I Think Everyone but Thomas Piled on the Poor Guy

Click to access 17-1091_1bn2.pdf


This is 70+ pages of a good lawyer trying convince the Court to incorporate the federal right to claim a fine is excessive (as applied to a civil forfeiture).  The Indiana trial court and appellate intermediate court thought the fine [forfeiture] was excessive and ruled with the defendant, explicitly having decided under the US Constitution.  Indiana Supremes said that was not clearly laid out in any US Supreme Court case, and reversed.


So here we are, with a plausible argument before the Supreme Court and nobody even beginning to buy it.  Not RBG, nor Wise Latina, nor Roberts nor Alito.  Not Breyer, who was pretty funny.


Click, download, read, and enjoy.


And the entire Court, save for CT who was silent, just jumped all over the guy and made his life miserable.

And then the entire Court jumped all over the attorney general for Indiana.  All of them.  Except CT.


It is an entertaining read.












5 Responses

  1. New post. An argument before the Supremes.


  2. Geidner seems to think the incorporation is a lock.


    • I think that’s right, generally.

      I think they are having trouble with the notion of extending it in a civil forfeiture case. That is why the Appellant was trying so hard to emphasize that the Indiana statute was punitive, so he could say it was like a criminal fine. I believe all the Justices are in actual agreement – that if this had come up on a straight criminal fine case then expressing incorporation would be a no brainer. But do they want to say that in a civil forfeiture case? The problem here is that Indiana’s two lower courts had applied the federal constitutional standard of permitting an excessive fine claim against a civil forfeiture and then the Indiana Supremes pointed out that the SCOTUS had never expressly extended incorporation to claims that civil forfeitures were excessive.

      I think SCOTUS will try to give deference to the instrumentalities or fruits of a crime rule for civil forfeiture while somehow expressly incorporating the right to claim excessive fines, but perhaps limiting that to assets not connected to a crime.

      In practice, I would like to see civil forfeitures limited because the practice allows police and prosecutors to squeeze even a totally innocent person pretrial. It has always struck me as a gross violation of the Due Process clause that the taking can proceed before notice and a hearing, even if it is historically part of Anglo-American justice.

      A lot is riding on how the Supremes handle this one.


  3. I’m assuming all lawyers must have extremely good memories:

    The Court was unanimous on that point in Austin, and since then, it has reaffirmed
    that point in the Bajakajian case, in the Hudson case, and most recently in Kokesh, all
    of which rely on Austin.

    I could never argue a case before the Supreme. “Well, like the court said in–wait, let me Google it–no, that’s not it–wait a second–is it Reynolds? No that’s not it–hold on a second–“.


    • I’m assuming all lawyers must have extremely good memories

      Better than Breyer’s…that is not fair. When preparing for orals you learn all the cases in line and all the cases that are distinguishable and you get their details down. It is however, FLUSH knowledge. Gone after the case is over, to be replaced by another set for another case.

      Breyer read the briefs and discussed them with his clerks but did not prepare for every eventuality. Roberts always comes absolutely LOADED. He may actually have memorized the freaking cases better than the prepared litigants, and Kagan, RBG, and Alito are pretty damned good on specifics, I think they must all argue the points with their clerks.

      Breyer told us years ago at a Federal Bar dinner in Austin that he likes oral arguments. It’s more fun when someone says something he had not thought of.

      Liked by 1 person

Be kind, show respect, and all will be right with the world.

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: