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You ready?
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I was born ready.
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C
Welcome to Advisory Opinions. I'm David French. That's Sarah Isger. And you might have noticed a reversal of roles here for a moment. I'm weighing in as host today because Sarah has returned from vacation and is recovering from what fried rice induced food poisoning. Sarah, is that what we're dealing with?
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B
There's good news and bad news. The good news is I had chronic bronchitis for seven weeks. After two rounds of antibiotics, I am good to go. No more chronic bronchitis. The bad news is that I celebrated with some airport fried rice. That was a mistake. I see that now.
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C
Yeah. Celebrating the phrase celebrated with airport fried rice has never been uttered before in the English language and may never be uttered again after your experience. But that's not what we're going to be talking about today. So we're going to do the B side of the Venezuela operation earlier this week on Tuesday, David Latt and I talked about what you might call the A side. In other words, was the actual operation lawful? We talked about that at great length. And then this is the B side. What about the indictment? It's the indictment itself as opposed to the military operation. Is the indictment lawful? Is the indictment going to survive in federal court? So we're going to talk about that for a bit. We're going to tie up loose ends from reader questions about our Venezuela discussion from before. And then we've got a really a potpourri of really interesting circuit court opinions, one about mandatory diversity training, one about the church autonomy doctrine and religious hiring, and then a wild qualified immunity case where I have to ask, did a panel, an appellate court panel, just destroy qualified act as if qualified immunity doesn't exist? And should we be happy about that? Question mark? So we're going to go through all of that and maybe even some potentially previously undisclosed, spectacularly exciting things that you will not, definitely will not hear if you don't tune in after the break.
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This episode of Advisory Opinions is brought to you by our friends at Pacific Legal Foundation. Since they were founded in 1973, PLF has won 18 Supreme Court cases defending the rights of ordinary Americans from government overreach nationwide, including landmark environmental law cases.
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Like Sacate v. Epa.
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Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases.
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That make more of America's land and.
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Resources available for productive use and to make sure freedom drives our environmental and natural resource policy, not fear. To learn more, visit pacificlegal.org flagship.
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And we're back. Okay. So, Sarah, when David and I talked about Venezuela, we spent 99% of our time on the actual military operation itself. We talked about 1989 Bill Barr opinion around Panama, the use of civilian law enforcement overseas, the use of the military to assist civilian law enforcement. We went through all of that. So. But we are going to take a look at can we prosecute him in federal court? Let's start with that. Let's start with just, Sarah, the simple question. Once you've gotten him, once you have him and you bring him into federal court, is it now all just going to be over through a motion to dismiss because you can't prosecute him, A foreign leader in a US Court? Or is it a situation where. No, really, we kind of can. And I think unlike the international legal question here, which is, I think, one of the answers to the international law questions, I think there's a clear answer to the international law question with no possible path for enforcing it. This one, I think, has an equally clear answer and with a path to enforcing it. And I think the answer here is pretty clearly under American law and precedent, yes, you can, you can prosecute him. You've prosecuted prior heads of state. Before Manuel Noriega, there was very famously a pardon of a former head of state of Honduras recently. He could only be pardoned because he was prosecuted. On the one question of can we prosecute him for extraterritorial criminal activity, the answer is yes. On the other question is, is the case against him solid? The answer is, I don't know. I don't have visibility into those facts. But is the case against him solid? Is a very different question from can we prosecute him?
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B
I think we have to break this up into two pieces, at least for me. One is the like can we? And one is the should we? On the can we? I totally agree with you that the precedent. Certainly we can. There's nothing stopping us because he's a foreign head of state. For instance. Now, if you dive into the actual charges, there's four here. Two are related to drug trafficking. As long as you proved that he was trafficking drugs in the United States. Like, if we want to get nitty gritty, I don't even see any problems with that. I will say the second two charges have some problems. Potentially. They are possession of a machine gun and conspiracy to possess a machine gun, more or less. Now, as many of you have asked, as I have asked myself, as I sat pondering my choices of airport sushi, the indictment itself says that he never possessed the firearms in the United States. So this is count three from at least in or about 1999 up to and including in or about 2025, in an offense begun and committed out of the jurisdiction of any particular state or district of the United States, he had possession of firearms that violated U.S. law. And you're kind of like, that's weird. I'm sure lots of people in different countries own guns that would violate U.S. law. I'm sure lots of people own lots of things that would violate U.S. law or do things that would violate U.S. law, but they're not in the U.S. so what, we can just go grab people and say, you are subject to US law? Okay, so this is under 18 USC 924. David, we have talked about 924 is our like, if there is one citation in the code that you and I go to the most, it's 924. That's not a coincidence because it's also the one that federal prosecutors go to the most. This is all your gun crimes.
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C
It's a full employment act for criminal lawyers. That's what 924 is.
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B
It's the owning a gun while you're under a domestic violence restraining order, Mr. Rahimi. It's the owning a gun while you're addicted to drugs, Mr. Biden, et cetera, et cetera. Okay, so here's the part that is relevant to us. Basically, it says if you are being charged with a gun trafficking crime and you used a machine gun to do that, if the firearm possessed by a person convicted of a violation of the drug trafficking crime basically had a machine gun. Okay, so this is a little bit bootstrapped, but you see how it works, David. He never owned the machine gun in the United States, but he was doing the drug trafficking in the United States, and then he used the machine gun to help with the drug trafficking that was in the United States, I gotta say, that does not help me sleep well at night. In terms of, like, people committing crimes wholly in their own country, but that violate U.S. law as long as they violated some other U.S. law and owned a machine gun.
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C
Yeah, you know, you read 18 USC at 941. And the statute on its face is not territorially bound. It says, you know, if you commit a crime for which you may be prosecuted in any court, and you use or carry a firearm, or in furtherance of any such crime, possesses a firearm, so the statute itself is not bound by geography. It's just if you can be prosecuted for this other crime and you own it and in furtherance you possess it. I'm not sure, Sarah, that is necessarily going to survive the, the course of this litigation. I mean the statute is extremely broad. But I do wonder if you begin to get into some fundamental due process issues in this kind of circumstance. But putting aside the criminal, the, the, the gun crime elements of this, if they can prove the trafficking elements, he will go to prison.
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Yeah, then no problem. And to be clear, Maduro's a really bad guy. Nothing about what I'm saying doesn't mean that like I don't want him behind bars for the rest of his life. Of course I do. Any right thinking person I think should. But if we were treating this like any other criminal defendant, I would be looking at those gun charges with a little bit of side eye. The drug trafficking charges kind of seems like they have him dead to rights on that one. And just in that can category, David, precedent, US Law, everything is sort of on the side of the. Those drug trafficking charges are no problem. The gun charges are a little bit in the weeds of why they might be a problem. And you know, indictment counts get dismissed all the time. You know, you sort of, I'm not saying you throw the kitchen sink sometimes you add charges later, of course, but like it's just not a very big deal to have these gun charges. And maybe they stick, maybe they don't. Maybe they get tossed out at some point, maybe that gets acquitted like Mehmeh man. So I think it's intellectually interesting. I don't think it is practically interesting for the defense team for Maduro, for instance.
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C
And there is another question that we got which I think is a very sharp question, which is, wait a minute. If the actual seizure is in violation of international law, can you prosecute him? If the seizure is unlawful, can you prosecute him? And there's actually a pretty. There's a case, a Supreme Court case that I don't think we've ever talked about, Sarah. It's one that I'm old enough to remember in real time and you're probably not. This is an age gap case right here. 1992 case called United States versus Alvarez machine. And this is where a citizen and resident of Mexico, and I'm reading here from the syllabus, was forcibly kidnapped from his home and flown by private plane to Texas where he was arrested for his participation in the kidnapping and murder of, of a DEA agent. The district court originally dismissed the indictment on the grounds that the original removal the kidnapping was unlawful. It violated the extradition treaty. So here you had a violation of international law between the United States and Mexico and ordered the government to send it back. Send him back. And the Court of Appeals affirmed. And however, the Supreme Court said, we can keep him and prosecute him. And so the legality of the seizure, which Jack Goldsmith had a great piece that we talked about where he said, look, this thing violates the UN Charter. There's not much, really. It's hard to say otherwise. And the U.N. charter was a Senate ratified treaty for the U.S. i think it was 89 to 2. That would be an overwhelming majority. But violation of its treaty obligation does not result in a requirement to release the defendant.
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It's sort of the reverse of, you know, Fourth Amendment remedy, David. Right. The unreasonable search and seizure, then it gets thrown out. Like, you can't use that evidence against them at trial. Like that is an extra constitutional remedy. It's a prophylactic that is judicially created. We just don't have that when it comes to your rights being violated and how you got brought into custody in the first place. But to me, it sings of a very similar song. We just decided not to have a prophylactic for it.
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C
Right, right, exactly.
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B
They're like exclusion remedy on the one hand, and then no, excluding the whole defendant, giving the defendant back on the other hand.
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C
There would be a lot of reasons. If you're just designing an international system, let's say you're doing that Rawlsian veil of ignorance international system. Do you want an international system where I can be kidnapped from one country by agents from a foreign country and brought to another, you know, brought to that country to stand trial for charges in that country? I think you would say no to that.
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B
I don't know. First of all, the word kidnapped has a lot of, you know, it's carrying a lot of water there. But like, when just taking our own country, when the police break into your home to arrest you for a crime that you committed here, they're not kidnapping you, they're arresting you.
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C
But if it's the French police, the gendarmes, fine.
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B
If I went to France, murdered someone, then flew back to the United States, I don't know, maybe behind the veil of ignorance, I think the French police, if they want to come over and, like, arrest me under French law and bring me back for a crime I committed in France, again, we're now, I like that we're moving from the can to the should. In a should world, maybe, I don't know. You think that's so crazy, like, you committed a crime there Then you left. Why? Like, I know the way that we currently do this is we have extradition, generally speaking, or we don't have extradition treaties. But, like, if the police really care about that crime and want to come get the person, like, really? You don't. Again, we're. We're behind the veil time.
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C
So I think the problem you have is, and this is the theory I'm going to float by you, is that this whole doctrine is the legacy of the Monroe Doctrine. The bottom line is in a functioning sovereign system where you're dealing with sovereigns on more or less a pure basis, the idea that, say, the gendarmes would, rather than work through diplomatic channels and work through international treaties for extradition, ask us to seize the person and ask us to extradite the person to France, would load up on French helicopters supported by French aircraft to create a security cordon somewhere over, like, eastern Virginia, get their dude and fly them out guns blazing. If one of our local sheriffs is like, hey, why are a bunch of people breaking into that house? I'm calling the FBI. You got an op? No, nobody's. What's happening? Here comes a missile.
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I'm agreeing that it's a bad idea. Meaning, like, yes, extradition treaties would be much cleaner all around, but again, I've gone over to France, I've murdered someone, and I've come back to Virginia. And for whatever reason, they're like, it's just low on our priority list. We're not going to bother. We've got a lot of other things you've asked for, and we're doing those first. And the French are like, no, we actually really want to prosecute this murder. The question is like, again, behind the veil. I agree that it is far more likely to trigger an international incident. Far more likely to, like, there's all sorts of reasons. France may decide that's a really bad idea, but could they. Again, behind the veil of ignorance. I'm not sure that that, like, offends my sense of sovereignty, I guess because I'm the one who went over there and committed the crime. But can I float my crazy idea by you? My, my behind the veil should crime or should question. Okay, now again, full disclaimer. Maduro's a really bad person. I went to Venezuela pre Chavez, pre Maduro, several times. Like, I love this country. They destroyed it. I mean, for anyone who has watched the Jack Ryan bit, that everyone's, like, moving around where Jack Ryan walks through, why Venezuela is the biggest threat to the United States. Because it's it's such an unstable regime with all of these resources, more oil than any other country, more gold than all of these countries in Africa combined. And so all China or Russia would need to do is basically take over in this unstable regime, park some nuclear weapons, it's 30 minutes to Florida or whatever. Venezuela in the 80s had made huge strides moving from sort of agriculture and farming into ecotourism. So you really see the stories of Costa Rica where I just was and Venezuela diverging and like Venezuela could be Costa Rica but with a ton of oil and gold and you know, all this eco tourism, I mean it's tragedy doesn't begin to describe what has occurred for the people of Venezuela.
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C
1/4 of the population, the pre Maduro population of Venezuela has left the country. Like if you, there are things where, you know, the legal thing, the race, ipsiloquidor, the thing speaks for itself. You're a bad ruler. You're not. Bad's the wrong word. You're grotesque. When 1/4 of your national population leaves, like you're grotesque.
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Anyone with the resources to leave. Those aren't randomly selected Venezuelans. They're the people who could get out. Okay, So I say all that to say like I am heartbroken by what has happened in Venezuela. But David, again behind the veil of ignorance, basically when we are talking about a head of state doing official acts for his country, I think that can only be answered with military response. And I don't want to corrupt our court system and the rule of law to do a thing that is actually about sovereign state versus sovereign state. Now if you are some random senator who again like flies to Virginia and murders someone, that's not an official act. Just because you're a politician, I don't mean you get immunity. If you're the president of the country and you come into our country and murder someone. Like same thing, right? But now I'm going to really start to parse this, David. Okay, you're the president of a country and you as a side hustle, start doing drug trafficking so that you can be a billionaire, as by the way Maduro is at this point, then same that's the same as the murder, right? You, that was not an official act. But if you are the head of a foreign country and do something antagonistic to American interests for your as an official act for your country. Now in this case the drug trafficking gets a little dicey, but especially given the oil and gold resources. But like you are like, ah, you know what? It's the only way that we can make money and sort of f the US we think it will also hurt them. And so we want to make sure there's drugs flowing into the US because it's slows them down, hurts their economy, kills their citizens. It is, in a sense, an act of war against the United States to engage in drug trafficking. It is the official policy of Venezuela, as the president of Venezuela, to do this drug trafficking. I think the answer is go to war with them, kill the guy. Again, behind the veil. This is not about the specific facts in this specific case that I'm talking about. All of those military options to me are what a sovereign does when another sovereign has done anything, for that matter. That's how real world world works. But our court system is not made for that. And so I don't think it makes sense to take a head of a foreign country and bring him to the United States to stand trial for an official act from that country. And if this sounds in Trump v. United States and official act immunity for our president, they're actually very, very different in my view. But there are some core similarities. So, for instance, Trump, the United States has nothing to do with Maduro, because Trump v. United States was about allowing for a robust executive and someone to be able to run our country. We don't give 2 cents about someone else running their country. So the reasons for Trump v. United States just don't apply to a foreign sovereign. However, there is this whole other thing in my head, like body of law about how countries interact with each other, David, where, yes, a foreign head of state doing some official act. I think it corrupts our court system to try to deal with that in our court system. Am I making sense?
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C
You're absolutely making sense. And you know, again, in this could, should scenario, what you realize is what we did is unthinkable in Europe. It's unthinkable in China, Japan, South Korea, Australia, New Zealand, Singapore. I mean, it's unthinkable in a lot of these other parts of the world. It's thinkable in South America. Why is it thinkable in South America? Because we've always treated it like this. You can say, stop your pearl clutching about South America because we've just always toppled these governments is what we do. And they're right. This is something that has been done a lot. Doesn't mean that it's legal. Doesn't mean that it's legal. Guess what? America has violated international law before. Guess what? America has violated domestic law before in its military operations. But I think that we just have this Overhang about South America and it's being revived. This Monroe slash Donroe doctrine, that, that's kind of our place a little bit. And honestly this is, you know, that the doctrine that you get out. I do wonder, I do wonder if Alvarez machine would be decided the same way if the international incident was with the government of France or Great Britain.
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B
Let me give you another example from my should behind the veil problem. Imagine a foreign leader engaging in some, you know, mortgage fraud in the United States. He owns a home in the United States, let's say, but he is also the head of a very oil rich country and he's refusing to grant some mineral rights, leasing to the United States or we don't like the way he's treated some of our citizens who have leases over there, whatever, you know, like basically there's a minor US legal infraction and there's a major foreign policy disagreement. So we go over and take that head of state who was making official decisions on behalf of his country and bring him back here to be tried on mortgage fraud. Nobody thinks that would be a good idea right now. Again, I want to be very clear. Maduro is a murderer and a drug trafficker as far as I'm concerned. All the things. So that's why I think it's better to do this as the should behind the veil conversation that if you're ahead of state, it's going to be very hard to extricate those official policy questions like Maduro won't give oil rights to the United States for instance, from whatever we're charging him with. But David, back into the can world real quick. So does Maduro have some vindictive prosecution, selective prosecution, Vindictive prosecution claim? Absolutely not. That motion will lose, lose, lose.
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C
No, no, no. First, I think the fact that we've talked about vindictive prosecution so much in the last 10 to 11 months could be misle to think that that's generally a viable defense. So the general rule is if you file a vindictive prosecution motion, you're going to lose, lose, lose. Like that's just the general understanding. However, there are highly unusual circumstances like James Comey, Letitia James, where maybe possibly they have a chance, a greater chance than some other similar motions. Not here. This is not going to be. And especially after you've had a Noriega prosecution, you had a prosecution of the president of Honduras. This stuff is pretty well established.
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B
And by the way, just to preempt all those emails that I'm about to get, like why weren't you upset about Noriega? First of all, I was a child, a very young child. But second of all, like, yeah, I think everything I'm saying applies to Noriega. Noriega is a really bad guy. I don't think I would have brought him into US Courts. Now, there's all of these other examples. You mentioned the Honduran dude, but there's a bunch of lesser politicians that get brought into US Courts to face charges, often drug trafficking related. Again, I guess I would separate out official act versus unofficial act just because you happen to be a politician or a senator, for instance, from your country. Very hard for me to see how drug trafficking would fall into an official act for you. It becomes quite different if you are the head of the country, for instance. And we also have a problem, David, with Noriega, for instance, over who is the head of the country and do we recognize the head of that country. And if the US can quite easily just say, like, we no longer recognize you as the head of your country. Oh, well, if we can just wave that magic wand, then maybe none of this exists, in a manner of speaking.
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C
Well, in the Noriega example, we talked about this a bit on the Tuesday podcast, but there's a giant. There's a large number of factual distinctions here, including the fact that the Panamanian government had declared a state of war against the United States, including the fact that Panamanian forces had fired upon and killed an American Marine, wounded an American Marine, abducted an American marine, brutally beat him, threatened his wife. There was congressional. In November of 89, there was congressional resolution authorizing unilateral force or unilateral action for regime change, not explicitly authorizing military force, but unilateral action for regime change. So there were legal justifications under international law for armed conflict with Panama that are not present here. The Noriega arrest is analogous, not the precondition, the precursor events to the Noriega arrest. But I think the better course of action, Sarah, is to have a criminal head of state face justice within his own nation's criminal justice system. Because 99% of these guys violate not just our laws, they violate their own laws as well. And they, a new government, a legitimate government, should have first crack at justice against an illegitimate ruler. So my general view would be that the, the, the way to do this from a process standpoint is the Iraq model, not the Venezuela model. But now execution, of course, matters a lot in how history views all of these things. But from a process standpoint, where you have congressional authorization, you have un resolutions, you have legal justification for the use of military force, you have a capture of head estate, and you have them handed over to the domestic authorities in the nation. I think that's a much preferable way to do it. And on that note, we'll come back for some maybe the most exciting discussion of appellate court opinions that has ever been spoken in the English language. But you won't hear it if you leave us before the break.
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A
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B
Put things into a different perspective.
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A
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C
So before we go on, there are a lot of listener questions that we answered in the previous discussion. Sort of weave we, you know, we're weaving our answers into the discussion, but there's one I want to raise that I think gets to a problem I have with the popular interpretation of Trump v. United States. And this is a question that we got that says if President Trump were to order the CIA to harvest and sell drugs to another country in order to fund something that was in the national interest of America, he would not be prosecutable as per Trump the United States. Can Maduro claim the same privilege? Now, we've already answered part two, no. Trump the United States has zero applicability to Maduro. This Trump United States was decided under the U.S. constitution. The Supreme Court's interpretation of the U.S. constitution's protection for the U.S. president, not the Supreme Court's interpretation for legal protection for heads of state. That was not Trump the United States. But the other question is the part one we haven't touched on. If President Trump were to order the CIA to harvest and sell drugs to another country in order to fund something that was in the national interests of America, he would not be prosecutable as per Trump United States. I dispute that. I feel like there's been a lot of popular misreading of Trump the United States and that I and again, I don't agree with the opinion. However, it is not as broad as the popular reading suggests. It does not grant the president immunity for all acts in office. It grants immunity for core executive functions. Now, one of the questions that's left over is, say, a bribe, prosecuting him for handing out pardons in exchange for money. That's sort of, we don't know after that after that. But the reason we don't know is not because the bribery is prosecutable. It is the reason we don't know is because the pardon power is core. The pardon power is a core enumerated power of the president. The manufacture and sale and distribution of illicit drugs is not. Now, you might say, well, okay, pursuing the national security of the United States or the foreign policy of the United States is part of his core authority. But when we're talking about a lot of the hypos after Trump, the United States, we're talking about a corrupt element introduced into a core enumerated power like a pardon. I do not read Trump United States as being so broad as to encompass anything a president does in an official capacity. And indeed, the opinion itself does not, is not so broad as to address anything the president does in his official capacity. Now, it doesn't draw clear lines, and that's a problem, but I do not think it's as broad as the popular reading suggests.
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B
All right, what else?
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C
Let's go to a case that is very, very interesting to me because I think it's going to hit folks. A lot of folks who go through this whole who hear this case are going to have had similar or quasi similar experiences. Okay, so here are some facts. Two employees of the Springfield R12 School District, and this is a case coming out of Missouri. This is an 8th Circuit decision. And so two employees of the Springfield R12 School District brought this action after they were required to attend a program in 2020 entitled Fall District Wide Equity Training, which they asserted demanded affirmation of the school district's views of equity and violation of the First Amendment. The district court originally concluded that the employees lacked standing because they'd not shown an injury, in fact, and awarded lots of attorneys fees. I added the lots awarded attorney's fees to the school district. On appeal, this court affirmed the dismissal for lack of standing, but reversed the award of attorney's fees en banc. Now the 8th Circuit reverses the district court's dismissal of the claim, vacates the award for attorney's fees, and remands for further proceedings. And we don't need to dive too deeply into this. This is not a Supreme Court case. It's a circuit court opinion. But what I found was interesting is here's the core question here, Sarah. What elements make a mandatory training, moving it from simply you're being exposed to information you don't want to hear, which there's no constitutional. I don't have a right to file a lawsuit against, say, a professor because I don't like the content of the class. We are frequently in the educational system, in the corporate world, we encounter mandatory events that provide information we do not want to receive. That's not traditionally grounds for litigation if your employer's a public employer. But when does it move into. You're actually being censored or compelled to speak. And so the way this worked is that you had slides that were. You went through. This was an online, you know, you had an online training module. And they had to mark the correct answer to continue and to finish the training. And so, Sarah, the question is, am I receiving an injury if I'm having to mark as correct things that I do not believe are right to continue on, to receive the training without receiving any sort of negative consequence. And the training here is everything that you imagine really wild training to be. So here's a slide. For example, white supremacy, overt, okay? All the stuff you would expect. Lynching, hate crimes, the N word, blackface, swastikas, neo Nazis, burning crosses, KKK, racial jokes, racial slurs, covert white supremacy, all lives matter. White silence, tokenism, calling the police on black people. I mean, bipoc as Halloween costumes, not believing, experiences of bipoc colorblindness is Covert white supremacy. Yikes. Okay, so the question is here is under what circumstances? Now again, being exposed to that information. Exposed to that information. No, there's no constitutional issue being required to assent to that. Then is that a constitutional issue? Nath Circuit says yes. And I pretty darn sure I'm going to agree with that. Sarah.
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B
That's funny, because I read the majority opinion that said yes, they had standing. There was an injury because they were. Their speech was chilled. It was clear that they were not allowed to voice a dissenting opinion. And in those two questions, they had to pick the correct answer that they didn't want to pick. One of them was basically, if you see some covert white supremacy, should you A, wait until after class to deal with it privately, or B, say something right then and there? And they weren't allowed to pick A. They had to pick B to continue.
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C
And covert white supremacy is including colorblindness. So you have to call out somebody who wants colorblind hiring, say right there as being a white supremacist or you're not up to standards. What? Anyway, keep going. I'm sorry.
- [36:54]
B
This was a very close case for an 8th Circuit en banc, and you had judges of every stripe on both sides. So Judge Steve Collatin, a very famous conservative judge, writes the dissent saying, no, they didn't have standing. I want to read you just the first part. The issue in this case is not whether the school district's equity training program, he put that in quotes, by the way, was inappropriate, misguided or offensive. That is a policy question for the local school board or other elected body. We were informed at oral argument that the local governance process has worked as it should. Employees complained about the training, school board elections resulted in new board membership, and the training program has been discontinued. The question on this appeal is whether the employees can also make a federal case out of it. To establish a case or controversy in federal court, a plaintiff must establish an injury. In fact, a public employee is not injured in a constitutional sense by enduring a two hour training program with which the employee disagrees. Plaintiffs Henderson and Lumley suffered no tangible harm as a result of the training. They received full pay and professional development credit for attending. They continued in their employment without incident. Lumley earned a promotion soon thereafter. I do have to say, David, I hate the training. I think the training's stupid. I think the training actually is saying unlawful things, like, for instance, that colorblindness is white supremacy. I think that actually violates the equal protection clause, for example. So, like it's a bad training in every sense, morally, legally, you name it. But I take Collatin's point pretty well, which is. But that's not really the question here. The question is based on the facts as they presented them, that there's two questions that they had to pick the right answer for to continue. And they didn't like the right answer, they didn't agree with the right answer, and they did not feel that they could voice their opinions in the discussions because they did voice an opinion. People disagreed with that opinion, and then they stayed quiet for the rest of the discussion. Does this rise to an injury? In fact, David, I'm on the no side of this one. I don't. I'm with the dissent because at some point we have to draw a line so that we're not just litigating every damn thing after another and they weren't punished. It would be very different to me if some other people had attended the training and, you know, really argued with them and they had been punished. And then these guys attend the training and so then they're. They feel like their speech was chilled. There's just not a lot of evidence of speech chilling here. And in a two hour training, you know, we don't know what would have happened if they had just said like, no, I'm refusing to. To pick B as the answer because I don't agree. We don't know what would have happened because they didn't do that. So, like, we just don't have the injury, in fact. And then the question is, do they have to get injured to sue? I think the answer is yes, as in, like, they couldn't just say, well, if I had picked A and the answer was B and I had said I'm not, I'm not going to pick B, they could have fired me. Yeah, you kind of have to let them fire you at that point because otherwise it's a two hour training and there's no injury to look at. And instead we're making a federal case out of this thing that doesn't even exist anymore.
- [40:00]
C
My issue here is really core to the compelled speech point. And look, these things can feel nitpicky. It can feel nitpicky to sort of say, okay, wait a minute, is it on the one hand, if it said, suppose there's a training and the training was critical race theorists have identified. And I'm just making this up, guys, don't come at me with this is not what critical race theorists have identified, okay? Just for the sake of hypothetical critical Race theorists have identified the following factors as covert white supremacy. Because they're almost always like, let's say the argument is they're almost always modified by conscious or unconscious bias, motivated by conscious or unconscious bias. And so, and if it says if the question is under Derek Bell and Kimberle Crenshaw's theory is one way of asking that question. The other way of the impermissible way of answering that, of asking that question and compelling a response before you can continue with the training would be to say this is true, yes or no. And requiring me to con, to assent to something that I believe to be false. Not to register that I understand the material. That's one thing I can be asked. If I understand the material, I cannot be asked to assent to the material. So that's my line. And I get it. I, I, I'm, I found the descent to be very interesting and quite persuasive. And I would be 100% with it if it was the exact same training. And all they're doing is they're asking you to say according to the training, the where I'm registering that I've watched it, I understand it. But if it's, I'm registering that I assent to the substance. And I know it sounds a nitpicky, but I think it's these lines do really matter that, so that's why I hear you. It's not a case that I read. And I was like, this is so, you know, you wanted to stand on a tabletop, you know. But I think on balance the majority gets it right.
- [42:02]
B
I am much more persuaded by the compelled speech part of this. Although, again, I'm not going to require a lawyer to draft every question in some stupid training. And I do think this was trying to get at, did you listen to the training? Not do you think it's true? But again, the compelled speech thing, I really, really hate compelled speech. So I was, I'm pretty torn on that one. I'm close on it. But the chilling, if you don't, you say something, you feel that people didn't like you saying it, so you stop saying stuff. Your speech was not chilled. I'm sorry, that's just not enough.
- [42:35]
C
Okay. If you want to hear about what might be one of the most fascinating fact situations about qualified immunity that anyone has ever heard of in any jurisdiction across the entire expanse of time, you're going to have to tune in after the break.
- [43:02]
B
David knows he's only hosting one time and is losing credibility with these ad breaks because here we are Back from the ad break. And I'm just wondering what the people are really expecting at this point from this qualified immunity case. But, David, please, please make all their dreams come true.
- [43:19]
C
Yes, okay. I'm going to make your dreams come true right now. I'm delivering on that gigantic promise that I just made. Okay, so this is a case, 5th Circuit. You have before Judges Dennis Oldham and Douglas. We've talked probably of those three, we've probably talked about Judge Oldham more than the other three. But this is not a unanimous opinion. So here are the basic facts, and I'm going to go through a quick summary of the majority and a quick summary of the dissent. The way they. The different ways they phrase this, I'm really stumped by this case. Okay. Plaintiff appellant Juanita Ramirez brought an excessive force claim against Lake Worth Police Department officer Jonathan Granado after he shot and killed her son, Esteban Ramirez, as he fled from pursuing officer. Now, just to put a stop right there, as a general matter, you cannot shoot a fleeing suspect. However, you can shoot a fleeing suspect under specific circumstances where you believe that the fleeing suspect is an imminent danger to the public, imminent danger to the officers, et cetera. But this is not a case that is the fact that he was fleeing meant that he was off limits. No, there are certain circumstances where you can shoot a fleeing suspect. So here's some basic facts. On September 3, 2021, 2:06am, Officer Granado on duty in his marked vehicle heard a fellow officer report over the police radio he's engaged in a high speed pursuit. Officer Granado joins the pursuit. They ran the suspect vehicle's license plate and informed both officers that the fleeing vehicle was not stolen, but that it previously evaded pursuit by a different police agency and that the occupants are considered armed and dangerous. Okay, so this is an important fact. Armed and dangerous was the understanding of the officers as their following. Importantly, however, and contrary to Officer Granada's later decisions, the transcripts of the dispatch and radio communications contain no indication that either officer received information suggesting the vehicle occupants were involved in a drive by shooting. So, armed and dangerous. But there was an allegation of drive by shooting. They didn't have that information. In the high speed crash, the vehicle is disabled. The vehicle continues for a short distance before coming to a stop. At 2:22 in the morning, when the suspect vehicle came to a stop, four unidentified individuals, including Ramirez, exited and fled in different directions. Officer Watson, who had exited his patrol car, observed Ramirez emerging from the rear left passenger door. As he emerged, he held a Handgun in his left hand and a cell phone in his right, though it is disputed when law enforcement learned of that fact. After taking only a few steps, Ramirez dropped the cell phone and briefly paused to receive it. Officer Watson saw Ramirez, quote, trying to flee, but did not see a gun at that point. The following events occur unfolded over the span of approximately 8 seconds. As the officer approached Ramirez from the opposite side of his police cruiser, he touched or grabbed Ramirez and for the first time, time saw that Ramirez was holding a handgun in a downward motion. Upon observing the handgun, the officer pushed off or backed away to create distance. At the same time, Officer Granado stopped his patrol car to the right of the officer. Watson, exited while drawing a service weapon and shouted, he's got a gun. He's got a gun. Officer Granado fired a single shot in the direction of Watson and Ramirez, a shot that officer Watson later recalled passed right by him. That's a problem. Ramirez then ran away from officer Watson in a southwest direction and continue to flee away into a nearby intersection. One of the officers claims that Ramirez was swinging his pistol in the direction of officer Watson. The other officer, however, stated that Ramirez never pointed the gun toward me while he was running away. As Ramirez continued to flee, Officer Granado fired his service weapon at Ramirez six more times without warning. Four of his bullets struck the back of Ramirez's head and shoulders. Ramirez collapsed face first. He died. So that's the majority opinion. And the question was under those circumstances, the officers moved for summary judgment on the basis of qualified immunity. The district court granted the officer's motion, concluding his deadly force was objectively reasonable under the circumstances and he was entitled to qualified immunity. District court dismissed. Appeal follows and a majority says, not so fast, not so fast. He should not have been granted qualified immunity.
- [47:44]
B
This is about to set a land speed record in the fifth circuit for how quickly a panel decision can be reversed by the en banc court. Because remember, qualified immunity is that you violated someone's constitutional rights and that that right was clearly established at the time the district court held that they hadn't even violated his constitutional rights. That in fact it was a good shoot, if you will, let alone that it was clearly established that under these circumstances, I mean, this is why qualified immunity exists. You and I have had some disagreements. You are more anti qualified immunity than I am. I feel strongly that we shouldn't allow courts to skip whether a constitutional violation happened and just say, well, we're not sure if it was a constitutional violation, but regardless, it wasn't clearly established. So we never clearly establish it. And around and around we go. That to me is nuts. But. But I think I am more qualified immunity friendly than you are. I have to say, David, this is why qualified immunity exists. There are pictures in the opinion from the body cams. It is dark. A guy gets out holding a gun and starts to run. To your point, David, about fleeing suspects holding a gun. I mean if anyone's watched a movie, this isn't hard to imagine. You can run away and turn and shoot. Shoot while you're running. I mean, you're holding a gun, remember? He has the gun in one hand and the cell phone in the other. He like he's trying to get away with the gun. Why? Maybe to shoot at the officers. Regardless, I'm with the district court that the shooting itself was not a constitutional violation, let alone a clearly established constitutional violation. Yeah, absolutely. This is heartland qualified immunity.
- [49:33]
C
To me, in my world where there is no qualified immunity, the police just win this case. I mean, this is one of the things in the, in the Oldham opinion is you. He has these pictures, as you say, and he's got a bullet poise. The all these material facts are captured on video. There's a high speed 120 mile per hour car chase. There is some discussion about the drive by shootings. Some dispute. But armed and dangerous, no dispute. High speed chase ends in a residential neighborhood. He has the gun. When he jumps out, it looks like.
- [50:02]
B
His finger is on the trigger.
- [50:04]
C
Exactly. Not only is the cell phone. Does he retrieve a cell phone while holding the grip on the gun. The grip on the gun is finger on the trigger. So this, this is a. What you might call, you know, to use TV movie terminology that you've seen a million times, a good shoot. The thing that's fascinating to me about this case though, Sarah, is how does the majority reach its decision with the existence of qualified immunity precedent. That's what's so interesting to me here. Cause I don't think there's a circumstance either in your preferred world where there's some degree of qualified immunity. My preferred world where there's no degree of qualified immunity. But they're deciding this case in a circumstance where there is qualified immunity. It does exist. It's a very puzzling appellate opinion. To me, it's very puzzling as to being that far afield.
- [50:59]
B
Here's like the money line from the majority. Officer Granada's use of deadly force against Ramirez, who never pointed, brandished or fired his weapon, occurred during Ramirez's flight as a wide open target across a broad street. In an intersection without warning. First of all, we might want to get into the definition of brandished. I think when your finger is on the trigger and you're holding it next to your person while running, that is brandishing your gun. To me, I don't know what other definition we could really have for brandished. So I don't know where they're saying he didn't brandish. I get he didn't point the gun. You do not have to have a gun pointed at you as an officer. Like wait for him to point the gun with his finger on the trigger. You're already dead at that point. That's not the line that officers have to wait for. Again, like I it's a confusing majority opinion and the en banc fifth Circuit. I don't know if there's a sum rev for en banc, but this is about to get some revved.
- [51:52]
C
It also raises, I think an interesting issue which is, you know, we talk about the Supreme Court as not an error correction court. En banc review. That's a great role for en banc review is error correction review to cut off error before it can even reach the Supreme Court. I think it's a, you know, en banc should be able to reverse court circuit precedent, obviously. But I think en banc's a great opportunity for just flat out error correction. So let's wind up. Sarah Supreme Court announced opinion hand downs Friday. So lots of speculation. Tariffs, potentially Louisiana voting rights. Potentially. I don't know. Between those two, my money is more on tariffs than voting rights. Could be wrong, could be, could be something else. But SCOTUS blog is going to be on the case.
- [52:45]
B
Yeah. So SCOTUS blog will do a live blog for the argument handouts. You will have experts on hand starting at 9:30 9:45am over just@scotusblog.com. the opinion will be handed down 10, 10:05 thereabouts. David, here's the problem. Could it be tariffs? Could it be voting Rights Act? Absolutely. And I've said before after this first week, every week that goes by is good news for Donald Trump on the tariff case because if they're going to rule against Donald Trump, they're going to do it as quickly as possible. And I said starting in January. So if it's the tariffs case this Friday, I feel like incredibly vindicated. But you know what other case it could be, David? A unanimous case that you and I didn't even talk about that was argued back in October because this is also the time of year when the Supreme Court just starts handing down the unanimous decisions that were quick write ups, frankly. So it could be tariffs. If it is, you and I will also be on standby. We will do an emergency pod for tariffs, certainly. Or it could be the most boring case that nobody cares about on some international arbitration clause that we fall asleep by sentence to. I just want you to prepare for both possibilities. Now, I want to be clear. Amy Howe, who will be there for the SCOTUS blog, live blog, she will make that international arbitration case sing. She is very good at this. She is an expert in all things. We will not though. We will be long gone if, if it's that. But you know, everyone who watches the Supreme Court is teed up for Friday, let's say.
- [54:22]
C
Yeah, I'm looking forward to it. I'm if I, if I had to place bets, I would place it on there's going to be something momentous, but wouldn't be shocked if it's nothing. But I think it likely will be. And as you said, Sarah, we're on standby. We did not do the Trump v. Illinois. Sorry about that. But there does reach a point where an opinion is close enough to a major holiday that we're just we needed to break. All right, well, we will be back possibly as early as Friday, but certainly back next Tuesday. Thanks so much for listening.
- [54:56]
B
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 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 at Advisory opinions the dispatch.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.