Indiana Supreme Court Finds Law Enforcement Can Keep Forfeiture Funds

J. Justin Wilson
J. Justin Wilson · June 28, 2019

Late yesterday, the Indiana Supreme Court ruled that police and prosecutors can keep and use the money they seize, rather than transferring the money to the state’s Common School Fund. The decision contradicts a state constitutional requirement that “all forfeitures which may accrue” must be paid into a fund for the benefit of public education.

The court’s decision, which came in response to a lawsuit brought by the Institute for Justice on behalf of two Indiana taxpayers, allows the state’s law enforcement agencies to keep nearly everything they seize under the guise of it being reimbursement for their expenses.

The ruling came just hours before the same court held a rehearing in Timbs v. Indiana—a second forfeiture case that challenged the constitutionality of the state’s ability to seize and keep an automobile. The case came back to Indiana after the United States Supreme Court ruled in February that the Indiana Supreme Court had erred when it held that the Excessive Fines Clause of the U.S. Constitution did not apply to state law enforcement.

“The Indiana Constitution makes it clear that all money seized by law enforcement must go to benefit the state’s schools, not the police and prosecutors who seized it,” said Sam Gedge, an attorney at the Institute for Justice. “But the court disagreed, and in doing so, preserved the perverse profit incentive baked into the state’s civil forfeiture law.”

The case started in 2016, when the Institute for Justice partnered with Jack and Jeana Horner to sue to end the Indianapolis Metropolitan Police Department’s practice of keeping 100 percent of civil forfeiture proceeds for itself.

The Horners have seen firsthand the human cost of Indianapolis’ profit-fueled forfeiture program. In 2013, they lent two of their vehicles to their adult son to help him get back on his feet after a run-in with the law. While driving one of the vehicles within Marion County, their son was pulled over and arrested. Police seized the vehicle and then drove to another location to seize the Horners’ other vehicle.

Even though Jeana and Jack had nothing to do with their son’s misbehavior, it took them more than nine months to get their cars back. Nearly a year after the vehicles were seized—and after Jack, who was critically ill, had already bought a replacement car—a court ordered the government to return the Horners’ property.

“We’re disappointed in today’s decision,” said IJ Senior Attorney Wesley Hottot, who argued the Timbs case before the U.S. Supreme Court. “Civil forfeiture is one of the greatest threats to property rights in America today, and the courts must ensure that it does not go unchecked. By allowing police to directly benefit from the money they seize, the court has allowed an unconstitutional practice to remain in place. But we remain hopeful. Across the country, Americans are becoming increasingly frustrated with civil forfeiture. Since 2014, 33 states have reformed their civil forfeiture laws. So now we’ll turn our attention to the Indiana General Assembly and ask them to pass meaningful reforms that not only protect Indianans’ property rights, but also remove the financial incentive to police for profit, rather than protect the public.”