From 1918 to 1968

David and Sarah discuss the latest news out of the Supreme Court including the court ...

Jun 1, 2020

David and Sarah discuss the latest news out of the Supreme Court including the court denying a California church’s lockdown challenge, Rep. Justin Amash’s plan to introduce legislation to end qualified immunity for police officers, Sen. Tom Cotton’s call to invoke the Insurrection Act, the president’s call to label ANTIFA a terrorist organization, and a return to their debate over law school.

Show Notes:

–Supreme Court California church ruling

–Judge Willett opinion

–David’s Sunday newsletter

–Nancy’s video from the Nashville protest

See omnystudio.com/listener for privacy information.

Conversations (58)

Comments (58)

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N D 4 years ago

I'm interested if anyone has an idea of which elected Republicans would be likely to co-sponsor or vote for Amash's bill ending Qualified Immunity. As least according to Reason (https://reason.com/2020/06/06/justin-amash-ayanna-pressley-end-police-qualified-immunity-where-are-the-republicans/), currently there are no Republican co-sponsors. Although I'm not entirely aware of these politicians views on QI, I would think that guys like Thomas Massie, Chip Roy, Mike Lee, Rand Paul, and maybe Tim Scott would have an interest in repealing or curtailing QI.

Also, is this something that can be properly dealt with at the federal level, or is it something that properly falls under state authority. I know that most aspects of criminal law and law enforcement are state-based.

If this has been previously addressed, feel free to just point me to the comments/articles/podcasts.

As always, stay classy :)

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Larry Seltzer 4 years ago

If you were now arguing one of the church lockdown cases, would the tolerance of public officials for protest and violence be a good argument against judicial deference to the government? Do you think any of the Justices would have voted differently?

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Curious Task 4 years ago

I was interested by the discussion of qualified immunity. I agree that a blanket elimination of QI would probably have ruinous effects on municipal budgets.

However, what if we required police unions to indemnify municipalities for civil litigation involving their members? Since we're unlikely to just eliminate public sector unions altogether, at least this would align the incentives of police unions with our desired outcomes. If police officers knew their union pensions were on the hook if there's a civil judgment against an officer, they might be more likely to step in and put a stop to actions like the one that killed George Floyd.

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James Spiller 4 years ago

We’d still be creating a massive transfer to trial attorneys and criminals. If you’re saying that the cops should take a pay cut in the form of an enormous new mandatory cost, that’s an option. If you’re saying that the municipalities should increase pay such that it balances out they still go bankrupt.

It would also make police unions more powerful, but I think this is still a better idea than creating a new and radical system of highly arbitrary punishment for cops without having some mediating institutions to balance things out.

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Lylegruby 4 years ago

On the next episode, I'd be interested in hearing an analysis of Trump's authority to disperse the protestors prior to his photo op. The protestors were legally engaging in political speech, so I assume the rubric would be the usual time, place, and manner rules? Or is it that the Exec. simply gets to go where he wants and is entitled to protection? If the latter, that means the Exec. has the authority to break up any political speech/demonstration within his vicinity?

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Kmsinatra 4 years ago

I think the advantages of creating a domestic terrorism law/designation is that it allows greater authorities to law enforcement. For example FBI/DOJ often charges Material Support in FTO cases. Additionally, I think it might grant them greater leeway in getting investigative authorities prior to any action (i.e. going after finances, warrants, searches, UC ops, etc.). I am not familiar with the legal details but these are just some issues that come to mind. I agree that any actions taken by "domestic terrorists" are able to prosecuted by existing US law. I think the difference would be the ability to disrupt/neutralize any plots before they occur.

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I Was a Crooked Lawyer 4 years ago

Enjoyed discussion on California church case the best. It was one of those hair splitting word fess that drive non-lawyers crazy, but such approach seems unavoidable in this case. CJ Roberts is starting to take on more flack from conservatives but I found his view persuasive. Church services are more comparable to movie houses, concerts and lectures than to factories and retail outlets. The audience/congregation is seated and remains passive and immobile for a prolonged time. Must concede some variance from that generalization among certain sects in the rural south, at least when they start passing the snakes around! Tough case. Hard cases make bad law.

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Patrick Ortiz 4 years ago

Excellent episode! As someone who did not go to law school, I have what could possibly be a dumb question but I would love a lawsplainer if you’ve got one:

I just finished listening to the episode when I saw Bill DeBlasio answer a reporter’s question on why churches are closed but not protests. The gist of his answer was that fighting racism is an important, 400 year old issue, so this is different from a store owner who wants to open or a churchgoer who wants to worship.

It seems to me that the California case you discussed really hinged on the notion that churches were being closed for the conditions they create that encourage viral transmission. If large gatherings of people at an event are a problem, it is a neutral and generally applicable reason to close a church. What DeBlasio is saying here seems to be a shift. If events/gatherings are open or closed because of their content and not because of the conditions they create, that seems to make an implicit judgement on the content of gatherings that are still closed. Both free exercise and assembly are activities protected by the first amendment, so might picking and choosing make Kavanaugh’s argument stronger?

I get that an interview does not mean DeBlasio has not passed a law, and I’m certainly not commenting on the merit of the protests. I’m just curious if this changes the way a case such as the one you discussed might be ruled. Thank you for your time and reading this!

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CJ Jenkins 4 years ago

Y'all are gonna get in trouble with my wife if y'all keep piquing my interest in law school.

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PWLaw 4 years ago

Enjoyed your discussion of qualified immunity. Sarah brought up the Thompson v Connick case and it is one I followed with great interest because I was friends with the deceased ADA, Gerry Deegan. I didn’t agree with the majority opinion. Justice Thomas relied on an inaccurate assumption that there was only a single instance of governmental misconduct, specifically, Deegan as the lone “miscreant” who hid blood evidence that would have exonerated Thompson on the armed robbery charge. I think Ginsburg’s dissent more accurately described what happened in Connick’s office, which had a history of disregarding Brady.

The question of what should be done to reform the qualified immunity doctrine does present challenges. As Sarah indicates, the City of New Orleans was in no position to pay a large monetary award. As David suggests, there has to be an incentive for cities to rein in the abuses and monetary damages may work to achieve that goal.

Congress should reform the qualified immunity doctrine so that the affirmative defense is easier to overcome. Congress should name a panel of experts representing the views of policemen, prosecutors and legal experts who have studied and/or litigated 1983 actions. The goal would be to create multi part tests which may be codified and set forth standards for overcoming the QI defense in different circumstances.

The concern about money judgments is easily met by capping damages. I am generally opposed to legislative caps, especially in med mal cases, because I think that they hurt people who suffer the most severe damages. But the reality is that municipalities are not going to be able to pay huge monetary awards like the $14 million ($20 million with interest) in the Thompson case.

Another idea re the amount of damages would be to do what’s done in cases involving punitive damages, that is, allow evidence of the defendant’s ability to pay.

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ekalenak 4 years ago

Sarah, you bad Texan! How could you not mention the bugle call of the Mexican soldiers when they advanced on the Alamo: https://en.wikipedia.org/wiki/El_Deg%C3%BCello "El Deguello" signifying no quarter for the defenders of The Alamo.

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