This post was written by Associate Editor, Tanner Duncan. The views and opinions expressed herein are those of the author alone.
Imagine you are driving down the highway when suddenly, blue lights flash in the rearview mirror. Your heart sinks as you pull the car over to the side of the road. As you check your mirror, instead of seeing the standard Crown Victoria police cruiser or maybe even a Chevy Charger, you spot a customized racing Corvette with over 1,000 horsepower; a perplexing trophy for a publicly funded local police department.
Seized in connection with a drug raid in Texas, a Corvette of that very description is now the prized possession of the New Braunfels Police Department. Corvettes, Hummers with bumper stickers flashing “I used to belong to a drug dealer,” large sums of cash, and even homes can all be seized in a procedure known as civil forfeiture. In many cases, seized personal property winds its way back into the hands of local police departments. However, in a recent unanimous United States Supreme Court decision, Timbs v. Indiana, civil forfeiture may look quite different in the future, if it remains at all.
Civil forfeiture is defined as, “an in rem proceeding brought by the government against property that either facilitated a crime or was acquired as a result of criminal activity.” Separate from the criminal case against the person, this civil suit brought against property can range from a car used to smuggle drugs, a house used to manufacture street drugs, or even large sums of cash merely suspected of being used to purchase drugs. The initiation of an in rem civil suit (referring to a case in which property rather than a person is the defendant) prevents the owner from participating in the case despite the owner being the one deprived of the property. Further, the personal property targeted by an in rem action does not have all the constitutional protections as a person would in a criminal case. As a result, targeted personal property is frequently seized by the government with relative ease.
In 2015, Tyson Timbs pleaded guilty to dealing a controlled substance and conspiracy to commit theft in an Indiana state court. Timbs had recently purchased a Land Rover SUV valued at $42,000 from the proceeds of his father’s insurance policy following his father’s death. Authorities attempted to seize the vehicle, alleging that it had been used to transport heroin in Mr. Timbs’ underlying crime. Both the trial court and the appellate court denied the state’s attempt, holding the seizure unconstitutional under the Eighth Amendment’s Excessive Fines Clause as the value of the vehicle was more than four times the maximum fine attributable to Mr. Timbs ($10,000). Despite the underlying courts’ decisions, the Indiana Supreme Court reversed, allowing the seizure of the vehicle through an in rem civil action.
Justice Ginsberg wrote the opinion for a unanimous court in Timbs v. Indiana, which selectively incorporated the Excessive Fines Clause of the Eighth Amendment; one of the few clauses left to be selectively incorporated. Reciting the well-known standard, the Excessive Fines Clause was recognized as “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Impliedly admonishing the Indiana Supreme Court, Justice Ginsberg opined that, “there is no daylight between the federal and state conduct it prohibits or requires.” Even with the incorporation of the Clause, the Court was neither instructive of what circumstances invoke the right against excessive fines nor what qualifies as an excessive fine. Each in their own concurrences, Justice Gorsuch and Justice Thomas identified the Fourteenth Amendment’s Privileges and Immunities Clause as the proper vehicle for incorporation, though each agreed in the conclusion.
But how could the Indiana Supreme Court get it so wrong? Both the U.S. Constitution and the Indiana Constitution disallow excessive fines. However, a deeper dive into the nature of civil forfeiture reveals a lucrative operation in which states, particularly their police departments, heavily rely upon forfeiture revenues. Will Timbs be the end of civil forfeiture, spelling disaster and bankruptcy for local police departments?
The reality is that Timbs has raised more questions than it has answered. Despite the opinion being released on February 20, 2019, a United States District Court opinion for the Northern District of Florida was released on March 5, 2019 which found Timbs unhelpful in determining what constitutes an “excessive fine.” United States v. Masino involved a Florida police department seizing proceeds of criminal offense. The Masino court identified that a limit could be set on the seizure of personal property at a fixed amount multiplied by the maximum penalty. This approach is not unheard of, as the Supreme Court has previously put a cap on punitive damage awards in civil cases as a constitutional matter.
The second approach, which the Masino court chose to follow, satisfies the proportionate amount by determining how the property was acquired. In this way, the court distinguished the seizure of Timbs’ SUV as unconstitutional as it was purchased with “clean” money through the proceeds of his father’s insurance policy whereas the cash seized in Masino would be permissible as it was laundered money. If the Masino approach is permissible, it seems Timbs did little to rein in civil forfeiture, let alone usher it into extinction.
Despite rumors of a new wave of selective incorporation cases for civil cases, it seems that Timbs stands as a necessary yet unmalleable pillar in a progression of cases targeting the abuses of civil forfeiture. If nothing else, Timbs seems to expose the “legal fiction” of civil forfeiture: a “criminal-esque” punishment in the form of a one-sided civil case. For now, it seems the best approach of dealing with the abuses of civil forfeiture lies within each state’s legislature. Until then, civil forfeiture remains a legal means for authorities to seize personal property without charging anyone with a crime, ignore the presumption of innocence, and sidestep due process.
 Will Sabel Courtney, Texas Police Department Scores 1,005-HP Chevy Corvette Z06 Cop Car, The Drive, (March 26, 2019, 3:31 PM), https://www.thedrive.com/news/10658/texas-police-department-scores-a-1005-hp-chevy-corvette-z06-cop-car/.
 Timbs v. Indiana, 139 S. Ct. 682 (2019).
 Civil forfeiture, Black’s Law Dictionary (10th ed. 2014).
 In rem, Black’s Law Dictionary (10th ed. 2014).
 3 Criminal Constitutional Law § 14B.04.
 See Id.
 U.S. Const. amend. VIII.
 See Robinson v. California, 370 U.S. 660 (1962) (where protection against cruel and unusual punishment was selectively incorporated) and Schilb v. Kuebel, 404 U.S. 357 (1971) (argued to have selectively incorporated protection against excessive bail).
 Timbs at 686-87 citing McDonald v. Chicago, 561 U. S. 742, 767 (2010).
 With the admitted exception of the Sixth Amendment requirement of jury unanimity in federal, but not state, criminal proceedings; Timbs at 687.
 U.S. Const. amend. VIII; Ind. Const. Art. 1, § 16.
 See generally Adam Crepelle, Article: Probably Cause to Plunder: Civil Asset Forfeiture and the Problems it Creates, 7 Wake Forest J. L. & Pol’y 315 (2017).
 United States v. Masino, 2019 U.S. Dist. LEXIS 34862 (N.D. Fla. Mar. 5, 2019).
 Id. at *31 citing United States v. Bajakajian, 524 U.S. 321 (1998).
 See State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) (where the Court limited punitive damages awards in civil cases to single-digit ratios as compared to the compensatory award).
 Masino at *36-37.
 Crepelle, supra, note 12, at 341-42.
 See generally Crepelle, supra, note 12.