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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 like Sackett vepa. Now PLF is doubling down and launching a new environment and natural resources practice. They're on a mission to litigate cases that make more of America's land and 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 ready?
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I was born ready.
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Welcome to Advisory Opinions. It is Friday, January 9th, and while this is not an emergency podcast, it's an extra podcast. That's David French. I'm Sarah Isger. And we did not get the tariffs case this morning, but we did get a case that I am excited about talking about. But really what we're here to do is talk about the legal situation around the ICE shooting in Minneapolis. Then we will talk about the BO case that came out today that no one is excited about but me and this one guy on Twitter. And then we've got another Judge Bumate church autonomy case. I mean, big, big pod day, David. So we'll be right back. Okay, David, first of all, I just want to completely and totally disavow something that I said on the last podcast. We were talking about the veil of ignorance. And first of all, I'm not sure we did the best job explaining what we meant by that. We just meant, like, what the should would be if you don't know whether you're an American or a Frenchman, you don't know whether you're the ACC or guilty, et cetera. And we were talking about whether we think it's okay for governments to come in to other countries and arrest citizens or people in that country who they think have committed crimes in their country. And I was like, I don't know. Like, if I go over to France and commit a murder and then come back to Virginia, maybe it's okay if the French come and arrest me. I did not think this through, David. That was a dumb thing to say. Just dumb. Like what? So someone says something critical of China, it gets through the Chinese censorship, makes it into China. Now China's secret police can come jump into Virginia and start arresting people. What if we don't even agree on sort of what those definitions of drugs are anyway? This is like why we have an extradition process is so the country of residence of where the person is can Determine whether it's a legitimate law enforcement request or political, you know, intimidation or whatever else it might be. And my idea of behind the veil, we just let countries swoop into other countries and nab people is terrible. That was a terrible take.
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B
You know, it's funny, after we were talking about that, I was thinking, wait a minute, there's actually been reporting that something like that happens in America involving the Chinese.
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Right, Exactly. In my head, like my French murder thing. That's a great, like, yeah, you're right. No problem with that. That's the only best case scenario. Enough of that. Let's move to Minneapolis. Let me just, like, sort of set some of my background here. And, David, maybe you should set some of yours as well. So when I was at the Department of Justice, this was, you know, police involved shootings were something that rose to the level of the Attorney General. And if you ever want to be inspired about the rule of law and frankly, the Department of Justice, you need to meet Deputy Assistant Attorney General Robert Moussey, who is in charge of the criminal side of the Civil Rights Division. So he is the one who makes the recommendations on all the police involved shootings that are brought to the Department of Justice. And when he walks into that Attorney General conference room that, you know, Bobby Kennedy's children's BB gun holes are still in the doors, and it's just this stunning, really inspiring room. And he walks in with all of his binders and the videos that he and his team have poured over. And to be clear, this is a civil service position. This is not a political appointee. Robert Moussey, I believe, is still there as DAG we call it D A A G S. Anyway, I learned so much from him. I trust his judgment. I learned to trust his judgment so much. But that's all to say. I've sat in those briefings and one big takeaway, David, that I have, in any police involved shooting that we DOJ or even the public is really looking over, both parties involved, with the benefit of hindsight at least, could have done something differently to avoid the fatality.
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Yeah. You know, and I think that we often skip so quickly to the law that we forget to talk about the very, very, very, very important events that led up to the fatal moment. And that there are often a lot of decisions that people on either side could have made differently. And so that. That is something that has been frustrating me. Just me talking about this Minnesota situation is everyone runs to the law. You see this online. They're running to the legal analysis as if the legal analysis is. Is the moral analysis, they're not the same. Yeah.
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You know, we can talk about how she, you know, he shouldn't have walked around to the front of the car. She shouldn't have disobeyed police orders. She shouldn't have been there in the first place. He shouldn't have been there in the first place. Those are moral elements that I have no problem with us as a society talking about and all of that, but they are not the same and sometimes not even part of the legal analysis. Okay, so, David, I've broken our legal analysis into three parts. One, to answer the question we're just talking about, what do we actually look at as part of the legal analysis? Is it the moment he shot her? Is it the totality of the circumstances? Can we Separate out shot 1 from 2 and 3, is her intent relevant? Is his intent relevant? Is it subjective for his intent? Is it objective for his intent? Okay, so that's question one. Question two. If he were a state official, could he be charged with a crime if he were a state police officer? Because, remember, almost all of the police involved shootings that we talk about are state. And even though that's a hypothetical question in this case, I think it will be legally relevant to people as they think about some of these other police involved shootings that are in their minds. Number three, of course, is the reality. He is a federal official. Can he be charged? And then, David, this one's really a subpart. But just for my legal nerds out there, if the case is removable but he's not immune, what abstention doctrine would apply here? Let's start with number one. What do we actually look at? And, David, this case we talked about from last term, Barnes v. Felix, is incredibly relevant to this question. Whether you look at the moment of threat, the moment that a car is coming towards the officer, or do you look at the totality of the circumstances? What the unanimous court said in Barnes v. Felix is you look at the totality of circumstances, and then you have a concurrence from Justice Kavanaugh talking about how dangerous traffic stops are, sort of putting a thumb on the scale of the totality of circumstances for the officer. But nevertheless, you do look at everything that leads up to that moment to determine the objective reasonableness of the officer's belief that he or bystanders were in grave danger. And to be clear, David, that means her intent is totally irrelevant, whether she had negative intent or positive intent, whether she was gunning for him or turning the Car. What's in her head doesn't matter.
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Yeah, not relevant because the officer has zero visibility on that unless she says something like, I'm going to kill you. Well, then, then, then that accurately colors the officer's perception.
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Okay, so just under that framework, David, is there anything else like what are the facts, I guess for you then, that are legally relevant as you've watched the various angles of the video? And let me ask this. Do you think it's legally relevant that last year he was struck by a car and required. I've at least read 33 stitches. Or that 15% of officer deaths in the line of duty are caused by cars being hit by cars?
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So the former, no. The latter, yes. So the former, totally subjective. Her rights do not depend at all on, on the. Per the previous experience of the officer. They just don't. And the fact that you might be uniquely sensitive as a result of having been in that terrible situation might mean that you shouldn't be in that position until you can get your head in the place where you can comply with your legal obligations. Now, I just say that not about him, because we haven't even started talking about him yet. I just said this is a general matter. The second thing is. So what am I looking at? So obviously you're looking at the exact moment of the shooting. Obviously. But what totality of the circumstances when you go and look in that case, there isn't a specific time horizon that really applies. It's not like you say the five seconds before the shooting is now extended to the 40 seconds. No, you're looking at training, for example, are they doing what they were trained to do? Are they defying their training? You're looking at things like officer experience when you're Talking about that 50% of officers are killed, you know, I don't know what percentage are killed by, say, a dragging or like a collision where they're run over. But you do have training about the specific dangers that cars present. You have training about how effective is a firearm in stopping a car, for example. And so there's a lot that you're looking at that is related to training, context, larger context, facts about vehicles, firearms, et cetera. So the fact of the matter is, if you say, let's say, for example, just hypothetically, if you say I did X to stop a car, but the X that you do has no hope of stopping a car, and no reasonable person would think that it would, well, your intention to try to stop the car would be less relevant than the total inadequacy of the measures that you use to do it. And so there's a lot that goes into this. And one thing that has frustrated me about the discourse is that the frame by frame analysis, which seems to be the only analysis that people are using, has been disclaimed by the Supreme Court as the proper analysis. Now, they're not exactly analogous situations, because the Barnes v. Felix was in section 1983 case involving a state or local officer, and this is a federal officer performing federal duties. The case law is not as robust around federal officers, but it's going to take a bit to persuade me that a totality, if this ever becomes a case, which is something we need to talk about, if it will even become a case, if it ever becomes a case, I feel pretty confident that you're going to be looking at totality of the circumstances and not just moment of the threat.
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And remember, in Barnes v. Felix, this is the case where there's a toll violation on the car, but it's a rental car. But when the guy pulls over, he basically starts, like, moving. As he moves forward, the officer jumps on the side of the car, the driver's side of the car. He's now between, it's the car, the driver's side of the car, the officer, and the median of the freeway. This is in Houston. And the officer, as the car starts pulling forward, the officer shoots the driver of the car. And one of the questions, for instance, was when he jumps on the car, did he create the circumstances by which he then had to use deadly force? And what the Supreme Court says in Barnes v. Felix is that's not the issue in this case. We were only asked to decide whether it's only the moment where he's already on the ledge of the car and now the car is moving forward and he could get squished or killed in variety of ways. Or do we look at everything around it? And all the court said was all we know is that you look at everything. We are not deciding the police created danger doctrine here. And unfortunately for this case, it's very similar in that sense. The officer initially is behind the vehicle, moves around the passenger side to the front of the car, is holding a cell phone video recording for part of that. Then the car moves. I mean, this is all happening sort of at the same time, but the car is moving back. He's now in the front of the car. The car moves forward and he drops his phone, gets his weapon and fires one shot from that angle, and then he's at the side and fires the additional Two, as the car moves forward, let's talk for a second about the civil part. By the way, to your point, David, we don't have a Supreme Court doctrine on police created danger. Basically, that's why the Supreme Court was like, we'll leave that for another case. And it's like, ooh, we really could have used an answer on that one back in June. So we had it today. But we don't. This difference between the doctrines that we're talking about throughout this conversation are gonna be, you know, 1983, as you said, a civil lawsuit brought against the officer, qualified immunity and criminal liability. And what's sort of interesting, David, is they're not identical, but boy, they collapse pretty tightly onto each other in terms of, again, you're looking at that objective reasonableness to determine that. Okay, we're going to come back to all of this in a sec after we answer questions 2, 3, and maybe 4 if David is feeling like letting me have my moment.
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Oh, you know, Sarah, this is a podcast that it's about empowering the hosts. And if you want this moment on abstention, you get that. You get your moment. This is your show.
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We've never gotten to do abstention on this podcast in seven years.
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We've done it a little. Just a little. Yeah.
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Okay, so number two, David, given everything we've said, he's a state official, in this hypothetical, can he be charged with manslaughter? Can he be convicted? Is maybe, you know, however you want to think about it. Don't worry about the indicted or, you know, just, is it reasonable to charge him.
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My assessment of the ultimate outcome of this case is colored by the ultimate outcome of a lot of other cases. And so if you compare this case to, say, Daniel Shaber, which is one of the most horrific examples of police screw ups I've ever seen, where the officer was actually acquitted. And this was a situation where a crying, sobbing man is being told to crawl to the police and keep his hands in the air at the same time. You can't do it. Try crawling and keeping your hands in the air at the same time. There's just these conflicting shouting command, shouted commands that ultimately results in a young man being killed at close range. One of the more horrific things I'd ever seen, acquitted. Okay, Philando Castile, he's pulled over. An officer smells marijuana in the car. He asked to see the license and registration. Castile says, I also have a gun in the car. And I don't have the exact transcript in front of me, but it was something along the lines of, don't reach for it, but give me your license. So how do you comply with that? In a way that's clearly reaching for a license and not clearly. Anyway, he gets shot and the officer is acquitted. And so against that backdrop, I do not think this circumstance is as egregious as Daniel Shaver or Philando Castile. I also don't think it's. As we talked about, Barnes v. Felix. So in remand in Barnes v. Felix, the court found that the officer had acted reasonably. And that was one where the officer jumped on the car. Like you talk about, officer created danger. He jumped on the car. So if you're looking at it from the standpoint of Shaver, Flander, Castile, these other cases, it's very difficult for me to see that this is a conviction, a case for conviction of an officer. I don't want to prejudge it definitively either way. I just. I think the most salient fact for conviction is that the best analysis that I've seen shows that the very first shot was fired after he was already clear of the path of the car. But what mitigates against that is it was all so extremely fast that you can't be sure the officer knew when the first shot was fired that he was out of the path of the car. The other thing that mitigates against this, having mitigates against the officer is firing at the car in that circumstance wasn't going to end the threat.
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Right. If you think you're standing in the path of the vehicle. But there is another example of this, it's tragic, by the way, where the officer standing in front of the car says, you know, stop, stop, stop. The car lurches forward. She does get off one shot. But as you say, David, that's not gonna stop a car that's aimed at you. And the car in fact hits her and kills her.
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Yeah. That's why the DOJ manuals say, and the DOJ guidance specifically recommends trying to step out of the path of a car as opposed to using a firearm. But when you combine all of these things, it's. Honestly, Sarah, it's very hard for me to see a path to conviction with an American jury on these facts. The way my bottom line is I do not think the officer responded properly, but I don't think he responded criminally. And that's my bottom line assessment.
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That's mine as well. And again, David, I think your training point from the beginning is so important because these officers will have watched these videos of a police officer Being killed. When the car continues after she fires a shot, they will have watched the video of a woman who. The police have stopped her. Her car is stopped. Then all of a sudden, she lurches backwards in the car. They're telling her to stop. The police officer is trying to get out of the way. She then pushes forward, backward again, forward again, and hits the police officer and throws him into the air over a snowbank. And but for that snowbank, he probably would have been killed because the car hit the snowbank and couldn't continue toward him. So, like, even if the point in your mind is, well, he knew he was going to jump out of the way. So the danger, the threat was gone from that second. Well, no, not necessarily. Because she can keep going back, going forward and trying to hit people. If you think that's what's going on at that moment, again, really, unfortunately, now, that's not to say that there wasn't police created danger here, because there was, I think there were also at least potentially contradictory commands. Get out of here. Get the f. Out of the car. Well, those sound pretty contradictory as well. You know, she's blocking the road. They're telling her to move, but they're also telling her to get out of the car. You know, as you say, David, this is so fast. But at the end of the day, when you're looking at all of these other cases that are out there, I don't think there's a question that if this was a state officer, this would result in an acquittal.
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Yeah. You know, if I'm prosecuting it, I would probably. My better best arguments would be he's told not to do this. Number one, he's told not to fire on vehicles. Number two, he's told to dodge vehicles. Number three, he dodged it. This wasn't hard for him to dodge. He was not hurt in any way, shape or form. He very quickly and easily dodged it. Number four, he fired after he dodged. So I can make a case like I feel like I could make a probable cause case. But, you know, Sarah, you talk about how the DOJ is supposed to not just make a probable cause case, but only take to trial those cases that it believes it will not can, but will make a case beyond reasonable doubt. I have to say, looking at the facts, I don't feel like this is a case where I would. I would say if I. If I have a boss, say, in the d. In the doj, I say, look, Sarah, you're my boss. You asked me to look at this. I've got probable cause. I don't have beyond reasonable doubt. That's where I am on it. And DOJ guidelines say if I have probable cause, but I don't believe I have beyond reasonable doubt, I shouldn't, I shouldn't indict. So that's my, that's how I would approach it.
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When we come back, we're going to talk about this actual situation where it's a federal officer because it's rare and the case law is pretty interesting on it. We'll be right back. All right, David, let's talk some federalism. As Justice Kennedy once wrote, it is the genius of the founding fathers to split the atom of sovereignty, but it makes for some messy legal situations. And by the way, shout out to Brynna Goddard Godar from the University of Wisconsin, who back in July wrote this. As state and local officials increasingly clash with federal officials over immigration enforcement, policing of protests and much more, they could soon turn to a long used tactic of state pushback, prosecuting federal agents or officials for violation of state laws. And then she goes through and lists all of the ex, you know, over the course of the United States history. And it was a really helpful little explainer there over on the University of Wisconsin's website. So thank you for that. Okay, David, the first thing you need to know is something called Supremacy Clause immunity. And this is the idea that states can't undermine federal law by criminally charging the federal officers who are trying to execute those laws their lawful duties as federal officers. So this is supremacy Clause, as is in the name. Right. So if the federal law is the supreme law of the land, the states lose if there's a conflict between the two. So federal officers are insulated from state prosecutions if one, the federal officer was doing something authorized by federal law, and two, the officer's actions were necessary and proper in fulfilling their federal duties. Here's a 10th Circuit quote. These disputes permit of no easy answers because while state criminal law provides an important check against abuse of power by federal officials, the supremacy of federal law precludes the use of state prosecutorial power to frustrate the legitimate and reasonable exercise of federal authority. So let's just spend just a minute on Supremacy Clause immunity because I think it makes a ton of sense. Again, if you go behind the veil, David, on the should side of this, you know, if you're going to have federal law and then you're going to have states that are mad about that federal law, they didn't vote for it, their constituents didn't vote for it. They're going to try to thwart that federal law. I don't think that's hard for people to imagine in 2026, but it wasn't hard for people to imagine in 1812. In 1855. In 1875, like throughout our history, there have been states that have not liked federal law or the execution of federal law in their states and have tried to figure out a way to prevent it. And one of the ways to do that is to arrest the federal officer who's trying to do it. Let me give an example from the 1960s, because I think it's really interesting. There's a segregationist riot at the University of Mississippi. U.S. marshals are trying to facilitate the court ordered enrollment of James Meredith, a name I hope everyone recognizes. The chief marshal orders the release of tear gas. There is then a riot which leaves two people dead. So the state of Mississippi charges the chief marshal. That to me is sort of almost a quintessential example of a state not wanting the enforcement of federal law. A federal officer coming in to enforce the federal law. Something goes wrong or right, and so the states try to arrest the federal officer. In this case, the federal district court ordered the charges dismissed because the marshal, quote, had reasonable cause to believe that drastic action was necessary to carry out his duties, and that he had reasonable cause to believe, and did so believe that the use of tear gas, a discretionary choice of means on his part, was a proper measure to be taken. So that, to me is like quintessential Supremacy Clause immunity.
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Yes. Yeah. And, you know, I'm glad you brought up the civil rights example, because that. Let's put a pin in that, because I want to come back to that in a moment. Okay. But it's very. It also shows how much for most of American history, what we had. What if you were going to say white hats versus black hats in American history, it would be federal government, white hat, a lot of states, often black hats. And so you had a real need. The Supremacy Clause was necessary not just to knit the country together, but also, as a practical matter, the Supremacy Clause is what helped end Jim Crow, for example, and the national government finally asserting that authority. And a lot of the state efforts to resist federal authority were not about justice. They were about preserving unjust state systems. But at the same time, you know, everyone realizes that federal officials are not perfect when they're executing federal law. And like, let's suppose you have a convoy of federal vehicles on their way to execute a search warrant, and one of the drivers is drunk and he crashes into a pedestrian. Okay, that's a, that would be a circumstance in which, you know, you might want some state enforcement, especially if the feds are kind of covering for each other. And so there's a balance here. There are circumstances where you absolutely, positively, you need a federal official to have immunity, but there are circumstances in which immunity can foster and create an immense amount of injustice. And it's drawing that proper line that's very difficult. And the line has been drawn largely in favor of the feds. Largely in favor.
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So we have a statute like, if you want to know how this would actually work in practice, 28 USC 1442, which is the federal officer removal statute. And David, we've talked about 1442 before on this podcast, in the last, well, two years at least. So after Georgia, for instance, filed charges against people related to January 6, a lot of them filed 1442 federal officer removal motions in state court. But also Donald Trump filed 1442 federal officer removal in the Stormy Daniels case because he argued, you know, well, all the things we're about to talk about. And the court said he had not explained how hiring and making payments to a personal attorney to handle personal affairs involved carrying out federal duties as president. So all of those 1442 removal motions were rejected. So what is 1442? It says that if state criminal charges are brought against federal officials related to the official's employment and the officer has a colorable federal defense, it belongs in federal court. The most interesting case for this, David, goes back to 1992. This is the Ruby Ridge situation standoff in Idaho. There's plenty of documentaries about this. We're not going to go over it in detail now. If you don't know what Ruby Ridge is, check Wikipedia. An FBI sniper shoots one time and then 20 seconds later shoots a second time. That second shot hits the unarmed wife of Randall Weaver, the actual anti government separatist, and kills Vicki weaver, the attorney. U.S. attorney General did not bring charges against the sniper under federal law, but Idaho prosecutors charged him with involuntary manslaughter under state law. So first it goes to the Ninth Circuit. And the Ninth Circuit is like, yeah, no, 1442. And this thing's gone with a dissent from Judge Kaczynski. Then the thing goes on bonk. And Judge Kaczynski is now writing the majority opinion for that. And look, the punchline of the majority opinion in the ninth Circuit en banc decision is that the Idaho case could tentatively go ahead because disputed facts left it unclear whether the sniper acted in an objectively reasonable manner in carrying out his duties. But then Idaho drops the case. Here's something from Judge Kaczynski. Did the agent's conduct violate the Constitution? Our cases, as well as those from the Supreme Court, make it clear that law enforcement officers may not take human life unless they reasonably believe that doing so is necessary to prevent death or injury to officers or to bystanders. When an agent acts in an objectively unreasonable manner, those limits are exceeded and a state may bring a criminal prosecution. And Judge Kaczynski was pointing out that the sniper said he thought Weaver was acting in a menacing manner towards a helicopter, and he was holding a long rifle. But the sniper never saw the helicopter. So when he fires the one shot, everyone starts running towards the house. Twenty seconds later, he fires that second shot, and he's like, well, they could have shot the helicopter from inside the house. They continued to pose a risk while they were inside the house. But the problem with that, David, is it's like that example I gave, where if the person turned left, they had, you know, reasonable suspicion based on the confidential informant. But if they turned right, then they knew that they were onto him, so they had reasonable suspicion. It's damned if you do, damned if you don't. If you stay out there, you're continuing to menace. If you run inside the house, who knows what could be happening inside the house. So, like, no matter what happened after that first shot, the officer's arguments are pretty much that he has the authority to use deadly force. He'd never asked them to surrender anyway. There's all sorts of facts around this case that make it, I think, a really, really interesting 1442 case. But as I said, Idaho then dropped the charges, so it never got to the Supreme Court, which it absolutely would have. So this is how it would happen. If Minnesota charges the ICE officer, he will make a 1442 motion. At that point, it automatically goes to federal court. Then the federal court determines whether he was basically acting in his official duties. I don't think there's any question of that. And then whether his conduct violated the Constitution. Is it a colorable federal defense and see how this all collapses? David, the actual question of federal removal collapses into Supremacy Clause immunity, which. Which sounds identical to qualified immunity. And we just don't have case law separating out all of these pieces.
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B
Let's just go bottom line and see if you agree with this. Let's say Minnesota tried to charge him. Minnesota went into state court and tried to charge him. Then we're going to get into some of Your abstention issues, et cetera. But let's just say this gets heard. A motion to dismiss on immunity grounds. This is heard. Does it survive? Does. Does a state case survive a motion to dismiss this case on immunity grounds? I tend to think it doesn't.
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A
It definitely gets removed to federal court. And for all the reasons we said that the state case would fail, I think the state case fails against the federal officer on the supremacy clause immunity grounds too. But David, and here's where number four gets kind of fun. If we're wrong about this. And it is removable to federal court. So it's a federal officer acting under federal law who has a colorable federal defense. Okay, you're in federal court, Check. But you don't have Supremacy clause immunity for, you know, all of the great reasons prosecutor David made. Then what happens? Do you have a federal court trying a state criminal case? This is abstention doctrine, guys. This is like the fun times of what abstention doctrine is all about. Now, remember, federal courts try state law stuff all the time. That's what diversity jurisdiction means, right? You just have two people from different states so they can go into federal court. So there's no home team advantage. But you're arguing over a state law matter. But I cannot think of an example, even a hypothetical example other than this one, where a federal district judge would be trying a criminal case under state, state law. And so, and I, so there. Because I can't come up with any other example of this ever happening. There also is not an actual abstention doctrine, because an abstention doctrine would say, basically the Fed court can try it, but there's some overweening interest in abstaining from trying it and sending it to the state court to try it. We have younger extension abstention, and Pullman and Rooker Feldman abstention. That's the best named abstention. Hopefully someday we'll have some reason to talk about those abstentions. But David, I'm not aware of any criminal supremacy clause immunity abstention.
- [34:35]
B
So as long as we're talking law, let's raise another legal point here. There's a couple of things that I've seen coming from the administration that I think and from people in Congress, I think that should really need to be addressed. One is the immediate labeling of this woman as a domestic terrorist as a matter of morality, and huge problems with that. Huge, huge problems with that. You know, one of the things, and I think you know this about as well as you possibly can given the situation you were in at the Department of Justice. There are a few things in American life that are more fraught with danger to our social fabric than police violence. We've seen it since the 1960s in the rioting in the cities in the 1960s. Louisiana, Rodney King, 1992, 2014. Michael Brown, Ferguson, Missouri, 2020. The racial reckon and the protests and riots that followed police violence lands on this country in a tinderbox fashion. And so what is so important for leaders to do in that circumstance is to obviously lament the lives loss, loss, pledge an independent, transparent investigation, and pledge to reach, go for and pledge to seek justice no matter where it leads. And if that means vindicating the officer and not charging the officer, don't charge the officer. If it means charging the officer, charge the officer. It strikes me that the exact opposite of that is what has occurred. And. And immediately after she was killed, she was called into domestic terrorist very publicly. There are people who then accuse the cop of murder very publicly, right off the bat, that is, that is pouring gasoline on the situation. And it's horrific. And then just as a legal matter, because this is a legal podcast, I am so sorry, but you do not have anywhere near the facts necessary to definitively label this woman a domestic terrorist. That is a remarkable assertion. Just a remarkable assertion. And so one of the problems that we have is this incredible rush to judgment results in fixed positions about complicated matters well before. Well before sufficient evidence is in to reach those conclusions. And so, you know, I, I don't. It's hard for me to think of a more inflammatory way of addressing the situation than just by going ahead and labeling the. Labeling her a domestic terrorist, which then immediately places everyone who has alarm or concern about what occurred here on the side of domestic terror. I'm sorry. And then, you know, beyond that, beyond that, I think that there's this assertion. Well, this is completely your fault because you do what. And what is the quote from Representative Hunt? The bottom line is this. When a federal officer gives you instructions, you abide by them, and then you get to keep your life. No, no, no, no. That is not what a free society says. We should respect officers and, you know, officers who give you. I have never defied an officer's command, but it is simply not the case that your life, your right to your life, depends on compliance with federal officials. That's not the formulation here. And when you say that, when you say that, what you're immediately doing is you're putting onto citizens the full responsibility or the responsibility for some often grotesquely unlawful actions by police officers. And it's getting a lot of, you know, we should. Again, again, I have never not complied with an officer's commands. To me, I teach my children to be respectful. But a lot of these things that occur, occur in atmospheres of confusion, contradiction, emergency. And then to then place everything on the citizen and not so closely examining the actions of the armed officer of the state is really getting things backwards, in my view.
- [38:48]
A
On the other hand, let me also offer. If an officer tells you to get out of your car, it is a really dangerous thing to move that car. It's dangerous for everyone involved, including you. The officer does not know your intentions. They're not in your head. They don't know whether you're trying to get away to come after them. Don't do it.
- [39:09]
B
Yeah, of course, don't do it. And the consequence should be you getting arrested. But it's also one of the things that, as eyewitness testimony has said, that there were one officer was saying, get out of the car, and others heard them saying, go, move. And so then what do you do? And if the answer is, I have no idea that one of those two is going to lead to my immediate. One of the saddest things about it is we just recently, right before the podcast, we got some footage from the shooting. The officer who fired the shot from his perspective, and at the very beginning of this 40 seconds, he's walking around the driver's side, and she smiles at him and says, I'm not mad at you, dude. You can tell she has no sense that she's in mortal danger in that moment, that her life is going to be over in the next 20 seconds. There's no sense of urgency, et cetera. And so as he walks around, that was just that. For some reason, that really stood out to me as incredibly heartbreaking that there's this moment she's talking to him, she's thinking, she's having an interaction that isn't there. Nothing about this says, I might die here in the next 20 seconds. Nothing about that says. And then there's. You see her wife say to Renee Goode, the woman who died, go drive, baby, drive. And you're just like, so many things were swirling at once here. And then to have your final conclusion here, this is what happens when you drive away. You're thinking, no, no, no, no, no. This is not what happens when you drive away. It's dangerous to drive away from the police. You should not drive away from the police. But under no circumstances is America a country where the command should be, obey the men and women in uniform or your life is forfeit. That's not the standard of the United States of America.
- [41:03]
A
When we get back, we will talk about that decision from the Supreme Court and a little church autonomy. But, guys, if you're not pumped about success, excessive habeas petitions. I mean, I'm almost as excited about it as abstention doctrine. Not quite, but almost. Here we go. All right, David, as I said, we did not get tariffs, we did not get Voting Rights act from Calais, but we did get Beau versus United States. This was a case that we did not cover the oral argument. Nobody was particularly following this case very closely. And yes, it's on AEDPA and successive filings. And a little bit of, you know, we move on from that because it's difficult to explain. And there's so many of these cases every term. But, David, this one's a little bit different. So first of all, it was five, four. So Sotomayor, Kagan, Jackson, the Chief justice, and Kavanaugh are in the majority. Alito, Thomas, Gorsuch, and Barrett are in dissent right off the bat. That's always gonna be interesting. I mean, this idea that it's 6, 3, and conservatives always win. If you've listened to this podcast once, you've listened to it a thousand times, the data just doesn't bear that out. Last term, in the closely divided cases, meaning 6, 3, or 5, 4, 15% had only liberals in dissent. 15% had only conservatives in dissent. So this is one of those where everyone in dissent is a conservative. So already, you know, it's going to at least be a little bit interesting because why else would it be 5, 4? Also, normally they start the term with a unanimous decision. I don't know what that bodes for the rest of this term because, David, this was not just about successive habeas filings in a criminal. Federal criminal case. It was really about jurisdiction stripping. And if you want to get into court reform suggestions. Yeah, there's like, packing the cord and adding seats. I don't really have a. Think there's serious conversations going on about that. There's unserious ones, I'll grant you, but not serious ones. There are pretty serious conversations going on about term limits. I'm against them. David's sort of term limit. Curious. Maybe we can have that conversation again at some other point. But the third one is stripping jurisdiction from the Supreme Court. If you're. If you're the Democratic Party and you get control of Congress and the White House, you can simply pass a law that says abortions are legal throughout the country at any time. And no case challenging this law may be decided by the Supreme Court. You need to write it in a little bit fancier language than that. And we have talked on this podcast about how the Supreme Court has dealt with that. It came up most recently in the context of Gitmo detainees in the war on terror, where Congress tried to strip the Supreme Court of jurisdiction. And basically the Supreme Court kind of, no, dogged that idea and was like, yeah, there's other constitutional concerns here. You can't like undo the Constitution by stripping jurisdiction. Lots of questions over whether that's really the take of the Supreme Court. Okay, so I say all that because jurisdiction stripping, it's a thing and we don't have a lot of law on it. And here's this 5, 4 case that no one was paying attention to. Five justices say, you know what, Congress might have tried to strip the Supreme Court of jurisdiction in this case, but we will demand a clear, unambiguous statutory construction to not have jurisdiction. And the foreign dissent said, no, we just look at the best reading of the statute and the best reading of this statute is that we do not have jurisdiction in this case. David, this is actually pretty important for the future of Supreme Court reformists.
- [44:48]
B
You know, it. It actually is. And you know, I. There's a great thread that you pointed out to me in Slack by by Dylan Esper that I think lays this out really nicely and really well because one of the strands of Supreme Court reform that has been discussed and one that I don't love to be clear, is jurisdiction stripping. Like just remove matters from the jurisdiction of the courts entirely. Which sidebar is one reason why the fact that jurisdiction is stripping is possible is one reason why it's just completely wrong to say that the Supreme Court or the Court is the only arbiter of the constitutionality of actions in the American government.
- [45:32]
A
The game of rock, paper, scissors has like many layers to it here in our system of government. Right?
- [45:39]
B
If something is jurisdiction stripped, that does not mean there is now no longer a meaningful constitutional argument about it or no possibility of enforcing the Constitution. But in any event, you're exactly right. This is a really important question buried in a case that quite honestly, just reading through the various statutory provisions and it's a tough one to follow. This is not one that you just dip your toe in. Read for 15, 10, give it a quick 10 minute scan and go.
- [46:11]
A
Got it.
- [46:12]
B
No, this is not that.
- [46:14]
A
Also in this case it came from the 11th Circuit. The solicitor General's office, while largely agreeing with the 11th Circuit, refused to defend a piece of the decision. And so the court appointed counsel to defend the 11th Circuit decision. And we've talked about that before, David, when, like, you know, nobody wants to do that, but the Supreme Court wants to decide the question anyway. It's, it's kind of a party presentation, side, side hustle. In this case. You will always, I think, always see a line in the Supreme Court decision which you don't see under any other circumstances which will say something like, the court appointed Kazdan M. Mitchell as amicus curate to argue in support of the 11th Circuit's position. She has ably discharged her responsibilities. The court nevertheless agrees with the parties. Like, you don't get your name as the advocate in a decision unless you were appointed. You don't. No one says you ably discharged your duties, which is like the highest compliment you can get. But almost always there's a reason that nobody wanted to defend the decision and that position loses. And so it often the next line is nevertheless. And then you're like, womp, womp. Kazdin Mitchell, by the way, amazing, brilliant, fun attorney over at Kirkland and Ella. So congrats on the argument, Kasdan. Although, sorry about the nevertheless part.
- [47:36]
B
It's an important case. It wasn't emergency pod worthy. Very few cases reached that emergency pod worthiness. But still very, very interesting. And that lineup is intriguing as well. You know, this is not a 3, 3, 3 lineup. It's kind of a 3, 2, 4 lineup. And with Robertson, Kavanaugh, and I just don't think that we can point out enough that the court does not make all of its important decisions on a 6, 3 basis.
- [48:04]
A
And especially, I mean, boy, jurisdiction stripping. To split the court this way on that, I mean, you change these facts even a little bit, one or more justices could move around. So I feel like, if anything, we learned that we don't know anything about jurisdiction stripping doctrines at the Supreme Court right now. All right, David, let's do some church autonomy doctrine. Because somehow 2025 I felt like was our church autonomy year. But here we are January 9, 2026, and we're not only back with church autonomy doctrine, we're back with Judge Bhumate on church autonomy doctrine. But I don't want to, like, spoil anything. I've got questions about this one, to be honest. So Union Gospel is what it sounds like, right? It's a religious organization. They run a soup kitchen, and they are hiring 50 additional staff, including IT staff. And they believe that everyone who works for them should abide by their religious tenets. Whether you are proselytizing, whether you are a minister of those tenets or not, in this case, it will be about no sex outside of marriage between a man and a woman. Now, David, we've talked about the ministerial exception and that basically says that state laws, non discrimination laws, federal non discrimination laws do not apply to the ministers within religious organizations or those who do ministerial work. And we had a big case on this a few terms ago about, you know, teachers at the school and whether they were ministers in this sense. You know, sort of the biggest ministerial exception doctrine case to date right now. And the punchline of that case was, yeah, the ministerial exception is real. Take it seriously. And if these people teach religion in any way, then yes, they are ministers of the faith union. Gospel is like, yeah, no, rit people are not ministers. But we do not want the state's anti discrimination laws to apply. Nonetheless. And what Judge Bhumate says in this opinion, it's a unanimous opinion from this ninth Circuit panel, is, well, the ministerial exception is actually part of the larger church autonomy doctrine. It's just one piece of it. And the church autonomy doctrine allows you to hire non ministerial employees also without regard to the state discrimination laws, as long as, you know, sincerely held religious belief. And actually, you know, it's real what you're doing. You do expect this of all employees and stuff like that. But David. And he. Look, Judge Bhumite addresses the question that I'm about to have. I think I just wasn't particularly satisfied with the answer, which is if the church autonomy doctrine always did this, then what did we ever need the ministerial exception for?
- [50:58]
B
Yeah, yeah, that's a great point. And I think the decision tries to square the circle by saying, okay, wait, the ministerial exception doctrine applies to, protects you essentially from state interference on your hiring decision on any ground. So whether it's race discrimination, sex discrimination, disability discrimination, the courts just have to have a hands off view. And that goes back to Hosanna Tabor, the ministerial exception case involved, and it was an ADA case, a disabilities case. And the court said, no, get your hands out of the ministerial hiring.
- [51:36]
A
And just to be clear on that, because I think this is important to the overall point, what happened there is you had someone who was an employee, they were fired, they claimed they were fired because they were disabled. The church said, no, you were fired because you didn't follow our church doctrine, you weren't preaching well enough, and in order for the court to resolve that, they would have to determine whether that was real. Right. Were they a good enough preacher? Were they following the tenets of the faith enough? And that's how the ministerial exception, I think, in its most obvious way applies. It's not that churches should get to fire disabled people or because you have breast cancer. It's like, no, we can't look at your reason and determine whether it was pretextual or not. So we're just not like, we're done. It doesn't matter what the reason is. If it's a minister, we're out.
- [52:23]
B
So if you have to dive into the religion of the institution at all to make the determination for a ministerial employee, then that ministerial exception, it's a giant prophylactic measure designed to prevent that very thing, which is the state diving into a ministerial hiring decision and determining was it religion or was it something else? Now this for non ministerial employees, the scope seems to be a bit narrower, saying it only protects Union Gospel's non ministerial hiring decisions based on religious beliefs. Hmm, interesting, interesting. So the. And also it talks about the scope. So it's limited to religious organizations like Union Gospel and does not consider the scope of the doctrine on other types of entities run by religious institutions, such as businesses or hospitals. So I don't think you'd call Hobby Lobby a religious institution, but it's definitely run by religious individuals. I would say it probably does not apply to a Hobby Lobby, but does it apply to a big Catholic hospital? That's a question. And then what does it mean specifically? It only protects Union Gospels and non ministerial hiring decisions based on religious beliefs. One way of saying that would be it allows Union Gospel to say, no Muslims need apply, but it does not allow Union Gospel to say, no black or Hispanic people need apply.
- [53:53]
A
I'm going to be chewing on this one for a while because, you know, we talked about the church autonomy doctrine, and I was like, all, pew, pew, yeah, church autonomy doctrine. And now it's sort of, now that we're building it out by we, I mean Judge Bhumite, I'm like, oh, I think so. But, you know, if we think of the church autonomy doctrine, I guess, as this sort of shallow lake, the ministerial exception is this deep, deeper pool within that lake, maybe so church autonomy, you know, shallow, glistening little ripples. Ministerial exception, deep. Cool, Eddy, something like that. But I need to understand, I guess in practice where the ministerial exception. I need to see an example where an organization says church autonomy doctrine, and you say, no, but if it had been someone ministering, then the ministerial exception would have applied. But the church autonomy doctrine does not apply. I need the opposite of this case.
- [54:56]
B
Yeah. It seems to me like what you, what you might end up having is sort of this situation where you have a, almost like a two step litigation process where step one is litigate whether someone's a ministerial employee and then if they are a ministerial employee and there's a non discrimination claim made that the case is over.
- [55:13]
A
It's almost like absolute immunity. And then church autonomy is almost more of a qualified immunity.
- [55:18]
B
Right, exactly. And then church autonomy would say, okay, church autonomy doctrine allows say for a janitor or an IT employee or whatever if, for them, if they say, well, I was fired because of my race, the institution can come back and say, no, it's because of your religion. And then you fight that out. But in the ministerial exception you don't even fight that out at all.
- [55:42]
A
Yeah, just weird because the whole point of the ministerial exception was to not fight that out. But okay. Now this case is sort of easy because the facts of it are perfect for building this, you know, broader church autonomy doctrine. Their people applying are saying, we are not going to follow the tenets of your faith, but we want a job anyway. And they're like, no, we don't want to. And the state of Washington originally said that they had to comply. Then the state of Washington disavows that they need to comply. With regard to the IT folks, this was a whole standing question in this case as well. But basically no rubber ever met the road here because we're talking about the most, the easiest example. I want a job at your place and I'm, you know, having sex outside of wedlock every day for fun. I love it. But that's very different than as you say, David, in the firing context where we're now doing an employment discrimination. And it's like I say it was this, you say it was that. Is mine pretextual? Like now we're getting into it and I just, it defeats the purpose of the ministerial exception if we're going to get into it with these other employees. So keeping our eye on the church autonomy doctrine in 2026, we're on the case.
- [56:51]
B
Yeah. Yep. And you can see how many different ways, because we've, we've had a couple of conversations recently, one about tithing and donations and then the other one, of course about hiring and firing. Just shows you there's a myriad of ways in which the churches interact with the state and it isn't the case that They're a law entirely under the on their own. But it is also the case that there is a free exercise clause and there is a degree of liberty independent from anything the state directs from them. So this is, it's going to be interesting. I think we're on the forefront. This is, you know, how we talk about the law has to mature before the Supreme Court takes it on. This law here is toddler stage. Not much maturing yet.
- [57:36]
A
Before we go, David, do you remember when we talked about that question from the high school students on the guy who definitely committed the murder but the only way you have the evidence is from violating the fourth amendment? And what would happen. And then that one student who we adore and wish would email us questions every week asked, yeah, but does he get to keep the severed hand? And if you don't know what we're talking about, it's like three episodes ago and I highly recommend it. We got an email from a prosecutor that I just want to read in its entirety. David. Now I'm not saying I'm proud of this story, but it goes like this. A guy accused of raping a woman is found with a wallet, some identifying papers and a knife. The woman says that the knife was used to coerce her into the non consensual sex. Defense attorney is big and loud. I don't know why some put on these shows because prosecutors have so little time that it's antics like this and that get our focus. Now, the victim is a less than perfect witness, but I believe she knows it was him. And I hang on to the case. The case is tried. The week I'm out of town getting married, someone else prosecutes it. Jury says not guilty. The next week I'm back in court. I was a prosecutor, so it's not like I had money for a honeymoon. We've moved on to the next docket and the next day after that. The clear defendant could have gone quietly into that dark night. But the defense attorney comes to court when I'm back. Waving his dismissal around the courtroom for defendants and defense attorneys to see in an already unruly courtroom, he's now the loudest to really rub it in. Defense attorney demands the return of the knife that the victim says the acquitted defendant used in the crime. We oppose the return of the knife. Defense attorney calls us bad losers. I say I believe there could be more rape allegations so we need to keep the evidence. Judge reluctantly but fairly gives defendant back the knife. This is where I'm not proud. We had heard the defendant may have raped other women, but the DNA had never been tested. We were so busy. I'm not proud. Remember that we, the courtroom prosecutors had not done anything with what we had heard. Yet again, sometimes you take the win and don't gloat. That defense attorney got our focus. We do a little extra and order the testing. The defense attorney may have had his big day in court, but the defendant is now serving a very long sentence in prison for the cases that had gone untested. Point is, your hypo killer should just leave the hand in the evidence room and go quietly into the night. Anyway, just leave the severed hand where it is, says an abled prosecutor, to that high school student who I hope is just having the best time in life. 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@the dispatch.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.