Hey, everybody. Just wanted to note that this
episode, it's a great 1. It's core short
circuit material,
but we recorded it a little while ago
in May. So about 2 months ago. And
for some scheduling reasons, we couldn't publish it
until now. So you'll hear, we're talking about
cases from last May,
but don't let that stop you from enjoying
it. Everything's still makes sense. Nothing's out of
date.
I do realize now that I went a
bit too long with my opening reading about
Sc
cats,
but hopefully the charm of my good friend
Bob Be makes up for that. Now, on
of the show.
Sc, as said, Einstein about the implications of
Quantum theory, tried to show the absurdity of
those implications by imagining such an experiment set
up in a closed room or box, which
also contains a live cat and a vial
of poison. So arrange that if the radioactive
decay does occur then the poison container is
broken and the cat dies.
In the everyday world, there is a 50
50 chance that the cat will be killed.
And without looking inside the box, we can
say quite happily that the cat inside is
either dead or alive. But now we end
counter the strange of the Quantum world
According to the theory, neither of the 2
possibilities open to the radioactive
material,
and therefore to the cat has any reality
unless it is observed. The atomic decay has
neither happened nor not happened. The cat has
neither been killed nor not killed
until we look inside the box to see
what has happened.
Theorists who accept the pure version of quantum
mechanics say that the cat exists in some
ind
state neither dead nor alive
until an observer looks into the box to
see how things are getting on,
nothing is real
unless it is observed.
Well, that, of course
is the story of Sc cat that probably
all of you have heard before.
Well, a version of Sc this cat took
place in the tenth circuit last week about
whether the bi doctrine, which we have talked
about many times before on the show is
either alive or dead or perhaps both at
the same time. We'll discuss that and another
case from the tenth circuit today on short
circuit. Your podcast on the Federal Courts of
appeals. I'm your host, Anthony Sanders, director of
the center for Gi judicial Engagement at the
Institute for Justice.
We're recording this on Tuesday,
05/14/2024.
And this is a journey into the wild
world
of the tenth circuit. The wild west of
constitutional law. Actually, it's just in the west,
maybe not so wild that little while this
week though and joining me on this adventure
into the highlands. As we put on our
cowboy hats and
drop off our city slick and head for
the hills,
is my colleague at, Bob Be. So Bob,
we'll back to short circuit. Anthony, thank you
for having me. You know, the the sc
gi cat reading at the beginning reminds me
of being at home, and parents of toddlers
and young children know when you hear the
sound of something fall,
in another room and possibly break until you
go in the other room,
you can imagine it with something of low
value that doesn't matter to you, and it's
not until you go in and you see
it's something you like that's broken. So
it's it's broken and not broken at the
same time. That's right. It's a timely story.
It sounds like you speak from experience.
Not not a significant amount of experience, but
accumulating every day.
So we were talking before the show, you
do not have a significant amount of time
practicing in the tenth circuit,
which we're discussing today. But but a little
bit, I actually have 0 experience, I think
practicing in the tenth circuit. So the tenth
circuit for those who don't follow the min
of the Federal Courts of appeals, it's kinda
like the mountain states that they had to
do something with after they created the massive
ninth circuit, which everyone agrees is is way
too big, even without California,
and it has...
So it's centered in
Denver and Colorado where the court of appeals,
main court of appeals is, which we've talked
about the show before beautiful library courtroom. And
then it has Wyoming,
which extends a tiny bit into Idaho and
Montana through Yellowstone National Park. And Utah, New
Mexico,
Kansas and Oklahoma. So this is your rugged
individual, you know,
pull yourself up by your boots bootstrap, type
of place.
Agenda by... Did you say it goes into
Idaho? Well... Okay. This is a tangent that
I've been on listeners
probably are like, oh, there he goes again
with the Yellowstone National Park. So
yes.
But for those who haven't heard, Yellowstone National
Park.
If you ever looked at a map of
Wyoming and you probably noticed it it it
goes a little bit in the Idaho and
Montana.
So the district,
the federal district of Wyoming is the only
district in the country that is in multiple
states
because it overlaps with yellowstone.
Because they think... Because, of course, in yellowstone
National Park, there's really no state authority. It's
all federal. Like, if you come commit a
crime in national park, you're gonna be prosecuted
by the Feds. Mh. Even if it's for
some tiki tac thing. So that extends into
Idaho and
in Montana,
why that gets interesting
is because of this... 1 of my favorite
law review articles ever by professor Brian C,
which is that,
there are
constitutional implications to your right to a jury
trial under the Vincent clause,
sixth amendment
if you commit the crime in those tiny
bits of Idaho
or Montana because
Montana, there's a very low. There's not a
lot of people live there. To some, but
not Idaho, there are 0 people.
So if you have to be tried in
the state and district as the sixth amendment
says,
the government might have problems.
Because there's no jury pool to
to... As long as you're in the Idaho
part. Right. So So that the that the
idea has always been since
the professor called article came out, like, 20
years ago, you could just go there and,
like,
manufacture cocaine and shoot off, you know, automatic
weapons or whatever and you'd be fine.
I commit murders.
Liberty.
That's a novel based on that that came
out of a few years ago.
That I've been told is pretty good. So
people do you know what it's called.
Oh, man, you're you're gonna you're gonna tell.
I'll do a little light put it in
the moments.
Yeah yeah Yeah. Yeah. Yeah Well, I'll I'll
mention it in a in a. I know
people at I j have told me they
they've read it, and it's it it's a
good read.
So luckily,
fictional.
But we're gonna talk about some non fictional
things. And I I was saying it's it's
a little bit of people pulling themselves up
by their bootstrap because
a couple people there... It seems like the
constitutional rights were not taken
seriously,
and that includes your case
which has to do with
some fourth amendment stuff and
a guy in a parking lot. Yeah. Yeah.
So my case today from the tenth circuit
is called
Usa versus Daniels, and it comes to us
out of the district. Colorado.
So the
underlying facts are all in Aurora Colorado, which
I think it's just outside of Denver. So
not quite the wild west, but, you know,
you can go camping on the weekend if
you'd like.
So
this is a case kind of about 2
things.
The first is
the
interpretation of...
Reasonable
suspicion to conduct a terry stop in a
kind of
post brewing world if you can think about
the the way we look at the second
amendment now under B,
and
it's a case about, a suppression hearing and
and suppression motions at a criminal trial. So
reasonable
suspicion just at kind of like, a high
level under,
under Terry is,
if you could explain Terry, maybe for the
non lawyers out there. Yeah. I, I mean,
it's a Supreme court case from him, I
think, like, 19 68 that says, basically,
cops can make. A brief investigate to investigative
stop,
if they have reasonable
suspicion that criminal activity is a foot. And
so that can be lower than they need
for an arrest, but it's not arrest. So
they just need a a little bit. But
it can't be nothing.
Right. It's sort of a it's sort of
a sliding scale, you know, like, any any
American is totally within their rights to just
refuse to speak to police when they to
talk to them, but
the police are equally within their rights if
they have reasonable
suspicion of criminal activity to kind of
stop a citizen and say, you know,
what's your name, that kind of thing. And
there's a sort of sliding scale
as the
kind of detention gets started, it has to
be justified at its outset, and as it
as it continues,
the cop has to have reasonable
suspicion to continue detain the person. So that
is kind of in AAAA
broad sense what reasonable
suspicion is it's much lower.
You mentioned making an arrest, Anthony. It's much
lower than, like, probable cause or,
you know, beyond a reasonable doubt any of
those other standards that lit... Listeners are probably
familiar with, But it's a it's an objective
standard, and it's supposed to be based on
sort of the facts and circumstances
that present
to the law enforcement officer when they start
and carry on the detention.
The second thing that this case is about
is a suppression motion. So,
when you're tried in a in a criminal
case,
you can make a motion to suppress certain
evidence that the government wants to introduce against
you.
And you have to show
well, I guess I guess you can move
to suppress on a number of different grounds,
but 1 that's quite common in a criminal
trial is to say, this evidence is something
called fruit of the poisonous tree, which is
the concept that
when law enforcement or the police
violate a constitutional right of yours
to get access to information. Typically, it's gonna
be the fourth amendment, but I I think
that there are some other amendments that have
kind of a fruit of the poisonous tree
doctrine that follow. But
If you... If law enforcement gets evidence as
a result of a fourth amendment violation, you
can kind of think of an actual tree
with branches
growing off. And subject to some
exceptions,
any evidence that the law enforcement officers obtain
after they violate someone's rights,
someone's fourth amendment rights,
it's called, a fruit of the poisonous tree
and can't be used at a criminal trial.
So
to kind of tie those 2 concepts together,
this,
Us versus Daniels is a case where,
a criminal defendant moves to suppress certain evidence
at his criminal trial, and he actually succeeds
because
law enforcement used something or plan to use
something in the investigation
that was based on a fruit of the
poisonous tree.
Which is a violation of the reasonable
suspicion rule. So that's kind of what this
case is about. Now the the facts are
relatively simple.
If you can
sort of remember back to the last time
that the
Kansas City chiefs
played the
Tampa Bay Buck in an enormous game. Yeah.
I think it was it that was the
Tom Brady
Super Bowl after the patriots. And that's like,
you know, his his goat moment. Right? That
that's right. And, you know, 1 1 is
left with the
very firm sense after reading the majority opinion
that Judge S moore is a Bro fan.
Because there is a footnote,
recording the score from the game and, you
know, just reminding everybody,
that the buck years won. But,
this is 02/07/2021.
It's a little bit before midnight, and the
Aurora police get A911
call.
And it's not an emergency. It's just somebody
who lives next to this building,
calling in to say,
you know, I see 3 guys in this
parking lot, and they're... They have guns, take...
And they're taking these guns in and out
of their pockets and they're standing block... They're
standing by,
a black Suv.
And
I think the quote that the majority uses
over and over again is that the caller
said, it looks like these guys were about
to do something. Doesn't say what,
doesn't say it's an emergency. Doesn't say, you
know, something's really about to happen.
The cops put a note down and say,
you know, we'll send somebody out to take
a look.
So
2 officers come out to the parking lot.
And
when they get there, they see what is
a pretty well lit, busy parking lot with
cars coming and going in, and
they see,
2 dark Suv. So the 911 caller said
the guys where the guns were, like, standing
around a black Suv,
cops get to the parking lot, see 2
black Suvs,
but they don't see,
the 3 men that the 911 caller had
described that the caller said there are 3
black guys here with black hood sweatshirt on,
and they've got, you know, guns and they're
taking a minute out of their pockets. While
the cops get there. And they don't see
guys in black hoodies, you know, walking around
a black Suv. What they do see is,
mister Daniels who
I'm gonna go out on a limb and
say that mister Daniels is also a Bro
fan based on his attire, which is described
in the opinion, the majority
notes that when the cops get there, mister
Daniels is in fact standing next to a
black Suv,
but he's wearing an orange jumpsuit
and an orange shirt,
with a reflective stripe on it. So he's,
you know, bringing attention to himself and maybe
the kind of thing you would expect A911
caller to mention if they suspected
somebody in a bright orange jumpsuit of engaging
in criminal activity. But the cops see, mister
Daniel see that he's got
this outfit on, but he is standing next
to a dark Suv. So the cop start
to approach as their approaching,
mister Daniel says something,
to the folks in the Suv, which the
officers cannot hear. They cannot hear
what is exchanged between Daniels and the Suv
occupants, but
as soon as Daniel says something,
the Suv pulls off, and it's important to
note that, like,
the Suv pulled off in exactly the same
manner that other cars had been sort of
idling into the parking lot, pulling out driving
away, there had been a lot of activity
in the parking lot. And so
aside from the Suv leaving
when mister Daniel said something,
nothing really unusual about the Suv taking off.
But after the Suv leaves, officer Idle, this
is where we kind of this is sort
of the initiation of what we talked about
the Terry stop.
Officer Id, 1 of the 1 of the
police officers makes contact with mister Daniels and
says, you know,
they refer to they refer kind of vaguely
to Daniel's complying with the orders. It's not
exactly clear what Id, the officer said when
he walked up. But it's clear that Daniel's
comp
with kind of an... In order to stand
there, and Daniel's provided his name
to the officer.
Now,
from there,
that they kind of don't do much at
the parking lot, But other officers follow the
Suv, ultimately stop it
and find AII
can't remember if they find, like, multiple guns
or multiple drugs or something, but they find
a gl in the back seat and find
out that it's been stolen and and the
and the stop was
appropriate right? Because it ran a red light
or something like that. That Yeah. That's right.
The Suv drove legally for a little while,
ran a red light gets pulled over and
is getting surged. So
using Daniel's name,
the cops back at the parking lot, run
a background check on Daniels find out that
he is a,
a prior felon. They don't say they don't
say what he did or what he was
convicted of. But
the
police then use his name,
Daniel's his name to get a warrant
for his Dna.
So what they wanna do is We have
his name. We use the name to find
out he's a felon. We wanna use his
name now,
and the fact that he's a felon, to
get his Dna because we wanna show you
his Dna is on this gl in the
car,
because
as most people know,
if you read a criminal,
a criminal law opinion in the United States
from federal court. You almost always see a
charge against somebody for being a felon in
possession of a gun because
that's an easy crime to prove. It's sort
of not quite a status crime, but it's
very close. Once you're a felon and you
have a gun, you've you've committed this crime
and there's a lot of punishment for it.
Yeah. As we've said this show many times,
you there are a lot of times you
you think why wasn't this prosecuted in state
court for, like, a real crime and instead
it's in federal court for this, a felony
happy to have a gun, and it's because
it's a heck of a lot easier. Yeah.
Yeah. So
the
the the grand jury and diets, Daniels on,
like, a very simple charge of being a
felon possession. And I am not sure,
I'm not sure if he was
represented at the trial court level by the
federal public defender, but he's represented on appeal.
By the federal public defender. And you know,
I mean, I I just would say, like,
kudos to them for raising this argument. I
mean, I think
I I think it's a well...
It's a well argued fourth amendment case, and
you can see from the sort of procedural
record that is described in the opinion that
the trial court bought in into
all of the arguments at Daniels was making
he moved to suppress
the the Dna evidence that the government collected
showing he had actually been
I get maybe not in possession, but he
had, you know, been in contact with that
stolen clock. So... Yeah. I guess that's close
enough for, quote, possession under the law and
touched it. Yeah. I mean,
if if you're on if you're on this
side of the v, I think it's enough
position.
So the
cops
or sorry. The the prosecutors
charge,
Daniels fell in possession. He moves to suppress
the the Dna evidence and actually wins at
the trial court level and the trial court's
explanation is,
you know, You had the police, Aurora police
had A911
call that was semi anonymous, like the person
called in didn't give their name, Didn't know
the people in the parking lot, but they
were able to
provide some detail about, like, the area, what
was going going on. They were conte viewing
it. So it wasn't like somebody called the
police and told them, you know, John Doe
did this 2 weeks ago in this location
There was some sort of active
collaboration. So that doesn't make the tip
really super reliable or unreliable. This kind of
a totality of the circumstances
analysis.
And the judge at the trial court level
thinks, you know, the cop showed up and
didn't see the guys who were mentioned in
the complaint,
you show up and this guy complies with
your order as soon as you come up,
and you don't even know what he said
to the person in the Suv.
Trial court is convinced. There's not enough evidence
of
suspicion of criminal activity at the outset of
the encounter person and
suppress the Dna evidence on that basis.
So the government appeals and
it is not as interesting really to run
through the majority opinion because what the majority
opinion does is look at the sort of
facts that were presented to the trial court,
particularly the 911 call and the details that
were covered there, then the kind of
time and location, you know,
Judge See Moore like, it's the Super Bowl
and the chiefs lost like a bunch, you
know, by a bunch. So
of course, there are good people here near
Denver out, celebrating the fact that the Bro
didn't have to watch the chiefs win.
No surprise there. And then
the Suv
sort of how it how it
reacted, You know, you can really
in
in this situation where you're looking at things
with the hindsight of 20 20. And you're
like, oh, you know, the cops come up
and they
eventually stop this Suv and they find the
gun in it, and you know that this
guy had the gun or he at least
touched it. And he shouldn't have, so you'd,
like, you're seeing all these facts and after
you've read and know how this case ends,
you know that somebody may have been committing
a crime here, so you you read these
facts.
And infer that maybe something bad is happening,
but it's... The the trial court and the
majority, I think are very good about at
least the Suvs behavior of like, you know,
This is totally consistent with, you know, you
just being out front of your house, which
is mister Daniels was, the police come up.
And you see the police coming and who
knows what your relationship or your pastor or
your history with the police are, who knows
who's in the Suv,
Maybe Daniels is, you know, family members are
in the Suv, and he's like, well, we
don't need any
unnecessary interaction with police officers. Why don't you
guys take off? I'll see what happens. You
know, that's not illegal activity. Very pla. Did
mister Daniels lean in the window and say,
hey, guys, the cops are coming move the
dough. Let's that could have happened, but it's
equally plausible that it didn't. And so
I think that the majority opinion like, really
gives credence to the fact here that, like,
if we're if we're ignorant about whether something
is criminal activity or not, we have to...
You know, we have to give the tie
to the citizen who is... You know, ostensibly
minding his own business when he's interacted with,
when the police interact with him. So
the the majority goes through those facts and
analyzes the totality of the circumstances and, you
know, 1 particularly...
Interesting thing in discussing the 911 call, you
know, the majority opinion talks about the supreme
court's decision from 20 22 and Brewing
that,
the
second amendment right to bear arms sort of
outside of the home kind of
recognize that Heller is not the outer limit
of the second amendment. Right. But it
b also,
sort of...
I don't know if it shifted or formal
the constitutional analysis from Hell or where if,
you know, your conduct is covered by the
text of the second amendment then the government
has to look the, you know, text history
tradition, those kinds of things to try to
justify,
the limitation. You, the majority says, we've got
3 guys here who have firearms in their
pockets in, like, under B,
that seems like totally lawful activity. It's not
clear that that can be evidence of
or a basis for reasonable suspicion of criminal
activity.
I I think that is kind of the
most most interesting part of the majority analysis
that kind of preview of
the work that B is doing in these
cases. But I think that,
judge Eyed files a
concurrent opinion,
she concur in the the judgment. And it
seems her main
her main sticking point with the majority is
exactly this point about the 911 call that
there is,
there was a lot more
nuance to how you analyze a situation under
B and sort of the tradition in historical
context of regulate firearms,
you know, she points out the
local governments are authorized to regulate firearms, private
property owners,
are allowed to regulate who can carry a
firearm.
And so
she takes issue with the majority opinion
at a high level looking at a group
of guys like, you know, hey, you know,
I've got my gun here. I've got this
gun.
Maybe that's lawful activity, but
it's not the craziest thing to say somebody,
you know, taking On in and out of
his pocket could be evidence of,
could could signal that criminal activity is a
foot. And so she kind of judge I
would rely on the much more concrete factor
the the 911 call did not identify mister
Daniels, the guy who wound up being arrested,
and only identified
a black Suv or a dark Suv and
when the cops showed up, there were 2.
And so
1 of the fundamental things about reasonable
suspicion is that it has to attach
to the target of your suspicion. Like it
has to attach to an individual. And so
you know, you can't show up and say,
it looks like there's criminal activity of a.
I'm gonna start arresting people or detain them
until I find out what's going on. So
The, at the end of the day, the
tenth circuit affirm the trial court's suppression, and,
I am not sure what happened.
To mister Daniels, but I would imagine it
was,
much more difficult to prove.
He was a felon and,
possession of a firearm if they couldn't use
his name at all. Yeah. And and and
then you couldn't use his Dna and
that's all they had. I mean, we don't
know what happened from this opinion to the
the folks who were in the Suv, what
other evidence was there what, you know, if
they were prosecuted.
Could be a lot of things. Yeah. I
was I was kinda surprised. I remembered the,
sort of all of the exceptions.
To the fruit of the Poisonous tree like
ne
or that kind of thing, like, we're gonna
find it anyway or other sources.
I was surprised they didn't have another source
for this guy's name, but I guess... Yeah.
You know, the way the the way the
record shook. Out. What the... You know, what
we're left what I was left with from
this opinion is, I don't even know if
maybe maybe, you know, it's in the record
that it was, but I don't even know
if this Suv was the 1 the 911
caller saw.
Because they said that, like, It it seems
like this was it was... As they said,
a high crime area, which gonna mean a
lot of things, but they also said it
was a big It's 1 of these big
apartment buildings with a big parking lot, and
the parking lot was completely full. Mh. So
it's not you know, an abandoned kind of
area, there's a lot of people out there
because the Super Bowl was earlier that day
people were kinda up and milling around even
though it was late. Yeah. And there there
could've have been other Suvs coming and going
that were black. Okay.
And this guy had an orange jumpsuit. There
was no orange jumpsuit on the call,
which you think would be notice. So... I
think that's the biggest red or orange flag.
1 of it there's wanna Yes bad. Is
bad. I
I was...
So I was kind of in between, I
guess the 2 opinions like, like, maybe you
are and that
I I think the concur does have a
point that
just because people are exercising their second amendment
rights, Doesn't mean it can't be
raise a red flag about something something going
on. Like, if you saw, you know, it's
legal to have ski masks,
knives and rope. But if you see a
group of guys getting in an Suv, maybe
they're not even wearing a ski mask but
they're holding them, it's in the summer,
they have rope. They're wearing all black, and
they have some knives.
That's probably not, you know, boy scout activity.
Right. And so I might call the cops.
If I see that. Even though everything is
at that point perfectly legal. The 1 thing
it seems like the the, you know, police
just were doing
they're kind of over the top police thing
here is when they get there,
they immediately...
Before they even talk to the defendant,
they said, tell him hands up. Because and
then they come and do their terry stop
instead of just going up to him and
saying, oh, hi. How are you? What's your
name?
Yeah. Or whatever. And maybe he woulda have
talked to them. Hey. Excuse me, sir, have
you seen 3 guys pulling guns out of
their pockets and putting in it back their
pockets. Do you live here? What's, you know,
and and,
us fourth amendment lawyers would probably know enough
to not tell in
what your name is,
but a lot of people would. This guy
might. And then they... All of this would
have been fine.
But they hadn't, you know, just gone over
the top.
Guns blazing, but not guns blazing of, from
the outset. Yeah. So by the way, I
looked up,
while, while you're talking about the case and
the the the name of that
novel
is
free fire,
written by Cj j box, and it's... I
haven't read them, but it's part of the
Joe Picket series.
Okay. I I know some people are into.
Is it detective. Is it, like a Utopia
or a dystopian?
Situation in... I think it's... I think it's
just a murder in the in the park.
Oh, okay. Yeah. Yeah. So anyway, people can
can learn learn a bit a little bit
about that, check it out. And, the the
the law article I love so much is
the the perfect crime.
The perfect. We'll put we'll put links in
the show notes to to all that. So
that is our first
adventure in the tenth circuit.
Now we're gonna have
another 1 where we're going to go
to prison
federal prison.
And
it's actually the backstory on this is quite
interesting, but it's not really relevant to the
case at all,
and that's that, the defendant
his name... Where... I'm sorry. The plaintiff. So
this is this is a civil case.
The the the
plaintiff is I'm gonna get his name wrong,
but
Ka Thomas Mohammed, but we'll call mister Mohammed.
So he was convicted
for the bombing of the Us em indices
in East Africa in 19 98.
That some of our
older
listeners
may remember.
It was, of course, a precursor to 09:11.
It was a a outside job. He was
then arrested a year later in South Africa
and immediately deported the Us. So he's been
in federal custody since 19 99,
and
he was convicted
and sentenced to life without parole.
So he is a life in federal prison.
Alright? So it sounds like he's
making his life in federal prison. Now, he,
as as you might imagine from someone in
his states and maybe even, you know, somewhat,
I don't know if he's reformed or not
in in prison.
But
very likely he hasn't.
He still believes his his a kinda qaeda
beliefs, but he has been in previous litigation
about his prison condition. Options. So this this
case is not exactly anything new.
And he,
alleges that he was mistreated in prison, and
so he's filed a lawsuit to try to
get damages
essentially, for, for what has happened.
Should go back and say, I'll bring up
the whole Sc cat hook in a moment.
But, the reading at the beginning, I should
should be fair was from AAA
kind of older book from the eighties,
physics boat called in search of Sc cat,
quantum physics and reality by John Rib.
Of course, people love to talk about Sc
nurse cats and people get wrong often,
not exactly parallel to the situation, but the
whole
dead and not dead is very relevant. And
a dead and not dead is luckily not
about the prisoner here But about this doctrine
called Vi that we've talked about many times
on the show, which is a case from,
named after a case from 19 71 at
the Spring court where the Supreme Court
essentially created
a cause of action. So that means a
way to sue
4 damages
against federal officials. So not state or local
officials, there's actually a statute, section 19 83
that does that. But for federal officials,
There was no
statute
generally. And so
the court created this cause of action.
Called,
called Bi,
and it was been extended in a couple
different cases, including 1 called Carson,
that had to do with
prison officials withholding
medical
treatments.
K. That'll be relevant in Alright. So let's
get to the facts. So mister Bah mohammad,
he is on Hunger strike. Why we're not
told... It could be all kinds of things.
So he's on Hunger strike, they take them
out of his cell,
we don't get a lot more facts than
that. And then as they're taking him back,
his prison guards beat them up.
And I should say this is at the
motion to the dismiss stage. So all of
these facts are ones he and his lawyers
put together in their complaint and we accept
as true for purposes of this stage of
the case. But, you know, there could... I'm
sure the prison guards have their own side
of the story
but this is from is complaint. So he
says they beat to me up. And then,
these other people including a physician's assistant don't
intervene to stop it.
Then
the,
a nurse comes and looks at my injuries
and
doesn't help me.
Maybe assess
was pretty beat up, but assess that, but
doesn't try to treat the injuries
And then another nurse and the the physician's
assistant
later
are involved in in treating some of them,
but not all of them. They don't help
me very much.
And I was just beating up in the
first place.
And so all of this is just really
bad, and I should get damages for it.
Also,
I, he had... They said, thousands of pages
of documents that he's written over 20 years
of being incarcerated,
and he had some books and, some other
materials
and they were taken from him
and
only some of them have begin back. So
then he had post traumatic stress from losing
this stuff.
So that's the allegations.
Okay. Then Sue, and he says under Bi.
I have a cause of action against these
various officials, including the the physician physician's assistant
and the nurses who just didn't treat me.
So the lack of medical treatment
for injuries in prison is relevant to this
old case Carson that said you have a
cause of action when federal officials fail to
give you medical treatment. That's an eighth amendment
violation.
The government... Oh, he also brings some claims
under the federal torque claims Act. It's not
really issue in this case, but it's kind
of in the background. So that's this act
that says for regular claims so, like, Torque
claims against federal officials. You can't bring those
claims
against the officials, but you can bring it
against the United States itself. So it's kind
of a way of shifting to the cost
to the government.
And,
those are still live
down below.
They... Some of them get thrown up but
not all of them, and they're not an
issue on the on the appeal. But so
the district court says,
alright. Yeah. It looks like at least some
of these eighth amendment claims you you have
under Vi,
we'll let him go forward. Okay? So motion
of the Dismiss
denied on those claims. Now normally in a
normal lawsuit, you would then go word in
those claims, you would have discovery,
the government would get another bite at the
apple at summary judgment.
However, we talk many, many times on this
show about qualified
immunity.
So qualified immunity is you say, well, maybe
those... That was unconstitutional but it wasn't so
under constitutional that it was clearly established.
And therefore,
meaning, clearly established meaning somebody did exactly what
you did at the exact same time to
the exact same person on the exact same
day. That is
as it's usually framed by the government. And
some courts. Yes.
So it there... There's
all kinds of ways of frame it, of
course, but basically, it wasn't so
unconstitutional. So obviously
unconstitutional that you win.
Now,
qualified immunity
you can appeal
straight away if you're if you're a government
official. So, whether it's a state, local or
federal,
official.
In fact, qualifying immunity came out of a
federal case,
the against president Nixon and some Aides,
you you can you can make that argument.
And, I'm sorry. And you can appeal it.
Immediately. So you can peel all the motion
this message stage. You could appeal again it
at the,
a summary judgment stage where you don't actually
go to trial, but you have evidence. And
you you can feel after trial even with
qualified immunity, what... Then, of course, you could
peel anyway.
Well, this is motion dismiss and they appeal.
But you know what?
I don't know why they did this. This
is like lightning and a hud.
So
maybe because the facts are just so bad.
I don't know. But the lawyers do not
use
qualified immunity on the appeal. They whatever claims
they had before they they drop them. For
these particular claims that survive that they peel
up the vi claims, they don't say qualified
immunity.
All they say
is there's no bi cause of action here.
Now I can see maybe why they did
that. And they did that because Bi is
on life support, or maybe it's dead. That's
where sure surrender nurse cat comes in.
Bib has been
d caps many times over the years by
the Supreme court. Basically, the the the early
Burger court in the 7 stop Evans was
a thing, and they kind they kinda came
up with a few ways to do Bib.
And since then, the the Rh was and
Robert's courts have just kept beating it. Every
year. It seems we get a new beat
down on Vi. And we we wouldn't have
done Vi today. We think that was terrible.
Congress should come up with a cause of
action. Court shouldn't be doing that. I've explained
ad item. And, also, so if my colleagues,
like, Onion Patrick, why that's not true, But
whatever,
the court has said that. And so Bi,
if it exists at all today is super
narrow and really just those 3 areas,
bi itself was a fourth amendment case. Carson
was this
eighth amendment case, and then there's a there's
another case about sex discrimination under the fifth
amendment.
That's it. That's all that's left of Vi.
That if anything.
So the the officials say on it, the
their appeal, the prison guards and and the
the medics, they say, Look, Bi is dead.
There's no bi anymore. And so we can
appeal it right away.
How can they do that? Alright. This is
some... Something... We haven't talked about too much
on the show. I will do real quick
because we could spend hours on it. The
collateral order doctrine
Sounds pretty sexy. Right? Collateral order doctor.
Now of course, yeah, Bob is nodding right
along. Well,
usually, when you make an appeal, you... The
case has to be done, final judgment. Everything
except ancillary stuff like maybe cost and attorney's
fees.
Or
enforcing judgment.
So
that's a normal course of business. But you
can appeal earlier in certain there's there's certain
ways you can appeal Like, if you you
have a pro... You ask for a preliminary
injunction, and that's denied, you can appeal that.
So that's it's all other thing. You could
also appeal if you get the... If you
think it's a really important issue that
is gonna affect the life of the case
And if you peel at the end, it...
It's kinda too late. So you wanna do
it early, you can have the district court
certify the question. This happens sometimes.
For whatever reason that didn't happen here.
Because the district court saying there's a cause
of action here, you you could say given
that Vi may or may not be dead,
could be something you could appeal.
But that doesn't happen. And so the government
appeals and says, well, this is under the
collateral order doctor. So the collateral order option
is really
judge made exceptions
to that final rule.
It comes from this case that called
Cohen from 19 49.
There's this balancing,
3 part tests that I don't think we
need to get into the the the the
opinion is most of just going through all
the ru of this test.
But essentially, it's something that you... That would
stop everything right away. That's super important,
and that you can't really
ad later in the case.
So that's why qualified immunity is, like, the
classic
quote... Whether you think it should apply or
not. This is what the courts have said.
Qualified immunity like that because it's really an
immunity from
litigation,
not exactly immunity from liability.
So
if you're I'm supposed to be immune from,
you know, going through
discovery, sitting for deposition, having to go to
trial. So you're a police officer and you're
saying, I shouldn't have to do all that
because I have qualified immunity. Well, then the
reasoning is where you should get that taken
away right away, and then go to it
a court of appeals because it's that important.
But courts have said over the years that
you you can't come up with collateral order
doctrine
worthy
issues willy nilly. So they're pretty ci stride.
And they haven't... The Supreme court hasn't come
up with 1 a long time.
Now the Supreme court in D has kinda
talked about what are the limits of this
in different places, and there's a case from
2007
where there's some pretty heavy
that says,
this doesn't apply to Bi cases.
So if a court says, Bib applies,
you can go forward with the case and
you think, oh, wait a minute. We we
we could
stop the whole case right now. If Bi
doesn't apply, that's not enough
is what this stick says. Now a couple
other circuits
have said, have have
said that yes,
you can't appeal. You so agree with mister
Mohammed here. You can't appeal,
denial of vi if you're if you're a
government official. However,
Wanna A descent 1 of those cases in
the third circuit, Judge Hard,
and both both cases are fairly recent. I
was little surprised by that. Judge Hard says
that that was drive by D. By the
supreme Court. And so, really, it's it's... We
shouldn't treat it that seriously. And D, of
course is letters court says when it's not
a holding, it's not the actual ruling of
the case, but it's other stuff that the
court says.
And the tenth circuit says we take Supreme
Court dick up pretty seriously, maybe more seriously
than the third circuit does. And so we're
gonna... We can't overlook this. Even if vi
has kind of become less of a thing
since this case in 2007.
And so the bottom line for the majority
is to cut a a very long story
short,
that
there
is...
There there
is not a reason to appeal
a bi
denial here, denial of the the... I should
say Bi
saying that Bi is a cause of action
that there is 1 here. That's not a
reason for an appeal. And they also say,
you read between the lines. It's kinda like,
you guys could erase qualified immunity, and then
you gotta to talk about Vi also in
the appeal because that's the hook, and then
everything else kind of goes up with it.
They said, well, that could be true, but
you didn't even try that here.
I think that's the reason By the way,
there's not a lot of other cases on
this. There's just these 2 other recent ones.
Is that everyone always
also does qualified immunity if you're in the
Vi zone. I mean, why...
If you're a defense attorney, like, why wouldn't
you? But
They didn't.
So I mean, the only thing yeah speculation
Bob, Why... Yeah I got I have some
spec. And, you know, maybe it's a
you know, maybe it's a little bit of
a heat check by the
by the feds here. Right? Like you point
out how much
The ground has just totally gone from us
Is the case. They're purposely doing it. Like,
oh, well, we've got this guy who's been
in federal custody for 20 plus years, probably
not the most sympathetic person to be bringing
this claim. You're right. It's at a 12
6 stage where we're supposed to take things
as true because they're revert and a claim,
but maybe a court is gonna,
you know, look at it a little bit
sideways and now is as good a time
as ever to only raise
Bi on an inter
appeal. And if they really wanna kill it,
they'll find a way to reach it for
us. And, I mean, maybe that's what's going
on. Maybe it was a mistake. No idea.
But
if you if you wanna guess, like,
strategic sinister,
speculation that that's what I would offer.
Having brought some test cases myself,
I I think that very well could be.
What what's what's going on? Test cases with
more sympathetic clients,
but I see where they are on the
other side.
The the dissent, the descent judge Tim,
He says... And this is what I find
actually most interesting of the opinion. He says,
look, Bi
is dead, and he does not talk about
Sc cat.
He talks about
Jacob Marley.
And quotes from the Christmas Carol
about
how
Marley was dead as a door,
and
everyone knew it.
Marley was dead to begin with. There is
no doubt whatever about that. That's the quote.
Yes. I guess it doesn't do the door
part. So
he says, look,
even if you have facts, just like Carson
or just like Bi. Maybe your name is
Webster business, Bi, you're beaten up by
narcotics agents in front of your family
without knowing their names, which is the facts
of Vi
even then you don't have a cause of
action.
And so because there's just just... There just
is not a claim here.
We can take the collateral... We can take
the the case on collateral order doctrine.
Now I have to say, I don't think
that's right.
And this is just
my limited
understanding of the area, but this is
AAA
claim that you don't have a cause of
action
is a 12 b sick And for non
lawyers out there, that's saying that even if
what you alleges is true,
the law does not give you relief. And
12 6 has happened all the time, And
all kinds of areas,
government officials, non government fix officials. They're they're
all over the place in in state or
in federal litigation, but the equivalent and state
litigation.
Just because you say you you win, maybe
if you if you won that... That way
at the end it whatever stage of the
case that someone doesn't have a cause of
action,
does not mean
that it is equivalent to say qualified immunity.
That it just... It's so important that you
can't let the case go on. The only
argument there, majority kinda talks about that is
that, well, we're the government.
We're government officials. We're so important. We can't
we can't subject ourselves all this litigation and
trial
that,
we should be able to appeal right away.
And that's not what the doctor is. The
doctrine is these limited areas within
that
that world, and it... It's not just for
government officials, but especially is. So
just because you you win that there's there's
no cause of action. Doesn't mean you can
appeal, and I'm a little confused like, why
he thinks that's true and he gives his
arguments in the descent. But anyway, He is...
He does... He doesn't win there. But I
think the majority kind of leans on that
there there is still maybe a bi
cause of action here.
They don't exactly say, even if there wasn't,
there would be a
an appeal here.
Although they kinda reading between the lines, maybe
they they are saying that. So that's...
That goes in into
lots of stuff we could talk about about,
causes of action and federal constitution that is...
We've talked about before, but,
that was my my take on the descent
too.
Yeah. Well, I mean, I think
at the end of the day,
the...
I think the majority has
probably the right
read of sort of the outcome. I mean,
the purpose of Vi,
you think at a high level, the purpose
of qualified immunity is helping
a government defendant avoid litigation
or the burden of litigation. Right? Like, what
is the purpose of bi? I mean, it's
just from the outset square 1 totally a
different purpose,
allowing somebody to vin authenticate their rights under
the constitution. I mean, for purposes of an
inter
appeal, you group things like qualified immunity and
preliminary injunction because there is this, you know,
really good argument that just the injury of
going through the litigation is a harm. But,
you know, there is no
no suggestion of that,
in in Bi or the supreme court case,
you know, creating Vi and or recognizing Vi.
So
III think it is... I think it's appropriate
to treat the the 2 differently.
I am surprised by
you know, I would think that the quote
that might be a little bit better for
Vi would be
from the Princess ride.
Billy Crystal, only only mostly did.
Because, you know,
if the Supreme Court can recognize Bi. It
can recognize Bi 2
when, you know,
when somebody convince them to to let a
plane bring a cause of action directly under
AAA
constitutional provision. So I don't know that it's
dead
all the way, but
certainly certainly on its way. It seems.
Yes. That the the the the question as
to whether Pi has anything left to it
is an an important 1. But,
just because something's important doesn't mean you get
a fl the normal rules of civil
litigation, I think because that... That's what these
prison guards are trying to do here. Yeah.
Yeah.
Well,
I think that
our our 2 are through the tenth circuit
has been
a whirlwind. Yeah. There's banks and valleys and
you know, the the El dorado over always
over the next hill and... Yeah. We'll keep
searching for that. But I think I think
we made some good discoveries, a few gold
nuggets
along the way here, Bob. So think thanks
for sad up with me. Yeah. A little...
It was a Rocky rod.
June. Well, I hope the rest of you
enjoyed it and until next time.
I hope that all of you
get engaged.