Supreme Court Justice Stephen Breyer elicited a shocking response during Wednesday’s oral argument in a big civil asset forfeiture case.
ERIC BOEHM | 11.28.2018 4:45 PM

Civil asset forfeiture is such a farce that it took Supreme Court Justice Stephen Breyer only about 100 words to twist Indiana’s solicitor general into admitting that his state could have the power to seize cars over something as insubstantial as driving 5 miles-per-hour over the speed limit.

Yes, really. But let’s back up.

On Wednesday morning, the U.S. Supreme Court heard oral arguments in Timbs v. Indiana, a case that could have huge ramifications for the way states and local governments use civil asset forfeiture to target the property of suspected criminals. As most Reason readers are probably aware, asset forfeiture is the process by which law enforcement can seize cars, cash, homes, and pretty much anything else that is suspected of being used to commit a crime or believed to be the proceeds of a crime. Often, suspects do not have to be convicted of anything—sometimes they aren’t even charged—before they can be deprived of their property. To top it all off, law enforcement often has a perverse incentive to engage in this sort of thing because the proceeds of forfeiture can get plugged directly into their own budgets.

Tyson Timbs, the plaintiff in the case before the Supreme Court, was arrested in 2013* after selling heroin to undercover police officers. He pleaded guilty to one count of dealing a controlled substance and one count of conspiracy to commit theft, and he was sentenced to one year of house arrest followed by five years of probation. Additionally, the state of Indiana seized his 2012 Land Rover—which he had purchased with money received from his late father’s life insurance payout, not with the proceeds of drug sales—on the ground that it had been used to commit a crime.

At the Supreme Court, Timbs’ attorneys are arguing that the seizure of the Land Rover is an unconstitutional violation of the Eighth Amendment’s ban on excessive fines and fees.

“The Excessive Fines Clause is a critical check on the government’s power to punish people and take their property,” is how Wesley Hottot, an attorney with the Institute for Justice, which is representing Timbs, describes the case. “Without it, state and local law enforcement could confiscate everything a person owns based on a minor crime or—using civil forfeiture—no crime at all.”

Indeed, that’s one of the issues that came up during Wednesday’s oral arguments. After Justice Neil Gorsuch and Justice Elena Kagan (and Justice Sonia Sotomayor, and Justice Brett Kavanaugh) had already slapped Indiana Solicitor General Thomas Fisher around a little bit, Justice Stephen Breyer stepped up to deliver the coup de grace to the government’s argument that unlimited asset forfeiture is constitutional.

Here’s how he set the trap:

Breyer is literally mocking the government’s position, but Fisher has to play along with the line of argument. First, Fisher tries to deflect the issue by claiming that a car caught in the act of speeding and a car caught in the act of carrying drugs are two different things. But Breyer blocks that escape and forces Fisher to address the question.

He doesn’t handle it well.

And there it is. Defending civil asset forfeiture means defending the government’s power to seize your car if you were going 5 miles-per-hour over the speed limit.

Thankfully, it seems like none of the nine justices were willing to buy Indiana’s argument (and more than a few were willing to openly laugh it, based on the transcript). But the exchange between Breyer and Fisher shows just how absurd the government’s asset forfeiture powers are—and why the outcome of the Timbs case could be so significant.

With both the court’s left and right wings making a mockery of Fisher’s argument, the big question after Wednesday’s oral argument is not whether Timbs will prevail at the Supreme Court, but how far the justices may be willing to go in restricting forfeiture under the 8th Amendment.

For more on Timbs v. Indiana, check out what Jacob Sullum and Damon Root have written.

*CORRECTION: The original version of this article misstated the year police arrested Timbs and seized his vehicle.