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Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.

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Speaker 2: The Supreme Court dealt a major blow to the music

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Speaker 2: industry in its fight against the piracy of copyrighted songs

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Speaker 2: on the Internet. A jury had awarded the stunning sum

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Speaker 2: of one billion dollars to Sony Music against Cox Communications

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Speaker 2: for failing to shut down the accounts of people who

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Speaker 2: repeatedly downloaded and distributed copyrighted songs without permission. But on Wednesday,

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Speaker 2: the Supreme Court let Cox off the hook completely. In

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Speaker 2: a unanimous decision, The court held that Cox couldn't be

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Speaker 2: held liable for copyright infringement even if they knew their

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Speaker 2: users were illegally downloading copyrighted works. My guest is intellectual

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Speaker 2: property litigator Terrence Ross, a partner at catin Mutchen Rosenmann Terry.

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Speaker 2: The jury said Cox had to pay a billion dollars

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Speaker 2: in damages, and now the Supreme Court says, no, Cox

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Speaker 2: doesn't have to pay anything at all.

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Speaker 1: That's correct. The cause of action in the lower court

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Speaker 1: was for contributory copyright infringement, which means that the defendant

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Speaker 1: did not actually commit the copyright theft, but somehow contributed

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Speaker 1: to the ability of a third party to commit copyright infringement,

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Speaker 1: and the Supreme Court determined that the lower courts had

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Speaker 1: applied the wrong standard for measuring whether or not contributory

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Speaker 1: copyright infringement had occurred, and therefore reversed as to liability,

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Speaker 1: which eliminated the damages verdict.

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Speaker 2: Cox got something like one hundred and sixty three thousand

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Speaker 2: copyright infringement notices and never cut off service to its subscribers.

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Speaker 2: And just as Sonya Sotomayor pointed out how flagrant that

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Speaker 2: was during ural arguments, you.

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Speaker 3: Did nothing and in fact, counselor your clients sort of

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Speaker 3: lais a fair attitude towards the respondents is probably what

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Speaker 3: got the jury upset.

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Speaker 2: So was it surprising that this was a unanimous verdict.

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Speaker 2: I mean, just as Sodo Mayor said, you did nothing,

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Speaker 2: and now the court saying you don't have to do anything.

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Speaker 1: Well, as we discussed that week after the oral argument

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Speaker 1: before this Supreme Court, I had commented that I thought

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Speaker 1: this was one of the most opaque oral arguments I'd

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Speaker 1: ever listened to at the Supreme Court. And you'd ask me,

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Speaker 1: what's going to han, I said, I just blain, don't know.

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Speaker 1: I do not have a clue, and I was proven right.

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Speaker 1: The oral argument centered so heavily on the really terrible

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Speaker 1: facts were Cocks surrounding its efforts, half hearted at best,

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Speaker 1: to comply with the safe harbor provision of the Digital

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Speaker 1: Millennium Copyright Act. And they were just terrible facts. We

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Speaker 1: know the jury thought they were so bad that they

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Speaker 1: found Cox to be willfully liable for contributory infringement. And

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Speaker 1: yet none of that came out in this opinion. There

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Speaker 1: was some discussion, although very limited, during oral argument, as

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Speaker 1: to what the correct standard for contributory copyright Fraedman was,

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Speaker 1: but Cox in particular had pushed that argument into a

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Speaker 1: very odd place where it was drawing upon aiding in

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Speaker 1: a betting cases from common torts. Even cited to the

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Speaker 1: recent Mexican government case against American gun manufacturers, which was

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Speaker 1: on ato aiding in a betting theory that the Supreme

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Speaker 1: Court had lost. And so the decision is maybe not

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Speaker 1: surprising as to the result, but a little bit surprising

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Speaker 1: after the orror argument that it went in the direction

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Speaker 1: that it went.

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Speaker 2: Just as so, Domayor and her concurrence wrote that without

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Speaker 2: proof that Cox knew about individual instances of infringement. The

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Speaker 2: record labels have at most shown that Cox was indifferent

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Speaker 2: to infringement. There was evident that a Cox manager overseeing

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Speaker 2: piracy compliance told his team to f the DMCA. I mean,

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Speaker 2: there were over one hundred and sixty three thousand infringement notices,

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Speaker 2: and as we discussed, Cox kept giving them chance after

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Speaker 2: chance after chance. I mean, it didn't seem like it

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Speaker 2: was impossible for Cox to cut off some of these people.

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Speaker 1: That's clearly all correct. Justice Thomas, who wrote the opinion

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Speaker 1: from the majority of the court, simply chose to ignore

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Speaker 1: the Digital Millennium Copyright Act. In essence, he said that

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Speaker 1: Cox had failed to comply with the safe harbor in

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Speaker 1: the Digital Millennium Copyright Act because they did not have

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Speaker 1: a program in place to comply with copyright infringement notices.

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Speaker 1: But then he said, and this is the but that

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Speaker 1: does not prove the case for the recording companies. He said,

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Speaker 1: a mere failure to establish that you're entitled to take

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Speaker 1: advantage of the safe harbor defense of the Digital Millennium

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Speaker 1: Copyright Act. It does not establish the affirmative grounds for

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Speaker 1: contributory copyright infringement. And then he went through an analysis

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Speaker 1: of what he viewed to be the elements of cause

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Speaker 1: of action for contributory copyright infringement, and he found, and

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Speaker 1: this is the important part of his decision, he found

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Speaker 1: that there was an affirmative action required on the part

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Speaker 1: of the defendant to be accused of contributory copyright infringement.

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Speaker 1: And that's what surprised I think a lot of us.

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Speaker 1: There is a long history of decisions in the circuit

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Speaker 1: courts and in the Supreme Court stretching back to nineteen twelve,

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Speaker 1: in which courts have allowed contributory copyright infringement cases go

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Speaker 1: forward in situations, factual situations which it seemed to be

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Speaker 1: nothing more than providing a product or a service. And

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Speaker 1: Justice Thomas starts off by recharacterizing those cases as our

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Speaker 1: findings that a company cannot be liable as a copyright

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Speaker 1: infringement for purely providing a service to the general public,

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Speaker 1: even with knowledge that it will be used by some

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Speaker 1: copyright infringers. And that's the big surprise here. The cases

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Speaker 1: had implicitly understood the provision of services and products that

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Speaker 1: led to copyright infringement as an affirmative action on the

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Speaker 1: part of the defendant. Now the Supreme Court says that's

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Speaker 1: not good enough, and indeed, in their recitation of past cases,

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Speaker 1: they seem to be of the view that the only

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Speaker 1: way you can bring a contributory copyright infringement case against

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Speaker 1: a provider of a service or product is if they

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Speaker 1: specifically promote that product or service as capable of engaging

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Speaker 1: in copyright infringement.

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Speaker 2: And who does that, well, it's.

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Speaker 1: A great question. In the very famous Groster case of

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Speaker 1: a few years ago, which was a file sharing software program.

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Speaker 1: In the early days of the Groster program, it was

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Speaker 1: actually advertised as capable of downloading and distributing files of

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Speaker 1: music without bankfort. So it does happen when you have

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Speaker 1: a company that has no legal advisors and is managed

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Speaker 1: by people with absolutely no sensitivity to copyright. So it

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Speaker 1: does happen. But in the modern world that is a

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Speaker 1: true unicornt, it rarely ever happens. And so the result

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Speaker 1: of this case is that it will be extraordinarily hard

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Speaker 1: to ever again bring a cause of action for contributory

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Speaker 1: copyright infringement.

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Speaker 2: Justice Soda Mayor did say that the majority opinion written

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Speaker 2: by Justice Thomas strips ISPs of any real reason to

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Speaker 2: deal with piracy making the DMCA's safe Harbor rules pointless

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Speaker 2: than one.

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Speaker 1: The myrior's point is well taken. I simply don't see

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Speaker 1: a reason to comply with the Safe Harbor or the

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Speaker 1: DMCA anymore. But I do want to point out that's

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Speaker 1: a criticism of a result. The actual reasoning she disagreed with,

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Speaker 1: and she disagreed with it on a very important point

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Speaker 1: that on a quick read you might easily miss now.

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Speaker 1: But there requires me a little bit of history here.

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Speaker 1: So the Copyright Act in nineteen seventy six provides for

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Speaker 1: a cause of action for the direct infringement of copyrights.

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Speaker 1: It does not provide for contributory copyright infringement or vicarious

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Speaker 1: copyright infringement. Subsequent to the nineteen seventy six Act, the

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Speaker 1: Supreme Court impliedly allowed causes of action for contributory vicario's

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Speaker 1: copyright infringement based on the fact that such causes of

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Speaker 1: action had been allowed going back to the mid nineteenth century,

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Speaker 1: and it wasn't really well addressed by the Supreme Court.

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Speaker 1: But I believe the thinking was Congress, in passing the

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Speaker 1: seventy six Act, must have understood that there were such

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Speaker 1: things as contributory and vicarious copyright, and therefore we're going

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Speaker 1: to allow those to go forward. But those past decisions,

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Speaker 1: the Betamax case, the Grostar case, never said we are

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Speaker 1: limiting a secondary liability to contributory vicarious copyright, And indeed,

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Speaker 1: cases have generally been written wording such as, amongst the

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Speaker 1: causes of act action for secondary liability are contributory vi

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Speaker 1: carri's infringement. Justice Thomas, however, throws in sort of an

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Speaker 1: odd phrase here in which he says, I'm not even

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Speaker 1: sure if he meant this or thought it through, but

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Speaker 1: he essentially says that those are the only causes of

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Speaker 1: action for secondary liability. And this is where Justice Sodaba

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Speaker 1: Worn I think rightly takes him to task. She says,

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Speaker 1: what about aiding in a betting liability? Now we've never

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Speaker 1: found such a case in the copyright field, but if

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Speaker 1: you're going to allow contributory and vicarious copyright infringement, why

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Speaker 1: can't you allow aiding in a betting liability? And oh,

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Speaker 1: by the way, why are you limiting it at all?

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Speaker 1: There may be other forms of action, so why are

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Speaker 1: you limiting it to just contributory or vicar's copyright infringement?

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Speaker 1: If we're going to say that a statute which does

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Speaker 1: not actually allow those things allows those things because of

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Speaker 1: historical precedent. Then we got to look at the total

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Speaker 1: historical president, very unusual position for just as so the

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Speaker 1: minority take, by the way, and the historical president says,

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Speaker 1: there are other types of secondary liability, and then she

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Speaker 1: goes on to spend the rest of her opinion explaining

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Speaker 1: why in this case she doesn't think that there is

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Speaker 1: aiding in a betting liability, and therefore she concurs in

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Speaker 1: the result, but not the decision. And so, yes, it

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Speaker 1: was nine to nothing on the result, but it was

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Speaker 1: seven to two on the reasoning for that result. But

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Speaker 1: seven is a majority, and that means this Court has

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Speaker 1: now said that the only secondary causes of liability under

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Speaker 1: the Copyright Act are for contributory copyright. And if my

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Speaker 1: carries copyright infringement and nothing else.

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Speaker 2: Stay with me. Cherry coming up next. So what can

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Speaker 2: the recording industry do about music piracy?

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Speaker 1: Now?

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Speaker 2: This is bloomberg. The Supreme Court dealt a major blow

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Speaker 2: the music industry this week, ruling unanimously in favor of

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Speaker 2: Cox Communications, finding that Internet service providers are not liable

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Speaker 2: for copyright infringement for failing to disconnect customers who are

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Speaker 2: downloading copyrighted music illegally. I've been talking to intellectual property

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Speaker 2: litigator Terrence Ross of Catain Mutchen Rosenman, Terry, does this

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Speaker 2: decision effectively stop the music industry from being able to

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Speaker 2: combat music piracy online? Are there any other options available

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Speaker 2: to music labels?

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Speaker 1: Now? Okay, So it seems to me there are two

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Speaker 1: options here, one is legal and one legislative. On the

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Speaker 1: legislative side, they could go to Congress and say, look,

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Speaker 1: this is an absurd decision and it's completely gutted the

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Speaker 1: Digital Millennium Copyright Act. This is not what you intended

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Speaker 1: with the Digital Millennium Copyright Act. And I thought I

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Speaker 1: saw Congressman put out a press released yesterday essentially saying

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Speaker 1: that they could then ask Congress to rewrite the Digital

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Speaker 1: Millennium Copyright Act to provide that the ISPs must comply

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Speaker 1: with the safe harbor provisions in order to avoid contributory

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Speaker 1: or vicarious copyright fringement. So that's one route that the

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Speaker 1: music companies could pursue. The other route, which is more complicated,

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Speaker 1: is to serve subpoenas upon Cox or other ISPs for

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Speaker 1: the IP addresses that are doing the most downloading of

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Speaker 1: copyrighted music and get the names and addresses whoever the

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Speaker 1: owner is, and then sue that owner. So you bypass

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Speaker 1: Cox and you sue the person who's actually engaged in

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Speaker 1: the music file downloading for copyright infringement. Now, this was

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Speaker 1: a course of action that occasionally has happened in the past,

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Speaker 1: and it's relatively successful because the defendant usually caves in

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Speaker 1: quickly and they enter into some settlement where they agree

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Speaker 1: never to download music again. It seems to me that

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Speaker 1: that remains a viable option from a legal side. It's

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Speaker 1: just very cumbersome. You don't always get courts willing to

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Speaker 1: enforce such a subpoena, and that it requires it follow

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Speaker 1: on litigation, so it's going to be a little bit

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Speaker 1: more costly. But those are the only two options I

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Speaker 1: see for the music company at this point.

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Speaker 2: Are there estimates of how much the music labels lose

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Speaker 2: or artists lose because of the piracy of copyrighted music.

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Speaker 1: I've seen all sorts of estimates, but it's over a

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Speaker 1: billion dollars a year typically. Now, the interesting thing about

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Speaker 1: this case is that the music companies didn't even pursue

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Speaker 1: all the copyright infringements that were being utilized through the

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Speaker 1: cock system. They were only going after the really large

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Speaker 1: downloads and distributions of files. And the jury found damages

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Speaker 1: of a billion dollars, and that was against a single ISP,

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Speaker 1: not the many ISP's in this country, and for only

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Speaker 1: a portion of the copyright infringement that was going on.

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Speaker 1: So that suggests that the number is many billions of dollars.

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Speaker 2: Do you have any hint as to how the justices

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Speaker 2: got to this sort of radical position that basically eliminates

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Speaker 2: liability for Internet service providers even when they know their

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Speaker 2: subscribers are downloading music illegally.

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Speaker 1: Justice so do my r at or argument was clearly

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Speaker 1: perplexed as to what to do. She thought the positions

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Speaker 1: on either side were extreme, yet she ended up not

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Speaker 1: being the one who fashioned the way out for the

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Speaker 1: Supreme Court. I called this a way out, not a compromise.

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Speaker 1: This was a way to avoid a really hard decision

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Speaker 1: with respect to damage element, but was not a compromise.

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Speaker 1: It was basically a complete one to eighty change in

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Speaker 1: direction of the cases that have existed for one hundred

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Speaker 1: and twenty years now in the courts that adopts such

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Speaker 1: a radical view of secondary liability under the Copyright Act

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Speaker 1: that I don't think was attended by Congress, that it

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Speaker 1: basically kills off the two causes of action. Only a

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Speaker 1: complete moron could be found liable for contributory or vicary's

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Speaker 1: copyright infringement at this point in time, So I don't

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Speaker 1: know what went on behind closed door. I found it

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Speaker 1: fascinating that Justice Thomas wrote the opinion. Justice Thomas tends

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Speaker 1: to write opinions that are short, sweetened to the point,

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Speaker 1: and so sometimes he gets designated for a case that

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Speaker 1: the Court does not want to spend too much time intellectualizing.

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Speaker 1: They just say, look, here's what we think. You only

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Speaker 1: get contributory infringement if you show an affirmative act. There

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Speaker 1: was no firmative act found case, and that's what this

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Speaker 1: opinion is. It certainly doesn't address any of the past

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Speaker 1: cases involving contributory copyright infringement except for Grockster and Beta Max,

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Speaker 1: both of them the Preme Court cases, which were only

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Speaker 1: slightly helpful in this decision. They really needed to look

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Speaker 1: at the full spectrum of contributory copyright cases over the

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Speaker 1: last century and they failed to do that.

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Speaker 2: There's a similar music industry suit against Verizon for two

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Speaker 2: point six billion dollars. Do you think that's now dead

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Speaker 2: in the water after this decision?

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Speaker 1: So I don't know the facts of that case. At

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Speaker 1: a minimum, the districtquarity is going to have to say, okay,

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Speaker 1: in light of Cox Communications versus Sony, we need to

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Speaker 1: do a rethink here. It may be possible that there

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Speaker 1: are facts involving Verizon that are better for the music companies,

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Speaker 1: but it would be surprised if that's true. And look

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Speaker 1: to understand the extent of the problem. June, at one

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Speaker 1: point in time, over the entire cos Internet system, twenty

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Speaker 1: one percent of all traffic involved music copyright infringement. The

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Speaker 1: fall of the traffic is infringement upon copyrighted music. I mean,

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Speaker 1: it's just a phenomenal number. And here the Supreme Court says, well, no,

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Speaker 1: there's actually no remedy for that. And that's not what

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Speaker 1: Congress thought when they passed the Digital Millennium Copyright Act.

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Speaker 2: And Terry, this is supposed to be a textualist court,

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Speaker 2: but were they reading the text of the statutes here?

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Speaker 1: None of this is in the Copyright Act. I mean

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Speaker 1: the whole purpose of having a statute is to set

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Speaker 1: out the meats and bounds of causes of action, and

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Speaker 1: writes none of this is in the Copyright Act. I

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Speaker 1: just plain, don't give it. And you know, over the

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Speaker 1: years there have been a lot of good justices no

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Speaker 1: copyright law, and even Justice Scalia, who was all about

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Speaker 1: the text, never ever stopped to say, wait a minute,

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Speaker 1: there is no secondary liability in the seventy six Copyright Act.

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Speaker 1: What are we talking about here, It's just crazy.

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Speaker 2: Well, it will be very interesting to see what action

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Speaker 2: the record labels take next now that this avenue has

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Speaker 2: been foreclosed. Always a pleasure, Terry, thanks so much. That's

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Speaker 2: Terence Ross of Cataneuchen Rosenmann. Once again, this week, the

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Speaker 2: Supreme Court weighed in in favor of police officers, shielding

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Speaker 2: them from liability under the theory of qualified immunity. The

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Speaker 2: conservative justices found that a Romant police officer who used

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Speaker 2: a restraint technique known to be painful to remove a

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Speaker 2: non violent protester from the state capitol in twenty fifteen

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Speaker 2: is protected from a civil rights lawsuit for the use

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Speaker 2: of excessive force under qualified immunity. The three liberal justices dissented,

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Speaker 2: writing that the Court has turned qualified immunity into a

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Speaker 2: quote absolute shield for law enforcement officers. The case is

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Speaker 2: one of two this week in which the Justices weighed

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Speaker 2: in on court qualified immunity, a hotly debated legal doctrine

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Speaker 2: that involves protections for police facing lawsuits. In the other case,

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Speaker 2: the Court lets stand a decision by the Fifth Circuit

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Speaker 2: granting qualified immunity to officers in Texas accused of targeting

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Speaker 2: a journalist for arrest over disagreements with her reporting. My

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Speaker 2: guest is Anya Bidwell, a senior attorney at the Institute

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Speaker 2: for Justice. Annya, will you start by explaining what qualified

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Speaker 2: immunity is.

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Speaker 4: Qualified immunity is a doctrine that the Supreme Court invented

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Speaker 4: in the late sixties. At first, but it then significantly

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Speaker 4: amended its test, and in nineteen eighty two it announced

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Speaker 4: this rule that in order for the officer to be sued,

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Speaker 4: a plaintiff must show that the violation of the law

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Speaker 4: was clearly established. So it doesn't matter if an officer

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Speaker 4: acted in bad faith. Right, it could be that the

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Speaker 4: officer acted in bad faith, but as long as there

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Speaker 4: isn't a case directly on point saying that the exact

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Speaker 4: same conduct was deemed unconstitutional before then that violation is

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Speaker 4: not clearly established. The Court justified this idea in reasonable ways,

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Speaker 4: like the officer needs to have fair warning, right, a

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Speaker 4: reasonable officer needs to have fair warning that what they're

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Speaker 4: about to do violates the law.

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Speaker 5: The problem is that the.

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Speaker 4: Way this fair warning clearly established law test has been

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Speaker 4: interpreted pretty much anything but bar's plaintiffs from recovering for

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Speaker 4: violations of the Constitution, and the Supreme Court's latest summary

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Speaker 4: reversal in this case Zorn really kind of demonstrates how

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Speaker 4: difficult it is for a person to sue a police officer,

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Speaker 4: even if they come to court armed with the decision

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Speaker 4: that they say clearly establish that what the officer did

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Speaker 4: is unconstitutional. Like in Zorn, there was a case in

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Speaker 4: the Second Circuit that said that it could be a

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Speaker 4: violation of the Constitution of the Fourth Amendment excessive force

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Speaker 4: prohibition if you put a protester's hand in a wristlock.

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Speaker 5: Right, there is a case like that.

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Speaker 4: So they came to court and they showed that case,

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Speaker 4: and the Court said, fine, thank you for showing us

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Speaker 4: this case. That's a good point. We will deny qualified

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Speaker 4: immunity to the officer, and then it gets to the

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Speaker 4: Supreme Court and the Supreme Court says, well, actually, it

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Speaker 4: is not exactly what we are looking for, even though

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Speaker 4: every reasonable officer would have been fairly warned that putting

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Speaker 4: a protester's arm in a wrist lock unjustifiably is unconstitutional,

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Speaker 4: and the Supreme Court, without really delving into the details,

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Speaker 4: just said, yeah, that doesn't look right for us.

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Speaker 2: And in this case, the Justice is just summarily reversed

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Speaker 2: the Second Circuit in like a six page opinion.

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Speaker 4: One of the problems is that the Supreme Court is

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Speaker 4: refusing to deal with the doctrine heads on right grant

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Speaker 4: oral arguments, grant merits briefing, so both sides could spend

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Speaker 4: time wrestling over this and then the Supreme Court would

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Speaker 4: announce the doctrine in the most complete manner. Instead, they

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Speaker 4: just keep granting and summary reversing, without oral argument, without

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Speaker 4: the briefing, and basically saying, nah, that doesn't look right

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Speaker 4: to us. The Second Circuit you were wrong in this case,

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Speaker 4: or whatever circuit you're wrong in that case, and we're

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Speaker 4: just going to reverse without really explaining ourselves. So what

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Speaker 4: the lower courts are left with are like not super

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Speaker 4: clear directions about what to do, other than the Court

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Speaker 4: is very hostile, especially in the cases involving police officers

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Speaker 4: being accused of excessive use of force, to deny qualified

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Speaker 4: immunity to the officers. The result then is that it's

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Speaker 4: victims of the constitutional violations who are carrying the burdens

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Speaker 4: of those constitutional violations. That's the problem, right. The Court

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Speaker 4: is so concerned with being unfair to the officers that

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Speaker 4: they are forgetting about being unfair to the people who

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Speaker 4: were actually hurt, and by granting qualified a unity to

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Speaker 4: the officers, they're basically saying those people, even though they

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Speaker 4: alleged constitutional violations, have no remedy, which is something that

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Speaker 4: is absolutely inconsistent with how the courts were approaching this

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Speaker 4: before the sixties, the seventies, the eighties, when the Court started.

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Speaker 2: To I've been talking to Anya Bidwell, a senior attorney

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Speaker 2: at the Institute for Justice, about the Supreme Court once

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Speaker 2: again this week weighing in in favor of police officers

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Speaker 2: by shielding them from liability under the theory of qualified immunity.

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Speaker 2: In this case, there were descents from the three Liberals

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Speaker 2: and just as Sonya Sotomayor accused her conservative colleagues of

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Speaker 2: a one sided approach, saying they're willing to intervene in

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Speaker 2: favor of officers and qualified immunity disputes, but rarely the

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Speaker 2: other way, and so the doctrine becomes an absolute shield

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Speaker 2: for police officers. How long have we seen this pattern

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Speaker 2: from the Supreme Court. It's not just been the Roberts Court.

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Speaker 5: Yes, it's true, it's modern.

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Speaker 4: Iteration of the qualified immunity test started in nineteen eighty

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Speaker 4: two with a decision called Harlow versus Fitgerald, which didn't

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Speaker 4: even involve police officers or excessive force. It involved White

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Speaker 4: House aids to President Nixon. And with that case they

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Speaker 4: announced this clearly established law test, and over time the

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Speaker 4: test has become more and more, more and more protective

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Speaker 4: of police officers especially. There was like a bright moment

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Speaker 4: in two thousand and two when the Supreme Court, with

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Speaker 4: Justice Stevens writing for the majority, said that when we're

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Speaker 4: talking about clearly established law, sometimes violation can be obvious.

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Speaker 4: So you don't even need to come to court armed

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Speaker 4: with the case. You can just say it's obvious that

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Speaker 4: you can't do these horrible things. To me, and in

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Speaker 4: that decision, the court seemed like it was going into

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Speaker 4: a direction where it would maybe liberalize the test a bit,

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Speaker 4: but that wasn't.

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Speaker 5: The case at all.

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Speaker 4: Whole crew short lived, and the war attempts to kind

401
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Speaker 4: of breathe new life into it. But for the most part,

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Speaker 4: the court has been making it more and more and

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Speaker 4: more difficult to sue state and local officials, giving them

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Speaker 4: qualified immunity. And that just puts in context federal police, right, Like,

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Speaker 4: if it is this hard to sue state and local police,

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Speaker 4: federal police they have additional protections that you and I

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Speaker 4: talked about a couple of months ago, So imagine how

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Speaker 4: hard it is to sue federal police. They have qualified

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Speaker 4: immunity the same as state and local police, but in

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Speaker 4: addition to that, they don't even have that civil rights

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Speaker 4: statute that you can use to sue state and local police.

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Speaker 4: So when you sue federal police, you don't even get

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Speaker 4: to argue the qualified immunity point.

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Speaker 5: You just get thrown out completely.

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Speaker 4: So overall, the direction has very much been what such

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Speaker 4: about your calls one sided approach, but it's not just

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Speaker 4: qualified immunity. It's one sided approach to vindicating constitutional rights

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Speaker 4: against the government.

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Speaker 2: So then when Vice President Vance after I believe it

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Speaker 2: was the first shooting in Minneapolis, he said, federal officers

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Speaker 2: have immunity, absolute immunity from these things, which is technically incorrect,

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Speaker 2: but does it seem to be practically the case.

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Speaker 4: It is practically the case, I think to be generous

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Speaker 4: to Vans. In the context of answering that question, he

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Speaker 4: was talking about criminal liability instead of civil liability. But

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Speaker 4: Stephen Miller talked about civil liability specifically, and he called

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Speaker 4: it federal immunity. He said, ICE, you guys have federal immunity,

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Speaker 4: and DHS had these announcements on their Twitter feed saying

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Speaker 4: that you guys don't have to worry because you have

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Speaker 4: federal immunity, and federal immunity is even more protective than

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Speaker 4: qualified immunity. And like you said, it really is absolute immunity.

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Speaker 5: That's how it works. In practice.

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Speaker 4: When ICE uses successive force against you, or when they

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Speaker 4: take your gun away, or when they prevent you from

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Speaker 4: filming them, all those clearly established constitutional violations are impossible

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Speaker 4: to invoke against ICE.

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Speaker 2: This is Supreme Court made so Congress, if Congress wanted

438
00:28:51,720 --> 00:28:53,200
Speaker 2: to could change this.

439
00:28:54,040 --> 00:28:56,840
Speaker 5: Yes, Congress absolutely could change this. Well.

440
00:28:57,120 --> 00:29:01,440
Speaker 4: Frankly, it's an interesting kind of situation because when Congress

441
00:29:01,440 --> 00:29:05,000
Speaker 4: passed this law allowing suits against state and local officers

442
00:29:05,080 --> 00:29:08,480
Speaker 4: right called Section nineteen eighty three, it never said that

443
00:29:08,600 --> 00:29:13,760
Speaker 4: qualified immunity is a defense. It never mentions any immunity defenses.

444
00:29:13,960 --> 00:29:17,280
Speaker 4: So the court invented out of whole cloth. The Court

445
00:29:17,360 --> 00:29:21,160
Speaker 4: really should say, wait a minute, just like Professor Boude

446
00:29:21,280 --> 00:29:24,960
Speaker 4: argues William Bowed that it's not in the text and

447
00:29:25,320 --> 00:29:29,040
Speaker 4: it wasn't a background against which Congress operated, So court

448
00:29:29,080 --> 00:29:31,520
Speaker 4: really should look at it and say, qualified immunity is

449
00:29:31,560 --> 00:29:35,520
Speaker 4: something that we really shouldn't be dealing with. But yes,

450
00:29:35,600 --> 00:29:38,320
Speaker 4: if Congress wants to do something about it, Congress can

451
00:29:38,360 --> 00:29:41,960
Speaker 4: pass a law to say that qualified immunity is not

452
00:29:42,080 --> 00:29:45,800
Speaker 4: a thing, that qualified immunity is not a defense to

453
00:29:45,920 --> 00:29:49,720
Speaker 4: Section nineteen eighty three claims something like this. Congress tried

454
00:29:49,800 --> 00:29:54,280
Speaker 4: after the killing of George Floyd, but they famously failed

455
00:29:54,360 --> 00:29:58,560
Speaker 4: at doing this, and they also famously failed at amending

456
00:29:58,600 --> 00:30:02,240
Speaker 4: Section nineteen eighty three to include federal officials in its

457
00:30:02,280 --> 00:30:05,520
Speaker 4: ambit too. So there are two things that Congress can do.

458
00:30:05,920 --> 00:30:08,560
Speaker 4: It can do them tomorrow, but over the years, they

459
00:30:08,680 --> 00:30:14,800
Speaker 4: showed a complete inability to get their votes on those issues.

460
00:30:15,320 --> 00:30:18,120
Speaker 2: What can the states do? What are the states doing?

461
00:30:18,920 --> 00:30:22,560
Speaker 4: As Alexander Hamilton talked about in Federalist twenty eight, you know,

462
00:30:22,600 --> 00:30:24,600
Speaker 4: and I kill read the mark kind of tried to

463
00:30:24,640 --> 00:30:30,320
Speaker 4: revive the excitement about that particular federalist states can contrabalance

464
00:30:30,360 --> 00:30:33,040
Speaker 4: the federal government and the abuses by the federal government.

465
00:30:33,080 --> 00:30:35,680
Speaker 4: Then frankly, that's a conservative issue, right. The conservatives are

466
00:30:35,720 --> 00:30:38,040
Speaker 4: the ones who've been warning us forever and ever about

467
00:30:38,560 --> 00:30:40,160
Speaker 4: the abusive federal government.

468
00:30:40,520 --> 00:30:42,520
Speaker 5: So yes, let's go to states.

469
00:30:42,680 --> 00:30:46,440
Speaker 4: And some of the states have been very successful already

470
00:30:46,480 --> 00:30:49,640
Speaker 4: when it comes to qualified immunity. For example, Colorado specifically

471
00:30:49,640 --> 00:30:52,280
Speaker 4: said that when it comes to police a state and

472
00:30:52,360 --> 00:30:55,760
Speaker 4: local police, qualified immunity is not a defense. And guess what,

473
00:30:56,160 --> 00:30:59,640
Speaker 4: the floodgates did not open, right what they're always talking about,

474
00:30:59,680 --> 00:31:01,560
Speaker 4: Oh my god, they're going to be a whole bunch

475
00:31:01,560 --> 00:31:04,880
Speaker 4: of meritless lawsuits that didn't happen because it's still difficult

476
00:31:05,000 --> 00:31:08,000
Speaker 4: to state acclaim and qualified immunity is just one of

477
00:31:08,040 --> 00:31:10,840
Speaker 4: the obstacles that plenty of space. So Colorado and New

478
00:31:10,880 --> 00:31:14,400
Speaker 4: Mexico they already enacted laws making it easier to overcome

479
00:31:14,440 --> 00:31:18,360
Speaker 4: qualified immunity, if not bank qualified community altogether. And states

480
00:31:18,360 --> 00:31:21,960
Speaker 4: can also enact laws allowing suits for violations of the

481
00:31:22,080 --> 00:31:25,880
Speaker 4: United States Constitution, including by those.

482
00:31:25,600 --> 00:31:27,280
Speaker 5: Who work for the federal government.

483
00:31:27,360 --> 00:31:30,960
Speaker 4: And that's something that we've been seeing happening across the country,

484
00:31:31,440 --> 00:31:37,400
Speaker 4: especially after ice started invading essentially America's cities. So we

485
00:31:37,520 --> 00:31:40,280
Speaker 4: are seeing there are so far five states that allow

486
00:31:40,400 --> 00:31:43,840
Speaker 4: suits for violations of the United States Constitution under state law,

487
00:31:44,240 --> 00:31:46,080
Speaker 4: and there are fifteen more.

488
00:31:45,880 --> 00:31:48,640
Speaker 5: Bills at least that are.

489
00:31:48,600 --> 00:31:52,000
Speaker 4: Currently being considered that would allow the same thing. So

490
00:31:52,240 --> 00:31:54,680
Speaker 4: the solution by Congress is much easier. Right, it's a

491
00:31:54,720 --> 00:31:57,440
Speaker 4: solution for all fifty states. But if Congress is not

492
00:31:57,480 --> 00:31:59,680
Speaker 4: going to do it, then it's imperative that states.

493
00:31:59,680 --> 00:32:04,080
Speaker 2: Do you know Minnesota is trying to just get evidence

494
00:32:04,200 --> 00:32:08,719
Speaker 2: looking into prosecuting the officers involved in those two shooting deaths.

495
00:32:09,400 --> 00:32:12,240
Speaker 2: What do you think about this suit against the Trump administration.

496
00:32:13,040 --> 00:32:16,880
Speaker 4: Yeah, So that is what Jade Evans was talking about,

497
00:32:16,880 --> 00:32:21,000
Speaker 4: this idea of absolute immunity when it comes to criminal prosecutions, right,

498
00:32:21,040 --> 00:32:24,920
Speaker 4: And what he is really referring to is the supremacy clause.

499
00:32:25,960 --> 00:32:31,800
Speaker 4: Arguments that they invoke that Essentially, state governments cannot prosecute

500
00:32:31,880 --> 00:32:36,320
Speaker 4: federal officials because the federal officials are acting pursued to

501
00:32:36,400 --> 00:32:40,120
Speaker 4: federal law and states cannot kind.

502
00:32:39,960 --> 00:32:43,360
Speaker 5: Of interfere in that process.

503
00:32:43,400 --> 00:32:48,160
Speaker 4: And the supremacy laws, immunity has been interpreted rather broadly.

504
00:32:49,080 --> 00:32:53,080
Speaker 4: But again, the Supreme Court hasn't spoken about this in

505
00:32:53,120 --> 00:32:56,560
Speaker 4: a very very very long time, and certainly not definitively.

506
00:32:56,880 --> 00:32:59,920
Speaker 4: So this is something that states should absolute the person

507
00:33:00,120 --> 00:33:03,680
Speaker 4: you saying that, you know, we have the right to

508
00:33:03,960 --> 00:33:07,240
Speaker 4: ensure that we're at least a part of the investigation.

509
00:33:07,440 --> 00:33:11,960
Speaker 4: Right here, federal government is not even sharing evidence, which

510
00:33:12,000 --> 00:33:16,120
Speaker 4: is something that wasn't part of a traditional practice. When

511
00:33:16,160 --> 00:33:19,680
Speaker 4: those kinds of things happen, usually the federal government involves states.

512
00:33:19,720 --> 00:33:22,800
Speaker 4: But now states are completely excluded and it's incumbent upon

513
00:33:22,880 --> 00:33:23,920
Speaker 4: them to fight that.

514
00:33:24,560 --> 00:33:28,280
Speaker 2: And tell us about the second case involving a Texas journalist.

515
00:33:28,920 --> 00:33:32,600
Speaker 4: So it's really interesting that on the same day that

516
00:33:32,840 --> 00:33:38,760
Speaker 4: the Supreme Court essentially reversed the denial of qualified immunity

517
00:33:38,880 --> 00:33:43,280
Speaker 4: in this police successive force context, it also refused to

518
00:33:43,400 --> 00:33:47,960
Speaker 4: hear a case involving a journalist. That case also was

519
00:33:48,000 --> 00:33:51,840
Speaker 4: a qualified immunity case, and just as such a manor

520
00:33:52,240 --> 00:33:56,520
Speaker 4: wrote a descent from the denial of review there. And

521
00:33:56,680 --> 00:33:59,920
Speaker 4: it's something interesting to think about because qualified immunity often

522
00:34:00,120 --> 00:34:02,520
Speaker 4: comes up in the context of split second decision making

523
00:34:02,520 --> 00:34:05,320
Speaker 4: an excessive force, but it also comes up in all

524
00:34:05,360 --> 00:34:08,759
Speaker 4: the other constitutional violations. For example, here it's a journalist

525
00:34:08,800 --> 00:34:12,440
Speaker 4: and you can certainly relate to that. She basically was

526
00:34:12,560 --> 00:34:18,120
Speaker 4: corroborating information by asking her sources about it, and after

527
00:34:18,160 --> 00:34:20,960
Speaker 4: she asked her sources within the police about it, she

528
00:34:21,080 --> 00:34:24,799
Speaker 4: published the information and she was put in jail for it.

529
00:34:25,160 --> 00:34:29,560
Speaker 2: The circumstances were really i say crazy, but certainly unusual.

530
00:34:30,120 --> 00:34:33,160
Speaker 2: Why they decided to go after and then they took

531
00:34:33,280 --> 00:34:36,359
Speaker 2: pictures of her in handcuffs and made fun of her.

532
00:34:36,360 --> 00:34:38,160
Speaker 5: It just seemed busy.

533
00:34:38,280 --> 00:34:40,920
Speaker 4: She was on the butt, you know, to them, because

534
00:34:40,960 --> 00:34:44,080
Speaker 4: she was following them around and she was recording what

535
00:34:44,160 --> 00:34:49,160
Speaker 4: they were doing, including sometimes very uncomfortable things. So they

536
00:34:50,160 --> 00:34:53,400
Speaker 4: decided to teach her a lesson, and they did something

537
00:34:53,480 --> 00:34:57,279
Speaker 4: that the Constitution clearly prohibits. Freedom of the press is

538
00:34:57,320 --> 00:35:02,239
Speaker 4: one of the foundational blocks of our republic, and they

539
00:35:02,320 --> 00:35:06,520
Speaker 4: violated her First Amendment right and in that case, qualified

540
00:35:06,560 --> 00:35:10,000
Speaker 4: immunity shielded them again, right, not an excessive force case,

541
00:35:10,400 --> 00:35:13,319
Speaker 4: but a clear violation of the First Amendment putting a

542
00:35:13,360 --> 00:35:18,400
Speaker 4: reporter in jail. Qualified immunity shielded them in that situation,

543
00:35:18,800 --> 00:35:21,759
Speaker 4: and the Supreme Court, on the same day as it

544
00:35:22,160 --> 00:35:26,759
Speaker 4: reversed qualified immunity denial to police officers in zorn it

545
00:35:26,920 --> 00:35:31,640
Speaker 4: also refused to even consider this case, allowing qualified immunity

546
00:35:31,800 --> 00:35:35,720
Speaker 4: grant in this case to stand. So that reporter, fundamentally,

547
00:35:35,800 --> 00:35:39,560
Speaker 4: who was silenced and who was putting jail for reporting,

548
00:35:40,480 --> 00:35:43,600
Speaker 4: she has no remedy. She is the one who will

549
00:35:43,640 --> 00:35:46,799
Speaker 4: have to carry the burden of the constitution violation. And

550
00:35:46,840 --> 00:35:49,920
Speaker 4: by the way, all the other reporters in Texas watching

551
00:35:49,960 --> 00:35:54,839
Speaker 4: her being treated this way are likely to be much

552
00:35:54,880 --> 00:35:57,719
Speaker 4: more cautious about how the report on what's happening in Texas.

553
00:35:58,239 --> 00:36:01,080
Speaker 2: So, knowing the history of what the Supreme Court's been doing,

554
00:36:01,120 --> 00:36:04,760
Speaker 2: were you surprised by these actions this week?

555
00:36:05,239 --> 00:36:11,280
Speaker 4: Unfortunately I was not, though I always am optimistic about

556
00:36:11,520 --> 00:36:17,440
Speaker 4: the Court. And there are conservative jurists who spoken out

557
00:36:17,840 --> 00:36:23,360
Speaker 4: very convincingly against qualified immunity, including Justice Thomas himself, but

558
00:36:23,640 --> 00:36:28,640
Speaker 4: also lower court judges right Trump appointee Judge Willet, even

559
00:36:28,719 --> 00:36:32,600
Speaker 4: Trump appointee Judge Oldham on the Fifth Circuit and Judge

560
00:36:32,600 --> 00:36:36,759
Speaker 4: Hoe as well. So the Conservatives think about this in

561
00:36:36,800 --> 00:36:39,200
Speaker 4: a very nuanced way, but.

562
00:36:39,440 --> 00:36:41,680
Speaker 5: So far the Supreme Court is just very.

563
00:36:41,480 --> 00:36:48,040
Speaker 4: Reluctant to genuinely engage with qualified immunity other than just

564
00:36:48,239 --> 00:36:52,120
Speaker 4: send signals that we like it, especially when it comes

565
00:36:52,239 --> 00:36:55,680
Speaker 4: to police officers using excessive first, so lower courts be

566
00:36:56,040 --> 00:36:58,680
Speaker 4: very cautious when you deny qualified.

567
00:36:58,280 --> 00:37:03,960
Speaker 2: Immunity, very cautious. Indeed, thanks so much, Anya. That's Anya Bidwell,

568
00:37:04,040 --> 00:37:07,719
Speaker 2: a senior attorney at the Institute for Justice. And that's

569
00:37:07,760 --> 00:37:10,360
Speaker 2: it for this edition of The Bloomberg Law Show. Remember

570
00:37:10,400 --> 00:37:12,480
Speaker 2: you can always get the latest legal news on our

571
00:37:12,520 --> 00:37:16,680
Speaker 2: Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

572
00:37:16,840 --> 00:37:21,879
Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,

573
00:37:22,280 --> 00:37:24,880
Speaker 2: and remember to tune into The Bloomberg Law Show every

574
00:37:24,920 --> 00:37:28,840
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

575
00:37:28,960 --> 00:37:30,560
Speaker 2: and you're listening to Bloomberg