A (3:04)

Up, by the way, if anyone's curious, if David and I are friends in real life, I was getting real time video of him driving. So, like, he's videoing himself driving to the Waffle House. I got four videos, and then he makes it to the Waffle House. All right, but David, you're here now, and we have a podcast to do before we hop into our substantive topics. If you want to get a signed book plate from me to put in your copy of Last Branch Standing, my book that's coming out April 14th, you can buy the book anytime before February 9th. So if you've already bought it, that's great. Up until February 9th, you can go to prh.com lastbranchbookplate Fill out your information, and I will mail you a signed bookplate from me up until February 9th. After February 9th, no signed book plates. So now is the time to pre order your copy of Last Branch Standing. And if you're new to this podcast, I wrote a book about the Supreme Court and it includes little, you know, fun stuff about each of the justices, history of the Supreme Court, back to John J. And the Anatomy Riot all the way through. You know, Warren begets Scalia, Scalia begets Barrett, et cetera, et cetera, the filibuster, major questions doctrine, and my ideas for reforming the court. So anyway, preorder it now. Pre orders are super important for our podcast, for this book, for all the things. And I will send you a signed nameplate. Again, the website is p r h.com last branchbookplate.

B (4:48)

I mean, and I just gotta say, if you listen to this podcast, this book is just totally written for you. It's just totally. If you like this podcast even a little bit, like even a little bit, you're just curious about this podcast. This has got you written all over it. Your name is all over it. And then with the bookplate, you can literally have your name.

A (5:09)

All right, David, I want to talk in this segment about the legal differences between the ice fatal shooting of Renee Good versus the ice fatal shooting of Alex Preddy. Now to refresh from our conversation about the shooting of Renee Goode. In the end, both of us said that legally speaking, you were not gonna be able to charge anyone with a crime related to that shooting and you were not gonna be able to solve in part, you know, at the, at the very end of this is the fact that they're federal officers. This will get removed to federal court under federal statute and federal officer removal, and that it, because of supremacy Clause immunity. That case is almost certainly going to get tossed out. But in the Renee Goode shooting, we also talked about if this were a state officer, we thought even then you would not have the evidence you would need to sustain a conviction in that case. So, David, now let's talk about this shooting. What are the legal differences that pop out at you first?

B (6:16)

So the first legal difference that pops out at me is I do not think there is a case to be made that Alex Preddy was a mortal threat to the officers when he was shot. As opposed to in the Renee Good situation. The officer, when she began to move the car, was in front of the car. Now, the frame by frame showed that he then was able to sidestep the car, almost certainly before he fired the first shot. However, from a legal matter, the question isn't, did the frame by frame analysis show that he in fact sidestepped the car? The legal question is, was he aware that he had sidestepped the car, that he was not, say, that he was safe when he fired that shot, and everything happened so very quickly that it would be very difficult to prove beyond a reasonable doubt that he knew he'd sidestep the car? Now, there would be other questions around, say, for example, as we discussed, was firing a gun in that circumstance according to training, et cetera, et cetera? But best practices is not the same. Failing to observe best practices is not the same as committing an actual crime. And so that's why it makes that more ambiguous here. There's never any evidence that he was an actual threat, mortal threat to the officers. And that makes a very big difference in the analysis. There was. There was no point in which a reasonable officer, looking at his hands, et cetera, could have seen a threat, in my view. And I think that that's a very big distinction here.

A (7:49)

Let's assume some facts that may or may not bear out to be true. But just for our legal analysis. You know, he has the gun tucked in the back of his pants, and an officer yells, gun. Now you're wrestling. You know, you're a bunch of officers have this guy, you're trying to get him on the ground. It's icy, they're slipping. Everyone's hands and feet are everywhere. And now you know that he has a gun. Does that rise to the level for you of anything?

B (8:17)

No, because the existence of a gun is not the same thing as permission to shoot.

A (8:22)

Alex Preddy's hands are bracing himself on the ice, so he's like on all fours in this hypothetical. The officer yells Gun. Alex Preddy slips on one hand and that other hand, you know, moves behind him closer to where the gun is. Now what?

B (8:42)

Again, the problem here you have is if you have no visibility of the gun and you have no visibility of him holding the gun, again, you have to slow down frame by frame by frame to see the hand move. The problem was that was not when he was shot. He was actually shot after the gun had been removed from him.

A (9:02)

Okay, so the next fact is you have again, I'm sort of making this number up, but five officers around him dealing with this. The officer that shouts gun then reaches in to grab the gun. But you, the other officer cannot see that. You are blocked from seeing that by the other officers. So you hear gun, you see the hand move. In reality, the gun has gone. And David, I am going to change the facts here for a second. You see the hand reach for the gun. Like actually, you know, it really looks like someone's reaching to their back. Now we know, because we can watch the video, that the gun's no longer there, but the person on the ground does not know the gun's not there. And the officer is in front does not know the gun is not there. And again, I'm changing lots of facts here from this case, but go with my hypothetical, okay, officer yells gun. That officer gets the gun, but suspect doesn't know that, reaches behind him for the gun. Officer in front doesn't know where the gun is or even he doesn't know it's in the back. Right. He hasn't seen it, but he knows that an officer has seen a gun. Now what?

B (10:09)

Well, in that circumstance, it would be difficult to charge him and he'd likely be acquitted. And I go back to a more egregious case, and I've mentioned it before, Daniel Shaver, this is a case where a guy is crawling towards police and he starts to slip, and as he slips his hand, he moves his hand towards the back of his body and an officer opens fire on him from point blank range. And there was no gun spotted at all at any point because there was no gun. But he was acquitted because of the move to the back of their waistband was seen as sufficiently threatening in context to give the officer, at least according to the jury, a reasonable fear. So it's hard for me to imagine being on the jury and reaching the same conclusion, but that's what the jury concluded in this case. And I know jury determinations aren't precedential, but they're instructive. They're instructive. As to how a community of 12 regular citizens look at these police actions. So I do think in that circumstance, which, again, as you note, is changing the facts, would be much more in favor of the officer.

A (11:11)

Okay, let me give you another hypothetical. Officer yells gun. That officer is able to grab the gun and remove it. In doing so, the gun goes off. It doesn't hurt anyone, just goes off the other direction. Right. So an officer has heard gun. A different officer now has heard gun. He hears a gun go off that he knows is not his and is not his fellow officers. Now what?

B (11:33)

That's his best case scenario for his defense, in my view. I think if you're going to be a defense attorney and you're looking at the universe of speculations that we've seen online, and that has been a speculation I've seen. I don't know that it's correct. I mean, it's very premature to. To determine that. But if he pulled the gun away, yelled gun, and then accidentally fired it so that an officer has heard gun, and then, boom, that is going to be the best case scenario for the defense, in my view. I. I think at that point, it gets very difficult to convict in that scenario.

A (12:08)

And that's a tragic. I mean, what you're describing is tragic, David.

C (12:11)

Right.

A (12:11)

Because Alex. There's nothing Alex Preddy could have done to avoid the situation once he's engaged with police, at least.

B (12:18)

Yeah. Yeah, exactly. And that's exactly the kind of situation, because we've talked about this before, that there are situations where I feel like criminal liability would be too much, but civil liability would be very appropriate, but civil liability isn't an option. And that. That makes. That makes it just incredibly tragic and egregious on so many levels that you can have a situation that might not be criminally. There's no criminal. Possible criminal prosecution, but there's a lot of evidence that things were just not done right. And in that circumstance, you'd have a civil liability option. And I think that, you know, with Renee Goode, I think that if you had section 1983 liability, civil. There's an argument. There's an argument with Renee Goode, but you don't have that option with federal officers.

A (13:05)

Yeah. So let's walk through Alex Preddy, the facts as we know them right now, and the sort of three steps we did with Renee Goode. One, this is a state officer pretend. Do you think that they could get a conviction against the officer for this shooting?

B (13:21)

With the caveat that it is not easy to get a conviction against an officer, including in very egregious cases. I mean, we remember. Was it Michael Slager case? Were you in DOJ when the Slager case was retried?

A (13:35)

It ended up being a plea deal, but, yeah.

B (13:37)

Plea deal. Yeah. When the feds came in after the state prosecution failed, that was a situation where the officer shot a fleeing unarmed suspect in the back and was spotted on camera apparently placing something that looked like his Taser by the body to try to justify the shooting. And he had a hung jury. So what? But with that caveat, I think that there is a lot of reason to believe that this would be a solid criminal case.

A (14:05)

I think it's very different than the Renee Goode shooting in this regard. If it were a state officer, this would go to trial.

B (14:11)

Yeah, I agree with that. It would be up to a jury.

A (14:13)

Okay, but it's not a state officer. It's a federal officer. You know, we don't need to go through the removal conversation again. You can go back and listen to our conversation about federal officer removal. But supremacy clause immunity, you would need to be performing your official duties unless it were so egregiously unconstitutional outside side your official duties, et cetera, for a federal officer to not have Supremacy clause immunity. David, what say you?

B (14:42)

I think he'd have Supremacy clause immunity. And when I say this, I'm not making a normative judgment that he should have supremacy clause immunity. I'm just saying what I think would happen. And when you're talking about the immunity context for the officers and what's within their duties and not within their duties, it's not outside their duties. If they do their duties badly, it's outside their duties. Say, for example, if they're driving to a. If he's driving drunk to a raid and crashes into somebody or, you know, something like that. It's that the factual paradigm for sort of when you're doing your duty versus not doing your duty, it's really something a lot more dramatic than he was in the middle of an arrest and performed it terribly.

A (15:23)

I'll give you an example where I don't think supremacy clause immunity would apply. And again, this is not the facts of this case, but I'll try to use similar facts. The officer who removes the gun negligently discharges it himself, doesn't realize it, and then shoots him. Then I think maybe you don't have supremacy clause immunity. Like, I think it's so egregiously outside any sort of reasonable performance of your duties or something.

B (15:54)

That would be like an execution style murder. We're using these egregious examples to sort of show how broad that immunity is. It's not absolute. Obviously, it's not absolute absolute. But if you want to see a state prosecution of this officer, you gotta. It's not a road bump. It's not a speed bump. It's not even a hurdle. It's like Trump's border wall you have to cross. It's something else entirely.

A (16:17)

All right, David, for the third question, I want to bring in an expert. When we get back from this commercial break, I want to ask a smarter Fourth Amendment expert. You know, well, let's talk about some of these warrant issues that have been going on about whether they can enter the homes with warrants. But also, can you sue ICE and say, I'm a protester and I'm gonna go out with my whistle and I'm gonna videotape them, and I have a concealed carry permit and they seem to think that they can shoot people. Based on having a gun on you, based on this Tweet from a U.S. attorney, Can I prevent them from using deadly force prospectively even if I can't sue them for damages? Even if you can't get criminal charges because they're federal officers? Surely, surely there's something I can do to prevent the next shooting. When we come back, we'll ask Professor Oren Kerr of Stanford University that very question. When you see someone close to you experience a major loss, it can really put things into a different perspective. It's not just the emotional side of it. It's how quickly that moment can turn into unexpected financial pressure. Watching that happen can really make you think seriously about planning ahead for the people who matter most. Life insurance isn't about assuming the worst. It's about making sure your family has support no matter what comes next. And that's where Ethos makes the decision easier. Ethos makes getting life insurance fast and simple. And it's 100% online. You can get same day coverage with some policies starting at $30 a month. There's no medical exam, just a few quick health questions. Business Insider recognized Ethos as the number one no medical exam. Instant life insurance provider and Trustpilot rates it 4.8 out of 5 based on 3,000 reviews. Protect your family with life insurance from Ethos. Now by going to ethos.comao in as little as 10 minutes, you can get your free quote and up to $3 million in coverage@ethos.com ao that's e t h o s e ethos.com ao application times and rates may vary. We recently needed a new mattress for our guest bedroom, so we ordered a Sedona Elite from Brooklyn Bedding. And I have to tell you, we just had someone stay in it. I asked them, like, how was the mattress? I loved it. So comfy and big. I slept like a baby. Brooklyn Bedding handcrafts every mattress in their Arizona factory, cutting out the middlemen to deliver real quality. Because everyone sleeps differently, they offer mattresses for every body type and sleep style, even hard to find sizes. Their sleep quiz helps you find the perfect fit in under two minutes. If you tend to sleep hot. Glaciotex covers and copper Flex foam helps keep you cool and comfortable all night long. Endorsed by the American Chiropractic association, completely fiberglass free, plus top awards from CNET and Wirecutter, Brooklyn Bedding truly stands out. And now go to Brooklyn betting.com and use my promo code advisory at checkout to get 30% off site wide. This offer is not available anywhere else. That's brooklynbetting.com and promo code advisory for 30% off site wide. Support our show and let them know we sent you after checkout. BrooklynBetting.com promo code advisory.

B (19:40)

New CBS Sunday, the Grammys, baby.

C (19:43)

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C (19:59)

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B (20:00)

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A (20:03)

Anything is possible.

B (20:05)

CBS Sunday and streaming on Paramount plus.

A (20:15)

So without further ado, let's bring in our guest friend of the pod and Stanford law professor Oren Kerr, Fourth Amendment specialist. Welcome back.

C (20:23)

Happy to be here.

A (20:25)

Okay. There's been a lot of discussions about judicial warrants versus administrative warrants. And relevantly, the Department of Homeland Security going into people's homes with an administrative warrant to get people who are subject to deportation orders and whether. You know, according to one Senate confirmed official, the law is, quote, clear cut, that that is a. Okay. You do not need a judicial warrant to go into someone's private home to retrieve someone who is subject to a deportation order. Why don't you walk us through what a judicial warrant is versus administrative warrant? Like, treat us like you're one.

C (21:07)

Ls. So a judicial warrant is basically a traditional kind of warrant. You go to a judge who is a neutral and detached magistrate. As the lingo goes, they're someone who doesn't work for the executive branch. They are neutral. They review what the executive branch wants to do and they say either the standard is met or Is not met. And so there are two kinds of traditional judicial warrants. One would be a search warrant, that is, we're going to go into this house and we're going to look around for evidence. And the other is an arrest warrant, which is, we're gonna go arrest this person. And the supreme court, in a case called Peyton v. New York back in 1980, said an arrest warrant is needed to enter a home to make an arrest. Even though they're not searching the house, once they get inside, they need that judicial warrant to enter. And then the question is whether that also applies for what are called administrative warrants. So administrative warrants is basically within the executive branch, an order within the executive to go arrest somebody. And the question is whether that is sufficient. It's not signed off by a neutral and detached magistrate. It's not a sort of traditional warrant for fourth amendment purposes. And the traditional understanding has been, well, that's sort of nice within the executive branch, but that doesn't answer the fourth amendment question. And the question is whether how strong the argument is that actually the administrative warrant does allow the entry into the home. And what are the remedies if. If they're wrong?

A (22:34)

Okay, I'm reading the fourth amendment here. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. And no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the places to be searched and the persons or things to be seized. That feels pretty broad.

C (23:00)

So it was actually not totally clear historically whether the government could just go into someone's house to arrest them and whether that fourth amendment warrant clause was even triggered. That was what the Peyton vs. New York case settled. And it turns out New York had followed what some common law authorities had said, was that, like, hey, breaking into a house is okay as long as you're just there to arrest someone that's not breaking into search. And so in Peyton, the supreme court, undivided court, says, like, no, a warrant is needed. And they talk about the need for a neutral and detached magistrate. And so, yeah, the question is just, does this internal to the executive order count? And it ties in, in interesting ways, I think, with the unitary executive theory. This whole idea of, like, this is just, you know, everybody in the executive branch is part of the president's executive branch, and they're all ultimately answerable to the president. And if you take that view, then it's pretty clear within the executive branch, somebody like an administrative law judge or an immigration judge. They're not neutral. Right. They're not parties that are sort of outside the executive branch. They're ultimately working for the president. And so they're not that neutral. Check. And so there are some arguments that can be made. There's a 1960 case called Abell v. United States, going back a long ways, a Frankfurter opinion. And Frankfurter talked about administrative warrants as possibly allowing the entry into the home to make an arrest for immigration purposes. And the real question is, what do you make of this 1960 case, given that a lot of the case law has developed on this issue? After 1960, you get a lot of cases in the 70s and the 80s bolstering the Fourth Amendment right. What do you make of that old language that was really dicta from this 1960 case? Do you take that as controlling, or you take the later cases as controlling to try to figure out how the Fourth Amendment applies?

B (24:58)

So a couple of questions. Two part question, part number one, you know, you focused on the Supreme Court. How have the circuits been dealing with this? Are there any particular circuits that are outliers or they have particularly decisive jurisprudence on this? And then the second question is, where are you seeing the current court? Because my impression the current court is it really is moving along, and I believe we've discussed this before, from the reasonable expectation of privacy to maybe even a broader conception of the protected interest under the fourth Amendment. So where are you seeing the courts lean as it applies to this, to this issue?

C (25:40)

There's very little on this, in part because it was the standard view that these administrative warrants did not allow entry into the home. So it really wasn't challenged. This was actually the guidance that, like, was on the law enforcement websites, like, you can't use these warrants to enter a home. And so it didn't come up as much. There is an 8th Circuit case, I think was from 2007, called United States vs. Lucas, which involved somebody who had escaped from prison and then was caught inside someone's house. And there had been an administrative warrant issued in the state system. Like the prison head of the prison system said, go arrest this guy. And it was an en banc ruling by the 8th Circuit. And 10 judges weighed in on whether the administrative warrants helped make this constitutional or not. Five said yes, five said no. And there was no majority opinion for the court. It was all just a bunch of concurrences. So, you know, the administration, some administration folks have pointed to the concurring opinion that said that administrative warrants are part of the reasonableness balance. But that was just a concurring opinion. Other than that, we've got two district court opinions. I mean, really, we're down to like, there's one district court opinion from LA that says you can't do this, and then there's a Texas district court opinion that has dicta saying you can. And that's kind of all where we are. So there's not a lot of case law on this either way.

B (27:03)

So that's remarkable because when you think about it, it's not super unusual to encounter a constitutional issue for which there's no clear Supreme Court authority. I mean, there's a lot of. There's a lot of Supreme Court authority on a lot of issues, but not everything. Not everything. It is much less common to look at a salient national legal issue and find like, basically jack and squat in the lower courts as well. It. So that's. Now, what about the second part of the question? If you're going to just do your Nostradamus act and sort of like, here's what I know. I pay more attention to Fourth Amendment issues and the Supreme Court than any man alive. And if you're going to make me sort of see, predict, like, how hospitable would a Justice Gorsuch or a Justice Kavanaugh or Justice Kagan be to this administration argument? What are you seeing?

C (27:56)

So my first thought is that this is very unlikely to get to the US Supreme Court, in part because they don't take many cases, in part because they don't take many Fourth Amendment cases, and in part because they're usually gonna wait for a whole lot of percolation, and they're not gonna kind of weigh in until way down the road. So I just. I don't think this is getting to the Supreme Court. I suspect most lower courts would say, listen, Peyton versus New York is pretty clear. You need a judicial warrant. The challenge is actually not so much in the interpretation of the right. It's where does the remedy come from?

A (28:29)

That was my question. Okay, so they come into your house, they have an administrative warrant, and they have a valid removal order to remove you from the country. And so they come in with this administrative warrant and they grab you. What do you get to do about that?

C (28:46)

Yeah, so the answer may be due to limits on the remedy. There's not much you can do. So the exclusionary rule would not apply. You don't suppress the person. Maybe there would be suppression of evidence found in the house when they went in to make the arrest. But That's, I gather, not really what is going on in these cases. It's all about the person. And in a Supreme Court case called New York v. Harris, they said, yeah, yeah, if the government breaks into someone's house to make an arrest and they don't have the needed arrest warrant, you know, some things are suppressed, some things are not. It's not an illegal detention after that. It's just that some of the evidence, it's the privacy of the home that was invaded. So that I don't think there's much of a suppression remedy in that context. And then there's no Bivens remedy either, presumably because the Supreme Court has cut back so dramatically on the Bivens remedies.

A (29:40)

This is the idea that you could sue the federal officers.

C (29:43)

Right. Bring your lawsuit. Hey, they violated my Fourth Amendment rights. Well, the courts will say that's a very interesting theory, but you need Congress to have granted you a right to sue the federal government. And Congress has not created such a right. And so we'll leave it up to Congress. And there have been immigration cases involving basically these facts. There was a 4th Circuit case from 2019 where they said, sorry, there's just no civil cause of action for that. There are arguments against that and other sort of complicated puzzles here, but at least the standard way of suing the federal government seems to not be available.

B (30:19)

Yeah, that's one thing that I think has really surfaced for a lot of people in this moment, which is the limited remedies available when the federal government, individual officers of the federal government, violate your rights. And also that prospective injunctive relief in the Fourth Amendment context, and forgive me if I'm confusing you with another nationally renowned Fourth Amendment expert, but I believe I remember seeing you write that broad based injunctive remedies against Fourth Amendment violations are not common. That is not the typical way to deal with the Fourth Amendment. You typically deal with Fourth Amendment violations on an individualized basis.

C (31:00)

No, that's exactly right. And the real challenge here is the Supreme Court. They just don't like remedies for Fourth Amendment violations. They don't want the officer to be held liable because that poor officer, even if ultimately they'll probably be indemnified, that poor officer is going to have to pay the penalty for the public interest of enforcement. That's bad. They don't like suppression because that's the public being punished. And so they don't like the remedies all that much. And so they keep cutting back on the remedies. They cut back on civil action, they cut back on the exclusionary rule. And I think to some extent, when you look at what's going on in Minnesota right now, I look at that, and one of the things I see is that's what happens when you don't have a lot of remedies.

A (31:45)

Yeah. So let me stick with that for a second. Now that we have a second fatal officer involved shooting in Minnesota. And I think a lot of people have brought up the lack of sufficiency of training of ICE officers in Minnesota. Now, we've said they're federal. Right. We've already gone over the fact that you're not gonna be able to sue them in, like, a bivins, you know, sort of the Federal version of 1983. We've already said that the state probably can't charge them. You know, we'll dug into that. But I do want to talk for a second about the prospective relief. If you're someone who says, I intend to go protest ICE officers by videotaping them and blowing a whistle when they come down my street. And we have seen now two examples where someone's constitutional rights were violated with excessive force, deadly force at that. And therefore, I want prospective relief that ICE officers are able to come to Minneapolis. They're able to enforce immigration laws. There's nothing you're gonna be able to do about any of that. But I want prospective injunctive relief that they are not able to use deadly force until there is, you know, sufficient the training aspects that we sort of see in 1983, and qualified immunity cases. But make it federal, but make it only prospective. Can I thread that needle or you think, no.

C (33:13)

So what you're describing is pretty close to City of Los Angeles vs. Lyons, this 1983 case from the year, not the statute, where it was someone who had been subject to a chokehold who said, I want an injunction against these unconstitutional chokeholds. And the Supreme Court says, well, you can't get an injunction against unconstitutional chokeholds because you haven't shown that you're going to be subject to one of these chokeholds in the future. You have a past claim to damages, but you don't have prospective relief, because basically you only get prospective relief against something that you have shown will affect you in the future. And what are the odds that this is actually going to affect you?

A (33:50)

I don't know. I have a tweet from a US Attorney saying that if I bring my permitted gun to a protest, they can use deadly force against me, that feels a little better.

C (34:03)

It's possible. And I mean, I think you're seeing we've already seen some lower courts interpret the limits on injunctions narrowly. And that did lead to the Supreme Court's the so called Kavanaugh stop case, which was actually not anything coming from Justice Kavanaugh. But nonetheless, we're seeing a lot of debate over the limits of that. But that's the kind of remedy that's hard. And you'd think the Fourth Amendment itself is the barrier, right? Like the Fourth Amendment says, you can't do that. But what we're basically seeing is efforts to use perspective relief, the possibility of an injunction, as a way around the limits of the lack of a Bivens remedy. Basically because you say, hey, you didn't you. It's not that I'm suing under Bivens, it's that I'm suing for a violation of the injunction. You violated the injunction. There's a remedy for that. So all of these are just ways of just trying to get a remedy somehow for these Fourth Amendment violations.

B (35:00)

I was very frustrated at the way there was a lot of commentary around the original quote, unquote, Kavanaugh stop case, because that case did not hold that if you see a Hispanic person, you can stop them. What that case held was their criteria that the administration articulated for reasonable suspicion, which was a combination of factors. And they were adjudicating that standard that the administration was putting for them to say is, you know, this is reasonable suspicion. And they said, yes, but the problem was the administration was putting forward a standard that there's a lot of evidence it doesn't comply with. So in that standpoint, if you're saying, okay, here's the standard we're doing and it is reasonable suspicion. That's why you have the second. The Kavanaugh footnote that says, whoa, whoa, whoa, you cannot stop someone just on the basis of their ethnicity. You cannot do that. And so I think that that was him responding to. I was given a standard of reasonable suspicion that we adjudicated as meeting the standard, but we're getting reports and evidence that they're not following that. And so that. I think that's what makes it very, very difficult when you have an administration that walks in and says, hey, you can't enjoin us. Here's the standard we follow and it's constitutional. But then out in the street, they're not following their own standard, which then gets you into, well, then I need a backwards looking remedy because they didn't follow their own standard. And that creates all of these difficulties.

A (36:30)

Yeah. So it feels like the bottom line here, professor, is it's really fun to talk about what the fourth Amendment does or doesn't cover, but it sort of like qualified immunity about, you know, talking about whether there was a constitutional violation when really the actual action is whether it was clearly established at the time. And like, once you get to that clearly established part, you always lose. So like fourth Amendment, fun to talk about what that text means, but if there's no remedy, you always lose. But before we let you go, can we talk geofencing real quick? The Supreme Court has granted cert on this geofencing case. You're a fourth Amendment expert. David and I muddled our way through as we like to do. Will you sing us a few bars of the Professor Kerr geofencing take?

C (37:19)

So this is really big news that the Supreme Court agreed to hear this case. This was a petition that was not being closely followed because no one thought it was going to get granted. It was. I mean, this is. The Supreme Court has not granted cert in a big fourth amendment case in like six years. And here we have the court taking on this major issue, literally hearing a case from a one line affirmance. The lower court was the en banc 4th Circuit, which said, you know, we affirm. And then there were all these concurrences and one dissent. And so no one thought, you know, no way this is going to get granted. And then it was. So the Supreme Court has agreed to hear whether geofence warrants are constitutional and whether geofencing is a search at all. This is basically when you log into the way that the technology is actually sort of out of date technology. But it was when you have a Google account and you have them keep your location history, and then the government tries to solve a crime by going to Google and saying, tell us who was in the area at the time of this known crime and it happened to be a case involving a bank robbery in rural Virginia. And the Supreme Court's going to tell us. There are these two totally distinct questions. One is like, can you have a geofence warrant? And if so, how do you do particularity for a warrant that is about data of where phones are located? How do you draft a warrant for that? And can you. And then also just, is it a search at all? All this data that Google collects, is it protected under the fourth amendment? Is a warrant needed or not? So I think that the easy out for the court to take is to say that these warrants are Constitutional and probably that the warrant that was obtained in the Chatry case is constitutional and to not address what's a search. The search question is really what to make of the Supreme Court's 2018 decision in Carpenter. And they're just lower courts are hopelessly divided over what to make of the Carpenter case. And that's really hard. So in 2018, the Supreme Court says that cell site location information records that are generated whenever your phone is on about where your phone is, loc just needed to connect your phone to the phone network, that those are protected under the fourth Amendment. And the court has this is an opinion by Chief Justice Roberts which could be interpreted a lot of different ways, like why is this protected under the fourth Amendment when traditionally the rule is that third party records are not protected? Well, he talks about these things and some people say that's a totality of the circumstances inquiry. Other people reduce it to rules and you get really different answers depending on which of those approaches you take. So there's this lower courts hopelessly divided over that. And that's a really hard question. I think the easier question is really taking on this fifth Circuit case on whether geofence warrants are constitutional at all. And so the fifth Circuit in a case called United States v. Smith said you can't do these warrants. It's not that a warrant is needed, it's that you're not allowed to use a warrant. This is sort of completely protected under the fourth Amendment. You can break it to someone's home, fine. But you can't obtain their records because getting their records requires searching. The way Google happens to do it is they query the whole database for responsive records. And that's like searching the homes of hundreds of millions of people is sort of the fifth Circuit's analogy. And I don't think that makes a lot of sense because scanning through records, if it's non responsive, it just is a nothing. It's not, it's not like you've searched someone's house if it's not responsive. And so I think that's probably the easier part of the puzzle to take on.

A (40:55)

Professor Oren Kerr of Stanford University. We might need to have just like a regular segment David called like the fourth Amendment. And you with Professor Kerr. Thanks, Professor. Talk to you soon. All right, David, when we get back, we've got another redistricting opinion, this time from the ninth Circuit about California's mid cycle redistricting. Remember when we talked about all the stuff spiciness out of Texas from their mid cycle redistricting The Supreme Court weighed in. It was a whole ball, a mess. Well, enter the ninth Circuit. And here we go. We'll be right back. All right, David, so to provide some history here, if you remember, the Trump administration told Texas, hey, why don't you redistrict, even though it's not post census? And Texas was like, no, we don't really want to. And then DOJ sent a letter that was like, you have to, because the previous districts were racially gerrymandered and you have these majority minority districts that are by definition constitutionally infirm. And then Texas was like, oh, okay. And so they did a mid cycle redistrict thing. The panel that heard that case, because remember, these Voting Rights act cases go to a three judge panel. First they act as the district court. Two of the judges on that panel said, no, this is not good. You use race because DOJ told you that majority minority districts were unconstitutional. That's insane. And then you had the fiery dissent from Judge Smith saying, this is partisan redistricting, if I've ever seen partisan redistricting. And you're trying, trying to pretend that race was a factor here. They might have been trying to pretend race was a factor here, but we all know this was about Republicans wanting to pick up seats before the midterm elections. It goes to the Supreme Court on the interim basis of which map Texas will use, the previous map, the new map, or, I don't know, some other map. And the Supreme Court, as we predicted, David, said, for this cycle, you're going to use the new map and let this case run its course through the appellate process, and we'll deal with it later. But, but for right now, we defer to the state to make their own maps instead of having judges determine what the map will be. Okay, so Texas does all that, and then California is like, oh, really? You want to add all these Republican seats? Well, great idea, Texas. We're going to add Democratic seats to balance you out. A similar lawsuit is filed in California. It makes its way to the Ninth Circuit. Two judges of the Ninth Circuit are like, thumbs up. What's good for the goose is good for the gander, y'.

C (43:47)

All.

A (43:47)

But we have a dissent from Judge Ken Lee, and I just want to read part of it, David, before I get your reaction. It is a sordid business, this divvying us up by race, quoting Chief Justice John Roberts back in 2006. But California sullied its hands with this sordid business when it engaged in racial gerrymandering. As part of its mid decade congressional redistricting plan to add five more Democratic house seats. We know race likely played a predominant role in drawing at least one district because the smoking gun is in the hands of Paul Mitchell, the map maker who drew the congressional redistricting map adopted by the California state legislature. Mitchell refused to appear before our court to explain how he drew the map and invoked legislative privilege for staying silent. But before this lawsuit was filed, he publicly boasted to his political allies that he drew the map to, quote, ensure that the Latino districts are bolstered in order to make them most effective, particularly in the Central Valley. He also bragged on Twitter that The proposed Proposition 50 map will further increase Latino voting power and adds one more Latino influence district. True to His Word, CD13 in the Central Valley has the hallmarks of a racially gerrymandered district. It is majority Latino district that oddly juts out in the north to capture Latino areas to the exclusion of more democratic but more white areas nearby. This was no accident. Dr. Shawn Trende has offered multiple alternative maps for this district that are more Democratic but less Latino, which presumably would be more favorable if this were just a case of political gerrymandering. Why did California create this Latino majority district? It is not because Latinos lack political power and must be given special protections. California today is not like the deep south of yesteryears. Far from it. Latinos are the largest racial ethnic group in the state, have won statewide races and hold dozens of seats in federal and state districts in California. In fact, their political potency is likely the reason California's Democratic state legislature created a racially gerrymandered district as part of a racial spoil system to award a key constituency that may be drifting away from the Democratic party. Well, David, how do you place this against Texas and the evidence of that racial gerrymandering? And is there really an option to uphold one of these and strike down the other one? Wouldn't that just put the courts in a terrible position if they're like, Republicans can do it, but Democrats can't because they didn't like, dot their eyes right or put like a dumb tweet on X?

B (46:14)

I think the interesting part of the lead assent is that what he did was very intentionally drew a distinction between a partisan gerrymander and a racial gerrymander. And what he said was that essentially like, if it's a racial gerrymander that's also partisan, it's sort of presuming it's constitutionality. But if you have a racial gerrymander that you can't track on a partisan basis, then that's a racial gerrymander. And I think that's a pretty solid argument, honestly. However, you know, when he talks about this is not the Deep South. Correct. It means it's not Texas and across the South, a racial gerrymander and a partisan gerrymander, the same thing at a level that many other areas of the country don't match. And so I'm in the weird position of agreeing with the lead assent and the original three judge majority in the Texas case that I think both of them are unlawful racial gerrymanders. It's just that Texas has a better partisan argument to go along with a racial gerrymander. But I think in both circumstances, what you were do, both states are pretty obviously messing with the lines on the basis of race. That is something that I think, you know, if you're talking about the Voting Rights act and what the Voting Rights act has to say about it, I think the court's desire to stay out of partisan gerrymandering has become so pronounced that the concept of a racial gerrymander is just almost fiction. But to the extent that it exists at all, it might exist in this Lee context. In the context Lee's talking about where the partisan gerrymander would be more extreme and more relevant if you didn't do the racial gerrymander than if you did. So it's, it's complex. But I'm just going to agree with Justice Roberts is a sordid business divvying up people on the basis of race.

A (48:02)

All right, so if we lived in happy fairy unicorn land, I agree that you should strike down both maps, and I agree that the California map is worse than the Texas map, probably. So if you're only going to strike down like, I think California is worse, but I think Texas is still above the line. So I think you can strike down both. Happy fairy unicorn land. In reality land, in 2026, you have a Supreme Court that does not want to be in the redistricting business. They're like, this is just not our problem because you guys keep running to us with your political problems. And these are problems that could be solved politically. You know, you're not really disenfranchising voters in any traditional sense. And so we're not going to get into the business of sorting out your partisan gerrymanders and which ones are too partisan to rise to some sort of like, due process or equal protection problem. And now all you've done is every single gerrymandering case that you used to bring you now just like use the word racial gerrymandering and hope that we are like, oh yeah, we'll get back in this business. So I think there is very little chance that the Supreme Court weighs into these. And I'm going to get a flood of emails about this, but in part because this isn't 1965 and who's getting hurt here is just not nearly as clear cut as, you know, post Civil Rights act racial gerrymanders.

B (49:35)

One of the things that the case law used to do maybe a little bit more, but doesn't do as much, is draw distinctions that not every state in the country has the sort of the same history and there's not the same history of gerrymandering everywhere else. And you know, it reminds me just kind of in an adjacent way of the way that affirmative action case law developed. A lot of the cases did not come from Alabama, Ole Miss, those they came out of California, Michigan, etc. That didn't have the same history. Right. And so it's a very interesting counterfactual. What if the original challenges to affirmative action were challenging Ole Miss or challenging Alabama? It might be a very different kind of outcome. The one thing I'm going to agree with you, like double underlined, bold face, italics. The Supreme Court does not want to be in the, in the redistributing business. It just plainly doesn't want to be.

A (50:28)

And in the meantime, we're waiting for that Voting Rights act case about Section two. I think it's pretty clear, David, that they are going to release that as late as they can so that it can't affect the 2026 midterm elections one way or the other. Because if you were going to try to draw maps based on what the Supreme Court just said, you would have needed to do it in like October, November. I mean, filing deadlines for the primaries have long passed, so I would not hold your breath for that case. Before we go, David, I want to talk about the letter from Claire again, our nine year old listener.

B (51:05)

Love it. The most unifying content that we have shared on this entire podcast. Everybody loves Claire, so this is great.

A (51:13)

I've gotten so many emails in this past week, you know, just like to the POD or whatever. And they just start with, I know I'm not a 9 year old, so this won't be your favorite letter, but. And then like ask questions and you're right, you won't be. We did get one hater on Twitter that said that he hated the letter and the different Colors made him seasick. And what I say to you is, yeah, you're not my person. What can I say? Claire is my person. Okay, so to refresh everyone, Claire says her dream job is to be a lawyer. And she had a few questions. What is it like to be a lawyer? What makes a good lawyer? Is being a lawyer hard? Is being a lawyer a good or even great job? Did you want to be a lawyer when you were a kid? What are some things I should do now as a nine year old that could help me become a lawyer when I get older? So I asked you guys to like send in your thoughts. We got some really great ones, David. And speaking of Sean Trende, the, the data analyst who was quoted in the lead assent. I'm going to start with his take. You're going to get name checked twice. Shawn. Okay. What makes a good lawyer? This is a very, very important question that I would guess most Harvard law students get wrong. The skills for being a good lawyer are different than those for being a great lawyer. And if you don't have the skills to be a good lawyer, it doesn't matter if you have the skills to be a great lawyer. To be a good lawyer, you don't have to be terribly smart or particularly skilled writer or a good debater. Those are good for being a great lawyer. To be a good lawyer, you have to be very detail oriented, have what we call high executive functioning skills, and be extremely conscientious. Most of being a good lawyer is being a lawyer that is always prepared, doesn't put off writing the letters, responding to counsel, or the memo, summarizing the deposition, reads the footnotes, keeps the calendar current, etc. That sounds very easy, but for a lot of people it is very, very hard, including many people who have the distinct skills needed to be a great lawyer. So to prepare, I would work on organization and not procrastinating. Keeping your notebooks organized like your teacher suggests, not waiting until the last minute on assignments, doing your homework on time. As it turns out, that will make mastering the skills needed to be a great lawyer much easier.

B (53:30)

One of the best ways to become a good lawyer is know your material. Know your material before you take a test backwards and forwards. And getting to be in the habit of not cramming, but absorbing. Those are two very different things. If you cram, you can know the material and then it disappears. But if you absorb it, you know the material and it sticks. And in cases and in transactions and in everything, it's got to stick for a long time. You know, I had a case once, and I've talked about it, that was seven years long from start to finish, seven years long. So I had to know that record. I had to know it inside and out. And I will tell you this, Sarah, my best, my favorite courtroom moment of my whole career that I most enjoyed, that was most impactful, like most dramatic occurred because I paid attention to detail, not because I had any particular talent regarding my oratory in that moment or whatever it was. I had read everything and I knew everything about the case. And when somebody contradicted their deposition testimony, I knew it instantaneously, and I knew exactly where to go to catch them in the lie. And that's not talent. That's just like, you know, grit and attention to detail. And I'm not saying I'm the grittiest person because I have had a procrastination problem my whole life. I'm just saying when I did the gritty work is when I was so much better. So I loved that, I think. And that sounds unglamorous, but guess what? A lot of law, you have to do the unglamorous stuff for the glamorous moment, because that moment in that courtroom was everyone, everyone was so locked in, like you could tell what was happening live. And so it was quite dramatic. But the amount of just hours that went into to prep me to be ready to do that was just ridiculous. And again, I'm not saying I was the best at it. I don't want to make it sound like, yes, I nailed this, but I do know that I was at my best when I was prepared details. And I was my worst when I crammed.

A (55:38)

All right, David, I want to read you a few more. This is from Andrew Fleischman. If you're not following Andrew Fleischman on Twitter and you like lawyer Twitter, you're making a huge mistake. He's an important follow number five. I knew I wanted to be a lawyer even when I was a little kid. Being a lawyer is a lot like being a teacher. It is about learning things and explaining them. But it is also like being a doctor because you find someone in big trouble and you help them. It is a job about learning. Some people think that being a lawyer is about arguing, but really it is a job about making friends and understanding people, even the people you are arguing against. A good lawyer is a good listener. Amen, Andrew, because I got this very wrong. I thought I'd watched a lot of Law and Order as a kid, like, all of them. That was what my dad and I did on federal holidays is watch the Law and Order marathons. I thought being a lawyer was finding a technical way to not lie. Right. And it's all about arguing and it's all about loopholes and it's all about like, well, if they didn't listen to me closely enough, that's on them because I'm so clever. And I find that a lot of one LS think that way and certainly a lot of sort of pre law kids think that's the way to be a great lawyer. It could not be more wrong. I love the way that Andrew phrased this. It is a job about making friends and understanding people. I would add to that. It is about understanding other people's incentives, what they want, why they're there. And that's it's a high EQ job if you're doing it well.

B (57:03)

I think a consequence of extreme attention to detail is extreme understanding of the other side's perspective. And so, you know, one of the things I would tell younger lawyers when I was running litigation teams is that if you can't articulate the other side's case as well or better than them, like if I sat you down and you could sit, I want you to be able to really hammer me with their case, then you're not going to be able to do your job well. And I think that comes along with attention to detail. And it also comes along with listening and keeping your mind and your eyes open and listen and absorb. I love that. I love that comment.

A (57:41)

Okay, a few more. One from Eli Nakmani, who was answering the question. Yes, it is a good or even great job. It is one of the few jobs for which the only limit on your ability to change the world is the number of hours there are in the day. Law touches everything. No matter what interests you, this job allows you to make a difference about it. Love that. Also from Timothy Sandifer, who's a VP at the Goldwater Institute and an adjunct Cato Institute. Claire, There are many different ways of being a lawyer, like how a driver can drive a truck or a bus or a big rig. The work I do is wonderful. I sue the government for a living to get it to obey the Constitution. You know how adults like making rules? Well, adults break the rules all the time. They often break the Constitution even though it's the biggest rule of all. And they get really angry when you say they're wrong, but they are wrong. My job is to take the government to court and get the judge to make them follow the Constitution. It's a Lot of work, but it's also fun. Sometimes it can be hard and sometimes the judge lets them get away with it. And sometimes even judges break the rules. But sometimes you win. And when you win, you've helped protect freedom, which is the most important thing in the world. And that's a great feeling. To be free is a very rare and precious thing. It's something millions of people in the world today don't have and that they would give anything in the world to get. We have some of it, so I love to protect it and expand it, which is why I became a lawyer. David, I have one more to read you today. And again we'll keep reading these because there's so many good ones and I think they're all great advice, but this one gave me some joy. Claire, I think you'll have no problem getting into law school a good one. And getting law jobs. Good ones. You seem dedicated, smart and intentional. What should you do now as a 9 year old? Put down your tablet if you have it, your phone when you get it? Treat social media like a brown recluse spider that somehow might be necessary to keep around for some specific aspects of your life, but who mostly wants to bite you and give you a horrible necrotic tissue disease. Go play with friends, go get smoothies, spend afternoons at their houses. Challenge yourself. How many different kinds of people can you become meaningfully friends with in the next five years? We'll always have smart history, mathy law Y people. But what will be rarer and rarer is someone who knows people genuinely and broadly, not followers on Insta or X. Real vibrant relationships who inform who you are. If you're looking for the stellar edge, I can imagine nothing more standout ish than spending your childhood in real life with real people. There's so many good ones. Okay, we'll do more in the next episode. But David, I'm going to leave it there. You can go on X and I put up the letter on January 21st and you can leave your own great ideas for being a lawyer. And thank you again Claire, because this is amazing content and it's making me like, I don't know. I'm inspired by all the lawyers who love their jobs and love giving advice to future nine year old lawyer Claire.

B (60:33)

It's inspiring me as well. It's fantastic. So thank you.

A (60:37)

Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up@thedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes. Two gift memberships to give away access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us@advisoryopinionsthedispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.

B (61:57)

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A (62:17)

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