Earlier this year, we warned you about Civil Asset Forfeiture, a law that allows the government to take your assets if they feel they were used in a crime or gained from the proceeds of a crime.

Finally, the Supreme Court is taking a look at the law, which may have some implications for Kansas, which has some of the most far-reaching asset forfeiture laws in the country. 

Tyson Timbs made a mistake, but he wants, and believes he deserves, his Land Rover back.

Timbs, 37 and an admitted former drug addict, sold a few grams of heroin worth less than $400 to undercover police officers in 2013. He was driving the Land Rover when the Richmond, IN, authorities arrested him and seized the SUV under the state’s Civil Asset Forfeiture law.

The maximum fine Timbs could have received for the crime was $10,000, but Timbs had purchased his vehicle for $42,000.

The basic question before the Supreme Court is whether Eighth Amendment protection from “excessive fines” applies to civil asset forfeiture at the state level. Most of the Bill of Rights is “incorporated,” meaning it applies to states. For example, a state can’t enact a law limiting the First Amendment right to free speech.

If the justices rule that the Eighth Amendment protection does apply on a state level – which they may – hefty fees, fines and forfeitures imposed by state and local governments may be in jeopardy.

Two dozen friend-of-the-court briefs were filed on Timbs’ behalf from groups as diverse as the U.S. Chamber of Commerce and the Southern Poverty Law Center. Their arguments point to a trend that has resulted in some 10 million people owing more than $50 billion, according to a study by the John F. Kennedy School of Government at Harvard University and the National Institute of Justice. It’s a trend both the court’s conservative and liberal justices seemed to find objectionable.

“I don’t actually understand your argument,” Associate Justice Sonia Sotomayor told Indiana Solicitor General Thomas Fisher, who defended states’ right to impose property forfeitures despite the Eighth Amendment’s protections. “If we look at these forfeitures that are occurring today … many of them seem grossly disproportionate to the crimes being charged.”

Among examples cited by left- and right-wing groups:

A Missouri couple racked up $180,000 in fines for lacking turf grass in their yard.

A Michigan man who underpaid his 2011 property tax by $8.41 had his property auctioned off for $24,500.

A Florida homeowner who did not register a burglar alarm with the local government accrued $75 daily fines, resulting in a $115,625 lien on his property.

Timbs’ conviction resulted in a year’s home detention, five years’ probation and about $1,200 in fees. But it was the seizure of his SUV, purchased with life insurance proceeds after his father’s death, that led to the lawsuit.

Not all the justices were convinced the state acted irresponsibly in taking the car. Chief Justice John Roberts said states routinely seize property used in committing crimes. Associate Justices Samuel Alito and Stephen Breyer wondered why a hefty penalty would be considered excessive while a lengthy prison term would not.

What if the vehicle seized had been a “15-year-old Kia,” Alito wondered, or “a Bugatti, which costs like a quarter of a million dollars?” Wesley Hottot, Timbs’ lawyer, said any forfeiture could be deemed excessive when compared to the crime.

“I think in this instance, any forfeiture of the vehicle would be excessive because this vehicle was not instrumental to this crime,” Hottot said. “It was incidental.”

Applying the Bill of Rights

Many of the seemingly excessive fines and forfeitures are contested and later reduced. But a ruling from the Supreme Court that clearly applies the Eighth Amendment’s prohibition could cut down on their imposition in the first place.

The case represents the latest effort to determine what portions of the Bill of Rights apply to the states.

Most rights, such as the Second Amendment’s right to bear arms for self-defense, have been extended. But others, such as the right to a unanimous jury verdict under the Sixth Amendment, have not.

“Here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Associate Justice Neil Gorsuch marveled.

Paying for municipal services

The state’s seizure of Timbs’ Land Rover was defended by several national municipal groups. They argued in court papers that the vehicle was used in heroin trafficking that may have generated profits equal to its price, and that its forfeiture properly left Timbs without the ride he needed for his craft.

The groups’ support is not surprising. State and local governments increasingly use funds collected in criminal and civil cases to pay for municipal services. The 100 cities with the highest proportion of revenue from fines and fees in 2012 financed between 7% and 30% of their budgets that way, the ACLU said.

“Perhaps because they are politically easier to impose than generally applicable taxes, state and local governments nationwide increasingly depend heavily on fines and fees as a source of general revenue,” its friend-of-the-court brief said.

The practice often leads low-income defendants further into poverty, crime, prison and recidivism, the liberal Southern Poverty Law Center and libertarian Cato Institute argued in court papers.

The American Bar Association noted that nearly two-thirds of prisoners have little prospect of paying fines and fees upon their release.

After Indiana’s solicitor general tried to argue that the Excessive Fines Clause doesn’t apply to the states, “Gorsuch then told the Indiana SG that he was going to lose, and if he kept arguing the merits, he’d lose even worse,” according to Slate’s Mark Joseph Stern. “Gorsuch was smiling like the cat that caught the canary.”

The Supreme Court can take weeks or months to decide a case after arguments have been heard.

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