Despite losing in the United States Supreme Court, the state of Indiana is still arguing that there are virtually no eighth amendment limits on what it can seize using civil asset forfeiture, according to Reason.
In fact, Indiana Solicitor General Thomas Fisher argued in Indiana Supreme Court last week that it would be constitutional to seize any and every car that exceeded the speed limit. It was an argument that drew laughter from the U.S. Supreme Court last year.
"This is the position that we already staked out in the Supreme Court when I was asked by Justice Breyer whether a Bugatti can be forfeited for going over five miles over the speed limit. Historically the answer to that question is yes, and we're sticking with that position here."
The issue has been brought to light as a result of the Indiana Supreme Court reconsidering a case where a 2015 seizure of Tyson Timbs' $42,000 Land Rover, after he was convicted of a drug felony, was argued to have violated his eighth amendment protections against excessive fines and fees.
In February, the United States Supreme Court reversed the Indiana Supreme Court’s ruling that Timbs "could not challenge the seizure on Eighth Amendment grounds because the excessive fines clause had not yet been applied, or 'incorporated,' to the states."
It also brought to light the power of the practice, which allows authorities to seize property suspected of being connected to criminal activity. The Indiana Supreme Court will now have to figure out how to determine whether a civil forfeiture is excessive or not. The result could either check - or reinforce - the state government’s power.
Lawyers for the Institute for Justice, a libertarian-leaning public interest law firm, argued that the seizure of Timbs' car, which was not purchased with drug proceeds and was worth four times the maximum fine for his crime, was a disproportional punishment.
The Institute for Justice had to petition the US Supreme Court to review the case after the Indiana Supreme Court ruled against Timbs. The state argued that the excessive fines clause did not apply to the practice of civil asset forfeiture which operates under the legal fiction that it is an action against the property itself, not the owner.
Both sides of the aisle in the U.S. Supreme Court have expressed skepticism about civil asset forfeiture in past rulings and they were not impressed by Fisher's argument. A judge even forced counsel for the state of Indiana to admit it would be constitutional to then seize any car going over the speed limit.
The state of Indiana, although forced to recognize that the Eighth Amendment applies to civil forfeiture, now insists that the test that should apply to determine whether the seizure was excessive is not the proportionality, but rather whether the government can prove a nexus between Timbs' car and the illegal activity - a standard that would put virtually no check on the amount of property police could seize as long there was some connection to a crime.
Justice Loretta Rush pushed back on the argument:
"So where's the limits? If the state decides you're going over x miles per hour so we're going to take your car, is there any limit to that government power?"
"No, look, I've gone out on a limb on the Bugatti, and I don't think I'm going back."
Institute for Justice lawyer Sam Gedge said:
"Indiana has resorted to an increasingly dangerous view of governmental power over the years it has been fighting to keep Timbs' car. In the State's view, it can constitutionally forfeit a Bugatti that goes five miles over the speed limit. And the State insists that it can take any property from any person who has ever struggled with drug addiction. That boundless view of governmental power cannot be squared with the Constitution."