Bloomberg Law
Nov. 21, 2018, 2:52 PM

Business, Progressives Unite at Supreme Court Against Big Fines

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

Business interest groups and social progressives aren’t known for seeing eye to eye. But their opposition to what they consider to be Indiana’s heavy handed asset forfeiture practice has brought them together at the U.S. Supreme Court.

The ACLU, the U.S. Chamber of Commerce, and more than a dozen other groups are siding with Tyson Timbs, whose 2012 Land Rover was seized by the state in a civil action following his conviction on drug charges.

They stressed in briefs ahead of oral arguments in Timbs v. Indiana set for Nov. 28 that the forfeiture of his $40,000 SUV far exceeded the maximum possible fine for his crime involving heroin under Indiana law.

But they also believe it’s high time the high court make clear that states follow federal law against imposing such excessive fines.

“Driven by a quest to generate revenue and to fund state and local justice systems, the explosion of fines, fees, and forfeitures has buried people under mountains of accumulating debt,” the ACLU said in its friend-of-the-court brief, stressing that this unfairly impacts low income people across the country.

The Chamber of Commerce argued for a uniform approach in its brief, saying that businesses have faced the prospect of large state fines for relatively small violations on the “deep pockets” theory that companies can afford it. The practice, it says, needlessly drives up costs for business and consumers.

Apply to States

Also weighing in for Timbs on the left are the NAACP Legal Defense & Educational Fund, and the National Association of Criminal Defense Lawyers, and Judicial Watch and the Pacific Legal Foundation on the right.

The case hinges on whether the Eighth Amendment’s prohibition of excessive fines should apply to the states under the Supreme Court’s incorporation doctrine.

“Almost all rights listed in the Bill of Rights have been incorporated” to the states, said Pacific Legal Foundation’s Christina Martin, whose group filed an amicus brief in the Timbs case.

Only a few procedural rights including grand jury indictment, the right to a jury in civil trials, and jury unanimity don’t apply to states. The last time the court ruled on an incorporation case was 2010’s McDonald v. Chicago, a 5-4 decision on the Second Amendment’s right to keep and bear arms.

Besides the excessive fines clause, the only right that hasn’t “been ruled on either way in the Supreme Court is the Third Amendment’s protection against quartering of soldiers,” Martin said.

Indiana Court Disagrees

The Indiana Supreme Court disagreed with Timbs, and the position now taken by his supporters. It ruled in the case that brought the matter before the justices that the U.S. Supreme Court has never expressly incorporated the clause to the states.

Piggybacking on the controversy in Ferguson, Missouri, many of the amicus briefs argue that incorporating the excessive fines clause could rein in what they describe as local jurisdictions using “forfeiture as a way of raising money rather than as a legitimate tool for law enforcement,” Gerard Magliocca, a professor at Indiana University’s Robert H. McKinney School of Law, told Bloomberg Law.

The author of the sole brief in support of the state, Lawrence Rosenthal of Chapman University Dale E. Fowler School of Law in Orange, Calif., writing on behalf of municipal organizations, conceded that viewing the case at that abstract level makes it seem like an easy win for Timbs.

But he said that forfeiture of Timbs’s Land Rover didn’t “offend” the Constitution.

“Instead, forfeiture of this character advances legitimate governmental interests,” he said.

These include fighting the opioid crisis, especially seizures of vehicles used to transport the those drugs, Rosenthal said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at