WEBVTT - Profane Cheerleader Post Wins Protection 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.160 --> 0:00:12.280 The Supreme Court gave high school students something to cheer 0:00:12.320 --> 0:00:15.400 about this week of victory for the First Amendment rights 0:00:15.440 --> 0:00:18.480 of students when they post on social media. By an 0:00:18.520 --> 0:00:21.000 eight to one vote, the Court ruled that a public 0:00:21.120 --> 0:00:24.959 high school violated the Constitution when it punished a fourteen 0:00:25.040 --> 0:00:29.280 year old cheerleader for a profane snapchat rant. The Justice 0:00:29.320 --> 0:00:31.880 is said school officials have less power to regulate what 0:00:31.960 --> 0:00:35.599 students say when they're off campus and during oral arguments. 0:00:35.600 --> 0:00:38.720 Some of the justices suggested the school went too far 0:00:38.840 --> 0:00:41.720 in punishing the student with a year long suspension from 0:00:41.720 --> 0:00:45.400 the team. You're punishing her here because she went on 0:00:45.440 --> 0:00:50.320 the internet and cursed and used a curse word related 0:00:50.400 --> 0:00:55.560 to what to her unhappiness with the school and cheering right. 0:00:57.040 --> 0:01:02.440 She's competitive, she cares. She blew off steam like millions 0:01:02.440 --> 0:01:05.160 of other kids have when they're disappointed about being cut 0:01:05.200 --> 0:01:07.080 from the high school team or not being in the 0:01:07.120 --> 0:01:10.760 starting lineup. The rather narrow decision was written by Justice 0:01:10.760 --> 0:01:14.240 Stephen Bryer, who had expressed concern about a broad ruling 0:01:14.240 --> 0:01:16.960 by the Court. I'm to death of writing a stand 0:01:17.280 --> 0:01:20.480 joining me his first amendment expert Eugene Folic, a professor 0:01:20.480 --> 0:01:23.080 at u c l A Law School. So, Eugene, how 0:01:23.160 --> 0:01:26.560 much of a win is this for student speech? Considerable? 0:01:26.720 --> 0:01:30.959 Probably not complete, but considerable. The Supreme Court didn't denounce 0:01:31.000 --> 0:01:35.319 a clear rule that says off campus speech is categorically protected, 0:01:35.560 --> 0:01:39.080 or even off campus speeches categorically protected unless it's, say, 0:01:39.120 --> 0:01:42.360 a true threat of violence or something like that. Nonetheless, 0:01:42.760 --> 0:01:47.440 the Court made clear that generally speaking, off campus political 0:01:47.480 --> 0:01:51.120 and religious speech is protected, even if it might cause 0:01:51.280 --> 0:01:55.840 some pension or some disruption on campus. And it defined 0:01:55.960 --> 0:01:59.160 political speech quite broadly. So, for example, that kind of 0:01:59.240 --> 0:02:04.760 vulgar and non substantive criticism of the cheerleading program that 0:02:04.920 --> 0:02:08.520 was involved in this particular statement by the student that 0:02:08.720 --> 0:02:11.360 to the Court said, is a form of political speech 0:02:11.400 --> 0:02:14.679 because it is criticism of the school. So that's quite 0:02:14.720 --> 0:02:17.600 a significant form of protection. And I expect that in 0:02:17.680 --> 0:02:20.639 a lot of off campus speech cases, this case is 0:02:20.680 --> 0:02:22.840 going to be dispositive to the point that perhaps there 0:02:22.880 --> 0:02:25.840 won't even need to be any litigation. So the court 0:02:26.000 --> 0:02:30.520 stopped short of saying there's a categorical rule for off 0:02:30.600 --> 0:02:35.160 campus speech. Did they give schools enough guidance for what 0:02:35.440 --> 0:02:38.600 is and what isn't permissible. No, they did not give 0:02:38.639 --> 0:02:42.960 the school much guidance. They did set this precedent, this benchmark. 0:02:43.280 --> 0:02:46.960 So speech that's kind of like this, future school district 0:02:47.200 --> 0:02:49.960 and their lawyers will probably realize, you know, if the 0:02:50.000 --> 0:02:52.200 speech is quite like this, then there's not going to 0:02:52.240 --> 0:02:54.400 be much of a distinction we can draw. But if 0:02:54.400 --> 0:02:56.920 the speech is somewhat different, let's to me, because it's 0:02:57.040 --> 0:03:01.160 somewhat more disruption on campus, or maybe is more personalized 0:03:01.160 --> 0:03:04.880 to particular students or even particular teachers, you know, in 0:03:04.960 --> 0:03:07.920 principle of court might reach a different result. You know, 0:03:08.040 --> 0:03:10.240 this is the way things work often in law. Right, 0:03:10.639 --> 0:03:13.760 sometimes a court says here is a rule, But sometimes 0:03:13.760 --> 0:03:16.680 the court just says, here's our decision, and we're going 0:03:16.720 --> 0:03:19.560 to leave it to future courts to discern a rule 0:03:19.680 --> 0:03:22.280 from this case and from other such cases. That's kind 0:03:22.280 --> 0:03:25.160 of a common law sort of approach, and one that 0:03:25.280 --> 0:03:28.240 Justice Buyer, who is the author of this opinion, is 0:03:28.280 --> 0:03:32.200 often quite sympathetic towards. So it will be mostly for 0:03:32.360 --> 0:03:36.360 lower courts to develop further case law on the subject. 0:03:36.760 --> 0:03:40.200 But I'm sure they'll take very seriously this decision, and 0:03:40.200 --> 0:03:44.600 we'll recognize that off campus speech is usually generally speaking, 0:03:44.960 --> 0:03:47.320 the view it as more protected And tell us what 0:03:47.480 --> 0:03:51.400 Justice Brier said about the vulgarity of the speech here, 0:03:51.760 --> 0:03:56.240 We know that on campus schools have pretty substantial authority 0:03:56.600 --> 0:03:59.040 to punish speech because as a vulgar it's just kind 0:03:59.040 --> 0:04:01.600 of a way of teaching manners and teaching how to 0:04:02.080 --> 0:04:06.760 engage in substantive polite arguments. That's the Bethel School District 0:04:06.880 --> 0:04:10.080 versus Fraser case. But when it comes to off campus speech, 0:04:10.320 --> 0:04:13.840 just as Briar's opinion suggested that basically the vulgarity of 0:04:13.880 --> 0:04:17.400 the message is not going to be particularly relevant, especially 0:04:17.400 --> 0:04:20.440 when the message is political in some measure, Justice Briar 0:04:20.520 --> 0:04:23.520 said he was frightened to write a standard in oral arguments. 0:04:23.800 --> 0:04:28.400 Does that show in the narrowness of this opinion? Well, yeah, 0:04:28.960 --> 0:04:32.440 I think that often Justice Brier likes to have kind 0:04:32.480 --> 0:04:37.440 of flexible balancing tests rather than clear, sharp categorical rules. 0:04:37.520 --> 0:04:40.920 Different justices of different view. Justice Scalia famously was much 0:04:40.920 --> 0:04:44.400 more in favor of clearer rules. So yeah, I think 0:04:44.480 --> 0:04:47.440 just as Briar got what he wanted, which is a 0:04:47.880 --> 0:04:54.240 relatively flexible approach, but one that nonetheless offers considerable protection 0:04:54.240 --> 0:04:57.039 to student speech more complication by the ways, when he 0:04:57.040 --> 0:05:00.760 said specting death of writing a standard, UM, I think 0:05:00.760 --> 0:05:04.280 what he meant was a relatively clear standards. Sometimes lawyers 0:05:04.320 --> 0:05:08.039 call rules or law professors call rule. Sometimes you have 0:05:08.200 --> 0:05:11.560 this rule versus standard debate where some people say we 0:05:11.600 --> 0:05:14.200 need to have a clear, sharp rule and others say 0:05:14.480 --> 0:05:17.400 we need to have a flexible case by case standard. 0:05:17.960 --> 0:05:23.560 And Justice Briar's approach, notwithstanding his his oral statement oral 0:05:23.640 --> 0:05:27.680 argument really does represent what law professors would often call 0:05:27.720 --> 0:05:32.400 a standard, but one that is deliberately flexible and in 0:05:32.480 --> 0:05:37.400 some measure on not entirely predictable. Justice Thomas's dissent, What 0:05:37.480 --> 0:05:41.840 was his objection? We'll recall that Justice Thomas is the 0:05:41.880 --> 0:05:45.920 most originalist of the justices and UH in some respects 0:05:45.920 --> 0:05:48.200 when the original meaning is not that clear, one who 0:05:48.279 --> 0:05:52.240 is particularly focused on tradition h and as a result, 0:05:52.279 --> 0:05:57.000 he sometimes reaches very speech protective positions and sometimes really 0:05:57.040 --> 0:06:01.000 quite speech restrictive positions. In the more see Frederick case, 0:06:01.440 --> 0:06:05.520 he made clear that, as he understands UH, the original 0:06:05.560 --> 0:06:09.680 meaning at least of the fourteenth Amendment, UH, which of 0:06:09.720 --> 0:06:13.400 course incorporated the First Amendment against state and local government. UM. 0:06:14.880 --> 0:06:20.160 The UH public schools basically had a very broad authority 0:06:20.200 --> 0:06:25.920 over student speech, including off campus speech, so peace Sticking 0:06:26.000 --> 0:06:28.920 to that, his view is, you know, whatever doesn't matter 0:06:28.920 --> 0:06:30.760 what we think is right or what we think is 0:06:30.800 --> 0:06:36.000 consistent with broad First Amendment theory. UH. The important question 0:06:36.080 --> 0:06:38.359 is what is the best we can tell about the 0:06:38.360 --> 0:06:41.400 original meaning in the tradition here and he reads the 0:06:41.440 --> 0:06:45.560 original meaning of the fourteenth Amendment as basically leaving such 0:06:45.560 --> 0:06:48.440 a broad authority to schools. By the way, UH. In 0:06:48.480 --> 0:06:51.279 this respect he is very similar as in some other areas, 0:06:51.520 --> 0:06:55.359 to just As Hugo Black, who was also something of 0:06:55.360 --> 0:06:58.120 an original list, although generally he was seen as on 0:06:58.240 --> 0:07:01.440 the liberal wing of the court, whereas UH Thomas has 0:07:01.480 --> 0:07:05.120 seen as a conservative originalist but in various issues such 0:07:05.160 --> 0:07:07.440 as incorporation of the Bill of Rights, but also in 0:07:07.480 --> 0:07:12.160 this UH. In this case UH um UH cat and 0:07:12.240 --> 0:07:15.560 fell speech Justice Thomas and Black actually had very similar 0:07:15.600 --> 0:07:20.200 views UH. Just as Black was the one dissenter in 0:07:20.080 --> 0:07:23.000 or one dissenter, he was one of the dissenters in 0:07:23.080 --> 0:07:26.800 the tinkervieda Moin case back in nine. To be sure, 0:07:26.840 --> 0:07:30.760 he didn't focus on original meaning as much. But uh, 0:07:32.400 --> 0:07:34.880 at least to the bottom line, Justice Thomas's view and 0:07:35.560 --> 0:07:38.600 very liberal, just as Black's view, who worked quite similar 0:07:39.080 --> 0:07:41.720 on this issue. As far as the fact that this 0:07:41.840 --> 0:07:46.120 was social media, was there a struggle to um for 0:07:46.160 --> 0:07:48.840 the justices to adjust to the idea or to deal 0:07:48.920 --> 0:07:51.800 with the idea of social media the twenty four hour nature? 0:07:52.520 --> 0:07:55.120 You know, I don't think so. I think the justices 0:07:55.160 --> 0:07:58.200 are pretty acquainted with social media. Social media may be 0:07:58.920 --> 0:08:03.880 new in the an absolute sense, uh, but it's loomed 0:08:03.920 --> 0:08:06.560 so large in our minds that I don't think anybody 0:08:07.040 --> 0:08:11.720 is kind of puzzled or uncertain about about how it 0:08:11.760 --> 0:08:15.240 works and how it fits in the first commment analysis. Remember, 0:08:15.240 --> 0:08:17.520 in the packing Him case several years ago, the court 0:08:18.720 --> 0:08:23.000 upheld the rights there even of people with um sex 0:08:23.000 --> 0:08:26.720 crime convictions to use social use social media. So the 0:08:26.800 --> 0:08:29.320 court wasn't much detained by that. Now, I suppose one 0:08:29.520 --> 0:08:34.480 could um uh, I think that social that the social 0:08:34.520 --> 0:08:37.760 media nature here, or more precisely, the Internet nature of 0:08:37.760 --> 0:08:42.480 the speech might affect things because huh, speech that is 0:08:43.480 --> 0:08:47.600 written off campus, if boasted on social media, or for 0:08:47.679 --> 0:08:50.840 that matter, just on the Internet more broadly, can be 0:08:50.960 --> 0:08:53.480 read on campus and That's one thing that just this 0:08:53.720 --> 0:08:59.280 um Thomas mentioned that because off campus speech made through 0:08:59.280 --> 0:09:02.040 social media can received on campus, that often will have 0:09:02.120 --> 0:09:05.480 a greater approximate tendency to harm the school environment than 0:09:05.720 --> 0:09:09.520 will an off campus in person conversation. So there is 0:09:09.679 --> 0:09:12.480 some element to the social media or the internet nature 0:09:12.520 --> 0:09:16.440 of the speech that affects matters slightly. But the bottom 0:09:16.520 --> 0:09:19.640 line was that the court didn't treat this any differently 0:09:19.720 --> 0:09:24.640 than if she had been giving a state political speech 0:09:24.640 --> 0:09:28.199 at a rally, or if she had been, uh preaching 0:09:28.200 --> 0:09:31.400 a lay sermon. Not that presumably she would have the 0:09:31.440 --> 0:09:33.560 same topic of the same choice of words, but on 0:09:33.679 --> 0:09:37.439 some religious topic in a church. So now lower courts 0:09:37.440 --> 0:09:40.120 are going to have to grapple with this flexible approach, 0:09:40.960 --> 0:09:43.160 and I do think lower courts are going to be 0:09:43.200 --> 0:09:45.880 seeing a lot of these cases, and some of them 0:09:45.880 --> 0:09:47.960 I think are going to involve I hate to use 0:09:48.000 --> 0:09:52.320 the term bullying because it's so ill defined. It seems 0:09:52.360 --> 0:09:54.679 like it's clear, but it's still defined. And by the way, 0:09:54.679 --> 0:09:57.600 i'll Justice Alito mentioned one of the problems with attempts 0:09:57.600 --> 0:10:01.200 to restrict harassment and bullying is cisely that they're such 0:10:01.360 --> 0:10:04.320 ill defined terms and it's not clear whether they match 0:10:04.400 --> 0:10:07.200 up with any first in thement exception, but that presumably 0:10:07.240 --> 0:10:10.520 would be some cases where there is basically personal cruelty 0:10:10.760 --> 0:10:14.680 posted online about fellow classmates. Another example might be, what 0:10:14.760 --> 0:10:17.679 if there's something that is personally insulting to a teacher 0:10:17.920 --> 0:10:20.880 and perhaps a not less substantive point or let's say, 0:10:21.040 --> 0:10:24.040 insulting the teacher about calling the teacher ugly, or spreading 0:10:24.120 --> 0:10:27.040 rumors about their sex life with other adults or something 0:10:27.120 --> 0:10:29.200 like that. So that might be a question that will 0:10:29.240 --> 0:10:31.560 arrive less. Also, there are going to be lots of 0:10:31.600 --> 0:10:34.200 cases that involved on campus speech. It's not like on 0:10:34.280 --> 0:10:37.840 campus speech is entirely unprotected, and much of the reasoning 0:10:37.840 --> 0:10:40.800 of the court suggests that indeed the Tinker standard needs 0:10:40.840 --> 0:10:45.240 to be often read in a speech protective way, even 0:10:45.280 --> 0:10:48.160 on campus. So your miracle. Some years ago, there was 0:10:48.200 --> 0:10:51.520 this case called Ariano from the Ninth Circuit which involved 0:10:51.760 --> 0:10:55.120 students who are wearing American flag T shirts. And this 0:10:55.280 --> 0:10:58.120 is on Sinco Demio, and the Mexican American students viewed 0:10:58.160 --> 0:11:00.840 that is insulting, sort of threatened that there might be 0:11:00.880 --> 0:11:03.600 some fights as a result, that school said you can't 0:11:03.640 --> 0:11:06.800 wear American flag gear on sinca demyo to an American school. 0:11:07.080 --> 0:11:10.120 This led to a sharp split between the judges and 0:11:10.160 --> 0:11:13.199 the Ninth Circuit, although the Ninth Circuit upheld the restriction 0:11:13.200 --> 0:11:15.760 on the wearing of American flag gear, but as a 0:11:15.800 --> 0:11:18.280 classic example of what outside of school would be called 0:11:18.280 --> 0:11:21.360 the Heckler's vita, where speech is suppressed simply because some 0:11:21.679 --> 0:11:26.000 viewers are offended and threatened to react violently or disruptively. 0:11:26.400 --> 0:11:28.640 So that kind of issue is going to keep coming up, 0:11:28.760 --> 0:11:30.719 and it's not clear how it will come out. It's 0:11:30.760 --> 0:11:33.160 not like this case will affect it that much, but 0:11:33.400 --> 0:11:36.720 the broader peach cases will continue to involve a lot 0:11:36.760 --> 0:11:39.439 of on campus speech as well as off campus. So, now, 0:11:39.480 --> 0:11:43.520 were you surprised that this was eight to one? You know, 0:11:44.559 --> 0:11:47.320 it was hard to tell from oral argument just how 0:11:47.480 --> 0:11:50.319 the breakdown would happen, in part because it was hard 0:11:50.360 --> 0:11:53.079 to tell from oral argument just how broader narrow the 0:11:53.160 --> 0:11:55.599 rule would be. So I don't think that this is 0:11:55.880 --> 0:12:01.240 entirely predictable, but neither was it entirely surprised either. I 0:12:01.280 --> 0:12:03.520 do think that people who listen to our arguments saw 0:12:03.559 --> 0:12:07.720 that there was a good deal of unease on the 0:12:07.800 --> 0:12:11.640 justices part with the government having basically twenty four seven 0:12:11.720 --> 0:12:17.440 control over tens of millions of public school students. So 0:12:17.640 --> 0:12:21.559 some degree of protection for that kind of off campus speech, 0:12:21.600 --> 0:12:25.160 some extra protection beyond with offered on campus speech, I 0:12:25.200 --> 0:12:28.400 think seemed pretty likely. And then I think one reason 0:12:28.400 --> 0:12:30.240 it was a two one was precisely because it was 0:12:30.280 --> 0:12:34.200 a relatively minimalistic decision. There might not have been eight 0:12:34.280 --> 0:12:37.040 votes or perhaps not even five votes for a more 0:12:37.080 --> 0:12:41.440 categorical has there been a definible trend in school speech 0:12:41.480 --> 0:12:45.080 cases since the landmark Tinker case that allowed students to 0:12:45.120 --> 0:12:49.439 wear black arm bands to protest the Vietnam War. Conventionally 0:12:49.440 --> 0:12:52.959 this is seen as the fifth major students speech case 0:12:53.200 --> 0:12:55.720 and thinker so that's in over fifty years. So the 0:12:55.760 --> 0:12:59.079 Tinker case, who is viewed as expanding free speech rescipute 0:12:59.120 --> 0:13:01.920 because before Tinker, it wasn't clear that students have any 0:13:02.040 --> 0:13:04.680 free speech rights with regard to their schools. Then in 0:13:04.800 --> 0:13:07.839 the Phraser case, the Court said, well, but it doesn't 0:13:07.840 --> 0:13:11.320 apply to vulgarity on campus sulgarity, And then the Cool 0:13:11.400 --> 0:13:14.320 Minor case, the Court said, well, it doesn't apply to 0:13:14.800 --> 0:13:17.400 student newspapers that are run by the school because that's 0:13:17.400 --> 0:13:19.600 really the school's speech and not just the students speech. 0:13:19.679 --> 0:13:22.360 And then in the more Speed Frederick case, the court said, well, 0:13:22.400 --> 0:13:25.840 it doesn't apply to speech that without making any political 0:13:26.040 --> 0:13:29.199 or religious statements, seems to advocate the use of draws, 0:13:29.240 --> 0:13:32.440 because that's particularly dangerous in a school environment. So those 0:13:32.440 --> 0:13:35.079 three cases you might view them as cutting back and 0:13:35.280 --> 0:13:38.040 sub measure on students speech rights, or perhaps defining students 0:13:38.040 --> 0:13:40.720 speech rights in a relatively narrow way. Now this case 0:13:40.760 --> 0:13:43.520 comes around in this case does offer protection for students 0:13:43.559 --> 0:13:46.600 speech right. So as in many areas, you know, some 0:13:46.640 --> 0:13:49.080 cases come out one way, some cases come out the other. 0:13:49.480 --> 0:13:52.480 Finally you write it an amicus brief. In this case, 0:13:52.960 --> 0:13:58.240 how on target were you? Well, our brief urged the 0:13:58.280 --> 0:14:01.760 same result, urged that off campus and speech b viewed 0:14:01.800 --> 0:14:05.360 as pretty broadly protected, and it's stressed the danger of 0:14:05.400 --> 0:14:10.320 allowing schools essentially twenty seven control over student speech. And 0:14:10.360 --> 0:14:12.560 that's that is indeed the view the court took. On 0:14:12.600 --> 0:14:14.839 the other hand, what we were arguing for was actually 0:14:14.840 --> 0:14:17.720 a more categorical approach. We thought that there would be 0:14:18.040 --> 0:14:21.280 more reliable protection for student speech and for that matter, 0:14:21.360 --> 0:14:25.480 more reliable protection for UH school discretion. If the Court 0:14:25.520 --> 0:14:28.160 were to say, look, we're going to say such speeches 0:14:28.200 --> 0:14:32.680 categorically protected off campus, subject perhaps to some categorical exceptions 0:14:32.720 --> 0:14:35.080 for things like personal cruelty or threats and the like. 0:14:35.960 --> 0:14:39.280 But you know, we wanted a more rule based approach. 0:14:39.560 --> 0:14:42.480 That's not what the majority settled on. As always, Thanks 0:14:42.480 --> 0:14:45.840 so much, Eugene. That's Professor Eugene Vallic of u c 0:14:45.960 --> 0:14:53.840 l A Law School. This is Bloombird Law with June 0:14:53.840 --> 0:14:58.880 Brusso from Bloombird Radio. Should a police officer be able 0:14:58.920 --> 0:15:01.840 to follow you into your home without a warrant if 0:15:01.880 --> 0:15:04.800 he suspects you of committing a minor crime like playing 0:15:04.840 --> 0:15:07.760 the music in your car too loud? The answer from 0:15:07.760 --> 0:15:12.200 the Supreme Court is no. The majority opinion, written by 0:15:12.280 --> 0:15:16.800 Justice Elena Kagan, balanced law enforcement interests against the sanctity 0:15:16.840 --> 0:15:20.360 of the home, something she talked about during the oral arguments. 0:15:20.600 --> 0:15:23.880 So if you look at our Fourth Amendment cases, you 0:15:23.920 --> 0:15:26.520 read them as a group, over and over and over. 0:15:27.360 --> 0:15:31.040 They all talk about the home as the sacrosanct place, 0:15:31.160 --> 0:15:35.080 the place of greatest protection. Everything else is compared to 0:15:35.160 --> 0:15:38.360 that and found not to be quite the thing that 0:15:38.400 --> 0:15:42.160 the Fourth Amendment protects joining me as former federal prosecutor 0:15:42.240 --> 0:15:46.800 George Newhouse of Richard's Carrington. Let's start with the basics. 0:15:47.080 --> 0:15:51.080 What does this decision stand for? Well, the decision actually 0:15:51.160 --> 0:15:54.640 stands for the fact that the exigent circumstances exception to 0:15:54.720 --> 0:16:00.040 the search warrant requirement is limited two basically felonies. The 0:16:00.080 --> 0:16:03.120 court ruled there's not a categorical exception. It's going to 0:16:03.160 --> 0:16:05.880 be determined on a case by case basis. So the 0:16:06.040 --> 0:16:08.840 decision really is yet one more attempt to narrow and 0:16:08.880 --> 0:16:12.200 specify the circumstances under which the police can enter a 0:16:12.320 --> 0:16:15.640 home without a warrant. Tell us about the defender in 0:16:15.680 --> 0:16:19.640 this case. He was suspected of playing loud music in 0:16:19.680 --> 0:16:23.800 his car and honking his horn for no reason because 0:16:23.840 --> 0:16:27.200 there was no one around, and that struck the California 0:16:27.240 --> 0:16:31.520 Hiway patrolman in Sonoma County as suspicious as well it might, 0:16:32.040 --> 0:16:36.640 and the officer followed the individual and lit him up, 0:16:36.760 --> 0:16:38.800 attempted to pull him over, and of course he was 0:16:39.000 --> 0:16:41.520 literally a few hundred feet from his home. So the 0:16:41.840 --> 0:16:46.160 suspect rope into his driveway, into his garage and immediately 0:16:46.200 --> 0:16:49.400 attempted to close the garage door knowing that a Howe 0:16:49.520 --> 0:16:52.040 patrolman was right behind him, So he was very much 0:16:52.280 --> 0:16:55.840 fleeing apprehension. He was fleeing and arrested, and the officer 0:16:56.040 --> 0:16:58.360 pursued him, stuck his foot under the door. It was 0:16:58.400 --> 0:17:01.080 an automatic door, and the door pop back open and 0:17:01.160 --> 0:17:03.520 he entered the garage. And as soon as the officer 0:17:03.600 --> 0:17:06.760 did that, that's when he could smell alcohol and did 0:17:06.760 --> 0:17:09.840 the field sobriety tests and arrested the individual rule for 0:17:10.400 --> 0:17:13.399 drunk driving. But at that point he'd entered the garage 0:17:13.840 --> 0:17:16.800 without a warrant, And that was the issue before the court. 0:17:17.400 --> 0:17:22.000 Is that circumstance a fleeing suspect. Is that automatically an 0:17:22.000 --> 0:17:24.840 exception to the warrant requirement in the court? And I 0:17:24.920 --> 0:17:30.680 know held it's not. But are there circumstances where misdemeanor 0:17:30.920 --> 0:17:35.480 hot pursuit does entitle an officer to go into a home? Yes, 0:17:35.560 --> 0:17:39.560 the Court unequivocally. Both Justice Kagan's majority opinion and Chief 0:17:39.680 --> 0:17:44.480 Justice Robert's concurring but really dissenting opinion both say that 0:17:44.520 --> 0:17:48.440 there are circumstances under which a fleeing misdemeanant, someone who's 0:17:48.440 --> 0:17:51.840 committed a misdemeanor not a felony, a less serious offense, 0:17:52.080 --> 0:17:55.080 the police will be justified in chasing that person into 0:17:55.200 --> 0:17:57.320 the home, which, as we all know, is the face 0:17:57.359 --> 0:18:00.000 where we get the highest protection under the Fourth Amendment. 0:18:00.040 --> 0:18:02.720 A man's home is his castle. So the court clearly 0:18:02.760 --> 0:18:06.240 says it can in some cases occur, but the majority 0:18:06.359 --> 0:18:09.600 is not inclined to make a categorical rule. They're saying 0:18:09.640 --> 0:18:12.080 to the police, it's going to be on a case 0:18:12.119 --> 0:18:15.520 by case basis and will determine each case as it 0:18:15.600 --> 0:18:17.960 comes before us. And the problem with that, of course, 0:18:18.040 --> 0:18:22.520 is it doesn't give the police any true guidance. Police 0:18:22.840 --> 0:18:25.159 like to have what we call bright lines. They like 0:18:25.280 --> 0:18:28.680 to be told if you've initiated traffic stop, or you're 0:18:28.680 --> 0:18:31.639 trying to arrest the person in public and the person 0:18:31.720 --> 0:18:35.159 flees and the private property, you may pursue. And that was, 0:18:35.240 --> 0:18:39.119 of course what the talent was arguing. Court rejected it said, nope, 0:18:39.280 --> 0:18:40.920 it's not going to be automatic. It's going to be 0:18:41.000 --> 0:18:44.080 determined on a case by case basis. You mentioned the 0:18:44.119 --> 0:18:49.440 concurrence by Chief Justice John Roberts joined by Justice Samuel Alito, 0:18:49.960 --> 0:18:53.560 and really it was more like a descent. Well, it's 0:18:53.600 --> 0:18:56.199 an interesting opinion because as you correctly point out, it 0:18:56.280 --> 0:18:59.159 reads like a descent. It's very critical of the majority's 0:18:59.440 --> 0:19:03.320 refused to endorse the officers actions, which the Chief Justice 0:19:03.359 --> 0:19:07.040 seemed to feel were reasonable. Remember, the touchstone of legality 0:19:07.359 --> 0:19:11.159 police action under the Fourth Amendment is reasonableness. If the 0:19:11.320 --> 0:19:15.560 police are acting reasonably, they legitimately have no alternative, probably 0:19:15.560 --> 0:19:17.480 no time to get a warrant, then they don't need 0:19:17.520 --> 0:19:20.959 a warrant. They can act to protect people's lives and 0:19:21.080 --> 0:19:24.480 do effective law enforcement. But the Chief Justice was concerned 0:19:24.600 --> 0:19:28.479 that the court was basically excluding a whole area of 0:19:28.800 --> 0:19:31.640 legitimate law enforcement and that it was going to make 0:19:31.680 --> 0:19:34.560 it very difficult for the police to do their job. 0:19:34.960 --> 0:19:38.480 Because the Chief Justice has clearly from his opinion, he 0:19:38.560 --> 0:19:41.879 has a tremendous amount of concern, and he's concerned that 0:19:41.960 --> 0:19:45.040 police be given sufficient flexibility so they can do their 0:19:45.160 --> 0:19:48.400 jobs in the field. His opinion set out some circumstances 0:19:48.480 --> 0:19:51.680 under which basically hypothetical, as he did in the last 0:19:51.680 --> 0:19:54.760 case that we described involving the seizure of the guns 0:19:54.800 --> 0:19:57.119 from the house, a Chief Justice set out it was interesting, 0:19:57.200 --> 0:20:01.080 hypothetically said, supposed a policeman sees a suspect, he believes 0:20:01.080 --> 0:20:03.280 is committing a crime. He's not sure, by the way, 0:20:03.320 --> 0:20:05.879 whether it's a misdemeanor or a felony. And one of 0:20:05.920 --> 0:20:08.840 the things that the majority opinion does is that draws 0:20:08.840 --> 0:20:12.200 this clear line between felonies and misdemeanors and pointing out 0:20:12.240 --> 0:20:16.320 that misdemeanors aren't less serious, which they're they're less serious, 0:20:16.359 --> 0:20:19.600 and they are multiple numbers. Could the Chief Justice is 0:20:19.640 --> 0:20:21.960 pointing out, we know sometimes when the police are trying 0:20:21.960 --> 0:20:25.040 to arrest someone for committing a crime before them, they 0:20:25.080 --> 0:20:27.480 don't know whether they've committed a felony or a misdemean 0:20:27.560 --> 0:20:29.480 or how the DA is going to charge it. They 0:20:29.480 --> 0:20:32.160 only know that that person is a suspect and probable 0:20:32.240 --> 0:20:34.320 cause to believe that a crime has occurred. And the 0:20:34.400 --> 0:20:37.560 hypothetical was the police officer pulls up to the front 0:20:37.560 --> 0:20:40.880 of the yard and he sees an adult assaulting juvenile 0:20:41.400 --> 0:20:44.320 that would be probably a misdemeanor, and he jumps out 0:20:44.320 --> 0:20:46.959 of his car, and they suspect seeing the police officer, 0:20:47.119 --> 0:20:50.240 and now, of course, having read the latest Supreme Court opinion, 0:20:50.640 --> 0:20:53.399 knows that he can flee because it's only a misdemeanor, 0:20:53.560 --> 0:20:56.159 and he takes off and he jumps over offense on 0:20:56.240 --> 0:20:58.880 the property that is his. At that point he says 0:20:58.880 --> 0:21:01.680 to the cop, go way, I'm going inside, and I'm 0:21:01.720 --> 0:21:04.560 not letting you in. And the Chief Justice, his opinion, said, 0:21:04.680 --> 0:21:07.919 under those circumstances, with today's opinion, that's all the police 0:21:07.960 --> 0:21:10.120 officer can do. I mean, he can go, I suppose, 0:21:10.280 --> 0:21:12.160 and try to get a warrant. But at that point, 0:21:12.400 --> 0:21:15.040 were's the suspecting and beat and he may in fact 0:21:15.080 --> 0:21:17.359 not stay in the house. He might leave the house, 0:21:17.480 --> 0:21:21.040 so it handcuffs the police this opinion. George, Let's look 0:21:21.080 --> 0:21:24.280 at our own hypothetical to see how this decision might 0:21:24.359 --> 0:21:27.240 play out on the ground. Let's say it's a drunk 0:21:27.320 --> 0:21:30.960 driving case. By the time the officer gets the warrant, 0:21:31.600 --> 0:21:35.200 there may not be evidence of drunk driving anymore. An 0:21:35.200 --> 0:21:38.639 excellent point, exactly right. The evidence in a drunk driving 0:21:38.680 --> 0:21:41.600 case is resident in the individual's body, and that's alcohol 0:21:41.720 --> 0:21:44.159 that's being dissipated at a certain rate. And if the 0:21:44.200 --> 0:21:46.680 police have to wait two hours and in the middle 0:21:46.720 --> 0:21:49.479 of the night, even in large urban centers, that can 0:21:49.520 --> 0:21:51.480 take a long time to get a warrant. In Chief 0:21:51.480 --> 0:21:55.119 Justice Roberts covered that point as well, and at that point, 0:21:55.359 --> 0:21:57.199 the evidence may be gone and you may not be 0:21:57.280 --> 0:22:01.280 able to successfully arrest and prosecute person for drunk driving. 0:22:01.359 --> 0:22:04.280 So that's yet another example. Though a few years ago 0:22:04.320 --> 0:22:08.240 the Supreme Court actually did reject that rationale in holding 0:22:08.280 --> 0:22:11.359 that when someone was arrested for a drunk driving they 0:22:11.400 --> 0:22:14.119 needed to get a warrant before they pulled the blood 0:22:14.160 --> 0:22:17.000 from the suspect, that the suspect did not agree to 0:22:17.040 --> 0:22:19.439 have the blood drawn. What was the point if they 0:22:19.440 --> 0:22:21.879 said it during the oral arguments, I think was aldo 0:22:21.960 --> 0:22:23.960 hot pursuit has to be hot, and it has to 0:22:24.000 --> 0:22:27.680 be a pursuit. This whole notion of hot pursuit as 0:22:27.680 --> 0:22:31.440 opposed to lukewarm pursuit, What does that really mean? Are 0:22:31.440 --> 0:22:34.480 we grading the severity of the crime? And we're saying, well, 0:22:34.760 --> 0:22:37.639 if it's a misdemeanor, and it's a trivial offense, and 0:22:37.720 --> 0:22:41.119 some misdemeanors and the court listed some details. You know, 0:22:41.400 --> 0:22:45.000 cutting a plant on public land without an appropriate permit 0:22:45.160 --> 0:22:48.360 is a misdemeanor. And if you simply walked away instead 0:22:48.359 --> 0:22:51.920 of running, would that be hot pursuit or lukewarm pursuit? Now, 0:22:51.920 --> 0:22:54.480 these are blurry lines that police are gonna have a 0:22:54.480 --> 0:22:57.920 hard time discerning. The short answer is when the police 0:22:58.000 --> 0:23:02.280 have probable cost to stop and arrest someone or cite them, 0:23:02.440 --> 0:23:04.880 and they were acting within their lawful authority, and they 0:23:04.920 --> 0:23:07.720 say to the person stop, sir, or they do the 0:23:07.760 --> 0:23:11.359