At U.S. Supreme Court Argument, Indiana Claims It Can Forfeit Cars For Speeding, Minor Drug Crimes

Arguing before the U.S. Supreme Court on Wednesday, Indiana’s solicitor general was already trying to defend confiscating a $42,000 Land Rover taken from Tyson Timbs, who sold less than $400 worth of drugs. Before the day was through though, Solicitor General Thomas Fisher found himself arguing that the Constitution would let him forfeit luxury cars caught going five miles over the speed limit.

Both scenarios involved civil forfeiture, which allows law enforcement agencies to seize and keep property, even over the most tenuous links to wrongdoing, as well as the Eighth Amendment’s ban on excessive fines. During Wednesday’s oral argument, Fisher claimed that the latter didn’t apply to the former.

Incredulous of Fisher’s position, Justice Stephen Breyer asked him, “So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy?”

Fisher responded that “there is no excessive fines issue” for in rem civil forfeitures, and were completely outside the protection of this constitutional safeguard. So a speeding Bugatti would be “forfeitable,” adding that in remforfeitures “have always been harsh.”

The argument was literally laughable: Breyer and Fisher’s exchange earned some of the biggest laughs that day in court.  But Justice Sonia Sotomayor quickly rebuked Fisher, and reminded him that “up to a certain point in our history, we didn’t apply the Bill of Rights to the states,” which “did things that under incorporation were unconstitutional.”