them to

transport .. . the following:

App. 11

(A) A controlled substance for the pur-

pose of committing . . . any of the fol-

lowing:

(i) Dealing in or manufacturing co-

caine or a narcotic drug (IC 35-

48-4-1)

(iii) Dealing in a schedule I, I, or III

controlled substance (IC 35-48-

4-2)

***

(vii) Possession of cocaine or a nar-

cotic drug (IC 35-48-4-6)

L.C. § 34-24-1-1 (Supp. 2012). See also Katner v. State,

655 N.E.2d 345, 349 (Ind. 1995).

After a bench trial, the trial court made the follow-

ing factual findings relevant here.

Between the date of purchase, and May 31st,

2013, [Timbs] drove the vehicle frequently

from Marion to Richmond to purchase heroin.

The Land Rover was used by [Timbs] to

transport heroin back to Marion. [Timbs] both

used and sold the heroin. When the Land

Rover was seized by the State at the end of

May 2013, the odometer reading was between

17,000 and 18,000 miles. The increased mile-

age primarily resulted from [Timbs] traveling

between Marion and Richmond to engage in

illegal drug trafficking.

App. 12

On appeal, Timbs challenges these findings under the

corpus-delicti rule, which requires independent evi-

dence of a crime beyond the defendant’s confession.

But the rule applies only to an out-of-court confession

in a criminal proceeding and thus does not benefit

Timbs. See Willoughby v. State, 552 N.E.2d 462, 466

(Ind. 1990). Timbs’s inculpatory testimony occurred in

court, while his counsel was present, in this civil-for-

feiture proceeding, where he admitted to multiple trips

to Richmond in the Land Rover to acquire heroin and

transport it back to Marion. Because corpus Gelicti is

no obstacle to the use of Timbs’s testimony, the court’s

findings are supported by the evidence, and the State

proved them by the required preponderance of the ev-

idence, I.C. § 34-24-1-4(a). These findings establish

each of the statutory elements recited above to prove

the State’s entitlement to forfeit the Land Rover —

namely, that Timbs used the vehicle to transport and

possess heroin, a schedule | controlled substance, id.

§ 35-48-2-4(c) (Supp. 2013), and a narcotic drug, id.

§$§ 35-48-2-4(c), 35-48-1-20(1) (2008 Repl.), for the pur-

pose of engaging in illegal drug trafficking.

Conclusion

For these reasons, we reverse the trial court’s

judgment for Timbs and remand with instructions to

enter judgment for the State on its forfeiture com-

plaint.

Rush, C.J., and David, Massa, and Goff, JJ., concur.

App. 13

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Gregory F. Zoeller David W. Stone IV

Attorney General of Indiana Stone Law Office

A Craft & Legal Research

Justin F. Roebel CO, See

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana, October 20, 2016

Appellant-Plaintiff, Corrected

v. Court of Appeals Case No.

Tyson Timbs and a 27A04-1511-MI-1976

2012 Land Rover LR2, [Appeal from the

Appellees- Defendants. Grant Superior Court 1

The Honorable

Jeffrey D. Todd, Judge

Trial Court Cause No.

27D01-1308-MI1-92

Mathias, Judge.

[1] The State of Indiana filed a complaint for for-

feiture in Grant Superior Court seeking to obtain a

2012 Land Rover LR2 owned by Tyson Timbs

(“Timbs”). The trial court ruled in favor of Timbs, and

the State appeals, presenting one issue, which we re-

state as whether the trial court erred in concluding

App. 14

that forfeiture of Timbs’s vehicle would constitute a

constitutionally excessive fine.

[2] We affirm.

Facts and Procedural History

[3] In January 2013, Timbs purchased a Land Rover

LR2 (“Land Rover”) for the sum of $42,058.30 from a

dealer in Indianapolis. Timbs paid for the Land Rover

with life insurance policy proceeds that he received fol-

lowing the death of his father. Thereafter, Timbs began

to use this vehicle to drive from Marion, Indiana to

Richmond, Indiana for the purposes of purchasing her-

oin. Timbs also used the Land Rover to transport the

heroin back to Richmond.

[4] In May 2013, a confidential informant (“CI”) told

a member of the Joint Effort Against Narcotics

(“JEAN”) team’ that he could purchase heroin from

Timbs. The police then set up a controlled buy, and on

May 6, 2013, an undercover detective and the CI met

Timbs at an apartment.’ The detective gave the CI the

purchase money, and the CI went inside the apartment

with Timbs and returned with two grams of heroin

that he had purchased for the previously agreed-to

price of $275.

' The JEAN team is composed of members from the Grant

County Sheriffs Department, the Grant County Prosecutor's Of-

fice, and the Marion Police Department.

® This apartment was apparently not Timbe’s residence. See

Tr. pp. 27-28.

App. 15

15] The police set up another controlled buy on May

22, 2013, to take place at a local gas station. This time,

the undercover detective purchased two grams of her-

oin from Timbs for a price of $260. After this transac-

tion, the detective spoke with Timbs about arranging

yet another purchase of heroin. However, on the day

this controlled buy was set to take place, the police in-

stead apprehended Timbs during a traffic stop.

16] On June 5, 2013, 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. On August 5, 2013, the State filed a

complaint for forfeiture, seeking to obtain Timbs’s

Land Rover.

(7] On April 12, 2015, Timbs entered into a plea

agreement with the State whereby he agreed to plead

guilty to one count of Class B felony dealing in a con-

trolled substance and Class D felony theft in exchange

for the State dismissing the remaining charges. The

following day, the trial court accepted the plea and sen-

tenced Timbs pursuant to the agreement to six years,

with one year executed in community corrections and

five years suspended to probation. Pursuant to the plea

agreement, Timbs also agreed to reimburse the JEAN

team $385 for the cost of the investigation and pay a

drug abuse, prosecution, and interdiction fee of $200;

court costs of $168; a bond fee of $50; and a $400 certi-

fied court program fee after undergoing a drug and al-

cohol assessment with the probation department. The

complaint for forfeiture remained pending.

App. 16

{8} On July 15, 2015, the trial court held a hearing on

the forfeiture complaint. At the hearing, Timbs argued

that forfeiture of his Land Rover, which he claimed was

worth over $40,000, constituted an excessive fine,

given that he had only dealt drugs twice, that he was

only convicted for one count of dealing, and that the

maximum statutory fine for his crime was $10,000.

The trial court took the matter under advisement and,

on August 28, 2015, entered an order in favor of Timbs,

which provided in relevant part:

7. The State now seeks a judgment against

the Defendant for forfeiture of the Land

Rover; a vehicle that just five (5) months be-

fore it was seized had a fair market value of

almost four (4) times the maximum monetary

fine of $10,000.

8. The Court finds that the judgment of for-

feiture sought by the State violates the Exces-

sive Fines Clause of the Eighth Amendment

of the United States Constitution. The

amount of the forfeiture sought is excessive

and is grossly disproportional to the gravity of

the Defendant’s offense.

9. While the negative impact on our society

of trafficking in illegal drugs is substantial, a

forfeiture of approximately four (4) times the

maximum monetary fine is disproportional to

the Defendant’s illegal conduct.

Judgment is entered in favor of the Defendant

and against the State. The Land Rover LR2,

at issue, is ordered released to the Defendant

immediately.

App. 17

Appellant’s App. pp. 15-16. The State filed a motion to

correct error on September 14, 2015, claiming for the

sale of the Land Rover from which a non-excessiv» ‘:':

could be deducted.’ The trial court held a heariry ~*

the State’s motion to correct error on October 14, 2U iv,

and entered an order denying the State’s motion on Oc-

tober 21, 2015. The State now appeals.

Staaodard of Review

{9| At trial, the State bore the burden of establishing

the requirements of forfeiture. See Ind. Code § 34-24-

1-4(a). Thus, the State is appealing from a negative

judgment. See Merrillville 2548, Inc. v. BMO Harris

Bank NA., 39 N.E.3d 382, 390-91 (Ind. Ct. App. 2015),

reh’g denied, trans. denied. On appeal, we will not re-

verse a negative judgment unless it is contrary to law.

Id. Here, the State argues that the trial court erred in

determining that the forfeiture of the Land Rover con-

stituted an excessive fine. This court has held that for-

feitures are subject to the Excessive Fines Clause of

the Eighth Amendment to the United States Constitu-

tion. $100 and a Black Cadillac v. State, 822 N.E.2d

1001, 1011 (Ind. Ct. App. 2005), trans. denied (citing

Austin v. United States, 509 U.S. 602, 609-10 (1993)).*

* The State does not reiterate this claim on appeal, and even

if it did, it is well settled that an issue may not be presented for

the first time in a motion to correct error. Van Winkle v. Nash,

761 N.E.2d 856, 859 (Ind. Ct. App. 2002).

* The State claims that there is a question as to whether the

Excessive Fines Clause of the Eighth Amendment is applicable to

App. 18

We review the trial court’s conclusion regarding the

excessiveness of a fine de novo. United States v.

Bajakajian, 524 U.S. 321, 336 (1998).

Discussion and Decision

In rem forfeiture is an ancient concept under

which courts obtained jurisdiction over prop-

erty when it was virtually impossible to seek

justice against property owners guilty of vio-

lating maritime law because they were over-

seas. Civil forfeiture traces to ancient Roman

used to violate the law subject to forfeiture to

the sovereign. Civil forfeiture is no longer

tethered to difficulties in obtaining personal

jurisdiction over an individual. It now serves

as one of the most potent weapons in the judi-

cial armamentarium|.| Civil forfeiture is a

leading method for imposing economic sanc-

tions against narcotics traffickers.

the states via the Fourteenth Amendment. The United States Su-

preme Court has yet to hold that the Excessive Fines Clause is

applicable to the States. See Browning-Ferris Indus., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 276 (1989) (“We shall not decide

whether the Eighth Amendment’s prohibition on excessive fines

applies to the several States through the Fourteenth Amend-

ment.”). But this court held in $100 and a Black Cadillac that the

Excessive Fines Clause did apply to Indiana’s forfeiture statutes.

822 N.E.2d at 1011. We see no reason to disagree with our prior

opinion. We also note that the Indiana Constitution contains its

own provision against excessive fines. See Ind. Const. art. 1, sec.

16 (“Excessive fines shall not be imposed). Because neither side

federal Excessive Fines Clause.

App. 19

Today, all states have statutory provisions for

some form of asset forfeiture, and there are

more than four hundred federal forfeiture

statutes relating to various federal crimes. An

important feature of many of these statutes is

characterization of the process as civil forfei-

ture under which (by contrast to criminal for-

feiture) a property owner need not be found

guilty of a crime — or even charged — to lose

permanently their cash, car, home or other

property. The relative ease of effecting such

forfeiture and the disposition of the assets

have become a matter of prblic note.

Serrano v. State, 946 N.E.2d 1139, 1141 (Ind. 2011) (ci-

tations omitted).

{10} The Eighth Amendment provides, “Excessive

bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. At the time the Constitution was

adopted, “the word ‘fine’ was understood to mean a

payment to a sovereign as punishment for some of-

fense.” $100 and a Black Cadillac, N.E.2d at 1011

(quoting Bajakajian, 524 U.S. at 327). Accordingly, the

Excessive Fines clause of the Eighth Amendment “lim-

its the government’s power to extract payments,

whether in cash or in kind, as punishment for some of-

fense.” Id. (quoting Bajakajian, 524 U.S. at 328) (em-

phasis added) (internal quotation marks omitted). As

noted above, this court has already held that forfei-

tures in Indiana are subject to the Excessive Fines

Clause. Id. (citing Austin, 509 U.S. at 622).

App. 20

{11} To determine whether a fine or forfeiture is “ex-

cessive,” for purposes of the Excessive Fines Clause, we

consider whether the amount of the forfeiture bears

“some relationship to the gravity of the offense that it

is designed to punish.” Id. (quoting Bajakajian, 524

US. at 334). A punitive forfeiture violates the Exces-

sive Fines Clause “if it is grossly disproportional to the

gravity of a defendant's offense.” Id. (quoting Ba-

jakajian, 524 U.S. at 334).°

[12] Here, there is no question that the nature of

Timbs’s offense was serious. He committed a Class B

felony. However, our General Assembly has determined

that a Class B felony should be punishable by a maxi-

mum fine of $10,000. Here, the evidence before the

trial court was that Timbs’s vehicle was worth approx-

imately four times the amount of the maximum fine.

Although we do not suggest that forfeiture of any asset

valued over the maximum fine is automatically a vio-

lation 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. Moreover,

it is undisputed that the Land Rover was not pur-

chased with the proceeds of any criminal behavior; it

was purchased with life insurance proceeds.

* The State claims that the Supreme Court in Bajakajian

“allowled) a forfeiture three times the applicable fine” of $5,000.

This is incorrect. The Supreme Court was abundantly clear that

the only question before it was whether forfeiture of the entire

amount of cash at issue, $357,144, was proper. See Bajakajian,

524 U.S. at 339 n.11.

App. 21

[13] The State notes that an asset may be forfeited

even if the State does not convict the owner of the crim-

inal charge. See Katner v. State, 655 N.E.2d 345, 348

(Ind. 1995) (noting that a conviction on the underlying

criminal activity is not a prerequisite for forfeiture).

Thus, the State argues, it could have sought forfeiture

of the Land Rover even if Timbs had not been con-

victed. However, this does not negate the fact that our

General Assembly has set the maximum fine for the

crime for which Timbs was convicted at $10,000,

whereas the value of the Land Rover was upwards of

$40,000.

[14] We also note that financial burdens had already

been imposed on Timbs when he pleaded guilty. Pursu-

ant to his plea agreement, Timbs agreed to reimburse

the JEAN team $385 for the cost of the investigation

and pay a drug abuse, prosecution, and interdiction fee

of $200; court costs of $168; a bond fee of $50; and a

$400 certified court program fee. Notably, the trial

court imposing the sentence found no need to impose

any fine, much less the maximum fine of $10,000.

[15] The State also argues that the evidence before

the trial court was that Timbs committed criminal acts

other than the one for which he was convicted. This

may be true. However, the complaint for forfeiture re-

ferred only to May 31, 2013.° If the State wished to

* The complaint set forth in relevant part:

1. On or about May 31, 2013, officers of the Plaintiff,

J.E.AN. Team Drug Task Force, seized from the De-

fendant, TYSON TIMBS, One (1) 2012 Land Rover LR2

... in Grant County, Indiana.

App. 22

seek forfeiture of the Land Rover based on Timbs’s

other criminal acts, it should have done so more clearly

in its forfeiture complaint. Moreover, even considering

these other acts, we note that the only evidence before

the trial court was that Timbs sold heroin twice, both

times as a result of controlled buys. The remaining

times he transported heroin, it was apparently for his

own use. The trial court was free to consider these cir-

cumstances in making its determination.

[16] We also find the State’s citation to United States

uv. Aleff, 772 F.3d 508 (8th Cir. 2014), to be unpersua-

sive. In Aleff, the defendants were convicted of conspir-

acy to defraud the federal government and ordered to

pay almost $304,000 in restitution. Thereafter, the fed-

eral government brought suit against the defendants

under the False Claims Act, and the District Court

intended to be furnished by Defendant, TYSON TIMBS,

in exchange for an act that is in violation of a criminal

statute, or used to facilitate any violation of a criminal

statute or is traceable as proceeds of the violation of a

criminal statute under Indiana Law, as provided in I.C.

34-24-1-1.

3. The Defendant, TYSON TIMBS, is the owner of the

vehicle.

WHEREFORE, the Plaintiffs demand judgment

against the Defendant for forfeiture of vehicle, for the

delivery of said vehicle upon forfeiture as provided for

in LC. 34-24-1-1, for reimbursement of law enforce-

ment costs as provided by statute, and for all other re-

lief just and proper in the premises.

Appellant’s App. p. 14.

App. 23

awarded the government treble damages and statu-

tory penalties of over $1,300,000. On appeal, the

Eighth Circuit Court of Appeals held that this was not

grossly disproportionate under the Excessive Fines

Clause. Aleff, 772 F.3d at 512-13. In so holding, the

court noted that the defendants’ scheme to defraud the

government was extensive and took more than six

years. Id. at 513. The defendants “received $303,890

from the public fisc to which they were not entitled,”

and the government “suffered damage to the integrity

of one of its programs.” Jd. More importantly, the dam-

ages recovered by the government were within the lim-

its of damages allowed by the False Claims Act. Jd.

[17] The present case is readily distinguishable from

Aleff. Timbs did not engage in a years-long scheme to

defraud the State, nor did the State here seek to re-

cover treble damages under a false claims statute. It

instead sought to forfeit a vehicle that was not pur-

chased with the proceeds of Timbs’s crimes. Here, the

value of the asset subject to potential forfeiture was

well over the statutory maximum fine, whereas in

Aleff, the damages were more than the actual damages

but still within the statutory maximum allowed under

the False Claims Act.’

' The same holds true for the State’s citation to United States

v. Mackby, 339 F.3d 1013 (9th Cir. 2003), which was also brought

under the False Claims Act. The total damages awarded in that

case were within the statutory limits and the government was di-

rectly defrauded. Jd. at 1018. Although the amount awarded,

$729,455, was much greater than the $58,151 sought by the

App. 24

Conclusion

[18] Forfeiture of the Land Rover, which was worth

approximately four times the maximum permissible

statutory fine, was grossly disproportionate to the

gravity of Timbs’s offense. We therefore affirm the trial

court’s conclusion that forfeiture of the Land Rover vi-

olated the Excessive Fines Clause of the Eighth

Amendment.

[19] Affirmed.

Vaidik, C.J., concurs.

Barnes, J., dissents with opinion.

government, the defendants had filed fraudulent Medicare claims

for which they received payment of $331,078. Id.

App. 25

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana, Court of Appeals Case No.

Appellant-Plaintiff, 27A04-1511-MI-1976

v.

Tyson Timbs and a

2012 Land Rover LR2,

Appellees-Defendants.

Barnes, Judge, dissenting.

[20] I respectfully dissent. I realize that my col-

leagues point to the allegedly “disproportionate” na-

ture of the forfeiture sought by the State here. |

understand their concern. I would simply say as fol-

lows:

[21] Forfeitures are constitutional and, although

some have been found to be excessive, are a useful law

enforcement tool. See U.S. v. Ursery, 518 U.S. 267, 290,

116 S. Ct. 2135, 2148 (1996).

[22] We have ruled that, in limited situations, the Ex-

cessive Fines Clause of the Eighth Amendment may

come into play in a forfeiture case. See $100 and a

Black Cadillac, 822 N.E.2d at 1011-12.

[23] However, it is clear and without conflict in the

evidence that the vehicle here was Timbs’s and was

used to facilitate crime, i.e., to transport Timbs to the

place of an arranged heroin buy. The vehicle did not

App. 26

have only a tangential relationship to the crime or to

the defendant. It should not matter that Timbs com-

mitted the crime using an expensive new Land Rover

rather than an old, inexpensive “beater.”

[24] The majority correctly points out that the record

reflects Timbs “only” sold heroin twice. I simply posit

that Timbs was arrested before the third buy could

take place, and we are left to wonder how much heroin

he had access to.

[25] Iam keenly aware of the overreach some law en-

forcement agencies have exercised in some of these

cases. Entire family farms are sometimes forfeited

based on one family member’s conduct, or exorbitant

amounts of money are seized. However, it seems to me

that one who deals heroin, and there is no doubt from

the record we are talking about a dealer, must and

should suffer the legal consequences to which he ex-

poses himself.

[26] Timbs dealt heroin and got caught. I vote to re-

verse the trial court’s denial of the State’s forfeiture

request.

App. 27

STATE OF INDIANA

IN THE GRANT SUPERIOR COURT 1

COUNTY OF GRANT, SS:

2015 TERM

CAUSE NO. 27D01-1308-MI-92

STATE OF INDIANA, and the

J.E.A.N. Team Drug Task Force,

Marion Police Department, and

Grant Courty Sheriff's

Department, FILED

Plaintiffs AUG 28 2015

ve /s/ Carolyn J. Mowery

CLERK GSC 1

TYSON TIMBS,

One (1) 2012 Land Rover LR2

VIN#SALFR2BG7DH322169,

Defendants

JUDGMENT ORDER

The State appears by counsel, Joshua N. Taylor,

and the Defendant appears in person and by counsel,

Todd Glickfield, for a hearing on the State’s Complaint

for Forfeiture filed on August 5th. 2013. Evidence and

argument are submitted to the Court and concluded.

Having taken this matter under advisement the Court

now finds and orders as follows:

1. On or about January 30th, 2013, the De-

fendant purchased a 2013 Land Rover

LR2 vehicle from Tom Wood Jaguar-Volvo

in Indianapolis for the sum of $42,058.30.

App. 28

At the time of purchase, the Land Rover

odometer read 1,237 miles.

The uncontroverted evidence demon-

strated that the Defendant paid for the

Land Rover, in full, with life Insurance

proceeds he received following his fa-

ther’s death.

Between the date of purchase, and May

31st, 2013, the Defendant drove the vehi-

cle frequently from Marion to Richmond

to purchase heroin. The Land Rover was

used by the Defendant to transport the

heroin back to Marion. The Defendant

both used and sold the heroin. When the

Land Rover was seized by the State at the

end of May 2013, the odometer reading

was between 17,000 and 18,000 miles.

The increased mileage primarily resulted

from the Defendant traveling between

Marion and Richmond to engage in illegal

drug trafficking...

On June 5th, 2013, the Defendant was

charged in Grant Superior Court II under

cause number 27D02-1306-FB-46 with

cwo (2) counts of Dealing in a Schedule I

Controlled Substance, Class B felonies,

and one count of Conspiracy to Commit

Theft, a Class D felony. Ultimately, the

Defendant plead guilty to one (1) count of

Dealing in a Schedule I Controlled Sub-

stance, and Theft. On April 13th, 2015,

pursuant to a written plea agreement, the

Defendant was sentenced to an aggregate

App. 29

term of six (6) years at the Indiana De-

partment of Corrections with one (1) year

executed and five (5) years suspended

and served on formal, supervised proba-

tion. The executed portion of the Defend-

ants sentence is being served on home

detention through the Grant County

Community Corrections Home Detention

Program.

As part of the plea agreement entered

into by the Defendant, he is ordered to re-

imburse the J.E.A.N Team Drug Task

Force $385.00 for costs of investigation;

pay a drug abuse, prosecution, and inter-

diction fee of $200.00; pay court costs of

$168.00; and pay a bond fee of $50.00. Fi-

nally, the Defendant is ordered to un-

dergo a drug and alcohol assessment and

follow through with recommended treat-

ment, and pay a $400.00 Certified Court

Program fee to the Grant County Proba-

tion Department.

The maximum fine for a Class B felony

was $10,000.00 on the date of the Defend-

ant’s arrest in 2013.

The state now seeks a judgment against

the Defendant for forfeiture of the Land

Rover; a vehicle that just five (5) months

before it was seized had a fair market

value of almost four (4) times the maxi-

mum monetary fine of $10,000.00.

The Court finds that the judgment of for-

feiture sought by the State violates the

App. 30

Excessive Fines Clause of the Eighth

Amendment of the United States Consti-

tution. The amount of the forfeiture

sought is excessive, and is grossly dispro-

portional to the gravity of the Defend-

ant’s offense.

9. While the negative impact on our society

of trafficking in illegal drugs is substan-

tial, a forfeiture of approximately four (4)

times the maximum monetary fine is dis-

proportional to the Defendant’s illegal

conduct.

10. Judgment is entered in favor of the De-

fendant and against the State. The Land

Rover LR2, at issue, is ordered released to

the Defendant immediately.

Dated this 28th day of August, 2015.

/s/ Jeffrey D. Todd

Jeffrey D. Todd, Judge

Grant Superior Court No. 1

App. 31

STATE OF INDIANA

IN THE GRANT SUPERIOR COURT 1

COUNTY OF GRANT, SS:

2015 TERM

CAUSE NO. 27D01-1308-MI-92

STATE OF INDIANA, and the

J.E.A.N. Team Drug Task Force,

Marion Police Department, and

Grant County Sheriff's

Department, FILED

Plaintiffs OCT 21 2015

ve /s/ Carolyn J. Mowery

CLERK GSC 1

TYSON TIMBS,

One (1) 2012 Land Rover LR2

VIN#SALFR2BG7DH322169,

Defendant

ORDER

The parties appear in person and by counsel for a

hearing on the Plaintiff’s Motion to Correct Error filed

on September 14th, 2015. Arguments are submitted to

the Court and concluded. Having taken this matter un-

der advisement, the Court now denies the Plaintiff's

Motion to Correct Error in all respects.

Dated this 21st day of October, 2015.

/s/ Jeffrey D. Todd

Jeffrey D. Todd, Judge

Grant Superior Court No. 1

App. 32

STATE OF INDIANA

IN THE GRANT SUPERIOR COURT

COUNTY OF GRANT

2017 TERM

CAUSE NUMBER: 27D01-1308-MI-92

STATE OF INDIANA, and the

TYSON TIMBS, One (1) 2012

Land Rover LR2

VIN#SALFR2BG7DH322 169,

Defendant

Pursuant to the Indiana Supreme Court’s opin-

ion issued on November 2, 2017, judgment is entered

in favor of Plaintiffs and against the Defendant

for forfeiture of ome (1) 2012 Land Rover LR2

VIN#SALFR2BG7DH322169.

SO ORDERED, this 9 day of November, 2017.

/s/ Jeffrey D. Todd

JEFFREY D. TODD, JUDGE

GRANT SUPERIOR COURT 1

App. 33

STATE OF INDIANA) IN THE GRANT COUNTY

)ssx SUPERIOR COURT 1

COUNTY OF GRANT) CAUSE NO. 27D01-1308-MI1-92

STATE OF INDIANA, and

the J.E.A.N. Team Drug

Task Force, Marion Police

Department, and Grant County

Sheriff’s Department,

Plaintiffs,

vs.

TYSOM TIMBS, and

One (1) 2012 Land Rover LR2

VIN#SALFR2BG7DH322 169,

Defendants.

Ne eee eee ee eee ee ee”

ORDER GRANTING DEFENDANTS’ MOTION

TO WITHDRAW ORDER OF JUDGMENT AND

SUSPEND PROCEEDINGS PENDING APPEAL

TO THE UNITED STATES SUPREME COURT

The Court, having considered Defendants’ Motion

to Withdraw Order of Judgment and Suspend Proceed-

ings Pending Appeal to the United States Supreme

Court and all related filings and being duly advised,

now GRANTS said motion. Accordingly, the Court WITH-

DRAWS its prior Order of Judgment dated November

9, 2017. Further proceedings are hereby STAYED

pending the resolution of all appeals.

App. 34

SO ORDERED, this 15 day of November, 2017.

All Counsel of Record through the Court’s ECF system