Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: All illegal entry will immediately be halted, and we will
Speaker 2: begin the process of returning millions and millions of criminal
Speaker 2: aliens back to the places from which they came.
Speaker 3: Just hours after taking office, President Donald Trump signed a
Speaker 3: flood of executive orders on immigration, ranging from declaring a
Speaker 3: national emergency at the southern border and barring asylum to
Speaker 3: fast tracking deportations of undocumented immigrants and cutting off birthright citizenship,
Speaker 3: a right he's long railed against.
Speaker 4: Where a person comes in, has a baby, and the
Speaker 4: baby is essentially a citizen of the United States for
Speaker 4: eighty five years, with all of those benefits. It's ridiculous.
Speaker 4: It's ridiculous, and it has to end.
Speaker 3: The ink was barely dry on the executive orders before
Speaker 3: attorneys general from twenty two New states sued to block
Speaker 3: the order ending birthright citizenship, saying it was a guarantee
Speaker 3: enshrined in the fourteenth Amendment that children born in the
Speaker 3: United States are US citizens.
Speaker 5: And this executive order is an assault on the rule
Speaker 5: of law. It attacks a right that is core to
Speaker 5: our nation's earliest days. President has overstepped his authority by
Speaker 5: a mile.
Speaker 3: Joining me is Leon Fresco, a partner at Hollanda Knight.
Speaker 3: He was the head of the Office of Immigration Litigation
Speaker 3: during the Obama administration. Leon, the first federal judge to
Speaker 3: consider one of Trump's executive orders, blocked it, ruling from
Speaker 3: the bench after a short hearing. Judge John Kunauer said
Speaker 3: in his four decades on the bench he'd never seen
Speaker 3: such a clear case of a blatantly unconstitutional order as
Speaker 3: that ending birthright citizenship.
Speaker 5: Explain why, well, there are two reasons. One, the case
Speaker 5: law that's interpreted this for the last one hundred and
Speaker 5: fifty years has said that any individual born in the
Speaker 5: United States has merthright citizenship. This comes from a long
Speaker 5: lineage of Chinese Exclusion Act cases, where in the eighteen
Speaker 5: hundred they tried to exclude new Chinese individuals from entering,
Speaker 5: then they tried to deport Chinese non citizens, and finally
Speaker 5: they tried to deport children of Chinese non citizens who
Speaker 5: had been born in the United States. And those cases
Speaker 5: held you couldn't deport those children because those children were
Speaker 5: United States citizens, because they were born in the United States.
Speaker 5: And it's also noteworthy that all of these arguments about
Speaker 5: immigration are irrelevant because the Fourteenth Amended came out at
Speaker 5: a time where there were no immigration laws, and so
Speaker 5: at that time it was just assumed, because that was
Speaker 5: the law from England, that if you were born in
Speaker 5: the land, you were a citizen of that land. And
Speaker 5: so there's nothing that tracks this to allow this concept
Speaker 5: of saying that someone who is born in the United
Speaker 5: States isn't a citizen and this concept of well, but
Speaker 5: you're outside the jurisdiction of the United States. Well, if
Speaker 5: that's true, then, as the judge pointed out that there
Speaker 5: was not really a good answer from the Department of Justice,
Speaker 5: are you saying that these individuals can then commit any
Speaker 5: crimes that they want and they be fine because there's
Speaker 5: outside the jurisdiction of the United States? And they said no,
Speaker 5: But then how does that work. You're either subject to
Speaker 5: the jurisdiction or you're not. You can't have that both ways.
Speaker 5: And I think you're going to see that happen in
Speaker 5: many courts, even in the Supreme Court.
Speaker 3: The judge gave the Trump Justice Department lawyers sort of
Speaker 3: a legal beatdown, criticizing their lawyering. Quote, it just boggles
Speaker 3: my mind that any lawyer could argue birthright citizenship is
Speaker 3: unconstitutional and scolding the Department of Justice for even entertaining
Speaker 3: the idea.
Speaker 5: The question, I think which will be interesting will be,
Speaker 5: because the judge was hinting at this, could lawyers that
Speaker 5: were involved in either crafting such an argument or the
Speaker 5: executive order themselves, or even arguing these cases? Could those
Speaker 5: lawyers face potential penalties. I'm not going to voice any
Speaker 5: opinion on that, but the judge certainly started talking about
Speaker 5: where are the lawyers here to say that this shouldn't
Speaker 5: be something that would be done, So I think that's
Speaker 5: an interesting issue potentially to monitor.
Speaker 3: It's expected that the case will be appealed all the
Speaker 3: way to the Supreme Court. The only time the Supreme
Speaker 3: Court ruled on this issue was back in eighteen ninety eight,
Speaker 3: when it found that a baby born in San Francisco
Speaker 3: to Chinese immigrants was a US citizen. Do you have
Speaker 3: any reason to believe that the justices today, even as
Speaker 3: conservative as they are, would overrule that precedent.
Speaker 5: I think if you take textualist view, it still supports
Speaker 5: birthrights that is in chip in the United States. If
Speaker 5: you take a historical view, which is another thing conservatives do.
Speaker 5: It still supports birthrights. It is in chip in the
Speaker 5: United States, And again, unless the Department of Justice can
Speaker 5: square the circle and come up with a way in
Speaker 5: which you can be subject to the jurisdiction of the
Speaker 5: United States for criminal laws, but not subject to the
Speaker 5: jurisdiction of the United States for citizenship purposes. How those
Speaker 5: two sets of concepts can mean different things when you're
Speaker 5: using the exact same set of words. That's going to
Speaker 5: be the biggest challenge. I don't know how you can
Speaker 5: do that, and that's what creates the fatal problem in
Speaker 5: their case.
Speaker 3: Let's turn out to one of Trump's signature campaign promises,
Speaker 3: and it'll be.
Speaker 4: The largest deportation in the history of our country, and
Speaker 4: we have no.
Speaker 1: Choice.
Speaker 3: But we're not seeing the mass raids and deportations that
Speaker 3: were sort of advertised.
Speaker 5: Well, they are publicizing what I would say routine operations
Speaker 5: of ICE have historically been with a little bit of
Speaker 5: extra emphasis. So I would say that there are greater
Speaker 5: numbers of arrests and apprehensions than we're being done under
Speaker 5: the Biden administration. But what they are doing is they're
Speaker 5: really trying to publicize that to create the sense of
Speaker 5: this is going to be an environment of a large
Speaker 5: immigration enforcement posture, So individuals really need to be careful
Speaker 5: and look into this and maybe leave on their own
Speaker 5: so that you don't feel like you might get involved
Speaker 5: in one of these operations. Now, the one interesting announcement
Speaker 5: that really is going to be impactful is the Biden
Speaker 5: administration led in a lot of people under what it's
Speaker 5: called parole. And parole is a status that's very different
Speaker 5: in immigration law than any other status because it's a
Speaker 5: status that can both be freely given, but it's also
Speaker 5: a status that can be freely revoked. And so there
Speaker 5: was a MAMMO that was issued by the Acting Secretary
Speaker 5: of Homeland Security that said, look, if you have a
Speaker 5: reason to revoke someone's parole, just do it and put
Speaker 5: them in expedited removal. And the point is unless those
Speaker 5: individuals then asked for asylum. That is a large group
Speaker 5: of people, almost a million people that came in under
Speaker 5: paroles of the Divide administration that they could decide we're
Speaker 5: going to use this group as low hanging fruit and
Speaker 5: we're just going to start going to their homes and
Speaker 5: revoking their paroles and giving them expedited removal orders sending
Speaker 5: them out of the United States. That's going to be
Speaker 5: a very interesting group to monitor if that actually will
Speaker 5: be done or not, because those people would have entered
Speaker 5: with the permission of the United States.
Speaker 3: Welle On. The ACLU filed a suit this week to
Speaker 3: stop Trump's expansion of this expedited removal process to immigrants
Speaker 3: who can't prove they've been living in the United States
Speaker 3: continuously for two years.
Speaker 5: Yes, So what happens is whenever there's any change to
Speaker 5: the expedited removal process, you have to file a lawsuit
Speaker 5: in the districts of Columbia. So the ACLU is saying, look,
Speaker 5: we're gonna challenge the authority for the Trump administration to
Speaker 5: so quickly move without the regulatory process from the fourteen
Speaker 5: day limit on expedited removal that the Biden administration had
Speaker 5: to the two year limit on expedited removal that the
Speaker 5: Trump administration wants to put in, which is the maximum
Speaker 5: statutory time period permitted previously. I would say that the
Speaker 5: ACLU would have had a very good argument from the
Speaker 5: standpoint of, look, this is a mess. How do you
Speaker 5: find out if someone's been here a year and a
Speaker 5: half versus two years and a half. This is going
Speaker 5: to be so complicated if they've crossed the border, et cetera.
Speaker 5: But in this parole example, where you actually know with
Speaker 5: one hundred percent certainty when someone arrives in the United States,
Speaker 5: there actually is some justification from the Trump administration if
Speaker 5: they want to go down this route, which of course
Speaker 5: will create its own complexities, both moral and operational. But nevertheless,
Speaker 5: if they want to go down the route of revoking
Speaker 5: the paroles that were given by the Biden administration, then
Speaker 5: they will know this person was here less than two years.
Speaker 5: We can give them an expedited removal order. We wouldn't
Speaker 5: be breaking any laws, and we should be allowed to
Speaker 5: do this because we disagree that these paroles ever should
Speaker 5: have been given in the first place, and so we
Speaker 5: believe that there's a set of people that are in
Speaker 5: this country that should never have been allowed in here.
Speaker 5: And I do think that argument, even if it doesn't
Speaker 5: get initial sympathy in either the District Court or the
Speaker 5: DC Circuit, could see a level of sympathy in the
Speaker 5: Supreme Court. And so I think that one is going
Speaker 5: to be an interesting case to watch because even if
Speaker 5: there's a victory in the lower court, which is by
Speaker 5: no means guaranteed. I think that one is going to
Speaker 5: be interesting to monitor all the way through the Supreme Court.
Speaker 3: It's been expected that they're going to have some raids
Speaker 3: and sanctuary cities, and the Justice Department has ordered federal
Speaker 3: prosecutors to investigate state or local officials they believe are
Speaker 3: interfering with the crackdown on immigration, saying they could face
Speaker 3: criminal charges. There's no precedent for prosecuting state or local
Speaker 3: officials who resist federal immigration enforcement. I mean, what would
Speaker 3: the charge be.
Speaker 5: So there's one interesting case which isn't exactly like that,
Speaker 5: but I don't know if you recall it. June from
Speaker 5: a while back, there was a judge in Massachusetts. There
Speaker 5: was a state court judge, and I believe she told
Speaker 5: someone in the illegal status, hey, ices in the courthouse,
Speaker 5: use my back door and go outside the back entrance
Speaker 5: of the court so that they won't apprehend you. And
Speaker 5: Ice during the Trump administration did prosecute that judge, and
Speaker 5: then the Biden administration ended up rescinding that prosecution. I
Speaker 5: don't know if you remember that, bac Pas.
Speaker 6: I do.
Speaker 5: I do, But that's the kind of thing they're talking about,
Speaker 5: which is there's a lot If you are a state
Speaker 5: or local official and you have a law that says
Speaker 5: you're not allowed to share certain information with ice, then
Speaker 5: you can't be prosecuted for following that law. But that's
Speaker 5: different than if you are quote unquote harboring or concealing
Speaker 5: under eight USC. Thirteen twenty four. And that would mean
Speaker 5: let's say they show up at a library or a
Speaker 5: school or something, and you're a local official. There's one
Speaker 5: thing about saying, look, I can't help you. I don't
Speaker 5: know what you want me to say. The state laws
Speaker 5: prohibit me from helping you. That's one thing that's not
Speaker 5: going to be harboring or concealment. But if what you
Speaker 5: say is I can't help you, and then at the
Speaker 5: same time you're typing a text, Hey, get all these
Speaker 5: people out of here, have them use the rear entrance,
Speaker 5: then that could be harboring and concealing. And so those
Speaker 5: are the examples that they're going to be trying to
Speaker 5: look for to try to have prosecutions for a.
Speaker 3: Group of eleven Attorneys general are already pushing back on
Speaker 3: that order. Stettying a nineteen ninety seven Supreme Court case
Speaker 3: that said the federal government can't force state officials to
Speaker 3: enforce federal programs under the tenth Amendment. So we shall
Speaker 3: see where that goes. Stay with me, Leon. Coming up,
Speaker 3: we'll discuss the line military troops at the southern border
Speaker 3: can't cross. I'm June Gross. When you're listening to Bloomberg.
Speaker 2: I will declare a national emergency at our southern border.
Speaker 3: This week. After declaring a national emergency at the Southern border,
Speaker 3: President Donald Trump sent fifteen hundred active duty military to
Speaker 3: the border indefinitely suspended asylum, lifted longtime rules restricting ice
Speaker 3: raids near schools and churches, cut off the refugee resettlement program,
Speaker 3: and expanded fast track deportations. A number of lawsuits have
Speaker 3: already been filed over these actions, and more are likely
Speaker 3: to come. I've been talking to immigration law expert Leon Fresco,
Speaker 3: a partner at Hollanda Knight. Leon officials say that the
Speaker 3: troops at the southern border will fly helicopters to assist
Speaker 3: border patrol agents and help in the construction of barriers,
Speaker 3: and that there's no plan for them to be used
Speaker 3: for law enforcement. Explain why things would change if the
Speaker 3: military were used for law enforcement at the border.
Speaker 5: So there is this very long held principle called posse
Speaker 5: cometadis which says that the military is prohibited from being
Speaker 5: engaged inside the United States for law enforcement purposes. So
Speaker 5: that's not permitted under the Posse Commetadas Act. And so
Speaker 5: what creates the problem there is then, well what can
Speaker 5: the military actually do on the border. And this continues
Speaker 5: to come up, whether it's the National Guard or the military,
Speaker 5: and the traditional answer has been, well, they can observe
Speaker 5: people crossing. They can then report that to the domestic
Speaker 5: military officials, which in this case would be CBP and ICE,
Speaker 5: and then CBP and ICE can come pick them up.
Speaker 5: But also, in addition, they can just look very scary,
Speaker 5: and so you would have all these military folks with
Speaker 5: machine guns and helmets and tanks on the border. This
Speaker 5: potentially could lead to a view, hey, it's very scary
Speaker 5: for me to cross, Let me not do that, And
Speaker 5: that certainly would be a deterrent for most people, I believe,
Speaker 5: But you know, if some people then start to get
Speaker 5: the message, hey, if those people aren't actually going to
Speaker 5: do anything, you can still cross, and let's say, ask
Speaker 5: for asylum. Then that's not going to be a deterrent
Speaker 5: in the long run. Now, there's other things that the
Speaker 5: Trump administration is trying to do to prevent people from
Speaker 5: actually staying and asking for asylum, such as remain in
Speaker 5: Mexico and the various asylum bands that they've also put
Speaker 5: in this week. But those two are going to be litigated,
Speaker 5: and so we're going to be in a very interesting posture.
Speaker 5: I do think in the short term you're going to
Speaker 5: see a significant decrease in mortar crossings. But the question
Speaker 5: is in the long term, two years from now, what
Speaker 5: kind of conversation are we having if all of these
Speaker 5: measures have been revoked as unlawful and now we're back
Speaker 5: to the Congress to have to change the environment.
Speaker 3: So Trump also directed through executive order that the incoming
Speaker 3: Secretary of Defense and Homeland Security chief report back within
Speaker 3: ninety days if they think an eighteen oh seven law
Speaker 3: called the Insurrection Act should be invoked so that the
Speaker 3: military could do law enforcement at the border.
Speaker 5: Well. Yeah, so the point is if they think that
Speaker 5: there are actual invasions happening by people of a country. Now,
Speaker 5: ideally you would do this in a congressional declaration of war.
Speaker 5: That's when you usually have this in vote. But if
Speaker 5: you don't have a declaration of war, which is not
Speaker 5: required under the statue, but it's easier to justify, then
Speaker 5: what you have to say still is that countries such
Speaker 5: as Venezuela. I don't think they're going to say it
Speaker 5: for El Savador because the leader of Al Sabador is
Speaker 5: actually quite friendly with many conservatives. Although Trump has criticized him,
Speaker 5: many Conservatives adore the leader of El Savador, So they
Speaker 5: may just say it for Venezuela that Venezuela is actually
Speaker 5: authorizing an incursion of dangerous people into the United States
Speaker 5: for the purposes of destabilizing the United States. And if
Speaker 5: they make that argument, then they can say, if you're
Speaker 5: identified as one of those dangerous people, all we have
Speaker 5: to do is just find you and take your body out.
Speaker 5: We don't have to put you in any court under
Speaker 5: the Alien Enemies Act. And so that's going to be
Speaker 5: very interesting to see which groups they actually designate for that.
Speaker 5: I would be very shocked if MS thirteen and Alsavador
Speaker 5: gets invoked for that, because it would require an implicit
Speaker 5: message that the Alsavador government is actually trying to send
Speaker 5: these people to the US for the purposes of destabilizing
Speaker 5: the US, which, by the way, Trump has said, But
Speaker 5: I do think that would be very unpopular in the
Speaker 5: conservative movement to criticize the president of El Salvador.
Speaker 1: In this way.
Speaker 5: But Venezuela will be the most likely to watch.
Speaker 3: Leon Trump suspended asylum indefinitely. And that's been a part
Speaker 3: of US law since nineteen eighty Have losses been filed
Speaker 3: over that.
Speaker 5: That one already exists. It's already against the Biden administration,
Speaker 5: and it's just being amended in DC to add that.
Speaker 5: So they actually had that, They already had a debate.
Speaker 5: So there's a lawsuit on the summer Biden asylum restrictions.
Speaker 5: Then when Trump shut down the CDP one app, which
Speaker 5: is the app that you would use to then legally
Speaker 5: come to the port of entry, the ACLU came in
Speaker 5: and said, hey, I need to change this lawsuit to
Speaker 5: include the ending of the CBP one app because now
Speaker 5: the defense that the Biden administration had, which is there
Speaker 5: is no asylum ben you just have to go to
Speaker 5: the port of entry and use the CBP one app,
Speaker 5: that defense is gone. The judge said, look, I'm not
Speaker 5: going to require them to turn back on the CBP
Speaker 5: one app If there's a specific case or two that
Speaker 5: you want to bring to my attention, we might be
Speaker 5: able to get those people their appointments, but to just
Speaker 5: turn it on for an indefinite period, he didn't sem
Speaker 5: to to interest it in that outcome. Now he didn't
Speaker 5: do a final ruling, but still the determination about whether
Speaker 5: the asylum ban first one, the Biden one now plus
Speaker 5: the Trump one, whether that ban is gonna be permitted,
Speaker 5: we still don't know. So now that's all going to
Speaker 5: be analyzed as to what is the current ban, and
Speaker 5: then we're going to get a decision on that. Again,
Speaker 5: if I think this was an AI judge or a
Speaker 5: machine judge, they'd probably say that you can't just ban
Speaker 5: asylum completely on the border like this. The Congress would
Speaker 5: have to change the laws to do it. But we'll
Speaker 5: wait and see what the.
Speaker 3: Outcome is, and we'll certainly be waiting for a lot
Speaker 3: of decisions on the immigration scene. So it's a pleasure
Speaker 3: to have you on, Leon, Thanks so much. That's Leon
Speaker 3: Fresco of Holland and Knight, mister.
Speaker 7: Chief Justice, and may it please the Court, we're here
Speaker 7: today because Ashton Barnes was shot and killed on the
Speaker 7: side of a Texas highway after being pulled over for
Speaker 7: unpaid tolls. The question before this court is how to
Speaker 7: determine whether Astron's Fourth Amendment rights were violated.
Speaker 3: In April of twenty sixteen, a Houston police officer shot
Speaker 3: an unarmed black man twice during a routine traffic stop
Speaker 3: over unpaid tolls. Lower courts had dismissed the excessive force
Speaker 3: lawsuit filed against the officer by the victim's mother, but
Speaker 3: the Supreme Court took another look at the case this week,
Speaker 3: and justice is across the ideological spectrum appeared to agree
Speaker 3: that the analysis by the lower courts focusing on the
Speaker 3: two seconds prior to the officer shooting was wrong. Here
Speaker 3: are Justices Elena Kagan and Neil Gorsuch.
Speaker 8: We have two opinions below, actually both the Circuit Court
Speaker 8: and the District Court, who expressed a desire to look
Speaker 8: beyond two seconds, but said, we can only look at
Speaker 8: the prior two seconds.
Speaker 6: If the only thing we're concerned with is this tut
Speaker 6: this two second rule, whether it's there or not, Mister McLeod,
Speaker 6: and we just clarify that as not the law, and.
Speaker 3: There seemed to be a consensus that courts must consider
Speaker 3: the totality of the circumstances when determining whether an officer
Speaker 3: used excessive force. Here's Justice amy Cony Barrett questioning the
Speaker 3: lawyer for the victim's mother.
Speaker 9: If we said moment of the threat is wrong, and
Speaker 9: we don't articulate a precise standard other than saying our
Speaker 9: regular totality of the circumstances test supplies as just as
Speaker 9: Sotomayor said, that's really what you're asking for.
Speaker 3: Although Justice Brett Kavanaugh repeatedly expressed concerns about the implications
Speaker 3: of such a decision on police officers making traffic stops.
Speaker 10: An officer does not get the time we've spent here
Speaker 10: today to make the decision. Do I let it go
Speaker 10: knowing that this person could do serious harm or has
Speaker 10: done and we'll never catch the person, or do I
Speaker 10: jump on the car and they have to make that
Speaker 10: decision in about what do you tell them?
Speaker 3: Joining me is former federal Prosecutor George U. House of
Speaker 3: Richard's Carrington. George, tell us what happened during this routine
Speaker 3: traffic stop.
Speaker 1: So the case is focused on a shooting by a
Speaker 1: Houston police officer not named Felix of Ashton Barnes, a
Speaker 1: young man in April of twenty sixteen. The plaintiff is
Speaker 1: his mother, who is suing the officer for using an
Speaker 1: excessive force and violation of the Fourth Amendment arising from
Speaker 1: the killing. The question in this case is did the
Speaker 1: police officer use excessive force in defending himself versus the
Speaker 1: officer's right indeed duty to protect himself during routine law
Speaker 1: enforcement operations. That's the question. The courts below decided in
Speaker 1: favor of the officer on papers. There was no trial
Speaker 1: yet and the facts are actually, unfortunately not that unusual because,
Speaker 1: as you know, a traffic stop is one of the
Speaker 1: most dangerous police operations that in domestic violence calls. Officers
Speaker 1: hate this because they are encountering a situation where unknown
Speaker 1: dangerous will occur in rapid, split second motion, and the
Speaker 1: courts of traditionally recognized this and deferred to the officers.
Speaker 1: In this case, the officer stopped the car, came up
Speaker 1: to the driver's window ordered Barnes to get out. Barnes
Speaker 1: refused and then started arguing with him, and the officer
Speaker 1: said get out of the car, which is normal police practice.
Speaker 1: Barnes started to drive off. Now at that point the
Speaker 1: officer reached in to grab the keys and as a result,
Speaker 1: he is now riding along as the car begins to
Speaker 1: take off down a highway. A bad situation. And at
Speaker 1: that point his weapon was out and he shot the
Speaker 1: driver twice and killed him. So at issue here in
Speaker 1: the court, which is the only interesting thing for US lawyers,
Speaker 1: is the test for determining the reasonableness of the officers
Speaker 1: use to force. The normal standard is the totality of
Speaker 1: the circumstances. That's the test that most lawyers would apply.
Speaker 1: But the lower court looked at a different standard. They
Speaker 1: looked at the last two seconds of what happened. And
Speaker 1: in those that case it's a day to easy giveaway
Speaker 1: for the officer because at that point he's stuck in
Speaker 1: the car, he's about to be armed, so he takes
Speaker 1: immediate action. So, really is which test is taken?
Speaker 3: Why did the lower Court and the Fifth Circuit used
Speaker 3: They call it the moment of threat doctrine. Why didn't
Speaker 3: they use the totality of the circumstances doctrine?
Speaker 1: Well, I don't really know, except that if you use
Speaker 1: the moment of threat doctrine. On this case, then there's
Speaker 1: no factual question and the case is dismissed on summary
Speaker 1: judgmal So you never go to trial. If you look
Speaker 1: at the totality of the circumstances, there presents a factual
Speaker 1: issue that is more difficult for the court to dispose
Speaker 1: of the case in summary judgment, which means, no, we
Speaker 1: never get to the question of qualified immunity and we
Speaker 1: never get to a factual question. So that's why they
Speaker 1: like that standard better. It's a foregone conclusion to the officer,
Speaker 1: and that is too narrow because the courts need to
Speaker 1: look at what led up to the moment of danger,
Speaker 1: look at all of the behavior. That's the totality of
Speaker 1: the circumstances, which is normally the legal test that courts
Speaker 1: would apply.
Speaker 3: How do the justice's weigh concerns for the safety of officers.
Speaker 1: The justices all seemed to be interested in protecting officer safety. Kavanaf,
Speaker 1: for example, said, look, what's an officer supposed to do
Speaker 1: at a traffic stop when someone pulls away? Just let
Speaker 1: them go. He asked that question, noting that in some
Speaker 1: situations the driver may be in the middle of committing
Speaker 1: other criminal acts, so it's not only officers safety, but
Speaker 1: public safety.
Speaker 3: On the other hand, Justice Neil Gorsich seemed like he
Speaker 3: didn't want the Court to issue a decision that was
Speaker 3: too pro police.
Speaker 11: Why would we put a thumb on the scale that
Speaker 11: way and say that it's almost impossible to make out
Speaker 11: a Fourth Amendment claim in those circumstances. Given the varied
Speaker 11: nature of encounters between police officers and citizens across the country.
Speaker 11: The standard we've always said reasonableness is a totality of
Speaker 11: the circumstances.
Speaker 1: And he's right in a way that if you go
Speaker 1: over the moment of danger doctrine, it seems to be
Speaker 1: highly likely that the police officer wins, as opposed to
Speaker 1: the totality of circumstances, which is a general rule makes
Speaker 1: it more difficult at least for the police officer to
Speaker 1: win at the summer judgment state. So Justice Gorsas wants
Speaker 1: to see the system be fair and balanced. I mean,
Speaker 1: it's kind of ironic that this case is argued in
Speaker 1: the Supreme Court hours after the President of the United
Speaker 1: States pardons scores of violent felons who injured police officers.
Speaker 1: So I think police officer safety is in everyone's mind,
Speaker 1: perhaps for the president. So the Court I think will
Speaker 1: come out with a strong opinion to thing. Officers have
Speaker 1: to be supported. But we're not going to go in
Speaker 1: the moment of danger doctrine. It's too narrow, too automatic
Speaker 1: win for the officer, and that was what Gorsus was saying.
Speaker 1: I predict that the court will go back to saying
Speaker 1: it has to be the totality of the circumstances, and no,
Speaker 1: we don't agree that if the officer. This is for
Speaker 1: the planeff's position, as the officer acted negligently, he was
Speaker 1: stupid to reach in the car, and he put himself
Speaker 1: in a position of danger, and therefore he's not entitled
Speaker 1: to defend himself. That's technically not the law.
Speaker 3: So one of the judges at the Fifth Circuit took
Speaker 3: the unusual step of asking the justices to clarify how
Speaker 3: judges should determine when deadly force is reasonable and constitutional.
Speaker 3: But did it seem like we're not going to get
Speaker 3: a decision explaining what excessive force is and what it is,
Speaker 3: and that it's going to be a very narrow decision.
Speaker 1: You're right, and for a good reason. It's impossible to
Speaker 1: define objectively what excessive force is. Because the pantheon of
Speaker 1: behavior that would be unreasonable i e. Excessive force is
Speaker 1: simply too broad. It can't be specified. That's why it
Speaker 1: typically is a jury question. And of course it has
Speaker 1: the issue here if you adopt a very narrow view,
Speaker 1: if you only focused on the officers' actions immediately before
Speaker 1: the killing, the officers are almost always going to win,
Speaker 1: except of course, of the George Floyd killing when he
Speaker 1: had no chance of protecting that behavior.
Speaker 3: So will it be sent back to the Fifth Circuit Then.
Speaker 1: Most likely is it will be sent back to the
Speaker 1: trial court district court to apply the correct standard, which
Speaker 1: is the totality of the circumstances. And in this case,
Speaker 1: once the judge takes the totality and the circumstances into account,
Speaker 1: the judge will in law likelihood issue the same decision
Speaker 1: ruling for the officers. That'll go back to the Fifth Circuit,
Speaker 1: who will affirm, and it'll go back to the Supreme
Speaker 1: Court who will probably say yes, totality the circumstances test
Speaker 1: is the appropriate test in almost all cases.
Speaker 3: So you think even with the totality of the circumstances test,
Speaker 3: the ruling will still be for the officer.
Speaker 1: Probably most people will come down if they've viewed all
Speaker 1: the facts, that the officer should have just let him
Speaker 1: drive off. He would later be apprehended, but even the
Speaker 1: later apprehensionists in this case. Now you have a fleeing
Speaker 1: suspect and there's increased risk to public safety and the
Speaker 1: officer safety, So you're not ultimately solving the problem. But again,
Speaker 1: that argument says that the police officer acted negligently because
Speaker 1: of his actions, he put himself in danger. That may
Speaker 1: be true, but the law is very clear that the
Speaker 1: officer doesn't it is right or self protection just because
Speaker 1: he makes a mistake. And the courts have long recognized
Speaker 1: and should recognize further that officers have one of the
Speaker 1: most difficult, dangerous jobs on the planet. They have to
Speaker 1: act incredibly fast on breaking circumstances, particularly at night, and
Speaker 1: you're going to make mistakes in those situations. Than the
Speaker 1: courts have generally recognized that, and that's when they come
Speaker 1: down on the side of the officer.
Speaker 3: So even if the officer is found to have violated
Speaker 3: Barnes's right, the officer might still be or would probably
Speaker 3: be shielded by qualified immunity great question.
Speaker 1: Yes, so qualified immunity would be the officer's defense even
Speaker 1: if it found that his actions violated the individual's constitutional rights.
Speaker 1: Qualified immunity protects the officers when they believe reasonably that
Speaker 1: they are acting consistent with the Constitution and not in violation.
Speaker 1: So that is again a factual question that we could
Speaker 1: come back to the court. Qualified immunity was not an
Speaker 1: issue in this case, so I predict at some point
Speaker 1: during the next few terms we will get the case
Speaker 1: involving qualified immunity and the Court may have more to
Speaker 1: say about.
Speaker 3: That, particularly after the George Floyd case. There's been a
Speaker 3: lot of critique of the qualified immunity doctrine as protecting
Speaker 3: law enforcement from accountability for misconduct. Others say qualified immunity
Speaker 3: is necessary because it protects government officials from frivolous lawsuits.
Speaker 3: But do you think that this Roberts Court is likely
Speaker 3: to change it?
Speaker 1: No, I think this Court is likely to clarify it. Now.
Speaker 1: Remember George Floyd, the officer was never close to qualifying
Speaker 1: for qualified immunity because he was convicted a criminal intent.
Speaker 1: So when you know that you are violating someone's rights,
Speaker 1: it is your intent to harm them or to violate
Speaker 1: their rights. You don't qualify for qualified immunity. Qualified immunity
Speaker 1: is you have an objectively reasonable belief turns out to
Speaker 1: be wrong that you're acting consistent with the Constitution. That's
Speaker 1: a narrow band of protection, but it doesn't protect police
Speaker 1: officers who can make criminal acts.
Speaker 3: So in this case, if they rule as we think,
Speaker 3: they are sent it back and say you've applied the
Speaker 3: wrong standard, it doesn't change Supreme Court precedent, does it.
Speaker 1: I mean it actually is consistent with most of their precedent,
Speaker 1: which frequently they reiterate the totality of the circumstances. You've
Speaker 1: got to consider everything that happened before and after the
Speaker 1: moment of force to determine the reasonableness of the officer's behavior.
Speaker 1: That decision would be consistent with their precedent. Going with
Speaker 1: this new doctrine of the moment of danger, I think
Speaker 1: that's a novel and unwise approach.
Speaker 3: Always great to talk to you, George, thanks so much
Speaker 3: for being on the show. That's former federal prosecutor George
Speaker 3: Newhouse of Richard's Carrington. And that's it for this edition
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