Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: There's no place like home. There's no place like home.
Speaker 1: Dorothy said it before, and the Supreme Court confirmed it
Speaker 1: in a decision on Monday, there is no place like
Speaker 1: the home, affirming the sanctity of the home from search
Speaker 1: by police without a warrant. During oral arguments, the Justice
Speaker 1: has had questioned whether the so called community caretaker exception
Speaker 1: should allow police to enter a home without a warrant,
Speaker 1: and Chief Justice John Roberts raised some interesting hypotheticals, ranging
Speaker 1: from an elderly woman who hasn't been heard from to
Speaker 1: a van go painting about to be damaged. The neighbors say,
Speaker 1: she hasn't I haven't seen her all day. She didn't
Speaker 1: come over for dinner. She's never late. Is that enough? Uh?
Speaker 1: And they've got this fence around their yard. It's it's locked,
Speaker 1: but there's a cat up in the tree. Can you
Speaker 1: can you come and help you get the cap down?
Speaker 1: Is that? Uh? Community caretaking? Okay? It's water dripping from above,
Speaker 1: you know, in in someone's home and they happen to
Speaker 1: own a van Gogh and the water is going to
Speaker 1: ruin the painting is that compelling. In an unanimous decision,
Speaker 1: the Justice is bolster the Fourth Amendment's protection of the
Speaker 1: home against warrantless searches in a rather odd case involving
Speaker 1: police seizing guns in a potentially suicidal man's home. Joining
Speaker 1: me as former federal prosecutor George Newhouse of Richard's Carrington,
Speaker 1: George tell us about the decision. So the decision that
Speaker 1: Knniglia versus Strong, that's a couple of things. It reaffirms
Speaker 1: that the home is a man's castle and has the
Speaker 1: highest protection in the Fourth Amendment, So the right of privacy,
Speaker 1: the Supreme Court has ruled nine zero, which is a
Speaker 1: remarkable union amity indicates that the police have to be
Speaker 1: very careful and cautious when entering the home for any
Speaker 1: really any purpose where they don't have consent or there
Speaker 1: isn't a clear what the law calls exigencies. And so
Speaker 1: this case really was designed to test to see whether
Speaker 1: another and earlier case called Katie versus Dombrowski would be extended.
Speaker 1: In seventy three Supreme Court case where an officer found
Speaker 1: a gun after he searched an impounded car that had
Speaker 1: been involved in a traffic accident TOAD. And so the
Speaker 1: court in that case in Katie articulated something that they
Speaker 1: call the community caretaking exception, and that's a reference to
Speaker 1: and it's true the police perform a remarkable number of
Speaker 1: public safety type tasks that are not law enforcement oriented.
Speaker 1: They're not searching for criminals. They're trying to protect people.
Speaker 1: They're helping people who may be injured in their homes.
Speaker 1: And of course, during the argument that justices were very
Speaker 1: concerned that the police have ample authority to undertake these
Speaker 1: public safety sort of exercises. But in this decision they
Speaker 1: made it very clear and Condigulia has sort of unusual
Speaker 1: facts that they can't just come into a house any
Speaker 1: time that the police would like to, and they need
Speaker 1: special circumstances and they need a high degree of articulable
Speaker 1: reasonable though, so they have to have an objectively reasonable
Speaker 1: basis for coming into the house, such as, for example,
Speaker 1: to say, the elderly person who may have fallen and
Speaker 1: injured themselves. So it's an important decision and interesting one,
Speaker 1: very short written by Justice Thomas, and there are a
Speaker 1: number of concurrences, but only by the conservative block. But
Speaker 1: we didn't hear from any of the liberal justices. So
Speaker 1: interesting decisions. Yeah for page opinion and then very short
Speaker 1: concurring opinions as well, one written by Chief Justice John
Speaker 1: Roberts with just a paragraph long. What were they trying
Speaker 1: to do with these concurrences? Remember, a concurrence is not
Speaker 1: the opinion of the court only to Justice Thomas wrote
Speaker 1: that the concurrences the justices want to say. As also
Speaker 1: Justice Kavanaugh wrote a concurring opinion, they're trying to say,
Speaker 1: this is what the opinion does not say. So we
Speaker 1: want to be very clear, Justice Roberts is very clear
Speaker 1: that this decision is not interfering or impinging on the
Speaker 1: ability of the police, acting as public safety personnel to
Speaker 1: enter a home when they have a reasonable basis to
Speaker 1: believe that someone requires their assistance or so of non
Speaker 1: law enforcement purposes. That, of course, we heard extensively during
Speaker 1: the argument and the facts of the case. Really there
Speaker 1: was no reason for the police to go into Conniglia's house.
Speaker 1: If you recall, he had an argument with his wife,
Speaker 1: brought out a revolver, put in the table in front
Speaker 1: of them, and then invited her to shoot him and
Speaker 1: get it over with, an invitation which she declined. Left
Speaker 1: the house and spent the night in the hotel. Then
Speaker 1: when she called the next day, he wasn't answering the phone.
Speaker 1: She was concerned had the police come with her, and
Speaker 1: they found him on the front port, so there was
Speaker 1: no longer any exigency or emergency. Conniglia said, you can
Speaker 1: take me to the hospital, but don't take my guns.
Speaker 1: There was no reason for the police to go into
Speaker 1: Conniglia's house. Justice Alito talked about the issue of red
Speaker 1: flag laws allowing gun seizures. Why did he bring that up?
Speaker 1: That really wasn't an issue in this case, was it,
Speaker 1: John is an excellent point. Now, it was not an
Speaker 1: issue in this case, and I noticed it as well.
Speaker 1: It's interesting that Justice Thomas, who wrote the opinion, is
Speaker 1: probably the most profound advocate for Second Amenment rights, second
Speaker 1: only to Justice Alito. Justice Alito was signaling in a concurrence.
Speaker 1: When they say something like that, the Justice is saying,
Speaker 1: this is something that we may come back to, and
Speaker 1: he was clearly signaling to the community some of these
Speaker 1: red flag laws, which are laws passed by the states
Speaker 1: that make it possible for the states to come in
Speaker 1: and seize firearms from persons, particularly persons who were experiencing
Speaker 1: psychiatric difficulties and these laws. Justice Alito basically said, well,
Speaker 1: this issue isn't before us today, but we may get
Speaker 1: a case at the Supreme Court. And indeed he seemed
Speaker 1: to be implying that he would welcome such a case.
Speaker 1: So it's really an invitation for a further litigation on
Speaker 1: Second Amendment rights and a court. Remember, this case involved
Speaker 1: a man who had not committed a crime and who
Speaker 1: the police went into his house and took his gun.
Speaker 1: So I think I've got the attention of the justices
Speaker 1: that are, shall we say, sensitive to the Second Amendment.
Speaker 1: So this comes at a time when the police and
Speaker 1: their powers have come under scrutiny, and this case had
Speaker 1: civil liberties groups on both sides of the aisle agreeing.
Speaker 1: The Americans of the Liberties Union, the Cato Institute in
Speaker 1: the American Conservative Union Foundation joined in a brief. You
Speaker 1: don't often see that very strange bedfellows indeed, and you're right,
Speaker 1: it's really because the facts of the case were unusual.
Speaker 1: The conservatives on those people that were concerned about gun
Speaker 1: rights did not like the fact that the police were
Speaker 1: coming in on their own without a court order. And
Speaker 1: seizing firearms. And at the same time, the a c
Speaker 1: ou was likewise concerned that anytime someone the police or
Speaker 1: the public authorities go into a private house without consent,
Speaker 1: they build their strong Fourth Amendment proponents. So it's interesting.
Speaker 1: Fourth Amendment is one of the more interesting amendments because
Speaker 1: it is one that sometimes particularly for example, Justice Scalia
Speaker 1: was a very strong advocate of the Fourth Amendment, which
Speaker 1: is to say, restricting the ability of the police or
Speaker 1: law enforcement to inner homes or do other things that
Speaker 1: might interfere with the Fourth Amendment. Right. So fourth Amendment
Speaker 1: is a cherished amendment, and of course the home is
Speaker 1: the epicenter of that amendment, so it gets the greatest protection.
Speaker 1: And everyone in this case agreed. Yeah. Did that come
Speaker 1: as a surprise to you that it was unanimous? Yes,
Speaker 1: Actually it was. I think it will surprise a lot
Speaker 1: of people whenever the Court in these stratified and divisive
Speaker 1: times where the Court agrees nine zero and they may
Speaker 1: be agreeing for slightly different reasons. Again that the justices
Speaker 1: who were concerned about the Second Amendment, I don't like that,
Speaker 1: and the other justices, of course are eager to or
Speaker 1: keen on seeing that police powers are checked by by
Speaker 1: the due process clause. Let me put a few scenarios
Speaker 1: to you, and you tell me if this has any
Speaker 1: relevance this decision. So, the next time a spouse called
Speaker 1: the police and says, my husband is trying to kill
Speaker 1: himself help, can police come in without a warrant? Yes,
Speaker 1: that probably will be sufficiently objective, reasonable facts that will
Speaker 1: justify the police, again acting in their public safety mode,
Speaker 1: to enter the house, particularly if after that call, if
Speaker 1: they go to the house and they knock and no
Speaker 1: one answers the door, and no one is there to
Speaker 1: give them consent, My belief is that would be sufficient
Speaker 1: to allow the police to come in and ensure that
Speaker 1: there has not been violence in the house. Again, one
Speaker 1: of their primary roles public protection. The l A p
Speaker 1: d S motto is to protect and serve. So this
Speaker 1: protection role is key and has been key for a
Speaker 1: number of years, which of course is one reason why
Speaker 1: despite the controversy, all reasonable people realize that we need
Speaker 1: the police. Indeed, we need them better trained, but we
Speaker 1: need them to be able to do their job and
Speaker 1: all capacities. So now another hypothetical, someone is running away
Speaker 1: from the police hut pursuit runs into his home, can
Speaker 1: the police follow him in? Absolutely? So that's the classic
Speaker 1: exception called hot pursuit. So if the police have probable
Speaker 1: cause to believe that if someone has robbed a bank
Speaker 1: or has committed a crime, and they are pursuing that
Speaker 1: person to apprehend him, they're doing that both to protect
Speaker 1: the public, but they're doing that in their law enforce
Speaker 1: of capacity. And that person goes into a house or
Speaker 1: an apartment or a business, the police may follow and
Speaker 1: they do not need a warrant, and they do not
Speaker 1: need and of course can't necessarily stop to ask for consent.
Speaker 1: So that hasn't changed, and that's one of the time
Speaker 1: honored exceptions called hot pursuit. So does this case really
Speaker 1: just leave the law as it was before the first
Speaker 1: circuit went out on a limb and said that the
Speaker 1: caretaker exception applies to the home. That's exactly right, and
Speaker 1: that's really what the justices we're writing to emphasize that
Speaker 1: this case does not engender any change in four am amateurisprudence.
Speaker 1: There are at the moment about ten exceptions to the
Speaker 1: warrant requirement, and one of them we really had called
Speaker 1: it the administrative search, but you could call it community caretaker.
Speaker 1: But the Court was really saying was there is no
Speaker 1: special community caretaker exception. We're not endorsing what the first
Speaker 1: Circuit did. That phrase is mentioned in Katie versus Dombrowski,
Speaker 1: but Justice Alito was very careful to point out that
Speaker 1: the Court did not endorse it. So they said, we're
Speaker 1: not creating any new law here today. And really what
Speaker 1: the Court was saying was, if you will, the exigency exception,
Speaker 1: which is extremely broad meeting exigencies being when the police
Speaker 1: are responding to emergencies, whether they're chasing a fleeing felon,
Speaker 1: or there's a fire in a residence, or there's reasonably
Speaker 1: that someone at a home or a business requires immediate
Speaker 1: medical care or assistance, they are in no way restricted
Speaker 1: from basically entering that an individual's home or residents to
Speaker 1: provide the aid. So no no law has been changed.
Speaker 1: A fourth and amateur students per this decision is the
Speaker 1: same as it was before. Thanks George. That's George Newhouse
Speaker 1: of Richard's Carrington. The Senate Judiciary Committee advanced five of
Speaker 1: President Joe Biden's first judicial nominees today, bringing them one
Speaker 1: step closer to confirmation. The list included Katangi Brown Jackson,
Speaker 1: who's considered a potential Supreme Court nominee for the powerful
Speaker 1: DC Appeals Court, joining me as Carl Tobias, a professor
Speaker 1: at the University of Richmond Law School, tell us what
Speaker 1: happened at the Senate Judiciary Committee. Well, it was better
Speaker 1: than I had expected in many observers thought because some
Speaker 1: Republicans voted for every nominee. The district nominees easily secured support.
Speaker 1: One had a nineteen three vote, but the two appellate
Speaker 1: nominees for the d C Circuit in the Seventh Circuit,
Speaker 1: we're closer. Katangi Brown Jackson for DC Circuit had a
Speaker 1: thirty nine vote and Candice Jackson Akawomi had a ten
Speaker 1: vote for the Seventh Circuit. But still, at least there
Speaker 1: was some body partisanship in all of the votes, so
Speaker 1: that's a promising sign. And all of the nominees were
Speaker 1: rated highly qualified by the A B A, the highest rating.
Speaker 1: Why more division on the circuit court nominees? Is it
Speaker 1: because their circuit court nominees or is it because of
Speaker 1: who they are? It's both, but especially for the d
Speaker 1: C Circuit which is the second most important court in
Speaker 1: the country. And it's not a very well kept secret
Speaker 1: that if President Biden has a Supreme Court vacancy, he
Speaker 1: has promised that he would appoint a black woman, and
Speaker 1: it certainly looks like Katangi Jackson would be that person.
Speaker 1: So that's especially important. And the Seventh Circuit, of course,
Speaker 1: is very important too. We know people of color on
Speaker 1: the court. It covers large states Illinois, Indiana, Wisconsin in
Speaker 1: the Midwest and receives many difficult, complicated cases. And of course,
Speaker 1: you know that's basically your Supreme Court for the region,
Speaker 1: the Seventh Circuit, for example, in which the court sits
Speaker 1: because of Supreme Court grants so few petitions and so
Speaker 1: it's critically important. And you know, there's so many, many,
Speaker 1: many more district judges and they tend to make less
Speaker 1: policy because they can't even bind judges in their own
Speaker 1: courthouse with their rulings. Republican Center is Ted Cruz, Josh Holly,
Speaker 1: and Ben Sas voted no on each nominee. I think
Speaker 1: that's correct, and some of them aren't even there. They
Speaker 1: just voted proxies. I think Sas was not there, So
Speaker 1: we may expect that though, because certainly Cruise and Holly
Speaker 1: have made no bones about their own ambitions to be
Speaker 1: president in four and they are very local. I've spoken
Speaker 1: and vigorous critics of President Biden and his nominees, and
Speaker 1: so it's to be expected, and so it's not surprising
Speaker 1: that they voted no. Senator Dick Durbin, who is the
Speaker 1: chair of the committee, told Bloomberg he's fully prepared for
Speaker 1: opposition from the panel's Republicans, particularly those positioning themselves for
Speaker 1: a possible White House bid. As I look across the table,
Speaker 1: with the exception of two or three Republicans, I'm facing
Speaker 1: their most aggressive members. Has this become a high profile
Speaker 1: a very high profile position. Is there a reason why
Speaker 1: the most aggressive and possible presidential candidates from the GOP
Speaker 1: or on this committee. Well, they probably choose to be
Speaker 1: on that committee. And the issues that the committee takes
Speaker 1: up are critically important. And remember, we saw three justices
Speaker 1: appointed by the last administration, each of whom was controversial,
Speaker 1: and the American people seem to be focused, especially after
Speaker 1: the court granted certain the abortion case out of Mississippi
Speaker 1: on the Supreme Court, and so it's not surprising that
Speaker 1: presidential candidates gravitate to that committee, and they certainly have.
Speaker 1: You've got Tom Cotton, You've got Ted Cruz, you have
Speaker 1: Josh Holly and a number of others who are quite
Speaker 1: conservative ideologically. And the committee takes up a number of
Speaker 1: other issues. For example, all a number of the questions
Speaker 1: about policing and criminal justice reform go through that committee
Speaker 1: on the way to the floor. So it's an important
Speaker 1: committee in terms of its subject matter. And then all
Speaker 1: that it does, all the Justice Department political appointees have
Speaker 1: to be confirmed and they come before the committee. All
Speaker 1: the ninety four U s Attorneys, all of those important
Speaker 1: positions um have to have the blessed of the committee.
Speaker 1: And so there's a lot of hot button issues that
Speaker 1: are addressed in that committee. Do progressive seem to be
Speaker 1: more concerned about diversity of experience than racial diversity or
Speaker 1: is it just that they know that Biden is going
Speaker 1: to choose candidates who are racially diverse. Well, I think
Speaker 1: Biden has said and Democrats, I think are committed to
Speaker 1: having ethnic diversity on the courts. Because there was so
Speaker 1: little done in the Trump administration. As Durban repeated again today,
Speaker 1: President Trump couldn't manage to nominate a single black person
Speaker 1: for the fifty four appellate judges he nominated and confirmed UH,
Speaker 1: and Biden could manage to find three black women in
Speaker 1: his first batch, two of whom were sent to the
Speaker 1: floor today by the committee. And so I think that
Speaker 1: you can have and I think Biden reflects in his
Speaker 1: nominees UH and soon his appointees UM both ethnic, gender
Speaker 1: and experiential diversity. UM and UM both UH circuit nominees
Speaker 1: in dis batch, UH sent out a committee today. You
Speaker 1: reflect that. So in the new batch, if confirmed, the
Speaker 1: list includes Gustavo Guelpi, who would be the second Hispanic
Speaker 1: judge to serve on the first Circuit Court of Appeals.
Speaker 1: He's an interesting choice. He's the chief judge of the
Speaker 1: District of Puerto Rico and he was an appointee of
Speaker 1: George W. Bush. Do you often find presidents nominating judges
Speaker 1: who have been appointed by presidents of the other party, Well,
Speaker 1: not usually elevated to the appeals courts. But I assume
Speaker 1: that UM, the White House is comfortable with the UM
Speaker 1: wealth of experience fifteen years or more. Judge Gulpy has
Speaker 1: and so UM wants to continue the tradition one Torriola
Speaker 1: served with great distinction on the first Circuit and he
Speaker 1: was from Puerto Rico. Uh. And there was a for
Speaker 1: a brief moment a district judge from Puerto Rico whom
Speaker 1: Trumpet appointed was nominated, but it was too late in
Speaker 1: Trump's term to confirm that person. Um and UM. So
Speaker 1: I think that the White House is comfortable with this person.
Speaker 1: And uh he does have bring a wealth of experience.
Speaker 1: Uh and he grew up I think, went to UH
Speaker 1: college and law school in the US, but is from
Speaker 1: Puerto Rico. And so nominated him. So the list of
Speaker 1: the latest list of nominees bring Biden's total list of
Speaker 1: proposed nominees to lifetime federal judicial appointments to nine, plus
Speaker 1: one nominee to the DC Superior Court. But there are
Speaker 1: more than one hundred judicial vacancies. Is Biden moving too slowly? Well,
Speaker 1: I think he's moving methodically and systematically and just about
Speaker 1: as quickly as possible with his third package. And they're
Speaker 1: moving to the committee as we saw today. Hopefully we
Speaker 1: might be confirmed even before the recess next week, this
Speaker 1: group of five, but at least several of them would be.
Speaker 1: And then they've had another hearing, and another hearing is
Speaker 1: scheduled next week. So I think both the White House
Speaker 1: and the Senate are moving the nominees. But you do
Speaker 1: work against the calendar, as you're suggesting, Uh, and they
Speaker 1: may try to step that up over the summer and
Speaker 1: into the fall, UM, and I think they will. They're
Speaker 1: partly waiting on senators to make their recommendations to the
Speaker 1: White House, but those have been expedited it and so
Speaker 1: I think we're likely to see larger packages more quickly
Speaker 1: sent over to the Senate and hopefully quickly moved through
Speaker 1: the Senate. But Um, the tradition is to have hearings
Speaker 1: every two weeks, and with the various holidays and UM
Speaker 1: work weeks that the Senate takes outside of Washington, it's difficult.
Speaker 1: The calendar is tough, and so I think the White
Speaker 1: House and Erman are doing all they can. UM. But
Speaker 1: you're correct, Um, there are many vacancies right now. I
Speaker 1: think the current vacancies they're seventy on the district bench
Speaker 1: and seven I believe on the Appeals Court bench. UM.
Speaker 1: But some will be filled next week. So there have
Speaker 1: been two sets of hearings I believe of nominees in
Speaker 1: the second one, it seemed as if the nominee's got
Speaker 1: a few questions from the senators, there was little pushback.
Speaker 1: And in the first one, as we just discussed before,
Speaker 1: there was not very much pushed back from the senators,
Speaker 1: and they avoided a lot of the divisive questions that
Speaker 1: people had expected of the Republican senators. What's happening, Why
Speaker 1: aren't they taking more interest in these lower court nominees. Well,
Speaker 1: I that's a good point, especially you saw with the
Speaker 1: district nominee votes today, who were mostly you know, nominated
Speaker 1: recommended by senators because they can move the cases at
Speaker 1: the district level and so. And they all five today
Speaker 1: were rated highly qualified by the A, B, A, So
Speaker 1: it's hard to oppose them. But I agree with what
Speaker 1: you said about the two circuit nominees that were not
Speaker 1: very many sharp questions. But part of that may reflect UM,
Speaker 1: the Katangi Jackson's great skill and answering the questions, UM
Speaker 1: and her great experience on the DC district and so,
Speaker 1: UM and the fact she may well be a Supreme
Speaker 1: Court nominee in the future. UM. And the same with
Speaker 1: the seventh Circuit nominee. She was very skilled in answering
Speaker 1: the questions, and so um it doesn't help to um
Speaker 1: to ask sharp questions of nominees who have very responsive
Speaker 1: answers if you're trying to score points, and so you
Speaker 1: see some of that kind of dynamic. But by and large,
Speaker 1: I think the district nominees are not going to be
Speaker 1: controversial and the Republicans are going to vote for them
Speaker 1: as they did today. So it's really the pellet nominees,
Speaker 1: and there are fewer of those pellet vacancies right now,
Speaker 1: so it isn't expected that the nominees that were advanced
Speaker 1: will receive confirmation from the full Senate. Yes, yes, because um,
Speaker 1: the it'st and so I assume the people who voted
Speaker 1: yes on the GOP side Graham voted for both of
Speaker 1: the circuit nominees will vote for them on the floor,
Speaker 1: and that's all you need unless there is a Democratic defection,
Speaker 1: and I don't see any reason why that would be
Speaker 1: the case for either of these circuit nominees, so they'll
Speaker 1: certainly go through. In the district nominees, of course, had
Speaker 1: strong Republican support and committee, so they will have that
Speaker 1: on the floor as well. Thanks Carl, that's professor Carl
Speaker 1: Tobias at the University of Richmond Law School. And that's
Speaker 1: it for this edition of The Bloomberg Law Show. I'm
Speaker 1: June Grass. Thanks so much for listening, and remember to
Speaker 1: tune to The Bloomberg Law Show weeknights at ten pm Eastern,
Speaker 1: right here on Bloomberg Radio.