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EP253: Reconciling Dad the Farmer and Dad the Veteran Pilot, How The Civil War Openly Became about Slavery and Why it Took One Man 7 Years to Get His Car Back

Our American Stories / Lee Habeeb
The Truth Network Radio
April 7, 2022 3:05 am

EP253: Reconciling Dad the Farmer and Dad the Veteran Pilot, How The Civil War Openly Became about Slavery and Why it Took One Man 7 Years to Get His Car Back

Our American Stories / Lee Habeeb

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April 7, 2022 3:05 am

On this episode of Our American Stories, Iowa listener Joy Neal Kidney shares her father's story. Our regular contributors Jon Elfner and Dr. Kate Masur, author of "Until Justice Be Done," tell the rest of the story that begins with three runaway enslaved people. Tyson Timbs tells us how he found out that old habits do indeed die hard when he was arrested and convicted for selling drugs to undercover cops.

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Time Codes:

00:00 - Reconciling Dad the Farmer and Dad the Veteran Pilot

10:00 - How The Civil War Openly Became about Slavery

35:00 - Why it Took One Man 7 Years to Get His Car Back

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It's Dramos. You may know me from the recap on LATV. Now I've got my own podcast, Life as a Gringo, coming to you every Tuesday and Thursday. We'll be talking real and unapologetic about all things life, Latin culture, and everything in between from someone who's never quite fit in. Listen to Life as a Gringo on the iHeartRadio app or wherever you get your podcasts. Brought to you by State Farm.

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Light. Comfy. Good to go to. This is Lee Habib and this is Our American Stories. And we tell stories about everything here on this show, including your stories.

Send them to They're some of our favorites. And today we have one of our regular contributors, Joy Neal Kidney, and she's about to share her uncle's story. This piece is titled Donald Wilson, the Humble Hero.

Most of the heroes among us are just ordinary people like my Uncle Don. I knew him as Mom's brother who lived way out in Washington State and who liked fishing. When I was a kid growing up on an Iowa farm, the best part of getting a fat letter from Aunt Rose was a picture of Uncle Don with a big salmon. Mom's older brother had been a commercial fisherman. Even when he later took a job with the Washington Department of Transportation, he still headed out with his boat on Willapa Bay every chance he got.

So every fishing season we get snapshots of him with a huge fish hanging from one hand and a fishing pole in the other. Dressed in faded jeans and a plaid shirt, usually a vest with lots of pockets. Sometimes a U.S. Navy cap, either the USS Hancock or the Yorktown. Although Mom rarely mentioned the war, World War II, she told us that her brother Don, who grew up in the small town of Dexter, Iowa, had been a sailor on the famous Yorktown, the one lost during a big battle in the Pacific Ocean, and that he had had to tread water for an hour before being rescued. Every few years, Uncle Don and Aunt Rose would drive back to Iowa to visit.

I was unaware of all the other combat he'd survived, all the heartache he'd been through, all the complexity of this seemingly ordinary man. As teenagers, Sis Gloria and I traveled by train with Grandma to the West Coast to visit relatives, including Don and Rose. In 1962, they lived in a little house out along the Nassau River. As soon as they learned we were coming, Uncle Don added a room to their home, an indoor bathroom. Since Aunt Rose didn't drive, they had only a pickup. One foggy day, we joined a crowd of clam diggers and carried our limit home to try fried clams and to make clam chowder.

Digging them was more fun than eating them for farm girls used to Iowa beef and pork. Years later, I learned that not only had Uncle Don been on the historic Yorktown during the Battle of Midway, but that he'd had to abandon ship twice. He spent an hour in the oily Pacific after Japanese bombs had crippled the ship. The next day, the aircraft carrier was listing, dead in the water, but still afloat. A few dozen men re-boarded the battered ship for a salvage attempt.

One of them was 25-year-old Donald Wilson. After doing repairs all morning on a lower level of the ship, he clambered up to the deck for something to eat. An alarm blared. Don jumped up and saw torpedoes in the water, speeding right at his ship. One slammed into them.

He ran to the fantail and leaped a second time. A nearby ship rescued him and other survivors. The next morning, sailors asleep on the deck were nudged awake as the carrier began to sink, her battle flags still flying.

Many of them wept as they stood at attention to witness their ship roll over and plunge into the ocean. Donald Wilson first joined the Navy with his older brother in 1934, during the Great Depression when there were no jobs for teenagers, not even for their father. Don stayed in the Navy and in 1937 became a plank owner on the brand new Yorktown, meaning he was a member of the crew when it was placed in commission. I served on her for her whole life, Don later wrote of the ship. He later received a citation signed by Admiral Chester Nimitz for being part of that salvage attempt.

I'd written to Uncle Don and Aunt Rose for decades, but after grandma died and getting to read the family's war letters, I started a correspondence with Uncle Don that lasted the rest of his life. I wanted to make sure he had all the medals he was entitled to. He said he didn't want any, that he was no hero and wasn't interested in medals.

That is until I learned there was one for that citation. When he finally received it, he proudly framed all of his medals and ribbons. Uncle Don was also a plank owner on the USS Hancock, another aircraft carrier. The Hancock was in combat in nearly every major naval battle during those last desperate months of the Pacific War.

Except when out of action for repairs after being attacked by a kamikaze. All five Wilson brothers of Dallas County, Iowa, served in World War Two. The three youngest, Dale, Danny and Junior, lost their lives, two of them in combat. Their surviving family members never got over the blows of losing these three young pilots, including their older brother Don.

Still in the Navy after the war, he decided he didn't want to make it a career after all. He was ready for some peace and quiet and a fishing pole. No one would suspect that the ordinary man in the snapshots with the big fish was indeed a hero, one with a poignant history. And a special thanks to Joy Neal Kidney for sharing that story. And again, if you have stories about heroes who fought for and defended and served this great country, send the stories to

We'd love to hear from you, and they are our favorites. The story of Uncle Don. Here on OurAmericanStories. . Folks, if you love the stories we tell about this great country and especially the stories of America's rich past, know that all of our stories about American history, from war to innovation, culture and faith, are brought to us by the great folks at Hillsdale College, a place where students study all the things that are beautiful in life and all the things that are good in life. And if you can't get to Hillsdale, Hillsdale will come to you with their free and terrific online courses.

Go to to learn more. And we're back with Our American Stories. Abraham Lincoln's nickname is the Great Emancipator, but our regular contributor, John Elfner, is about to tell us a story on how that's not quite the whole story.

Here's John. It was a beautiful spring evening in Norfolk, Virginia, the night of May 23, 1861. Abraham Lincoln had recently been inaugurated, and by this night, 10 southern states, including Virginia, had seceded from the Union.

The scope of the Civil War was still not well understood by most, but the Civil War had begun. Working along the banks of the James River were three men, Frank Baker, Shepherd Mallory and James Townsend. The men were finishing their assigned task of building a Confederate artillery battery just south of the James River in a location called Sewell's Point. The artillery position was designed to assault a Union fort just across the James River. The fort was called Fort Monroe. As evening approached, Baker, Mallory and Townsend decided to abandon the Confederate post and cross the James River to Fort Monroe. And when they traveled that short distance from Sewell's Point to the fort, they became fugitives. You see, according to the laws of Virginia, Frank Baker, Shepherd Mallory and James Townsend were slaves.

They had run away with the hopes of finding their freedom within Union lines. Any casual student of American history would likely expect the Union soldiers would take them in. After all, the soldiers' commander-in-chief was Abraham Lincoln, who would eventually earn the nickname, the Great Emancipator. But when the three arrived at Fort Monroe, the fort's commander, Major General Benjamin Butler, was faced with a dilemma. He knew that he shouldn't be returning the escapees based on Lincoln's public statements about the war. The general ethos at the beginning of the war was, we're not here to get involved with slavery.

We are here to try to persuade the Confederates to drop their arms and come back into the Union. That's Dr. Kate Masur, professor of U.S. history at Northwestern University. She writes about the complexities of the abolition movement in her fantastic new book, Until Justice Be Done.

And her research revealed something surprising. U.S. military officers sometimes decided to cooperate with slave owners and return slaves. Everyone knew that the war was about slavery, so it's not that anyone was disguising that the conflict was about slavery. It's true, Lincoln was pretty clear about the role of slavery in the war in his first inaugural address just two months earlier. In that address, he said this. One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended.

This is the only substantial dispute. Then why would the escapees not be welcomed into a Union fort during the Civil War? It's because moments later, Lincoln added this. I have no purpose directly or indirectly to interfere with the institution of slavery in the states where it currently exists.

I believe I have no lawful right to do so, and I have no inclination to do so. First we have to remember that it was the Confederacy that declared itself out of the Union. The conflict begins with a series of Southern states saying that they're no longer part of the United States, and then creating this thing called the Confederate States of America, which they say is a separate nation. But this was something Lincoln steadfastly denied throughout the war. The United States government's position was you cannot secede from the Union, and if force is necessary to show that you, the Southern states, are still in the Union, we will use force to prove that the United States is still intact. Lincoln did not want to say that the government was going to attack slavery. This was because Lincoln had a military problem. There were four slave states which had not left the Union, and if those so-called border states were to join the Confederacy, it would be devastating for the Union. Many talk of abolition might have caused Lincoln grave problems in the war, and he was especially worried about the state of Kentucky. Lincoln expressed this concern in a private letter to his close friend, Senator O.H.

Browning. I think to lose Kentucky is nearly the same as to lose the whole game. Kentucky gone, we cannot hold Missouri, nor as I think Maryland.

These all against us, and the job on our hands is too large for us. That's because the Confederate state of Virginia already borders Washington, D.C., and if Maryland secedes, the Capitol would be surrounded by Confederate states. We would as well consent to separation at once, including the surrender of this Capitol. This explains why Lincoln didn't make public statements attacking slavery early in the war. There's a possibility that when white Kentuckians see that a critical mass of them are going to say, hey, I want to join the Confederacy and continue to fight to preserve slavery.

So he does a lot of different things in the first year or so of the war to try to satisfy folks in those states. He says that he's not going to attack slavery. He says this is not a war about slavery. But the Civil War ended slavery, so how could Lincoln be saying at the start of the war that he had no intention and no power to abolish slavery? It's important to understand that when Lincoln publicly stated that he had no right to get rid of slavery, he was correct. After all, how can he get rid of slavery when just moments earlier, he had sworn an oath to uphold the Constitution? And like it or not, the Constitution protected slavery in the states where it currently existed.

There's absolutely no doubt that Lincoln loathed slavery. The question was, under the United States Constitution, what power does the president or the federal government have to abolish slavery? He believed that the federal government did not have the power to abolish slavery in the states where it already existed.

And at the time of his inauguration, there hadn't been any violence between the Union and the seceded states. So as far as Lincoln was concerned, the Constitution was still in effect throughout the United States, and that included the states that had claimed to secede. They begin with the objective of simply persuading the Confederates to stop what the U.S. government thought was a ridiculous and also treasonous enterprise. Preserving the Union. That was Lincoln's stated objective at the beginning of the war.

And to help keep the focus on preserving the Union, Lincoln's military generals developed a surprising practice. Military officers frequently returned escaped slaves to their owners. U.S. military officers sometimes decided to cooperate with slave owners and return slaves. This really happened. And when enslavers came to U.S. officials and said, hey, this person escaped into your camp, I need them back, the officers would say, OK, let me go find them. And that's what happened.

It happened regularly. The United States has not recognized the Confederacy as a separate nation. There is this 1850 Fugitive Slave Act. Under federal law, when escaping slaves cross jurisdictions, the slave owner supposedly has a right to come and get them back. And so that's one of the types of claims that the slave owners would have made. And what did this mean for Baker, Mallory and Townsend, the three escapees who fled to Fort Monroe? The commander of the fort, General Butler, certainly knew Lincoln's position. And Butler also knew that if he didn't return the slaves, he'd be sending a message that the U.S. forces were attacking slavery. And that was a message Lincoln was working hard to avoid. So when Baker, Mallory and Townsend arrived at the fort, they were taken in, and consistent with the common practice of returning escapees, Butler may have considered returning them. But when he spoke to the three, he learned that he couldn't do that.

The reason? They'd been installing cannon aimed at Fort Monroe. There was a report written about the conversation, and it said this. These able-bodied men, held as slaves, were to build breastworks, to transport or store provisions, to serve as cooks and waiters, and even to bear arms. Butler knew he couldn't return the three men who would immediately be put back to work installing cannon aimed at Fort Monroe. But he needed to find a way around Lincoln's constitutional understanding of the property rights of slave owners. A decision needed to be made.

And it needed to be made quickly, because Confederate Major John Baytop Cary was approaching the fort seeking the return of the escapees. And you've been listening to John Elfner tell the story of the Civil War. A different kind of story, a messy story, and a difficult story. And one having a lot to do with what could Lincoln actually do at the time, as opposed to what did Lincoln actually want to accomplish.

Lincoln didn't know what was going to happen. More of this remarkable story of the Civil War, is told by John Elfner here on Our American Stories. iHeartRadio and the Black Effect Podcast Network are sponsored by BetterHelp Online Therapy. BetterHelp Online Therapy, a more convenient, affordable, and accessible way to try therapy. I'm Debi Brown, host of the Dropping Gems Podcast. A podcast about the depth and potential of personal growth and the human spirit.

All in service to our liberation and internal peace. Go to forward slash Black Effect for 10% off your first month. Soon millions will make Medicare coverage decisions for next year. And UnitedHealthcare can help you feel confident about your choices. For those eligible, Medicare annual enrollment runs from October 15th through December 7th. If you're working past age 65, you might be able to delay Medicare enrollment depending on your employer coverage.

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And I stay cool and confident. See, they're small business owners too, so they know how to help you best. State Farm is in your corner and on it. Like a good neighbor, State Farm is there.

Call your local State Farm agent for a quote today. And we're back with our American stories and the story of how three slaves escaping to the Union's Fort Monroe provided the spark that led to Abraham Lincoln earning the nickname the Great Emancipator. Slaves were traditionally returned to Southern slave owners because the Union held that the South was still part of the Union until this moment changed everything. Back to John Elfner with the rest of the story. Union General Benjamin Butler and Confederate Officer John Baytop Cary met outside Fort Monroe.

According to a report, their conversation went something like this. I am informed that three slaves belonging to Colonel Mallory have escaped within your lines. What do you mean to do with those escaped slaves?

I intend to hold them. Do you mean then to set aside your constitutional obligation to return them? I mean to take Virginia at her word. I'm under no constitutional obligations to a foreign country which Virginia now claims to be. But you say we cannot secede and so you cannot consistently detain the escapee. But you say you have seceded so you cannot consistently claim them. I shall hold these escapees as contraband of war since they are engaged in the construction of your battery and are claimed as your property.

And with that, Cary was sent away without the escapees he'd come to collect. And how was Butler able to justify keeping the escapees? He was relying on something called the International Laws of War.

Dr. Kate Mazur explains. There's a tradition in what are called the International Laws of War. And one of the mainstream ideas was belligerence or enemies in war can confiscate the property of their enemies. Normally we would generally respect the property rights, but in wartime, especially property that's going to be used in the war effort, the enemy is allowed to confiscate that property. And what are the enslaved legally considered in Virginia? Property. Benjamin Butler at Fort Monroe was thinking about the laws of war and thinking, yeah, if these enslaved people who their owners say their property, well, then I can confiscate them as contraband of war. Under international law, property was more typically describing things like guns, horses and military supplies. But what Butler had recognized was that the Confederate military had categorized slaves as property, and therefore the southerners themselves had opened up the enslaved to confiscation, or what Butler had called contraband.

It's not peacetime, it's wartime, and the commanders have choices about what they're going to do in this situation. Butler, with his word contraband, had created a constitutional loophole that permitted him to hold the escapees. And upon dismissing Kerry, he may have assumed that that was the end of it, but this encounter fundamentally changed the role of slavery in the Civil War. The day after Butler refused to return the escapees, eight more escaped slaves approached the entrance of the fort. The following day, 47 escapees arrived at Fort Monroe. Within two weeks, over 500 escaped slaves had sought asylum there. In word that the Union Army was receiving fugitives and no longer returning them, it began to spread. Four long Union soldiers stationed outside the fort were encountering escapees who were asking, where could they find the Freedom Fort? Butler, by giving asylum to Baker, Mallory and Townsend, had moved slavery into the political conversation in a way that required it to be addressed by Congress and the President. And it wasn't just Fort Monroe where the escapees began to run.

Then everywhere they go, enslaved people start to escape and come to Union lines. So the story about Fort Monroe is one really critical, very early version of that story, but it's really happening everywhere. And members of Lincoln's inner circle in the White House recognized just how important Fort Monroe was. Lincoln's personal secretaries, John Hay and John Nicolay, wrote about the events at Fort Monroe in their biography of Lincoln.

Here's what they said. Out of this incident, there seems to have grown one of the most sudden and important revolutions in popular thought which took place during the whole war. Baker, Mallory and Townsend, along with General Butler, in a sense created the power that Lincoln needed by characterizing the escapees as contraband of war. And the growing number of fugitive slaves swelling the Union forts forced Congress to act. Congress, in spring of 1862, passes legislation that says from now on there's going to be no returning runaway slaves from our kingdom.

After that point, it was policy of the United States government not to return people. Lincoln supported this legislation, first signing the bill Congress sent to him prohibiting the return of slaves and setting the stage for his later Emancipation Proclamation. But how did a president who said this on his first day of office? I have no purpose directly or indirectly to interfere with the institution of slavery in the states where it currently exists. End up issuing an Emancipation Proclamation two years later that said this.

All persons held as slaves within any state or designated part of a state, the people of shall then be in rebellion against the United States shall be then, thenceforward and forever free. It's because upon his inauguration, the Civil War had not really begun. Sure, seven states had claimed to secede, but Lincoln's inauguration preceded any violence towards the federal government by the states that had seceded. But when the Confederacy fired on Fort Sumter a month after Lincoln's inauguration, that action fundamentally changed the relationship between the rebels and the federal government. And though Lincoln proceeded cautiously with his public statements about slavery in the early days of the war, as the years passed, he acted more and more aggressively to get rid of slavery. And he used a version of Butler's argument, military necessity, to justify the Emancipation Proclamation.

What happens at Fort Monroe is it just puts down a marker that things are going to be different and that this is not simply a contest between white Northerners and white Southerners over whether the states in the Confederacy are going to stay in the Union. It proved to everyone that black people were not going to sit around and wait to be emancipated. So how much credit does Lincoln deserve for the abolition of slavery? There's no doubt Lincoln did a lot to end slavery, and the Emancipation Proclamation was a key example of that. Pushing for the 13th Amendment, which constitutionally abolished slavery, was a great example of that. But on how slavery really ended during the Civil War, it's actually a lot more complicated than just the president suddenly deciding in his wisdom to wave his wand and issue an Emancipation Proclamation.

And so we need to take into consideration, if we want to really understand the history, what enslaved people themselves were doing, how they made themselves a factor in the war, what Congress was doing, and what the U.S. Armed Forces were doing, and how all of these different parties kind of came together to destroy slavery during the course of the Civil War. Lincoln is without a doubt a masterful politician, so when considering his nickname, the Great Emancipator, there's no denying that Lincoln solved the riddle of how the federal government could order that slaves be permanently free. And in so doing, nearly 4 million slaves were freed over the course of the Civil War. But it took lesser-known people like Frank Baker, Shepherd Mallory, and James Townsend, who had the courage to escape.

It took the cleverness of General Benjamin Butler to find a way to refuse their return. It took the hundreds and later thousands of enslaved who escaped to Union lines to pressure Congress to prohibit Union commanders from returning escapees. And it took the lives of over 300,000 Union soldiers to carry out Lincoln's orders.

Yeah, Lincoln did a lot, but he had a lot of help along the way. And a special thanks to John Elfner for the storytelling on that piece. And he's a history teacher in Illinois, and there are so many great history teachers in this country. They may not have PhDs, and they may not be writing fancy books, but we just got to sit in John Elfner's classroom, and what a privilege that is. Special thanks also to Kate Mazur for her book, Until Justice Be Done, America's First Civil Rights Movement from the Revolution to Reconstruction. Go to your local bookstore or the usual suspects and buy a copy. And my goodness, what a story about three courageous slaves and a courageous general who found a way to do what was right, to do what was, in the end, the beginning of the end of slavery. The Great Emancipator is How the Civil War Openly Became About Slavery, that story here on Our American Stories. I Heart Radio and the Black Effect podcast network are sponsored by BetterHelp Online Therapy, BetterHelp Online Therapy, a more convenient, affordable and accessible way to try therapy.

I'm Debbie Brown, host of the Dropping Gems podcast, a podcast about the depth and potential of personal growth and the human spirit, all in service to our liberation and internal peace. Go to forward slash Black Effect for 10% off your first month. Soon millions will make Medicare coverage decisions for next year, and UnitedHealthcare can help you feel confident about your choices. For those eligible, Medicare annual enrollment runs from October 15th through December 7th. If you're working past age 65, you might be able to delay Medicare enrollment depending on your employer coverage.

It can seem confusing, but it doesn't have to be. Visit to learn more. UnitedHealthcare, helping people live healthier lives. I know everything there is to know about running a coffee shop, but for small business insurance, I need my State Farm agent. They make sure my business stays piping hot and I stay cool and confident. See, they're small business owners, too, so they know how to help you best. State Farm is in your corner and on it. Like a good neighbor, State Farm is there.

Call your local State Farm agent for a quote today. And we return to our American stories. And now it's time for another Rule of Law story, which is a part of our Rule of Law series, where we showcase what happens in the absence and the presence of the rule of law in our lives.

Things like property rights that we just take for granted, courts in an independent judiciary, separation of powers which gives meaning to that independence of the judiciary, and contract rights, things that in other countries, well, good luck. And by the way, that rule of law extends to all of us, good and bad and in between. Here's our own Monty Montgomery with the story of a man who violated what would seem to be a clear-cut law and the long-winded case that he became wrapped up in as a result. In 2012, Tyson Timms found himself on the receiving end of a decent amount of cash following the death of his father. He promptly bought a nice car. And a year later, drove out to sell some drugs to undercover cops.

Here's Ilya Soman with the rest of the story. So he was caught and he was charged with a small-scale drug offense. He admitted that he did commit a crime. But when he drove to this transaction, he was driving his Land Rover SUV, which according to estimates was worth something like between $40,000 and $42,000. So the state of Indiana seized the Land Rover through asset forfeiture. But what's asset forfeiture?

And why did law enforcement decide to leave Tyson without his wheels over a drug offense? Asset forfeiture is a practice whereby government can confiscate property that was used in a crime, such as a car or in some cases even something as major as a house. And often they can do it even if the owner of the property was never convicted of any crime and indeed even if he or she was never charged for it.

So you get examples like the police will stop someone's car perhaps for a minor traffic violation. Then they'll ask to search the car and then they find some money in the car. Say you're transporting cash, as some people do. The police might decide it seems likely that this money was acquired in a drug transaction or some kind of other illegal transaction.

They take the car potentially and the money as well. Similarly, if for instance you lent your car to a friend and then the friend was suspected of driving it to buy illegal drugs, then your car could be confiscated even though you may not even have known that your friend was going to use it for that purpose. And sometimes that can happen even if the friend himself never got charged with anything.

And there are many, many examples like this. They vary somewhat by state. But the basic idea is that the government can seize property that they think might have been used in a crime. In many cases, in most states, they don't have to prove that it actually happened.

They certainly don't have to prove it beyond a reasonable doubt. Indeed, the procedures in many states are such that once they seize your property for asset forfeiture, the ordinance in effect falls on you to prove that you're innocent or that the property wasn't used in a crime. And often the cost of getting the property back is actually more valuable than the property itself. So if they seize something that's worth $500 or $1,000 or even $2,000 or $3,000, as is often the case, in order to litigate the issue and get it back, even if you're successful, you may have to pay a lawyer more money than the property is worth.

And it may take you many weeks or many months to even get a hearing about it, much less get the property back. Now, at this point, you may be thinking, big deal. Guy buys expensive car. Guy drives the car to sell drugs to undercover cops.

Guy gets punished. Who cares about his car? This seems just. But the issue here isn't the taking of the car. It's that there was no due process to take it. And law enforcement can sell assets seized via forfeiture and add it to their budgets. And if you want your stuff back, you have to take them to court using money you probably don't have.

There's no accountability. There's no rule of law. So Tyson went to court. And Tyson Timms, represented by the Institute for Justice, they argued that this seizure violated the excessive fines clause of the Eighth Amendment. The Eighth Amendment is best known for forbidding cruel and unusual punishment, but it also forbids excessive fines.

And thus began a game of pinball for Tyson Timms and the Institute for Justice between court systems. So this case is unusual even by the standards of federal Supreme Court cases that not only did it reach the federal Supreme Court, but there were also three separate Indiana State Supreme Court decisions. And there are not many Supreme Court cases historically which are like that.

That's extremely unusual. And the case raised two important issues that the Supreme Court had never previously resolved. One is whether the excessive fines clause even applies to state and local governments at all, as opposed to just the federal government. Over a long period of time, the Supreme Court has gradually decided that nearly every other part of the Bill of Rights, with a few exceptions, applies to state and local governments and not just to federal government.

But they had never decided this with respect to the excessive fines clause. So when the case initially reached the state Supreme Court, the state Supreme Court said, well, this doesn't apply to the states. Or if it does, we, the Supreme Court of Indiana, can't say that it does.

Only the federal Supreme Court can make that decision. The other big issue is let's assume the excessive fines clause does apply to state governments. Do asset forfeitures qualify as excessive fines? Because maybe asset forfeitures just aren't fines at all. That's another thing that the state of Indiana argued.

In this case. So when the case got to the Supreme Court, the court actually showed a rare degree of unanimity. All nine justices, both liberal and conservative, concluded that the clause does, in fact, apply to state governments and local governments as well as the federal government.

Everybody, I think, expected that outcome. It would have been very surprising if the court had said, no, this is the one part of the Bill of Rights that doesn't apply against the states. Secondly, they also ruled that at least some asset forfeitures can indeed be fines, excessive fines. And therefore, if they're big enough, they could be struck down as excessive. And they rejected the argument that forfeitures just aren't fines at all because the state did argue that this is just an attempt to seize property used for illegal purposes. It's not really a punishment of the person who committed the offense or maybe even in many cases didn't commit any offense. And the court ruled correctly that fines and forfeitures are sufficiently similar that many, if not all, asset forfeitures can, in fact, qualify as fines. But the court left open the issue of what is it exactly that makes an asset forfeiture excessive. This issue has ended up in the lower courts with the result that even the specific case of Tyson Timms actually made it back to the Indiana Supreme Court two more times. One time where the Indiana Supreme Court set up a test for how they think the excessiveness of the fine should be determined.

And then a second case where even though the test that they shut up, I think it was clear that Tyson Timms should win under that test. Because among other things, the value of the Land Rover is about four times the maximum fine that you could get for a criminal conviction in Indiana for the type of illegal drug transaction that he attempted. But nonetheless, the state of Indiana, much like Inspector Javert and Wayne Miserable, they continued their single minded pursuit of the Land Rover.

They didn't want to give it up. So they continued to litigate the case. So it went back to the state Supreme Court yet again. This is the third time the case went to the Indiana State Supreme Court. And in that instance, the Indiana State Supreme Court finally ruled that Tyson Timms could in fact get his Land Rover back.

So after a legal battle that lasted some seven years, Tyson Timms did in fact recover the Land Rover and is now happily driving it. Now, most cases don't go through that long a process or are that costly. I don't know how much money IJ spent litigating this case, but it is probably in the several hundreds of thousands of dollars or even more. It's obvious who is more than the value of the Land Rover, even though the Land Rover is a fairly expensive and valuable vehicle.

As I said before, it's worth about forty thousand dollars. That said, the typical asset forfeiture probably involves amounts in the range of property worth five hundred or a thousand dollars. And even the lawyer's fees for a more conventional case will easily exceed that. That's actually a more general problem we have in this country, that legal services for small scale losses of this kind very often outstrip what you can gain from getting back what you lost. In the Timms case, it's pretty obvious that Tyson Timms could not have won this case without getting excellent pro bono representation from the Institute for Justice, which represented him for free from start to finish. And they, of course, weren't solely interested in the particular vehicle at stake in this case.

They wanted to set a general precedent. And a great job on the production by Monty Montgomery and a special thanks to Elia Soman for telling us this story. He's a law professor at George Mason University. Check out his book, Freedom Move, Foot Voting, Migration and Political Freedom. And you can find that at

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Whisper: medium.en / 2023-02-15 09:40:30 / 2023-02-15 09:56:20 / 16

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