Awaiting the Verdict in Timbs v. Indiana
2018-12-08 · Guest: Sam Gedge (Attorney, Institute for Justice) · 51:00
Timbs v Indiana and Civil Asset Forfeiture
Bob Zadek sits down with Sam Gedge, an attorney at the Institute for Justice, to discuss the landmark Supreme Court case Timbs v. Indiana. The conversation explores the history of civil asset forfeiture, the “incorporation” of the Bill of Rights to the states via the 14th Amendment, and the specific challenge to the Eighth Amendment’s Excessive Fines Clause.
Topics: Timbs v. Indiana, civil asset forfeiture, Eighth Amendment, Excessive Fines Clause, 14th Amendment, incorporation doctrine, Institute for Justice, policing for profit, equitable sharing
Speakers:
- Bob Zadek — Host
- Sam Gedge — Attorney, Institute for Justice
- Caller (Even) — Listener
The Story of Tyson Timbs [00:00]
Bob Zadek: Hello everyone, welcome to The Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thanks so much for listening this sunny fall Sunday morning. Welcome to my show. We are always the show of ideas, never, ever the show of attitude. Thanks so much for listening.
This morning’s show, we learn the story of a low-level drug dealer, Tyson Timbs. Tyson Timbs, I dare say, had no idea when his metal-tipped boots, which he wore on the factory floor, would lead him down a road to change the interpretation of the Constitution, to strike an important blow for liberty, to help bring back into balance the relationship between citizens and their government, and to extend the reach of the Eighth Amendment to the Constitution. But all of that is highly likely to happen.
This morning we learn the story of Tyson Timbs v. Indiana. Tyson Timbs altering, for the better, the scope of the Bill of Rights and the Constitution. Tyson Timbs was a low-level drug dealer who got caught. His story is fascinating. He was represented in his trip up the judicial ladder from the Indiana State Court to the Indiana Supreme Court to the United States Supreme Court. Who better to help us understand this journey of Tyson Timbs and the effect on the Constitution than one of Mr. Timbs’ counsel, who represented Tyson Timbs in the Supreme Court in a case heard just about a week or so ago. With that introduction, I’m happy to welcome to the show Sam Gedge. Sam Gedge is an attorney at my super favorite, beyond all other favorites, organization, the Institute for Justice. I have been a passionate and committed fan of IJ since I first learned of their existence about a decade or two ago. Sam is an attorney with IJ. He joined them in June of 2015 after an impressive career. He’s a Harvard Law graduate, graduated cum laude from Harvard Law School in 2010, has clerked at the Court of Appeals level in the federal judiciary, and has litigated civil asset forfeiture cases and licensing cases since his joining IJ in 2015. Sam, welcome to the show this morning.
Sam Gedge: Well, thanks for having me, Bob. I’m thrilled to be here.
Bob Zadek: So Sam, introduce us to Tyson Timbs. His existence started quite modestly, and how did he get to command an hour of highly valuable showtime on a Sunday morning on a libertarian talk radio show? Tell us the story of Mr. Timbs.
Sam Gedge: Sure. So it’s a somewhat unusual story in many ways. Tyson lives in rural Indiana. He has for a number of years, worked in a factory, still works in a factory. And a number of years ago he became addicted to painkillers after, as you mentioned, he suffered a foot injury. His painkiller addiction escalated to heroin addiction. And then in 2012, he actually had a windfall. He had a stroke of good luck, in part, I suppose. So after his dad died, he ended up with a $70,000 life insurance policy. It’s a lot of money. And he spent about half of that on a new car. Just a few months after that, though, he had an encounter with someone who ended up being a confidential informant. Now, Tyson wasn’t a drug dealer; he was an addict. But the confidential informant hooked him up with people who ended up being undercover police officers. Tyson ended up selling them a very small amount of heroin, and they arrested him. He was convicted of a low-level drug offense. But at the same time, police in Indiana decided to seize his new car as well. And that is the first step that really ended up bringing him recently to the US Supreme Court.
Civil Asset Forfeiture and Policing for Profit [02:30]
Bob Zadek: Now Sam, let me just interrupt for a moment. When you said “seize his new car,” they seized the car under a process known as civil asset forfeiture, a topic we have discussed on this show many times. But help our audience understand what right law enforcement has to “seize a car.” We know they have a right to imprison you pursuant to sentencing guidelines, they have a right to fine you—more about fines in a moment—but how could they just seize his car?
Sam Gedge: So civil forfeiture is really one of the greatest threats to property rights in the nation today. It allows state, local, and federal governments to take your cars, your cash, your homes, oftentimes without even convicting you of a crime or even charging you with a crime. It has a long history dating back to the 19th century with pirate ships and smugglers, but in recent decades, it’s really exploded. So virtually every state and at the federal level, you see law enforcement officers having this enormous power not just to charge you and convict you of criminal offenses, but to strip you of your property as well.
Bob Zadek: And they do so with the federal government being a behind-the-scenes cheerleader under a related process called “equitable sharing.” And that’s a phrase we have discussed on this show from time to time. So the federal government, though it wasn’t true in this case, but generally provides a statutory inducement of local law enforcement to seize property under a policy called—we call it—policing for profit. So equitable sharing—the federal government is somewhat of a cheerleader in this oppressive, obnoxious process, aren’t they?
Sam Gedge: That’s exactly right. One of the most dangerous aspects of civil forfeiture nationwide is not just that the burden of proof is often lower than a criminal conviction, but oftentimes the very police and prosecutors who are deciding whether to take your property, whether to forfeit your car or your home, are the same agencies that stand to benefit financially from doing so. In most states and at the federal level, that money goes straight back into the coffers of the same agencies that are responsible for the seizures. And you’re right, this notion of equitable sharing really raises another facet of the problem. Because some states have recognized that there’s a problem with financially incentivizing law enforcement, so they’ve tried to create state law checks on the worst abuses of civil forfeiture. But at the same time, the federal government has a work-around for state law enforcement, under which local or state police who seize property, if they don’t want to proceed through more onerous state law procedures, they can instead hand the money over to the federal government, which then proceeds under more lenient federal procedures and then funnels a lot of that money right back to those same state and local law enforcement agencies.
Bob Zadek: So the federal government is the “uber fence.” They take all this property that local law enforcement takes from miscreants, from people who have alleged to commit a criminal act—and I say “alleged,” as Sam said, you don’t have to be—it doesn’t have to be proven, you don’t have to be convicted, only alleged, only probable cause.
The Eighth Amendment and Incorporation [06:00]
Bob Zadek: Okay, back to Tyson Timbs. So Tyson Timbs gets busted and the police take his car, the $42,000 car, because they are allowed to. Now, why does IJ care? Why does the US Supreme Court care? Since this is all provided for by statute, Sam, what’s the big deal?
Sam Gedge: Well, so the Indiana Supreme Court really stumbled into an important unsettled question of federal constitutional law in Tyson’s case. Now, I’ll just note up front that IJ wasn’t actually involved in Tyson’s case until the US Supreme Court level. But throughout the state court system, there was not really much of a dispute that under Indiana statute, Tyson’s car would be subject to forfeiture. But the trial court said that, statutes aside, taking Tyson’s most valuable piece of property was so disproportionate to his criminal offense that it was an excessive fine, and so it violated the Eighth Amendment’s Excessive Fines Clause. Now, that’s what the trial court said. The intermediate court in Indiana agreed. And then the case got to the Indiana Supreme Court, where things took a really weird turn.
Bob Zadek: Sam, let me just interrupt if I can. Sam, you said the Eighth Amendment Excessive Fines Clause. Our audience may not have the Eighth Amendment committed to memory. Tell us what you mean by the Eighth Amendment Excessive Fines Clause, so we bring into the discussion the constitutional and historic implications of excessive fines.
Sam Gedge: That’s exactly right. So the Eighth Amendment has three separate protections. The one that most people are familiar with is the protection against cruel and unusual punishments, and you see that protection arising oftentimes in capital cases where people are on death row. Another less known provision is the right to be free from excessive bail. And then the final protection is the right to be free from excessive fines. In other words, to be protected against the government imposing disproportionate, crippling economic sanctions on you. And it’s that final provision that really came into focus in Tyson’s case, where you have two levels of the state judiciary saying that taking his $42,000 car is an excessive economic sanction. And then up at the Indiana Supreme Court, the court really took an unusual turn because they said that we don’t care whether taking Tyson’s car would be an excessive fine under the Eighth Amendment. The reason being that the US Supreme Court has never actually told us that the Eighth Amendment’s Excessive Fines Clause applies to the states at all. And that really brought into sharp focus the question that we ended up bringing to the US Supreme Court.
Bob Zadek: Now, the question of whether it applies to the states, that allows us once again—and that’s what’s so wonderful about the Tyson Timbs case—we all know about, every American knows we have the Bill of Rights. We know the Bill of Rights contains essential rights, and the Bill of Rights is a barrier that says the federal government cannot interfere with these essential core rights that we have. And one of them is in the Eighth Amendment: excessive bail. The question has been: does the Bill of Rights, which limits what the federal government can do, does it also limit state government? Does it apply to the states? And it was pretty clear that it did not apply to the states; it was not intended to apply to the states when the Bill of Rights was drafted and enacted. However, the 14th Amendment to the Constitution, one of the Civil War amendments—in the 14th Amendment, it is pretty clear that the 14th Amendment applied for the first time the Bill of Rights to the states. But the question then arose: did the 14th Amendment, which applies the Bill of Rights to the states, does it apply to all of the rights in the Bill of Rights, or only some of them? And since the 14th Amendment was enacted, the Supreme Court has been engaged in the process of deciding which of the specific rights in the Bill of Rights applies to the states. Some of them are pretty obvious because they are core rights such as freedom of speech, exercise of religion and the like, and the right to bear arms more recently in the Heller case. But the Supreme Court hasn’t decided as to each and every right in the Bill of Rights. So the, believe it or not, the Excessive Fines Clause, one of the three prongs of the Eighth Amendment, has not ever been found to apply or not apply to the states. Thus, Sam and IJ have been engaged in breaking new ground if they are successful. So that’s the background as to why this issue hadn’t been decided specifically until Tyson Timbs’ case. So is that a fair summary of the history of the Excessive Fines Clause and its application to the states?
Sam Gedge: Absolutely. That’s a great capsule summary of it. You know, over the past 80 years or so, maybe longer actually, the Supreme Court’s gone through what they call the “selective incorporation” process, which is a really fancy label for saying that we’re going to look at this on a right-by-right basis in the first eight amendments and determine whether each of those rights is so fundamental to our legal tradition, our Anglo-American heritage, that we’re going to say it’s incorporated into the 14th Amendment so that it applies not just to the federal government but also to state and local authorities too. And that’s why, you know, your local mayor can’t violate your First Amendment rights just like the federal government can’t.
The Fundamental Right to be Free from Excessive Fines [10:55]
Bob Zadek: And the issue of fundamental rights is quite interesting because the Excessive Fines Clause has a very rich history, goes back to the Magna Carta, where we get most of our common law from and most of our traditions of liberty. So the Founders for sure felt that the Excessive Fines Clause was really, really important, was as fundamental as rights can be. Because after all, if the government—if any government—can levy excessive fines, they can destroy you through excessive fines short of imprisonment. So since they can harm you with your body, they can do equal harm with your property. So there is sort of no question intellectually that the Excessive Fines Clause has always been a fundamental right which all citizens of the United States ought to enjoy. But the Supreme Court hadn’t yet applied it to the states. Now, it seems to our listeners, I am sure, that fining by taking a $42,000 car is kind of excessive in light of Tyson Timbs’ crime. And there was a civil fine, or rather criminal fine, levied against Tyson. And Sam, just to put it in perspective, how much was the fine and what were the criminal penalties imposed upon Tyson Timbs under Indiana state law, just to put the seizure of the car in a context?
Sam Gedge: Right. So Tyson was subject to six months to a year of house arrest and also five years or so of probation. And he was subject to a number of different court costs. They weren’t technically fines, but they were like probation fees and other costs totaling a bit over $1,000, which is a lot of money for someone in Tyson Timbs’ position. But it pales in comparison to this parallel proceeding which they brought under Indiana’s civil forfeiture statute, where the state’s trying to take this $42,000 vehicle.
Bob Zadek: So the Indiana Supreme Court, citing issues such as in rem, Sam, which we’re not going to get into in this show, but the Indiana Supreme Court, reversing an intermediate court, decided the Excessive Fines Clause was not implicated in the matter of civil asset forfeiture—that civil asset forfeiture was different. And as I said, the Indiana Supreme Court, before IJ was involved, reversed the intermediate and the trial court. So summarize for us briefly what the Indiana Supreme Court held and why it then was worthy of presentation to the Supreme Court.
Sam Gedge: The Indiana Supreme Court took a really breathtaking position. They noted, as scholars have, that the US Supreme Court has never directly held that this Excessive Fines Clause applies to the states. But instead of undertaking the analysis under their own steam—for example, asking the question whether the right to be free from excessive fines is fundamental to our legal tradition—instead of doing that, the Indiana Supreme Court said, “Well, until the US Supreme Court directly tells us that we have to honor this right, we’re just not going to bother doing it. So Tyson Timbs is out of luck.” And also out of luck are anybody else who happens to be subject to an excessive economic sanction within the state of Indiana. Now, that’s a pretty radical view of protecting people’s fundamental federal rights. But it turns out that Indiana wasn’t the only state to have taken that view. Montana took a similar view, Mississippi took a similar view, there were courts in Michigan that had gone down that road too. So the Indiana Supreme Court’s decision really put into sharp relief this burgeoning split in state and federal courts about this really important question, namely whether state and local authorities can excessively sanction people economically under the Eighth Amendment. And that was the issue, or one of the issues, that we really tried to highlight when we asked the US Supreme Court to intervene.
The Injustice of Civil Forfeiture [19:22]
Bob Zadek: And what’s really important in this subject of civil asset forfeiture is that I ask our friends to always bear in mind that in order for local law enforcement to seize property, whether it’s cash or a car or a house, in order to seize it, they don’t need a finding that you are guilty of the crime. All they need is probable cause, is a suspicion that what they are seizing was an instrumentality used in the commission of a crime. So there’s no protection, due process protection, that you have to be convicted. And once your property is seized, now the burden shifts to the victim—and I do mean victim, the victim of governmental seizure—to prove that you didn’t do the crime. So this is classic—and you, our friends out there, will find this to be shocking and offensive—the bizarre result is, in so far as civil asset forfeiture is concerned, you are guilty until you prove you are innocent, which means you have to spend the money, initiate a litigation to get back your own property because somebody suspects you were guilty of a crime. Sam, do I overstate the problem for the victims of civil asset forfeiture?
Sam Gedge: I don’t think so. I mean, that really highlights one of the most pernicious aspects of civil forfeiture. And I’ll note that, you know, the standards of proof that the government has to meet, they do vary from state to state, but rarely is it the kind of “beyond a reasonable doubt” standard that they have to meet in criminal cases. But you’re right, though, that typically all the government has to show is not that you, the owner, did anything wrong, but rather that your property was somehow connected to a criminal offense. In other words, that your property is somehow guilty. And that’s why in so many civil forfeiture cases, you see really unusual case names like, you know, State of Indiana v. $100 and a Black Cadillac. The entire process starts from this legal fiction that regardless of the owner’s innocence, the property itself is somehow tainted by crime and can therefore be taken by state, local, or federal governments. Now, in many states, most states, the owner can then come into court, as you said, and say, “Okay, even if, for example, my son used my car for a drug deal, I didn’t want him to do that, I didn’t know he was going to do that when he borrowed my car. I’m totally innocent and I should get my car back.” And in many states, if you come into court and hire a lawyer and meet your burden of proof and demonstrate your own innocence, you can get your car back. But that’s of course kind of the opposite of how we envision the criminal justice system working, because in a very real way, you’re kind of having to prove your own innocence, which is not how the system is supposed to work.
Bob Zadek: And of course, I as a practicing attorney who represents creditors, I am accustomed if my clients make a loan and they don’t get their money back, they have to sue the person who doesn’t want to repay the obligation, they have to sue to get back their property. But that’s in a transaction they voluntarily went into; they made a loan and took the risk. But the prospect that you have to sue to get back your property, you have to sue your own government to get back your property that your government you claim improperly took from you, it turns the whole relationship between government and citizen upside down. It makes the government a thief who took your property and you are suing the thief to get back your property. Now, that’s kind of a dramatic metaphor and perhaps it doesn’t 100% apply, but you see my point. The fact that you have to sue your government to get back your property because they wrongfully took it from you is not the relationship we should have with our government.
This is Bob Zadek. I’m speaking with—we are discussing the verdict of Timbs v. Indiana where a low-level drug dealer in Indiana with boots that made him uncomfortable and he had to resort to painkillers, where a low-level drug dealer named Tyson Timbs is going to alter the scope of the Eighth Amendment to the Constitution. Lots more to follow. We’re going to take a 30-second break. There is so much more to follow. Please stay tuned. We’ll be right back.
(Music break)
The Supreme Court Case [26:28]
Bob Zadek: Welcome back to The Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thanks so much for listening this Sunday morning to our show, which is full of ideas, no attitude allowed. Thanks so much for listening. We are speaking this morning with Sam Gedge. Sam is an associate attorney with the Institute for Justice, my super uber favorite public interest law firm. Every day of the year they do such good. When one supports the Institute of Justice, as well as other similar public interest law firms around the country, the joy, the pleasure, the satisfaction one gets in supporting IJ and its brethren out there fighting the battle for liberty, the benefit you get is you get a true, tangible, real, and very often significant return on your contributions. They get results. And we will learn by the end of June the results they have gotten. We will learn by the end of June whether they have gotten a tangible positive result in Timbs v. Indiana.
So Sam, we have the Indiana Supreme Court that sort of shrugs and says, “So you took a $42,000 car, in effect a $42,000 fine for a low-level drug offense. And if you didn’t have this car, you wouldn’t be fined $42,000. But because Mr. Timbs happened to have the car because of some financial good fortune, he doesn’t have it anymore and it’s taken from him simply because he had it and because he used it in the commission of a state crime, which is a low-level drug transaction.” So now the Indiana Supreme Court makes its decision, kind of offensive to us libertarians. And how does IJ become involved?
Sam Gedge: Well, we got involved pretty quickly after the Indiana Supreme Court handed down its decision last November. The opinion, for the reasons we’ve discussed, really cried out as a perfect candidate for the US Supreme Court’s review. Effectively what the Indiana Supreme Court said is, “We’re not going to honor this federal right until the US Supreme Court gets involved.” So we filed a petition with the US Supreme Court on behalf of Tyson and on behalf of his car and asked the US Supreme Court to get involved and to resolve once and for all this important question, namely whether the protection against excessive fines applies to state and local authorities as well as the federal government.
Bob Zadek: And when you presented the case to the US Supreme Court and asked that they accept cert on the case, what was the issue you presented and asked the Supreme Court to decide?
Sam Gedge: A pretty narrow one. Basically whether the Excessive Fines Clause of the Eighth Amendment applies to the states through the 14th Amendment, through the Due Process Clause or the Privileges or Immunities Clause of the 14th Amendment. So just to be clear, we’re not asking the US Supreme Court to decide all of the issues in the case, to decide, for example, whether forfeiting Tyson’s car is in fact excessive. We’re asking them to resolve an important threshold issue about whether this protection in the Bill of Rights applies at all to secure our rights when state authorities or local authorities want to take our property.
Bob Zadek: So you’re asking them to decide whether the Excessive Fines Clause of the Eighth Amendment, whether that applies to the states through the vehicle of the 14th Amendment. Now, in the discussion of excessive fines, of course the first word is “excessive.” Are you asking the Supreme Court to decide, like to give you the price list of how much is excessive, or a rule on how to decide what is excessive? “Excessive” is kind of a hard word to apply to a given statute. Is $1,000 excessive and not $800? How does the Supreme Court go about, if they decide it applies, how do they determine what the rules are? Are they going to give us a price list?
Sam Gedge: Right. So I think in all likelihood, no. But your instinct is right that that’s a difficult question, how to determine whether a fine or a forfeiture is excessive. And that was a question that some of the justices at oral argument last month were raising. As a practical matter, though, in this case, what’s likely to happen is that the US Supreme Court will decide that gateway legal question about whether this clause provides any protection at all against the states and then send the case back down to the Indiana Supreme Court to take a first cut at these difficult questions about how do we determine what’s excessive, what’s not excessive. But it is—it is a tricky question and it’s one that state and federal courts have grappled with for decades. The Supreme Court has basically said a fine is excessive or a forfeiture is excessive if it’s grossly disproportional to the underlying offense. But that doesn’t really provide a whole lot more guidance than just the word “excessive,” right? So there are courts that are going different ways and looking at, you know, do we look at the financial status of the property owner to determine whether it’s excessive and do we look at all these other contextual cues? But as a practical matter, as I said, I don’t think it’s all that likely that the US Supreme Court will dig into it in this case.
Listener Call: A Personal Story of Forfeiture [30:53]
Bob Zadek: Sam, I’d like to interrupt for a moment. We have a caller on hold. Even, welcome to the show this morning. What’s on your mind?
Caller (Even): Yeah, this particular issue is—it’s one that is very, very sensitive to me. Because I was in business for 48 and a half years, and what happened was that in March of 2011, the shop was entered during the course of a blackout that lasted most of the day. And to try to show illicit gains, they took many rolls of layaways—the word “layaway” is on the envelope—and collected the cash and tried to show that as illicit gains. And then they went on from there to do a lot of other things that just weren’t right. And there was such things as what they call false chemical tests, there was a false informant, there was a test-lying issue, and a lot of other things that got so intense that it prompted me to do a lot of research over the many few years that I’ve been involved in it. I’m doing a book that I’m hoping will get a movie spin-off. And this particular guest that you have on today sounds really, really good. And I think he would be interested in some of the details of the case if nothing else. But I’d like to say that this should go further than just stop forfeiture; it almost should go the other way. It should be that they pay the fine when they make the mistake. And so in any case, I’m sure that he would be interested. But for myself, I can leave a number with the station. And I think they’d like to hear the details of the case. I think a lot of our so-called justice system is way out of whack. Having grown up in the ’40s and ’50s, I would say that there was nothing even like this back then. And so it was the type of thing that I just had to weigh in some comments about, and I think you’re doing some really, really good work here.
Bob Zadek: Thank you very much for the call, Even. And our engineer will take your number offline. Thank you so much. We appreciate you being a listener.
Historical Context and Modern Abuses [33:02]
Bob Zadek: So Sam, of course we know that Excessive Fines Clause—the problem of excessive fines, as I said earlier, has been an issue in a citizen’s relationship to their government since perhaps the 11th century, if not earlier. That has always been a problem. And of course, the problem is that the government, being the only social institution that can lawfully use force, that they take advantage of that force to levy such things as excessive fines. So that has been around for as long as there have been governments. And citizens have been aware of the issue. So while Even’s observation that it hasn’t much been in the news in the ’40s and ’50s, and perhaps that’s the case, but that’s not because it hasn’t existed. And in fact, Sam, this might be a good time to take a very slight digression before we go into what happened at the Supreme Court and discuss the fact at how governments—and IJ has been very active in this—governments have been using the issue of fines, indeed excessive fines, as a way to enhance and fix budget deficits. There’s been a lot in the news, even cities such small cities, Ferguson, Missouri, the site of all of that attention a couple of years ago, has been highlighted as one of many cities that use code enforcement fines as a way to just enrich themselves at the expense of the population. And IJ has been very active in this, haven’t they?
Sam Gedge: That’s exactly right. And I think that really homes in on one of the most dangerous aspects of these kinds of economic sanctions. Because for most forms of government punishment, if the government wants to punish you by putting you in jail, for example, it costs the government money. By contrast, though, when the government wants to take your car or levy a fine against you for a code violation, the government’s making money. And for that reason, there’s this built-in incentive to impose these kinds of disproportionate fines and forfeitures in a way that doesn’t preserve public safety or do justice, but rather bolsters the government’s revenue. And you’re right, one of the most high-profile examples of this in recent years was in Ferguson, Missouri. A lot of the DOJ’s report on kind of the misdeeds in Ferguson dealt with these really aggressive fining practices. We saw similar issues in a neighboring city called Pagedale, Missouri, and IJ launched a class action against Pagedale a couple of years ago. But it’s really a nationwide problem. We have a case in Doraville, Georgia, for example, that raises similar issues. And it’s an issue that’s not just new to the 21st century. You know, going back to this being a fundamental right, you see the same problems in the 1600s where the Stuart Kings are levying these really idiosyncratic fines to bolster their treasuries. So this is an issue that the Framers were well aware of, that the drafters of the 14th Amendment were well aware of, and the fact that we’re seeing these same problems today in 2018 really underscores that this is an important fundamental right that needs to be protected.
Bob Zadek: When we do shows as the show we are doing this morning, it is so interesting to me that we have a rich constitutional history. We have a Constitution which was adopted in 17—ratified in 1788. The 14th Amendment, which was 1866 if I’m not mistaken. And yet still today, still today, we have core issues that have never been decided on what the Constitution and what the Bill of Rights says. We are still examining those issues. That is fascinating to me. You would think, naively of course, you would think that it’s all been resolved by now. We’ve been a country long enough that all of this core fundamental issues, these rights, have been decided. But we are still deciding them. And I’m happy to say, through the work of IJ and others, we are showing our government that, wait a minute, we have more rights than you realized. And the trend in my view—no statistical measure—is that with the Supreme Court, we are reacquiring or strengthening rights we always had but government didn’t acknowledge to us.
Oral Arguments at the Supreme Court [38:01]
Bob Zadek: Now Sam, one interesting aspect before we get into the Supreme Court itself is you were joined at the Supreme Court with some interesting bedfellows. You were joined with organizations who aren’t usually allied with IJ. So who joined you, both libertarian and non-libertarian organizations, in your fight at the Supreme Court?
Sam Gedge: Yes, that was really one of the most special parts of the case so far. We had about 18 or 19 amicus briefs that were filed with the court. And those are basically briefs by interest groups or people or companies who aren’t parties to the case but have strong views and want to share their insights with the court. And the ideological spectrum of groups that filed those briefs in our support was really breathtaking. You know, we saw the NAACP, the Southern Poverty Law Center actually signed onto a brief with the Cato Institute. We have the US Chamber of Commerce and kind of so on.
Bob Zadek: The ACLU also joined you, didn’t they?
Sam Gedge: That’s exactly right. Yeah, and the ACLU has been really fantastic on issues like economic sanctions and civil forfeiture, so it wasn’t surprising that they would weigh in on it. But it does really underscore that these issues—the justness, the constitutionality of civil forfeiture, the potential for abuse when it comes to economic sanctions, to say nothing of the important question of whether these Bill of Rights protections apply to the states—these really kind of cut across a cross-section of ideologies so that the Institute for Justice has the benefit of so many different perspectives aligning next to us and saying, “Yeah, of course this provision protects against state and local abuse.”
Bob Zadek: What caught my attention was on this subject is you were joined by a name I’d never seen before: the Foundation for Moral Law. What can you—I’d never seen them on an amicus brief, maybe they have been active and I just haven’t noticed it. But what was their interest, the Foundation for Moral Law? What was their interest in this saving a drug dealer from being denied the use of his $42,000 car?
Sam Gedge: Right. So I think the Foundation for Moral Law has filed a number of amicus briefs; I don’t think we were the first. But their focus, I think, was similar to the focus of many of the amici, which is that, regardless of whether this particular fine was excessive—and of course we think it was excessive—the question here really has nationwide importance beyond just Tyson Timbs and beyond Tyson’s car. You know, we all have a very deep interest in making sure that governments can’t strip us of our property. And it’s indeed immoral for the government to levy excessive fines and forfeitures on its citizens.
Bob Zadek: Now let’s get to, with a drumroll which I do not have, what happened at the Supreme Court. And tell us—because the give-and-take between the justices and the litigants was quite interesting, quite animated. I really enjoyed reading the transcript. Tell us some of the highlights of the oral argument before the US Supreme Court.
Sam Gedge: Sure. So it was a really exciting day. It was on November 28th, so I guess a week and a half ago now. I actually, to be clear, did not argue the case on behalf of Tyson; my co-counsel Wesley Hottot did, also an IJ attorney. Did a fantastic job. And it was just a really thrilling experience. You know, it’s dangerous and I think futile to try to predict the outcome of these cases based on how oral argument went. But the court, at least many members of the court, I think recognized the intuitive rightness of our position, which is really we’re asking the court to engage in a bit of constitutional housekeeping, which is a phrase that Wesley used at the argument. We’re asking them to take an incremental but important step to confirm that this clause applies to the states. And because I think the answer to that question is pretty intuitive, a lot of the questions that Wesley got from the justices had to do with kind of second-tier questions, kind of like the ones that you were raising earlier, you know, how do we go about determining excessiveness, what factors do we take into account? And it was heartening to hear that, because if we’re asking questions like “how does the Excessive Fines Clause apply,” then that kind of presupposes that the clause applies in the first case. Now, by contrast, the state of Indiana, I think, had a pretty rough time in that the justices were overall, I think, pretty skeptical of their position that the Excessive Fines Clause doesn’t apply to the states, or at least doesn’t place any constraint on state police and prosecutors forfeiting people’s property. I think that was a pretty—it was an uphill road to haul, and the state solicitor general, I think, did the best that he could, but there was a lot of skepticism from the court on that.
The Speeding Hypothetical [45:56]
Bob Zadek: Tell there was an exchange involving exceeding the speed limit, which I really enjoyed reading. Share that with our listeners out there.
Sam Gedge: Yeah, absolutely. So Justice Breyer, I believe, really brought focus to how dangerous civil forfeiture is because he asked Indiana’s solicitor general, you know, would it be constitutional under the Excessive Fines Clause, or perhaps even more broadly than that, for a state to say, “We need revenue for our coffers, and for that reason we are going to forfeit anybody’s car, whether it’s a Bugatti or a Kia, we’re going to forfeit anyone’s car if we catch them going even five miles over the speed limit.” And his question for the state was, “Would that be constitutional?” And the state, I think, was required under their argument to acknowledge that, “Yes, you know, we as the government think that there would not be a constitutional impediment to that really, I think, radically unjust exercise of the government’s power to take property.” So that, I think, it was a really interesting exchange between the state solicitor general and Justice Breyer, and it really brought home just how dangerous and how sweeping this power to forfeit property really is.
Bob Zadek: And I think that exchange should have been broadcast—not that it’s possible—on the evening news, because I defy any state or local elected official who represents his or her citizens to defend that as being the lawful exercise of state power. And it would be scary to me that any elected official would defend that as saying, “We have the power to take your car if you speed more than five miles per hour over the limit. We can take your car. Why? A) because it is constitutional, and B) because we need the money.” Can you imagine that public official trying to get re-elected on that position? And yet that was the position of the Indiana Attorney General speaking for his client, the state of Indiana. It was—and what’s shocking to me, Sam, is that governments believe that, putting aside whether they would get re-elected or not, they believe the Constitution, which is the protection of citizens against an overreaching government, they believe that the Constitution would not be offended by that provision. It’s astonishing to me that governmental officials could truly believe that, if they in fact did, or if they were just stuck with a hard question.
Sam Gedge: I think that’s right. I mean, I can’t look into the heart of government officials. But I think your instinct is right, namely that the only people who think that civil forfeiture is a good idea, or virtually the only people who think it’s a good idea, are either people who don’t know about it or people who stand to benefit from it, namely police and prosecutors. The more that public awareness is raised about the potential for abuse that really inevitably follows from civil forfeiture, the more pressure you see on state lawmakers, for example, to radically reform their civil forfeiture systems.
Conclusion [49:23]
Bob Zadek: And you sure—I get goosebumps, Sam, when I see cases like this, and I really appreciate the role of the Supreme Court in standing astride and saying to governments, “No, the Constitution prohibits you from trodding on the civil rights of the citizen.” I am so thankful to our Founders for creating this system of checks and balances and divided government. They really knew what they were doing. Now Sam, how can our friends out there follow the work of IJ and your work?
Sam Gedge: Sure. So our website is ij.org. We have an active presence on Facebook and Twitter and a bunch of other social media accounts, I’m sure. So I encourage everybody to follow them. We also have a weekly newsletter; it’s called Short Circuit, which is a very readable and very interesting summary of recent federal court decisions. And there’s also a podcast on that as well. So there’s lots of ways to follow our work, and I encourage everyone to do it.
Bob Zadek: Sam, thank you so much for giving us an hour of your time this Sunday morning. And equally important, thanks for the great work that you, your colleagues at IJ are doing. You’re making the world a better place for us all. Thank you so much, Sam. Thanks to IJ, and thanks to my friends out there for giving us an hour of your time this Sunday morning. I’ll be back again next Sunday with more discussions on liberty. Thanks so much and have a good Sunday.