DANIEL VAUGHAN: State and local governments must look for new police funding – now

January 7, 2019

DANIEL VAUGHAN: State and local governments must look for new police funding – now

One of the cases awaiting judgment before the Supreme Court this term is Timbs v. Indiana, which will primarily decide whether the Eighth Amendment’s clause against excessive fines applies to the states.

As a practical matter, the Eighth Amendment almost certainly does apply to the states — but that’s the easy part. The real question for federal, state, and local authorities is: How much funding will we lose when the Supreme Court forces us within the bounds of the Constitution?

The Supreme Court has taken their time incorporating the various provisions of the Bill of Rights to the states. After the ratification of the Constitution, most of the Bill of Rights applied only on the federal level; only after the 14th Amendment was passed in the aftermath of the Civil War did the Supreme Court begin incorporating the Bill of Rights to the states.

But although you can point to exceptions, for the most part, the Supreme Court has by now applied most of the Bill of Rights to the states. The lone exceptions, as the National Constitution Center notes, are “the Third Amendment’s restriction on quartering soldiers in private homes; the Fifth Amendment’s right to a grand jury trial; the Seventh Amendment’s right to jury trial in civil cases; and the Eighth Amendment’s prohibition on excessive fines.”

That last one is what we’re concerned with.

The primary question before the court in Timbs v. Indiana is whether the Eighth Amendment’s prohibition on excessive fines applies to the states. The answer is almost assuredly yes.

The text of the Eighth Amendment is short and sweet: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

There are three clauses in that text, but two provisions (regarding bail and cruel and unusual punishments) have already been applied to the states. But will the Supreme Court rule in this case that the entire amendment applies in full force?

If you go by oral arguments, the Supreme Court looks poised to rule 9-0 that the excessive fines clause applies to the states. All the justices seemed in perfect agreement with Justice Neil Gorsuch, who started off the questioning of Indiana’s attorney general by saying: “Can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states.”

Not one justice suggested anything in disagreement with that sentiment. And given the entire history of incorporation of the Bill of Rights on the states, it’d be foolish to think otherwise.

That means the real question of the case isn’t constitutional, but rather, what constitutes an “excessive fine.”

In this case, defendant Tyson Timbs was arrested after he sold four grams of heroin to an undercover police officer for $385. After pleading guilty and paying a fine, the police also seized his Land Rover, valued at roughly $42,000, as part of their asset forfeiture program, wherein the department — like many others across the country — seizes the property of those involved in a crime if they suspect that asset was used as part of a crime or some other illegal activity.

In Timbs’ case, the police argued that Timbs’ Land Rover was used in the process of selling illegal narcotics. Timbs disputed that fact, and said his car was bought and used legally.

Regardless of the Supreme Court’s full verdict on Timbs’ case, the reality is this: the Eighth Amendment’s ban on excessive fines is about to be strengthened and applied to the states. Ultimately, that means the amount of money states are bringing in from asset forfeiture is going to get trimmed in the coming year. (The Timbs decision will be released during the spring term.)

While the question of how the justices will determine what is considered “excessive” is up in the air, there’s little doubt that there are five votes on the court willing to give some teeth to the concept of excessive fines. Justice Samuel Alito suggested as much in a hypothetical to the defense: “Suppose your client, instead of using a Land Rover…had been using a 15-year-old Kia—or at the other extreme, suppose that he used a Bugatti, which costs like a quarter of a million dollars… Would the Excessive Fine Clause apply differently in those three cases?”

In 2017, the Department of Justice reported that it took in and dispersed more than $1.6 billion in funds from asset forfeiture. California alone garnered nearly $400 million from asset forfeiture, while most other states received several million from the practice.

This is going to have a huge impact nationwide.

If you’re planning police budgets for the next year, you need to take heed of this case now. There’s no telling what the Supreme Court will consider “excessive,” but you can rest assured it will be litigated further after the Timbs case.

And even if the amount of money brought in dropped just 10 percent, that would cost police jobs.

If you want your police departments to be adequately funded, the time to start finding alternative funding is now. You won’t have the luxury to act surprised later in the year.

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.