Five Years Later Supreme Court Decision Still Hasn’t Significantly Limited Asset Forfeiture

By: Mike Maharrey


Many people believe the Supreme Court “ended asset forfeiture” with its 2019 opinion in Timbs v. Indiana. As we argued at the time, Timbs ended nothing, and follow-up cases bear this out.

This underscores an important reality. We can’t rely on federal courts to protect people from these abusive and unconstitutional asset forfeiture processes. The only way to do that is to reform and eliminate state asset forfeiture laws – and opt the states out of a federal program that allows them to bypass more stringent state laws by passing cases off to the feds.

The Timbs case started when the state of Indiana took Tyson Timbs’ Land Rover after he admitted to using the vehicle while purchasing illegal drugs, and in one incident, trying to sell drugs to an undercover police officer.

Timbs argued that taking his Land Rover was excessive and violated the excessive fine clause in the Eighth Amendment. The Indiana Supreme Court initially (correctly) argued that the Eighth Amendment does not apply to the states but only to the federal government. The U.S. Supreme Court overturned the state court opinion, holding that the Eighth Amendment does apply to the states under the (dubious) incorporation doctrine.

However, it’s important to note that the Supreme Court didn’t issue an opinion on whether or not the forfeiture in the case counted as “excessive.”

And as law professor Ilya Somin noted after the Court issued its opinion, it left this important issue unresolved. What exactly counts as “excessive” in the civil forfeiture context?

The Court did leave one crucial issue for future consideration by lower courts: the question of what exactly counts as “excessive” in the civil forfeiture context. 

“That is likely to be a hotly contested issue in the lower federal courts over the next few years. The ultimate effect of today’s decision depends in large part on how that question is resolved. If courts rule that only a few unusually extreme cases qualify as excessive, the impact of Timbs might be relatively marginal.”

Thus, the Court’s opinion obviously didn’t end asset forfeiture. It merely said that the states had to follow the excessive fines restrictions in the 8th amendment.

The SCOTUS then sent the Timbs back to the Indiana Supreme Court for it to determine if the forfeiture was “excessive.” In 2019, the state high court laid out criteria to define “excessive” fines and then sent the case back to the trial court for it to determine whether or not the forfeiture fit within those parameters. The trial court found in favor of Timbs’ saying the forfeiture was excessive and ordering the state to return the Land Rover to its owner.

But that wasn’t the end of the saga. The state appealed the ruling back to the Indiana Supreme Court, arguing that the trial court was wrong to call the Land Rover forfeiture excessive and, as Somin put it“more generally, that the state supreme court should adopt an approach to measuring excessiveness that is more favorable to law enforcement.”

In 2021, the Indiana Supreme Court finally settled the matter – in this one case, in this single state. By a 4-1 vote, the state high court held that based on its criteria of excessive, the state shouldn’t have taken Timbs’ Land Rover, doing so was “excessive” because the value of the vehicle was three-and-a-half times the maximum fine for his offenses.

However, the entire saga reveals the problem with trusting the courts to limit asset forfeiture.

The definition of “excessive” is subjective and can be interpreted in wildly different ways. Simply saying the state can’t “excessively” use forfeiture doesn’t impose any practical limits. It will always be up to the individual to challenge a successful forfeiture as excessive. Most people don’t have the resources for that kind of legal battle.

In a follow up article, Somin summed it up this way.

While this result is a happy outcome for Timbs, it may have only limited impact on asset forfeiture more generally. The Court emphasized that only ‘grossly disproportionate’ forfeitures qualify as ‘excessive,’ and that such cases are rare.

Moreover, there is some merit to the concurring and dissenting opinions’ claim that the majority’s multi-part test for determining what counts as ‘gross disproportionality’ is imprecise and subjective. While some may worry that this will enable defendants to keep property they supposedly should not, I worry that lower-court judges sympathetic to the War on Drugs (which accounts for a high percentage of asset forfeitures) can use the test in ways that make it very difficult for property owners convicted of drug offenses to ever get a forfeiture overturned.

This same process will have to be repeated in every single forfeiture case in every single case. It’s clear the SCOTUS decision in the original Timbs case did nothing to end forfeiture. It just further muddied the water and complicated the legal process.


Going forward, opponents of civil asset forfeiture could wait and see how lower federal courts and state courts will address this issue moving forward, or they can do what a number of states have already taken steps to do — limit civil forfeiture on a state level, or end it altogether with a criminal process that requires a conviction.

States reforming their forfeiture process also must opt out of federal equitable sharing, a program that allows prosecutors to bypass more stringent state asset forfeiture laws by passing cases off to the federal government through a process known as adoption.

Through this process, state or local police hand the forfeiture case to the feds to prosecute even though there was initially no federal involvement in the investigation and seizure. State and local police can also tap into equitable sharing by working with the feds on joint task forces. About 85 percent of equitable sharing cases arise from these joint task forces, but a significant number also begin with adoption.

Law enforcement agencies can circumvent more strict state forfeiture laws by claiming cases are federal in nature. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds. However, when states merely withdraw from participation, the federal directive loses its impact.

California faced this situation. The state has some of the strongest state-level restrictions on civil asset forfeiture in the country, but state and local police were circumventing the state process by passing cases to the feds. According to a report by the Institute for Justice, Policing for Profit, California ranked as the worst offender of all states in the country between 2000 and 2013. In other words, California law enforcement was passing off a lot of cases to the feds and collecting the loot. The state partially closed the loophole in 2016 by banning adoption. It still allows cases arising through joint task forces to be prosecuted by the feds. In those cases, state and local law enforcement agencies can only keep equitable sharing proceeds if there is a criminal conviction and the value of the property is above a $40,000 threshold.

The following language can be used to close the loophole and opt a state out of equitable sharing.

A state or local law enforcement agency shall not transfer or offer for adoption property, seized under State law, to a federal agency for the purpose of forfeiture under 18 U.S. Code Chapter 46, or other federal law.

A joint task force of a law enforcement agency and a federal agency shall transfer seized property to the prosecuting authority for forfeiture under this chapter.

The joint task force may transfer seized property to the U.S. Department of Justice for forfeiture under federal law if the seized property includes U.S. currency that exceeds $100,000.

A law enforcement agency is prohibited from accepting payment or distribution of any kind from the federal government if the federal government requires seized property that includes U.S. currency less than $100,000 be transferred to the federal government for forfeiture under federal law.