# Petition for Writ of Certiorari — Timbs v. Indiana, 139 S. Ct. 45 (2018) (No. 17-1091) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0812%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2018 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0812%3A02. Public record. Not legal advice.