January 31, 2019

On a blustery day in late November, IJ argued before the justices of the U.S. Supreme Court in Timbs v. Indiana, a civil forfeiture case that will make constitutional history.

As you’ll recall, in this case we ask the Court to rule on whether the Eighth Amendment’s Excessive Fines Clause applies to state and local governments. After the Indiana Supreme Court ruled that the Clause puts no check on state and local authorities, IJ took the case to the high court on behalf of forfeiture victim Tyson Timbs.

Although it is always risky making predictions about the outcome of cases based on the argument alone, I can report with confidence that Tyson, IJ, and the Eighth Amendment had a very encouraging day at the Court.

As we were the petitioners, IJ Senior Attorney Wesley Hottot argued first. During his presentation, only Justices Alito and Roberts expressed concerns about the test the Court might use to determine at what level a fine or forfeiture becomes excessive. Wesley kept the focus, though, on the question actually before the Court: whether the Excessive Fines Clause applies to the states at all.

The state of Indiana argued next, and the solicitor general immediately ran into a buzz saw of tough questions and skepticism from justices across the ideological spectrum. Justice Gorsuch pressed the state hard on how it could even be possible, given our constitutional history, to argue that the Excessive Fines Clause is not incorporated against the states. Justice Kavanaugh asked whether it was “just too late in the day to argue that any of the Bill of Rights is not incorporated.”

Justice Breyer focused on the sweep of civil forfeiture statutes. He posed the hypothetical question of whether it would be acceptable under the state’s theory for the government, in a desire for revenue, to forfeit any vehicle that drove even five miles over the speed limit, be it a “Bugatti, [a] Mercedes, or a special Ferrari or even [a] jalopy.” The solicitor general ultimately conceded: “Yes, it’s forfeitable.” Justice Sotomayor immediately expressed concern about the dangers inherent in modern civil forfeiture laws, analogizing them to the Star Chamber of early modern England.

After the argument, the IJ litigation team and Tyson gathered outside the Supreme Court to talk to the press. It was wonderful to see Tyson, a man who has overcome drug addiction, step up with humility and courage to describe to the public why he chose to take a stand. IJ scored substantial features in nearly every major mainstream media outlet that covers the Court, and much of the early coverage reflected IJ’s optimism for a favorable outcome. We expect a decision in the next few months.

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