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

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Speaker 2: All illegal entry will immediately be halted, and we will

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Speaker 2: begin the process of returning millions and millions of criminal

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Speaker 2: aliens back to the places from which they came.

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Speaker 3: Just hours after taking office, President Donald Trump signed a

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Speaker 3: flood of executive orders on immigration, ranging from declaring a

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Speaker 3: national emergency at the southern border and barring asylum to

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Speaker 3: fast tracking deportations of undocumented immigrants and cutting off birthright citizenship,

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Speaker 3: a right he's long railed against.

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Speaker 4: Where a person comes in, has a baby, and the

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Speaker 4: baby is essentially a citizen of the United States for

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Speaker 4: eighty five years, with all of those benefits. It's ridiculous.

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Speaker 4: It's ridiculous, and it has to end.

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Speaker 3: The ink was barely dry on the executive orders before

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Speaker 3: attorneys general from twenty two New states sued to block

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Speaker 3: the order ending birthright citizenship, saying it was a guarantee

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Speaker 3: enshrined in the fourteenth Amendment that children born in the

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Speaker 3: United States are US citizens.

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Speaker 5: And this executive order is an assault on the rule

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Speaker 5: of law. It attacks a right that is core to

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Speaker 5: our nation's earliest days. President has overstepped his authority by

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Speaker 5: a mile.

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Speaker 3: Joining me is Leon Fresco, a partner at Hollanda Knight.

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Speaker 3: He was the head of the Office of Immigration Litigation

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Speaker 3: during the Obama administration. Leon, the first federal judge to

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Speaker 3: consider one of Trump's executive orders, blocked it, ruling from

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Speaker 3: the bench after a short hearing. Judge John Kunauer said

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Speaker 3: in his four decades on the bench he'd never seen

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Speaker 3: such a clear case of a blatantly unconstitutional order as

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Speaker 3: that ending birthright citizenship.

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Speaker 5: Explain why, well, there are two reasons. One, the case

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Speaker 5: law that's interpreted this for the last one hundred and

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Speaker 5: fifty years has said that any individual born in the

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Speaker 5: United States has merthright citizenship. This comes from a long

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Speaker 5: lineage of Chinese Exclusion Act cases, where in the eighteen

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Speaker 5: hundred they tried to exclude new Chinese individuals from entering,

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Speaker 5: then they tried to deport Chinese non citizens, and finally

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Speaker 5: they tried to deport children of Chinese non citizens who

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Speaker 5: had been born in the United States. And those cases

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Speaker 5: held you couldn't deport those children because those children were

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Speaker 5: United States citizens, because they were born in the United States.

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Speaker 5: And it's also noteworthy that all of these arguments about

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Speaker 5: immigration are irrelevant because the Fourteenth Amended came out at

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Speaker 5: a time where there were no immigration laws, and so

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Speaker 5: at that time it was just assumed, because that was

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Speaker 5: the law from England, that if you were born in

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Speaker 5: the land, you were a citizen of that land. And

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Speaker 5: so there's nothing that tracks this to allow this concept

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Speaker 5: of saying that someone who is born in the United

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Speaker 5: States isn't a citizen and this concept of well, but

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Speaker 5: you're outside the jurisdiction of the United States. Well, if

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Speaker 5: that's true, then, as the judge pointed out that there

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Speaker 5: was not really a good answer from the Department of Justice,

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Speaker 5: are you saying that these individuals can then commit any

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Speaker 5: crimes that they want and they be fine because there's

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Speaker 5: outside the jurisdiction of the United States? And they said no,

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Speaker 5: But then how does that work. You're either subject to

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Speaker 5: the jurisdiction or you're not. You can't have that both ways.

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Speaker 5: And I think you're going to see that happen in

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Speaker 5: many courts, even in the Supreme Court.

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Speaker 3: The judge gave the Trump Justice Department lawyers sort of

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Speaker 3: a legal beatdown, criticizing their lawyering. Quote, it just boggles

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Speaker 3: my mind that any lawyer could argue birthright citizenship is

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Speaker 3: unconstitutional and scolding the Department of Justice for even entertaining

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Speaker 3: the idea.

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Speaker 5: The question, I think which will be interesting will be,

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Speaker 5: because the judge was hinting at this, could lawyers that

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Speaker 5: were involved in either crafting such an argument or the

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Speaker 5: executive order themselves, or even arguing these cases? Could those

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Speaker 5: lawyers face potential penalties. I'm not going to voice any

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Speaker 5: opinion on that, but the judge certainly started talking about

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Speaker 5: where are the lawyers here to say that this shouldn't

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Speaker 5: be something that would be done, So I think that's

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Speaker 5: an interesting issue potentially to monitor.

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Speaker 3: It's expected that the case will be appealed all the

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Speaker 3: way to the Supreme Court. The only time the Supreme

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Speaker 3: Court ruled on this issue was back in eighteen ninety eight,

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Speaker 3: when it found that a baby born in San Francisco

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Speaker 3: to Chinese immigrants was a US citizen. Do you have

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Speaker 3: any reason to believe that the justices today, even as

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Speaker 3: conservative as they are, would overrule that precedent.

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Speaker 5: I think if you take textualist view, it still supports

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Speaker 5: birthrights that is in chip in the United States. If

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Speaker 5: you take a historical view, which is another thing conservatives do.

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Speaker 5: It still supports birthrights. It is in chip in the

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Speaker 5: United States, And again, unless the Department of Justice can

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Speaker 5: square the circle and come up with a way in

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Speaker 5: which you can be subject to the jurisdiction of the

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Speaker 5: United States for criminal laws, but not subject to the

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Speaker 5: jurisdiction of the United States for citizenship purposes. How those

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Speaker 5: two sets of concepts can mean different things when you're

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Speaker 5: using the exact same set of words. That's going to

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Speaker 5: be the biggest challenge. I don't know how you can

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Speaker 5: do that, and that's what creates the fatal problem in

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Speaker 5: their case.

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Speaker 3: Let's turn out to one of Trump's signature campaign promises,

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Speaker 3: and it'll be.

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Speaker 4: The largest deportation in the history of our country, and

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Speaker 4: we have no.

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Speaker 1: Choice.

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Speaker 3: But we're not seeing the mass raids and deportations that

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Speaker 3: were sort of advertised.

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Speaker 5: Well, they are publicizing what I would say routine operations

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Speaker 5: of ICE have historically been with a little bit of

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Speaker 5: extra emphasis. So I would say that there are greater

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Speaker 5: numbers of arrests and apprehensions than we're being done under

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Speaker 5: the Biden administration. But what they are doing is they're

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Speaker 5: really trying to publicize that to create the sense of

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Speaker 5: this is going to be an environment of a large

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Speaker 5: immigration enforcement posture, So individuals really need to be careful

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Speaker 5: and look into this and maybe leave on their own

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Speaker 5: so that you don't feel like you might get involved

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Speaker 5: in one of these operations. Now, the one interesting announcement

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Speaker 5: that really is going to be impactful is the Biden

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Speaker 5: administration led in a lot of people under what it's

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Speaker 5: called parole. And parole is a status that's very different

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Speaker 5: in immigration law than any other status because it's a

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Speaker 5: status that can both be freely given, but it's also

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Speaker 5: a status that can be freely revoked. And so there

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Speaker 5: was a MAMMO that was issued by the Acting Secretary

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Speaker 5: of Homeland Security that said, look, if you have a

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Speaker 5: reason to revoke someone's parole, just do it and put

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Speaker 5: them in expedited removal. And the point is unless those

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Speaker 5: individuals then asked for asylum. That is a large group

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Speaker 5: of people, almost a million people that came in under

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Speaker 5: paroles of the Divide administration that they could decide we're

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Speaker 5: going to use this group as low hanging fruit and

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Speaker 5: we're just going to start going to their homes and

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Speaker 5: revoking their paroles and giving them expedited removal orders sending

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Speaker 5: them out of the United States. That's going to be

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Speaker 5: a very interesting group to monitor if that actually will

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Speaker 5: be done or not, because those people would have entered

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Speaker 5: with the permission of the United States.

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Speaker 3: Welle On. The ACLU filed a suit this week to

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Speaker 3: stop Trump's expansion of this expedited removal process to immigrants

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Speaker 3: who can't prove they've been living in the United States

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Speaker 3: continuously for two years.

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Speaker 5: Yes, So what happens is whenever there's any change to

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Speaker 5: the expedited removal process, you have to file a lawsuit

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Speaker 5: in the districts of Columbia. So the ACLU is saying, look,

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Speaker 5: we're gonna challenge the authority for the Trump administration to

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Speaker 5: so quickly move without the regulatory process from the fourteen

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Speaker 5: day limit on expedited removal that the Biden administration had

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Speaker 5: to the two year limit on expedited removal that the

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Speaker 5: Trump administration wants to put in, which is the maximum

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Speaker 5: statutory time period permitted previously. I would say that the

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Speaker 5: ACLU would have had a very good argument from the

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Speaker 5: standpoint of, look, this is a mess. How do you

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Speaker 5: find out if someone's been here a year and a

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Speaker 5: half versus two years and a half. This is going

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Speaker 5: to be so complicated if they've crossed the border, et cetera.

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Speaker 5: But in this parole example, where you actually know with

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Speaker 5: one hundred percent certainty when someone arrives in the United States,

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Speaker 5: there actually is some justification from the Trump administration if

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Speaker 5: they want to go down this route, which of course

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Speaker 5: will create its own complexities, both moral and operational. But nevertheless,

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Speaker 5: if they want to go down the route of revoking

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Speaker 5: the paroles that were given by the Biden administration, then

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Speaker 5: they will know this person was here less than two years.

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Speaker 5: We can give them an expedited removal order. We wouldn't

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Speaker 5: be breaking any laws, and we should be allowed to

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Speaker 5: do this because we disagree that these paroles ever should

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Speaker 5: have been given in the first place, and so we

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Speaker 5: believe that there's a set of people that are in

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Speaker 5: this country that should never have been allowed in here.

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Speaker 5: And I do think that argument, even if it doesn't

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Speaker 5: get initial sympathy in either the District Court or the

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Speaker 5: DC Circuit, could see a level of sympathy in the

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Speaker 5: Supreme Court. And so I think that one is going

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Speaker 5: to be an interesting case to watch because even if

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Speaker 5: there's a victory in the lower court, which is by

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Speaker 5: no means guaranteed. I think that one is going to

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Speaker 5: be interesting to monitor all the way through the Supreme Court.

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Speaker 3: It's been expected that they're going to have some raids

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Speaker 3: and sanctuary cities, and the Justice Department has ordered federal

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Speaker 3: prosecutors to investigate state or local officials they believe are

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Speaker 3: interfering with the crackdown on immigration, saying they could face

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Speaker 3: criminal charges. There's no precedent for prosecuting state or local

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Speaker 3: officials who resist federal immigration enforcement. I mean, what would

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Speaker 3: the charge be.

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Speaker 5: So there's one interesting case which isn't exactly like that,

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Speaker 5: but I don't know if you recall it. June from

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Speaker 5: a while back, there was a judge in Massachusetts. There

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Speaker 5: was a state court judge, and I believe she told

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Speaker 5: someone in the illegal status, hey, ices in the courthouse,

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Speaker 5: use my back door and go outside the back entrance

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Speaker 5: of the court so that they won't apprehend you. And

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Speaker 5: Ice during the Trump administration did prosecute that judge, and

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Speaker 5: then the Biden administration ended up rescinding that prosecution. I

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Speaker 5: don't know if you remember that, bac Pas.

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Speaker 6: I do.

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Speaker 5: I do, But that's the kind of thing they're talking about,

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Speaker 5: which is there's a lot If you are a state

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Speaker 5: or local official and you have a law that says

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Speaker 5: you're not allowed to share certain information with ice, then

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Speaker 5: you can't be prosecuted for following that law. But that's

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Speaker 5: different than if you are quote unquote harboring or concealing

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Speaker 5: under eight USC. Thirteen twenty four. And that would mean

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Speaker 5: let's say they show up at a library or a

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Speaker 5: school or something, and you're a local official. There's one

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Speaker 5: thing about saying, look, I can't help you. I don't

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Speaker 5: know what you want me to say. The state laws

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Speaker 5: prohibit me from helping you. That's one thing that's not

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Speaker 5: going to be harboring or concealment. But if what you

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Speaker 5: say is I can't help you, and then at the

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Speaker 5: same time you're typing a text, Hey, get all these

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Speaker 5: people out of here, have them use the rear entrance,

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Speaker 5: then that could be harboring and concealing. And so those

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Speaker 5: are the examples that they're going to be trying to

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Speaker 5: look for to try to have prosecutions for a.

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Speaker 3: Group of eleven Attorneys general are already pushing back on

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Speaker 3: that order. Stettying a nineteen ninety seven Supreme Court case

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Speaker 3: that said the federal government can't force state officials to

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Speaker 3: enforce federal programs under the tenth Amendment. So we shall

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Speaker 3: see where that goes. Stay with me, Leon. Coming up,

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Speaker 3: we'll discuss the line military troops at the southern border

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Speaker 3: can't cross. I'm June Gross. When you're listening to Bloomberg.

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Speaker 2: I will declare a national emergency at our southern border.

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Speaker 3: This week. After declaring a national emergency at the Southern border,

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Speaker 3: President Donald Trump sent fifteen hundred active duty military to

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Speaker 3: the border indefinitely suspended asylum, lifted longtime rules restricting ice

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Speaker 3: raids near schools and churches, cut off the refugee resettlement program,

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Speaker 3: and expanded fast track deportations. A number of lawsuits have

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Speaker 3: already been filed over these actions, and more are likely

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Speaker 3: to come. I've been talking to immigration law expert Leon Fresco,

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Speaker 3: a partner at Hollanda Knight. Leon officials say that the

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Speaker 3: troops at the southern border will fly helicopters to assist

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Speaker 3: border patrol agents and help in the construction of barriers,

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Speaker 3: and that there's no plan for them to be used

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Speaker 3: for law enforcement. Explain why things would change if the

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Speaker 3: military were used for law enforcement at the border.

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Speaker 5: So there is this very long held principle called posse

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Speaker 5: cometadis which says that the military is prohibited from being

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Speaker 5: engaged inside the United States for law enforcement purposes. So

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Speaker 5: that's not permitted under the Posse Commetadas Act. And so

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Speaker 5: what creates the problem there is then, well what can

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Speaker 5: the military actually do on the border. And this continues

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Speaker 5: to come up, whether it's the National Guard or the military,

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Speaker 5: and the traditional answer has been, well, they can observe

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Speaker 5: people crossing. They can then report that to the domestic

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Speaker 5: military officials, which in this case would be CBP and ICE,

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Speaker 5: and then CBP and ICE can come pick them up.

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Speaker 5: But also, in addition, they can just look very scary,

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Speaker 5: and so you would have all these military folks with

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Speaker 5: machine guns and helmets and tanks on the border. This

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Speaker 5: potentially could lead to a view, hey, it's very scary

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Speaker 5: for me to cross, Let me not do that, And

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Speaker 5: that certainly would be a deterrent for most people, I believe,

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Speaker 5: But you know, if some people then start to get

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Speaker 5: the message, hey, if those people aren't actually going to

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Speaker 5: do anything, you can still cross, and let's say, ask

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Speaker 5: for asylum. Then that's not going to be a deterrent

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Speaker 5: in the long run. Now, there's other things that the

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Speaker 5: Trump administration is trying to do to prevent people from

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Speaker 5: actually staying and asking for asylum, such as remain in

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Speaker 5: Mexico and the various asylum bands that they've also put

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Speaker 5: in this week. But those two are going to be litigated,

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Speaker 5: and so we're going to be in a very interesting posture.

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Speaker 5: I do think in the short term you're going to

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Speaker 5: see a significant decrease in mortar crossings. But the question

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Speaker 5: is in the long term, two years from now, what

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Speaker 5: kind of conversation are we having if all of these

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Speaker 5: measures have been revoked as unlawful and now we're back

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Speaker 5: to the Congress to have to change the environment.

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Speaker 3: So Trump also directed through executive order that the incoming

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Speaker 3: Secretary of Defense and Homeland Security chief report back within

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Speaker 3: ninety days if they think an eighteen oh seven law

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Speaker 3: called the Insurrection Act should be invoked so that the

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Speaker 3: military could do law enforcement at the border.

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Speaker 5: Well. Yeah, so the point is if they think that

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Speaker 5: there are actual invasions happening by people of a country. Now,

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Speaker 5: ideally you would do this in a congressional declaration of war.

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Speaker 5: That's when you usually have this in vote. But if

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Speaker 5: you don't have a declaration of war, which is not

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Speaker 5: required under the statue, but it's easier to justify, then

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Speaker 5: what you have to say still is that countries such

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Speaker 5: as Venezuela. I don't think they're going to say it

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Speaker 5: for El Savador because the leader of Al Sabador is

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Speaker 5: actually quite friendly with many conservatives. Although Trump has criticized him,

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Speaker 5: many Conservatives adore the leader of El Savador, So they

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Speaker 5: may just say it for Venezuela that Venezuela is actually

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Speaker 5: authorizing an incursion of dangerous people into the United States

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Speaker 5: for the purposes of destabilizing the United States. And if

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Speaker 5: they make that argument, then they can say, if you're

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Speaker 5: identified as one of those dangerous people, all we have

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Speaker 5: to do is just find you and take your body out.

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Speaker 5: We don't have to put you in any court under

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Speaker 5: the Alien Enemies Act. And so that's going to be

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Speaker 5: very interesting to see which groups they actually designate for that.

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Speaker 5: I would be very shocked if MS thirteen and Alsavador

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Speaker 5: gets invoked for that, because it would require an implicit

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Speaker 5: message that the Alsavador government is actually trying to send

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Speaker 5: these people to the US for the purposes of destabilizing

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Speaker 5: the US, which, by the way, Trump has said, But

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Speaker 5: I do think that would be very unpopular in the

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Speaker 5: conservative movement to criticize the president of El Salvador.

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Speaker 1: In this way.

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Speaker 5: But Venezuela will be the most likely to watch.

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Speaker 3: Leon Trump suspended asylum indefinitely. And that's been a part

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Speaker 3: of US law since nineteen eighty Have losses been filed

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Speaker 3: over that.

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Speaker 5: That one already exists. It's already against the Biden administration,

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Speaker 5: and it's just being amended in DC to add that.

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Speaker 5: So they actually had that, They already had a debate.

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Speaker 5: So there's a lawsuit on the summer Biden asylum restrictions.

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Speaker 5: Then when Trump shut down the CDP one app, which

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Speaker 5: is the app that you would use to then legally

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Speaker 5: come to the port of entry, the ACLU came in

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Speaker 5: and said, hey, I need to change this lawsuit to

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Speaker 5: include the ending of the CBP one app because now

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Speaker 5: the defense that the Biden administration had, which is there

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Speaker 5: is no asylum ben you just have to go to

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Speaker 5: the port of entry and use the CBP one app,

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Speaker 5: that defense is gone. The judge said, look, I'm not

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Speaker 5: going to require them to turn back on the CBP

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Speaker 5: one app If there's a specific case or two that

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Speaker 5: you want to bring to my attention, we might be

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Speaker 5: able to get those people their appointments, but to just

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Speaker 5: turn it on for an indefinite period, he didn't sem

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Speaker 5: to to interest it in that outcome. Now he didn't

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Speaker 5: do a final ruling, but still the determination about whether

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Speaker 5: the asylum ban first one, the Biden one now plus

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Speaker 5: the Trump one, whether that ban is gonna be permitted,

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Speaker 5: we still don't know. So now that's all going to

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Speaker 5: be analyzed as to what is the current ban, and

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Speaker 5: then we're going to get a decision on that. Again,

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Speaker 5: if I think this was an AI judge or a

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Speaker 5: machine judge, they'd probably say that you can't just ban

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Speaker 5: asylum completely on the border like this. The Congress would

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Speaker 5: have to change the laws to do it. But we'll

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Speaker 5: wait and see what the.

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Speaker 3: Outcome is, and we'll certainly be waiting for a lot

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Speaker 3: of decisions on the immigration scene. So it's a pleasure

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Speaker 3: to have you on, Leon, Thanks so much. That's Leon

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Speaker 3: Fresco of Holland and Knight, mister.

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Speaker 7: Chief Justice, and may it please the Court, we're here

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Speaker 7: today because Ashton Barnes was shot and killed on the

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Speaker 7: side of a Texas highway after being pulled over for

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Speaker 7: unpaid tolls. The question before this court is how to

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Speaker 7: determine whether Astron's Fourth Amendment rights were violated.

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Speaker 3: In April of twenty sixteen, a Houston police officer shot

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Speaker 3: an unarmed black man twice during a routine traffic stop

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Speaker 3: over unpaid tolls. Lower courts had dismissed the excessive force

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Speaker 3: lawsuit filed against the officer by the victim's mother, but

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Speaker 3: the Supreme Court took another look at the case this week,

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Speaker 3: and justice is across the ideological spectrum appeared to agree

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Speaker 3: that the analysis by the lower courts focusing on the

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Speaker 3: two seconds prior to the officer shooting was wrong. Here

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Speaker 3: are Justices Elena Kagan and Neil Gorsuch.

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Speaker 8: We have two opinions below, actually both the Circuit Court

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Speaker 8: and the District Court, who expressed a desire to look

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Speaker 8: beyond two seconds, but said, we can only look at

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Speaker 8: the prior two seconds.

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Speaker 6: If the only thing we're concerned with is this tut

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Speaker 6: this two second rule, whether it's there or not, Mister McLeod,

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Speaker 6: and we just clarify that as not the law, and.

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Speaker 3: There seemed to be a consensus that courts must consider

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Speaker 3: the totality of the circumstances when determining whether an officer

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Speaker 3: used excessive force. Here's Justice amy Cony Barrett questioning the

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Speaker 3: lawyer for the victim's mother.

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Speaker 9: If we said moment of the threat is wrong, and

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Speaker 9: we don't articulate a precise standard other than saying our

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Speaker 9: regular totality of the circumstances test supplies as just as

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Speaker 9: Sotomayor said, that's really what you're asking for.

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Speaker 3: Although Justice Brett Kavanaugh repeatedly expressed concerns about the implications

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Speaker 3: of such a decision on police officers making traffic stops.

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Speaker 10: An officer does not get the time we've spent here

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Speaker 10: today to make the decision. Do I let it go

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Speaker 10: knowing that this person could do serious harm or has

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Speaker 10: done and we'll never catch the person, or do I

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Speaker 10: jump on the car and they have to make that

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Speaker 10: decision in about what do you tell them?

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Speaker 3: Joining me is former federal Prosecutor George U. House of

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Speaker 3: Richard's Carrington. George, tell us what happened during this routine

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Speaker 3: traffic stop.

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Speaker 1: So the case is focused on a shooting by a

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Speaker 1: Houston police officer not named Felix of Ashton Barnes, a

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Speaker 1: young man in April of twenty sixteen. The plaintiff is

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Speaker 1: his mother, who is suing the officer for using an

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Speaker 1: excessive force and violation of the Fourth Amendment arising from

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Speaker 1: the killing. The question in this case is did the

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Speaker 1: police officer use excessive force in defending himself versus the

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Speaker 1: officer's right indeed duty to protect himself during routine law

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Speaker 1: enforcement operations. That's the question. The courts below decided in

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Speaker 1: favor of the officer on papers. There was no trial

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Speaker 1: yet and the facts are actually, unfortunately not that unusual because,

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Speaker 1: as you know, a traffic stop is one of the

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Speaker 1: most dangerous police operations that in domestic violence calls. Officers

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Speaker 1: hate this because they are encountering a situation where unknown

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Speaker 1: dangerous will occur in rapid, split second motion, and the

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Speaker 1: courts of traditionally recognized this and deferred to the officers.

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Speaker 1: In this case, the officer stopped the car, came up

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Speaker 1: to the driver's window ordered Barnes to get out. Barnes

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Speaker 1: refused and then started arguing with him, and the officer

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Speaker 1: said get out of the car, which is normal police practice.

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Speaker 1: Barnes started to drive off. Now at that point the

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Speaker 1: officer reached in to grab the keys and as a result,

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Speaker 1: he is now riding along as the car begins to

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Speaker 1: take off down a highway. A bad situation. And at

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Speaker 1: that point his weapon was out and he shot the

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Speaker 1: driver twice and killed him. So at issue here in

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Speaker 1: the court, which is the only interesting thing for US lawyers,

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Speaker 1: is the test for determining the reasonableness of the officers

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Speaker 1: use to force. The normal standard is the totality of

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Speaker 1: the circumstances. That's the test that most lawyers would apply.

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Speaker 1: But the lower court looked at a different standard. They

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Speaker 1: looked at the last two seconds of what happened. And

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Speaker 1: in those that case it's a day to easy giveaway

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Speaker 1: for the officer because at that point he's stuck in

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Speaker 1: the car, he's about to be armed, so he takes

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Speaker 1: immediate action. So, really is which test is taken?

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Speaker 3: Why did the lower Court and the Fifth Circuit used

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Speaker 3: They call it the moment of threat doctrine. Why didn't

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Speaker 3: they use the totality of the circumstances doctrine?

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Speaker 1: Well, I don't really know, except that if you use

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Speaker 1: the moment of threat doctrine. On this case, then there's

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Speaker 1: no factual question and the case is dismissed on summary

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Speaker 1: judgmal So you never go to trial. If you look

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Speaker 1: at the totality of the circumstances, there presents a factual

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Speaker 1: issue that is more difficult for the court to dispose

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Speaker 1: of the case in summary judgment, which means, no, we

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Speaker 1: never get to the question of qualified immunity and we

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Speaker 1: never get to a factual question. So that's why they

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Speaker 1: like that standard better. It's a foregone conclusion to the officer,

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Speaker 1: and that is too narrow because the courts need to

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Speaker 1: look at what led up to the moment of danger,

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Speaker 1: look at all of the behavior. That's the totality of

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Speaker 1: the circumstances, which is normally the legal test that courts

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Speaker 1: would apply.

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Speaker 3: How do the justice's weigh concerns for the safety of officers.

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Speaker 1: The justices all seemed to be interested in protecting officer safety. Kavanaf,

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Speaker 1: for example, said, look, what's an officer supposed to do

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Speaker 1: at a traffic stop when someone pulls away? Just let

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Speaker 1: them go. He asked that question, noting that in some

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Speaker 1: situations the driver may be in the middle of committing

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Speaker 1: other criminal acts, so it's not only officers safety, but

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Speaker 1: public safety.

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Speaker 3: On the other hand, Justice Neil Gorsich seemed like he

439
00:24:27,080 --> 00:24:29,119
Speaker 3: didn't want the Court to issue a decision that was

440
00:24:29,200 --> 00:24:30,480
Speaker 3: too pro police.

441
00:24:30,960 --> 00:24:33,000
Speaker 11: Why would we put a thumb on the scale that

442
00:24:33,080 --> 00:24:37,160
Speaker 11: way and say that it's almost impossible to make out

443
00:24:37,160 --> 00:24:40,920
Speaker 11: a Fourth Amendment claim in those circumstances. Given the varied

444
00:24:41,080 --> 00:24:45,640
Speaker 11: nature of encounters between police officers and citizens across the country.

445
00:24:46,480 --> 00:24:50,040
Speaker 11: The standard we've always said reasonableness is a totality of

446
00:24:50,040 --> 00:24:51,120
Speaker 11: the circumstances.

447
00:24:51,640 --> 00:24:53,639
Speaker 1: And he's right in a way that if you go

448
00:24:53,680 --> 00:24:57,399
Speaker 1: over the moment of danger doctrine, it seems to be

449
00:24:57,720 --> 00:25:00,879
Speaker 1: highly likely that the police officer wins, as opposed to

450
00:25:00,920 --> 00:25:04,000
Speaker 1: the totality of circumstances, which is a general rule makes

451
00:25:04,040 --> 00:25:06,159
Speaker 1: it more difficult at least for the police officer to

452
00:25:06,200 --> 00:25:09,960
Speaker 1: win at the summer judgment state. So Justice Gorsas wants

453
00:25:10,040 --> 00:25:12,920
Speaker 1: to see the system be fair and balanced. I mean,

454
00:25:13,160 --> 00:25:15,480
Speaker 1: it's kind of ironic that this case is argued in

455
00:25:15,520 --> 00:25:18,240
Speaker 1: the Supreme Court hours after the President of the United

456
00:25:18,280 --> 00:25:22,920
Speaker 1: States pardons scores of violent felons who injured police officers.

457
00:25:23,040 --> 00:25:26,280
Speaker 1: So I think police officer safety is in everyone's mind,

458
00:25:26,760 --> 00:25:29,560
Speaker 1: perhaps for the president. So the Court I think will

459
00:25:29,560 --> 00:25:32,760
Speaker 1: come out with a strong opinion to thing. Officers have

460
00:25:32,840 --> 00:25:34,720
Speaker 1: to be supported. But we're not going to go in

461
00:25:34,760 --> 00:25:37,960
Speaker 1: the moment of danger doctrine. It's too narrow, too automatic

462
00:25:38,040 --> 00:25:40,560
Speaker 1: win for the officer, and that was what Gorsus was saying.

463
00:25:40,760 --> 00:25:42,920
Speaker 1: I predict that the court will go back to saying

464
00:25:43,000 --> 00:25:45,800
Speaker 1: it has to be the totality of the circumstances, and no,

465
00:25:46,400 --> 00:25:48,600
Speaker 1: we don't agree that if the officer. This is for

466
00:25:48,760 --> 00:25:51,920
Speaker 1: the planeff's position, as the officer acted negligently, he was

467
00:25:52,040 --> 00:25:54,840
Speaker 1: stupid to reach in the car, and he put himself

468
00:25:54,920 --> 00:25:57,439
Speaker 1: in a position of danger, and therefore he's not entitled

469
00:25:57,480 --> 00:26:00,280
Speaker 1: to defend himself. That's technically not the law.

470
00:26:00,600 --> 00:26:03,040
Speaker 3: So one of the judges at the Fifth Circuit took

471
00:26:03,119 --> 00:26:07,240
Speaker 3: the unusual step of asking the justices to clarify how

472
00:26:07,359 --> 00:26:11,400
Speaker 3: judges should determine when deadly force is reasonable and constitutional.

473
00:26:11,600 --> 00:26:14,399
Speaker 3: But did it seem like we're not going to get

474
00:26:14,440 --> 00:26:18,679
Speaker 3: a decision explaining what excessive force is and what it is,

475
00:26:18,680 --> 00:26:20,760
Speaker 3: and that it's going to be a very narrow decision.

476
00:26:21,359 --> 00:26:24,359
Speaker 1: You're right, and for a good reason. It's impossible to

477
00:26:24,440 --> 00:26:29,280
Speaker 1: define objectively what excessive force is. Because the pantheon of

478
00:26:29,400 --> 00:26:33,240
Speaker 1: behavior that would be unreasonable i e. Excessive force is

479
00:26:33,280 --> 00:26:36,800
Speaker 1: simply too broad. It can't be specified. That's why it

480
00:26:36,800 --> 00:26:39,600
Speaker 1: typically is a jury question. And of course it has

481
00:26:39,640 --> 00:26:41,880
Speaker 1: the issue here if you adopt a very narrow view,

482
00:26:41,880 --> 00:26:45,399
Speaker 1: if you only focused on the officers' actions immediately before

483
00:26:45,400 --> 00:26:49,000
Speaker 1: the killing, the officers are almost always going to win,

484
00:26:49,240 --> 00:26:51,320
Speaker 1: except of course, of the George Floyd killing when he

485
00:26:51,400 --> 00:26:53,440
Speaker 1: had no chance of protecting that behavior.

486
00:26:53,960 --> 00:26:56,679
Speaker 3: So will it be sent back to the Fifth Circuit Then.

487
00:26:56,680 --> 00:26:59,119
Speaker 1: Most likely is it will be sent back to the

488
00:26:59,200 --> 00:27:02,880
Speaker 1: trial court district court to apply the correct standard, which

489
00:27:02,920 --> 00:27:06,000
Speaker 1: is the totality of the circumstances. And in this case,

490
00:27:06,119 --> 00:27:09,720
Speaker 1: once the judge takes the totality and the circumstances into account,

491
00:27:09,960 --> 00:27:12,600
Speaker 1: the judge will in law likelihood issue the same decision

492
00:27:12,760 --> 00:27:15,479
Speaker 1: ruling for the officers. That'll go back to the Fifth Circuit,

493
00:27:15,680 --> 00:27:18,160
Speaker 1: who will affirm, and it'll go back to the Supreme

494
00:27:18,160 --> 00:27:22,000
Speaker 1: Court who will probably say yes, totality the circumstances test

495
00:27:22,080 --> 00:27:24,440
Speaker 1: is the appropriate test in almost all cases.

496
00:27:24,560 --> 00:27:28,679
Speaker 3: So you think even with the totality of the circumstances test,

497
00:27:29,200 --> 00:27:31,080
Speaker 3: the ruling will still be for the officer.

498
00:27:31,359 --> 00:27:33,800
Speaker 1: Probably most people will come down if they've viewed all

499
00:27:33,840 --> 00:27:36,239
Speaker 1: the facts, that the officer should have just let him

500
00:27:36,280 --> 00:27:39,359
Speaker 1: drive off. He would later be apprehended, but even the

501
00:27:39,440 --> 00:27:42,280
Speaker 1: later apprehensionists in this case. Now you have a fleeing

502
00:27:42,320 --> 00:27:45,560
Speaker 1: suspect and there's increased risk to public safety and the

503
00:27:45,600 --> 00:27:49,920
Speaker 1: officer safety, So you're not ultimately solving the problem. But again,

504
00:27:50,080 --> 00:27:53,879
Speaker 1: that argument says that the police officer acted negligently because

505
00:27:53,920 --> 00:27:56,960
Speaker 1: of his actions, he put himself in danger. That may

506
00:27:57,000 --> 00:27:59,159
Speaker 1: be true, but the law is very clear that the

507
00:27:59,240 --> 00:28:02,399
Speaker 1: officer doesn't it is right or self protection just because

508
00:28:02,480 --> 00:28:05,800
Speaker 1: he makes a mistake. And the courts have long recognized

509
00:28:05,840 --> 00:28:09,359
Speaker 1: and should recognize further that officers have one of the

510
00:28:09,359 --> 00:28:12,720
Speaker 1: most difficult, dangerous jobs on the planet. They have to

511
00:28:12,760 --> 00:28:17,399
Speaker 1: act incredibly fast on breaking circumstances, particularly at night, and

512
00:28:17,560 --> 00:28:19,679
Speaker 1: you're going to make mistakes in those situations. Than the

513
00:28:19,720 --> 00:28:22,360
Speaker 1: courts have generally recognized that, and that's when they come

514
00:28:22,359 --> 00:28:24,200
Speaker 1: down on the side of the officer.

515
00:28:24,840 --> 00:28:28,560
Speaker 3: So even if the officer is found to have violated

516
00:28:28,920 --> 00:28:33,280
Speaker 3: Barnes's right, the officer might still be or would probably

517
00:28:33,359 --> 00:28:37,200
Speaker 3: be shielded by qualified immunity great question.

518
00:28:37,720 --> 00:28:41,880
Speaker 1: Yes, so qualified immunity would be the officer's defense even

519
00:28:41,920 --> 00:28:46,720
Speaker 1: if it found that his actions violated the individual's constitutional rights.

520
00:28:46,800 --> 00:28:51,840
Speaker 1: Qualified immunity protects the officers when they believe reasonably that

521
00:28:51,920 --> 00:28:55,480
Speaker 1: they are acting consistent with the Constitution and not in violation.

522
00:28:55,960 --> 00:28:58,840
Speaker 1: So that is again a factual question that we could

523
00:28:58,840 --> 00:29:01,400
Speaker 1: come back to the court. Qualified immunity was not an

524
00:29:01,400 --> 00:29:03,440
Speaker 1: issue in this case, so I predict at some point

525
00:29:03,520 --> 00:29:06,120
Speaker 1: during the next few terms we will get the case

526
00:29:06,200 --> 00:29:08,680
Speaker 1: involving qualified immunity and the Court may have more to

527
00:29:08,680 --> 00:29:09,440
Speaker 1: say about.

528
00:29:09,160 --> 00:29:13,840
Speaker 3: That, particularly after the George Floyd case. There's been a

529
00:29:13,880 --> 00:29:18,200
Speaker 3: lot of critique of the qualified immunity doctrine as protecting

530
00:29:18,280 --> 00:29:23,760
Speaker 3: law enforcement from accountability for misconduct. Others say qualified immunity

531
00:29:23,840 --> 00:29:29,000
Speaker 3: is necessary because it protects government officials from frivolous lawsuits.

532
00:29:29,280 --> 00:29:31,760
Speaker 3: But do you think that this Roberts Court is likely

533
00:29:31,800 --> 00:29:32,440
Speaker 3: to change it?

534
00:29:32,920 --> 00:29:35,800
Speaker 1: No, I think this Court is likely to clarify it. Now.

535
00:29:35,840 --> 00:29:39,360
Speaker 1: Remember George Floyd, the officer was never close to qualifying

536
00:29:39,360 --> 00:29:42,840
Speaker 1: for qualified immunity because he was convicted a criminal intent.

537
00:29:43,240 --> 00:29:46,480
Speaker 1: So when you know that you are violating someone's rights,

538
00:29:46,880 --> 00:29:49,719
Speaker 1: it is your intent to harm them or to violate

539
00:29:49,760 --> 00:29:53,680
Speaker 1: their rights. You don't qualify for qualified immunity. Qualified immunity

540
00:29:53,720 --> 00:29:56,960
Speaker 1: is you have an objectively reasonable belief turns out to

541
00:29:57,000 --> 00:30:00,800
Speaker 1: be wrong that you're acting consistent with the Constitution. That's

542
00:30:01,160 --> 00:30:04,480
Speaker 1: a narrow band of protection, but it doesn't protect police

543
00:30:04,520 --> 00:30:06,320
Speaker 1: officers who can make criminal acts.

544
00:30:06,520 --> 00:30:09,320
Speaker 3: So in this case, if they rule as we think,

545
00:30:09,360 --> 00:30:11,720
Speaker 3: they are sent it back and say you've applied the

546
00:30:11,720 --> 00:30:15,720
Speaker 3: wrong standard, it doesn't change Supreme Court precedent, does it.

547
00:30:15,920 --> 00:30:19,200
Speaker 1: I mean it actually is consistent with most of their precedent,

548
00:30:19,240 --> 00:30:23,160
Speaker 1: which frequently they reiterate the totality of the circumstances. You've

549
00:30:23,160 --> 00:30:26,760
Speaker 1: got to consider everything that happened before and after the

550
00:30:26,880 --> 00:30:31,160
Speaker 1: moment of force to determine the reasonableness of the officer's behavior.

551
00:30:31,560 --> 00:30:34,840
Speaker 1: That decision would be consistent with their precedent. Going with

552
00:30:34,880 --> 00:30:37,920
Speaker 1: this new doctrine of the moment of danger, I think

553
00:30:37,960 --> 00:30:40,200
Speaker 1: that's a novel and unwise approach.

554
00:30:40,560 --> 00:30:42,600
Speaker 3: Always great to talk to you, George, thanks so much

555
00:30:42,680 --> 00:30:45,720
Speaker 3: for being on the show. That's former federal prosecutor George

556
00:30:45,800 --> 00:30:48,880
Speaker 3: Newhouse of Richard's Carrington. And that's it for this edition

557
00:30:48,920 --> 00:30:51,560
Speaker 3: of The Bloomberg Law Show. Remember you can always get

558
00:30:51,560 --> 00:30:54,720
Speaker 3: the latest legal news on our Bloomberg Law Podcast. You

559
00:30:54,760 --> 00:30:58,840
Speaker 3: can find them on Apple Podcasts, Spotify, and at www

560
00:30:58,960 --> 00:31:02,360
Speaker 3: dot Bloomberg dot com, dot com slash podcast slash Law,

561
00:31:02,760 --> 00:31:05,360
Speaker 3: and remember to tune into The Bloomberg Law Show every

562
00:31:05,400 --> 00:31:09,320
Speaker 3: weeknight at ten pm Wall Street Time. I'm June Grosso

563
00:31:09,440 --> 00:31:11,000
Speaker 3: and you're listening to Bloomberg