1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:08,920 --> 00:00:12,399 Speaker 1: During oural arguments this week, the Supreme Court justices seemed 3 00:00:12,440 --> 00:00:15,240 Speaker 1: to be struggling to figure out when police can enter 4 00:00:15,280 --> 00:00:18,000 Speaker 1: a home without a warrant to check on the safety 5 00:00:18,000 --> 00:00:21,840 Speaker 1: of the residents. Preventing suicide and checking on the elderly 6 00:00:21,880 --> 00:00:25,640 Speaker 1: were two concerns repeatedly expressed by many of the justices. 7 00:00:26,120 --> 00:00:31,120 Speaker 1: Here's Justice Brett Kavanaugh. Officers have to make a split 8 00:00:31,160 --> 00:00:35,280 Speaker 1: second decision, like they don't have time to figure this 9 00:00:35,360 --> 00:00:40,080 Speaker 1: out by consulting mental health professional. They've been told, they've 10 00:00:40,080 --> 00:00:43,520 Speaker 1: been told under the hypothetical that the person is suicidal. 11 00:00:43,720 --> 00:00:47,000 Speaker 1: It's not the drunk driving example. It's not it's suicidal, 12 00:00:48,400 --> 00:00:52,120 Speaker 1: and you want them to hesitate, And um, I really 13 00:00:52,200 --> 00:00:56,640 Speaker 1: question that the Justice is posed scenario after scenario to 14 00:00:56,720 --> 00:00:59,480 Speaker 1: try to determine when police should be able to perform 15 00:00:59,520 --> 00:01:03,720 Speaker 1: a commune any caretaking function without a warrant. Chief Justice 16 00:01:03,800 --> 00:01:08,000 Speaker 1: John Roberts posed some interesting hypotheticals, ranging from an elderly 17 00:01:08,040 --> 00:01:10,360 Speaker 1: woman who hasn't been heard from to a van go 18 00:01:10,560 --> 00:01:14,679 Speaker 1: painting about to be damaged. The neighbors says she hasn't 19 00:01:15,600 --> 00:01:17,480 Speaker 1: they haven't seen her all day. She didn't come over 20 00:01:17,520 --> 00:01:22,399 Speaker 1: for dinner. She's never late. Is that enough? Uh? And 21 00:01:22,400 --> 00:01:25,679 Speaker 1: they've got this fence around their backyard. It's it's locked, 22 00:01:26,160 --> 00:01:28,360 Speaker 1: but there's a cat up in the tree. Can you 23 00:01:28,560 --> 00:01:30,920 Speaker 1: can you come and help, you know, get the cap down? 24 00:01:31,920 --> 00:01:38,640 Speaker 1: Is that? Uh? Community caretaking? Okay? It's water dripping from above, 25 00:01:39,640 --> 00:01:41,720 Speaker 1: you know, in in someone's home and they happen to 26 00:01:41,840 --> 00:01:43,480 Speaker 1: own a van goh and the water is going to 27 00:01:43,600 --> 00:01:46,680 Speaker 1: ruin the painting? Is that compelling? Joining me? Is former 28 00:01:46,720 --> 00:01:51,360 Speaker 1: federal Prosecutor George Newhouse of Richard's Carrington. George explain why 29 00:01:51,400 --> 00:01:54,320 Speaker 1: the police entered the home in this case. Yes, it's 30 00:01:54,320 --> 00:01:57,000 Speaker 1: an interesting set of facts that the police, wearing their 31 00:01:57,080 --> 00:02:01,400 Speaker 1: hats as community caretakers as opposed to criminal law enforces, 32 00:02:01,600 --> 00:02:05,000 Speaker 1: frequently get called to residences because someone is concerned about 33 00:02:05,000 --> 00:02:07,600 Speaker 1: the well being of another person. In this case, Mr 34 00:02:07,680 --> 00:02:10,160 Speaker 1: Knniglia and his wife were having shall we say, a 35 00:02:10,200 --> 00:02:13,440 Speaker 1: marital dispute. He put his gun unloaded gun on the 36 00:02:13,480 --> 00:02:16,880 Speaker 1: table in front of her, perhaps for emphasis, and told her, 37 00:02:17,240 --> 00:02:19,480 Speaker 1: why don't you just shoot me and get me out 38 00:02:19,480 --> 00:02:23,400 Speaker 1: of my misery. His wife understandably decided that she would 39 00:02:23,400 --> 00:02:26,160 Speaker 1: just leave. She left the house, she called the police 40 00:02:26,480 --> 00:02:28,639 Speaker 1: and she asked for a wellness check. She told the 41 00:02:28,680 --> 00:02:31,880 Speaker 1: police that she thought that her husband was suicidal and 42 00:02:32,120 --> 00:02:35,600 Speaker 1: a danger to himself, and the police responded to that 43 00:02:35,760 --> 00:02:38,880 Speaker 1: call for assistance. They met him outside the house. He 44 00:02:38,960 --> 00:02:42,200 Speaker 1: appeared to be rational, he denied being suicidal, but they 45 00:02:42,240 --> 00:02:44,480 Speaker 1: said we need to take you in, sir, for a 46 00:02:44,560 --> 00:02:47,519 Speaker 1: psychiatric check. And on the way out he did say, 47 00:02:47,520 --> 00:02:49,760 Speaker 1: I agree to go, but I don't want you taking 48 00:02:49,800 --> 00:02:52,519 Speaker 1: my guns. The police agreed that they wouldn't do that. 49 00:02:52,880 --> 00:02:55,440 Speaker 1: After he left, the police, of course, came back and 50 00:02:55,960 --> 00:02:58,880 Speaker 1: the house without a warrant and took his guns, asserting 51 00:02:58,960 --> 00:03:00,799 Speaker 1: that they had a right to do so under the 52 00:03:00,919 --> 00:03:04,720 Speaker 1: so called community caretaking exception to the Fourth Amendment. And 53 00:03:04,840 --> 00:03:07,480 Speaker 1: that's the issue before the Supreme Court. What are the 54 00:03:07,560 --> 00:03:11,160 Speaker 1: circumstances when police say that they're not doing a criminal investigation, 55 00:03:11,200 --> 00:03:13,920 Speaker 1: there's no criminal activity here, and they don't have a warrant. 56 00:03:13,919 --> 00:03:16,360 Speaker 1: What is reasonable under the Fourth Amendment? And the courts 57 00:03:16,400 --> 00:03:19,400 Speaker 1: appeared to be split on this. So the community caretaking 58 00:03:19,400 --> 00:03:22,680 Speaker 1: Exception to the Fourth Amendment has been applied to vehicles 59 00:03:22,840 --> 00:03:25,880 Speaker 1: but not to the home exactly. So It goes back 60 00:03:25,880 --> 00:03:29,120 Speaker 1: to the three to a Supreme Court case called Katie 61 00:03:29,240 --> 00:03:32,919 Speaker 1: versus Dombrowski. A car was towed by the police and 62 00:03:32,960 --> 00:03:35,640 Speaker 1: as they towed it to a yard, they did what's 63 00:03:35,640 --> 00:03:38,880 Speaker 1: called an inventory or administrative search, and that is a 64 00:03:39,000 --> 00:03:42,640 Speaker 1: search not for criminal purposes, but to ensure that the 65 00:03:42,640 --> 00:03:45,760 Speaker 1: police account for everything that's valuable in the car. They 66 00:03:45,800 --> 00:03:49,360 Speaker 1: obviously found contraband there was a lawsuits or criminal case, 67 00:03:49,680 --> 00:03:52,560 Speaker 1: and the Supreme Court said police have the right when 68 00:03:52,560 --> 00:03:55,960 Speaker 1: they are not conducting a criminal investigation, and it's a car, 69 00:03:56,080 --> 00:03:58,520 Speaker 1: and they distinguished it from a house, that police have 70 00:03:58,560 --> 00:04:02,119 Speaker 1: a right to search without a warrant or consent, permission, etcetera. 71 00:04:02,600 --> 00:04:05,240 Speaker 1: And that doctrines still stands. And the issue in this 72 00:04:05,320 --> 00:04:09,320 Speaker 1: case is can the Katie doctrine of administrative searches for 73 00:04:09,440 --> 00:04:12,840 Speaker 1: non criminal purposes? Can that be extended to the house 74 00:04:13,080 --> 00:04:16,360 Speaker 1: the home? The case law is very clear that nowhere 75 00:04:16,480 --> 00:04:18,880 Speaker 1: in the law is the Fourth Amendment our right to 76 00:04:18,960 --> 00:04:22,680 Speaker 1: privacy more cherished and more valuable than in the home. 77 00:04:22,880 --> 00:04:26,400 Speaker 1: And this question is does Katie apply to the house 78 00:04:26,520 --> 00:04:29,320 Speaker 1: as well as to a car or other situations where 79 00:04:29,360 --> 00:04:32,880 Speaker 1: we have perhaps a lesser degree of very interests of privacy. 80 00:04:32,960 --> 00:04:38,320 Speaker 1: So what were the concerns of the justices? Absolutely fascinating argument. 81 00:04:38,440 --> 00:04:42,560 Speaker 1: The justices were concerned with both allowing this doctrine to 82 00:04:42,960 --> 00:04:46,320 Speaker 1: spread because one of the justices, i believe Justice Alito, 83 00:04:47,000 --> 00:04:51,800 Speaker 1: remarked that if they allowed this caretaking search exception to 84 00:04:51,880 --> 00:04:54,240 Speaker 1: the home, that it would it would be boundless and 85 00:04:54,279 --> 00:04:57,680 Speaker 1: would in some way provide the police with unbridled discretion, 86 00:04:57,880 --> 00:05:00,479 Speaker 1: and that is troubling. But other justice and I think 87 00:05:00,520 --> 00:05:04,799 Speaker 1: most of the justices, particularly Chief Justice Roberts and Justice Kavanaugh, 88 00:05:04,880 --> 00:05:08,960 Speaker 1: were very concerned that the police be allowed, indeed encouraged 89 00:05:09,480 --> 00:05:12,200 Speaker 1: to enter the home when they're doing that because they're 90 00:05:12,240 --> 00:05:14,680 Speaker 1: concerned about the well being of a person in the home. 91 00:05:15,200 --> 00:05:17,920 Speaker 1: And really they've talked a lot about the elderly, as 92 00:05:17,960 --> 00:05:20,320 Speaker 1: we all know, and that's I'm sure as the justice 93 00:05:20,400 --> 00:05:22,800 Speaker 1: is now, as we get older, we tend to fall down, 94 00:05:23,240 --> 00:05:26,160 Speaker 1: and for the city of citizens who who live by themselves, 95 00:05:26,240 --> 00:05:30,880 Speaker 1: they could fall, hurt themselves and require immediate assistance. And 96 00:05:30,920 --> 00:05:35,040 Speaker 1: the justice were concerned that they didn't allow this kind 97 00:05:35,040 --> 00:05:38,679 Speaker 1: of search to occur. Entry that care to needed persons 98 00:05:38,760 --> 00:05:42,520 Speaker 1: like the elderly or the suicidal suicide is a similar situation. 99 00:05:42,640 --> 00:05:45,520 Speaker 1: Time is of the essence, and it's imperative that the 100 00:05:45,560 --> 00:05:48,600 Speaker 1: police be allowed to enter in order to render aid. 101 00:05:48,800 --> 00:05:52,080 Speaker 1: And those are the questions that the Justice has post pectically, 102 00:05:52,160 --> 00:05:54,719 Speaker 1: Justice Kavanaugh. I was going to say that Justice Kavanaugh 103 00:05:54,839 --> 00:05:59,640 Speaker 1: even mentioned some some statistics on suicide, which is sort 104 00:05:59,640 --> 00:06:02,000 Speaker 1: of a new usual. It is unusual. He may or 105 00:06:02,000 --> 00:06:04,440 Speaker 1: may not have pulled those statistics on the briefs, but yes, 106 00:06:04,520 --> 00:06:08,800 Speaker 1: he was very concerned about the fact that suicides are 107 00:06:08,960 --> 00:06:13,560 Speaker 1: common and that it's again unfortunately for the police. They 108 00:06:13,560 --> 00:06:16,160 Speaker 1: tend to be jacks of all trade, and they are 109 00:06:16,200 --> 00:06:20,400 Speaker 1: the agencies that's typically called out to help either forestall 110 00:06:20,600 --> 00:06:24,600 Speaker 1: or prevent a suicide or someone commits suicide to render 111 00:06:24,720 --> 00:06:27,680 Speaker 1: or attempts to render aid um. And so yes, he 112 00:06:27,760 --> 00:06:30,520 Speaker 1: was making the point that this is a a real 113 00:06:30,600 --> 00:06:34,200 Speaker 1: problem in society. And we know that the Courts, through 114 00:06:34,240 --> 00:06:36,919 Speaker 1: its questioning, was indicating it did not want to place 115 00:06:37,000 --> 00:06:41,279 Speaker 1: a reasonable restrictions on the police in rendering that assistance, 116 00:06:41,360 --> 00:06:44,320 Speaker 1: provided that it's done in a non criminal context. The 117 00:06:44,440 --> 00:06:48,440 Speaker 1: Justice has posed all these different hypotheticals to try to 118 00:06:48,480 --> 00:06:51,640 Speaker 1: find out what the limit on police should be here. So, 119 00:06:51,720 --> 00:06:54,440 Speaker 1: for example, the Chief Justice said suppose you had a 120 00:06:54,480 --> 00:06:57,880 Speaker 1: cat in a tree with a fence locked behind a gate, 121 00:06:58,520 --> 00:07:01,400 Speaker 1: or what about the threat of water damage to Evan go. 122 00:07:02,440 --> 00:07:04,560 Speaker 1: It's interesting that they used the question of the cat, 123 00:07:04,720 --> 00:07:07,760 Speaker 1: because that was the justice is like to argue amongst 124 00:07:07,839 --> 00:07:11,880 Speaker 1: themselves implicitly by posing these hypotheticals, and the cat in 125 00:07:11,920 --> 00:07:13,520 Speaker 1: the hat or the cat in the tree in this 126 00:07:13,600 --> 00:07:16,680 Speaker 1: case was really designed to say that, hey, we can't 127 00:07:16,720 --> 00:07:19,320 Speaker 1: just let the police come in for any reason. A 128 00:07:19,440 --> 00:07:22,600 Speaker 1: cat in a tree, you know, will eventually come down. 129 00:07:22,680 --> 00:07:25,040 Speaker 1: The police don't need to enter the yard in order 130 00:07:25,080 --> 00:07:29,080 Speaker 1: to render that service, or even property damage. The justices 131 00:07:29,120 --> 00:07:32,600 Speaker 1: were suggesting that that's not permissible. We don't want people 132 00:07:32,640 --> 00:07:35,400 Speaker 1: coming into our house simply because they think there might 133 00:07:35,440 --> 00:07:37,800 Speaker 1: be some property damage. Or do we what if the 134 00:07:37,920 --> 00:07:41,080 Speaker 1: house is not currently occupied and the neighbors think that 135 00:07:41,120 --> 00:07:43,480 Speaker 1: a flood is occurring. Wouldn't you want the police to 136 00:07:43,480 --> 00:07:45,120 Speaker 1: be able to come in and turn the water off 137 00:07:45,520 --> 00:07:48,040 Speaker 1: the question? Did it seem as if the appellant was 138 00:07:48,120 --> 00:07:52,400 Speaker 1: taking too hard a line. You wanted a categorical rule 139 00:07:52,880 --> 00:07:56,800 Speaker 1: that police can enter home unless there's a warrant, consent, 140 00:07:57,320 --> 00:08:02,080 Speaker 1: or exigent circumstances. Yes, they're position I think the justice 141 00:08:02,240 --> 00:08:05,960 Speaker 1: we're finding untenable because it was too categorical. They were 142 00:08:06,000 --> 00:08:09,760 Speaker 1: basically saying, the police can't come in unless they have 143 00:08:09,880 --> 00:08:14,360 Speaker 1: a objectively reasonable set of facts, the very firm belief 144 00:08:14,520 --> 00:08:17,200 Speaker 1: and basis for believing that there's imminent harm in the house. 145 00:08:17,520 --> 00:08:19,960 Speaker 1: And the justices were saying, well, you know what if 146 00:08:20,000 --> 00:08:23,480 Speaker 1: the the other hypothetical is Justice roberts hypothetical that the 147 00:08:23,600 --> 00:08:26,640 Speaker 1: old neighbor lady who's invited over for dinner, and she's 148 00:08:26,720 --> 00:08:29,880 Speaker 1: always punctual, she's always on time, and on this occasion 149 00:08:29,920 --> 00:08:31,920 Speaker 1: she doesn't show up. She's an hour late, and then 150 00:08:31,960 --> 00:08:35,040 Speaker 1: she's two hour late and lights are on and no activity, 151 00:08:35,440 --> 00:08:37,959 Speaker 1: and Justice Roberts was trying to get the lawyer to 152 00:08:38,040 --> 00:08:41,880 Speaker 1: agree that that would be sufficiently objective facts to allow 153 00:08:41,920 --> 00:08:44,600 Speaker 1: the police to go in, and he wasn't budging. Even 154 00:08:44,640 --> 00:08:46,880 Speaker 1: the next day. Justice Roberts said, how about the next 155 00:08:46,920 --> 00:08:48,960 Speaker 1: day when she still hasn't showed up? Do we have 156 00:08:49,080 --> 00:08:51,920 Speaker 1: enough facts then? And they went back and forth. Did 157 00:08:51,960 --> 00:08:55,720 Speaker 1: it seem as if justice is across the ideological spectrum, 158 00:08:56,160 --> 00:09:00,280 Speaker 1: we're basically concerned about the same things. Noever, all of 159 00:09:00,320 --> 00:09:03,400 Speaker 1: the lower liberal justices were I think concerned about the 160 00:09:03,440 --> 00:09:07,000 Speaker 1: police having, if you will, too wide of discretion when 161 00:09:07,000 --> 00:09:09,840 Speaker 1: it comes to coming into someone's house under this community 162 00:09:09,840 --> 00:09:14,360 Speaker 1: caretaking exception. Whereas it seems that the Conservative justice is 163 00:09:14,440 --> 00:09:17,680 Speaker 1: at least Justice Roberts and Kavanaugh wanted to be sure 164 00:09:17,760 --> 00:09:20,959 Speaker 1: that the police did have authority from the court to 165 00:09:21,360 --> 00:09:24,720 Speaker 1: enter even a house presu into this community caretaking exception, 166 00:09:24,800 --> 00:09:27,959 Speaker 1: so that seemed to be the normal tension. One interesting, however, 167 00:09:28,160 --> 00:09:32,720 Speaker 1: irony is sometimes fact patterns resulting unusual bed fellows. So 168 00:09:32,800 --> 00:09:35,640 Speaker 1: we have the Americans Civil Liberties Union and the American 169 00:09:35,720 --> 00:09:39,280 Speaker 1: Conservative Union, two groups which rarely, if ever agree on 170 00:09:39,400 --> 00:09:42,720 Speaker 1: constitutional issues, but they agreed on this case. They filed 171 00:09:42,760 --> 00:09:46,480 Speaker 1: their amicus brief opposing this policy, arguing that it was 172 00:09:46,559 --> 00:09:49,840 Speaker 1: opposed a dangerous slippery slope which could quote give police 173 00:09:49,880 --> 00:09:52,640 Speaker 1: free raid to enter the home without probable cause or 174 00:09:52,679 --> 00:09:55,520 Speaker 1: a warrant. So you had an interesting set of facts 175 00:09:55,520 --> 00:09:59,960 Speaker 1: that created some interesting arguments. Some of the justices, particular 176 00:10:00,000 --> 00:10:03,960 Speaker 1: only Justice Course such seem to suggest that some existing 177 00:10:04,080 --> 00:10:08,960 Speaker 1: emergency doctrines could apply here instead of the caretaking exception. Well, 178 00:10:09,000 --> 00:10:11,800 Speaker 1: and the caretaking exception is one of the ten or 179 00:10:11,840 --> 00:10:15,760 Speaker 1: twelve established exceptions to the Fourth Amendment of War requirement. 180 00:10:16,040 --> 00:10:18,280 Speaker 1: I think the position of course who was there? Is 181 00:10:18,360 --> 00:10:21,040 Speaker 1: another exception which is a little bit more amorphous, known 182 00:10:21,080 --> 00:10:24,280 Speaker 1: as the public safety exception, and that has applied to 183 00:10:24,280 --> 00:10:28,120 Speaker 1: both Fourth and Fifth Amendment situations where there is a 184 00:10:28,240 --> 00:10:31,720 Speaker 1: sufficiently compelling need on the police officers to do something 185 00:10:31,720 --> 00:10:33,960 Speaker 1: to protect the public. In a famous case out of 186 00:10:33,960 --> 00:10:36,920 Speaker 1: New York, police officers were concerned that a suspect had 187 00:10:37,000 --> 00:10:39,640 Speaker 1: stashed a handgun in the melon section of the market, 188 00:10:39,679 --> 00:10:42,840 Speaker 1: and they interrogated the subject without complying with miranda, in 189 00:10:42,920 --> 00:10:44,720 Speaker 1: order to find out where the gun was. So the 190 00:10:44,760 --> 00:10:47,760 Speaker 1: public safety exception is a parallel exception I think of 191 00:10:47,920 --> 00:10:51,200 Speaker 1: justice Corsich was alluding to might also serve as the 192 00:10:51,240 --> 00:10:55,160 Speaker 1: basis for finding here. Do you have any idea as 193 00:10:55,240 --> 00:10:59,120 Speaker 1: to how the court will rule well? Based upon the arguments, 194 00:10:59,240 --> 00:11:01,679 Speaker 1: which is to say, the questions asked by the justices, 195 00:11:02,080 --> 00:11:04,720 Speaker 1: it's clear to me that they are going to uphold 196 00:11:04,760 --> 00:11:07,480 Speaker 1: the action by the police. They'll basically agree with the 197 00:11:07,520 --> 00:11:10,280 Speaker 1: Department of Justice, which followed an amarchust saying that the 198 00:11:10,320 --> 00:11:13,440 Speaker 1: police can enter a home without a warrant when their 199 00:11:13,480 --> 00:11:17,760 Speaker 1: actions are objectively grounded in a non investigatory public interest 200 00:11:17,920 --> 00:11:20,480 Speaker 1: such as health or safety. In other words, when it's 201 00:11:20,480 --> 00:11:23,800 Speaker 1: not a criminal investigation and they are legitimately concerned about 202 00:11:24,080 --> 00:11:27,040 Speaker 1: well being, they are allowed to enter the home. The 203 00:11:27,080 --> 00:11:29,400 Speaker 1: objectives to that point of view, of course, are very 204 00:11:29,440 --> 00:11:32,600 Speaker 1: concerned that when you give the police that broad discretion, 205 00:11:33,040 --> 00:11:35,920 Speaker 1: they are going to exercise it too widely and abuse 206 00:11:36,040 --> 00:11:39,040 Speaker 1: their powers. And when they abuse their powers in this context, 207 00:11:39,080 --> 00:11:42,320 Speaker 1: particularly involving the home, you're looking at what could be 208 00:11:42,360 --> 00:11:45,920 Speaker 1: some grave violations of the Fourth Amendment. Thanks George. That's 209 00:11:45,960 --> 00:11:51,000 Speaker 1: George Newhouse of Richard's Carrington. It was union rights versus 210 00:11:51,040 --> 00:11:54,080 Speaker 1: property rights at the Supreme Court in a case involving 211 00:11:54,080 --> 00:11:58,520 Speaker 1: a landmark California law. Union organizers have broad access to 212 00:11:58,559 --> 00:12:02,200 Speaker 1: meet with farm workers on the growers property under state regulation, 213 00:12:02,640 --> 00:12:06,680 Speaker 1: but two fruit growers say that violates the constitutional provision 214 00:12:06,720 --> 00:12:11,120 Speaker 1: that requires just compensation when the government takes private property 215 00:12:11,200 --> 00:12:14,200 Speaker 1: for public purposes. During the oral arguments, some of the 216 00:12:14,200 --> 00:12:19,320 Speaker 1: court's conservatives expressed skepticism about the regulations. Here's Justice Amy 217 00:12:19,400 --> 00:12:21,800 Speaker 1: Coney Barrett, what is the big deal here? If the 218 00:12:21,840 --> 00:12:26,840 Speaker 1: severity goes to compensation, as the petitioners claim, why would 219 00:12:26,840 --> 00:12:28,680 Speaker 1: it be that big of a deal for California to 220 00:12:28,760 --> 00:12:31,880 Speaker 1: say to the unions, listen to compensate for the taking. 221 00:12:31,960 --> 00:12:35,680 Speaker 1: If you want access, you pay fifty bucks. But Justice 222 00:12:35,679 --> 00:12:39,760 Speaker 1: Sonia Sotomayor was one of the justices who expressed concern 223 00:12:39,840 --> 00:12:43,280 Speaker 1: that the grower's position would imperil all kinds of government 224 00:12:43,320 --> 00:12:46,839 Speaker 1: inspection laws. And then you are putting at risk all 225 00:12:46,920 --> 00:12:52,360 Speaker 1: of the government regimes that permits for a nuclear power plants. 226 00:12:52,920 --> 00:12:57,120 Speaker 1: There are inspections almost on a daily basis. Joining me 227 00:12:57,200 --> 00:12:59,960 Speaker 1: is Bethany Burger, a professor at the University of Connecticut 228 00:13:00,080 --> 00:13:03,400 Speaker 1: Law School, tell us a little about the union access law. 229 00:13:04,040 --> 00:13:10,160 Speaker 1: So the law allows union organizers to go onto agricultural 230 00:13:10,280 --> 00:13:15,240 Speaker 1: sites in order to provide information and organize farm workers. 231 00:13:15,360 --> 00:13:19,680 Speaker 1: They have to give written notice to the growers first, 232 00:13:19,960 --> 00:13:25,400 Speaker 1: and they can only enter for a maximum of a 233 00:13:25,520 --> 00:13:29,000 Speaker 1: hundred and twenty days a year for one hour in 234 00:13:29,000 --> 00:13:33,319 Speaker 1: the morning, the lunch hour, or one hour after work 235 00:13:33,400 --> 00:13:38,440 Speaker 1: in but in practice they enter much less. So this 236 00:13:38,559 --> 00:13:41,280 Speaker 1: law was enacted in the nineteen seventies as part of 237 00:13:41,280 --> 00:13:47,680 Speaker 1: the organizing campaigns of Caesar Chavez and Dolores Puerta that 238 00:13:48,240 --> 00:13:56,000 Speaker 1: recognize that farm workers, particularly migrant farm workers, were incredibly isolated. 239 00:13:56,280 --> 00:14:01,199 Speaker 1: They often lived on the farms, and we're really needing 240 00:14:01,480 --> 00:14:05,960 Speaker 1: both more rights and information about their rights. The question 241 00:14:06,080 --> 00:14:12,119 Speaker 1: here is whether that access violates the takings clause. Explain 242 00:14:12,280 --> 00:14:16,120 Speaker 1: the legal issue here. So the taking clause of the 243 00:14:16,160 --> 00:14:22,560 Speaker 1: Constitution requires compensation whenever the government takes an owner's property. 244 00:14:22,720 --> 00:14:26,440 Speaker 1: So if the government said your house is mine now, 245 00:14:26,640 --> 00:14:29,200 Speaker 1: or it belongs to somebody else, that's clearly a taking. 246 00:14:29,440 --> 00:14:33,000 Speaker 1: But there are lots of other actions. When the government 247 00:14:33,160 --> 00:14:38,360 Speaker 1: restricts the usier property or prevents somebody from excluding somebody 248 00:14:38,360 --> 00:14:41,640 Speaker 1: else from the property, that may or may not be taken. 249 00:14:41,840 --> 00:14:44,960 Speaker 1: So in a case like this, where the government authorizes 250 00:14:45,160 --> 00:14:49,280 Speaker 1: a physical invasion of property, it's more likely to be 251 00:14:49,360 --> 00:14:52,800 Speaker 1: a taking. In fact, the court has held that when 252 00:14:52,960 --> 00:14:57,480 Speaker 1: there's a permanent physical occupation of property, even if it's 253 00:14:57,560 --> 00:15:00,560 Speaker 1: of a very small amount of the property and it 254 00:15:00,680 --> 00:15:04,920 Speaker 1: doesn't cause economic damage, that is a taking. So the 255 00:15:04,960 --> 00:15:08,920 Speaker 1: growers are arguing that the takings claws automatically kicks in 256 00:15:09,120 --> 00:15:11,720 Speaker 1: whenever the government gives someone else the right to use 257 00:15:11,760 --> 00:15:15,280 Speaker 1: private property. How did the justicists react to that argument? 258 00:15:15,880 --> 00:15:20,560 Speaker 1: The justices weren't crazy about that. They recognize that the 259 00:15:20,680 --> 00:15:24,760 Speaker 1: growers claim both would be contrary to their existing case 260 00:15:24,840 --> 00:15:29,920 Speaker 1: law and would also threaten lots of laws that have 261 00:15:30,160 --> 00:15:35,000 Speaker 1: always been recognized and protected under American law. The right 262 00:15:35,120 --> 00:15:38,600 Speaker 1: to enter a meat packing plan, to inspect for safety, 263 00:15:38,680 --> 00:15:41,760 Speaker 1: the right to enter a mind. All of these things 264 00:15:42,080 --> 00:15:45,600 Speaker 1: would be taking under the growers theory. It seemed as 265 00:15:45,640 --> 00:15:49,280 Speaker 1: if the California a g who was arguing for the 266 00:15:49,360 --> 00:15:53,480 Speaker 1: regulation got a lot of pushback from the justices from 267 00:15:53,520 --> 00:15:57,680 Speaker 1: both sides of the ideological spectrum. What problems were they 268 00:15:57,720 --> 00:16:02,040 Speaker 1: having with his position? They were concerned that if they 269 00:16:02,040 --> 00:16:07,400 Speaker 1: rejected the growers theory, then property owners would be vulnerable 270 00:16:07,440 --> 00:16:11,800 Speaker 1: to all kinds of invasions. So Justice Barrett, for example, asked, 271 00:16:11,840 --> 00:16:14,800 Speaker 1: does this mean that the government could say that people 272 00:16:14,840 --> 00:16:17,520 Speaker 1: could come protest on my lawn just because that was 273 00:16:17,600 --> 00:16:20,760 Speaker 1: the best place to reach the public. And the easy 274 00:16:20,800 --> 00:16:25,080 Speaker 1: answer to that is known with holy private property like that, 275 00:16:25,480 --> 00:16:30,000 Speaker 1: the government doesn't get to authorize invasions except in real 276 00:16:30,080 --> 00:16:36,520 Speaker 1: emergency circumstances. Justice Barrett also said that both sides had 277 00:16:36,680 --> 00:16:40,400 Speaker 1: line drawing problems, and that seemed to bother both the 278 00:16:40,480 --> 00:16:44,680 Speaker 1: liberal and conservative justices. What was she talking about? So 279 00:16:45,160 --> 00:16:49,080 Speaker 1: California agrees, as they would have to that if the 280 00:16:49,160 --> 00:16:53,120 Speaker 1: government said that three hundred and sixty five days a year, 281 00:16:54,080 --> 00:16:58,080 Speaker 1: the union organizers or anyone else can come unto private property, 282 00:16:58,320 --> 00:17:01,800 Speaker 1: that would automatically be a taking. And so the line 283 00:17:01,880 --> 00:17:07,000 Speaker 1: drawing problem is, why then, is three hundred sixty days 284 00:17:07,000 --> 00:17:10,160 Speaker 1: a year not automatically a taking? And then what about 285 00:17:10,280 --> 00:17:12,920 Speaker 1: two hundred days a year? What were the concerns of 286 00:17:12,960 --> 00:17:17,760 Speaker 1: the liberal justices? What was the concern of the liberal justices? Yeah, 287 00:17:17,800 --> 00:17:21,000 Speaker 1: I think that the liberal justices were not unified on this. 288 00:17:21,520 --> 00:17:27,840 Speaker 1: I think that Justices Briar and Kagan had significant concerns 289 00:17:27,880 --> 00:17:32,840 Speaker 1: about the implications of the growers theory. But also we're 290 00:17:33,320 --> 00:17:37,600 Speaker 1: looking for California to tell them some way to draw 291 00:17:37,840 --> 00:17:42,320 Speaker 1: lines to say what is an acceptable physical invasion and 292 00:17:42,359 --> 00:17:49,320 Speaker 1: what isn't Justice Soda Mayor seemed particularly concerned about authorization 293 00:17:49,400 --> 00:17:55,320 Speaker 1: of entries to property, and I think that California did 294 00:17:55,400 --> 00:17:59,840 Speaker 1: not do a great job in explaining why this particular 295 00:18:00,080 --> 00:18:06,840 Speaker 1: authorization is necessary. Because the workers on this property often 296 00:18:07,400 --> 00:18:11,840 Speaker 1: don't speak or read either English or Spanish, they are 297 00:18:12,280 --> 00:18:18,639 Speaker 1: still very often isolated in their living conditions. And in addition, 298 00:18:19,480 --> 00:18:24,320 Speaker 1: the non per se test, the pen central test takes 299 00:18:24,320 --> 00:18:28,560 Speaker 1: into account physical invasions, and it's much more likely to 300 00:18:28,840 --> 00:18:32,240 Speaker 1: find something is a taking if it is a physical 301 00:18:32,280 --> 00:18:36,200 Speaker 1: invasion of property. What it doesn't do is take all 302 00:18:36,400 --> 00:18:43,200 Speaker 1: kinds of physical invasions, regardless of whether they're truly private property, 303 00:18:43,320 --> 00:18:48,440 Speaker 1: regardless of whether they are to achieve health and safety 304 00:18:48,640 --> 00:18:52,200 Speaker 1: or free speech interests, and say that those are taking. 305 00:18:52,880 --> 00:18:56,120 Speaker 1: Let's say the Supreme Court rules in favor of the growers, 306 00:18:56,280 --> 00:19:00,800 Speaker 1: would that implicate health and safety inspections, home visits by 307 00:19:00,880 --> 00:19:06,200 Speaker 1: social workers and the like they would see growers attorneys 308 00:19:06,440 --> 00:19:11,160 Speaker 1: tried to say that those would not be implicated, but 309 00:19:11,400 --> 00:19:15,399 Speaker 1: as I think several of the justices recognized, it wasn't 310 00:19:15,640 --> 00:19:19,080 Speaker 1: clear why they Wouldn't they were trying to draw complicated 311 00:19:19,200 --> 00:19:22,719 Speaker 1: rules around the rule that they're asking for in the 312 00:19:22,840 --> 00:19:27,440 Speaker 1: name of simplicity. And wouldn't that make both taking law 313 00:19:27,800 --> 00:19:32,679 Speaker 1: and basic governmental regulation much more complicated? So where the 314 00:19:32,800 --> 00:19:35,480 Speaker 1: justice is looking for a middle ground? And what would 315 00:19:35,480 --> 00:19:39,200 Speaker 1: that middle ground look like? I do think that the 316 00:19:39,320 --> 00:19:44,600 Speaker 1: justices were looking for a way to both rule against 317 00:19:44,880 --> 00:19:50,960 Speaker 1: the growers, but also to draw some lines about kinds 318 00:19:50,960 --> 00:19:54,840 Speaker 1: of physical invasions that are more likely to lead to taking. 319 00:19:55,359 --> 00:20:01,040 Speaker 1: Another possible middle ground is that they rule again California, 320 00:20:01,440 --> 00:20:06,640 Speaker 1: but only because of their beliefs about this specific regulation 321 00:20:07,280 --> 00:20:13,000 Speaker 1: and it's importance. As California argued. However, those kinds of 322 00:20:13,080 --> 00:20:18,280 Speaker 1: considerations like how important is the governmental action, should not 323 00:20:18,440 --> 00:20:23,080 Speaker 1: be decided under a per se test their classic ad 324 00:20:23,080 --> 00:20:28,920 Speaker 1: hoc takings analysis, and the Growers blow didn't actually present 325 00:20:29,480 --> 00:20:34,159 Speaker 1: any evidence about the need for the regulation. So if 326 00:20:34,160 --> 00:20:38,200 Speaker 1: they wanted to have the case decide under that test, 327 00:20:38,800 --> 00:20:43,720 Speaker 1: the court should remand the case with instructions for what 328 00:20:43,920 --> 00:20:47,960 Speaker 1: kinds of evidence they would be looking for. The Roberts 329 00:20:48,040 --> 00:20:52,520 Speaker 1: Court dealt a major blow to unions in Does that 330 00:20:52,640 --> 00:20:57,280 Speaker 1: indicate anything for the unions here? I think that the 331 00:20:57,320 --> 00:21:02,320 Speaker 1: attorneys for the growers are hoping that it will. I 332 00:21:02,359 --> 00:21:06,000 Speaker 1: think that the justices are smarter than that that they 333 00:21:06,240 --> 00:21:11,160 Speaker 1: are recognizing that this case is about the constitutional scope 334 00:21:11,200 --> 00:21:15,520 Speaker 1: of property and not any disfavor they might have for 335 00:21:16,200 --> 00:21:19,879 Speaker 1: union organizing in general. What has the precedent been on 336 00:21:20,000 --> 00:21:24,040 Speaker 1: property rights? Have they tended to expand property rights? Though? No, 337 00:21:24,680 --> 00:21:29,800 Speaker 1: actually um so. But the Court hasn't decided a property 338 00:21:29,880 --> 00:21:34,560 Speaker 1: rights case with these three new justices. The last major 339 00:21:34,640 --> 00:21:40,600 Speaker 1: taking case they decided was Mrvy Wisconsin and Justice Kennedy 340 00:21:40,640 --> 00:21:44,640 Speaker 1: wrote the opinion, and it favored the government in holding 341 00:21:44,720 --> 00:21:48,680 Speaker 1: that the regulation there wasn't a taking for Justices dissented 342 00:21:48,720 --> 00:21:52,200 Speaker 1: from that case, though, with Justice Roberts writing the dissent. 343 00:21:52,640 --> 00:21:57,440 Speaker 1: So it's clear that there are a number of justices 344 00:21:57,920 --> 00:22:02,800 Speaker 1: on the Court that would want to expand the takings doctrine, 345 00:22:03,200 --> 00:22:05,639 Speaker 1: but I'm not sure that this case is the vehicle 346 00:22:05,680 --> 00:22:08,159 Speaker 1: for doing that. Did it seem as if a majority 347 00:22:08,200 --> 00:22:11,200 Speaker 1: of the justices were on the growers side. It did 348 00:22:11,240 --> 00:22:15,159 Speaker 1: not seem that way to me. I think that Justices 349 00:22:15,960 --> 00:22:21,920 Speaker 1: Roberts and Thomas and Sparrett seemed very concerned that the 350 00:22:21,960 --> 00:22:27,560 Speaker 1: growers were asking for something that undermined traditional state law 351 00:22:27,920 --> 00:22:31,639 Speaker 1: authorizations of rights to enter. So they were asking lots 352 00:22:31,640 --> 00:22:36,120 Speaker 1: of hard questions from the grower's side as well, even 353 00:22:36,359 --> 00:22:42,280 Speaker 1: justices like Kapanaugh and Gorsts who seemed eager to rule 354 00:22:42,440 --> 00:22:47,119 Speaker 1: for the growers. We're trying to find a narrow way 355 00:22:47,200 --> 00:22:51,200 Speaker 1: to do that rather than adopt the growers legal arguments. 356 00:22:51,600 --> 00:22:54,160 Speaker 1: So where do you think the court will come out. 357 00:22:54,920 --> 00:22:59,439 Speaker 1: My inkling is that the growers will lose, but the 358 00:22:59,520 --> 00:23:04,360 Speaker 1: Court will make clear both on remand some stricter guidelines 359 00:23:04,600 --> 00:23:08,959 Speaker 1: for the Ninth Circuit to consider and will set forth 360 00:23:09,200 --> 00:23:15,159 Speaker 1: its general concerns about line drawing and taking in ways 361 00:23:15,200 --> 00:23:18,680 Speaker 1: that may help property owners in the future. Thanks Bethany. 362 00:23:18,720 --> 00:23:21,880 Speaker 1: That's Bethany Burger of the University of Connecticut Law School, 363 00:23:22,119 --> 00:23:24,359 Speaker 1: and that's it for the edition of the Bloomberg Law Show. 364 00:23:24,680 --> 00:23:26,720 Speaker 1: Remember you can always at the latest legal news on 365 00:23:26,720 --> 00:23:30,720 Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 366 00:23:30,840 --> 00:23:36,080 Speaker 1: and at www dot bloomberg dot com slash podcast Slash Law. 367 00:23:36,240 --> 00:23:39,160 Speaker 1: I'm June Grosso. Thanks so much for listening, and please 368 00:23:39,200 --> 00:23:41,280 Speaker 1: do needto The Bloomberg Law Show every week night at 369 00:23:41,280 --> 00:23:43,800 Speaker 1: ten p m. Eastern right here on Bloomberg Radio.