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

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Speaker 2: Chicago residents are now documenting violent encounters with federal agents,

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Speaker 2: from the use of tear gas on protesters, to vehicle

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Speaker 2: crashes to forceful takedowns, all on video.

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Speaker 1: That you don't know what's going on.

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Speaker 2: Federal Judge Sarah Ellis said the images she's seen indicate

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Speaker 2: her order restricting ICE agent's use of force was being ignored.

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Speaker 2: The judge issued a new order on Friday that federal

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Speaker 2: agents have to turn their body cameras on when making

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Speaker 2: arrests or interacting with the public. Here's Illinois Governor J. B. Pritzker.

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Speaker 3: I think the judge reacted to that properly by ordering

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Speaker 3: that now the federal agents are required to have body

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Speaker 3: cameras on them because they clearly lie about what goes on.

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Speaker 2: Judge Ellis also ordered immigration officials to testify in her

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Speaker 2: courtroom today and answer questions about the aggressive tactics. My

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Speaker 2: guest is Leon Fresco, a partner at Holland and Knight

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Speaker 2: and an expert in immigration law. Leon explain what's been

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Speaker 2: happening in Chicago with ICE.

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Speaker 4: So, what's been happening in Chicago's all based on an

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Speaker 4: operation called Operation Midway Blitz, and that operation started early

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Speaker 4: in October, where there was a deployment of all kinds

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Speaker 4: of federal troops. There was ICE, there was CBP, there

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Speaker 4: was National Guard troops into the Chicago area to try

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Speaker 4: to ostensively stop violent protests, help immigration enforcement do their

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Speaker 4: job stop crying. There's a lot of different justifications that

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Speaker 4: were given for this, but in any case, there was

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Speaker 4: immediate lawsuits by the State of Illinois and the City

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Speaker 4: of Chicago, and there's multiple findings, ones that had to

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Speaker 4: do with the use of force and how people were operating.

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Speaker 4: And so there were orders that were given by the

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Speaker 4: judge with regards to having to use body cameras so

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Speaker 4: that the agents wouldn't just be operating without any accountability there.

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Speaker 4: And the judge was hearing arguments today about the fact

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Speaker 4: that body camera uses wasn't happening and was basically saying, look,

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Speaker 4: you're going to be held in concept of court if

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Speaker 4: you don't use these body cameras. Then there's also some

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Speaker 4: debate about tear gas being used and whether that's proper

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Speaker 4: to be used during the protests, and so the judge

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Speaker 4: also had ordered the agents to stop dispersing peaceful crowds

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Speaker 4: and ban the use of tear gas on people who

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Speaker 4: are in a threat and so both of those are

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Speaker 4: part of this overall litigation that involves also limitations on

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Speaker 4: the use of the National Guard, but specifically with regard

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Speaker 4: to the use of force by federals. This is the

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Speaker 4: immediate concern is the use of body cameras, especially when

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Speaker 4: there's use of force, and also the use of tear

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Speaker 4: gas and chemical agents without proper justification for it.

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Speaker 2: Yeah, So last Friday, the judge issued the additional order

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Speaker 2: about the body cams because she was concerned that ICE

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Speaker 2: wasn't obeying her first order that banned the use of

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Speaker 2: tear gas and other munitions against protesters who are not

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Speaker 2: posing an immediate threat. And then she sees all this

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Speaker 2: video of the use of tear gas that the ICE

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Speaker 2: agents didn't listen to her.

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Speaker 4: Correct, That was the concern is she was telling the

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Speaker 4: government attorneys in court, hey, are you following my order?

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Speaker 4: And she said she was caught a little startled after seeing,

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Speaker 4: as you said, these TV images of street confrontations that

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Speaker 4: involved teergas. And so they had witnesses from ICE and

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Speaker 4: from CBP saying that they're all going to be wearing

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Speaker 4: body cameras now and that this isn't going to be

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Speaker 4: something that's going to happen any longer that they will

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Speaker 4: respect or order. But we'll see again if there's just

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Speaker 4: another injunction that is shoo, or if there's actually content

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Speaker 4: order that issued, or where this judge is going to

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Speaker 4: go here. But certainly, I think no matter what side

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Speaker 4: you stand on this, there's certainly been an escalation and

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Speaker 4: detention in Chicago, and we will have to see how

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Speaker 4: this all plays out, whether the courts will be able

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Speaker 4: to resolve this escalation on their own, or how it

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Speaker 4: will end up getting results.

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Speaker 2: The ICE agents are camouflaged with masks, you can't tell

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Speaker 2: who's who. Could she issue individual contempt citations against specific

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Speaker 2: Ice officers?

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Speaker 4: Absolutely, I mean, at the end of the day, there's

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Speaker 4: multiple remedies here in terms of, yes, one contempt of

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Speaker 4: court against the ICE leadership first of all if she

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Speaker 4: can't identify the individual people, but also against the individual

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Speaker 4: ICE agents. And then there's certainly claims that individuals can

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Speaker 4: file under the Federal Thwart Claims Act or Bivens, which

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Speaker 4: is the remedy that's created when federal officers personally violate

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Speaker 4: constitutional rights. And so from that perspective, there are multiple

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Speaker 4: claims that can be made, both individually in separate lawsits.

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Speaker 4: But even in this area, content orders can be issued.

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Speaker 4: And the thing with these content orders is those can

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Speaker 4: either have a financial component to it or they can

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Speaker 4: actually have, in a very unlikely but theoretically possible scenarioid

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Speaker 4: prison component to it. And so from that perspective, it

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Speaker 4: does benefit people to follow these orders because unless they

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Speaker 4: get those orders overturned by an appellate courts, the judge

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Speaker 4: has that kind of content authority, is.

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Speaker 2: The Trump administration I or they can think that the

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Speaker 2: judge doesn't have the authority to tell them how to

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Speaker 2: carry out their actions.

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Speaker 4: Well, I think this is all going to be part

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Speaker 4: and parcel of the litigation as it goes to the

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Speaker 4: Supreme Court. Is they're going to say that the judge

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Speaker 4: certainly has authority in terms of issuing an injunction and

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Speaker 4: enforcing their injunction, but they're going to say that at

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Speaker 4: the end of the day, the judge's injunction was wrongly issued,

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Speaker 4: that there isn't this constitutional right to have body cameras

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Speaker 4: that's going to be the argument that Trump administration makes

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Speaker 4: is that may be something that Congress can put as

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Speaker 4: a requirement, or that may be something that the agencies

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Speaker 4: themselves can put as a requirement. But whether the judge

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Speaker 4: actually has an enforceable manner in which to enforce this

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Speaker 4: body camera obligation or even the tear gas obligation. They

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Speaker 4: may say, Look, the judge exceeded her legal mandate under

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Speaker 4: either Bivins or under the Federal Toward Claims Act to

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Speaker 4: come in and say, here are my specific remedies for

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Speaker 4: these issues. And judge can perhaps say, here is a

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Speaker 4: specific violation that occurred and punished that specific violation. But

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Speaker 4: to issue an injunction with regard to how one can

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Speaker 4: use force or with regard to how one has to

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Speaker 4: document that use of force, that may be considered an

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Speaker 4: overstepping of the bounds. But we'll have to wait and see.

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Speaker 4: I mean, judges have issued those kinds of orders in

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Speaker 4: the past, and we'll just have to see. Not so

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Speaker 4: much the Seventh Circuit, but as the Supreme Court actually

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Speaker 4: wants the weigh in and limit the abilities that the

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Speaker 4: judges have to issue these prospective enforcement orders that limit

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Speaker 4: the enforcement authorities of the federal government.

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Speaker 2: As of today, we have conflicting decisions from the Seventh

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Speaker 2: Circuit and the Ninth Circuit. So let's start with the

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Speaker 2: Seventh Circuit's decision from last Thursday extending the order that

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Speaker 2: blocks Trump from deploying National Guard troops in Chicago. And

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Speaker 2: the three judge panel consisted of a Trump appointee, an

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Speaker 2: Obama appointee, and a George H. W. Bush appointee.

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Speaker 4: Well, again, this was the case that involved both the

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Speaker 4: federalization of deployment and the National Guard deployment in the

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Speaker 4: area of Chicago or of the state of Illinois. And

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Speaker 4: the issue was, first of all, was this subject to

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Speaker 4: judicial review? Because the Trump administration has been arguing that

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Speaker 4: this isn't subject to judicial review and that this should

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Speaker 4: be an unreviewable discretion. The court said, no, we actually

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Speaker 4: when the president wants to operationalize a state guard in

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Speaker 4: contravention of the wishes of the state, that that is

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Speaker 4: a reviewable situation that has specific fractual predicates that the

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Speaker 4: courts can review and that the president's discretion is not absolute.

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Speaker 4: There and so then it starts asking the questions about

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Speaker 4: the statue, which talk about when a president can operationalize

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Speaker 4: the state National Guard in contravention of the wishes of

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Speaker 4: the state. So that's is there a rebellion or is

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Speaker 4: there danger of rebellion? And the court rules here that

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Speaker 4: knows there was protests, but those protests aren't rebellion. There

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Speaker 4: may be, you know, some political opposition, but that's not

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Speaker 4: designed to actually overturn the government of the United States

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Speaker 4: or to have a coup or some kind of insurrection,

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Speaker 4: So that's not going to be enough to do that.

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Speaker 4: And then it asks, okay, well, is there an inability

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Speaker 4: to execute federal laws? And here the courts basically took

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Speaker 4: the language of DHS against it, where DHS has been saying, hey,

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Speaker 4: we're having record immigration enforcement. We're having a lot of

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Speaker 4: success in arrests and deportations, and so the court says, well,

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Speaker 4: if you have all of that record success, then this

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Speaker 4: must mean you don't have an inability to execute the

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Speaker 4: federal laws. And so then you don't need this ice

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Speaker 4: can operate without the need for guard to protect it.

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Speaker 4: And then also the court ruled that the local and

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Speaker 4: state law enforcement was able to manage their protests without

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Speaker 4: this federal military aid. So you took all of those factors,

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Speaker 4: and the court ultimately ruled. The Seventh Circuit ultimately ruled

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Speaker 4: that the District court judge was correct that there was

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Speaker 4: a harm to illinois constitutional right by taking the Guard

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Speaker 4: and operationalizing it against Illinois's wishes, and that that harm

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Speaker 4: outweighs the federal interest in deploying the Guard. And so

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Speaker 4: they said, yes, you can federalize the Guard, but you

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Speaker 4: can't deploy the Guard in Illinois pending further proceedings. And

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Speaker 4: so now the Supreme Court is looking at it, and

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Speaker 4: briefing is scheduled to be finalized by the end of Monday,

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Speaker 4: the twentieth, and then the Supreme Court will decide what

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Speaker 4: it's going to do. Is it going to issue a

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Speaker 4: temporary say that allows the Guard to keep operating, or

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Speaker 4: is it going to issue an order saying we're going

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Speaker 4: to consider this on an expedited basis and not issue

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Speaker 4: a stay. So it'll be very interesting to see this

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Speaker 4: week what happened.

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Speaker 2: Could they just ignore it. They could ignore they're not

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Speaker 2: taking any action at all.

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Speaker 4: They could just take no action at all, and you know, hey,

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Speaker 4: we are in a government shutdown, so you never know,

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Speaker 4: they may say, hey, look we're we're not getting paid,

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Speaker 4: we're not doing any cases. Well, we're not getting paid.

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Speaker 4: But I doubt that will happen. If I had to

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Speaker 4: make a prediction, I do think they will probably, as

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Speaker 4: they've been very differential to the president, at least conduct

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Speaker 4: expedited briefings to come up with a decision. If not,

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Speaker 4: even more likely potentially just allow the President to continue

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Speaker 4: with this deployment without any explanation, subject to better briefing

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Speaker 4: in the meantime, because I think what worries then is

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Speaker 4: what if things really did get out of hand, that

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Speaker 4: there was an injunction and now you couldn't do anything.

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Speaker 4: And so I think the Supreme Court might have this

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Speaker 4: practical concern and they'll say, look at the moment, let's

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Speaker 4: not place any limitations on deployment, and then let's have

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Speaker 4: some very detailed briefing where we can figure this out

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Speaker 4: long term. That's where I think this is most likely

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Speaker 4: to go if I had to make a prediction, but

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Speaker 4: I couldn't say for sure.

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Speaker 2: And coming up next, we're going to talk about the

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Speaker 2: Ninth Circuit's decision, which is the opposite of the Seventh

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Speaker 2: Circuits decision, meaning that Trump can send federal troops into Portland, Oregon,

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Speaker 2: but not into Chicago, Illinois, at least at this point.

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Speaker 2: That's coming up next on the Bloomberg Law Show. I'm

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Speaker 2: June Grosso. When you're listening to Bloomberg, it's a major

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Speaker 2: boost for the administration's effort to send the military into

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Speaker 2: democratic led cities. The Ninth Circuit Court of Appeals, in

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Speaker 2: a divided opinion, is allowing President Trump to deploy troops

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Speaker 2: to Portland, Oregon, to counter protests against his immigration crackdown.

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Speaker 2: The two to one Appella decision focused on a series

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Speaker 2: of violent acts by protesters starting in early June at

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Speaker 2: a single ice facility outside downtown Portland. The city and

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Speaker 2: state argued those incidents were isolated and had been handled

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Speaker 2: effectively by local law enforcement, but the appeals court agreed

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Speaker 2: with the administration. Now last week, on Thursday, the Seventh

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Speaker 2: Circuit Court of Appeals ruled that the Trump administration could

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Speaker 2: not send troops into Chicago, Illinois. I've been talking to

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Speaker 2: immigration attorney Leon Fresco Leon tell Us about this Ninth

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Speaker 2: Circuit decision. The same basic facts, different city, different court.

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Speaker 4: Correct. So the Ninth Circuit actually ruled differently than the

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Speaker 4: Seventh Circuit. And even though it's the same statute ten Usc.

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Speaker 4: Twelve four h six, which is the federalization of National

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Speaker 4: Guard statutes, the difference here is that two out of

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Speaker 4: the three judges, they were judges appointed by Trump. On

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Speaker 4: the Ninth Circuit ruled that the president's actions were likely

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Speaker 4: lawful under this section twelve four to zero six, which

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Speaker 4: permits federalization when the president is quote unable with the

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Speaker 4: regular forces to execute the laws of the United States.

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Speaker 4: And what the court ruled here is they basically created

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Speaker 4: the standard. And we were talking about this with the

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Speaker 4: Seventh Circuit and the Supreme Court what standard would be

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Speaker 4: created in terms of difference, and they decided to use

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Speaker 4: a standard called colorable assessment of the facts and law

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Speaker 4: within a range of honest judgment. And so if the

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Speaker 4: president has a colorable assessment of the facts in law

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Speaker 4: within a range of honest judgment, which is a highly

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Speaker 4: deferential standard, then the president's assessment that there is violence

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Speaker 4: that needs to be dealt with is going to be

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Speaker 4: the to And so that executive judgment in national security

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Speaker 4: matters was deferred to here and the court issued as

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Speaker 4: stay saying that the National Guard can continue in the

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Speaker 4: organ case.

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Speaker 2: So did they just make up that standard to apply

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Speaker 2: that standard here?

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Speaker 4: Basically? Basically obviously there wasn't a case like this before,

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Speaker 4: and so the court took a standard but way very

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Speaker 4: similar standard in the visa adjudication front. When you try

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Speaker 4: to sue for visas, it's this sort of facially legitimate

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Speaker 4: and bonified standard. And even that standard has been taken

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Speaker 4: away almost to where there's no depending on the context,

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Speaker 4: there's basically no judicial review here. They've taken a very

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Speaker 4: similar deferential standard colorable assessment of facts in law within

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Speaker 4: a range of honors judgment similar concept basically saying unless

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Speaker 4: the president is telling you they're acting illegally, if they

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Speaker 4: basically have any facts to support it, then you or

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Speaker 4: to the president. And here the court said, look, there

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Speaker 4: were facts, there were months of riots in Portland. You

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Speaker 4: didn't just have to look at the minutes before the judgment,

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Speaker 4: you could look at the months before. And because of that,

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Speaker 4: the Court said there was sufficient evidence here to permit

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Speaker 4: difference and to permit the National Guard to be deployed.

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Speaker 2: So is it because of a difference in the facts

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Speaker 2: in the two cases or a difference in the standard.

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Speaker 4: That it's a difference. It's a difference in the standard

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Speaker 4: of defference being given to the president. So in the

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Speaker 4: Seventh Circuit, they just analyzed the facts and they're basically

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Speaker 4: a clearly erroneous standpoint, and they said the district judge

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Speaker 4: wasn't clearly erroneous in deciding that there were no reasons

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Speaker 4: that the federal law couldn't be enforced in the Chicago area. Here,

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Speaker 4: the court added, difference is that you can't just look

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Speaker 4: at it that way. You actually have to start with

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Speaker 4: a standard that the president wins unless you show that

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Speaker 4: the president wasn't in this highly deferential standard of colorable

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Speaker 4: assessment of the facts in law within a range of

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Speaker 4: honors judgments. And so the court did look at the

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Speaker 4: facts of Oregon and said, look here in Oregon, there

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Speaker 4: was a situation where there were months of assaults and

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Speaker 4: arts and attempts and docsing a federal agent. And so

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Speaker 4: because of that, that was enough to trigger this and

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Speaker 4: they're not going to disturb the president's determination there, and

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Speaker 4: that was two to one. There wasn't descent where the

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Speaker 4: descent said that at the end of the day, there

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Speaker 4: isn't any difference. That's permitted in this there wasn't a

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Speaker 4: president emergency. The protests were small and peaceful, and the

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Speaker 4: states have sovereignty and there's constitutional limits, just all the

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Speaker 4: stuff the Seventh Circuit said. And so we'll see on

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Speaker 4: an non bank or what happens with the Supreme Court now. Anyway,

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Speaker 4: probably this case just sits there as persuasive until the

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Speaker 4: Supreme Court decided something, but lots the aagency.

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Speaker 2: The judge who dissented, a Clinton An appointee, Susan Graber,

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Speaker 2: suggested a swift on bank review. Quote above all, I

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Speaker 2: asked those who are watching this case unfold to retain

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Speaker 2: faith in our judicial system for just a little longer.

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Speaker 2: Very unusual.

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Speaker 4: It definitely doesn't hurt to ask for the en banc

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Speaker 4: panel for the lawyers for Oregon. But the problem is,

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Speaker 4: we're going to get some guidance pretty soon from the

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Speaker 4: Supreme Court in the Chicago case, and that's going to

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Speaker 4: figuratively and literally trump anything that happened from the Ninth

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Speaker 4: Circuits standpoint. But I think you have to just play

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Speaker 4: out the string in the way the schedule works, and

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Speaker 4: so here you would normally ask for n bank review.

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Speaker 4: You'd ask for it here in this case.

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Speaker 2: Okay, so Leon, So do you think that the Trump

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Speaker 2: administration will now jump to the Supreme Court and say, hey,

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Speaker 2: we have two conflicting opinions.

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Speaker 4: Well, you're already there. The briefing was already required of

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Speaker 4: Chicago as of the end of today. So I do

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Speaker 4: think they'll do a notice of supplement authority that says, hey,

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Speaker 4: here's this great Ninth Circuit decision for us, so please

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Speaker 4: let us know what's going on.

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Speaker 2: Let's talk about some other immigration issues. There's a new

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Speaker 2: report that nearly as many migrants have died in detention

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Speaker 2: so far this year than over the four years of

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Speaker 2: the Biden administration. So you've had ICE reporting twenty detainee

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Speaker 2: deaths in custody since Trump took office, compared to twenty

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Speaker 2: four deaths in the Biden administration. There are lots of

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Speaker 2: complaints about the conditions in ICE custody.

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Speaker 4: I would say there's multiple factors going on. So the

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Speaker 4: first and most important is when you have more people

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Speaker 4: in custody, more people will perish in custody, because that's

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Speaker 4: just an actuarial table situation. And so you have more

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Speaker 4: people in custody than ever before. You have over sixty

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Speaker 4: thousand people in custody right now, and that was never

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Speaker 4: anywhere close to that in the administration. You have to

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Speaker 4: remember that during the first two years of the Biden

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Speaker 4: administration you were dealing with COVID and so there was

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Speaker 4: very few people in immigration detention at all during the

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Speaker 4: COVID era. So that's one issue, and then the second

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Speaker 4: issue is during the last two years, the detention centers

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Speaker 4: were much more short term in terms of what they

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Speaker 4: were doing is taking people who had come across the border,

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Speaker 4: detaining them for some period of time, and then either

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Speaker 4: immediately removing them or letting them into the United States,

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Speaker 4: which was called guidgen release. And so from that perspective,

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Speaker 4: you're going to have a lot fewer debts just because

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Speaker 4: the amount of time in detention is much lower per person.

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Speaker 4: So even if you have a lot of people that

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Speaker 4: the amount of time matters. But now you have more

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Speaker 4: people for more time. You have people being detained until

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Speaker 4: they either win their case or they are deported. You

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Speaker 4: have more people in the tention, you have more people

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Speaker 4: in detention in facilities that perhaps cannot hold that many people,

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Speaker 4: and you have a shortage of health professionals. Ice admit

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Speaker 4: that so they're hiring over forty new health professionals, including doctors, nurses, psychiatrists,

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Speaker 4: and pharmacists to try to meet this shortage of care.

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Speaker 4: And so that's what's causing the debt is you have

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Speaker 4: more people to pain for a longer period of time

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Speaker 4: with fewer health professionals. This is unfortunately going to lead

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Speaker 4: to more deaths of people in attention.

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Speaker 2: A terrible situation, A terrible situation all around. Let's talk

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Speaker 2: about another report, also bad news. A new study released

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Speaker 2: Friday said the immigration enforcement policies will decrease the country's

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Speaker 2: workforce by fifteen million people over the next decade. I mean,

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Speaker 2: is this being considered at all in Trump's immigration crackdown?

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Speaker 2: The need for workers?

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Speaker 4: So this is kind of a tricky subject, I would say,

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Speaker 4: amongst everybody in the in this space, because there are

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Speaker 4: so many subtexts to this. You have, first of all,

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Speaker 4: some groups of people who say, that's great, we want

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Speaker 4: fewer people, and we want fewer people because we think

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Speaker 4: that fewer people means that there will be a higher

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Speaker 4: demand for the workers that are here, which will raise

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Speaker 4: the wages of workers that are here. And yes, there's

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Speaker 4: certainly some truth to that. But remember that the economy

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Speaker 4: is not static, meaning there's not just a set number

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Speaker 4: of jobs. Because if that was true, then whatever the

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Speaker 4: population was in eighteen hundred, we would have unemployment that

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Speaker 4: is equal to the amount of people we have now

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Speaker 4: in twenty twenty five minus the amount of people at

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Speaker 4: eighteen hundred. So it obviously doesn't work that way. It's

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Speaker 4: not that that when there's more people there's more unemployment,

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Speaker 4: because those people create jobs. They need things, they need aircuts,

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Speaker 4: they need mechanics, they need plumbers, et cetera. So it

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Speaker 4: creates a cyclical thing. But having said all of this,

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Speaker 4: there are some long term tensions in terms of mechanization, AI, automation,

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Speaker 4: other things of that nature, which I think no one

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Speaker 4: is talking about, and so we don't actually know are

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Speaker 4: we going to need more or less workers moving forward.

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Speaker 4: This is a big tension that neither the left nor

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Speaker 4: the right talks about when they talk about this immigration issue.

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Speaker 4: And then another tension that I think the right deals

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Speaker 4: with sometimes is they'll say, we need more Americans to

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Speaker 4: have babies, we don't want more immigrants coming in. And

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Speaker 4: so that's a separate sort of social argument that has

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Speaker 4: all kinds of undercurrents that I don't like to deal

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Speaker 4: with an illegal show. So those are the debates. Where

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Speaker 4: are the people, I mean, should we have more or

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Speaker 4: less people? Period? If we should, should they be American

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Speaker 4: born people or people who are supplemented through immigration? And

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Speaker 4: then third, do we have anybody who actually has any

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Speaker 4: idea what a labor force will look like ten years

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Speaker 4: from now? So does that even matter if we have

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Speaker 4: more or less people? And I think that's where really

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Speaker 4: the thought needs to be given at all. There's no

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Speaker 4: thought being given to this by any leaders because this

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Speaker 4: is really the issue that should then be driving what

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Speaker 4: you're doing with immigration policy.

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Speaker 2: It seems doubtful that any of those considerations were behind

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Speaker 2: Trump's immigration policy. Thanks so much, Leon. As always, that's

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Speaker 2: Leon Fresco of Honda Night. Coming up next on The

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Speaker 2: Bloomberg Law Show, the Supreme Court will decide when police

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Speaker 2: officers can enter a home to respond to an emergency.

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Speaker 2: I'm June Grosso. When you're listening to Bloomberg. Police didn't

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Speaker 2: have a warrant when they I entered the home of

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Speaker 2: an army veteran in Montana, but they weren't there to

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Speaker 2: arrest William Trevor case. They were there to render emergency aid.

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Speaker 2: His ex girlfriend had called police saying he had a

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Speaker 2: loaded handgun and had threatened to commit suicide. The police knocked,

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Speaker 2: they yelled, they waited forty minutes, and then they went in.

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Speaker 2: The question before the Supreme Court was what's the standard

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Speaker 2: for police answering to help people in an emergency. Justice

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Speaker 2: is from across the ideological spectrum seemed to think that

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Speaker 2: the officers were right to go in on these facts.

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Speaker 5: That's not a question of whether they could dispense with

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Speaker 5: a warrant requirement. If there's no probable cause, then they

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Speaker 5: can't get a warrant. It seems to me that if

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Speaker 5: the police could not enter this house based on the

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Speaker 5: facts that they knew, then I don't know when the

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Speaker 5: police are ever going to be able to enter a

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Speaker 5: house to prevent somebody from committing suicide. What more would

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Speaker 5: they need here? They need to be able to look

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Speaker 5: through the window and see them with a gun and

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Speaker 5: pointed to his head, or they need to see a

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Speaker 5: dead body on the floor. What more did they need?

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Speaker 2: And Justice Brett Kavanaugh questioned the defense attorney about a

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Speaker 2: possible tragic outcome if police chose not to enter the home.

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Speaker 6: Well, if they, after deliberations, walk away and he commits suicide,

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Speaker 6: I mean, what are you thinking then it's the officers.

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Speaker 4: Would be that would be unfortunate and tragic. But we

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Speaker 4: are trying to strike a balance.

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Speaker 6: Between them, and the officers need some clarity, I would

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Speaker 6: think in circumstances like this about what they can do

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Speaker 6: and what they can't do. And it seems like they

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Speaker 6: thought about it carefully and decided that the risk was

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Speaker 6: sufficiently high at Justice Jackson's point, and that harm that

437
00:26:51,720 --> 00:26:55,720
Speaker 6: would occur was sufficiently substantial that they should go in.

438
00:26:55,840 --> 00:26:58,440
Speaker 6: And by the way, they're going in at great risk themselves.

439
00:26:59,000 --> 00:27:02,480
Speaker 6: Of course, you know this is not just of course,

440
00:27:02,480 --> 00:27:06,119
Speaker 6: such is pretextually looking for a crime, or going in

441
00:27:06,160 --> 00:27:09,760
Speaker 6: for some other pretextual reason, or going into you know,

442
00:27:09,920 --> 00:27:13,800
Speaker 6: for it's going in really to help someone.

443
00:27:15,040 --> 00:27:18,480
Speaker 2: My guest is former federal prosecutor Robert Mintz, a partner

444
00:27:18,560 --> 00:27:23,320
Speaker 2: maccarter and English Bob. So police normally need a warrant

445
00:27:23,480 --> 00:27:27,720
Speaker 2: to enter home, but there are some emergency situations that

446
00:27:27,840 --> 00:27:30,160
Speaker 2: are exceptions. Tell us about that.

447
00:27:31,359 --> 00:27:35,000
Speaker 7: So there is a so called emergency Aid exception to

448
00:27:35,080 --> 00:27:38,000
Speaker 7: the Fourth Amendment which allows police officers to conduct a

449
00:27:38,119 --> 00:27:42,639
Speaker 7: warrantless search if they have reasonable suspicion that there is

450
00:27:42,680 --> 00:27:46,399
Speaker 7: an emergency and an immediate need to protect others or

451
00:27:46,440 --> 00:27:48,240
Speaker 7: themselves from harm.

452
00:27:48,200 --> 00:27:50,119
Speaker 2: And tell us about the facts in this case.

453
00:27:50,440 --> 00:27:53,720
Speaker 7: The defendant in this case, William Trevor Case, was an

454
00:27:53,840 --> 00:27:58,760
Speaker 7: army veteran who had a girlfriend who contacted police suggesting

455
00:27:59,000 --> 00:28:02,840
Speaker 7: that mister Case might be suicidal. Officers arrived at mister

456
00:28:02,920 --> 00:28:06,320
Speaker 7: Case's house around nine pm, and they were familiar with

457
00:28:06,359 --> 00:28:09,760
Speaker 7: his history of alcohol abuse and certain mental health issues.

458
00:28:10,000 --> 00:28:13,159
Speaker 7: The ex girlfriend had told police that mister Case had

459
00:28:13,200 --> 00:28:16,040
Speaker 7: a loaded gun, he had threatened to harm police if

460
00:28:16,080 --> 00:28:18,800
Speaker 7: she tried to send officers to his home, and she

461
00:28:18,960 --> 00:28:21,679
Speaker 7: claimed before she hung up with the police that she

462
00:28:21,680 --> 00:28:24,480
Speaker 7: had heard a pop and then silence and was concerned

463
00:28:24,520 --> 00:28:27,879
Speaker 7: that mister Case had actually pulled the trigger. The officers

464
00:28:28,000 --> 00:28:31,240
Speaker 7: arrived at mister Case's door, they yelled, they shine flashlights

465
00:28:31,240 --> 00:28:32,000
Speaker 7: through the windows.

466
00:28:32,200 --> 00:28:33,639
Speaker 1: They could see empty beer.

467
00:28:33,440 --> 00:28:37,879
Speaker 7: Cans, an empty handgun, holster, and a notepad with handwriting,

468
00:28:38,160 --> 00:28:40,680
Speaker 7: which the officers believed at the time was a.

469
00:28:40,560 --> 00:28:42,200
Speaker 1: Possible suicide note.

470
00:28:42,520 --> 00:28:46,240
Speaker 7: After about forty minutes, they entered through the unlocked front door,

471
00:28:46,520 --> 00:28:49,560
Speaker 7: and when they went upstairs, they saw a closet curtain open.

472
00:28:50,040 --> 00:28:54,920
Speaker 7: Mister Case lunged forward, his armed outstretched with what officers.

473
00:28:54,400 --> 00:28:55,680
Speaker 1: Believed was a pangun.

474
00:28:55,800 --> 00:28:58,960
Speaker 7: The officer fired one shot, striking mister Case and the abdomen.

475
00:28:59,280 --> 00:29:02,960
Speaker 7: It turned out handgun was found in a nearby laundry basket.

476
00:29:03,200 --> 00:29:04,480
Speaker 1: The issue with trial.

477
00:29:04,240 --> 00:29:07,320
Speaker 7: Then, was when the defense tried to exclude the gun

478
00:29:07,400 --> 00:29:10,480
Speaker 7: and other evidence of the confrontation from the trial. The

479
00:29:10,520 --> 00:29:14,920
Speaker 7: trial judge overruled that defense and allowed the prosecution to

480
00:29:15,040 --> 00:29:17,400
Speaker 7: present it to the jury, and he was convicted after

481
00:29:17,440 --> 00:29:17,880
Speaker 7: a trial.

482
00:29:18,560 --> 00:29:21,000
Speaker 2: It seemed like the police had a lot of reasons

483
00:29:21,160 --> 00:29:24,360
Speaker 2: to go in. How much more did the defense think

484
00:29:24,400 --> 00:29:26,240
Speaker 2: they should have before they entered the house.

485
00:29:26,600 --> 00:29:28,680
Speaker 7: To put this in context, the Fourth Amendment of the

486
00:29:28,680 --> 00:29:33,840
Speaker 7: Constitution prohibits unreasonable searches and provides protections for a person's

487
00:29:33,920 --> 00:29:37,640
Speaker 7: home by generally prohibiting law enforcement from entering without a

488
00:29:37,680 --> 00:29:40,720
Speaker 7: warrant that is really set up in order to allow

489
00:29:40,760 --> 00:29:43,760
Speaker 7: people to have privacy in their home in the context

490
00:29:44,040 --> 00:29:47,400
Speaker 7: of a possible criminal case. The question that was facing

491
00:29:47,600 --> 00:29:51,200
Speaker 7: justices in this case is what level of certainty must

492
00:29:51,280 --> 00:29:55,120
Speaker 7: police have that an emergency is underway before entering a

493
00:29:55,160 --> 00:29:59,160
Speaker 7: home without a warrant. Mister case's lawyers argued that it

494
00:29:59,200 --> 00:30:01,600
Speaker 7: should be a eyebar. They argue that it should be

495
00:30:01,680 --> 00:30:05,600
Speaker 7: something called probable cause, which is what police officers need

496
00:30:05,880 --> 00:30:09,120
Speaker 7: in order to get a warrant to search your home

497
00:30:09,480 --> 00:30:12,640
Speaker 7: in the case of a criminal investigation. But here this

498
00:30:12,720 --> 00:30:15,760
Speaker 7: was not a criminal investigation. This was a circumstance in

499
00:30:15,800 --> 00:30:18,880
Speaker 7: which they believed that there was an emergency and there

500
00:30:18,920 --> 00:30:21,440
Speaker 7: was someone's life at risk inside the house.

501
00:30:21,680 --> 00:30:23,360
Speaker 1: So the question is what is.

502
00:30:23,280 --> 00:30:25,520
Speaker 7: The level of certainty that police officers need to have

503
00:30:25,600 --> 00:30:28,280
Speaker 7: in order to enter the home without a warrant? And

504
00:30:28,360 --> 00:30:31,080
Speaker 7: the defense argued that that level of certainty in order

505
00:30:31,080 --> 00:30:34,640
Speaker 7: to avoid needless and dangerous confrontations and to prevent police

506
00:30:34,680 --> 00:30:38,440
Speaker 7: officers from circumventing the concept of probable cause, that there

507
00:30:38,440 --> 00:30:41,400
Speaker 7: has to be probable cause that they believe that there

508
00:30:41,440 --> 00:30:44,120
Speaker 7: is an emergency and that somebody is in imminent danger.

509
00:30:45,040 --> 00:30:48,800
Speaker 2: And what's the government arguing here? What's the standard they want?

510
00:30:49,440 --> 00:30:53,200
Speaker 7: The government argued that the justices should rely on A

511
00:30:53,240 --> 00:30:56,360
Speaker 7: Supreme Court case from two thousand and six was a

512
00:30:56,520 --> 00:31:00,200
Speaker 7: unanimous opinion in a case called Brigham City versus Stewart,

513
00:31:00,400 --> 00:31:02,800
Speaker 7: in which the Supreme Court held the police may enter

514
00:31:02,840 --> 00:31:06,360
Speaker 7: a building without a warrant when they have an objectively

515
00:31:06,680 --> 00:31:10,560
Speaker 7: reasonable basis to believe that an occupant is seriously injured

516
00:31:10,840 --> 00:31:14,320
Speaker 7: or threatened with such injury. So in that case, they

517
00:31:14,320 --> 00:31:16,960
Speaker 7: took it completely out of the context of probable cause,

518
00:31:17,200 --> 00:31:20,600
Speaker 7: which really has an entire body of case law that

519
00:31:20,760 --> 00:31:23,600
Speaker 7: talks about when police may enter a home with or

520
00:31:23,640 --> 00:31:26,360
Speaker 7: without a warrant in the context of a criminal investigation,

521
00:31:26,760 --> 00:31:30,840
Speaker 7: and said that here we're talking about imminent risk to somebody.

522
00:31:31,040 --> 00:31:34,480
Speaker 7: It's not a criminal investigation. It's really a circumstance where

523
00:31:34,480 --> 00:31:37,280
Speaker 7: police officers may come into a home in order to

524
00:31:37,400 --> 00:31:40,560
Speaker 7: arguably save the life of somebody or save the life

525
00:31:40,560 --> 00:31:43,080
Speaker 7: of somebody who may be with somebody who's in danger

526
00:31:43,080 --> 00:31:45,880
Speaker 7: of hurting them. And in that case the standard is

527
00:31:46,000 --> 00:31:49,560
Speaker 7: objectively reasonable basis to believe that the occupant is seriously

528
00:31:49,600 --> 00:31:51,880
Speaker 7: injured or threatened with such injury.

529
00:31:52,480 --> 00:31:56,760
Speaker 2: It seemed like justice is across the ideological spectrum, thought

530
00:31:56,840 --> 00:32:00,120
Speaker 2: that the police had good reason to enter here.

531
00:32:00,400 --> 00:32:03,720
Speaker 7: Yeah, Well, what's interesting here is that the Montana Supreme Court,

532
00:32:04,000 --> 00:32:06,080
Speaker 7: which is the court that had just heard the case

533
00:32:06,160 --> 00:32:09,800
Speaker 7: before going to the US Supreme Court, sided with the state,

534
00:32:09,840 --> 00:32:11,960
Speaker 7: but it was a four to three decision, and there

535
00:32:11,960 --> 00:32:15,240
Speaker 7: were actually three judges on the Montana Supreme Court who

536
00:32:15,280 --> 00:32:19,200
Speaker 7: dissented and said that for a warrantless search to be reasonable,

537
00:32:19,240 --> 00:32:22,200
Speaker 7: the higher bar or probable cause must apply, And then

538
00:32:22,240 --> 00:32:24,880
Speaker 7: they went further and added that there was no probable

539
00:32:24,960 --> 00:32:28,600
Speaker 7: cause to believe mister Case was an imminent danger or.

540
00:32:28,520 --> 00:32:30,080
Speaker 1: In need of immediate.

541
00:32:29,600 --> 00:32:33,440
Speaker 7: Assistants that would have justified the warrantless entry into the home.

542
00:32:33,920 --> 00:32:35,760
Speaker 1: When the case went to the Supreme.

543
00:32:35,360 --> 00:32:38,800
Speaker 7: Court and was argued before the Justice is there there

544
00:32:38,880 --> 00:32:43,440
Speaker 7: was virtual unanimity that the standard that had been applied by.

545
00:32:43,280 --> 00:32:45,000
Speaker 1: The state was the correct one.

546
00:32:45,320 --> 00:32:49,400
Speaker 7: First, for example, Justice Thomas noted that the issue of

547
00:32:49,520 --> 00:32:52,600
Speaker 7: probable cause is a standard that is normally limited to

548
00:32:52,640 --> 00:32:55,960
Speaker 7: the criminal context. This was not a criminal investigation, and

549
00:32:56,200 --> 00:32:58,800
Speaker 7: Justice Robert joined in on that to say, when we

550
00:32:58,840 --> 00:33:02,440
Speaker 7: talk about probable call cause, we talk about probable cause

551
00:33:02,600 --> 00:33:05,760
Speaker 7: that a crime is occurring. What standard would be used

552
00:33:05,760 --> 00:33:08,880
Speaker 7: here when we're not talking about a crime, but about

553
00:33:08,920 --> 00:33:12,080
Speaker 7: a risk of injury to somebody? And Justice Kagan also

554
00:33:12,240 --> 00:33:14,760
Speaker 7: jumped in, saying that there is a full body of

555
00:33:14,800 --> 00:33:19,280
Speaker 7: case law out there describing what probable cause is it's

556
00:33:19,320 --> 00:33:22,640
Speaker 7: not a self defining term. It has been raised in

557
00:33:22,760 --> 00:33:26,280
Speaker 7: many cases, and there is a full explanation in the

558
00:33:26,320 --> 00:33:30,560
Speaker 7: criminal context of what constitutes probable cause, but this is

559
00:33:30,560 --> 00:33:34,480
Speaker 7: something entirely different. And the justices all seemed to go

560
00:33:34,640 --> 00:33:37,240
Speaker 7: back to the Brigham City versus Stewart case from two

561
00:33:37,320 --> 00:33:41,880
Speaker 7: thousand and six to say that the standard of objectively

562
00:33:42,040 --> 00:33:46,040
Speaker 7: reasonable basis for believing if somebody needs emergency help. Is

563
00:33:46,040 --> 00:33:49,880
Speaker 7: this standard that should apply here, and Justice Alito and

564
00:33:50,120 --> 00:33:54,240
Speaker 7: Justice Brown agreed, which doesn't happen very often. They both

565
00:33:54,320 --> 00:33:57,520
Speaker 7: push back on the contention here of the defense lawyer

566
00:33:58,120 --> 00:34:01,600
Speaker 7: that this was an unreasonable act by police. Justice Alito

567
00:34:01,680 --> 00:34:04,200
Speaker 7: went so far as to say, if the police could

568
00:34:04,200 --> 00:34:06,560
Speaker 7: not enter the house based on the facts that they

569
00:34:06,640 --> 00:34:09,200
Speaker 7: knew in this case, then I don't know when police

570
00:34:09,239 --> 00:34:11,600
Speaker 7: are ever able to go into a house to prevent

571
00:34:11,640 --> 00:34:15,719
Speaker 7: something from committing suicide. The concern here is that if

572
00:34:15,760 --> 00:34:19,560
Speaker 7: there is a legal standard of probable cause in order

573
00:34:19,600 --> 00:34:24,120
Speaker 7: to go in under these emergency situations, that police officers may.

574
00:34:23,960 --> 00:34:25,799
Speaker 1: Hesitate to go into a house.

575
00:34:25,640 --> 00:34:28,239
Speaker 7: When somebody's life is at risk, and they seem to

576
00:34:28,320 --> 00:34:32,399
Speaker 7: weigh more in favor of protecting the life of an

577
00:34:32,400 --> 00:34:37,239
Speaker 7: individual and allowing police officers more latitude to go in

578
00:34:37,360 --> 00:34:41,200
Speaker 7: under these circumstances than they were about the privacy concerns

579
00:34:41,360 --> 00:34:43,120
Speaker 7: of entering a house without a warrant.

580
00:34:43,920 --> 00:34:47,040
Speaker 2: Whether police have met this standard, is that going to

581
00:34:47,120 --> 00:34:49,800
Speaker 2: turn out to be a jury question or a question

582
00:34:50,080 --> 00:34:53,920
Speaker 2: for the judge about whether evidence even gets into trial.

583
00:34:54,480 --> 00:34:58,520
Speaker 7: If the Supreme Court decides to uphold the lower court,

584
00:34:58,600 --> 00:35:01,440
Speaker 7: then there was some discussion of what comes next. In

585
00:35:01,480 --> 00:35:05,080
Speaker 7: other words, there were some justices who said that they

586
00:35:05,120 --> 00:35:08,360
Speaker 7: should simply rule that the lower court was correct and

587
00:35:08,480 --> 00:35:13,919
Speaker 7: that the standard of objectively reasonable was properly applied, and

588
00:35:14,000 --> 00:35:17,320
Speaker 7: that in this case, clearly the facts warranted the police

589
00:35:17,440 --> 00:35:20,680
Speaker 7: entering the home. Justice Soto Mayor and Justice Thomas, on.

590
00:35:20,640 --> 00:35:23,319
Speaker 1: The other hand, argued that it's the normal.

591
00:35:23,040 --> 00:35:25,480
Speaker 7: Practice of the court if they're not certain about a standard,

592
00:35:25,640 --> 00:35:28,200
Speaker 7: and we state a new standard, that it should.

593
00:35:27,920 --> 00:35:30,000
Speaker 1: Be sent back to the Montana.

594
00:35:29,560 --> 00:35:32,960
Speaker 7: Supreme Court to determine whether, based on these facts, that

595
00:35:33,080 --> 00:35:35,280
Speaker 7: objectively reasonable standard.

596
00:35:35,000 --> 00:35:36,400
Speaker 1: Had in fact been satisfied.

597
00:35:36,800 --> 00:35:40,840
Speaker 7: Justice Alito expressed some concern that in doing that it

598
00:35:40,960 --> 00:35:43,839
Speaker 7: might suggest to the lower court that this was in

599
00:35:43,880 --> 00:35:46,799
Speaker 7: some way a close call, and could, he argued, have

600
00:35:46,880 --> 00:35:49,480
Speaker 7: some kind of a killing effect on police when they're

601
00:35:49,520 --> 00:35:52,080
Speaker 7: trying to determine whether to enter a house to prevent

602
00:35:52,160 --> 00:35:53,480
Speaker 7: somebody from committing suicide.

603
00:35:54,120 --> 00:35:56,920
Speaker 2: And we should point out that here some civil rights

604
00:35:56,920 --> 00:35:59,839
Speaker 2: groups did line up behind the defendants.

605
00:36:00,000 --> 00:36:01,200
Speaker 1: Sure case is defense.

606
00:36:01,320 --> 00:36:04,719
Speaker 7: His attorney argued to the Supreme Court that the reasonableness

607
00:36:04,800 --> 00:36:08,640
Speaker 7: standard that the state was suggesting was so vague as

608
00:36:08,680 --> 00:36:11,719
Speaker 7: to invite abuse and confusion by law enforcement.

609
00:36:12,040 --> 00:36:13,960
Speaker 1: He reminded the justices.

610
00:36:13,840 --> 00:36:17,280
Speaker 7: That police had entered mister Case's home without permission, without

611
00:36:17,280 --> 00:36:20,440
Speaker 7: a warrant, or without even probable cause, and ended up

612
00:36:20,480 --> 00:36:23,600
Speaker 7: shooting him in his own home. That was essentially the

613
00:36:23,640 --> 00:36:27,520
Speaker 7: civil rights argument that mister Case's lawyer was arguing, and

614
00:36:27,600 --> 00:36:31,000
Speaker 7: a number of prominent civil rights organizations came out in

615
00:36:31,040 --> 00:36:34,919
Speaker 7: favor of the defense, arguing that the warrantless surch here

616
00:36:35,280 --> 00:36:38,640
Speaker 7: was a violation of the Fourth Amendment, and they were

617
00:36:38,680 --> 00:36:41,920
Speaker 7: more comfortable with the probable cost standard to allow police

618
00:36:41,920 --> 00:36:44,399
Speaker 7: to enter a home even in a case where there

619
00:36:44,560 --> 00:36:47,640
Speaker 7: was an emergency and there was some concern for the

620
00:36:47,760 --> 00:36:49,720
Speaker 7: safety of an individual inside the home.

621
00:36:50,400 --> 00:36:53,719
Speaker 2: This is one case this term where it appears you

622
00:36:53,840 --> 00:36:56,879
Speaker 2: never know, but it appears that we know how it's

623
00:36:56,920 --> 00:37:00,000
Speaker 2: going to turn out. We shall see. Thanks so much.

624
00:37:00,719 --> 00:37:03,880
Speaker 2: That's Robert Mints of maccarter and English. And that's it

625
00:37:03,960 --> 00:37:06,520
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

626
00:37:06,560 --> 00:37:09,000
Speaker 2: can always get the latest legal news on our Bloomberg

627
00:37:09,120 --> 00:37:12,719
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,

628
00:37:12,920 --> 00:37:17,959
Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,

629
00:37:18,360 --> 00:37:20,920
Speaker 2: and remember to tune into The Bloomberg Law Show every

630
00:37:21,000 --> 00:37:24,880
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

631
00:37:25,040 --> 00:37:26,640
Speaker 2: and you're listening to Bloomberg