SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - TYSON TIMBS, ) Petitioner, v. ) ) No. 17-1091 INDIANA, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 64 Place: Washington, D.C. Date: November 28, 2018 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 TYSON TIMBS, ) 4 Petitioner, 5 6 v. ) No. 17-1091 INDIANA, ) 7 8 ) Respondent. ) - - - - - - - - - - - - - - - - - - 9 10 Washington, D.C. 11 Wednesday, November 28, 2018 12 13 The above-entitled matter came on for oral 14 argument before the Supreme Court of the United States 15 at 10:04 a.m. 16 17 APPEARANCES: 18 19 20 21 WESLEY P. HOTTOT, ESQ., Seattle, Washington; on behalf of the Petitioner. THOMAS M. FISHER, Indiana Solicitor General, 22 Indianapolis, Indiana; on behalf of the 23 Respondent. 24 25 Heritage Reporting Corporation Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: 3 WESLEY P. HOTTOT, ESQ. 4 On behalf of the Petitioner 5 ORAL ARGUMENT OF: 6 THOMAS M. FISHER, ESQ. 7 On behalf of the Respondent 8 REBUTTAL ARGUMENT OF: 9 WESLEY P. HOTTOT, ESQ. 10 On behalf of the Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation PAGE: 3 30 62 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 (10:04 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear 4 argument this morning in Case 17-1091, Timbs 5 versus Indiana. 6 Mr. Hottot. 7 ORAL ARGUMENT OF WESLEY P. HOTTOT 8 ON BEHALF OF THE PETITIONER 9 10 MR. HOTTOT: Mr. Chief Justice, and may it please the Court: 11 The freedom from excessive fines 12 applies to the states because it is deeply 13 rooted in our nation's history and traditions 14 and fundamental to our scheme of ordered 15 liberty. 16 The State of Indiana appears not to 17 dispute that straightforward answer to the 18 actual question presented. 19 reason. 20 easily warrants incorporation alongside the 21 Eighth Amendment's other protections. 22 Court has said just that five times over the 23 last 30 years. 24 25 And for good The freedom from excessive fines This Without addressing the incorporation question directly, the State asked whether the Heritage Reporting Corporation Official - Subject to Final Review 4 1 clause applies to the states the same way that 2 it applies to the federal government. 3 years of incorporation precedent holds that 4 incorporated Bill of Rights protections apply 5 to the states the exact same way that they 6 apply to the federal government. 7 But 50 There's no reason to adopt the 8 so-called two-track approach at this late stage 9 of the incorporation doctrine, especially -­ 10 JUSTICE GINSBURG: Is that so of all 11 incorporations? What about the non-unanimous 12 jury in -- in criminal cases? 13 MR. HOTTOT: Justice Ginsburg, as the 14 Court recognized in McDonald, the non-unanimous 15 jury in criminal cases is an anomalous decision 16 that results from a one-justice concurrence in 17 the Apodaca case, and there's no reason, as the 18 Court recognized in McDonald, for that to 19 control when there's over 50 years of 20 precedent, beginning in Malloy versus Hogan, 21 Mapp, Aguilar, again in McDonald, rejecting 22 that two-track approach. 23 Adopting the two-track approach at 24 this late stage would only invite further 25 litigation about rights that are already Heritage Reporting Corporation Official - Subject to Final Review 5 1 incorporated. 2 Fourth Amendment right to be free from having 3 your cell phone tracked in the Carpenter case, 4 if my friend's argument were correct, we would 5 have to relitigate whether that right applies 6 to the states. 7 When this Court interpreted the Virtually all of the Bill of Rights, 8 with the one exception noted by Justice 9 Ginsburg, has been incorporated on the 10 right-by-right approach used in McDonald, not 11 on the application-by-application approach 12 proposed -­ 13 JUSTICE ALITO: There are a few others 14 that have not been incorporated, isn't that 15 right? 16 MR. HOTTOT: Oh, that's true, 17 absolutely. 18 haven't been addressed by this Court, like in 19 the case of the Third Amendment right against 20 quartering soldiers, or because, as the Court 21 recognized in McDonald, they long predate the 22 era of selective incorporation. 23 But that's either because they So I think it's possible that if the 24 rights at issue in Bombolis and Hurtado were to 25 come before this Court today, the results might Heritage Reporting Corporation Official - Subject to Final Review 6 1 be different. 2 that history here because the history on the 3 question presented of whether the Excessive 4 Fines Clause applies to the states is clear. 5 6 JUSTICE ALITO: Well, what is the provision in the Constitution that you rely on? 7 8 But we don't have to get into MR. HOTTOT: The Section 1 of the Fourteenth Amendment, Your Honor. 9 JUSTICE ALITO: It's a component of -­ 10 of the liberty that's substantively -­ 11 substantively protected by the Fourth 12 Amendment's Due Process Clause? 13 MR. HOTTOT: Yes, Your Honor. And we 14 also have an alternative argument under 15 Section 1's Privileges Or Immunities Clause. 16 And -­ 17 18 19 JUSTICE GINSBURG: That would leave out non-citizens? MR. HOTTOT: Yes, textually, Justice 20 Ginsburg, that would leave out non-citizens, 21 but, of course, Petitioner is a citizen, and 22 that could be a decision for another day. 23 also true that the fundamental and deeply 24 rooted rights that are currently incorporated 25 under the Due Process Clause apply to Heritage Reporting Corporation It's Official - Subject to Final Review 7 1 non-citizens and they would continue to do so 2 regardless of the Court's reasoning in this 3 case. 4 CHIEF JUSTICE ROBERTS: Well, but you 5 can see there's different arguments about 6 whether -- and this, I gather, is the State's 7 primary submission -- whether excessive fines 8 are prohibited and whether civil in rem 9 forfeitures are. 10 And I certainly understand the 11 argument that the disproportion and 12 excessiveness arguments would be quite 13 different with respect to forfeiting the 14 instrumentalities of the crime. 15 argument could be made, well, that's always 16 proportionate since it's the way the crime is 17 accomplished. 18 MR. HOTTOT: I mean, an I don't agree, Your 19 Honor, because whatever might be said of 20 historic in rem forfeiture practices, 21 forfeitures today, like this one, are fines 22 within the meaning of the clause. 23 The Court was unanimous on that point 24 in Austin, and since then, it has reaffirmed 25 that point in the Bajakajian case, in the Heritage Reporting Corporation Official - Subject to Final Review 8 1 Hudson case, and most recently in Kokesh, all 2 of which rely on Austin. 3 4 As a result, state and federal courts today are -­ 5 CHIEF JUSTICE ROBERTS: Well, of 6 course, the -- the argument there was not for 7 the purposes we're talking about today in terms 8 of incorporation. 9 has been, you know, whether it's essential, And if the test is, as it 10 fundamental, and all that, you can see a 11 distinction between saying, okay, you're going 12 to be fined $500,000 and saying, you know, 13 you're going to -- I mean the action is not 14 against the individual. 15 asset. 16 use in crime. It's against the And so you will lose assets that you 17 MR. HOTTOT: Well, that -­ 18 CHIEF JUSTICE ROBERTS: The first one 19 sounds, yeah, that's pretty excessive. 20 second one, you can certainly argue, well, that 21 makes a lot of sense. 22 MR. HOTTOT: The Doubtless, Your Honor, 23 but these questions go to the excessiveness 24 analysis, not to the incorporation analysis 25 that is currently before the Court. Heritage Reporting Corporation Official - Subject to Final Review 9 1 When -- when the Court incorporated 2 the Second Amendment right to keep and bear 3 arms in the McDonald case, it had rejected that 4 right for 140 years, until the Heller decision, 5 and then, just two years later, incorporated it 6 against the states. 7 So there's no reason to require, as my 8 friend suggests should be required, that -­ 9 that litigants show a historic pattern of the 10 right being enforced. 11 the Court recognized in Austin and Bajakajian 12 and most recently in -- in Kokesh, we're 13 dealing with a different animal. 14 And, in any event, as It uses the same name, civil in rem 15 forfeiture, but it's a different animal in that 16 it's not just about personal jurisdiction and 17 pirate ships anymore; it's about every person's 18 property, and every officer on the street now 19 has the power to strip people of their 20 property. 21 JUSTICE ALITO: Well, your client was 22 convicted of an offense that was punishable by 23 a maximum of 10 years imprisonment; am I 24 correct? 25 MR. HOTTOT: Twenty years Heritage Reporting Corporation Official - Subject to Final Review 10 1 imprisonment. 2 JUSTICE ALITO: Twenty years 3 imprisonment. 4 it was -- it ws suspended, right? 5 And he was sentenced to six, but MR. HOTTOT: That's correct, Your 6 Honor. He was sentenced to home detention for 7 one year and then five years of probation, the 8 minimum on that scale. 9 JUSTICE ALITO: So, if he had been 10 sentenced to six years of actual imprisonment, 11 would that have been a violation of the Eighth 12 Amendment? 13 MR. HOTTOT: Possibly, Your Honor. We 14 would have to look at the -- the 15 proportionality to the gravity of the offense. 16 And for what it's worth, Judge Todd in rural 17 Grant County, Indiana, looked at this offense 18 and the impact on the community and determined 19 that it would be grossly disproportionate to 20 strip Petitioner of his property or even to 21 send him to prison. 22 And I think that's significant, 23 especially given that the Indiana -- the 24 Indiana Court of Appeals affirmed that 25 decision. And the Indiana Supreme Court didn't Heritage Reporting Corporation Official - Subject to Final Review 11 1 even address it because it didn't have an 2 opportunity to reach the excessiveness 3 question. 4 JUSTICE ALITO: Well, what have we 5 said about application of the grossly 6 disproportionate standard? 7 MR. HOTTOT: Well, Your Honor, as you 8 know, the -- the Court in Bajakajian 9 articulated that standard for the first time, 10 and it hasn't had an opportunity to address it 11 again since. 12 13 JUSTICE ALITO: Well, I mean in the context of -- of imprisonment, not fines. 14 MR. HOTTOT: Oh, absolutely, Your 15 Honor. 16 Punishment Clause, the -- the Court has 17 articulated a very similar standard: 18 the punishment grossly disproportionate to the 19 gravity of the offense? 20 Well, under the Cruel and Unusual Is -- is And there's nothing -- there's nothing 21 radical about allowing trial judges at the end 22 of a proceeding to assess under all of the 23 circumstances, as this Court emphasized in 24 Bajakajian they should, even with respect to in 25 rem forfeitures. That's something that trial Heritage Reporting Corporation Official - Subject to Final Review 12 1 judges do every day. 2 CHIEF JUSTICE ROBERTS: But -- but 3 your assumption is that you assess the 4 particular circumstances of the case. 5 I suppose if you ask people do you think six 6 months is an excessive sentence for whatever it 7 was, three counts of dealing in, you know, 8 hazardous illegal drugs, many people might say 9 no. 10 I mean, It's only when you say, well, is six 11 months too much for the -- whatever the 12 circumstances were here, the much -- I don't 13 want to say insignificant, but lighter 14 quantities involved, what do you look at? 15 particular circumstances or what the crime is? 16 The crime is not dealing with tiny amounts of 17 drugs. 18 much broader than that. 19 The The crime that he's convicted for is MR. HOTTOT: Your Honor, excessiveness 20 is "necessarily fact-intensive." That's from 21 the Bajakajian case. 22 that's -- that's actually from the Second 23 Circuit's van Hofe case, which attempts to 24 apply Bajakajian to the real world 25 circumstances of an in rem forfeiture. Excuse me, Your Honors, Heritage Reporting Corporation But Official - Subject to Final Review 13 1 2 Blackstone recognized that as well. There -- there's no way to assess the 3 disproportionality to the gravity of the 4 offense in the abstract. 5 incorporation question that's before the Court 6 today is easy to assess in the abstract. 7 By contrast, the We ask ourselves not whether civil in 8 rem forfeitures, a right against excessive in 9 rem forfeitures is somehow deeply rooted and, 10 hence, can be incorporated. 11 -- the freedom from excessive fines, which has 12 been recognized since the 13th Century, is 13 incorporated. 14 We ask whether the And it's important to recognize that 15 the Indiana Supreme Court's decision in this 16 case did not adopt my friend's suggestion of 17 simply saying that it doesn't apply to in rem 18 forfeitures. 19 don't enjoy protection from excessive fines of 20 any kind. 21 The citizens of Indiana today And that's true of the citizens of 22 three other jurisdictions, as we pointed out in 23 our petition for certiorari. 24 25 JUSTICE ALITO: If we were to assume for the sake of argument that imprisonment for Heritage Reporting Corporation Official - Subject to Final Review 14 1 six years would not be an Eighth Amendment 2 violation for this offense, what would that say 3 about a fine of $42,000? 4 six years imprisonment is not an Eighth 5 Amendment violation, but a fine of $42,000 is 6 an Eighth Amendment violation? 7 MR. HOTTOT: Is it possible that Well, Your Honor, we'd 8 have to know all of the circumstances of the 9 case. And if we're talking about this 10 particular case, I think it's clear that the 11 judge on the ground that was closest to this 12 crime felt that it was grossly disproportionate 13 to the gravity. 14 This is a first-time offender who was 15 caught dealing a small amount of drugs. 16 the vehicle here was not -­ 17 18 JUSTICE ALITO: And But we're talking about a federal Constitutional standard, not -­ 19 MR. HOTTOT: Of course. 20 JUSTICE ALITO: -- whatever sentencing 21 philosophy any one of the thousands of judges 22 in the United States who impose sentences might 23 think is the right sentence for a particular 24 crime and a particular offender. 25 MR. HOTTOT: Absolutely, Your Honor. Heritage Reporting Corporation Official - Subject to Final Review 15 1 But the question presented here is merely 2 whether a defendant in any case has the right 3 to interpose a defense under the excessive 4 fines clause. 5 We're not asking the Court to 6 articulate a new standard of excessiveness. 7 We're not asking the Court to determine that 8 this forfeiture was or was not excessive. 9 We're merely emphasizing that part of 10 the purpose of the Fourteenth Amendment was to 11 guarantee to all 330 million Americans a right 12 to a defense under the excessive fines clause. 13 Indiana denied Petitioner that defense, and the 14 Court should reverse and remand. 15 Two state courts here struck down this 16 forfeiture, held that it was punitive under 17 Austin, believing that the clause already 18 applies to the states, and believing that this 19 forfeiture would be excessive. 20 Supreme Court did not address the excessiveness 21 question. 22 incorporation" until this Court 23 "authoritatively holds that the clause 24 applies." 25 The Indiana It "declined to find or assume JUSTICE SOTOMAYOR: Is there any in Heritage Reporting Corporation Official - Subject to Final Review 16 1 rem forfeiture, not this one, which relied on 2 the criminal activity of this defendant, but 3 let's say that Austin -- that the state did 4 away with innocent owner defense so that the 5 forfeiture was against the innocent owner. 6 Would that be punishment? I think 7 under our -- my reading of Austin, it was that 8 only those forfeitures that are punitive count 9 under the clause. 10 11 So what can a state do to take it out of its punitive nature? MR. HOTTOT: Well, it's important to 12 recognize that Austin says that, if the 13 forfeiture is at least partly punitive, it 14 comes within the confines of the clause. 15 forfeiture -­ 16 JUSTICE SOTOMAYOR: So a So they do away 17 with the innocent owner defense, and the 18 innocent owner comes in and says, this is my 19 property, I didn't commit a crime. 20 it's too bad. 21 MR. HOTTOT: 22 JUSTICE SOTOMAYOR: 23 MR. HOTTOT: They say Well, I -­ The property did. I think, Your Honor, it's 24 -- it's safe to say that that could be deemed 25 excessive. If -- if we look at the Bennis Heritage Reporting Corporation Official - Subject to Final Review 17 1 case, that case is about a co-owner who didn't 2 commit the crime. 3 a matter of federal substantive due process, 4 that co-owner did not have a -- an innocent 5 owner defense. 6 And the Court held that, as But that does not dictate that the -­ 7 that that co-owner couldn't articulate an 8 excessive fines defense. 9 Indeed, three -­ JUSTICE SOTOMAYOR: 10 MR. HOTTOT: 11 JUSTICE SOTOMAYOR: Why? Well, three -­ If it's not 12 punitive against him, it's the property that is 13 being charged with having been involved in a 14 crime. 15 16 17 MR. HOTTOT: I see your question, Your Honor. I think that if someone had done 18 nothing wrong, let us say that someone steals 19 my car as I'm walking into a Target, commits a 20 bank robbery, and the police seize that vehicle 21 quite righteously, I mean, as a practical 22 matter, of course, the police are going to 23 return the vehicle to me. 24 25 But, if the State were to go so far as to institute forfeiture proceedings against Heritage Reporting Corporation Official - Subject to Final Review 18 1 that person, as Justice Kennedy recognized in 2 his Austin concurrence, there would be several 3 serious constitutional problems with that. 4 And it -- it may be that in those 5 circumstances, where I'm entirely blameless, 6 that the Court would hold that there is a 7 substantive due process right to reject that 8 forfeiture, or the Court would find it to be 9 grossly disproportionate to the gravity of the 10 11 nonexistent defense. So I think Bennis can be easily 12 reconciled with this case, particularly when -­ 13 when the Court looks at Justice Stevens' 14 dissent in Bennis, which with two other 15 Justices points out that Mrs. Bennis didn't 16 bring an excessive fines defense. 17 so, at least those three Justices would have 18 been inclined to rule in her favor. 19 JUSTICE ALITO: Had she done So you're saying even 20 if it's a classic in rem forfeiture of a kind 21 that's been known for centuries, that would 22 potentially violate the excessive fines clause? 23 MR. HOTTOT: Yes, Your Honor. This 24 Court has rejected the idea that states can 25 work their way around the excessive fines Heritage Reporting Corporation Official - Subject to Final Review 19 1 clause based on nothing more than a label. 2 This is not a labeling game. The 3 Court looks to the substance of what's 4 happening. 5 the Kokesh decision, that, you know, fines, 6 penalties, they sometimes serve several 7 purposes. 8 9 It emphasized that most recently in But, with respect to civil in rem forfeitures, if any of those purposes are 10 punitive in nature, then the defense can be 11 raised. 12 And that makes sense. JUSTICE BREYER: What is the situation 13 with jail, prison? I have a vague recollection 14 -- often such recollections are incorrect. 15 (Laughter.) 16 JUSTICE BREYER: But I have a vague 17 recollection that there was a case in which 18 California's three-strike law was applied to 19 sentence to life a person whose final offense 20 was stealing an $80 golf club. 21 majority said, no, we're not going to look at 22 that because it's too complicated. And I think the 23 Am I right? 24 If -- if that still is the law, which 25 Does that ring a bell? I think it is, it's something anomalous about Heritage Reporting Corporation Official - Subject to Final Review 20 1 saying, by the way, if you took his Mercedes, 2 we will look to see whether that's 3 disproportionate to taking a golf club, but if 4 you send him to jail for life, we won't. 5 Now have -- have I stated this 6 correctly and, if so, how do we -- how do we 7 deal with it? 8 9 MR. HOTTOT: Well, Your Honor, I think the most relevant authority here is the 10 Harmelin decision in which this Court, similar 11 to the situation you're describing, allowed a 12 person to be sentenced from -- a person from 13 Michigan to be sentenced to life without the 14 possibility of parole for having 650 grams of, 15 I believe it was cocaine. 16 And the Court reasoned that, look, 17 that amount of cocaine could be broken up and 18 easily used for distribution, so it's 19 appropriate in these circumstances to punish 20 that harshly. 21 Here, we're dealing with two grams -­ 22 JUSTICE BREYER: My question really 23 is, are there cases where we have said that the 24 punishment is disproportionate, where it's 25 simply a question of the degree of punishment, Heritage Reporting Corporation Official - Subject to Final Review 21 1 i.e., life imprisonment, and the nature of the 2 offense, e.g., stealing a golf club? 3 And do you see what I -- I'm not sure 4 there are, and, if there are not, it seems odd, 5 and I think I'd have to think about it, or 6 maybe we should address in some way your 7 argument, as to why there is that difference. 8 9 10 MR. HOTTOT: Your Honor, I -- I -- I think if we posit that difference, yes, it's -­ JUSTICE BREYER: Am I right, you're 11 saying there is a difference? 12 MR. HOTTOT: 13 Between sentencing a person for stealing a golf club to a life -­ 14 JUSTICE BREYER: 15 MR. HOTTOT: 16 JUSTICE BREYER: 17 MR. HOTTOT: Yeah. -- a life sentence? Uh-huh. I -- I think that, no, 18 there is no difference, and that if -- if there 19 is that tension between the excessive fines 20 clause and the cruel and unusual punishment 21 clause, that in an appropriate case this Court 22 should resolve it. 23 But, here, the question -­ JUSTICE GINSBURG: I thought the -­ 24 the three strikes, it wasn't simply stealing a 25 golf club, it was the third -- the third Heritage Reporting Corporation Official - Subject to Final Review 22 1 offense, so it was -- it was a punishment for 2 recidivist. 3 MR. HOTTOT: Absolutely, Your Honor, 4 and thank you for that. 5 JUSTICE BREYER: 6 Yeah. But also robbed a chicken coop. 7 (Laughter.) 8 MR. HOTTOT: 9 JUSTICE ALITO: Well -­ This gets me back to 10 the question I was asking before. 11 years' imprisonment is not a violation of the 12 Eighth Amendment, and, you know, you said it 13 might be, I think you might have something of 14 an uphill fight to prove that, but three years, 15 two years? 16 permissible term of imprisonment have to go in 17 order to justify a holding that a fine of 18 $42,000 is a violation of the Eighth Amendment? 19 If six How -- how low would the ceiling of What is the equation between the -­ 20 the monetary -- between dollars in -- in a fine 21 and time imprisonment? 22 MR. HOTTOT: Your -- Your Honor, 23 although it might be unsatisfying, the Court 24 has said repeatedly that there is no equation 25 and that there can be no equation because these Heritage Reporting Corporation Official - Subject to Final Review 23 1 situations are inherently real-world in nature 2 and that courts have been directed, 3 specifically with respect to in rem forfeitures 4 in the Bajakajian case, to assess all of the 5 circumstances. 6 And -- and as Justice Ginsburg was 7 assisting me, it -- it's absolutely the case 8 that the court has to look at not just the 9 value of the property, not just the gravity of 10 the offense, but also the offender himself and 11 his effect, potentially, on the community if he 12 remains at large. 13 There -- there's nothing new about 14 that. 15 the circumstances what is an appropriate 16 punishment. 17 case -- we're several step -- steps removed 18 from the question presented right now. 19 we're saying is that you have an excessive 20 fines defense that you may raise. 21 Trial judges every day assess in all of And all we're saying in this JUSTICE KAGAN: All So we are several 22 steps removed, but I think that the import of 23 some of these questions is, look, we've made it 24 awfully, awfully hard to assert a 25 disproportionality claim with respect even to Heritage Reporting Corporation Official - Subject to Final Review 24 1 imprisonment. 2 hard to assert a disproportionality claim with 3 respect to fines, we could incorporate this 4 tomorrow and it would have no effect on 5 anybody. 6 And if it's at least equally MR. HOTTOT: That's potentially true, 7 Your Honor, but the standard of assessing this 8 type of economic sanction, it's important to 9 recognize, is being developed as we speak in 10 11 the lower courts. This Court's decision in Bajakajian 12 has prompted the lower courts to try to 13 articulate factors. 14 factors; other courts use others. 15 appropriate case with full briefing and -- and 16 comment from amici, this Court can and should 17 decide that important question. 18 And some courts use some In an But this case merely insists that 19 Petitioner, like every other American, has the 20 right to raise the excessive fines defense and 21 that the Indiana courts can then assess the 22 situation. 23 CHIEF JUSTICE ROBERTS: Well, but 24 you're asking us to, you know, buy a pig in a 25 poke; in other words, you're saying incorporate Heritage Reporting Corporation Official - Subject to Final Review 25 1 this, but, you know, we're -- we don't even 2 know whether it means we're going to decide 3 whether $10,000 is enough or $20,000, or if 4 we're simply going to say something along the 5 lines of Harmelin, which it's not just that 6 it's whatever so many grams; it's that it's the 7 third offense, and so that's -- that's what's 8 the -- protection against that is fundamental 9 to a civilized society or whatever the standard 10 is that we've been applying. 11 MR. HOTTOT: 12 CHIEF JUSTICE ROBERTS: Well -­ And you say 13 don't worry about what it means; just 14 incorporate it and then figure it out later on. 15 MR. HOTTOT: Your Honor, I'm not 16 saying don't worry about it. 17 is a pressing question, and in an appropriate 18 case, I -- I think that the Court does need to 19 take it up. 20 I think that this But if we look to the Harmelin 21 decision, Justice Scalia's opinion in that case 22 points out that there is special reason to be 23 concerned when the government uses economic 24 sanctions to punish a person because, unlike 25 all other forms of punishment, whether it be Heritage Reporting Corporation Official - Subject to Final Review 26 1 life imprisonment, Justice Alito, or -- or a 2 three strikes law, those cost the government 3 money. 4 But these types of forfeitures and 5 fines raise revenue. 6 there's good history, for being concerned about 7 the sovereign power to raise revenue using 8 punishment. 9 And there's good reason, JUSTICE ALITO: Well, let me give you 10 two examples. What -- suppose your client, 11 instead of using a -- a Land Rover, was it? 12 MR. HOTTOT: Yes. 13 JUSTICE ALITO: Yes, a Land Rover, had 14 been using a 15-year-old Kia or, at the other 15 extreme, suppose that he used a Bugatti, which 16 costs like a quarter of a million dollars. 17 Would the Excessive Fine Clause apply 18 differently in those three cases? 19 20 21 MR. HOTTOT: applies the same. No, Your Honor. It The same test -­ JUSTICE ALITO: Well, would the result 22 be different? 23 car with a -- a book value of $1500, would the 24 result be different? 25 If he had been driving a -- a MR. HOTTOT: Well, Your Honor, we Heritage Reporting Corporation Official - Subject to Final Review 27 1 would have to know more. 2 what the gravity of the offense was. 3 4 JUSTICE ALITO: MR. HOTTOT: 6 JUSTICE ALITO: 8 9 We know. It is -­ it's the offense we have here. 5 7 We would have to know Okay. We know what the offense is. MR. HOTTOT: I -- I think in this instance, any forfeiture of the vehicle would 10 be excessive because this vehicle was not 11 instrumental to this crime. 12 It was incidental. It's no surprise that -- in rural 13 Indiana that a -- a person might drive 14 somewhere to -- to meet with someone. 15 doesn't make this vehicle somehow like a pirate 16 ship that had been sailing the high seas. 17 CHIEF JUSTICE ROBERTS: And that Well, that's 18 contrary to a lot of civil forfeiture law. 19 mean, this was an instrumentality of the crime. 20 This is how he got to the -- the deal place and 21 how he carried the drugs. 22 you're carrying the -- the drugs in your car, I 23 think it's pretty well established your -- your 24 car can be forfeited. 25 MR. HOTTOT: I Normally, I mean, Potentially, Your Honor. Heritage Reporting Corporation Official - Subject to Final Review 28 1 It's -- it's well established that the car is 2 subject to forfeiture. 3 well established that that would necessarily 4 not be excessive. 5 It is not, however, So if we look -­ CHIEF JUSTICE ROBERTS: Well, does it 6 make a difference -- we've been talking about 7 the value of the -- the item. 8 the person doing this, you know, was a 9 multimillionaire? 10 What if the -­ Forty-two thousand dollars doesn't seem excessive to him. 11 MR. HOTTOT: Well -­ 12 CHIEF JUSTICE ROBERTS: And -- and 13 yet, if someone is impoverished, it is 14 excessive? 15 Does that matter? MR. HOTTOT: Well, Your Honor, if the 16 Court looks to the brief of the Eighth 17 Amendment scholars, filed in support of neither 18 party, they discuss this. 19 principle of salvo contenemento, the idea that 20 you can't take from a man so much that he would 21 be destitute. 22 Magna Carta had the And the Court has suggested that -- in 23 -- in -- in the Bajakajian case, that that 24 might be a factor, but it -- but it 25 specifically declined in Bajakajian to Heritage Reporting Corporation Official - Subject to Final Review 29 1 articulate factors, recognizing that this is 2 highly contextual, highly fact-intensive, and 3 something that ought to be developed in the 4 lower courts before this Court pronounces any 5 particular test. 6 JUSTICE KAGAN: 7 federal side, how does this work? 8 forfeitures have been held unconstitutional? 9 Have any? 10 MR. HOTTOT: What is the -- on the What kind of Yes, Your Honor. The 11 Second Circuit's von Hofe decision is helpful. 12 That case dealt with a wife who was unaware 13 that her husband was cultivating marijuana in 14 the family home. 15 wrestled with that case, articulated factors 16 for assessing excessiveness, and determined 17 that that wife was entitled to return of a 18 portion of the property. 19 And the Second Circuit And -- and that's important to 20 recognize too. This isn't an all-or-nothing 21 thing. 22 Alito was talking about would be forfeited in 23 part and not in full, or that a person who was 24 particularly dependent on their vehicle, say 25 they're a mother and it's the -- the minivan It may be that the Bugatti that Justice Heritage Reporting Corporation Official - Subject to Final Review 30 1 that they use to get their children to school, 2 that a trial judge might determine that that is 3 constitutionally excessive. 4 Your Honors, if there are no further 5 questions, I'd like to reserve the balance of 6 my time. 7 8 CHIEF JUSTICE ROBERTS: Thank you, counsel. 9 General Fisher. 10 ORAL ARGUMENT OF THOMAS M. FISHER 11 ON BEHALF OF THE RESPONDENT 12 13 MR. FISHER: Mr. Chief Justice, and may it please the Court: 14 In rem forfeitures have been a feature 15 of the Anglo-American judicial system for 16 hundreds of years, but until about 25 years 17 ago, no court had held that they were subject 18 to a proportionality limitation. 19 constitutional doctrines may limit -­ 20 JUSTICE GORSUCH: While other General, before we 21 get to the in rem argument and its application 22 to this case, can we just get one thing off the 23 table? 24 Clause is incorporated against the states. 25 Whether this particular fine qualifies because We all agree that the Excessive Fines Heritage Reporting Corporation Official - Subject to Final Review 31 1 it's an in rem forfeiture, another question. 2 But can we at least get the -- the 3 theoretical question off the table, whether you 4 want to do it through the Due Process Clause 5 and look at history and tradition, you know, 6 gosh, excessive fines, guarantees against them 7 go back to Magna Carta and 1225, the English 8 Bill of Rights, the Virginia Declaration of 9 Rights, pretty deep history, or whether one 10 wants to look at privileges and immunities you 11 might come to the same conclusion. 12 least -- can we at least agree on that? 13 14 15 MR. FISHER: that. Can we at I have two responses to First -­ JUSTICE GORSUCH: Well, I -- I think 16 -- I think a "yes" or "no" would probably be a 17 good starting place. 18 (Laughter.) 19 MR. FISHER: Well, I think, with 20 respect to in personam, the answer is yes, but 21 you -- you have to take into account -- and 22 this is the methodology of McDonald. 23 to take into account the history and traditions 24 of the right being claimed. 25 You have Now the right being claimed here is a Heritage Reporting Corporation Official - Subject to Final Review 32 1 right of proportionality as to in rem 2 forfeitures. 3 that history, which is really not seriously 4 contested that that was never subject to 5 proportionality -­ 6 The Court has to grapple with JUSTICE GORSUCH: Well, whatever the 7 Excessive Fine Clause guarantees, we can argue, 8 again, about its scope and in rem and in 9 personam, but whatever it, in fact, is, it 10 applies against the states, right? 11 12 MR. FISHER: Well, again, that depends. 13 JUSTICE GORSUCH: I mean, most -- most 14 of the incorporation cases took place in like 15 the 1940s. 16 MR. FISHER: 17 JUSTICE GORSUCH: 18 Right. And here we are in 2018 -­ 19 MR. FISHER: Right. 20 JUSTICE GORSUCH: -- still litigating 21 incorporation of the Bill of Rights. 22 Come on, General. 23 MR. FISHER: Really? My -- well, I think what 24 you have to take into account, though, is the 25 history, and you have to take into account all Heritage Reporting Corporation Official - Subject to Final Review 33 1 the history, not just the in personam history, 2 the in rem history. 3 JUSTICE KAVANAUGH: Well, for the 4 clause, why do you have to take into account 5 all of the history, to pick up on Justice 6 Gorsuch's question? 7 the day to argue that any of the Bill of Rights 8 is not incorporated? 9 MR. FISHER: Isn't it just too late in The Court has never 10 incorporated a right against the states where 11 it could not conclude that there was a 12 relationship that was fundamental or -- and 13 deeply rooted in our history and tradition. 14 JUSTICE KAVANAUGH: But aren't -- but 15 aren't all -- all the Bill of Rights at this 16 point in our conception of what they stand for, 17 the history of each of them, incorporated? 18 MR. FISHER: Well, with fairness, not 19 with your -- respect to your concession -­ 20 conception on excessive fines, and Austin's 21 what stands in the way of that. 22 had been undermined by subsequent cases, 23 including Ursery, including Bajakajian, which, 24 by the way, was -­ 25 JUSTICE GINSBURG: Austin is -­ Bajakajian cited it Heritage Reporting Corporation Official - Subject to Final Review 34 1 in a footnote with seeming approval. 2 MR. FISHER: Well, that would -­ 3 that's -- one thing that's interesting about 4 that footnote is that it's as weak an 5 endorsement as I think we can imagine. 6 that Austin was justified by reference to some 7 difference between common law forfeitures and 8 so-called modern forfeitures. 9 It says Well, Austin didn't depend on that 10 distinction. And that distinction does not 11 exist. 12 are materially the same with respect to the 13 conceptual nature of them, that they are 14 against the property and not the person, with 15 respect to the procedural nation -- nature, 16 which is civil and not criminal. 17 JUSTICE KAGAN: The so-called modern-day forfeitures If I -- if I 18 understood your response to Justice Gorsuch, it 19 was essentially that we can't answer the 20 question wholesale, that we have to look at the 21 particular right being invoked. 22 So I guess the question is, do you 23 have a theory about how we go about dividing up 24 rights? 25 looking at a particular right against in rem You know, how do we decide that we're Heritage Reporting Corporation Official - Subject to Final Review 35 1 forfeitures as opposed to a general right 2 against excessive fines? 3 MR. FISHER: Well, I think McDonald 4 gives us some instruction on that. 5 talked about not simply the Second Amendment 6 but about the right to self-defense in the 7 home. 8 9 McDonald Other cases of incorporation this Court has decided have approached, for example, 10 reasonableness under the Fourth Amendment as 11 distinguished from, you know, the exclusionary 12 rule. 13 There are -- there are precedents that 14 do that, but there is no precedent where the 15 Court has incorporated a right that was not 16 deeply rooted or fundamental. 17 JUSTICE KAGAN: I mean, that seems to 18 make the incorporation question sort of 19 indistinguishable from the substantive 20 question. 21 MR. FISHER: I think you have to come 22 to grips with the history, whether you just -­ 23 whether you call it incorporation or you call 24 it the substantive merits question. 25 given you three different ways to do this. We've Heritage Reporting Corporation Official - Subject to Final Review 36 1 The most historically sound way is to 2 overrule Austin. 3 you can -­ 4 If you don't want to do that, JUSTICE GORSUCH: Well, counsel, you 5 know, if -- if -- just -- just to pause on that 6 for a second, you know, the Indiana Supreme 7 Court didn't address the merits questions, 8 didn't address any of this forfeiture, in rem, 9 in personam. 10 It just said that the Excessive Fines Clause is not incorporated, period. 11 Why isn't that just wrong? 12 you can go make these arguments about why it 13 doesn't apply to this case on remand. 14 15 16 And then Do you really want us to answer the merits questions too? MR. FISHER: Well, the problem with 17 relying on lower court percolation on the 18 merits question, in terms of whether Austin is 19 correct, is that Austin binds the lower courts. 20 They don't have an opportunity to revisit that. 21 22 23 This Court does. The matter has been -- has been -­ JUSTICE GORSUCH: Let's say this 24 Court's not inclined to revisit Austin. 25 going to lose not just the incorporation Heritage Reporting Corporation You're Official - Subject to Final Review 37 1 question but the merits question too. 2 Could these work? 3 MR. FISHER: Well, I'm not sure what 4 you mean by the -- the merits question in that 5 regard. 6 forfeiture is excessive, certainly, that 7 discussion would -- and that argument would 8 take place back in the Indiana Supreme Court. With respect to whether this 9 With respect to the meaning of Austin, 10 whether Austin remains good, I think, you know, 11 that's only something this Court can effect. 12 And I think, with respect to the 13 broader question, even if the question, Justice 14 Kagan, is -- is -- is the Excessive Fines 15 Clause as a whole, and not something where 16 we're going to slice and dice the rights, we 17 still have to take into account that history of 18 in rem forfeiture. 19 And we don't have any examples of 20 incorporation where there is this substantial 21 history that calls into question the 22 fundamental or deeply rooted nature of a -- a 23 -- a very large, you know, area where that 24 right would be applied. 25 JUSTICE GINSBURG: But we do have Heritage Reporting Corporation Official - Subject to Final Review 38 1 relatively recent history calling into question 2 the division between in rem and in personam. 3 Certainly, in the area of personal 4 jurisdiction, there was once quasi in rem 5 jurisdiction and personal jurisdiction, and 6 yet, in Shaffer against Heitner, the Court said 7 we're not going to do that anymore. 8 process controls both. 9 Due So, whether you label it in rem or in 10 personam, let's remember that it's -- things 11 don't have rights or obligations in and of 12 themselves. 13 obligations with respect to things. 14 It's people that have rights or MR. FISHER: Well, with respect to 15 Shaffer, I think what's critical there is the 16 word "quasi" because, of course, it was not a 17 straight-up in rem proceeding. 18 We're talking about the ability to 19 seize assets for a case where there had been an 20 in personam judgment. 21 distinguishes that category of cases from the 22 historical in rem forfeitures we're talking 23 about. 24 25 And that is -- that In rem is still critical for jurisdictional reasons, for -- it comes up in Heritage Reporting Corporation Official - Subject to Final Review 39 1 sovereign immunity. 2 that we can't assert sovereign immunity the 3 same way when we've got an in rem proceeding. 4 You've got other situations. 5 We already have a distinction in the double 6 jeopardy context where in rem is critical. 7 I don't think we can just wave -- you know, 8 wave it away. 9 It binds the states there JUSTICE ALITO: Double jeopardy. So What is the difference 10 between the approach that you're advocating 11 here and the way the court used to address the 12 question whether rights protected by the Bill 13 of Rights apply to the states, before it began 14 the process of incorporating provisions of the 15 Bill of Rights one by one, and it said that 16 what applied to the states were those rights 17 that were implicit in the concept of ordered 18 liberty. 19 So there was a two-tiered system. And 20 that seems to be what you're asking us to go 21 back to with respect to the Excessive Fines 22 Clause. 23 MR. FISHER: 24 JUSTICE ALITO: 25 We don't -­ Is there a difference? I -- I don't -- could you explain what is the Heritage Reporting Corporation Official - Subject to Final Review 40 1 difference between those two approaches? 2 MR. FISHER: Yes, indeed. We're not 3 suggesting some sort of systematic differential 4 treatment. 5 that the differences that exist between the 6 Bill of Rights rights that apply to the federal 7 government and the states are as a matter of 8 stare decisis. 9 In McDonald, the Court acknowledged Now, here, what we're saying is if 10 that -- if the -- in the analysis, because of 11 the lack of historical roots of the in rem 12 proportionality right, there ends up being a 13 difference, that has to be based on the stare 14 decisis of Austin. 15 If Austin remains good law only 16 because of stare decisis, that puts it in the 17 same category as those other cases. 18 systematic federalism discount, if you will, on 19 -- on the right. 20 JUSTICE ALITO: It's not a But, if Austin were 21 overruled, then the rule as applicable to the 22 federal government would change as well? 23 24 25 MR. FISHER: right. That's right. That's We would be in the same -­ JUSTICE ALITO: So I'm still not Heritage Reporting Corporation Official - Subject to Final Review 41 1 2 seeing the difference between them. MR. FISHER: Well, the difference 3 would be, if -- if you look at Austin -- if you 4 were to look at Austin and say, you know what, 5 Austin was dead right, historically -- this is 6 historically rooted and it is fundamental, then 7 I don't think there's any grounds for us to say 8 that there should be -- that the outcome should 9 be any different between the states and the 10 11 federal government. If you look at Austin and you say, you 12 know what, that's questionable, but we don't 13 want to overturn it because stare decisis 14 principles counsel against that, that's a -­ 15 that's a different analysis, and that's more 16 like Hurtado, more like Bombolis. 17 JUSTICE ALITO: Well, isn't that 18 pretty much what the dissent in McDonald said? 19 We don't like Heller, but at least let's just 20 keep it applicable to the District of Columbia 21 and the federal government and not apply it to 22 the states. 23 MR. FISHER: Well, I think that was a 24 -- a different -- for a different reason in 25 that the plurality acknowledged the distinction Heritage Reporting Corporation Official - Subject to Final Review 42 1 with Bombolis and Hurtado being purely a matter 2 of stare decisis. 3 principle we're -- we're calling on here, which 4 is, if -- if Austin remains good law only 5 because of stare decisis, that doesn't make 6 this a systematic, sort of discounted right. 7 And that's the basic That just means that, you know, you've 8 got as a question -- question of the Court's 9 history some other way you have to look at the 10 situation. 11 But I think it's critical to 12 understand also that the idea that somehow 13 so-called modern in rem forfeitures are 14 different from history because of the existence 15 of innocent owner exceptions is also not 16 correct. 17 Innocent owner exceptions did exist 18 within, you know, the last couple of hundred 19 years. 20 with the ratification or roughly 21 contemporaneous with the ratification of the 22 Fourteenth Amendment acknowledged that there -­ 23 there might be innocent owner defenses. 24 25 Indeed, authorities contemporaneous The treatise by Bishop says, if the law in its clemency permits an innocent owner Heritage Reporting Corporation Official - Subject to Final Review 43 1 to make a claim, that does not convert into 2 punishment that which was not already 3 punishment. 4 It doesn't make any difference. So whether we -- no matter how we look 5 at in rem forfeitures today and the features 6 that they exhibit, they're no different than 7 the historical in rem forfeitures that this 8 Court has said in -- in cases after Austin 9 calling Austin into question that they were not 10 punishment. 11 JUSTICE BREYER: Well, in your view, 12 an in rem civil forfeiture is not an excessive 13 fine, is that right? 14 15 16 MR. FISHER: Yes, that is -- that is true. JUSTICE BREYER: So what is to happen 17 if a state needing revenue says anyone who 18 speeds has to forfeit the Bugatti, Mercedes, or 19 a special Ferrari or even jalopy? 20 (Laughter.) 21 MR. FISHER: There -- no, there is no 22 -- there is no excessive fines issue there. 23 -- what I will say and what I think is 24 important to -- to remember is that there is a 25 constitutional limit, which is the proof of Heritage Reporting Corporation I Official - Subject to Final Review 44 1 instrumentality, the need to prove nexus. 2 JUSTICE BREYER: That isn't a problem 3 because it was the Bugatti in which he was 4 speeding. 5 (Laughter.) 6 MR. FISHER: 7 JUSTICE BREYER: 8 Right. So -- so there is all the nexus. 9 MR. FISHER: 10 Historically -­ JUSTICE BREYER: Now I just wonder, 11 what -- what is it? 12 permissible under the Constitution? 13 14 MR. FISHER: To forfeit the Bugatti JUSTICE BREYER: Yeah, and, by the way, it was only five miles an hour -­ 17 MR. FISHER: 18 JUSTICE BREYER: 19 Is that just for speeding? 15 16 What is it? Yeah. -- above the speed limit. 20 MR. FISHER: 21 answer is yes. 22 to the -­ Well, you know, the And I would call your attention 23 JUSTICE BREYER: 24 MR. FISHER: 25 JUSTICE BREYER: Is it yes? Yes, it's forfeitable. It is forfeitable? Heritage Reporting Corporation Official - Subject to Final Review 45 1 MR. FISHER: Yeah. The Louisa Barber 2 case, one person over the -- the passenger 3 limit and the entire ship is forfeit. 4 -- history shows us in rem forfeiture -­ 5 6 JUSTICE BREYER: (Laughter.) 8 MR. FISHER: 10 11 So if the airplane is speeding -­ 7 9 This is Well, in rem forfeitures have -- have -- have always been with us and they have always been harsh. JUSTICE SOTOMAYOR: General, yeah, 12 that -- that is true, but that's because at a 13 certain -- up to a certain point in our 14 history, we didn't apply the Bill of Rights to 15 the states. 16 So, in all of the situations before we 17 apply the Bill of Rights to this -- before we 18 apply the Bill of Rights to states, they did 19 things that under incorporation were 20 unconstitutional. 21 they were history going both ways. 22 did; some states didn't. 23 And in most of our cases, Some states So really what the issue that we have 24 to look at isn't -- is where has our 25 understanding come to in terms of a particular Heritage Reporting Corporation Official - Subject to Final Review 46 1 Bill of Rights? 2 long part of history that punitive sanctions 3 cannot be excessive. 4 it very well: 5 limit cash fines while permitting -- permitting 6 limitless in-kind assessments would make little 7 sense, altering only the form of the Star 8 Chamber abuses. 9 And in Austin, we said it is a And Justice Scalia said For the Eighth Amendment to So, at a certain point in Austin, we 10 looked at what had happened to in rem 11 forfeiture and realized that we had just 12 changed the Star Chamber form. 13 I -- I -- I don't actually understand 14 your argument based on history because, without 15 incorporation, the history's going to be what 16 you want it to be. 17 fundamental right. 18 The real question is the Are we trying to avoid a society 19 that's like the Char -- Star Chamber? 20 we look at these forfeitures that are occurring 21 today, and that's what Austin documented, many 22 of them seem grossly disproportionate to the 23 crimes being charged. 24 25 And if So how do you deal with that? we avoid a Star Chamber return? Heritage Reporting Corporation How do Official - Subject to Final Review 47 1 MR. FISHER: Well, the history that's 2 relevant is not simply the history of what 3 states were doing. 4 what the federal government was doing. 5 there was no suggestion that before the civil 6 rights amendments were passed that the federal 7 government, when all of its harsh in rem 8 forfeitures, was somehow violating the 9 Excessive Fines Clause. 10 11 It's also the history of And There was no proportionality limit there. Now I think, with respect to 12 understanding, you know, how we view today's 13 forfeitures, you can't distinguish what's 14 happening now from historically -- history 15 when, historically, an innocent owner was 16 never -- you know, not entitled to a defense. 17 How -- how would we ever say -- and I 18 think Justice Scalia makes this point -- how 19 would we ever say that a forfeiture as to an 20 innocent owner was proportional because the 21 owner is innocent? 22 23 24 25 So the -- that has never been part of the equation. JUSTICE GORSUCH: Well, the -- the part that's different about modern forfeitures Heritage Reporting Corporation Official - Subject to Final Review 48 1 -- and I think that is what Justice Sotomayor 2 is getting at -- is that many of them are 3 punitive to the person and that that was not 4 part of in rem forfeitures at common law. 5 MR. FISHER: Well -­ 6 JUSTICE GORSUCH: We're dealing with a 7 world in which it's different in kind, not just 8 degree, not just a number but in kind. 9 that's what Justice Scalia, that's what 10 everybody, in Austin agreed on. 11 unanimous. 12 MR. FISHER: 13 JUSTICE GORSUCH: And That much was Well -­ And I guess I'm 14 asking you, given the concession by the State 15 before the Indiana Supreme Court that the 16 forfeiture here was punitive, if we do -- don't 17 overrule Austin, and you want us to apply not 18 just the question of incorporation but go to 19 the merits, don't you lose? 20 MR. FISHER: No, I don't think we lose 21 because I don't think -- the -- the question of 22 punitive and remedial is -- is something that 23 Austin borrowed from Halper. 24 has been overruled as to -- as to double 25 jeopardy. That test has -­ Heritage Reporting Corporation Official - Subject to Final Review 49 1 Now, if it remains the test with 2 respect to something that -- whether it's 3 encompassed within the Excessive Fines Clause, 4 there still has to be the -- the analysis. 5 mean, we have to figure out what 6 disproportionate means. 7 JUSTICE GORSUCH: Sure. 8 conceded that it's punitive. 9 question of proportionality. 10 MR. FISHER: I But you Now it becomes a But -- but I don't think 11 you can take these on a case-by-case basis. 12 think it's -- you have to say what is the right 13 being claimed. 14 particular forfeiture was punitive or not. 15 It's a question of whether in rem forfeitures 16 are of the -- of the sort that are swept within 17 the Excessive Fines Clause. 18 they -­ 19 It's not whether this JUSTICE GORSUCH: And, historically, The statute here 20 says it's punitive and you conceded the 21 statute's punitive. 22 -- how do you get out of that box? 23 I MR. FISHER: So I'm still stuck on how Well, I -- I suppose -- I 24 mean, if -- if that's -- if it's the magic word 25 "punitive," we can just change the statute, but Heritage Reporting Corporation Official - Subject to Final Review 50 1 I don't think that would be a very satisfactory 2 result. 3 I think what the Court is probably 4 looking for is some better way to -- to 5 describe what is included within the Excessive 6 Fines Clause, something more substantive than 7 that. 8 clear that this distinction between punitive 9 and remedial simply falls apart. And the cases after Austin all make 10 You know, you -- the idea of 11 deterrence in Austin, the thought was, if it's 12 deterrent, that makes it punishment. 13 Court's now rejected that in Hudson and in 14 other cases. 15 of the test doesn't hold up anymore either. 16 So I think you have to go back and And in Bajakajian. Well, the So that part 17 look at this entire -- you know, whether -- you 18 have to look very critically at the idea that 19 there's something different about modern-day 20 forfeitures. 21 no material distinction, between them and what 22 was happening at common law and certainly what 23 was happening in the middle of the 19th 24 Century. 25 There really is no distinction, So I think the other critical thing to Heritage Reporting Corporation Official - Subject to Final Review 51 1 bear in mind here is that if we get into the 2 idea that we're somehow going to apply a 3 grossly disproportionate test akin to the way 4 it comes up in -- in the in personam cases, 5 effectively, you're going to be wiping away 6 centuries of -- of precedent, not just Bennis 7 but other innocent owner cases, Van Oster, the 8 Little Charles, the Malek Adhel, all these 9 cases that say that an innocent owner has no 10 11 constitutional defense. And if it somehow has to come down to 12 the relationship between the -- the guilt of 13 the owner and the crime, then those precedents, 14 I think, simply cannot stand any longer. 15 think you're -- you're in this situation where 16 you're confronted with which -- you know, which 17 source of doctrine are we going to override. So I 18 CHIEF JUSTICE ROBERTS: 19 going to be wiping all that away or just 20 leaving that for another day? 21 -- what -- I guess this gets back to Justice 22 Gorsuch's first question. 23 Well, are we I mean, it -- it I mean, the question presented is does 24 the Excessive Fines Clause -- you know, is it 25 incorporated in the Eighth Amendment? And I Heritage Reporting Corporation Official - Subject to Final Review 52 1 guess your argument is -- seems to be this 2 isn't an excessive fine, and, in fact, it isn't 3 a fine at all. 4 5 Well, we can deal with that later, right? 6 MR. FISHER: Well, first of all, of 7 course, it's in front of you now, so why not. 8 It's been -- you know, it's been briefed and 9 the lower courts can't come to any opposite 10 conclusion. 11 percolate. 12 So you're not -- it's not going to But the second point is that even if 13 we were to say we're not going to revisit 14 Austin, the history of the right is still 15 critical. 16 to inform the question of incorporation. 17 McDonald tells us that. And it has And the Court has never incorporated 18 where there's that kind of history that is four 19 square against the right that's being claimed. 20 And I think that that is going to have to 21 inform the way -­ 22 CHIEF JUSTICE ROBERTS: Well, you just 23 -- you just want us to make sure that in our 24 opinion that we say, if we're ruling against 25 you, that the excessive fines are incorporate Heritage Reporting Corporation Official - Subject to Final Review 53 1 -- incorporated under -- under our 2 incorporation doctrine and not say civil in rem 3 forfeitures are incorporated? 4 MR. FISHER: Well, but if that's all 5 the Court says, unfortunately, the lower courts 6 are going to then read Austin and say, well, 7 you're at civil in rem and so that's part of 8 excessive fines. 9 you know, going to have a court that's going to And -- and when are we ever, 10 create any kind of -- of -- of, you know, 11 dispute on that point? 12 13 JUSTICE SOTOMAYOR: clear, you're asking us to overrule Austin? 14 15 MR. FISHER: I think that's the most historically -­ 16 17 So, just so I'm JUSTICE SOTOMAYOR: Because that's the only way that you can win with a straight face? 18 MR. FISHER: 19 (Laughter.) 20 MR. FISHER: No, I don't -­ Not with a straight face. 21 No. Look, I think that's the most historically 22 sound thing to do. 23 that's -- if you're unwilling to do that, that 24 cannot be the -- the end of the analysis on 25 incorporation because, again, you have to take But I don't think that Heritage Reporting Corporation Official - Subject to Final Review 54 1 into account under your precedents the history 2 of the right being claimed. 3 Not just some of the history, not just 4 the in personam history, but also the in rem 5 history. 6 And there's no -­ JUSTICE KAGAN: But, again, it -- it 7 just seems as though there are two questions. 8 And one question is incorporating the right, 9 and the other question is the scope of the 10 11 right to be incorporated. And, really, what you're arguing is 12 about the scope of the right. 13 MR. FISHER: 14 JUSTICE KAGAN: 15 Well, but I'm -­ the right -­ 16 MR. FISHER: 17 JUSTICE KAGAN: 18 19 And we can incorporate Yeah. -- without saying a word about the scope of the right. Now, as you say, Austin says something 20 about the scope of the right, and that's a 21 problem for you. 22 asking us to talk about the scope of the right, 23 aren't you? 24 25 But -- but you're really MR. FISHER: Well, certainly, that would -- that's our -- what we think is the Heritage Reporting Corporation Official - Subject to Final Review 55 1 most historically sound thing to do, but even 2 if you, you know, assume that away and were 3 just looking at what this -- whether we're 4 going to incorporate the right, the test for 5 incorporation is historically rooted or -- or 6 fundamental to ordered liberty. 7 And to answer that question, you have 8 to look at the history of the right. 9 right includes -­ 10 JUSTICE KAGAN: If the Well, that's why -­ 11 why I asked at the beginning what's your theory 12 for how you define the right and which history 13 you look to -­ 14 MR. FISHER: Yeah. 15 JUSTICE KAGAN: -- because you're 16 really suggesting that we don't take the right 17 wholesale; we try to chop it up. 18 you know, there are always going to be 19 questions about the scope of the right to be 20 incorporated. 21 And I guess, And, so far, we have not addressed 22 those questions when we've decided whether to 23 flip the switch of incorporation or not. 24 understood those questions to be distinct 25 and -- and to be questions for another day. Heritage Reporting Corporation We've Official - Subject to Final Review 56 1 And why is it that you're saying we 2 should not use that pretty standard practice 3 and instead start chopping up the right at the 4 incorporation stage? 5 6 MR. FISHER: to do it. 7 We think that's one way We don't think that's the only way. And if, indeed, the Court doesn't want 8 to chop up the right and it wants to just look 9 at the excessive fines clause, it has to look 10 at all the history, and that includes the 11 history of in rem. 12 And our view is that history means 13 that you can't incorporate. 14 history is only in personam, then I don't think 15 there's any serious question about 16 incorporation. 17 If -- if the But if the history includes the in rem 18 history, the much larger history, the much -­ 19 the largely uncontested history, that is -­ 20 then there is no precedent for incorporating in 21 that circumstance where -- where there was that 22 amount of history standing four square against 23 a substantial number of applications of the 24 right. 25 that. There just isn't anything to look to on Heritage Reporting Corporation Official - Subject to Final Review 57 1 JUSTICE KAVANAUGH: You cited McDonald 2 as an example earlier of a case where the Court 3 had, in your view, chopped up the right as 4 incorporated. 5 Amendment has a different scope after McDonald? 6 Are you saying the Second MR. FISHER: Oh, no, no, no. No, what 7 -- what I'm saying is that the methodology of 8 McDonald, when doing the incorporation 9 analysis, was to ask, what's the right being 10 claimed? 11 right to have guns in the home for 12 self-defense. 13 as to how you look at the right. 14 And the right being claimed was the And we think that's instructive JUSTICE KAVANAUGH: But you agree 15 post-McDonald -- and this is similar, I think, 16 to what Justice Kagan's asking -- that the -­ 17 the right is the same as against the states and 18 the federal government? 19 MR. FISHER: Oh, yes. Oh, yes. But, 20 again, we're not dealing there with the same 21 stare decisis issue that we are grappling with 22 with respect to Austin, which I think is -­ 23 puts this in -- more like in the Hurtado and 24 Bombolis category. 25 We're not asking for a -- again, we're Heritage Reporting Corporation Official - Subject to Final Review 58 1 not asking for a federalism discount. 2 we're asking for is some ability to take 3 cognizance of -- of stare decisis without 4 sacrificing the necessary historical analysis. 5 JUSTICE ALITO: What Well, at the time of 6 McDonald and at the present time, all the -­ 7 the Court has held that the Second Amendment 8 right protects the right to have certain 9 firearms in the home for self-defense. 10 11 It hasn't gone further. But if this Court were to go further, 12 let's say in a case -- in another case 13 involving the District of Columbia, and said 14 that the right included something more than 15 that, would we have to go through another round 16 of incorporation inquiry to determine whether 17 this broader right applies to the state, or 18 would it follow automatically under McDonald 19 that it -- it applies to the states? 20 MR. FISHER: Well, I think 21 particularly given the methodology the Court 22 would use in coming to grips with what that new 23 right is, it would likely just follow. 24 see there would be any need for -- because it 25 would be essentially the same analysis anyway. Heritage Reporting Corporation I don't Official - Subject to Final Review 59 1 But you -- you know, I think the idea 2 here that you can simply look at one part of 3 the history without looking at all of it, you 4 know, I don't think that you can look to -- to 5 McDonald or any of the other precedents and 6 have guidance for that. 7 You have to take -- you can't just 8 ignore it. You have to do something with it. 9 You have to take it into account. And whether 10 that means chopping it up or, you know, 11 grappling with the right as a whole and saying 12 that that history counsels against 13 incorporation, or simply overruling Austin, 14 that's -- you know, one of these ways has to 15 take into account the in rem history. 16 So, you know, that's -- I think, you 17 know, we offer those -- those three suggestions 18 and -- and, you know, we think historically, 19 the most historically sound thing to do is to 20 overrule Austin. 21 So I think, you know, we've got also 22 grounds for saying that Austin is -- I think 23 fits within the Court's precedents on when to 24 overrule cases notwithstanding stare decisis. 25 In -- in Hudson, this Court has Heritage Reporting Corporation Official - Subject to Final Review 60 1 already said that the test that Austin applies 2 that comes out of Halper is unworkable. 3 gone through the history in Bajakajian and 4 largely shown that Austin was wrongly decided. 5 It has There isn't any serious reliance 6 interest, I think, that would mean that there 7 was going to be some sort of disruption if 8 Austin were overruled. 9 normal factors the Court takes into account So, you know, the 10 with respect to its precedents, I think, are 11 not barriers here to over -- overruling Austin. 12 And the -- the other thing, I think, 13 you know, you -- you almost can't get away from 14 the prospect of at least implicitly overruling 15 precedent no matter what you do here. 16 not going to be Austin, then it's going to be 17 the innocent owner cases, Bennis, Van Oster, 18 all those precedents. 19 If it's And I think it's instructive here that 20 my friend cites to the dissent in Bennis, 21 acknowledging that, if you're going to 22 incorporate a grossly disproportionate 23 analysis, then really what you've got to do is 24 start getting away from the innocent owner, you 25 know, the lack of a required innocent owner Heritage Reporting Corporation Official - Subject to Final Review 61 1 exception, that that's going to become 2 something that is going to have to be part of 3 that analysis. 4 Now Justice Scalia, I -- I do want to 5 call your attention to in -- in Austin, in his 6 concurrence, was grappling with this -- this 7 idea, as can we do something that's grossly 8 disproportionate on in rem the way we would do 9 it in personam. 10 And his concern was, you know what, 11 maybe really what it comes down to is simply 12 this idea of nexus. 13 was describing there is essentially what we're 14 describing that would be the proper test under 15 due process. 16 And the nexus test that he You know, is there a connection 17 between the property and the offense? 18 think that belongs in due process. 19 Scalia, I think, was onto something there when 20 he was acknowledging that there really has to 21 be a different treatment. 22 history, given all those -- those precedents of 23 the Court, there has to be a differential 24 treatment. 25 And we But Justice Given all that And at the end of the day, I think, Heritage Reporting Corporation Official - Subject to Final Review 62 1 you know, what you've got to do here when 2 you're looking at this incorporation question 3 is not simply be, you know, I think, you know, 4 cavalier about the idea of this is easy to 5 incorporate. 6 You don't want to do that, I think, 7 without taking a very careful look at what is 8 the right that you're actually incorporating 9 and does it fit with the doctrines and the 10 history of the Court and all of the ways that 11 it's handled incorporation before. 12 13 And if there's nothing else, I'll cede the remainder of my time. 14 15 Thank you. CHIEF JUSTICE ROBERTS: Thank you, General. 16 Mr. Hottot, four minutes. 17 REBUTTAL ARGUMENT OF WESLEY P. HOTTOT 18 ON BEHALF OF THE PETITIONER 19 MR. HOTTOT: Your Honors, this case is 20 about constitutional housekeeping. 21 over the last 30 years, this Court has remarked 22 that the freedom from excessive economic 23 sanctions should be understood to apply to the 24 states. 25 Five times In Hall, in Kennedy, in Roper, in Heritage Reporting Corporation Official - Subject to Final Review 63 1 Cooper Industries, and in Booth, all that 2 remains to do is to expressly so hold. 3 My friend's approach, by contrast, is 4 radical. 5 a unanimous decision that has been on the books 6 for 25 years, that was reaffirmed in Hudson, in 7 Bajakajian, and, again, in Kokesh. 8 9 He asks the Court to overrule Austin, And that case looked at the same history that my friend urges this Court to 10 review here. It would allow, if the Court were 11 to overrule Austin, governments at all levels 12 to impose constitutionally excessive civil in 13 rem forfeitures based on nothing more than a 14 label. 15 This is not a labeling game. 16 It would also revive the so-called 17 two-track approach that this Court has rejected 18 now for more than 50 years. 19 So even if we imagine that -- that the 20 Court would take such a radical approach, it -­ 21 it would break with, for example, the 22 commercial speech doctrine, which there was a 23 long history of commercial speech activity in 24 this country before the 1970s decision in which 25 this Court held that there is a commercial Heritage Reporting Corporation Official - Subject to Final Review 64 1 speech right, and did so in a case against the 2 state without even pausing on the incorporation 3 question. 4 So, you know, even if some forfeitures 5 are non-punitive, other forfeitures are 6 punitive. 7 clearly meets Austin's test that it be at least 8 partly punitive. And the forfeiture in this case 9 If the Court looks to Indiana Code 10 34-24-1-4(a), it shows that this statute is 11 more punitive than the statute at issue in 12 Austin because it required the -- the state in 13 its case-in-chief to prove that Petitioner knew 14 about or should have known about the crime at 15 issue here, and that is not true under 21 16 U.S.C. 881, the statute at issue in Austin. 17 Both statutes have innocent owner 18 defenses. 19 punitive, not less. 20 21 If the Court has no further questions. Thank you, Your Honor. 22 23 24 25 So, if anything, this is more CHIEF JUSTICE ROBERTS: counsel. Thank you, The case is submitted. (Whereupon, at 11:01 a.m., the case was submitted.) Heritage Reporting Corporation 65 Official - Subject to Final Review � $ $10,000 [1] 25:3 $1500 [1] 26:23 $20,000 [1] 25:3 $42,000 [3] 14:3,5 22:18 $500,000 [1] 8:12 $80 [1] 19:20 1 1 [1] 6:7 1's [1] 6:15 10 [1] 9:23 10:04 [2] 1:15 3:2 11:01 [1] 64:24 1225 [1] 31:7 13th [1] 13:12 140 [1] 9:4 15-year-old [1] 26:14 17-1091 [1] 3:4 1940s [1] 32:15 1970s [1] 63:24 19th [1] 50:23 7,8 39:11 barriers [1] 60:11 based [4] 19:1 40:13 46:14 63:13 26:17 36:13 39:13 40:6 41:21 45: basic [1] 42:2 14,17,18 48:17 51:2 62:23 basis [1] 49:11 applying [1] 25:10 bear [2] 9:2 51:1 approach [9] 4:8,22,23 5:10,11 39: become [1] 61:1 10 63:3,17,20 becomes [1] 49:8 approached [1] 35:9 began [1] 39:13 approaches [1] 40:1 beginning [2] 4:20 55:11 appropriate [5] 20:19 21:21 23:15 behalf [8] 1:20,22 2:4,7,10 3:8 30: 18,24 26:20 32:10 58:17,19 60:1 addressed [2] 5:18 55:21 addressing [1] 3:24 Adhel [1] 51:8 adopt [2] 4:7 13:16 Adopting [1] 4:23 advocating [1] 39:10 affirmed [1] 10:24 ago [1] 30:17 agree [4] 7:18 30:23 31:12 57:14 agreed [1] 48:10 Aguilar [1] 4:21 airplane [1] 45:5 akin [1] 51:3 ALITO [26] 5:13 6:5,9 9:21 10:2,9 11:4,12 13:24 14:17,20 18:19 22: 9 26:1,9,13,21 27:3,6 29:22 39:9, 24 40:20,25 41:17 58:5 all-or-nothing [1] 29:20 allow [1] 63:10 allowed [1] 20:11 allowing [1] 11:21 almost [1] 60:13 2 alongside [1] 3:20 already [5] 4:25 15:17 39:5 43:2 2018 [2] 1:11 32:18 [1] 60:1 21 64:15 altering [1] 46:7 25 [2] 30:16 63:6 alternative [1] 6:14 28 [1] 1:11 although [1] 22:23 3 Amendment [19] 5:2,19 6:8 9:2 3 [1] 2:4 10:12 14:1,5,6 15:10 22:12,18 28: 30 [3] 2:7 3:23 62:21 17 35:5,10 42:22 46:4 51:25 57:5 330 [1] 15:11 58:7 34-24-1-4(a [1] 64:10 Amendment's [2] 3:21 6:12 amendments [1] 47:6 5 American [1] 24:19 50 [3] 4:2,19 63:18 Americans [1] 15:11 6 amici [1] 24:16 amount [3] 14:15 20:17 56:22 62 [1] 2:10 amounts [1] 12:16 [1] 650 20:14 analysis [11] 8:24,24 40:10 41:15 8 49:4 53:24 57:9 58:4,25 60:23 61: 881 [1] 64:16 3 [1] 30:15 Anglo-American A [2] 9:13,15 animal a.m [3] 1:15 3:2 64:24 anomalous [2] 4:15 19:25 ability [2] 38:18 58:2 another [6] 6:22 31:1 51:20 55:25 above [1] 44:18 58:12,15 above-entitled [1] 1:13 [6] 3:17 31:20 34:19 36:14 answer absolutely [5] 5:17 11:14 14:25 44:21 55:7 22:3 23:7 anybody [1] 24:5 abstract [2] 13:4,6 anyway [1] 58:25 abuses [1] 46:8 apart [1] 50:9 accomplished [1] 7:17 Apodaca [1] 4:17 account [10] 31:21,23 32:24,25 33: Appeals [1] 10:24 4 37:17 54:1 59:9,15 60:9 APPEARANCES [1] 1:17 acknowledged [3] 40:4 41:25 42: appears [1] 3:16 22 applicable [2] 40:21 41:20 acknowledging [2] 60:21 61:20 application [2] 11:5 30:21 action [1] 8:13 application-by-application [1] activity [2] 16:2 63:23 5:11 actual [2] 3:18 10:10 [1] 56:23 applications actually [3] 12:22 46:13 62:8 [3] 19:18 37:24 39:16 applied address [7] 11:1,10 15:20 21:6 36: applies [12] 3:12 4:1,2 5:5 6:4 15: apply [16] 4:4,6 6:25 12:24 13:17 24:15 25:17 11 62:18 approval [1] 34:1 area [2] 37:23 38:3 aren't [3] 33:14,15 54:23 argue [3] 8:20 32:7 33:7 arguing [1] 54:11 argument [19] 1:14 2:2,5,8 3:4,7 5: believe [1] 20:15 believing [2] 15:17,18 bell [1] 19:23 belongs [1] 61:18 Bennis [7] 16:25 18:11,14,15 51:6 4 6:14 7:11,15 8:6 13:25 21:7 30: 10,21 37:7 46:14 52:1 62:17 arguments [3] 7:5,12 36:12 arms [1] 9:3 around [1] 18:25 articulate [4] 15:6 17:7 24:13 29:1 articulated [3] 11:9,17 29:15 asks [1] 63:4 assert [3] 23:24 24:2 39:2 assess [7] 11:22 12:3 13:2,6 23:4, 14 24:21 assessing [2] 24:7 29:16 assessments [1] 46:6 asset [1] 8:15 assets [2] 8:15 38:19 assisting [1] 23:7 assume [3] 13:24 15:21 55:2 assumption [1] 12:3 attempts [1] 12:23 attention [2] 44:21 61:5 Austin [53] 7:24 8:2 9:11 15:17 16: 3,7,12 18:2 33:21 34:6,9 36:2,18, 19,24 37:9,10 40:14,15,20 41:3,4, 5,11 42:4 43:8,9 46:1,9,21 48:10, 17,23 50:7,11 52:14 53:6,13 54: 19 57:22 59:13,20,22 60:1,4,8,11, 16 61:5 63:4,11 64:12,16 Austin's [2] 33:20 64:7 authoritatively [1] 15:23 authorities [1] 42:19 authority [1] 20:9 automatically [1] 58:18 avoid [2] 46:18,25 away [8] 16:4,16 39:8 51:5,19 55:2 60:13,24 awfully [2] 23:24,24 better [1] 50:4 between [16] 8:11 21:12,19 22:19, B back [6] 22:9 31:7 37:8 39:21 50: 16 51:21 bad [1] 16:20 Bajakajian [15] 7:25 9:11 11:8,24 12:21,24 23:4 24:11 28:23,25 33: 23,25 50:14 60:3 63:7 balance [1] 30:5 bank [1] 17:20 Barber [1] 45:1 60:17,20 20 34:7 38:2 39:10 40:1,5 41:1,9 50:8,21 51:12 61:17 Bill [13] 4:4 5:7 31:8 32:21 33:7,15 39:12,15 40:6 45:14,17,18 46:1 binds [2] 36:19 39:1 Bishop [1] 42:24 Blackstone [1] 13:1 blameless [1] 18:5 Bombolis [4] 5:24 41:16 42:1 57: 24 book [1] 26:23 books [1] 63:5 Booth [1] 63:1 borrowed [1] 48:23 both [3] 38:8 45:21 64:17 box [1] 49:22 break [1] 63:21 BREYER [17] 19:12,16 20:22 21: 10,14,16 22:5 43:11,16 44:2,7,10, 15,18,23,25 45:5 brief [1] 28:16 briefed [1] 52:8 briefing [1] 24:15 bring [1] 18:16 broader [3] 12:18 37:13 58:17 broken [1] 20:17 Bugatti [5] 26:15 29:21 43:18 44:3, 13 buy [1] 24:24 C California's call [4] 35:23,23 44:21 61:5 calling [3] 38:1 42:3 43:9 calls [1] 37:21 came [1] 1:13 cannot [3] 46:3 51:14 53:24 car [5] 17:19 26:23 27:22,24 28:1 careful [1] 62:7 Carpenter [1] 5:3 carried [1] 27:21 carrying [1] 27:22 Carta [2] 28:18 31:7 Case [43] 3:4 4:17 5:3,19 7:3,25 8: [1] 19:18 1 9:3 12:4,21,23 13:16 14:9,10 15: Heritage Reporting Corporation Sheet 1 $10,000 - Case 66 Official - Subject to Final Review � 2 17:1,1 18:12 19:17 21:21 23:4,7, 17 24:15,18 25:18,21 28:23 29:12, 15 30:22 36:13 38:19 45:2 57:2 58:12,12 62:19 63:8 64:1,6,23,24 case-by-case [1] 49:11 case-in-chief [1] 64:13 cases [18] 4:12,15 20:23 26:18 32: 14 33:22 35:8 38:21 40:17 43:8 45:20 50:7,14 51:4,7,9 59:24 60: 17 cash [1] 46:5 category [3] 38:21 40:17 57:24 caught [1] 14:15 cavalier [1] 62:4 cede [1] 62:12 ceiling [1] 22:15 cell [1] 5:3 centuries [2] 18:21 51:6 Century [2] 13:12 50:24 certain [4] 45:13,13 46:9 58:8 certainly [6] 7:10 8:20 37:6 38:3 50:22 54:24 certiorari [1] 13:23 Chamber [4] 46:8,12,19,25 change [2] 40:22 49:25 changed [1] 46:12 Char [1] 46:19 charged [2] 17:13 46:23 Charles [1] 51:8 chicken [1] 22:6 CHIEF [17] 3:3,9 7:4 8:5,18 12:2 24:23 25:12 27:17 28:5,12 30:7, 12 51:18 52:22 62:14 64:22 children [1] 30:1 chop [2] 55:17 56:8 chopped [1] 57:3 chopping [2] 56:3 59:10 Circuit [1] 29:14 Circuit's [2] 12:23 29:11 circumstance [1] 56:21 circumstances [10] 11:23 12:4, 12,15,25 14:8 18:5 20:19 23:5,15 cited [2] 33:25 57:1 cites [1] 60:20 citizen [1] 6:21 citizens [2] 13:18,21 civil [11] 7:8 9:14 13:7 19:8 27:18 34:16 43:12 47:5 53:2,7 63:12 civilized [1] 25:9 claim [3] 23:25 24:2 43:1 claimed [7] 31:24,25 49:13 52:19 54:2 57:10,10 classic [1] 18:20 clause [31] 4:1 6:4,12,15,25 7:22 11:16 15:4,12,17,23 16:9,14 18: 22 19:1 21:20,21 26:17 30:24 31: 4 32:7 33:4 36:10 37:15 39:22 47: 9 49:3,17 50:6 51:24 56:9 clear [4] 6:4 14:10 50:8 53:13 clearly [1] 64:7 clemency [1] 42:25 client [2] 9:21 26:10 closest [1] 14:11 club [5] 19:20 20:3 21:2,13,25 co-owner [3] 17:1,4,7 cocaine [2] 20:15,17 Code [1] 64:9 cognizance [1] 58:3 Columbia [2] 41:20 58:13 come [7] 5:25 31:11 32:22 35:21 COURT [79] 1:1,14 3:10,22 4:14, 18 5:1,18,20,25 7:23 8:25 9:1,11 10:24,25 11:8,16,23 13:5 15:5,7, 14,20,22 17:2 18:6,8,13,24 19:3 20:10,16 21:21 22:23 23:8 24:16 25:18 28:16,22 29:4 30:13,17 32: 2 33:9 35:9,15 36:7,17,21 37:8,11 45:25 51:11 52:9 comes [6] 16:14,18 38:25 51:4 60: 38:6 39:11 40:4 43:8 48:15 50:3 52:17 53:5,9 56:7 57:2 58:7,11,21 2 61:11 59:25 60:9 61:23 62:10,21 63:4,9, coming [1] 58:22 10,17,20,25 64:9,20 comment [1] 24:16 commercial [3] 63:22,23,25 Court's [7] 7:2 13:15 24:11 36:24 42:8 50:13 59:23 commit [2] 16:19 17:2 commits [1] 17:19 courts [12] 8:3 15:15 23:2 24:10, 12,13,14,21 29:4 36:19 52:9 53:5 common [3] 34:7 48:4 50:22 community [2] 10:18 23:11 create [1] 53:10 complicated [1] 19:22 crime [15] 7:14,16 8:16 12:15,16, 17 14:12,24 16:19 17:2,14 27:11, component [1] 6:9 19 51:13 64:14 conceded [2] 49:8,20 concept [1] 39:17 crimes [1] 46:23 conception [2] 33:16,20 criminal [4] 4:12,15 16:2 34:16 conceptual [1] 34:13 critical [6] 38:15,24 39:6 42:11 50: 25 52:15 concern [1] 61:10 concerned [2] 25:23 26:6 critically [1] 50:18 concession [2] 33:19 48:14 Cruel [2] 11:15 21:20 conclude [1] 33:11 cultivating [1] 29:13 conclusion [2] 31:11 52:10 currently [2] 6:24 8:25 concurrence [3] 4:16 18:2 61:6 D confines [1] 16:14 [1] 1:10 D.C confronted [1] 51:16 day [7] 6:22 12:1 23:14 33:7 51:20 connection [1] 61:16 55:25 61:25 Constitution [2] 6:6 44:12 [1] 41:5 dead Constitutional [6] 14:18 18:3 30: deal [4] 20:7 27:20 46:24 52:4 19 43:25 51:10 62:20 dealing [7] 9:13 12:7,16 14:15 20: constitutionally [2] 30:3 63:12 21 48:6 57:20 [2] contemporaneous 42:19,21 dealt [1] 29:12 contenemento [1] 28:19 decide [3] 24:17 25:2 34:24 contested [1] 32:4 decided [3] 35:9 55:22 60:4 [2] context 11:13 39:6 decision [12] 4:15 6:22 9:4 10:25 contextual [1] 29:2 13:15 19:5 20:10 24:11 25:21 29: continue [1] 7:1 11 63:5,24 [1] contrary 27:18 decisis [9] 40:8,14,16 41:13 42:2, contrast [2] 13:4 63:3 5 57:21 58:3 59:24 control [1] 4:19 [1] 31:8 Declaration [1] controls 38:8 [2] 15:21 28:25 declined convert [1] 43:1 deemed [1] 16:24 convicted [2] 9:22 12:17 deep [1] 31:9 coop [1] 22:6 deeply [6] 3:12 6:23 13:9 33:13 35: Cooper [1] 63:1 [5] correct 5:4 9:24 10:5 36:19 42: 16 37:22 defendant [2] 15:2 16:2 16 defense [14] 15:3,12,13 16:4,17 correctly [1] 20:6 17:5,8 18:10,16 19:10 23:20 24: [1] cost 26:2 20 47:16 51:10 costs [1] 26:16 [2] 42:23 64:18 defenses couldn't [1] 17:7 [1] 55:12 define [4] counsel 30:8 36:4 41:14 64:23 degree [2] 20:25 48:8 counsels [1] 59:12 denied [1] 15:13 count [1] 16:8 depend [1] 34:9 country [1] 63:24 dependent [1] 29:24 counts [1] 12:7 depends [1] 32:12 [1] County 10:17 describe [1] 50:5 couple [1] 42:18 describing [3] 20:11 61:13,14 course [6] 6:21 8:6 14:19 17:22 destitute [1] 28:21 38:16 52:7 detention [1] 10:6 determine [3] 15:7 30:2 58:16 determined [2] 10:18 29:16 deterrence [1] 50:11 deterrent [1] 50:12 developed [2] 24:9 29:3 dice [1] 37:16 dictate [1] 17:6 difference [13] 21:7,9,11,18 28:6 34:7 39:9,24 40:1,13 41:1,2 43:3 differences [1] 40:5 different [19] 6:1 7:5,13 9:13,15 26:22,24 35:25 41:9,15,24,24 42: 14 43:6 47:25 48:7 50:19 57:5 61: 21 differential [2] 40:3 61:23 differently [1] 26:18 directed [1] 23:2 directly [1] 3:25 discount [2] 40:18 58:1 discounted [1] 42:6 discuss [1] 28:18 discussion [1] 37:7 disproportion [1] 7:11 disproportionality [3] 13:3 23:25 24:2 disproportionate [12] 10:19 11:6, 18 14:12 18:9 20:3,24 46:22 49:6 51:3 60:22 61:8 dispute [2] 3:17 53:11 disruption [1] 60:7 dissent [3] 18:14 41:18 60:20 distinct [1] 55:24 distinction [8] 8:11 34:10,10 39:5 41:25 50:8,20,21 distinguish [1] 47:13 distinguished [1] 35:11 distinguishes [1] 38:21 distribution [1] 20:18 District [2] 41:20 58:13 dividing [1] 34:23 division [1] 38:2 doctrine [4] 4:9 51:17 53:2 63:22 doctrines [2] 30:19 62:9 documented [1] 46:21 doing [4] 28:8 47:3,4 57:8 dollars [3] 22:20 26:16 28:9 done [2] 17:17 18:16 Double [3] 39:4,5 48:24 Doubtless [1] 8:22 down [3] 15:15 51:11 61:11 drive [1] 27:13 driving [1] 26:22 drugs [5] 12:8,17 14:15 27:21,22 Due [8] 6:12,25 17:3 18:7 31:4 38: 7 61:15,18 E e.g each [1] 33:17 earlier [1] 57:2 easily [3] 3:20 18:11 20:18 easy [2] 13:6 62:4 economic [3] 24:8 25:23 62:22 [1] 21:2 Heritage Reporting Corporation Sheet 2 Case - economic 67 Official - Subject to Final Review � effect [3] 23:11 24:4 37:11 far [2] 17:24 55:21 effectively [1] 51:5 favor [1] 18:18 Eighth [10] 3:21 10:11 14:1,4,6 22: feature [1] 30:14 12,18 28:16 46:4 51:25 features [1] 43:5 either [2] 5:17 50:15 federal [13] 4:2,6 8:3 14:18 17:3 29:7 40:6,22 41:10,21 47:4,6 57: emphasized [2] 11:23 19:4 18 emphasizing [1] 15:9 encompassed [1] 49:3 federalism [2] 40:18 58:1 end [3] 11:21 53:24 61:25 felt [1] 14:12 endorsement [1] 34:5 Ferrari [1] 43:19 ends [1] 40:12 few [1] 5:13 enforced [1] 9:10 fight [1] 22:14 English [1] 31:7 figure [2] 25:14 49:5 enjoy [1] 13:19 filed [1] 28:17 enough [1] 25:3 final [1] 19:19 entire [2] 45:3 50:17 find [2] 15:21 18:8 entirely [1] 18:5 fine [10] 14:3,5 22:17,20 26:17 30: 25 32:7 43:13 52:2,3 entitled [2] 29:17 47:16 equally [1] 24:1 fined [1] 8:12 equation [4] 22:19,24,25 47:23 fines [37] 3:11,19 6:4 7:7,21 11:13 13:11,19 15:4,12 17:8 18:16,22, era [1] 5:22 25 19:5 21:19 23:20 24:3,20 26:5 especially [2] 4:9 10:23 30:23 31:6 33:20 35:2 36:10 37: ESQ [4] 1:19 2:3,6,9 14 39:21 43:22 46:5 47:9 49:3,17 essential [1] 8:9 50:6 51:24 52:25 53:8 56:9 essentially [3] 34:19 58:25 61:13 established [3] 27:23 28:1,3 firearms [1] 58:9 even [13] 10:20 11:1,24 18:19 23: first [5] 8:18 11:9 31:14 51:22 52:6 25 25:1 37:13 43:19 52:12 55:1 first-time [1] 14:14 63:19 64:2,4 FISHER [53] 1:21 2:6 30:9,10,12 31:13,19 32:11,16,19,23 33:9,18 event [1] 9:10 34:2 35:3,21 36:16 37:3 38:14 39: everybody [1] 48:10 23 40:2,23 41:2,23 43:14,21 44:6, exact [1] 4:5 9,13,17,20,24 45:1,8 47:1 48:5,12, example [3] 35:9 57:2 63:21 20 49:10,23 52:6 53:4,14,18,20 examples [2] 26:10 37:19 54:13,16,24 55:14 56:5 57:6,19 exception [2] 5:8 61:1 58:20 exceptions [2] 42:15,17 excessive [50] 3:11,19 6:3 7:7 8: fit [1] 62:9 19 12:6 13:8,11,19 15:3,8,12,19 fits [1] 59:23 16:25 17:8 18:16,22,25 21:19 23: five [4] 3:22 10:7 44:16 62:20 19 24:20 26:17 27:10 28:4,10,14 flip [1] 55:23 30:3,23 31:6 32:7 33:20 35:2 36:9 follow [2] 58:18,23 37:6,14 39:21 43:12,22 46:3 47:9 footnote [2] 34:1,4 49:3,17 50:5 51:24 52:2,25 53:8 forfeit [3] 43:18 44:13 45:3 56:9 62:22 63:12 forfeitable [2] 44:24,25 excessiveness [7] 7:12 8:23 11:2 forfeited [2] 27:24 29:22 12:19 15:6,20 29:16 forfeiting [1] 7:13 exclusionary [1] 35:11 forfeiture [27] 7:20 9:15 12:25 15: 8,16,19 16:1,5,13,15 17:25 18:8, Excuse [1] 12:21 20 27:9,18 28:2 31:1 36:8 37:6,18 exhibit [1] 43:6 43:12 45:4 46:11 47:19 48:16 49: exist [3] 34:11 40:5 42:17 14 64:6 existence [1] 42:14 explain [1] 39:25 forfeitures [33] 7:9,21 11:25 13:8, 9,18 16:8 19:9 23:3 26:4 29:8 30: expressly [1] 63:2 14 32:2 34:7,8,11 35:1 38:22 42: extreme [1] 26:15 F face [2] 53:17,20 fact [2] 32:9 52:2 fact-intensive [2] 12:20 29:2 factor [1] 28:24 factors [5] 24:13,14 29:1,15 60:9 fairness [1] 33:18 falls [1] 50:9 family [1] 29:14 freedom [4] 3:11,19 13:11 62:22 friend [3] 9:8 60:20 63:9 friend's [3] 5:4 13:16 63:3 front [1] 52:7 full [2] 24:15 29:23 fundamental [10] 3:14 6:23 8:10 25:8 33:12 35:16 37:22 41:6 46: 17 55:6 further [5] 4:24 30:4 58:10,11 64: 20 harsh [2] 45:10 47:7 harshly [1] 20:20 hazardous [1] 12:8 hear [1] 3:3 Heitner [1] 38:6 held [6] 15:16 17:2 29:8 30:17 58: 7 63:25 Heller [2] 9:4 41:19 helpful [1] 29:11 hence [1] 13:10 high [1] 27:16 G highly [2] 29:2,2 game [2] 19:2 63:15 himself [1] 23:10 gather [1] 7:6 historic [2] 7:20 9:9 General [7] 1:21 30:9,20 32:22 35: historical [4] 38:22 40:11 43:7 58: 1 45:11 62:15 gets [2] 22:9 51:21 getting [2] 48:2 60:24 GINSBURG [9] 4:10,13 5:9 6:17, 4 historically [13] 36:1 41:5,6 44:9 47:14,15 49:17 53:15,21 55:1,5 59:18,19 20 21:23 23:6 33:25 37:25 history [55] 3:13 6:2,2 26:6 31:5,9, give [1] 26:9 23 32:3,25 33:1,1,2,5,13,17 35:22 given [6] 10:23 35:25 48:14 58:21 37:17,21 38:1 42:9,14 45:4,14,21 61:21,22 46:2,14 47:1,2,3,14 52:14,18 54:1, gives [1] 35:4 3,4,5 55:8,12 56:10,11,12,14,17, golf [5] 19:20 20:3 21:2,13,25 18,18,19,22 59:3,12,15 60:3 61:22 GORSUCH [14] 30:20 31:15 32:6, 62:10 63:9,23 13,17,20 34:18 36:4,23 47:24 48: history's [1] 46:15 6,13 49:7,19 Hofe [2] 12:23 29:11 Gorsuch's [2] 33:6 51:22 Hogan [1] 4:20 gosh [1] 31:6 hold [3] 18:6 50:15 63:2 got [7] 27:20 39:3,4 42:8 59:21 60: holding [1] 22:17 23 62:1 holds [2] 4:3 15:23 government [11] 4:2,6 25:23 26:2 home [5] 10:6 29:14 35:7 57:11 58: 40:7,22 41:10,21 47:4,7 57:18 9 governments [1] 63:11 Honor [26] 6:8,13 7:19 8:22 10:6, grams [3] 20:14,21 25:6 13 11:7,15 12:19 14:7,25 16:23 Grant [1] 10:17 17:16 18:23 20:8 21:8 22:3,22 24: grapple [1] 32:2 7 25:15 26:19,25 27:25 28:15 29: grappling [3] 57:21 59:11 61:6 10 64:21 gravity [7] 10:15 11:19 13:3 14:13 Honors [3] 12:21 30:4 62:19 18:9 23:9 27:2 HOTTOT [52] 1:19 2:3,9 3:6,7,9 4: grips [2] 35:22 58:22 13 5:16 6:7,13,19 7:18 8:17,22 9: grossly [9] 10:19 11:5,18 14:12 18: 25 10:5,13 11:7,14 12:19 14:7,19, 9 46:22 51:3 60:22 61:7 25 16:11,21,23 17:10,15 18:23 20: ground [1] 14:11 8 21:8,12,15,17 22:3,8,22 24:6 25: grounds [2] 41:7 59:22 11,15 26:12,19,25 27:5,8,25 28:11, guarantee [1] 15:11 15 29:10 62:16,17,19 guarantees [2] 31:6 32:7 hour [1] 44:16 guess [5] 34:22 48:13 51:21 52:1 housekeeping [1] 62:20 55:17 however [1] 28:2 guidance [1] 59:6 Hudson [4] 8:1 50:13 59:25 63:6 guilt [1] 51:12 hundred [1] 42:18 guns [1] 57:11 hundreds [1] 30:16 Hurtado [4] 5:24 41:16 42:1 57:23 H 13 43:5,7 45:8 46:20 47:8,13,25 husband [1] 29:13 Hall [1] 62:25 48:4 49:15 50:20 53:3 63:13 64:4, [2] Halper 48:23 60:2 I 5 handled [1] 62:11 [1] 21:1 i.e form [2] 46:7,12 happen [1] 43:16 idea [10] 18:24 28:19 42:12 50:10, forms [1] 25:25 happened [1] 46:10 18 51:2 59:1 61:7,12 62:4 Forty-two [1] 28:9 happening [4] 19:4 47:14 50:22, [1] 59:8 ignore [3] four 52:18 56:22 62:16 23 illegal [1] 12:8 Fourteenth [3] 6:8 15:10 42:22 hard [2] 23:24 24:2 imagine [2] 34:5 63:19 Fourth [3] 5:2 6:11 35:10 Harmelin [3] 20:10 25:5,20 Immunities [2] 6:15 31:10 [1] free 5:2 Heritage Reporting Corporation Sheet 3 effect - Immunities 68 Official - Subject to Final Review � immunity [2] 39:1,2 impact [1] 10:18 implicit [1] 39:17 implicitly [1] 60:14 import [1] 23:22 important [6] 13:14 16:11 24:8,17 involved [2] 12:14 17:13 law [10] 19:18,24 26:2 27:18 34:7 involving [1] 58:13 40:15 42:4,25 48:4 50:22 isn't [11] 5:14 29:20 33:6 36:11 41: least [9] 16:13 18:17 24:1 31:2,12, 29:19 43:24 impose [2] 14:22 63:12 impoverished [1] 28:13 imprisonment [13] 9:23 10:1,3,10 11:13 13:25 14:4 21:1 22:11,16, 21 24:1 26:1 in-kind [1] 46:6 incidental [1] 27:11 inclined [2] 18:18 36:24 included [2] 50:5 58:14 includes [3] 55:9 56:10,17 including [2] 33:23,23 incorporate [9] 24:3,25 25:14 52: 25 54:14 55:4 56:13 60:22 62:5 incorporated [22] 4:4 5:1,9,14 6: 24 9:1,5 13:10,13 30:24 33:8,10, 17 35:15 36:10 51:25 52:17 53:1, 3 54:10 55:20 57:4 incorporating [4] 39:14 54:8 56: 20 62:8 incorporation [32] 3:20,24 4:3,9 5:22 8:8,24 13:5 15:22 32:14,21 35:8,18,23 36:25 37:20 45:19 46: 15 48:18 52:16 53:2,25 55:5,23 56:4,16 57:8 58:16 59:13 62:2,11 64:2 incorporations [1] 4:11 incorrect [1] 19:14 Indeed [4] 17:8 40:2 42:19 56:7 INDIANA [19] 1:6,21,22 3:5,16 10: 17,23,24,25 13:15,18 15:13,19 24: 21 27:13 36:6 37:8 48:15 64:9 Indianapolis [1] 1:22 indistinguishable [1] 35:19 individual [1] 8:14 Industries [1] 63:1 inform [2] 52:16,21 inherently [1] 23:1 innocent [18] 16:4,5,17,18 17:4 42: 15,17,23,25 47:15,20,21 51:7,9 60: 17,24,25 64:17 inquiry [1] 58:16 insignificant [1] 12:13 insists [1] 24:18 instance [1] 27:9 instead [2] 26:11 56:3 institute [1] 17:25 instruction [1] 35:4 instructive [2] 57:12 60:19 instrumental [1] 27:11 instrumentalities [1] 7:14 instrumentality [2] 27:19 44:1 interest [1] 60:6 interesting [1] 34:3 interpose [1] 15:3 interpreted [1] 5:1 invite [1] 4:24 invoked [1] 34:21 item [1] 28:7 17 44:2 45:24 52:2,2 56:24 60:5 issue [7] 5:24 43:22 45:23 57:21 64:11,15,16 J jail [2] 19:13 20:4 jalopy [1] 43:19 jeopardy [3] 39:4,6 48:25 Judge [3] 10:16 14:11 30:2 judges [4] 11:21 12:1 14:21 23:14 judgment [1] 38:20 judicial [1] 30:15 jurisdiction [4] 9:16 38:4,5,5 jurisdictional [1] 38:25 jurisdictions [1] 13:22 jury [2] 4:12,15 JUSTICE [117] 3:3,9 4:10,13 5:8, 12 41:19 60:14 64:7 leave [2] 6:17,20 leaving [1] 51:20 less [1] 64:19 levels [1] 63:11 liberty [4] 3:15 6:10 39:18 55:6 life [7] 19:19 20:4,13 21:1,13,15 26: 1 lighter [1] 12:13 likely [1] 58:23 limit [6] 30:19 43:25 44:19 45:3 46: 5 47:10 limitation [1] 30:18 limitless [1] 46:6 lines [1] 25:5 litigants [1] 9:9 litigating [1] 32:20 litigation [1] 4:25 13 6:5,9,17,19 7:4 8:5,18 9:21 10: little [2] 46:6 51:8 2,9 11:4,12 12:2 13:24 14:17,20 long [3] 5:21 46:2 63:23 15:25 16:16,22 17:9,11 18:1,13, longer [1] 51:14 19 19:12,16 20:22 21:10,14,16,23 look [32] 10:14 12:14 16:25 19:21 22:5,9 23:6,21 24:23 25:12,21 26: 1,9,13,21 27:3,6,17 28:5,12 29:6, 21 30:7,12,20 31:15 32:6,13,17,20 33:3,5,14,25 34:17,18 35:17 36:4, 23 37:13,25 39:9,24 40:20,25 41: 17 43:11,16 44:2,7,10,15,18,23,25 45:5,11 46:3 47:18,24 48:1,6,9,13 49:7,19 51:18,21 52:22 53:12,16 54:6,14,17 55:10,15 57:1,14,16 58:5 61:4,18 62:14 64:22 Justices [2] 18:15,17 justified [1] 34:6 justify [1] 22:17 K 20:2,16 23:8,23 25:20 28:4 31:5, 10 34:20 41:3,4,11 42:9 43:4 45: 24 46:20 50:17,18 53:21 55:8,13 56:8,9,24 57:13 59:2,4 62:7 looked [3] 10:17 46:10 63:8 looking [5] 34:25 50:4 55:3 59:3 62:2 looks [4] 18:13 19:3 28:16 64:9 lose [4] 8:15 36:25 48:19,20 lot [2] 8:21 27:18 Louisa [1] 45:1 low [1] 22:15 lower [7] 24:10,12 29:4 36:17,19 52:9 53:5 KAGAN [10] 23:21 29:6 34:17 35: M 17 37:14 54:6,14,17 55:10,15 Kagan's [1] 57:16 KAVANAUGH [4] 33:3,14 57:1,14 keep [2] 9:2 41:20 Kennedy [2] 18:1 62:25 Kia [1] 26:14 kind [7] 13:20 18:20 29:7 48:7,8 52:18 53:10 known [2] 18:21 64:14 Kokesh [4] 8:1 9:12 19:5 63:7 L label [3] 19:1 38:9 63:14 labeling [2] 19:2 63:15 lack [2] 40:11 60:25 Land [2] 26:11,13 large [2] 23:12 37:23 largely [2] 56:19 60:4 larger [1] 56:18 last [3] 3:23 42:18 62:21 late [3] 4:8,24 33:6 later [3] 9:5 25:14 52:4 Laughter [7] 19:15 22:7 31:18 43: 20 44:5 45:7 53:19 made [2] 7:15 23:23 magic [1] 49:24 Magna [2] 28:18 31:7 majority [1] 19:21 Malek [1] 51:8 Malloy [1] 4:20 man [1] 28:20 many [4] 12:8 25:6 46:21 48:2 Mapp [1] 4:21 marijuana [1] 29:13 material [1] 50:21 materially [1] 34:12 matter [9] 1:13 17:3,22 28:14 36: 21 40:7 42:1 43:4 60:15 maximum [1] 9:23 McDonald [18] 4:14,18,21 5:10,21 9:3 31:22 35:3,4 40:4 41:18 52:15 57:1,5,8 58:6,18 59:5 mean [15] 7:14 8:13 11:12 12:4 17: 21 27:19,21 32:13 35:17 37:4 49: 5,24 51:20,23 60:6 meaning [2] 7:22 37:9 means [6] 25:2,13 42:7 49:6 56:12 59:10 meet [1] 27:14 meets [1] 64:7 Mercedes [2] 20:1 43:18 merely [3] 15:1,9 24:18 merits [7] 35:24 36:7,15,18 37:1,4 48:19 methodology [3] 31:22 57:7 58: 21 Michigan [1] 20:13 middle [1] 50:23 might [12] 5:25 7:19 12:8 14:22 22: 13,13,23 27:13 28:24 30:2 31:11 42:23 miles [1] 44:16 million [2] 15:11 26:16 mind [1] 51:1 minimum [1] 10:8 minivan [1] 29:25 minutes [1] 62:16 modern [3] 34:8 42:13 47:25 modern-day [2] 34:11 50:19 monetary [1] 22:20 money [1] 26:3 months [2] 12:6,11 morning [1] 3:4 most [12] 8:1 9:12 19:4 20:9 32:13, 13 36:1 45:20 53:14,21 55:1 59: 19 mother [1] 29:25 much [8] 12:11,12,18 28:20 41:18 48:10 56:18,18 multimillionaire [1] 28:9 N name [1] 9:14 nation [1] 34:15 nation's [1] 3:13 nature [7] 16:10 19:10 21:1 23:1 34:13,15 37:22 necessarily [2] 12:20 28:3 necessary [1] 58:4 need [3] 25:18 44:1 58:24 needing [1] 43:17 neither [1] 28:17 never [5] 32:4 33:9 47:16,22 52:17 new [3] 15:6 23:13 58:22 nexus [4] 44:1,8 61:12,12 non-citizens [3] 6:18,20 7:1 non-punitive [1] 64:5 non-unanimous [2] 4:11,14 nonexistent [1] 18:10 normal [1] 60:9 Normally [1] 27:21 noted [1] 5:8 nothing [7] 11:20,20 17:18 19:1 23:13 62:12 63:13 notwithstanding [1] 59:24 November [1] 1:11 number [2] 48:8 56:23 O obligations [2] 38:11,13 occurring [1] 46:20 Heritage Reporting Corporation Sheet 4 immunity - occurring 69 Official - Subject to Final Review � odd [1] 21:4 offender [3] 14:14,24 23:10 offense [15] 9:22 10:15,17 11:19 13:4 14:2 19:19 21:2 22:1 23:10 25:7 27:2,4,7 61:17 offer [1] 59:17 officer [1] 9:18 often [1] 19:14 okay [2] 8:11 27:5 once [1] 38:4 one [17] 5:8 7:21 8:18,20 10:7 14: 21 16:1 30:22 31:9 34:3 39:15,15 45:2 54:8 56:5 59:2,14 one-justice [1] 4:16 only [11] 4:24 12:10 16:8 37:11 40: 15 42:4 44:16 46:7 53:17 56:6,14 opinion [2] 25:21 52:24 opportunity [3] 11:2,10 36:20 opposed [1] 35:1 opposite [1] 52:9 oral [5] 1:13 2:2,5 3:7 30:10 order [1] 22:17 ordered [3] 3:14 39:17 55:6 Oster [2] 51:7 60:17 other [20] 3:21 13:22 18:14 24:14, 19,25 25:25 26:14 30:18 35:8 39: 4 40:17 42:9 50:14,25 51:7 54:9 59:5 60:12 64:5 others [2] 5:13 24:14 ought [1] 29:3 ourselves [1] 13:7 out [10] 6:18,20 13:22 16:10 18:15 25:14,22 49:5,22 60:2 outcome [1] 41:8 over [5] 3:22 4:19 45:2 60:11 62: 21 override [1] 51:17 overrule [7] 36:2 48:17 53:13 59: 20,24 63:4,11 overruled [3] 40:21 48:24 60:8 overruling [3] 59:13 60:11,14 overturn [1] 41:13 owner [19] 16:4,5,17,18 17:5 42: 15,17,23,25 47:15,20,21 51:7,9,13 60:17,24,25 64:17 P PAGE parole [1] 20:14 part [10] 15:9 29:23 46:2 47:22,25 [1] 2:2 48:4 50:14 53:7 59:2 61:2 particular [11] 12:4,15 14:10,23, 24 29:5 30:25 34:21,25 45:25 49: 14 particularly [3] 18:12 29:24 58:21 partly [2] 16:13 64:8 party [1] 28:18 passed [1] 47:6 passenger [1] 45:2 pattern [1] 9:9 pause [1] 36:5 pausing [1] 64:2 penalties [1] 19:6 people [4] 9:19 12:5,8 38:12 percolate [1] 52:11 percolation [1] 36:17 period [1] 36:10 permissible [2] 22:16 44:12 permits [1] 42:25 permitting [2] 46:5,5 person [12] 18:1 19:19 20:12,12 21:13 25:24 27:13 28:8 29:23 34: 14 45:2 48:3 person's [1] 9:17 personal [3] 9:16 38:3,5 personam [11] 31:20 32:9 33:1 36: 9 38:2,10,20 51:4 54:4 56:14 61:9 petition [1] 13:23 Petitioner [11] 1:4,20 2:4,10 3:8 6: 21 10:20 15:13 24:19 62:18 64:13 philosophy [1] 14:21 phone [1] 5:3 pick [1] 33:5 pig [1] 24:24 pirate [2] 9:17 27:15 place [4] 27:20 31:17 32:14 37:8 please [2] 3:10 30:13 plurality [1] 41:25 point [8] 7:23,25 33:16 45:13 46:9 47:18 52:12 53:11 pointed [1] 13:22 points [2] 18:15 25:22 poke [1] 24:25 police [2] 17:20,22 portion [1] 29:18 posit [1] 21:9 possibility [1] 20:14 possible [2] 5:23 14:3 Possibly [1] 10:13 post-McDonald [1] 57:15 potentially [4] 18:22 23:11 24:6 27:25 power [2] 9:19 26:7 practical [1] 17:21 practice [1] 56:2 practices [1] 7:20 precedent [6] 4:3,20 35:14 51:6 56:20 60:15 precedents [8] 35:13 51:13 54:1 59:5,23 60:10,18 61:22 predate [1] 5:21 present [1] 58:6 presented [5] 3:18 6:3 15:1 23:18 51:23 pressing [1] 25:17 pretty [5] 8:19 27:23 31:9 41:18 56: 2 primary [1] 7:7 principle [2] 28:19 42:3 principles [1] 41:14 prison [2] 10:21 19:13 Privileges [2] 6:15 31:10 probably [2] 31:16 50:3 probation [1] 10:7 problem [3] 36:16 44:2 54:21 problems [1] 18:3 procedural [1] 34:15 proceeding [3] 11:22 38:17 39:3 proceedings [1] 17:25 Process [9] 6:12,25 17:3 18:7 31: 4 38:8 39:14 61:15,18 real [2] 12:24 46:16 real-world [1] 23:1 realized [1] 46:11 really [12] 20:22 32:3,21 36:14 45: prohibited [1] 7:8 23 50:20 54:11,21 55:16 60:23 61: prompted [1] 24:12 11,20 pronounces [1] 29:4 proof [1] 43:25 reason [7] 3:19 4:7,17 9:7 25:22 26:5 41:24 proper [1] 61:14 property [10] 9:18,20 10:20 16:19, reasonableness [1] 35:10 22 17:12 23:9 29:18 34:14 61:17 reasoned [1] 20:16 proportional [1] 47:20 reasoning [1] 7:2 proportionality [7] 10:15 30:18 reasons [1] 38:25 32:1,5 40:12 47:10 49:9 REBUTTAL [2] 2:8 62:17 proportionate [1] 7:16 recent [1] 38:1 proposed [1] 5:12 recently [3] 8:1 9:12 19:4 prospect [1] 60:14 recidivist [1] 22:2 protected [2] 6:11 39:12 recognize [4] 13:14 16:12 24:9 29: 20 protection [2] 13:19 25:8 protections [2] 3:21 4:4 recognized [7] 4:14,18 5:21 9:11 13:1,12 18:1 protects [1] 58:8 prove [3] 22:14 44:1 64:13 recognizing [1] 29:1 provision [1] 6:6 recollection [2] 19:13,17 provisions [1] 39:14 recollections [1] 19:14 punish [2] 20:19 25:24 reconciled [1] 18:12 punishable [1] 9:22 reference [1] 34:6 Punishment [14] 11:16,18 16:6 regard [1] 37:5 20:24,25 21:20 22:1 23:16 25:25 regardless [1] 7:2 26:8 43:2,3,10 50:12 reject [1] 18:7 punitive [20] 15:16 16:8,10,13 17: rejected [4] 9:3 18:24 50:13 63:17 12 19:10 46:2 48:3,16,22 49:8,14, rejecting [1] 4:21 20,21,25 50:8 64:6,8,11,19 relationship [2] 33:12 51:12 purely [1] 42:1 relatively [1] 38:1 purpose [1] 15:10 relevant [2] 20:9 47:2 purposes [3] 8:7 19:7,9 reliance [1] 60:5 puts [2] 40:16 57:23 relied [1] 16:1 relitigate [1] 5:5 Q rely [2] 6:6 8:2 qualifies [1] 30:25 relying [1] 36:17 quantities [1] 12:14 rem [48] 7:8,20 9:14 11:25 12:25 quarter [1] 26:16 13:8,9,17 16:1 18:20 19:8 23:3 30: quartering [1] 5:20 14,21 31:1 32:1,8 33:2 34:25 36:8 quasi [2] 38:4,16 37:18 38:2,4,9,17,22,24 39:3,6 40: question [49] 3:18,25 6:3 11:3 13: 11 42:13 43:5,7,12 45:4,8 46:10 5 15:1,21 17:15 20:22,25 21:22 22:10 23:18 24:17 25:17 31:1,3 33:6 34:20,22 35:18,20,24 36:18 37:1,1,4,13,13,21 38:1 39:12 42:8, 8 43:9 46:16 48:18,21 49:9,15 51: 22,23 52:16 54:8,9 55:7 56:15 62: 2 64:3 questionable [1] 41:12 questions [11] 8:23 23:23 30:5 36: 7,15 54:7 55:19,22,24,25 64:20 quite [2] 7:12 17:21 R radical 63:4,20 raise [4] 23:20 24:20 26:5,7 raised [1] 19:11 ratification [2] 42:20,21 reach [1] 11:2 read [1] 53:6 reading [1] 16:7 reaffirmed [2] 7:24 63:6 [3] 11:21 47:7 48:4 49:15 53:2,7 54:4 56:11, 17 59:15 61:8 63:13 remainder [1] 62:13 remains [6] 23:12 37:10 40:15 42: 4 49:1 63:2 remand [2] 15:14 36:13 remarked [1] 62:21 remedial [2] 48:22 50:9 remember [2] 38:10 43:24 removed [2] 23:17,22 repeatedly [1] 22:24 require [1] 9:7 required [3] 9:8 60:25 64:12 reserve [1] 30:5 resolve [1] 21:22 respect [20] 7:13 11:24 19:8 23:3, 25 24:3 31:20 33:19 34:12,15 37: 5,9,12 38:13,14 39:21 47:11 49:2 57:22 60:10 Respondent [4] 1:7,23 2:7 30:11 response [1] 34:18 Heritage Reporting Corporation Sheet 5 odd - response 70 Official - Subject to Final Review � responses [1] 31:13 result [4] 8:3 26:21,24 50:2 results [2] 4:16 5:25 return [3] 17:23 29:17 46:25 revenue [3] 26:5,7 43:17 reverse [1] 15:14 review [1] 63:10 revisit [3] 36:20,24 52:13 revive [1] 63:16 right-by-right [1] 5:10 righteously [1] 17:21 Rights [25] 4:4,25 5:7,24 6:24 31:8, seeing [1] 41:1 seem [2] 28:10 46:22 seeming [1] 34:1 seems [5] 21:4 35:17 39:20 52:1 stage [3] 4:8,24 56:4 stand [2] 33:16 51:14 standard [8] 11:6,9,17 14:18 15:6 24:7 25:9 56:2 standing [1] 56:22 stands [1] 33:21 Star [4] 46:7,12,19,25 stare [9] 40:8,13,16 41:13 42:2,5 54:7 seize [2] 17:20 38:19 selective [1] 5:22 self-defense [3] 35:6 57:12 58:9 57:21 58:3 59:24 send [2] 10:21 20:4 sense [3] 8:21 19:11 46:7 start [2] 56:3 60:24 sentence [4] 12:6 14:23 19:19 21: starting [1] 31:17 15 State [12] 3:16,25 8:3 15:15 16:3,9 9 32:21 33:7,15 34:24 37:16 38: sentenced [5] 10:3,6,10 20:12,13 17:24 43:17 48:14 58:17 64:2,12 11,12 39:12,13,15,16 40:6,6 45:14, sentences [1] 14:22 State's [1] 7:6 17,18 46:1 47:6 sentencing [2] 14:20 21:12 stated [1] 20:5 ring [1] 19:23 serious [3] 18:3 56:15 60:5 STATES [28] 1:1,14 3:12 4:1,5 5:6 6:4 9:6 14:22 15:18 18:24 30:24 robbed [1] 22:6 seriously [1] 32:3 32:10 33:10 39:1,13,16 40:7 41:9, robbery [1] 17:20 serve [1] 19:6 22 45:15,18,21,22 47:3 57:17 58: ROBERTS [15] 3:3 7:4 8:5,18 12:2 several [4] 18:2 19:6 23:17,21 19 62:24 24:23 25:12 27:17 28:5,12 30:7 Shaffer [2] 38:6,15 51:18 52:22 62:14 64:22 ship [2] 27:16 45:3 statute [5] 49:19,25 64:10,11,16 rooted [8] 3:13 6:24 13:9 33:13 35: ships [1] 9:17 statute's [1] 49:21 16 37:22 41:6 55:5 show [1] 9:9 statutes [1] 64:17 roots [1] 40:11 shown [1] 60:4 stealing [4] 19:20 21:2,13,24 Roper [1] 62:25 shows [2] 45:4 64:10 steals [1] 17:18 roughly [1] 42:20 side [1] 29:7 step [1] 23:17 round [1] 58:15 significant [1] 10:22 steps [2] 23:17,22 Rover [2] 26:11,13 similar [3] 11:17 20:10 57:15 Stevens' [1] 18:13 rule [3] 18:18 35:12 40:21 simply [12] 13:17 20:25 21:24 25:4 still [8] 19:24 32:20 37:17 38:24 40: 35:5 47:2 50:9 51:14 59:2,13 61: 25 49:4,21 52:14 ruling [1] 52:24 11 62:3 rural [2] 10:16 27:12 straight [2] 53:17,20 since [4] 7:16,24 11:11 13:12 straight-up [1] 38:17 S situation [5] 19:12 20:11 24:22 42: straightforward [1] 3:17 sacrificing [1] 58:4 10 51:15 street [1] 9:18 safe [1] 16:24 situations [3] 23:1 39:4 45:16 strikes [2] 21:24 26:2 sailing [1] 27:16 six [7] 10:3,10 12:5,10 14:1,4 22: strip [2] 9:19 10:20 sake [1] 13:25 10 struck [1] 15:15 salvo [1] 28:19 slice [1] 37:16 stuck [1] 49:21 same [14] 4:1,5 9:14 26:20,20 31: small [1] 14:15 subject [3] 28:2 30:17 32:4 11 34:12 39:3 40:17,24 57:17,20 so-called [5] 4:8 34:8,11 42:13 63: submission [1] 7:7 58:25 63:8 16 submitted [2] 64:23,25 sanction [1] 24:8 society [2] 25:9 46:18 subsequent [1] 33:22 sanctions [3] 25:24 46:2 62:23 soldiers [1] 5:20 substance [1] 19:3 satisfactory [1] 50:1 Solicitor [1] 1:21 substantial [2] 37:20 56:23 saying [17] 8:11,12 13:17 18:19 20: somehow [6] 13:9 27:15 42:12 47: substantive [5] 17:3 18:7 35:19, 1 21:11 23:16,19 24:25 25:16 40: 9 54:17 56:1 57:4,7 59:11,22 says [8] 16:12,18 34:5 42:24 43:17 49:20 53:5 54:19 scale [1] 10:8 Scalia [5] 46:3 47:18 48:9 61:4,19 Scalia's [1] 25:21 scheme [1] 3:14 scholars [1] 28:17 school [1] 30:1 scope [8] 32:8 54:9,12,18,20,22 55:19 57:5 seas [1] 27:16 Seattle [1] 1:19 second [10] 8:20 9:2 12:22 29:11, 14 35:5 36:6 52:12 57:4 58:7 Section [2] 6:7,15 see [6] 7:5 8:10 17:15 20:2 21:3 58: 24 8 51:2,11 someone 24 50:6 substantively [2] 6:10,11 13 suggested [1] 28:22 sometimes [1] 19:6 suggesting [2] 40:3 55:16 somewhere [1] 27:14 suggestion [2] 13:16 47:5 sort [5] 35:18 40:3 42:6 49:16 60:7 suggestions [1] 59:17 SOTOMAYOR [9] 15:25 16:16,22 suggests [1] 9:8 17:9,11 45:11 48:1 53:12,16 support [1] 28:17 sound [4] 36:1 53:22 55:1 59:19 suppose [4] 12:5 26:10,15 49:23 sounds [1] 8:19 SUPREME [8] 1:1,14 10:25 13:15 15:20 36:6 37:8 48:15 source [1] 51:17 sovereign [3] 26:7 39:1,2 surprise [1] 27:12 special [2] 25:22 43:19 suspended [1] 10:4 specifically [2] 23:3 28:25 swept [1] 49:16 speech [3] 63:22,23 64:1 switch [1] 55:23 speed [1] 44:18 system [2] 30:15 39:19 speeding [3] 44:4,14 45:6 systematic [3] 40:3,18 42:6 speeds [1] 43:18 T square [2] 52:19 56:22 [4] 17:17,18 27:14 28: table [2] 30:23 31:3 talked [1] 35:5 Target [1] 17:19 tells [1] 52:15 tension [1] 21:19 term [1] 22:16 terms [3] 8:7 36:18 45:25 test [12] 8:8 26:20 29:5 48:23 49:1 50:15 51:3 55:4 60:1 61:12,14 64: 7 textually [1] 6:19 themselves [1] 38:12 theoretical [1] 31:3 theory [2] 34:23 55:11 There's [17] 4:7,17,19 7:5 9:7 11: 20,20 13:2 23:13 26:5,6 41:7 50: 19 52:18 54:5 56:15 62:12 Third [4] 5:19 21:25,25 25:7 THOMAS [3] 1:21 2:6 30:10 though [2] 32:24 54:7 thousand [1] 28:9 thousands [1] 14:21 three [11] 12:7 13:22 17:8,10 18: 17 21:24 22:14 26:2,18 35:25 59: 17 three-strike [1] 19:18 TIMBS [2] 1:3 3:4 tiny [1] 12:16 today [8] 5:25 7:21 8:4,7 13:6,18 43:5 46:21 today's [1] 47:12 Todd [1] 10:16 tomorrow [1] 24:4 took [2] 20:1 32:14 tracked [1] 5:3 tradition [2] 31:5 33:13 traditions [2] 3:13 31:23 treatise [1] 42:24 treatment [3] 40:4 61:21,24 trial [4] 11:21,25 23:14 30:2 true [7] 5:16 6:23 13:21 24:6 43:15 45:12 64:15 try [2] 24:12 55:17 trying [1] 46:18 Twenty [2] 9:25 10:2 two [9] 9:5 15:15 18:14 20:21 22: 15 26:10 31:13 40:1 54:7 two-tiered [1] 39:19 two-track [4] 4:8,22,23 63:17 type [1] 24:8 types [1] 26:4 TYSON [1] 1:3 U U.S.C [1] 64:16 unanimous [3] 7:23 48:11 63:5 unaware [1] 29:12 unconstitutional [2] 29:8 45:20 uncontested [1] 56:19 under [18] 6:14,25 11:15,22 15:3, 12,16 16:7,9 35:10 44:12 45:19 53:1,1 54:1 58:18 61:14 64:15 undermined [1] 33:22 understand [3] 7:10 42:12 46:13 Heritage Reporting Corporation Sheet 6 responses - understand 71 Official - Subject to Final Review � understanding [2] 45:25 47:12 understood [3] 34:18 55:24 62:23 unfortunately [1] 53:5 UNITED [3] 1:1,14 14:22 unlike [1] 25:24 unsatisfying [1] 22:23 until [3] 9:4 15:22 30:16 Unusual [2] 11:15 21:20 unwilling [1] 53:23 unworkable [1] 60:2 up [14] 20:17 25:19 33:5 34:23 38: 25 40:12 45:13 50:15 51:4 55:17 56:3,8 57:3 59:10 uphill [1] 22:14 urges [1] 63:9 Ursery [1] 33:23 uses [2] 9:14 25:23 using [3] 26:7,11,14 V 16 50:5 59:23 Without [8] 3:24 20:13 46:14 54: 17 58:3 59:3 62:7 64:2 wonder [1] 44:10 word [3] 38:16 49:24 54:18 words [1] 24:25 work [3] 18:25 29:7 37:2 world [2] 12:24 48:7 worry [2] 25:13,16 worth [1] 10:16 wrestled [1] 29:15 wrongly [1] 60:4 ws [1] 10:4 Y year [1] 10:7 years [20] 3:23 4:3,19 9:4,5,23,25 10:2,7,10 14:1,4 22:14,15 30:16, 16 42:19 62:21 63:6,18 years' [1] 22:11 vague [2] 19:13,16 value [3] 23:9 26:23 28:7 van [3] 12:23 51:7 60:17 vehicle [7] 14:16 17:20,23 27:9,10, 15 29:24 versus [2] 3:5 4:20 view [4] 43:11 47:12 56:12 57:3 violate [1] 18:22 violating [1] 47:8 violation [6] 10:11 14:2,5,6 22:11, 18 Virginia [1] 31:8 Virtually [1] 5:7 von [1] 29:11 W walking [1] 17:19 wants [2] 31:10 56:8 warrants [1] 3:20 Washington [2] 1:10,19 wave [2] 39:7,8 way [21] 4:1,5 7:16 13:2 18:25 20: 1 21:6 33:21,24 36:1 39:3,11 42:9 44:16 50:4 51:3 52:21 53:17 56:5, 6 61:8 ways [4] 35:25 45:21 59:14 62:10 weak [1] 34:4 Wednesday [1] 1:11 WESLEY [5] 1:19 2:3,9 3:7 62:17 whatever [8] 7:19 12:6,11 14:20 25:6,9 32:6,9 Whereupon [1] 64:24 whether [33] 3:25 5:5 6:3 7:6,7,8 8:9 13:7,10 15:2 20:2 25:2,3,25 30:25 31:3,9 35:22,23 36:18 37:5, � 10 38:9 39:12 43:4 49:2,13,15 50: � 17 55:3,22 58:16 59:9 whole [2] 37:15 59:11 wholesale [2] 34:20 55:17 wife [2] 29:12,17 will [4] 8:15 20:2 40:18 43:23 win [1] 53:17 wiping [2] 51:5,19 within [7] 7:22 16:14 42:18 49:3, Heritage Reporting Corporation Sheet 7 understanding - years'