Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.
Speaker 1: The Supreme Court gave high school students something to cheer
Speaker 1: about this week of victory for the First Amendment rights
Speaker 1: of students when they post on social media. By an
Speaker 1: eight to one vote, the Court ruled that a public
Speaker 1: high school violated the Constitution when it punished a fourteen
Speaker 1: year old cheerleader for a profane snapchat rant. The Justice
Speaker 1: is said school officials have less power to regulate what
Speaker 1: students say when they're off campus and during oral arguments.
Speaker 1: Some of the justices suggested the school went too far
Speaker 1: in punishing the student with a year long suspension from
Speaker 1: the team. You're punishing her here because she went on
Speaker 1: the internet and cursed and used a curse word related
Speaker 1: to what to her unhappiness with the school and cheering right.
Speaker 1: She's competitive, she cares. She blew off steam like millions
Speaker 1: of other kids have when they're disappointed about being cut
Speaker 1: from the high school team or not being in the
Speaker 1: starting lineup. The rather narrow decision was written by Justice
Speaker 1: Stephen Bryer, who had expressed concern about a broad ruling
Speaker 1: by the Court. I'm to death of writing a stand
Speaker 1: joining me his first amendment expert Eugene Folic, a professor
Speaker 1: at u c l A Law School. So, Eugene, how
Speaker 1: much of a win is this for student speech? Considerable?
Speaker 1: Probably not complete, but considerable. The Supreme Court didn't denounce
Speaker 1: a clear rule that says off campus speech is categorically protected,
Speaker 1: or even off campus speeches categorically protected unless it's, say,
Speaker 1: a true threat of violence or something like that. Nonetheless,
Speaker 1: the Court made clear that generally speaking, off campus political
Speaker 1: and religious speech is protected, even if it might cause
Speaker 1: some pension or some disruption on campus. And it defined
Speaker 1: political speech quite broadly. So, for example, that kind of
Speaker 1: vulgar and non substantive criticism of the cheerleading program that
Speaker 1: was involved in this particular statement by the student that
Speaker 1: to the Court said, is a form of political speech
Speaker 1: because it is criticism of the school. So that's quite
Speaker 1: a significant form of protection. And I expect that in
Speaker 1: a lot of off campus speech cases, this case is
Speaker 1: going to be dispositive to the point that perhaps there
Speaker 1: won't even need to be any litigation. So the court
Speaker 1: stopped short of saying there's a categorical rule for off
Speaker 1: campus speech. Did they give schools enough guidance for what
Speaker 1: is and what isn't permissible. No, they did not give
Speaker 1: the school much guidance. They did set this precedent, this benchmark.
Speaker 1: So speech that's kind of like this, future school district
Speaker 1: and their lawyers will probably realize, you know, if the
Speaker 1: speech is quite like this, then there's not going to
Speaker 1: be much of a distinction we can draw. But if
Speaker 1: the speech is somewhat different, let's to me, because it's
Speaker 1: somewhat more disruption on campus, or maybe is more personalized
Speaker 1: to particular students or even particular teachers, you know, in
Speaker 1: principle of court might reach a different result. You know,
Speaker 1: this is the way things work often in law. Right,
Speaker 1: sometimes a court says here is a rule, But sometimes
Speaker 1: the court just says, here's our decision, and we're going
Speaker 1: to leave it to future courts to discern a rule
Speaker 1: from this case and from other such cases. That's kind
Speaker 1: of a common law sort of approach, and one that
Speaker 1: Justice Buyer, who is the author of this opinion, is
Speaker 1: often quite sympathetic towards. So it will be mostly for
Speaker 1: lower courts to develop further case law on the subject.
Speaker 1: But I'm sure they'll take very seriously this decision, and
Speaker 1: we'll recognize that off campus speech is usually generally speaking,
Speaker 1: the view it as more protected And tell us what
Speaker 1: Justice Brier said about the vulgarity of the speech here,
Speaker 1: We know that on campus schools have pretty substantial authority
Speaker 1: to punish speech because as a vulgar it's just kind
Speaker 1: of a way of teaching manners and teaching how to
Speaker 1: engage in substantive polite arguments. That's the Bethel School District
Speaker 1: versus Fraser case. But when it comes to off campus speech,
Speaker 1: just as Briar's opinion suggested that basically the vulgarity of
Speaker 1: the message is not going to be particularly relevant, especially
Speaker 1: when the message is political in some measure, Justice Briar
Speaker 1: said he was frightened to write a standard in oral arguments.
Speaker 1: Does that show in the narrowness of this opinion? Well, yeah,
Speaker 1: I think that often Justice Brier likes to have kind
Speaker 1: of flexible balancing tests rather than clear, sharp categorical rules.
Speaker 1: Different justices of different view. Justice Scalia famously was much
Speaker 1: more in favor of clearer rules. So yeah, I think
Speaker 1: just as Briar got what he wanted, which is a
Speaker 1: relatively flexible approach, but one that nonetheless offers considerable protection
Speaker 1: to student speech more complication by the ways, when he
Speaker 1: said specting death of writing a standard, UM, I think
Speaker 1: what he meant was a relatively clear standards. Sometimes lawyers
Speaker 1: call rules or law professors call rule. Sometimes you have
Speaker 1: this rule versus standard debate where some people say we
Speaker 1: need to have a clear, sharp rule and others say
Speaker 1: we need to have a flexible case by case standard.
Speaker 1: And Justice Briar's approach, notwithstanding his his oral statement oral
Speaker 1: argument really does represent what law professors would often call
Speaker 1: a standard, but one that is deliberately flexible and in
Speaker 1: some measure on not entirely predictable. Justice Thomas's dissent, What
Speaker 1: was his objection? We'll recall that Justice Thomas is the
Speaker 1: most originalist of the justices and UH in some respects
Speaker 1: when the original meaning is not that clear, one who
Speaker 1: is particularly focused on tradition h and as a result,
Speaker 1: he sometimes reaches very speech protective positions and sometimes really
Speaker 1: quite speech restrictive positions. In the more see Frederick case,
Speaker 1: he made clear that, as he understands UH, the original
Speaker 1: meaning at least of the fourteenth Amendment, UH, which of
Speaker 1: course incorporated the First Amendment against state and local government. UM.
Speaker 1: The UH public schools basically had a very broad authority
Speaker 1: over student speech, including off campus speech, so peace Sticking
Speaker 1: to that, his view is, you know, whatever doesn't matter
Speaker 1: what we think is right or what we think is
Speaker 1: consistent with broad First Amendment theory. UH. The important question
Speaker 1: is what is the best we can tell about the
Speaker 1: original meaning in the tradition here and he reads the
Speaker 1: original meaning of the fourteenth Amendment as basically leaving such
Speaker 1: a broad authority to schools. By the way, UH. In
Speaker 1: this respect he is very similar as in some other areas,
Speaker 1: to just As Hugo Black, who was also something of
Speaker 1: an original list, although generally he was seen as on
Speaker 1: the liberal wing of the court, whereas UH Thomas has
Speaker 1: seen as a conservative originalist but in various issues such
Speaker 1: as incorporation of the Bill of Rights, but also in
Speaker 1: this UH. In this case UH um UH cat and
Speaker 1: fell speech Justice Thomas and Black actually had very similar
Speaker 1: views UH. Just as Black was the one dissenter in
Speaker 1: or one dissenter, he was one of the dissenters in
Speaker 1: the tinkervieda Moin case back in nine. To be sure,
Speaker 1: he didn't focus on original meaning as much. But uh,
Speaker 1: at least to the bottom line, Justice Thomas's view and
Speaker 1: very liberal, just as Black's view, who worked quite similar
Speaker 1: on this issue. As far as the fact that this
Speaker 1: was social media, was there a struggle to um for
Speaker 1: the justices to adjust to the idea or to deal
Speaker 1: with the idea of social media the twenty four hour nature?
Speaker 1: You know, I don't think so. I think the justices
Speaker 1: are pretty acquainted with social media. Social media may be
Speaker 1: new in the an absolute sense, uh, but it's loomed
Speaker 1: so large in our minds that I don't think anybody
Speaker 1: is kind of puzzled or uncertain about about how it
Speaker 1: works and how it fits in the first commment analysis. Remember,
Speaker 1: in the packing Him case several years ago, the court
Speaker 1: upheld the rights there even of people with um sex
Speaker 1: crime convictions to use social use social media. So the
Speaker 1: court wasn't much detained by that. Now, I suppose one
Speaker 1: could um uh, I think that social that the social
Speaker 1: media nature here, or more precisely, the Internet nature of
Speaker 1: the speech might affect things because huh, speech that is
Speaker 1: written off campus, if boasted on social media, or for
Speaker 1: that matter, just on the Internet more broadly, can be
Speaker 1: read on campus and That's one thing that just this
Speaker 1: um Thomas mentioned that because off campus speech made through
Speaker 1: social media can received on campus, that often will have
Speaker 1: a greater approximate tendency to harm the school environment than
Speaker 1: will an off campus in person conversation. So there is
Speaker 1: some element to the social media or the internet nature
Speaker 1: of the speech that affects matters slightly. But the bottom
Speaker 1: line was that the court didn't treat this any differently
Speaker 1: than if she had been giving a state political speech
Speaker 1: at a rally, or if she had been, uh preaching
Speaker 1: a lay sermon. Not that presumably she would have the
Speaker 1: same topic of the same choice of words, but on
Speaker 1: some religious topic in a church. So now lower courts
Speaker 1: are going to have to grapple with this flexible approach,
Speaker 1: and I do think lower courts are going to be
Speaker 1: seeing a lot of these cases, and some of them
Speaker 1: I think are going to involve I hate to use
Speaker 1: the term bullying because it's so ill defined. It seems
Speaker 1: like it's clear, but it's still defined. And by the way,
Speaker 1: i'll Justice Alito mentioned one of the problems with attempts
Speaker 1: to restrict harassment and bullying is cisely that they're such
Speaker 1: ill defined terms and it's not clear whether they match
Speaker 1: up with any first in thement exception, but that presumably
Speaker 1: would be some cases where there is basically personal cruelty
Speaker 1: posted online about fellow classmates. Another example might be, what
Speaker 1: if there's something that is personally insulting to a teacher
Speaker 1: and perhaps a not less substantive point or let's say,
Speaker 1: insulting the teacher about calling the teacher ugly, or spreading
Speaker 1: rumors about their sex life with other adults or something
Speaker 1: like that. So that might be a question that will
Speaker 1: arrive less. Also, there are going to be lots of
Speaker 1: cases that involved on campus speech. It's not like on
Speaker 1: campus speech is entirely unprotected, and much of the reasoning
Speaker 1: of the court suggests that indeed the Tinker standard needs
Speaker 1: to be often read in a speech protective way, even
Speaker 1: on campus. So your miracle. Some years ago, there was
Speaker 1: this case called Ariano from the Ninth Circuit which involved
Speaker 1: students who are wearing American flag T shirts. And this
Speaker 1: is on Sinco Demio, and the Mexican American students viewed
Speaker 1: that is insulting, sort of threatened that there might be
Speaker 1: some fights as a result, that school said you can't
Speaker 1: wear American flag gear on sinca demyo to an American school.
Speaker 1: This led to a sharp split between the judges and
Speaker 1: the Ninth Circuit, although the Ninth Circuit upheld the restriction
Speaker 1: on the wearing of American flag gear, but as a
Speaker 1: classic example of what outside of school would be called
Speaker 1: the Heckler's vita, where speech is suppressed simply because some
Speaker 1: viewers are offended and threatened to react violently or disruptively.
Speaker 1: So that kind of issue is going to keep coming up,
Speaker 1: and it's not clear how it will come out. It's
Speaker 1: not like this case will affect it that much, but
Speaker 1: the broader peach cases will continue to involve a lot
Speaker 1: of on campus speech as well as off campus. So, now,
Speaker 1: were you surprised that this was eight to one? You know,
Speaker 1: it was hard to tell from oral argument just how
Speaker 1: the breakdown would happen, in part because it was hard
Speaker 1: to tell from oral argument just how broader narrow the
Speaker 1: rule would be. So I don't think that this is
Speaker 1: entirely predictable, but neither was it entirely surprised either. I
Speaker 1: do think that people who listen to our arguments saw
Speaker 1: that there was a good deal of unease on the
Speaker 1: justices part with the government having basically twenty four seven
Speaker 1: control over tens of millions of public school students. So
Speaker 1: some degree of protection for that kind of off campus speech,
Speaker 1: some extra protection beyond with offered on campus speech, I
Speaker 1: think seemed pretty likely. And then I think one reason
Speaker 1: it was a two one was precisely because it was
Speaker 1: a relatively minimalistic decision. There might not have been eight
Speaker 1: votes or perhaps not even five votes for a more
Speaker 1: categorical has there been a definible trend in school speech
Speaker 1: cases since the landmark Tinker case that allowed students to
Speaker 1: wear black arm bands to protest the Vietnam War. Conventionally
Speaker 1: this is seen as the fifth major students speech case
Speaker 1: and thinker so that's in over fifty years. So the
Speaker 1: Tinker case, who is viewed as expanding free speech rescipute
Speaker 1: because before Tinker, it wasn't clear that students have any
Speaker 1: free speech rights with regard to their schools. Then in
Speaker 1: the Phraser case, the Court said, well, but it doesn't
Speaker 1: apply to vulgarity on campus sulgarity, And then the Cool
Speaker 1: Minor case, the Court said, well, it doesn't apply to
Speaker 1: student newspapers that are run by the school because that's
Speaker 1: really the school's speech and not just the students speech.
Speaker 1: And then in the more Speed Frederick case, the court said, well,
Speaker 1: it doesn't apply to speech that without making any political
Speaker 1: or religious statements, seems to advocate the use of draws,
Speaker 1: because that's particularly dangerous in a school environment. So those
Speaker 1: three cases you might view them as cutting back and
Speaker 1: sub measure on students speech rights, or perhaps defining students
Speaker 1: speech rights in a relatively narrow way. Now this case
Speaker 1: comes around in this case does offer protection for students
Speaker 1: speech right. So as in many areas, you know, some
Speaker 1: cases come out one way, some cases come out the other.
Speaker 1: Finally you write it an amicus brief. In this case,
Speaker 1: how on target were you? Well, our brief urged the
Speaker 1: same result, urged that off campus and speech b viewed
Speaker 1: as pretty broadly protected, and it's stressed the danger of
Speaker 1: allowing schools essentially twenty seven control over student speech. And
Speaker 1: that's that is indeed the view the court took. On
Speaker 1: the other hand, what we were arguing for was actually
Speaker 1: a more categorical approach. We thought that there would be
Speaker 1: more reliable protection for student speech and for that matter,
Speaker 1: more reliable protection for UH school discretion. If the Court
Speaker 1: were to say, look, we're going to say such speeches
Speaker 1: categorically protected off campus, subject perhaps to some categorical exceptions
Speaker 1: for things like personal cruelty or threats and the like.
Speaker 1: But you know, we wanted a more rule based approach.
Speaker 1: That's not what the majority settled on. As always, Thanks
Speaker 1: so much, Eugene. That's Professor Eugene Vallic of u c
Speaker 1: l A Law School. This is Bloombird Law with June
Speaker 1: Brusso from Bloombird Radio. Should a police officer be able
Speaker 1: to follow you into your home without a warrant if
Speaker 1: he suspects you of committing a minor crime like playing
Speaker 1: the music in your car too loud? The answer from
Speaker 1: the Supreme Court is no. The majority opinion, written by
Speaker 1: Justice Elena Kagan, balanced law enforcement interests against the sanctity
Speaker 1: of the home, something she talked about during the oral arguments.
Speaker 1: So if you look at our Fourth Amendment cases, you
Speaker 1: read them as a group, over and over and over.
Speaker 1: They all talk about the home as the sacrosanct place,
Speaker 1: the place of greatest protection. Everything else is compared to
Speaker 1: that and found not to be quite the thing that
Speaker 1: the Fourth Amendment protects joining me as former federal prosecutor
Speaker 1: George Newhouse of Richard's Carrington. Let's start with the basics.
Speaker 1: What does this decision stand for? Well, the decision actually
Speaker 1: stands for the fact that the exigent circumstances exception to
Speaker 1: the search warrant requirement is limited two basically felonies. The
Speaker 1: court ruled there's not a categorical exception. It's going to
Speaker 1: be determined on a case by case basis. So the
Speaker 1: decision really is yet one more attempt to narrow and
Speaker 1: specify the circumstances under which the police can enter a
Speaker 1: home without a warrant. Tell us about the defender in
Speaker 1: this case. He was suspected of playing loud music in
Speaker 1: his car and honking his horn for no reason because
Speaker 1: there was no one around, and that struck the California
Speaker 1: Hiway patrolman in Sonoma County as suspicious as well it might,
Speaker 1: and the officer followed the individual and lit him up,
Speaker 1: attempted to pull him over, and of course he was
Speaker 1: literally a few hundred feet from his home. So the
Speaker 1: suspect rope into his driveway, into his garage and immediately
Speaker 1: attempted to close the garage door knowing that a Howe
Speaker 1: patrolman was right behind him, So he was very much
Speaker 1: fleeing apprehension. He was fleeing and arrested, and the officer
Speaker 1: pursued him, stuck his foot under the door. It was
Speaker 1: an automatic door, and the door pop back open and
Speaker 1: he entered the garage. And as soon as the officer
Speaker 1: did that, that's when he could smell alcohol and did
Speaker 1: the field sobriety tests and arrested the individual rule for
Speaker 1: drunk driving. But at that point he'd entered the garage
Speaker 1: without a warrant, And that was the issue before the court.
Speaker 1: Is that circumstance a fleeing suspect. Is that automatically an
Speaker 1: exception to the warrant requirement in the court? And I
Speaker 1: know held it's not. But are there circumstances where misdemeanor
Speaker 1: hot pursuit does entitle an officer to go into a home? Yes,
Speaker 1: the Court unequivocally. Both Justice Kagan's majority opinion and Chief
Speaker 1: Justice Robert's concurring but really dissenting opinion both say that
Speaker 1: there are circumstances under which a fleeing misdemeanant, someone who's
Speaker 1: committed a misdemeanor not a felony, a less serious offense,
Speaker 1: the police will be justified in chasing that person into
Speaker 1: the home, which, as we all know, is the face
Speaker 1: where we get the highest protection under the Fourth Amendment.
Speaker 1: A man's home is his castle. So the court clearly
Speaker 1: says it can in some cases occur, but the majority
Speaker 1: is not inclined to make a categorical rule. They're saying
Speaker 1: to the police, it's going to be on a case
Speaker 1: by case basis and will determine each case as it
Speaker 1: comes before us. And the problem with that, of course,
Speaker 1: is it doesn't give the police any true guidance. Police
Speaker 1: like to have what we call bright lines. They like
Speaker 1: to be told if you've initiated traffic stop, or you're
Speaker 1: trying to arrest the person in public and the person
Speaker 1: flees and the private property, you may pursue. And that was,
Speaker 1: of course what the talent was arguing. Court rejected it said, nope,
Speaker 1: it's not going to be automatic. It's going to be
Speaker 1: determined on a case by case basis. You mentioned the
Speaker 1: concurrence by Chief Justice John Roberts joined by Justice Samuel Alito,
Speaker 1: and really it was more like a descent. Well, it's
Speaker 1: an interesting opinion because as you correctly point out, it
Speaker 1: reads like a descent. It's very critical of the majority's
Speaker 1: refused to endorse the officers actions, which the Chief Justice
Speaker 1: seemed to feel were reasonable. Remember, the touchstone of legality
Speaker 1: police action under the Fourth Amendment is reasonableness. If the
Speaker 1: police are acting reasonably, they legitimately have no alternative, probably
Speaker 1: no time to get a warrant, then they don't need
Speaker 1: a warrant. They can act to protect people's lives and
Speaker 1: do effective law enforcement. But the Chief Justice was concerned
Speaker 1: that the court was basically excluding a whole area of
Speaker 1: legitimate law enforcement and that it was going to make
Speaker 1: it very difficult for the police to do their job.
Speaker 1: Because the Chief Justice has clearly from his opinion, he
Speaker 1: has a tremendous amount of concern, and he's concerned that
Speaker 1: police be given sufficient flexibility so they can do their
Speaker 1: jobs in the field. His opinion set out some circumstances
Speaker 1: under which basically hypothetical, as he did in the last
Speaker 1: case that we described involving the seizure of the guns
Speaker 1: from the house, a Chief Justice set out it was interesting,
Speaker 1: hypothetically said, supposed a policeman sees a suspect, he believes
Speaker 1: is committing a crime. He's not sure, by the way,
Speaker 1: whether it's a misdemeanor or a felony. And one of
Speaker 1: the things that the majority opinion does is that draws
Speaker 1: this clear line between felonies and misdemeanors and pointing out
Speaker 1: that misdemeanors aren't less serious, which they're they're less serious,
Speaker 1: and they are multiple numbers. Could the Chief Justice is
Speaker 1: pointing out, we know sometimes when the police are trying
Speaker 1: to arrest someone for committing a crime before them, they
Speaker 1: don't know whether they've committed a felony or a misdemean
Speaker 1: or how the DA is going to charge it. They
Speaker 1: only know that that person is a suspect and probable
Speaker 1: cause to believe that a crime has occurred. And the
Speaker 1: hypothetical was the police officer pulls up to the front
Speaker 1: of the yard and he sees an adult assaulting juvenile
Speaker 1: that would be probably a misdemeanor, and he jumps out
Speaker 1: of his car, and they suspect seeing the police officer,
Speaker 1: and now, of course, having read the latest Supreme Court opinion,
Speaker 1: knows that he can flee because it's only a misdemeanor,
Speaker 1: and he takes off and he jumps over offense on
Speaker 1: the property that is his. At that point he says
Speaker 1: to the cop, go way, I'm going inside, and I'm
Speaker 1: not letting you in. And the Chief Justice, his opinion, said,
Speaker 1: under those circumstances, with today's opinion, that's all the police
Speaker 1: officer can do. I mean, he can go, I suppose,
Speaker 1: and try to get a warrant. But at that point,
Speaker 1: were's the suspecting and beat and he may in fact
Speaker 1: not stay in the house. He might leave the house,
Speaker 1: so it handcuffs the police this opinion. George, Let's look
Speaker 1: at our own hypothetical to see how this decision might
Speaker 1: play out on the ground. Let's say it's a drunk
Speaker 1: driving case. By the time the officer gets the warrant,
Speaker 1: there may not be evidence of drunk driving anymore. An
Speaker 1: excellent point, exactly right. The evidence in a drunk driving
Speaker 1: case is resident in the individual's body, and that's alcohol
Speaker 1: that's being dissipated at a certain rate. And if the
Speaker 1: police have to wait two hours and in the middle
Speaker 1: of the night, even in large urban centers, that can
Speaker 1: take a long time to get a warrant. In Chief
Speaker 1: Justice Roberts covered that point as well, and at that point,
Speaker 1: the evidence may be gone and you may not be
Speaker 1: able to successfully arrest and prosecute person for drunk driving.
Speaker 1: So that's yet another example. Though a few years ago
Speaker 1: the Supreme Court actually did reject that rationale in holding
Speaker 1: that when someone was arrested for a drunk driving they
Speaker 1: needed to get a warrant before they pulled the blood
Speaker 1: from the suspect, that the suspect did not agree to
Speaker 1: have the blood drawn. What was the point if they
Speaker 1: said it during the oral arguments, I think was aldo
Speaker 1: hot pursuit has to be hot, and it has to
Speaker 1: be a pursuit. This whole notion of hot pursuit as
Speaker 1: opposed to lukewarm pursuit, What does that really mean? Are
Speaker 1: we grading the severity of the crime? And we're saying, well,
Speaker 1: if it's a misdemeanor, and it's a trivial offense, and
Speaker 1: some misdemeanors and the court listed some details. You know,
Speaker 1: cutting a plant on public land without an appropriate permit
Speaker 1: is a misdemeanor. And if you simply walked away instead
Speaker 1: of running, would that be hot pursuit or lukewarm pursuit? Now,
Speaker 1: these are blurry lines that police are gonna have a
Speaker 1: hard time discerning. The short answer is when the police
Speaker 1: have probable cost to stop and arrest someone or cite them,
Speaker 1: and they were acting within their lawful authority, and they
Speaker 1: say to the person stop, sir, or they do the
Speaker 1: traffic lights. Before this case, that person had to stop.
Speaker 1: And in California, if that person continues on, they flee,
Speaker 1: whether they're walking, running, or they jump in a hot
Speaker 1: air balloon, that's fleeing. And that would justifiably be within
Speaker 1: their rights to stop that individual, And before this case
Speaker 1: would probably be justified in going into their house to
Speaker 1: arrest them. But not now. Justice Kavanaugh in his concurrence
Speaker 1: basically said there's not that much difference between what Justice
Speaker 1: Kagan wrote and what Chief Justice Roberts road. What did
Speaker 1: he mean, because it seems like there is a difference. Well,
Speaker 1: it's an interesting point that Justice Kavanaugh was making because
Speaker 1: what he's really saying is when all this boils down
Speaker 1: and distills to essence, which is to say, an objective,
Speaker 1: was the police behavior objectively reasonable? In most cases he's suggesting,
Speaker 1: and he may be right, the police are going to
Speaker 1: be justified in entering the house to affect the arrest
Speaker 1: if there are a whole list of other factors present. Remember,
Speaker 1: exigent circumstances up to now included preventing evidence from being destroyed,
Speaker 1: capturing a clean felon, and presents a danger to the community.
Speaker 1: So there were lists of things in the case laws
Speaker 1: that police could do. In Justice Kavanaugh saying, when the
Speaker 1: case by case approach, which is articulated by Justice Kagan
Speaker 1: in our majority opinion, when that's fleshed out at the
Speaker 1: end of the day, it's going to be the same
Speaker 1: result as the Chief Justice suggesting that the police action
Speaker 1: will be legitimate. But here's the problem. The police aren't
Speaker 1: going to know when they take that action at the
Speaker 1: time whether ultimately, when the Court's second guests their behavior,
Speaker 1: it's legal or not. And the concern of the chief
Speaker 1: Justices having that out there, having that uncertainty, and given
Speaker 1: to how difficult it is to make these snap judgment
Speaker 1: decisions in real time in the field where you don't
Speaker 1: have the luxury of oral argument in time to contemplate um,
Speaker 1: it's going to impair and impede the police. They're going
Speaker 1: to air on the side of caution and let the
Speaker 1: suspect go. So in future cases, how do you think
Speaker 1: the lower courts are going to handle this. Do you
Speaker 1: think that there's enough guidance for them in the majority decision? No,
Speaker 1: I agree with the Chief Justice. I think it's the
Speaker 1: point that he's making is a very good one, which is,
Speaker 1: we really do need a bright line test here. We
Speaker 1: need more guidance. We need to clear that the drawing
Speaker 1: the line between a felony and a misdemeanor is not
Speaker 1: really relevant. If the police are acting in a lawful fashion,
Speaker 1: enforcing the law. It shouldn't matter whether it's a traffic
Speaker 1: law they're enforcing or the suspect is believed to have
Speaker 1: committed a violent felony or a robbery, and they should
Speaker 1: be authorized to act and we should be airing on
Speaker 1: the side of the police, which is what the Chief
Speaker 1: Justice is the jet thing Justice Kaganess is suggesting. No,
Speaker 1: they need to stop. They needed they can't go into
Speaker 1: that house. That house is sacrificing. So this only applies
Speaker 1: to police chasing suspect into a home. Well, two things. First,
Speaker 1: it really only applies when they were going into the
Speaker 1: home because that's the highest level of Fourth Amendment protection.
Speaker 1: And the second thing is, um, it doesn't isn't really
Speaker 1: going to alter the fleeing felon rule. Previously, most of
Speaker 1: these police chases where they're they're chasing the suspect, the
Speaker 1: person is believed to have committed a felony, and that
Speaker 1: really was a categorical approach. It didn't matter what the
Speaker 1: felony was. If you had probable cause and you're trying
Speaker 1: to arrest someone for a committing of felony, that was
Speaker 1: exigent in circumstances categorically, and that question was decided. The
Speaker 1: irony of this decision is that almost both some of
Speaker 1: those pursuits into doubt as well, because the cults are
Speaker 1: going to look at all the other circumstances. Well, this
Speaker 1: was a felony, but this person was a white collar
Speaker 1: maybe a personal was a white collar offender, okay, businessman,
Speaker 1: and he's not posing a danger to society. So I
Speaker 1: suspect that as the court's grapple with applying this decision
Speaker 1: in real life circumstances, it's going to cause a lot
Speaker 1: of trouble and there's going to be greater uncertainty. And
Speaker 1: uncertainty in law enforcement is a bad thing. We want
Speaker 1: policemen and agents to have guidance from the court so
Speaker 1: they know what their behavior should be to be lawful
Speaker 1: under the circumstances. And that's the problem with the opinion.
Speaker 1: From this opinion and the last opinion that we discussed,
Speaker 1: the officers going into the guy's house. Does that tell
Speaker 1: you which way the court is headed in these cases
Speaker 1: or not? It does. It sends a remarkable signal. Again,
Speaker 1: this was a nine oh decision. The Court is making
Speaker 1: every effort to be unanimous, even when ironically, as in
Speaker 1: this case, they really weren't. But you know, I think
Speaker 1: it's showing that the Court is really taking the Fourth
Speaker 1: Amendment very seriously and trying to give the greatest protection
Speaker 1: for individuals who once they get in their house, that's
Speaker 1: that's safe ground absent a warrant. And the Court of
Speaker 1: is sending that signal that we're gonna look at any
Speaker 1: incursions into into the castle with great scrutiny. And and
Speaker 1: B and B foe warrant. Thanks for being on the show. George.
Speaker 1: That's former federal prosecutor George Newhouse of Richard's Carrington. And
Speaker 1: that's it for the edition of the Bloomberg Lawn Show.
Speaker 1: Remember you can always the latest legal news on our
Speaker 1: Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com, slash podcast, slash Law.
Speaker 1: I'm June Grasso and you're listening to Bloomberg