Nathan Potter, Associate Member, University of Cincinnati Law Review
Timbs v. Indiana continues the swing away from the almost absolute discretion that many state governments give to law enforcement.  The Supreme Court of the United States held that the seizure of Timbs’s SUV was a violation of the Eighth Amendment and applied the Amendment to the states through the Due Process Clause of the Fourteenth Amendment. Specifically, the Supreme Court stated that the Eighth Amendment applies to in rem cases. That is because civil forfeiture is not a case against the owner of the thing, it is against the thing itself.
Why is the distinction of being against the thing, instead of the owner, an important one? It comes down to rights. A thing has no right to due process. It has no right to an attorney. It has no right to stop itself from being seized. This is how in rem civil forfeiture in this country has been growing rampant over the last several decades. Law enforcement has had the ability to seize property, which it thinks is involved in a crime, without any concrete process to allow the owner to reclaim the property. Moreover, law enforcement can seize your property without charging you with a crime.
The difference between civil forfeiture and criminal forfeiture is an important one. In criminal forfeiture, the proceedings are against the person, not the thing, and seizure occurs if and after the person is found guilty of the accusation. This is the correct way to perform forfeiture because it prevents people who are convicted of a crime from benefitting from that crime after they serve their sentence. To the contrary, civil forfeiture involves no due process and typically requires the—uncharged or not convicted—individual to take his or her local law enforcement to civil court to reclaim the individual’s property. The idea is that the property, itself, is the guilty party and the property has no rights. And even if the individual is convicted of a crime, sometimes the civil forfeiture is disproportionately excessive. This was the issue in Timbs.
Timbs pled guilty to selling less than $400 (not $4,000, not $40,000) worth of drugs. He was sentenced to: one year of home detention, five years of probation, and required to pay $1,203 in fees and costs. But, this was not enough for the state of Indiana. Local law enforcement determined that it was appropriate, even necessary, to use civil forfeiture to seize Timbs’ $42,000 Land Rover. The Supreme Court even pointed out that this seizure was for a value greater than four times the maximum fine which could be collected from Timbs in this case. If this does not shock you, then no abuse of law enforcement power will.
The Supreme Court disagreed with all of the state of Indiana’s arguments. The state attempted to argue that: (1) the fine was not excessive; (2) a civil forfeiture cannot be categorized as a fine; and (3) that the Excessive Fines Clause cannot be incorporated against the states. Justice Ginsberg noted that the value of the SUV was more than four times the maximum fine imposable on Timbs. Additionally, the Supreme Court declined the state’s second argument, noting that civil forfeiture was categorized as a fine in Austin v. US when the forfeiture was at least partially punitive. The third argument is the one which held the most merit for the state and provided the largest opportunity for Justice Ginsberg to convey the ideology of the Court. Justice Ginsberg wrote: “Similarly here, regardless of whether application of the Excessive Fines Clause to civil in rem forfeitures is itself fundamental or deeply rooted, our conclusion that the Clause is incorporated remains unchanged.”
Timbs is a huge win for United States citizens. While it does not eliminate civil forfeiture, it does remove the excessive cases. No longer shall law enforcement be able to take a parent’s house if their son is busted for dealing drugs. Nor will highway patrolmen be able take $10,000 from a pregnant couple with no criminal charges issued. However, it is important to focus attention to the parties that can change the law. Timbs should be seen as a victory for citizen’s rights, not as a victory against law enforcement. The proper action to eliminate civil forfeiture is to inform elected officials of your views and to push them to finish what the Supreme Court has started.
 Timbs v. Indiana, No. 17-1091, 2019 U.S. LEXIS 1350 (Feb. 20, 2019).
 Timbs, No. 17-1091 at *12.
 See Sarah Stillman, Taken, The New Yorker, https://www.newyorker.com/magazine/2013/08/12/taken (last accessed March 3, 2019).
 Timbs No. 17-1091 at *6.
 Lauren Cahn, 14 Bizarre Things the Government Actually Has the Power to Do, Reader’s Digest, https://www.rd.com/culture/bizarre-government-powers/ (last accessed Mar. 3, 2019).
 Timbs, No. 17-1091 at *5.
 Id. at 13.
 Id. at 14.
 Brown, Pamela, Parents’ House Seized After son’s Drug Bust, CNN (Sept.8, 2014), https://www.cnn.com/2014/09/03/us/philadelphia-drug-bust-house-seizure/index.html.
 Deanna Paul, Police Seized $10,000 of a Couple’s Cash. They Couldn’t get it Back—Until They Went Public, Washington Post (Aug. 31, 2018), https://www.washingtonpost.com/nation/2018/09/01/police-seized-couples-cash-they-couldnt-get-it-back-until-they-went-public/?utm_term=.4ac9bb5bfda7.