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

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Speaker 1: The Supreme Court gave high school students something to cheer

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Speaker 1: about this week of victory for the First Amendment rights

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Speaker 1: of students when they post on social media. By an

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Speaker 1: eight to one vote, the Court ruled that a public

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Speaker 1: high school violated the Constitution when it punished a fourteen

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Speaker 1: year old cheerleader for a profane snapchat rant. The Justice

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Speaker 1: is said school officials have less power to regulate what

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Speaker 1: students say when they're off campus and during oral arguments.

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Speaker 1: Some of the justices suggested the school went too far

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Speaker 1: in punishing the student with a year long suspension from

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Speaker 1: the team. You're punishing her here because she went on

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Speaker 1: the internet and cursed and used a curse word related

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Speaker 1: to what to her unhappiness with the school and cheering right.

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Speaker 1: She's competitive, she cares. She blew off steam like millions

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Speaker 1: of other kids have when they're disappointed about being cut

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Speaker 1: from the high school team or not being in the

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Speaker 1: starting lineup. The rather narrow decision was written by Justice

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Speaker 1: Stephen Bryer, who had expressed concern about a broad ruling

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Speaker 1: by the Court. I'm to death of writing a stand

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Speaker 1: joining me his first amendment expert Eugene Folic, a professor

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Speaker 1: at u c l A Law School. So, Eugene, how

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Speaker 1: much of a win is this for student speech? Considerable?

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Speaker 1: Probably not complete, but considerable. The Supreme Court didn't denounce

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Speaker 1: a clear rule that says off campus speech is categorically protected,

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Speaker 1: or even off campus speeches categorically protected unless it's, say,

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Speaker 1: a true threat of violence or something like that. Nonetheless,

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Speaker 1: the Court made clear that generally speaking, off campus political

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Speaker 1: and religious speech is protected, even if it might cause

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Speaker 1: some pension or some disruption on campus. And it defined

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Speaker 1: political speech quite broadly. So, for example, that kind of

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Speaker 1: vulgar and non substantive criticism of the cheerleading program that

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Speaker 1: was involved in this particular statement by the student that

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Speaker 1: to the Court said, is a form of political speech

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Speaker 1: because it is criticism of the school. So that's quite

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Speaker 1: a significant form of protection. And I expect that in

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Speaker 1: a lot of off campus speech cases, this case is

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Speaker 1: going to be dispositive to the point that perhaps there

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Speaker 1: won't even need to be any litigation. So the court

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Speaker 1: stopped short of saying there's a categorical rule for off

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Speaker 1: campus speech. Did they give schools enough guidance for what

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Speaker 1: is and what isn't permissible. No, they did not give

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Speaker 1: the school much guidance. They did set this precedent, this benchmark.

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Speaker 1: So speech that's kind of like this, future school district

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Speaker 1: and their lawyers will probably realize, you know, if the

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Speaker 1: speech is quite like this, then there's not going to

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Speaker 1: be much of a distinction we can draw. But if

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Speaker 1: the speech is somewhat different, let's to me, because it's

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Speaker 1: somewhat more disruption on campus, or maybe is more personalized

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Speaker 1: to particular students or even particular teachers, you know, in

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Speaker 1: principle of court might reach a different result. You know,

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Speaker 1: this is the way things work often in law. Right,

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Speaker 1: sometimes a court says here is a rule, But sometimes

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Speaker 1: the court just says, here's our decision, and we're going

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Speaker 1: to leave it to future courts to discern a rule

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Speaker 1: from this case and from other such cases. That's kind

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Speaker 1: of a common law sort of approach, and one that

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Speaker 1: Justice Buyer, who is the author of this opinion, is

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Speaker 1: often quite sympathetic towards. So it will be mostly for

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Speaker 1: lower courts to develop further case law on the subject.

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Speaker 1: But I'm sure they'll take very seriously this decision, and

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Speaker 1: we'll recognize that off campus speech is usually generally speaking,

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Speaker 1: the view it as more protected And tell us what

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Speaker 1: Justice Brier said about the vulgarity of the speech here,

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Speaker 1: We know that on campus schools have pretty substantial authority

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Speaker 1: to punish speech because as a vulgar it's just kind

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Speaker 1: of a way of teaching manners and teaching how to

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Speaker 1: engage in substantive polite arguments. That's the Bethel School District

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Speaker 1: versus Fraser case. But when it comes to off campus speech,

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Speaker 1: just as Briar's opinion suggested that basically the vulgarity of

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Speaker 1: the message is not going to be particularly relevant, especially

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Speaker 1: when the message is political in some measure, Justice Briar

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Speaker 1: said he was frightened to write a standard in oral arguments.

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Speaker 1: Does that show in the narrowness of this opinion? Well, yeah,

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Speaker 1: I think that often Justice Brier likes to have kind

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Speaker 1: of flexible balancing tests rather than clear, sharp categorical rules.

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Speaker 1: Different justices of different view. Justice Scalia famously was much

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Speaker 1: more in favor of clearer rules. So yeah, I think

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Speaker 1: just as Briar got what he wanted, which is a

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Speaker 1: relatively flexible approach, but one that nonetheless offers considerable protection

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Speaker 1: to student speech more complication by the ways, when he

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Speaker 1: said specting death of writing a standard, UM, I think

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Speaker 1: what he meant was a relatively clear standards. Sometimes lawyers

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Speaker 1: call rules or law professors call rule. Sometimes you have

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Speaker 1: this rule versus standard debate where some people say we

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Speaker 1: need to have a clear, sharp rule and others say

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Speaker 1: we need to have a flexible case by case standard.

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Speaker 1: And Justice Briar's approach, notwithstanding his his oral statement oral

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Speaker 1: argument really does represent what law professors would often call

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Speaker 1: a standard, but one that is deliberately flexible and in

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Speaker 1: some measure on not entirely predictable. Justice Thomas's dissent, What

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Speaker 1: was his objection? We'll recall that Justice Thomas is the

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Speaker 1: most originalist of the justices and UH in some respects

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Speaker 1: when the original meaning is not that clear, one who

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Speaker 1: is particularly focused on tradition h and as a result,

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Speaker 1: he sometimes reaches very speech protective positions and sometimes really

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Speaker 1: quite speech restrictive positions. In the more see Frederick case,

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Speaker 1: he made clear that, as he understands UH, the original

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Speaker 1: meaning at least of the fourteenth Amendment, UH, which of

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Speaker 1: course incorporated the First Amendment against state and local government. UM.

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Speaker 1: The UH public schools basically had a very broad authority

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Speaker 1: over student speech, including off campus speech, so peace Sticking

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Speaker 1: to that, his view is, you know, whatever doesn't matter

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Speaker 1: what we think is right or what we think is

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Speaker 1: consistent with broad First Amendment theory. UH. The important question

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Speaker 1: is what is the best we can tell about the

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Speaker 1: original meaning in the tradition here and he reads the

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Speaker 1: original meaning of the fourteenth Amendment as basically leaving such

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Speaker 1: a broad authority to schools. By the way, UH. In

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Speaker 1: this respect he is very similar as in some other areas,

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Speaker 1: to just As Hugo Black, who was also something of

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Speaker 1: an original list, although generally he was seen as on

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Speaker 1: the liberal wing of the court, whereas UH Thomas has

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Speaker 1: seen as a conservative originalist but in various issues such

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Speaker 1: as incorporation of the Bill of Rights, but also in

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Speaker 1: this UH. In this case UH um UH cat and

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Speaker 1: fell speech Justice Thomas and Black actually had very similar

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Speaker 1: views UH. Just as Black was the one dissenter in

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Speaker 1: or one dissenter, he was one of the dissenters in

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Speaker 1: the tinkervieda Moin case back in nine. To be sure,

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Speaker 1: he didn't focus on original meaning as much. But uh,

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Speaker 1: at least to the bottom line, Justice Thomas's view and

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Speaker 1: very liberal, just as Black's view, who worked quite similar

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Speaker 1: on this issue. As far as the fact that this

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Speaker 1: was social media, was there a struggle to um for

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Speaker 1: the justices to adjust to the idea or to deal

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Speaker 1: with the idea of social media the twenty four hour nature?

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Speaker 1: You know, I don't think so. I think the justices

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Speaker 1: are pretty acquainted with social media. Social media may be

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Speaker 1: new in the an absolute sense, uh, but it's loomed

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Speaker 1: so large in our minds that I don't think anybody

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Speaker 1: is kind of puzzled or uncertain about about how it

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Speaker 1: works and how it fits in the first commment analysis. Remember,

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Speaker 1: in the packing Him case several years ago, the court

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Speaker 1: upheld the rights there even of people with um sex

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Speaker 1: crime convictions to use social use social media. So the

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Speaker 1: court wasn't much detained by that. Now, I suppose one

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Speaker 1: could um uh, I think that social that the social

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Speaker 1: media nature here, or more precisely, the Internet nature of

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Speaker 1: the speech might affect things because huh, speech that is

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Speaker 1: written off campus, if boasted on social media, or for

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Speaker 1: that matter, just on the Internet more broadly, can be

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Speaker 1: read on campus and That's one thing that just this

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Speaker 1: um Thomas mentioned that because off campus speech made through

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Speaker 1: social media can received on campus, that often will have

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Speaker 1: a greater approximate tendency to harm the school environment than

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Speaker 1: will an off campus in person conversation. So there is

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Speaker 1: some element to the social media or the internet nature

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Speaker 1: of the speech that affects matters slightly. But the bottom

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Speaker 1: line was that the court didn't treat this any differently

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Speaker 1: than if she had been giving a state political speech

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Speaker 1: at a rally, or if she had been, uh preaching

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Speaker 1: a lay sermon. Not that presumably she would have the

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Speaker 1: same topic of the same choice of words, but on

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Speaker 1: some religious topic in a church. So now lower courts

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Speaker 1: are going to have to grapple with this flexible approach,

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Speaker 1: and I do think lower courts are going to be

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Speaker 1: seeing a lot of these cases, and some of them

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Speaker 1: I think are going to involve I hate to use

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Speaker 1: the term bullying because it's so ill defined. It seems

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Speaker 1: like it's clear, but it's still defined. And by the way,

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Speaker 1: i'll Justice Alito mentioned one of the problems with attempts

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Speaker 1: to restrict harassment and bullying is cisely that they're such

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Speaker 1: ill defined terms and it's not clear whether they match

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Speaker 1: up with any first in thement exception, but that presumably

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Speaker 1: would be some cases where there is basically personal cruelty

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Speaker 1: posted online about fellow classmates. Another example might be, what

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Speaker 1: if there's something that is personally insulting to a teacher

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Speaker 1: and perhaps a not less substantive point or let's say,

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Speaker 1: insulting the teacher about calling the teacher ugly, or spreading

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Speaker 1: rumors about their sex life with other adults or something

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Speaker 1: like that. So that might be a question that will

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Speaker 1: arrive less. Also, there are going to be lots of

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Speaker 1: cases that involved on campus speech. It's not like on

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Speaker 1: campus speech is entirely unprotected, and much of the reasoning

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Speaker 1: of the court suggests that indeed the Tinker standard needs

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Speaker 1: to be often read in a speech protective way, even

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Speaker 1: on campus. So your miracle. Some years ago, there was

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Speaker 1: this case called Ariano from the Ninth Circuit which involved

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Speaker 1: students who are wearing American flag T shirts. And this

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Speaker 1: is on Sinco Demio, and the Mexican American students viewed

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Speaker 1: that is insulting, sort of threatened that there might be

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Speaker 1: some fights as a result, that school said you can't

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Speaker 1: wear American flag gear on sinca demyo to an American school.

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Speaker 1: This led to a sharp split between the judges and

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Speaker 1: the Ninth Circuit, although the Ninth Circuit upheld the restriction

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Speaker 1: on the wearing of American flag gear, but as a

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Speaker 1: classic example of what outside of school would be called

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Speaker 1: the Heckler's vita, where speech is suppressed simply because some

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Speaker 1: viewers are offended and threatened to react violently or disruptively.

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Speaker 1: So that kind of issue is going to keep coming up,

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Speaker 1: and it's not clear how it will come out. It's

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Speaker 1: not like this case will affect it that much, but

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Speaker 1: the broader peach cases will continue to involve a lot

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Speaker 1: of on campus speech as well as off campus. So, now,

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Speaker 1: were you surprised that this was eight to one? You know,

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Speaker 1: it was hard to tell from oral argument just how

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Speaker 1: the breakdown would happen, in part because it was hard

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Speaker 1: to tell from oral argument just how broader narrow the

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Speaker 1: rule would be. So I don't think that this is

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Speaker 1: entirely predictable, but neither was it entirely surprised either. I

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Speaker 1: do think that people who listen to our arguments saw

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Speaker 1: that there was a good deal of unease on the

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Speaker 1: justices part with the government having basically twenty four seven

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Speaker 1: control over tens of millions of public school students. So

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Speaker 1: some degree of protection for that kind of off campus speech,

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Speaker 1: some extra protection beyond with offered on campus speech, I

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Speaker 1: think seemed pretty likely. And then I think one reason

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Speaker 1: it was a two one was precisely because it was

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Speaker 1: a relatively minimalistic decision. There might not have been eight

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Speaker 1: votes or perhaps not even five votes for a more

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Speaker 1: categorical has there been a definible trend in school speech

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Speaker 1: cases since the landmark Tinker case that allowed students to

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Speaker 1: wear black arm bands to protest the Vietnam War. Conventionally

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Speaker 1: this is seen as the fifth major students speech case

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Speaker 1: and thinker so that's in over fifty years. So the

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Speaker 1: Tinker case, who is viewed as expanding free speech rescipute

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Speaker 1: because before Tinker, it wasn't clear that students have any

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Speaker 1: free speech rights with regard to their schools. Then in

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Speaker 1: the Phraser case, the Court said, well, but it doesn't

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Speaker 1: apply to vulgarity on campus sulgarity, And then the Cool

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Speaker 1: Minor case, the Court said, well, it doesn't apply to

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Speaker 1: student newspapers that are run by the school because that's

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Speaker 1: really the school's speech and not just the students speech.

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Speaker 1: And then in the more Speed Frederick case, the court said, well,

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Speaker 1: it doesn't apply to speech that without making any political

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Speaker 1: or religious statements, seems to advocate the use of draws,

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Speaker 1: because that's particularly dangerous in a school environment. So those

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Speaker 1: three cases you might view them as cutting back and

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Speaker 1: sub measure on students speech rights, or perhaps defining students

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Speaker 1: speech rights in a relatively narrow way. Now this case

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Speaker 1: comes around in this case does offer protection for students

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Speaker 1: speech right. So as in many areas, you know, some

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Speaker 1: cases come out one way, some cases come out the other.

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Speaker 1: Finally you write it an amicus brief. In this case,

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Speaker 1: how on target were you? Well, our brief urged the

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Speaker 1: same result, urged that off campus and speech b viewed

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Speaker 1: as pretty broadly protected, and it's stressed the danger of

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Speaker 1: allowing schools essentially twenty seven control over student speech. And

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Speaker 1: that's that is indeed the view the court took. On

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Speaker 1: the other hand, what we were arguing for was actually

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Speaker 1: a more categorical approach. We thought that there would be

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Speaker 1: more reliable protection for student speech and for that matter,

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Speaker 1: more reliable protection for UH school discretion. If the Court

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Speaker 1: were to say, look, we're going to say such speeches

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Speaker 1: categorically protected off campus, subject perhaps to some categorical exceptions

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Speaker 1: for things like personal cruelty or threats and the like.

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Speaker 1: But you know, we wanted a more rule based approach.

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Speaker 1: That's not what the majority settled on. As always, Thanks

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Speaker 1: so much, Eugene. That's Professor Eugene Vallic of u c

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Speaker 1: l A Law School. This is Bloombird Law with June

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Speaker 1: Brusso from Bloombird Radio. Should a police officer be able

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Speaker 1: to follow you into your home without a warrant if

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Speaker 1: he suspects you of committing a minor crime like playing

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Speaker 1: the music in your car too loud? The answer from

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Speaker 1: the Supreme Court is no. The majority opinion, written by

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Speaker 1: Justice Elena Kagan, balanced law enforcement interests against the sanctity

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Speaker 1: of the home, something she talked about during the oral arguments.

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Speaker 1: So if you look at our Fourth Amendment cases, you

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Speaker 1: read them as a group, over and over and over.

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Speaker 1: They all talk about the home as the sacrosanct place,

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Speaker 1: the place of greatest protection. Everything else is compared to

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Speaker 1: that and found not to be quite the thing that

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Speaker 1: the Fourth Amendment protects joining me as former federal prosecutor

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Speaker 1: George Newhouse of Richard's Carrington. Let's start with the basics.

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Speaker 1: What does this decision stand for? Well, the decision actually

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Speaker 1: stands for the fact that the exigent circumstances exception to

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Speaker 1: the search warrant requirement is limited two basically felonies. The

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Speaker 1: court ruled there's not a categorical exception. It's going to

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Speaker 1: be determined on a case by case basis. So the

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Speaker 1: decision really is yet one more attempt to narrow and

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Speaker 1: specify the circumstances under which the police can enter a

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Speaker 1: home without a warrant. Tell us about the defender in

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Speaker 1: this case. He was suspected of playing loud music in

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Speaker 1: his car and honking his horn for no reason because

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Speaker 1: there was no one around, and that struck the California

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Speaker 1: Hiway patrolman in Sonoma County as suspicious as well it might,

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Speaker 1: and the officer followed the individual and lit him up,

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Speaker 1: attempted to pull him over, and of course he was

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Speaker 1: literally a few hundred feet from his home. So the

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Speaker 1: suspect rope into his driveway, into his garage and immediately

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Speaker 1: attempted to close the garage door knowing that a Howe

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Speaker 1: patrolman was right behind him, So he was very much

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Speaker 1: fleeing apprehension. He was fleeing and arrested, and the officer

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Speaker 1: pursued him, stuck his foot under the door. It was

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Speaker 1: an automatic door, and the door pop back open and

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Speaker 1: he entered the garage. And as soon as the officer

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Speaker 1: did that, that's when he could smell alcohol and did

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Speaker 1: the field sobriety tests and arrested the individual rule for

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Speaker 1: drunk driving. But at that point he'd entered the garage

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Speaker 1: without a warrant, And that was the issue before the court.

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Speaker 1: Is that circumstance a fleeing suspect. Is that automatically an

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Speaker 1: exception to the warrant requirement in the court? And I

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Speaker 1: know held it's not. But are there circumstances where misdemeanor

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Speaker 1: hot pursuit does entitle an officer to go into a home? Yes,

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Speaker 1: the Court unequivocally. Both Justice Kagan's majority opinion and Chief

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Speaker 1: Justice Robert's concurring but really dissenting opinion both say that

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Speaker 1: there are circumstances under which a fleeing misdemeanant, someone who's

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Speaker 1: committed a misdemeanor not a felony, a less serious offense,

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Speaker 1: the police will be justified in chasing that person into

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Speaker 1: the home, which, as we all know, is the face

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Speaker 1: where we get the highest protection under the Fourth Amendment.

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Speaker 1: A man's home is his castle. So the court clearly

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Speaker 1: says it can in some cases occur, but the majority

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Speaker 1: is not inclined to make a categorical rule. They're saying

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Speaker 1: to the police, it's going to be on a case

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Speaker 1: by case basis and will determine each case as it

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Speaker 1: comes before us. And the problem with that, of course,

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Speaker 1: is it doesn't give the police any true guidance. Police

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Speaker 1: like to have what we call bright lines. They like

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Speaker 1: to be told if you've initiated traffic stop, or you're

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Speaker 1: trying to arrest the person in public and the person

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Speaker 1: flees and the private property, you may pursue. And that was,

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Speaker 1: of course what the talent was arguing. Court rejected it said, nope,

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Speaker 1: it's not going to be automatic. It's going to be

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Speaker 1: determined on a case by case basis. You mentioned the

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Speaker 1: concurrence by Chief Justice John Roberts joined by Justice Samuel Alito,

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Speaker 1: and really it was more like a descent. Well, it's

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Speaker 1: an interesting opinion because as you correctly point out, it

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Speaker 1: reads like a descent. It's very critical of the majority's

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Speaker 1: refused to endorse the officers actions, which the Chief Justice

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Speaker 1: seemed to feel were reasonable. Remember, the touchstone of legality

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Speaker 1: police action under the Fourth Amendment is reasonableness. If the

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Speaker 1: police are acting reasonably, they legitimately have no alternative, probably

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Speaker 1: no time to get a warrant, then they don't need

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Speaker 1: a warrant. They can act to protect people's lives and

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Speaker 1: do effective law enforcement. But the Chief Justice was concerned

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Speaker 1: that the court was basically excluding a whole area of

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Speaker 1: legitimate law enforcement and that it was going to make

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Speaker 1: it very difficult for the police to do their job.

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Speaker 1: Because the Chief Justice has clearly from his opinion, he

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Speaker 1: has a tremendous amount of concern, and he's concerned that

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Speaker 1: police be given sufficient flexibility so they can do their

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Speaker 1: jobs in the field. His opinion set out some circumstances

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Speaker 1: under which basically hypothetical, as he did in the last

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Speaker 1: case that we described involving the seizure of the guns

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Speaker 1: from the house, a Chief Justice set out it was interesting,

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Speaker 1: hypothetically said, supposed a policeman sees a suspect, he believes

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Speaker 1: is committing a crime. He's not sure, by the way,

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Speaker 1: whether it's a misdemeanor or a felony. And one of

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Speaker 1: the things that the majority opinion does is that draws

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Speaker 1: this clear line between felonies and misdemeanors and pointing out

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Speaker 1: that misdemeanors aren't less serious, which they're they're less serious,

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Speaker 1: and they are multiple numbers. Could the Chief Justice is

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Speaker 1: pointing out, we know sometimes when the police are trying

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Speaker 1: to arrest someone for committing a crime before them, they

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Speaker 1: don't know whether they've committed a felony or a misdemean

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Speaker 1: or how the DA is going to charge it. They

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Speaker 1: only know that that person is a suspect and probable

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Speaker 1: cause to believe that a crime has occurred. And the

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Speaker 1: hypothetical was the police officer pulls up to the front

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Speaker 1: of the yard and he sees an adult assaulting juvenile

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Speaker 1: that would be probably a misdemeanor, and he jumps out

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Speaker 1: of his car, and they suspect seeing the police officer,

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Speaker 1: and now, of course, having read the latest Supreme Court opinion,

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Speaker 1: knows that he can flee because it's only a misdemeanor,

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Speaker 1: and he takes off and he jumps over offense on

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Speaker 1: the property that is his. At that point he says

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Speaker 1: to the cop, go way, I'm going inside, and I'm

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Speaker 1: not letting you in. And the Chief Justice, his opinion, said,

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Speaker 1: under those circumstances, with today's opinion, that's all the police

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Speaker 1: officer can do. I mean, he can go, I suppose,

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Speaker 1: and try to get a warrant. But at that point,

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Speaker 1: were's the suspecting and beat and he may in fact

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Speaker 1: not stay in the house. He might leave the house,

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Speaker 1: so it handcuffs the police this opinion. George, Let's look

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Speaker 1: at our own hypothetical to see how this decision might

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Speaker 1: play out on the ground. Let's say it's a drunk

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Speaker 1: driving case. By the time the officer gets the warrant,

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Speaker 1: there may not be evidence of drunk driving anymore. An

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Speaker 1: excellent point, exactly right. The evidence in a drunk driving

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Speaker 1: case is resident in the individual's body, and that's alcohol

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Speaker 1: that's being dissipated at a certain rate. And if the

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Speaker 1: police have to wait two hours and in the middle

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Speaker 1: of the night, even in large urban centers, that can

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Speaker 1: take a long time to get a warrant. In Chief

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Speaker 1: Justice Roberts covered that point as well, and at that point,

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Speaker 1: the evidence may be gone and you may not be

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Speaker 1: able to successfully arrest and prosecute person for drunk driving.

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Speaker 1: So that's yet another example. Though a few years ago

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Speaker 1: the Supreme Court actually did reject that rationale in holding

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Speaker 1: that when someone was arrested for a drunk driving they

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Speaker 1: needed to get a warrant before they pulled the blood

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Speaker 1: from the suspect, that the suspect did not agree to

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Speaker 1: have the blood drawn. What was the point if they

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Speaker 1: said it during the oral arguments, I think was aldo

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Speaker 1: hot pursuit has to be hot, and it has to

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Speaker 1: be a pursuit. This whole notion of hot pursuit as

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Speaker 1: opposed to lukewarm pursuit, What does that really mean? Are

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Speaker 1: we grading the severity of the crime? And we're saying, well,

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Speaker 1: if it's a misdemeanor, and it's a trivial offense, and

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Speaker 1: some misdemeanors and the court listed some details. You know,

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Speaker 1: cutting a plant on public land without an appropriate permit

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Speaker 1: is a misdemeanor. And if you simply walked away instead

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Speaker 1: of running, would that be hot pursuit or lukewarm pursuit? Now,

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Speaker 1: these are blurry lines that police are gonna have a

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Speaker 1: hard time discerning. The short answer is when the police

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Speaker 1: have probable cost to stop and arrest someone or cite them,

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Speaker 1: and they were acting within their lawful authority, and they

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Speaker 1: say to the person stop, sir, or they do the

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Speaker 1: traffic lights. Before this case, that person had to stop.

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Speaker 1: And in California, if that person continues on, they flee,

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Speaker 1: whether they're walking, running, or they jump in a hot

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Speaker 1: air balloon, that's fleeing. And that would justifiably be within

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Speaker 1: their rights to stop that individual, And before this case

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Speaker 1: would probably be justified in going into their house to

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Speaker 1: arrest them. But not now. Justice Kavanaugh in his concurrence

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Speaker 1: basically said there's not that much difference between what Justice

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Speaker 1: Kagan wrote and what Chief Justice Roberts road. What did

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Speaker 1: he mean, because it seems like there is a difference. Well,

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Speaker 1: it's an interesting point that Justice Kavanaugh was making because

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Speaker 1: what he's really saying is when all this boils down

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Speaker 1: and distills to essence, which is to say, an objective,

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Speaker 1: was the police behavior objectively reasonable? In most cases he's suggesting,

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Speaker 1: and he may be right, the police are going to

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Speaker 1: be justified in entering the house to affect the arrest

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Speaker 1: if there are a whole list of other factors present. Remember,

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Speaker 1: exigent circumstances up to now included preventing evidence from being destroyed,

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Speaker 1: capturing a clean felon, and presents a danger to the community.

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Speaker 1: So there were lists of things in the case laws

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Speaker 1: that police could do. In Justice Kavanaugh saying, when the

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Speaker 1: case by case approach, which is articulated by Justice Kagan

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Speaker 1: in our majority opinion, when that's fleshed out at the

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Speaker 1: end of the day, it's going to be the same

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Speaker 1: result as the Chief Justice suggesting that the police action

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Speaker 1: will be legitimate. But here's the problem. The police aren't

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Speaker 1: going to know when they take that action at the

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Speaker 1: time whether ultimately, when the Court's second guests their behavior,

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Speaker 1: it's legal or not. And the concern of the chief

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Speaker 1: Justices having that out there, having that uncertainty, and given

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Speaker 1: to how difficult it is to make these snap judgment

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Speaker 1: decisions in real time in the field where you don't

433
00:24:59,280 --> 00:25:04,400
Speaker 1: have the luxury of oral argument in time to contemplate um,

434
00:25:04,440 --> 00:25:07,720
Speaker 1: it's going to impair and impede the police. They're going

435
00:25:07,760 --> 00:25:10,280
Speaker 1: to air on the side of caution and let the

436
00:25:10,359 --> 00:25:14,800
Speaker 1: suspect go. So in future cases, how do you think

437
00:25:14,840 --> 00:25:18,359
Speaker 1: the lower courts are going to handle this. Do you

438
00:25:18,400 --> 00:25:23,280
Speaker 1: think that there's enough guidance for them in the majority decision? No,

439
00:25:23,800 --> 00:25:25,879
Speaker 1: I agree with the Chief Justice. I think it's the

440
00:25:25,920 --> 00:25:28,159
Speaker 1: point that he's making is a very good one, which is,

441
00:25:28,600 --> 00:25:31,520
Speaker 1: we really do need a bright line test here. We

442
00:25:31,560 --> 00:25:34,960
Speaker 1: need more guidance. We need to clear that the drawing

443
00:25:35,000 --> 00:25:38,080
Speaker 1: the line between a felony and a misdemeanor is not

444
00:25:38,240 --> 00:25:42,880
Speaker 1: really relevant. If the police are acting in a lawful fashion,

445
00:25:43,080 --> 00:25:46,040
Speaker 1: enforcing the law. It shouldn't matter whether it's a traffic

446
00:25:46,119 --> 00:25:49,919
Speaker 1: law they're enforcing or the suspect is believed to have

447
00:25:50,400 --> 00:25:53,520
Speaker 1: committed a violent felony or a robbery, and they should

448
00:25:53,520 --> 00:25:56,560
Speaker 1: be authorized to act and we should be airing on

449
00:25:56,600 --> 00:25:59,080
Speaker 1: the side of the police, which is what the Chief

450
00:25:59,160 --> 00:26:02,480
Speaker 1: Justice is the jet thing Justice Kaganess is suggesting. No,

451
00:26:02,680 --> 00:26:05,680
Speaker 1: they need to stop. They needed they can't go into

452
00:26:05,720 --> 00:26:09,840
Speaker 1: that house. That house is sacrificing. So this only applies

453
00:26:10,320 --> 00:26:16,440
Speaker 1: to police chasing suspect into a home. Well, two things. First,

454
00:26:16,480 --> 00:26:18,440
Speaker 1: it really only applies when they were going into the

455
00:26:18,520 --> 00:26:21,960
Speaker 1: home because that's the highest level of Fourth Amendment protection.

456
00:26:22,480 --> 00:26:25,280
Speaker 1: And the second thing is, um, it doesn't isn't really

457
00:26:25,280 --> 00:26:29,479
Speaker 1: going to alter the fleeing felon rule. Previously, most of

458
00:26:29,520 --> 00:26:33,960
Speaker 1: these police chases where they're they're chasing the suspect, the

459
00:26:34,000 --> 00:26:37,200
Speaker 1: person is believed to have committed a felony, and that

460
00:26:37,320 --> 00:26:40,080
Speaker 1: really was a categorical approach. It didn't matter what the

461
00:26:40,119 --> 00:26:43,560
Speaker 1: felony was. If you had probable cause and you're trying

462
00:26:43,560 --> 00:26:47,119
Speaker 1: to arrest someone for a committing of felony, that was

463
00:26:47,480 --> 00:26:52,960
Speaker 1: exigent in circumstances categorically, and that question was decided. The

464
00:26:53,000 --> 00:26:55,480
Speaker 1: irony of this decision is that almost both some of

465
00:26:55,520 --> 00:26:59,760
Speaker 1: those pursuits into doubt as well, because the cults are

466
00:26:59,760 --> 00:27:02,440
Speaker 1: going to look at all the other circumstances. Well, this

467
00:27:02,520 --> 00:27:04,960
Speaker 1: was a felony, but this person was a white collar

468
00:27:05,119 --> 00:27:08,600
Speaker 1: maybe a personal was a white collar offender, okay, businessman,

469
00:27:08,720 --> 00:27:12,280
Speaker 1: and he's not posing a danger to society. So I

470
00:27:12,400 --> 00:27:16,680
Speaker 1: suspect that as the court's grapple with applying this decision

471
00:27:17,080 --> 00:27:20,240
Speaker 1: in real life circumstances, it's going to cause a lot

472
00:27:20,280 --> 00:27:22,879
Speaker 1: of trouble and there's going to be greater uncertainty. And

473
00:27:23,000 --> 00:27:25,840
Speaker 1: uncertainty in law enforcement is a bad thing. We want

474
00:27:26,440 --> 00:27:30,240
Speaker 1: policemen and agents to have guidance from the court so

475
00:27:30,280 --> 00:27:33,080
Speaker 1: they know what their behavior should be to be lawful

476
00:27:33,160 --> 00:27:35,720
Speaker 1: under the circumstances. And that's the problem with the opinion.

477
00:27:36,640 --> 00:27:40,200
Speaker 1: From this opinion and the last opinion that we discussed,

478
00:27:40,240 --> 00:27:43,800
Speaker 1: the officers going into the guy's house. Does that tell

479
00:27:43,840 --> 00:27:47,520
Speaker 1: you which way the court is headed in these cases

480
00:27:47,680 --> 00:27:51,520
Speaker 1: or not? It does. It sends a remarkable signal. Again,

481
00:27:51,560 --> 00:27:54,639
Speaker 1: this was a nine oh decision. The Court is making

482
00:27:54,680 --> 00:27:58,080
Speaker 1: every effort to be unanimous, even when ironically, as in

483
00:27:58,119 --> 00:28:01,880
Speaker 1: this case, they really weren't. But you know, I think

484
00:28:01,880 --> 00:28:04,960
Speaker 1: it's showing that the Court is really taking the Fourth

485
00:28:04,960 --> 00:28:08,960
Speaker 1: Amendment very seriously and trying to give the greatest protection

486
00:28:09,119 --> 00:28:12,840
Speaker 1: for individuals who once they get in their house, that's

487
00:28:12,840 --> 00:28:16,119
Speaker 1: that's safe ground absent a warrant. And the Court of

488
00:28:16,160 --> 00:28:19,679
Speaker 1: is sending that signal that we're gonna look at any

489
00:28:20,200 --> 00:28:25,760
Speaker 1: incursions into into the castle with great scrutiny. And and

490
00:28:25,840 --> 00:28:29,119
Speaker 1: B and B foe warrant. Thanks for being on the show. George.

491
00:28:29,520 --> 00:28:33,879
Speaker 1: That's former federal prosecutor George Newhouse of Richard's Carrington. And

492
00:28:33,920 --> 00:28:36,000
Speaker 1: that's it for the edition of the Bloomberg Lawn Show.

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00:28:36,400 --> 00:28:38,560
Speaker 1: Remember you can always the latest legal news on our

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00:28:38,600 --> 00:28:42,240
Speaker 1: Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify,

495
00:28:42,320 --> 00:28:46,840
Speaker 1: and at www dot bloomberg dot com, slash podcast, slash Law.

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00:28:47,280 --> 00:28:49,800
Speaker 1: I'm June Grasso and you're listening to Bloomberg