He lost his $42,000 Land Rover for a $385 crime. The Supreme Court considers whether the constitutional ban on ‘excessive fines’ applies to states

The Supreme Court on Wednesday took up a case from Indiana to settle a question that might seem obvious to some: Does the ban on “excessive fines” in the Bill of Rights apply to states?

The 8th Amendment to the Constitution, which prohibits “cruel and unusual punishments,” also says “excessive bail shall not be required, nor excessive fines imposed.”

But last year, the Indiana Supreme Court upheld the state’s seizure of a $42,000 Land Rover from a man who made two small drug sales valued at under $400. It rejected his claim that this was “excessive” and ruled the 8th Amendment did not protect him.

That decision ran into sharp skepticism Wednesday from the justices and will almost surely be reversed.

Justice Neil M. Gorsuch cut off the state’s attorney before he could launch into his defense and upbraided him for ignoring decades of court history and centuries of English law.

“Can we get one thing off the table. We all agree the ‘excessive fines’ clause is incorporated against the states,” he said, meaning states and cities must abide by it just as federal officials do. The court struggled over the reach of the Bill of Rights in the 1940s and beyond, he said, but that fight is long settled.

“Here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Gorsuch said to Indiana state solicitor Thomas Fisher.

The state’s lawyer refused to back down and insisted a state’s seizure of private property was its business, not a question of federal law. At one point, he said the state would be free to seize luxury cars that were going a few miles over the speed limit.

But Justice Brett M. Kavanaugh intervened to agree with Gorsuch. “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?” he said.

By the end of an hour, it was clear that the justices would rule for Tyson Timbs, the Indiana man who lost his Land Rover, and will hold that the U.S. Constitution protected him from an excessive fine.

But it is not certain he will ultimately win his case. Chief Justice John G. Roberts Jr. said the court would probably send the case back to the Indiana courts to decide whether this forfeiture was indeed excessive and unjust.

Wednesday’s argument revived a question that has a long history before the high court and divided the justices during the middle decades of the 20th century.

The first 10 amendments, known as the Bill of Rights, were ratified in 1791 and begin with the words: “Congress shall make no law ...” The many familiar rights listed include the freedom of speech and the press, the free exercise of religion, the right to bear arms, the right to a jury trial and the freedom from “unreasonable searches and seizures.”

But these protections for individuals did not go far. In the early 19th century, the court said these rights applied only to actions of the then-tiny federal government, not to states or local authorities, including police.

After the Civil War, the Reconstruction Congress adopted the 14th Amendment to protect individuals from their states. It said, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law.”

The first clause on “privileges or immunities” has meant surprisingly little, thanks to a peculiar 1873 ruling holding it did not provide “any additional protection” for individuals.

But the second clause became the most important in the Constitution. In a step-by-step process from the 1930s through the 1960s, the Supreme Court decided that nearly all the fundamental rights cited in the Bill of Rights were included or “incorporated” in the protection for “liberty” and “due process of law” in the 14th Amendment. But it has never specifically ruled on the “excessive fee” clause.

In the past, the justices also refused to extend or “incorporate” the rights to a grand jury indictment in the 5th Amendment and the right to a jury trial in civil cases found in the 7th Amendment.

These days, however, most Americans would assume their constitutional rights are the same, whether they encounter a federal agent, a state official or a local police officer.

But when Timbs was told his $42,000 Land Rover could be seized by Indiana, he learned that part of the Bill of Rights did not protect him. He had been arrested for two drug sales to police informants that were valued at $385. He contested the state’s seizure of his car on the grounds it was an “excessive fine” and “grossly disproportionate” to his crime.

He lost last year in the Indiana Supreme Court. “We conclude the excessive fines clause does not bar the state from forfeiting defendant’s vehicle because the United States Supreme Court has not held the clause applies to the states through the 14th Amendment,” wrote Justice Geoffrey Slaughter. His opinion noted the high court had suggested the excessive fines were probably unconstitutional, but had not said so directly.

The appeal in Timbs vs. Indiana has united groups across the ideological spectrum from the American Civil Liberties Union to the U.S. Chamber of Commerce, all of them urging the court to clearly rule that all parts of the 8th Amendment apply across the country.

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12:40 p.m.: This article was updated with additional details from the argument.

This article was originally published at 9:30 a.m.