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Hey, everybody. Just wanted to note that this

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episode, it's a great 1. It's core short

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circuit material,

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but we recorded it a little while ago

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in May. So about 2 months ago. And

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for some scheduling reasons, we couldn't publish it

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until now. So you'll hear, we're talking about

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cases from last May,

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but don't let that stop you from enjoying

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it. Everything's still makes sense. Nothing's out of

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date.

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I do realize now that I went a

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bit too long with my opening reading about

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Sc

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cats,

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but hopefully the charm of my good friend

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Bob Be makes up for that. Now, on

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of the show.

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Sc, as said, Einstein about the implications of

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Quantum theory, tried to show the absurdity of

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those implications by imagining such an experiment set

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up in a closed room or box, which

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also contains a live cat and a vial

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of poison. So arrange that if the radioactive

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decay does occur then the poison container is

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broken and the cat dies.

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In the everyday world, there is a 50

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50 chance that the cat will be killed.

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And without looking inside the box, we can

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say quite happily that the cat inside is

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either dead or alive. But now we end

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counter the strange of the Quantum world

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According to the theory, neither of the 2

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possibilities open to the radioactive

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material,

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and therefore to the cat has any reality

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unless it is observed. The atomic decay has

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neither happened nor not happened. The cat has

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neither been killed nor not killed

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until we look inside the box to see

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what has happened.

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Theorists who accept the pure version of quantum

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mechanics say that the cat exists in some

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ind

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state neither dead nor alive

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until an observer looks into the box to

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see how things are getting on,

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nothing is real

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unless it is observed.

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Well, that, of course

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is the story of Sc cat that probably

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all of you have heard before.

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Well, a version of Sc this cat took

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place in the tenth circuit last week about

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whether the bi doctrine, which we have talked

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about many times before on the show is

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either alive or dead or perhaps both at

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the same time. We'll discuss that and another

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case from the tenth circuit today on short

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circuit. Your podcast on the Federal Courts of

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appeals. I'm your host, Anthony Sanders, director of

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the center for Gi judicial Engagement at the

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Institute for Justice.

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We're recording this on Tuesday,

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05/14/2024.

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And this is a journey into the wild

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world

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of the tenth circuit. The wild west of

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constitutional law. Actually, it's just in the west,

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maybe not so wild that little while this

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week though and joining me on this adventure

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into the highlands. As we put on our

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cowboy hats and

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drop off our city slick and head for

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the hills,

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is my colleague at, Bob Be. So Bob,

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we'll back to short circuit. Anthony, thank you

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for having me. You know, the the sc

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gi cat reading at the beginning reminds me

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of being at home, and parents of toddlers

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and young children know when you hear the

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sound of something fall,

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in another room and possibly break until you

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go in the other room,

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you can imagine it with something of low

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value that doesn't matter to you, and it's

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not until you go in and you see

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it's something you like that's broken. So

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it's it's broken and not broken at the

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same time. That's right. It's a timely story.

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It sounds like you speak from experience.

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Not not a significant amount of experience, but

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accumulating every day.

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So we were talking before the show, you

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do not have a significant amount of time

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practicing in the tenth circuit,

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which we're discussing today. But but a little

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bit, I actually have 0 experience, I think

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practicing in the tenth circuit. So the tenth

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circuit for those who don't follow the min

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of the Federal Courts of appeals, it's kinda

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like the mountain states that they had to

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do something with after they created the massive

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ninth circuit, which everyone agrees is is way

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too big, even without California,

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and it has...

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So it's centered in

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Denver and Colorado where the court of appeals,

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main court of appeals is, which we've talked

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about the show before beautiful library courtroom. And

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then it has Wyoming,

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which extends a tiny bit into Idaho and

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Montana through Yellowstone National Park. And Utah, New

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Mexico,

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Kansas and Oklahoma. So this is your rugged

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individual, you know,

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pull yourself up by your boots bootstrap, type

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of place.

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Agenda by... Did you say it goes into

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Idaho? Well... Okay. This is a tangent that

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I've been on listeners

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probably are like, oh, there he goes again

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with the Yellowstone National Park. So

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yes.

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But for those who haven't heard, Yellowstone National

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Park.

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If you ever looked at a map of

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Wyoming and you probably noticed it it it

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goes a little bit in the Idaho and

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Montana.

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So the district,

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the federal district of Wyoming is the only

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district in the country that is in multiple

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states

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because it overlaps with yellowstone.

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Because they think... Because, of course, in yellowstone

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National Park, there's really no state authority. It's

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all federal. Like, if you come commit a

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crime in national park, you're gonna be prosecuted

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by the Feds. Mh. Even if it's for

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some tiki tac thing. So that extends into

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Idaho and

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in Montana,

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why that gets interesting

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is because of this... 1 of my favorite

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law review articles ever by professor Brian C,

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which is that,

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there are

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constitutional implications to your right to a jury

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trial under the Vincent clause,

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sixth amendment

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if you commit the crime in those tiny

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bits of Idaho

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or Montana because

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Montana, there's a very low. There's not a

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lot of people live there. To some, but

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not Idaho, there are 0 people.

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So if you have to be tried in

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the state and district as the sixth amendment

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says,

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the government might have problems.

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Because there's no jury pool to

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to... As long as you're in the Idaho

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part. Right. So So that the that the

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idea has always been since

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the professor called article came out, like, 20

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years ago, you could just go there and,

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like,

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manufacture cocaine and shoot off, you know, automatic

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weapons or whatever and you'd be fine.

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I commit murders.

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Liberty.

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That's a novel based on that that came

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out of a few years ago.

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That I've been told is pretty good. So

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people do you know what it's called.

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Oh, man, you're you're gonna you're gonna tell.

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I'll do a little light put it in

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the moments.

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Yeah yeah Yeah. Yeah. Yeah Well, I'll I'll

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mention it in a in a. I know

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people at I j have told me they

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they've read it, and it's it it's a

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good read.

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So luckily,

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fictional.

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But we're gonna talk about some non fictional

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things. And I I was saying it's it's

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a little bit of people pulling themselves up

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by their bootstrap because

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a couple people there... It seems like the

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constitutional rights were not taken

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seriously,

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and that includes your case

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which has to do with

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some fourth amendment stuff and

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a guy in a parking lot. Yeah. Yeah.

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So my case today from the tenth circuit

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is called

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Usa versus Daniels, and it comes to us

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out of the district. Colorado.

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So the

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underlying facts are all in Aurora Colorado, which

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I think it's just outside of Denver. So

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not quite the wild west, but, you know,

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you can go camping on the weekend if

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you'd like.

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So

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this is a case kind of about 2

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things.

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The first is

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the

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interpretation of...

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Reasonable

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suspicion to conduct a terry stop in a

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kind of

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post brewing world if you can think about

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the the way we look at the second

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amendment now under B,

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and

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it's a case about, a suppression hearing and

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and suppression motions at a criminal trial. So

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reasonable

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suspicion just at kind of like, a high

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level under,

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under Terry is,

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if you could explain Terry, maybe for the

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non lawyers out there. Yeah. I, I mean,

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it's a Supreme court case from him, I

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think, like, 19 68 that says, basically,

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cops can make. A brief investigate to investigative

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stop,

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if they have reasonable

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suspicion that criminal activity is a foot. And

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so that can be lower than they need

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for an arrest, but it's not arrest. So

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they just need a a little bit. But

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it can't be nothing.

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Right. It's sort of a it's sort of

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a sliding scale, you know, like, any any

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American is totally within their rights to just

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refuse to speak to police when they to

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talk to them, but

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the police are equally within their rights if

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they have reasonable

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suspicion of criminal activity to kind of

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stop a citizen and say, you know,

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what's your name, that kind of thing. And

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there's a sort of sliding scale

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as the

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kind of detention gets started, it has to

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be justified at its outset, and as it

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as it continues,

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the cop has to have reasonable

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suspicion to continue detain the person. So that

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is kind of in AAAA

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broad sense what reasonable

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suspicion is it's much lower.

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You mentioned making an arrest, Anthony. It's much

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lower than, like, probable cause or,

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you know, beyond a reasonable doubt any of

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those other standards that lit... Listeners are probably

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familiar with, But it's a it's an objective

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standard, and it's supposed to be based on

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sort of the facts and circumstances

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that present

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to the law enforcement officer when they start

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and carry on the detention.

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The second thing that this case is about

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is a suppression motion. So,

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when you're tried in a in a criminal

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case,

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you can make a motion to suppress certain

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evidence that the government wants to introduce against

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you.

276
00:10:24,551 --> 00:10:25,845
And you have to show

277
00:10:27,192 --> 00:10:28,628
well, I guess I guess you can move

278
00:10:28,628 --> 00:10:30,384
to suppress on a number of different grounds,

279
00:10:30,543 --> 00:10:32,618
but 1 that's quite common in a criminal

280
00:10:32,618 --> 00:10:35,586
trial is to say, this evidence is something

281
00:10:35,586 --> 00:10:38,220
called fruit of the poisonous tree, which is

282
00:10:38,220 --> 00:10:39,438
the concept that

283
00:10:40,375 --> 00:10:42,551
when law enforcement or the police

284
00:10:43,182 --> 00:10:45,914
violate a constitutional right of yours

285
00:10:46,291 --> 00:10:49,240
to get access to information. Typically, it's gonna

286
00:10:49,240 --> 00:10:51,568
be the fourth amendment, but I I think

287
00:10:51,568 --> 00:10:53,642
that there are some other amendments that have

288
00:10:53,642 --> 00:10:55,317
kind of a fruit of the poisonous tree

289
00:10:55,317 --> 00:10:57,253
doctrine that follow. But

290
00:10:58,284 --> 00:11:00,921
If you... If law enforcement gets evidence as

291
00:11:00,921 --> 00:11:03,318
a result of a fourth amendment violation, you

292
00:11:03,318 --> 00:11:05,316
can kind of think of an actual tree

293
00:11:05,316 --> 00:11:06,136
with branches

294
00:11:06,929 --> 00:11:09,823
growing off. And subject to some

295
00:11:10,281 --> 00:11:10,781
exceptions,

296
00:11:12,117 --> 00:11:15,205
any evidence that the law enforcement officers obtain

297
00:11:15,404 --> 00:11:17,318
after they violate someone's rights,

298
00:11:18,275 --> 00:11:19,631
someone's fourth amendment rights,

299
00:11:20,429 --> 00:11:22,822
it's called, a fruit of the poisonous tree

300
00:11:22,822 --> 00:11:24,337
and can't be used at a criminal trial.

301
00:11:24,576 --> 00:11:25,076
So

302
00:11:26,105 --> 00:11:28,414
to kind of tie those 2 concepts together,

303
00:11:28,891 --> 00:11:29,130
this,

304
00:11:29,847 --> 00:11:32,155
Us versus Daniels is a case where,

305
00:11:33,685 --> 00:11:36,965
a criminal defendant moves to suppress certain evidence

306
00:11:36,965 --> 00:11:40,185
at his criminal trial, and he actually succeeds

307
00:11:40,485 --> 00:11:40,985
because

308
00:11:41,696 --> 00:11:44,473
law enforcement used something or plan to use

309
00:11:44,473 --> 00:11:46,163
something in the investigation

310
00:11:46,774 --> 00:11:48,519
that was based on a fruit of the

311
00:11:48,519 --> 00:11:49,392
poisonous tree.

312
00:11:50,362 --> 00:11:52,377
Which is a violation of the reasonable

313
00:11:52,755 --> 00:11:54,987
suspicion rule. So that's kind of what this

314
00:11:54,987 --> 00:11:57,539
case is about. Now the the facts are

315
00:11:57,539 --> 00:11:58,576
relatively simple.

316
00:11:59,625 --> 00:12:00,602
If you can

317
00:12:01,056 --> 00:12:03,997
sort of remember back to the last time

318
00:12:03,997 --> 00:12:04,736
that the

319
00:12:05,508 --> 00:12:06,644
Kansas City chiefs

320
00:12:08,625 --> 00:12:09,444
played the

321
00:12:09,899 --> 00:12:12,286
Tampa Bay Buck in an enormous game. Yeah.

322
00:12:12,445 --> 00:12:13,480
I think it was it that was the

323
00:12:13,560 --> 00:12:14,378
Tom Brady

324
00:12:14,768 --> 00:12:17,474
Super Bowl after the patriots. And that's like,

325
00:12:17,633 --> 00:12:19,941
you know, his his goat moment. Right? That

326
00:12:19,941 --> 00:12:22,010
that's right. And, you know, 1 1 is

327
00:12:22,010 --> 00:12:23,464
left with the

328
00:12:24,570 --> 00:12:27,430
very firm sense after reading the majority opinion

329
00:12:27,430 --> 00:12:29,654
that Judge S moore is a Bro fan.

330
00:12:31,339 --> 00:12:32,535
Because there is a footnote,

331
00:12:33,253 --> 00:12:35,327
recording the score from the game and, you

332
00:12:35,327 --> 00:12:36,922
know, just reminding everybody,

333
00:12:38,038 --> 00:12:40,192
that the buck years won. But,

334
00:12:41,243 --> 00:12:44,656
this is 02/07/2021.

335
00:12:45,212 --> 00:12:47,196
It's a little bit before midnight, and the

336
00:12:47,355 --> 00:12:49,260
Aurora police get A911

337
00:12:49,260 --> 00:12:49,498
call.

338
00:12:50,229 --> 00:12:53,098
And it's not an emergency. It's just somebody

339
00:12:53,098 --> 00:12:54,773
who lives next to this building,

340
00:12:56,048 --> 00:12:57,164
calling in to say,

341
00:12:59,091 --> 00:13:01,399
you know, I see 3 guys in this

342
00:13:01,399 --> 00:13:04,662
parking lot, and they're... They have guns, take...

343
00:13:04,821 --> 00:13:06,652
And they're taking these guns in and out

344
00:13:06,652 --> 00:13:09,458
of their pockets and they're standing block... They're

345
00:13:09,458 --> 00:13:10,097
standing by,

346
00:13:11,056 --> 00:13:12,335
a black Suv.

347
00:13:12,974 --> 00:13:13,474
And

348
00:13:14,013 --> 00:13:16,271
I think the quote that the majority uses

349
00:13:16,983 --> 00:13:19,845
over and over again is that the caller

350
00:13:19,845 --> 00:13:22,389
said, it looks like these guys were about

351
00:13:22,389 --> 00:13:24,297
to do something. Doesn't say what,

352
00:13:24,868 --> 00:13:27,336
doesn't say it's an emergency. Doesn't say, you

353
00:13:27,336 --> 00:13:29,246
know, something's really about to happen.

354
00:13:29,882 --> 00:13:31,713
The cops put a note down and say,

355
00:13:31,792 --> 00:13:33,384
you know, we'll send somebody out to take

356
00:13:33,384 --> 00:13:33,702
a look.

357
00:13:35,873 --> 00:13:36,373
So

358
00:13:38,031 --> 00:13:40,268
2 officers come out to the parking lot.

359
00:13:40,508 --> 00:13:41,008
And

360
00:13:41,707 --> 00:13:43,705
when they get there, they see what is

361
00:13:43,705 --> 00:13:47,064
a pretty well lit, busy parking lot with

362
00:13:47,064 --> 00:13:49,395
cars coming and going in, and

363
00:13:49,930 --> 00:13:50,646
they see,

364
00:13:52,173 --> 00:13:55,676
2 dark Suv. So the 911 caller said

365
00:13:55,676 --> 00:13:57,825
the guys where the guns were, like, standing

366
00:13:57,825 --> 00:13:59,417
around a black Suv,

367
00:14:00,069 --> 00:14:02,302
cops get to the parking lot, see 2

368
00:14:02,302 --> 00:14:03,259
black Suvs,

369
00:14:03,818 --> 00:14:05,833
but they don't see,

370
00:14:06,928 --> 00:14:09,481
the 3 men that the 911 caller had

371
00:14:09,481 --> 00:14:11,566
described that the caller said there are 3

372
00:14:11,566 --> 00:14:13,794
black guys here with black hood sweatshirt on,

373
00:14:13,953 --> 00:14:15,863
and they've got, you know, guns and they're

374
00:14:15,863 --> 00:14:17,216
taking a minute out of their pockets. While

375
00:14:17,216 --> 00:14:19,308
the cops get there. And they don't see

376
00:14:19,937 --> 00:14:22,406
guys in black hoodies, you know, walking around

377
00:14:22,406 --> 00:14:25,592
a black Suv. What they do see is,

378
00:14:26,229 --> 00:14:27,764
mister Daniels who

379
00:14:28,474 --> 00:14:29,982
I'm gonna go out on a limb and

380
00:14:29,982 --> 00:14:32,681
say that mister Daniels is also a Bro

381
00:14:32,681 --> 00:14:35,539
fan based on his attire, which is described

382
00:14:35,539 --> 00:14:37,389
in the opinion, the majority

383
00:14:37,778 --> 00:14:39,606
notes that when the cops get there, mister

384
00:14:39,765 --> 00:14:41,753
Daniels is in fact standing next to a

385
00:14:41,753 --> 00:14:42,628
black Suv,

386
00:14:43,025 --> 00:14:44,956
but he's wearing an orange jumpsuit

387
00:14:45,411 --> 00:14:46,683
and an orange shirt,

388
00:14:47,494 --> 00:14:49,886
with a reflective stripe on it. So he's,

389
00:14:50,046 --> 00:14:52,518
you know, bringing attention to himself and maybe

390
00:14:52,518 --> 00:14:54,511
the kind of thing you would expect A911

391
00:14:54,511 --> 00:14:56,527
caller to mention if they suspected

392
00:14:57,558 --> 00:15:00,355
somebody in a bright orange jumpsuit of engaging

393
00:15:00,355 --> 00:15:03,152
in criminal activity. But the cops see, mister

394
00:15:03,312 --> 00:15:05,011
Daniel see that he's got

395
00:15:05,884 --> 00:15:07,644
this outfit on, but he is standing next

396
00:15:07,644 --> 00:15:09,804
to a dark Suv. So the cop start

397
00:15:09,804 --> 00:15:12,044
to approach as their approaching,

398
00:15:13,004 --> 00:15:14,764
mister Daniel says something,

399
00:15:15,099 --> 00:15:17,168
to the folks in the Suv, which the

400
00:15:17,168 --> 00:15:19,737
officers cannot hear. They cannot hear

401
00:15:20,749 --> 00:15:23,296
what is exchanged between Daniels and the Suv

402
00:15:23,296 --> 00:15:24,433
occupants, but

403
00:15:24,743 --> 00:15:26,414
as soon as Daniel says something,

404
00:15:27,289 --> 00:15:30,471
the Suv pulls off, and it's important to

405
00:15:30,471 --> 00:15:31,187
note that, like,

406
00:15:31,837 --> 00:15:34,375
the Suv pulled off in exactly the same

407
00:15:34,375 --> 00:15:37,071
manner that other cars had been sort of

408
00:15:37,071 --> 00:15:40,103
idling into the parking lot, pulling out driving

409
00:15:40,103 --> 00:15:41,699
away, there had been a lot of activity

410
00:15:41,699 --> 00:15:43,237
in the parking lot. And so

411
00:15:43,774 --> 00:15:45,711
aside from the Suv leaving

412
00:15:46,089 --> 00:15:47,605
when mister Daniel said something,

413
00:15:48,099 --> 00:15:50,816
nothing really unusual about the Suv taking off.

414
00:15:51,695 --> 00:15:55,131
But after the Suv leaves, officer Idle, this

415
00:15:55,131 --> 00:15:56,981
is where we kind of this is sort

416
00:15:56,981 --> 00:15:59,048
of the initiation of what we talked about

417
00:15:59,048 --> 00:15:59,923
the Terry stop.

418
00:16:01,196 --> 00:16:03,024
Officer Id, 1 of the 1 of the

419
00:16:03,024 --> 00:16:05,808
police officers makes contact with mister Daniels and

420
00:16:05,808 --> 00:16:06,697
says, you know,

421
00:16:07,652 --> 00:16:10,300
they refer to they refer kind of vaguely

422
00:16:10,357 --> 00:16:12,902
to Daniel's complying with the orders. It's not

423
00:16:12,902 --> 00:16:15,628
exactly clear what Id, the officer said when

424
00:16:15,628 --> 00:16:18,658
he walked up. But it's clear that Daniel's

425
00:16:18,658 --> 00:16:19,158
comp

426
00:16:19,536 --> 00:16:22,088
with kind of an... In order to stand

427
00:16:22,088 --> 00:16:24,676
there, and Daniel's provided his name

428
00:16:25,053 --> 00:16:25,951
to the officer.

429
00:16:26,566 --> 00:16:26,805
Now,

430
00:16:27,602 --> 00:16:28,160
from there,

431
00:16:29,514 --> 00:16:32,075
that they kind of don't do much at

432
00:16:32,075 --> 00:16:35,095
the parking lot, But other officers follow the

433
00:16:35,333 --> 00:16:37,423
Suv, ultimately stop it

434
00:16:37,797 --> 00:16:40,276
and find AII

435
00:16:40,276 --> 00:16:42,106
can't remember if they find, like, multiple guns

436
00:16:42,106 --> 00:16:44,356
or multiple drugs or something, but they find

437
00:16:44,413 --> 00:16:47,292
a gl in the back seat and find

438
00:16:47,292 --> 00:16:49,520
out that it's been stolen and and the

439
00:16:49,520 --> 00:16:50,736
and the stop was

440
00:16:51,111 --> 00:16:52,940
appropriate right? Because it ran a red light

441
00:16:52,940 --> 00:16:54,549
or something like that. That Yeah. That's right.

442
00:16:54,788 --> 00:16:57,265
The Suv drove legally for a little while,

443
00:16:57,665 --> 00:16:59,662
ran a red light gets pulled over and

444
00:16:59,662 --> 00:17:01,440
is getting surged. So

445
00:17:02,471 --> 00:17:04,303
using Daniel's name,

446
00:17:05,578 --> 00:17:08,447
the cops back at the parking lot, run

447
00:17:08,447 --> 00:17:10,694
a background check on Daniels find out that

448
00:17:10,694 --> 00:17:11,332
he is a,

449
00:17:11,970 --> 00:17:14,123
a prior felon. They don't say they don't

450
00:17:14,123 --> 00:17:15,638
say what he did or what he was

451
00:17:15,638 --> 00:17:17,175
convicted of. But

452
00:17:17,552 --> 00:17:18,052
the

453
00:17:18,684 --> 00:17:20,284
police then use his name,

454
00:17:20,924 --> 00:17:22,784
Daniel's his name to get a warrant

455
00:17:23,325 --> 00:17:24,865
for his Dna.

456
00:17:25,244 --> 00:17:27,256
So what they wanna do is We have

457
00:17:27,256 --> 00:17:28,927
his name. We use the name to find

458
00:17:28,927 --> 00:17:31,235
out he's a felon. We wanna use his

459
00:17:31,235 --> 00:17:31,951
name now,

460
00:17:32,588 --> 00:17:34,433
and the fact that he's a felon, to

461
00:17:34,433 --> 00:17:36,740
get his Dna because we wanna show you

462
00:17:36,740 --> 00:17:39,365
his Dna is on this gl in the

463
00:17:39,365 --> 00:17:39,603
car,

464
00:17:40,717 --> 00:17:41,170
because

465
00:17:41,527 --> 00:17:42,558
as most people know,

466
00:17:43,272 --> 00:17:44,382
if you read a criminal,

467
00:17:45,096 --> 00:17:46,920
a criminal law opinion in the United States

468
00:17:46,920 --> 00:17:49,714
from federal court. You almost always see a

469
00:17:49,714 --> 00:17:51,711
charge against somebody for being a felon in

470
00:17:51,711 --> 00:17:53,250
possession of a gun because

471
00:17:54,189 --> 00:17:57,145
that's an easy crime to prove. It's sort

472
00:17:57,145 --> 00:17:59,154
of not quite a status crime, but it's

473
00:17:59,154 --> 00:18:00,909
very close. Once you're a felon and you

474
00:18:00,909 --> 00:18:02,982
have a gun, you've you've committed this crime

475
00:18:02,982 --> 00:18:04,338
and there's a lot of punishment for it.

476
00:18:04,577 --> 00:18:06,412
Yeah. As we've said this show many times,

477
00:18:06,731 --> 00:18:08,494
you there are a lot of times you

478
00:18:08,494 --> 00:18:10,480
you think why wasn't this prosecuted in state

479
00:18:10,480 --> 00:18:12,704
court for, like, a real crime and instead

480
00:18:12,704 --> 00:18:15,269
it's in federal court for this, a felony

481
00:18:15,658 --> 00:18:17,408
happy to have a gun, and it's because

482
00:18:17,408 --> 00:18:19,158
it's a heck of a lot easier. Yeah.

483
00:18:19,556 --> 00:18:20,851
Yeah. So

484
00:18:22,579 --> 00:18:23,079
the

485
00:18:23,852 --> 00:18:26,644
the the grand jury and diets, Daniels on,

486
00:18:26,724 --> 00:18:28,469
like, a very simple charge of being a

487
00:18:28,469 --> 00:18:31,325
felon possession. And I am not sure,

488
00:18:33,248 --> 00:18:34,546
I'm not sure if he was

489
00:18:34,924 --> 00:18:37,636
represented at the trial court level by the

490
00:18:37,636 --> 00:18:39,950
federal public defender, but he's represented on appeal.

491
00:18:40,523 --> 00:18:43,224
By the federal public defender. And you know,

492
00:18:43,383 --> 00:18:45,607
I mean, I I just would say, like,

493
00:18:45,766 --> 00:18:48,308
kudos to them for raising this argument. I

494
00:18:48,308 --> 00:18:48,839
mean, I think

495
00:18:49,439 --> 00:18:50,877
I I think it's a well...

496
00:18:51,836 --> 00:18:54,494
It's a well argued fourth amendment case, and

497
00:18:55,433 --> 00:18:57,910
you can see from the sort of procedural

498
00:18:57,910 --> 00:19:00,653
record that is described in the opinion that

499
00:19:00,867 --> 00:19:03,035
the trial court bought in into

500
00:19:03,489 --> 00:19:05,315
all of the arguments at Daniels was making

501
00:19:05,315 --> 00:19:06,689
he moved to suppress

502
00:19:08,032 --> 00:19:11,476
the the Dna evidence that the government collected

503
00:19:11,532 --> 00:19:13,464
showing he had actually been

504
00:19:14,094 --> 00:19:15,848
I get maybe not in possession, but he

505
00:19:15,848 --> 00:19:17,842
had, you know, been in contact with that

506
00:19:17,842 --> 00:19:20,554
stolen clock. So... Yeah. I guess that's close

507
00:19:20,554 --> 00:19:22,947
enough for, quote, possession under the law and

508
00:19:22,947 --> 00:19:24,716
touched it. Yeah. I mean,

509
00:19:26,071 --> 00:19:27,507
if if you're on if you're on this

510
00:19:27,507 --> 00:19:29,362
side of the v, I think it's enough

511
00:19:29,500 --> 00:19:29,579
position.

512
00:19:31,094 --> 00:19:32,311
So the

513
00:19:32,704 --> 00:19:33,204
cops

514
00:19:33,663 --> 00:19:35,441
or sorry. The the prosecutors

515
00:19:35,820 --> 00:19:36,059
charge,

516
00:19:36,858 --> 00:19:39,515
Daniels fell in possession. He moves to suppress

517
00:19:39,829 --> 00:19:42,789
the the Dna evidence and actually wins at

518
00:19:42,789 --> 00:19:44,809
the trial court level and the trial court's

519
00:19:45,109 --> 00:19:45,509
explanation is,

520
00:19:46,549 --> 00:19:49,759
you know, You had the police, Aurora police

521
00:19:49,759 --> 00:19:51,435
had A911

522
00:19:51,435 --> 00:19:54,549
call that was semi anonymous, like the person

523
00:19:54,549 --> 00:19:56,465
called in didn't give their name, Didn't know

524
00:19:56,465 --> 00:19:58,790
the people in the parking lot, but they

525
00:19:58,790 --> 00:19:59,848
were able to

526
00:20:00,383 --> 00:20:03,251
provide some detail about, like, the area, what

527
00:20:03,251 --> 00:20:06,139
was going going on. They were conte viewing

528
00:20:06,139 --> 00:20:08,694
it. So it wasn't like somebody called the

529
00:20:08,694 --> 00:20:10,929
police and told them, you know, John Doe

530
00:20:10,929 --> 00:20:13,059
did this 2 weeks ago in this location

531
00:20:13,340 --> 00:20:15,200
There was some sort of active

532
00:20:15,740 --> 00:20:18,880
collaboration. So that doesn't make the tip

533
00:20:19,259 --> 00:20:22,234
really super reliable or unreliable. This kind of

534
00:20:22,234 --> 00:20:23,771
a totality of the circumstances

535
00:20:24,149 --> 00:20:24,628
analysis.

536
00:20:25,027 --> 00:20:27,442
And the judge at the trial court level

537
00:20:27,740 --> 00:20:29,895
thinks, you know, the cop showed up and

538
00:20:29,895 --> 00:20:31,898
didn't see the guys who were mentioned in

539
00:20:31,898 --> 00:20:32,613
the complaint,

540
00:20:34,043 --> 00:20:36,505
you show up and this guy complies with

541
00:20:36,505 --> 00:20:38,015
your order as soon as you come up,

542
00:20:38,173 --> 00:20:39,842
and you don't even know what he said

543
00:20:39,842 --> 00:20:41,287
to the person in the Suv.

544
00:20:42,002 --> 00:20:44,251
Trial court is convinced. There's not enough evidence

545
00:20:44,307 --> 00:20:44,807
of

546
00:20:45,420 --> 00:20:48,281
suspicion of criminal activity at the outset of

547
00:20:48,281 --> 00:20:50,125
the encounter person and

548
00:20:51,158 --> 00:20:53,305
suppress the Dna evidence on that basis.

549
00:20:53,862 --> 00:20:56,350
So the government appeals and

550
00:20:58,011 --> 00:21:00,634
it is not as interesting really to run

551
00:21:00,634 --> 00:21:03,018
through the majority opinion because what the majority

552
00:21:03,018 --> 00:21:06,295
opinion does is look at the sort of

553
00:21:06,295 --> 00:21:08,049
facts that were presented to the trial court,

554
00:21:08,607 --> 00:21:11,158
particularly the 911 call and the details that

555
00:21:11,158 --> 00:21:13,444
were covered there, then the kind of

556
00:21:14,120 --> 00:21:15,631
time and location, you know,

557
00:21:16,585 --> 00:21:18,493
Judge See Moore like, it's the Super Bowl

558
00:21:18,493 --> 00:21:20,163
and the chiefs lost like a bunch, you

559
00:21:20,163 --> 00:21:21,569
know, by a bunch. So

560
00:21:22,006 --> 00:21:23,832
of course, there are good people here near

561
00:21:23,990 --> 00:21:26,610
Denver out, celebrating the fact that the Bro

562
00:21:26,610 --> 00:21:28,277
didn't have to watch the chiefs win.

563
00:21:29,229 --> 00:21:31,334
No surprise there. And then

564
00:21:31,951 --> 00:21:33,010
the Suv

565
00:21:33,628 --> 00:21:35,783
sort of how it how it

566
00:21:36,502 --> 00:21:38,598
reacted, You know, you can really

567
00:21:39,216 --> 00:21:39,716
in

568
00:21:40,187 --> 00:21:42,256
in this situation where you're looking at things

569
00:21:42,256 --> 00:21:43,926
with the hindsight of 20 20. And you're

570
00:21:43,926 --> 00:21:46,074
like, oh, you know, the cops come up

571
00:21:46,074 --> 00:21:46,733
and they

572
00:21:47,203 --> 00:21:49,272
eventually stop this Suv and they find the

573
00:21:49,272 --> 00:21:51,023
gun in it, and you know that this

574
00:21:51,023 --> 00:21:53,173
guy had the gun or he at least

575
00:21:53,173 --> 00:21:54,446
touched it. And he shouldn't have, so you'd,

576
00:21:54,526 --> 00:21:56,769
like, you're seeing all these facts and after

577
00:21:56,769 --> 00:21:58,759
you've read and know how this case ends,

578
00:21:59,395 --> 00:22:01,703
you know that somebody may have been committing

579
00:22:01,703 --> 00:22:03,773
a crime here, so you you read these

580
00:22:03,773 --> 00:22:04,091
facts.

581
00:22:04,584 --> 00:22:07,218
And infer that maybe something bad is happening,

582
00:22:07,378 --> 00:22:09,374
but it's... The the trial court and the

583
00:22:09,374 --> 00:22:11,289
majority, I think are very good about at

584
00:22:11,289 --> 00:22:13,365
least the Suvs behavior of like, you know,

585
00:22:13,699 --> 00:22:16,736
This is totally consistent with, you know, you

586
00:22:16,736 --> 00:22:18,334
just being out front of your house, which

587
00:22:18,334 --> 00:22:21,210
is mister Daniels was, the police come up.

588
00:22:21,783 --> 00:22:24,251
And you see the police coming and who

589
00:22:24,251 --> 00:22:26,401
knows what your relationship or your pastor or

590
00:22:26,401 --> 00:22:28,551
your history with the police are, who knows

591
00:22:28,551 --> 00:22:29,746
who's in the Suv,

592
00:22:30,158 --> 00:22:32,544
Maybe Daniels is, you know, family members are

593
00:22:32,544 --> 00:22:34,770
in the Suv, and he's like, well, we

594
00:22:34,770 --> 00:22:35,747
don't need any

595
00:22:36,121 --> 00:22:38,109
unnecessary interaction with police officers. Why don't you

596
00:22:38,109 --> 00:22:40,032
guys take off? I'll see what happens. You

597
00:22:40,032 --> 00:22:43,681
know, that's not illegal activity. Very pla. Did

598
00:22:43,681 --> 00:22:45,506
mister Daniels lean in the window and say,

599
00:22:45,665 --> 00:22:47,490
hey, guys, the cops are coming move the

600
00:22:47,490 --> 00:22:49,731
dough. Let's that could have happened, but it's

601
00:22:49,731 --> 00:22:51,902
equally plausible that it didn't. And so

602
00:22:52,675 --> 00:22:54,903
I think that the majority opinion like, really

603
00:22:54,903 --> 00:22:56,972
gives credence to the fact here that, like,

604
00:22:57,624 --> 00:23:00,021
if we're if we're ignorant about whether something

605
00:23:00,021 --> 00:23:02,179
is criminal activity or not, we have to...

606
00:23:02,339 --> 00:23:04,037
You know, we have to give the tie

607
00:23:04,256 --> 00:23:07,090
to the citizen who is... You know, ostensibly

608
00:23:07,150 --> 00:23:09,230
minding his own business when he's interacted with,

609
00:23:10,190 --> 00:23:12,609
when the police interact with him. So

610
00:23:13,243 --> 00:23:16,208
the the majority goes through those facts and

611
00:23:16,662 --> 00:23:19,445
analyzes the totality of the circumstances and, you

612
00:23:19,445 --> 00:23:20,979
know, 1 particularly...

613
00:23:21,289 --> 00:23:24,642
Interesting thing in discussing the 911 call, you

614
00:23:24,642 --> 00:23:27,596
know, the majority opinion talks about the supreme

615
00:23:27,596 --> 00:23:30,491
court's decision from 20 22 and Brewing

616
00:23:30,963 --> 00:23:31,282
that,

617
00:23:33,271 --> 00:23:33,771
the

618
00:23:34,146 --> 00:23:36,397
second amendment right to bear arms sort of

619
00:23:36,613 --> 00:23:38,259
outside of the home kind of

620
00:23:38,775 --> 00:23:41,260
recognize that Heller is not the outer limit

621
00:23:41,394 --> 00:23:43,720
of the second amendment. Right. But it

622
00:23:44,252 --> 00:23:45,149
b also,

623
00:23:46,094 --> 00:23:46,333
sort of...

624
00:23:47,929 --> 00:23:49,946
I don't know if it shifted or formal

625
00:23:50,084 --> 00:23:52,319
the constitutional analysis from Hell or where if,

626
00:23:52,399 --> 00:23:55,208
you know, your conduct is covered by the

627
00:23:55,208 --> 00:23:57,765
text of the second amendment then the government

628
00:23:57,765 --> 00:23:59,783
has to look the, you know, text history

629
00:23:59,923 --> 00:24:01,760
tradition, those kinds of things to try to

630
00:24:01,760 --> 00:24:02,260
justify,

631
00:24:03,294 --> 00:24:06,330
the limitation. You, the majority says, we've got

632
00:24:06,330 --> 00:24:09,286
3 guys here who have firearms in their

633
00:24:09,286 --> 00:24:11,297
pockets in, like, under B,

634
00:24:11,935 --> 00:24:14,408
that seems like totally lawful activity. It's not

635
00:24:14,408 --> 00:24:16,263
clear that that can be evidence of

636
00:24:16,960 --> 00:24:19,853
or a basis for reasonable suspicion of criminal

637
00:24:19,911 --> 00:24:20,230
activity.

638
00:24:21,515 --> 00:24:23,180
I I think that is kind of the

639
00:24:23,180 --> 00:24:26,509
most most interesting part of the majority analysis

640
00:24:26,509 --> 00:24:28,119
that kind of preview of

641
00:24:28,667 --> 00:24:30,655
the work that B is doing in these

642
00:24:30,655 --> 00:24:32,326
cases. But I think that,

643
00:24:33,360 --> 00:24:35,164
judge Eyed files a

644
00:24:35,684 --> 00:24:36,483
concurrent opinion,

645
00:24:37,122 --> 00:24:40,797
she concur in the the judgment. And it

646
00:24:40,797 --> 00:24:42,096
seems her main

647
00:24:43,761 --> 00:24:46,227
her main sticking point with the majority is

648
00:24:46,227 --> 00:24:49,194
exactly this point about the 911 call that

649
00:24:49,410 --> 00:24:49,967
there is,

650
00:24:51,894 --> 00:24:53,275
there was a lot more

651
00:24:53,894 --> 00:24:56,775
nuance to how you analyze a situation under

652
00:24:56,934 --> 00:25:00,309
B and sort of the tradition in historical

653
00:25:00,309 --> 00:25:02,150
context of regulate firearms,

654
00:25:02,549 --> 00:25:04,329
you know, she points out the

655
00:25:04,710 --> 00:25:07,910
local governments are authorized to regulate firearms, private

656
00:25:07,910 --> 00:25:08,549
property owners,

657
00:25:09,762 --> 00:25:11,677
are allowed to regulate who can carry a

658
00:25:11,677 --> 00:25:12,076
firearm.

659
00:25:12,555 --> 00:25:13,374
And so

660
00:25:13,991 --> 00:25:16,166
she takes issue with the majority opinion

661
00:25:16,799 --> 00:25:18,400
at a high level looking at a group

662
00:25:18,400 --> 00:25:19,920
of guys like, you know, hey, you know,

663
00:25:20,160 --> 00:25:21,679
I've got my gun here. I've got this

664
00:25:21,679 --> 00:25:21,839
gun.

665
00:25:22,799 --> 00:25:24,819
Maybe that's lawful activity, but

666
00:25:25,372 --> 00:25:27,440
it's not the craziest thing to say somebody,

667
00:25:27,599 --> 00:25:29,190
you know, taking On in and out of

668
00:25:29,190 --> 00:25:31,179
his pocket could be evidence of,

669
00:25:32,229 --> 00:25:34,626
could could signal that criminal activity is a

670
00:25:34,626 --> 00:25:37,663
foot. And so she kind of judge I

671
00:25:37,663 --> 00:25:40,460
would rely on the much more concrete factor

672
00:25:40,460 --> 00:25:43,755
the the 911 call did not identify mister

673
00:25:43,914 --> 00:25:45,914
Daniels, the guy who wound up being arrested,

674
00:25:46,715 --> 00:25:48,255
and only identified

675
00:25:48,650 --> 00:25:50,809
a black Suv or a dark Suv and

676
00:25:50,809 --> 00:25:52,250
when the cops showed up, there were 2.

677
00:25:52,490 --> 00:25:53,230
And so

678
00:25:53,609 --> 00:25:55,950
1 of the fundamental things about reasonable

679
00:25:56,410 --> 00:25:58,678
suspicion is that it has to attach

680
00:25:59,133 --> 00:26:01,281
to the target of your suspicion. Like it

681
00:26:01,281 --> 00:26:04,087
has to attach to an individual. And so

682
00:26:04,239 --> 00:26:05,512
you know, you can't show up and say,

683
00:26:05,591 --> 00:26:07,103
it looks like there's criminal activity of a.

684
00:26:07,341 --> 00:26:10,046
I'm gonna start arresting people or detain them

685
00:26:10,046 --> 00:26:12,057
until I find out what's going on. So

686
00:26:13,163 --> 00:26:15,148
The, at the end of the day, the

687
00:26:15,148 --> 00:26:18,642
tenth circuit affirm the trial court's suppression, and,

688
00:26:19,277 --> 00:26:20,707
I am not sure what happened.

689
00:26:21,676 --> 00:26:23,903
To mister Daniels, but I would imagine it

690
00:26:23,903 --> 00:26:24,142
was,

691
00:26:25,176 --> 00:26:26,528
much more difficult to prove.

692
00:26:27,164 --> 00:26:27,960
He was a felon and,

693
00:26:28,768 --> 00:26:31,069
possession of a firearm if they couldn't use

694
00:26:31,069 --> 00:26:33,529
his name at all. Yeah. And and and

695
00:26:33,529 --> 00:26:36,171
then you couldn't use his Dna and

696
00:26:36,639 --> 00:26:38,395
that's all they had. I mean, we don't

697
00:26:38,395 --> 00:26:41,190
know what happened from this opinion to the

698
00:26:41,190 --> 00:26:42,946
the folks who were in the Suv, what

699
00:26:42,946 --> 00:26:44,782
other evidence was there what, you know, if

700
00:26:44,782 --> 00:26:45,521
they were prosecuted.

701
00:26:46,153 --> 00:26:47,820
Could be a lot of things. Yeah. I

702
00:26:47,820 --> 00:26:50,542
was I was kinda surprised. I remembered the,

703
00:26:51,232 --> 00:26:52,898
sort of all of the exceptions.

704
00:26:53,548 --> 00:26:55,613
To the fruit of the Poisonous tree like

705
00:26:55,613 --> 00:26:56,113
ne

706
00:26:56,486 --> 00:26:58,153
or that kind of thing, like, we're gonna

707
00:26:58,153 --> 00:27:00,139
find it anyway or other sources.

708
00:27:00,615 --> 00:27:02,703
I was surprised they didn't have another source

709
00:27:03,014 --> 00:27:04,932
for this guy's name, but I guess... Yeah.

710
00:27:05,092 --> 00:27:06,450
You know, the way the the way the

711
00:27:06,450 --> 00:27:08,848
record shook. Out. What the... You know, what

712
00:27:08,848 --> 00:27:10,686
we're left what I was left with from

713
00:27:10,686 --> 00:27:13,335
this opinion is, I don't even know if

714
00:27:13,335 --> 00:27:15,430
maybe maybe, you know, it's in the record

715
00:27:15,568 --> 00:27:16,924
that it was, but I don't even know

716
00:27:16,924 --> 00:27:18,998
if this Suv was the 1 the 911

717
00:27:18,998 --> 00:27:19,636
caller saw.

718
00:27:20,274 --> 00:27:22,682
Because they said that, like, It it seems

719
00:27:22,682 --> 00:27:24,437
like this was it was... As they said,

720
00:27:24,597 --> 00:27:26,192
a high crime area, which gonna mean a

721
00:27:26,192 --> 00:27:28,267
lot of things, but they also said it

722
00:27:28,267 --> 00:27:30,117
was a big It's 1 of these big

723
00:27:30,117 --> 00:27:32,511
apartment buildings with a big parking lot, and

724
00:27:32,511 --> 00:27:36,021
the parking lot was completely full. Mh. So

725
00:27:36,021 --> 00:27:38,433
it's not you know, an abandoned kind of

726
00:27:38,433 --> 00:27:40,270
area, there's a lot of people out there

727
00:27:40,270 --> 00:27:41,948
because the Super Bowl was earlier that day

728
00:27:41,948 --> 00:27:43,946
people were kinda up and milling around even

729
00:27:43,946 --> 00:27:46,432
though it was late. Yeah. And there there

730
00:27:46,432 --> 00:27:48,740
could've have been other Suvs coming and going

731
00:27:48,740 --> 00:27:50,252
that were black. Okay.

732
00:27:50,729 --> 00:27:52,559
And this guy had an orange jumpsuit. There

733
00:27:52,559 --> 00:27:54,883
was no orange jumpsuit on the call,

734
00:27:55,679 --> 00:27:58,150
which you think would be notice. So... I

735
00:27:58,150 --> 00:28:00,859
think that's the biggest red or orange flag.

736
00:28:01,178 --> 00:28:03,745
1 of it there's wanna Yes bad. Is

737
00:28:03,745 --> 00:28:04,542
bad. I

738
00:28:05,419 --> 00:28:05,739
I was...

739
00:28:07,015 --> 00:28:08,690
So I was kind of in between, I

740
00:28:08,690 --> 00:28:10,683
guess the 2 opinions like, like, maybe you

741
00:28:10,683 --> 00:28:11,481
are and that

742
00:28:12,134 --> 00:28:14,045
I I think the concur does have a

743
00:28:14,045 --> 00:28:14,863
point that

744
00:28:15,318 --> 00:28:18,344
just because people are exercising their second amendment

745
00:28:18,344 --> 00:28:20,039
rights, Doesn't mean it can't be

746
00:28:20,986 --> 00:28:23,771
raise a red flag about something something going

747
00:28:23,771 --> 00:28:25,760
on. Like, if you saw, you know, it's

748
00:28:25,760 --> 00:28:27,192
legal to have ski masks,

749
00:28:28,320 --> 00:28:30,704
knives and rope. But if you see a

750
00:28:30,704 --> 00:28:32,770
group of guys getting in an Suv, maybe

751
00:28:32,770 --> 00:28:34,280
they're not even wearing a ski mask but

752
00:28:34,280 --> 00:28:36,267
they're holding them, it's in the summer,

753
00:28:36,839 --> 00:28:39,232
they have rope. They're wearing all black, and

754
00:28:39,232 --> 00:28:39,951
they have some knives.

755
00:28:40,669 --> 00:28:44,020
That's probably not, you know, boy scout activity.

756
00:28:44,274 --> 00:28:46,587
Right. And so I might call the cops.

757
00:28:46,747 --> 00:28:48,421
If I see that. Even though everything is

758
00:28:48,421 --> 00:28:51,054
at that point perfectly legal. The 1 thing

759
00:28:51,054 --> 00:28:53,048
it seems like the the, you know, police

760
00:28:53,048 --> 00:28:54,026
just were doing

761
00:28:54,580 --> 00:28:56,660
they're kind of over the top police thing

762
00:28:56,660 --> 00:28:58,580
here is when they get there,

763
00:28:59,380 --> 00:29:00,200
they immediately...

764
00:29:00,580 --> 00:29:02,660
Before they even talk to the defendant,

765
00:29:03,153 --> 00:29:05,306
they said, tell him hands up. Because and

766
00:29:05,306 --> 00:29:07,001
then they come and do their terry stop

767
00:29:07,059 --> 00:29:08,414
instead of just going up to him and

768
00:29:08,414 --> 00:29:10,646
saying, oh, hi. How are you? What's your

769
00:29:10,646 --> 00:29:10,965
name?

770
00:29:11,538 --> 00:29:13,369
Yeah. Or whatever. And maybe he woulda have

771
00:29:13,369 --> 00:29:15,678
talked to them. Hey. Excuse me, sir, have

772
00:29:15,678 --> 00:29:18,147
you seen 3 guys pulling guns out of

773
00:29:18,147 --> 00:29:19,833
their pockets and putting in it back their

774
00:29:19,833 --> 00:29:21,579
pockets. Do you live here? What's, you know,

775
00:29:21,738 --> 00:29:22,556
and and,

776
00:29:23,247 --> 00:29:25,787
us fourth amendment lawyers would probably know enough

777
00:29:25,787 --> 00:29:27,430
to not tell in

778
00:29:28,268 --> 00:29:29,227
what your name is,

779
00:29:30,186 --> 00:29:32,343
but a lot of people would. This guy

780
00:29:32,343 --> 00:29:34,021
might. And then they... All of this would

781
00:29:34,021 --> 00:29:34,660
have been fine.

782
00:29:35,552 --> 00:29:37,226
But they hadn't, you know, just gone over

783
00:29:37,226 --> 00:29:37,625
the top.

784
00:29:38,422 --> 00:29:41,610
Guns blazing, but not guns blazing of, from

785
00:29:41,610 --> 00:29:44,098
the outset. Yeah. So by the way, I

786
00:29:44,098 --> 00:29:44,498
looked up,

787
00:29:45,217 --> 00:29:47,934
while, while you're talking about the case and

788
00:29:47,934 --> 00:29:49,792
the the the name of that

789
00:29:50,490 --> 00:29:50,990
novel

790
00:29:51,544 --> 00:29:52,044
is

791
00:29:53,218 --> 00:29:53,856
free fire,

792
00:29:54,414 --> 00:29:57,125
written by Cj j box, and it's... I

793
00:29:57,125 --> 00:29:58,559
haven't read them, but it's part of the

794
00:29:58,639 --> 00:29:59,756
Joe Picket series.

795
00:30:00,250 --> 00:30:02,330
Okay. I I know some people are into.

796
00:30:03,130 --> 00:30:05,630
Is it detective. Is it, like a Utopia

797
00:30:06,090 --> 00:30:07,369
or a dystopian?

798
00:30:08,744 --> 00:30:10,424
Situation in... I think it's... I think it's

799
00:30:10,424 --> 00:30:12,424
just a murder in the in the park.

800
00:30:12,744 --> 00:30:16,240
Oh, okay. Yeah. Yeah. So anyway, people can

801
00:30:16,359 --> 00:30:17,791
can learn learn a bit a little bit

802
00:30:17,791 --> 00:30:20,178
about that, check it out. And, the the

803
00:30:20,178 --> 00:30:21,848
the law article I love so much is

804
00:30:21,848 --> 00:30:23,201
the the perfect crime.

805
00:30:23,853 --> 00:30:26,085
The perfect. We'll put we'll put links in

806
00:30:26,085 --> 00:30:29,454
the show notes to to all that. So

807
00:30:29,592 --> 00:30:30,809
that is our first

808
00:30:32,479 --> 00:30:33,597
adventure in the tenth circuit.

809
00:30:34,316 --> 00:30:35,536
Now we're gonna have

810
00:30:36,074 --> 00:30:38,252
another 1 where we're going to go

811
00:30:39,111 --> 00:30:40,090
to prison

812
00:30:40,958 --> 00:30:41,750
federal prison.

813
00:30:42,543 --> 00:30:43,043
And

814
00:30:43,810 --> 00:30:47,083
it's actually the backstory on this is quite

815
00:30:47,867 --> 00:30:50,174
interesting, but it's not really relevant to the

816
00:30:50,174 --> 00:30:51,288
case at all,

817
00:30:51,845 --> 00:30:54,095
and that's that, the defendant

818
00:30:55,043 --> 00:30:57,037
his name... Where... I'm sorry. The plaintiff. So

819
00:30:57,037 --> 00:30:58,632
this is this is a civil case.

820
00:30:59,829 --> 00:31:00,967
The the the

821
00:31:01,663 --> 00:31:03,976
plaintiff is I'm gonna get his name wrong,

822
00:31:04,136 --> 00:31:04,509
but

823
00:31:05,106 --> 00:31:08,447
Ka Thomas Mohammed, but we'll call mister Mohammed.

824
00:31:08,845 --> 00:31:10,936
So he was convicted

825
00:31:11,724 --> 00:31:14,037
for the bombing of the Us em indices

826
00:31:14,037 --> 00:31:16,669
in East Africa in 19 98.

827
00:31:17,068 --> 00:31:18,126
That some of our

828
00:31:18,503 --> 00:31:19,003
older

829
00:31:19,700 --> 00:31:20,200
listeners

830
00:31:20,657 --> 00:31:21,215
may remember.

831
00:31:22,427 --> 00:31:25,378
It was, of course, a precursor to 09:11.

832
00:31:25,856 --> 00:31:27,851
It was a a outside job. He was

833
00:31:27,851 --> 00:31:30,243
then arrested a year later in South Africa

834
00:31:30,243 --> 00:31:32,575
and immediately deported the Us. So he's been

835
00:31:32,575 --> 00:31:34,894
in federal custody since 19 99,

836
00:31:35,855 --> 00:31:36,355
and

837
00:31:37,454 --> 00:31:38,835
he was convicted

838
00:31:39,134 --> 00:31:41,134
and sentenced to life without parole.

839
00:31:41,706 --> 00:31:44,485
So he is a life in federal prison.

840
00:31:44,802 --> 00:31:46,414
Alright? So it sounds like he's

841
00:31:47,025 --> 00:31:49,501
making his life in federal prison. Now, he,

842
00:31:50,057 --> 00:31:52,120
as as you might imagine from someone in

843
00:31:52,120 --> 00:31:54,819
his states and maybe even, you know, somewhat,

844
00:31:54,978 --> 00:31:56,883
I don't know if he's reformed or not

845
00:31:56,883 --> 00:31:57,597
in in prison.

846
00:31:58,328 --> 00:31:58,727
But

847
00:31:59,684 --> 00:32:00,642
very likely he hasn't.

848
00:32:01,279 --> 00:32:03,273
He still believes his his a kinda qaeda

849
00:32:03,273 --> 00:32:07,022
beliefs, but he has been in previous litigation

850
00:32:07,022 --> 00:32:09,824
about his prison condition. Options. So this this

851
00:32:09,824 --> 00:32:12,210
case is not exactly anything new.

852
00:32:13,165 --> 00:32:13,960
And he,

853
00:32:15,408 --> 00:32:18,519
alleges that he was mistreated in prison, and

854
00:32:18,519 --> 00:32:21,093
so he's filed a lawsuit to try to

855
00:32:21,390 --> 00:32:22,129
get damages

856
00:32:22,507 --> 00:32:24,660
essentially, for, for what has happened.

857
00:32:25,232 --> 00:32:26,898
Should go back and say, I'll bring up

858
00:32:26,898 --> 00:32:29,436
the whole Sc cat hook in a moment.

859
00:32:29,912 --> 00:32:32,029
But, the reading at the beginning, I should

860
00:32:32,149 --> 00:32:33,984
should be fair was from AAA

861
00:32:33,984 --> 00:32:35,499
kind of older book from the eighties,

862
00:32:35,978 --> 00:32:38,769
physics boat called in search of Sc cat,

863
00:32:39,009 --> 00:32:41,720
quantum physics and reality by John Rib.

864
00:32:42,773 --> 00:32:44,688
Of course, people love to talk about Sc

865
00:32:44,688 --> 00:32:46,843
nurse cats and people get wrong often,

866
00:32:47,562 --> 00:32:49,876
not exactly parallel to the situation, but the

867
00:32:49,876 --> 00:32:50,376
whole

868
00:32:51,403 --> 00:32:54,257
dead and not dead is very relevant. And

869
00:32:54,257 --> 00:32:56,873
a dead and not dead is luckily not

870
00:32:56,873 --> 00:32:59,689
about the prisoner here But about this doctrine

871
00:32:59,824 --> 00:33:02,445
called Vi that we've talked about many times

872
00:33:02,445 --> 00:33:05,067
on the show, which is a case from,

873
00:33:05,623 --> 00:33:07,768
named after a case from 19 71 at

874
00:33:07,768 --> 00:33:10,674
the Spring court where the Supreme Court

875
00:33:11,051 --> 00:33:12,189
essentially created

876
00:33:13,045 --> 00:33:15,039
a cause of action. So that means a

877
00:33:15,039 --> 00:33:16,496
way to sue

878
00:33:17,033 --> 00:33:17,852
4 damages

879
00:33:18,483 --> 00:33:21,606
against federal officials. So not state or local

880
00:33:21,662 --> 00:33:24,603
officials, there's actually a statute, section 19 83

881
00:33:24,603 --> 00:33:26,987
that does that. But for federal officials,

882
00:33:27,638 --> 00:33:28,534
There was no

883
00:33:28,986 --> 00:33:29,486
statute

884
00:33:30,256 --> 00:33:31,866
generally. And so

885
00:33:32,239 --> 00:33:34,301
the court created this cause of action.

886
00:33:35,195 --> 00:33:35,515
Called,

887
00:33:36,154 --> 00:33:36,714
called Bi,

888
00:33:37,595 --> 00:33:39,835
and it was been extended in a couple

889
00:33:39,835 --> 00:33:42,075
different cases, including 1 called Carson,

890
00:33:42,809 --> 00:33:44,429
that had to do with

891
00:33:44,730 --> 00:33:46,589
prison officials withholding

892
00:33:46,970 --> 00:33:47,470
medical

893
00:33:47,769 --> 00:33:48,250
treatments.

894
00:33:49,049 --> 00:33:51,219
K. That'll be relevant in Alright. So let's

895
00:33:51,219 --> 00:33:52,489
get to the facts. So mister Bah mohammad,

896
00:33:54,394 --> 00:33:56,855
he is on Hunger strike. Why we're not

897
00:33:56,855 --> 00:33:58,999
told... It could be all kinds of things.

898
00:33:59,809 --> 00:34:01,964
So he's on Hunger strike, they take them

899
00:34:01,964 --> 00:34:02,762
out of his cell,

900
00:34:03,640 --> 00:34:04,996
we don't get a lot more facts than

901
00:34:04,996 --> 00:34:07,231
that. And then as they're taking him back,

902
00:34:08,360 --> 00:34:10,027
his prison guards beat them up.

903
00:34:10,981 --> 00:34:12,489
And I should say this is at the

904
00:34:12,489 --> 00:34:14,157
motion to the dismiss stage. So all of

905
00:34:14,157 --> 00:34:16,792
these facts are ones he and his lawyers

906
00:34:16,792 --> 00:34:19,016
put together in their complaint and we accept

907
00:34:19,016 --> 00:34:21,240
as true for purposes of this stage of

908
00:34:21,240 --> 00:34:22,987
the case. But, you know, there could... I'm

909
00:34:22,987 --> 00:34:24,496
sure the prison guards have their own side

910
00:34:24,496 --> 00:34:25,314
of the story

911
00:34:25,623 --> 00:34:28,248
but this is from is complaint. So he

912
00:34:28,248 --> 00:34:30,475
says they beat to me up. And then,

913
00:34:30,952 --> 00:34:34,710
these other people including a physician's assistant don't

914
00:34:34,710 --> 00:34:35,510
intervene to stop it.

915
00:34:36,230 --> 00:34:36,730
Then

916
00:34:37,269 --> 00:34:37,590
the,

917
00:34:38,230 --> 00:34:40,570
a nurse comes and looks at my injuries

918
00:34:40,949 --> 00:34:41,449
and

919
00:34:42,070 --> 00:34:42,869
doesn't help me.

920
00:34:43,998 --> 00:34:44,974
Maybe assess

921
00:34:45,425 --> 00:34:48,278
was pretty beat up, but assess that, but

922
00:34:48,278 --> 00:34:50,521
doesn't try to treat the injuries

923
00:34:50,909 --> 00:34:53,627
And then another nurse and the the physician's

924
00:34:53,627 --> 00:34:54,127
assistant

925
00:34:54,826 --> 00:34:55,326
later

926
00:34:55,704 --> 00:34:58,022
are involved in in treating some of them,

927
00:34:58,182 --> 00:34:59,860
but not all of them. They don't help

928
00:34:59,860 --> 00:35:00,500
me very much.

929
00:35:01,551 --> 00:35:03,224
And I was just beating up in the

930
00:35:03,224 --> 00:35:03,940
first place.

931
00:35:04,418 --> 00:35:05,852
And so all of this is just really

932
00:35:05,852 --> 00:35:07,525
bad, and I should get damages for it.

933
00:35:07,764 --> 00:35:08,242
Also,

934
00:35:08,640 --> 00:35:11,198
I, he had... They said, thousands of pages

935
00:35:11,198 --> 00:35:13,419
of documents that he's written over 20 years

936
00:35:13,419 --> 00:35:14,474
of being incarcerated,

937
00:35:14,847 --> 00:35:17,306
and he had some books and, some other

938
00:35:17,306 --> 00:35:17,806
materials

939
00:35:18,273 --> 00:35:19,889
and they were taken from him

940
00:35:20,264 --> 00:35:20,764
and

941
00:35:22,096 --> 00:35:23,768
only some of them have begin back. So

942
00:35:23,768 --> 00:35:25,998
then he had post traumatic stress from losing

943
00:35:25,998 --> 00:35:26,476
this stuff.

944
00:35:27,128 --> 00:35:28,165
So that's the allegations.

945
00:35:29,043 --> 00:35:32,472
Okay. Then Sue, and he says under Bi.

946
00:35:32,791 --> 00:35:34,466
I have a cause of action against these

947
00:35:34,466 --> 00:35:37,673
various officials, including the the physician physician's assistant

948
00:35:37,673 --> 00:35:40,070
and the nurses who just didn't treat me.

949
00:35:41,908 --> 00:35:44,405
So the lack of medical treatment

950
00:35:44,718 --> 00:35:47,263
for injuries in prison is relevant to this

951
00:35:47,263 --> 00:35:49,967
old case Carson that said you have a

952
00:35:49,967 --> 00:35:53,483
cause of action when federal officials fail to

953
00:35:53,483 --> 00:35:55,739
give you medical treatment. That's an eighth amendment

954
00:35:55,878 --> 00:35:56,277
violation.

955
00:35:58,352 --> 00:36:00,427
The government... Oh, he also brings some claims

956
00:36:00,427 --> 00:36:02,677
under the federal torque claims Act. It's not

957
00:36:02,677 --> 00:36:04,193
really issue in this case, but it's kind

958
00:36:04,193 --> 00:36:06,189
of in the background. So that's this act

959
00:36:06,189 --> 00:36:09,541
that says for regular claims so, like, Torque

960
00:36:09,541 --> 00:36:12,909
claims against federal officials. You can't bring those

961
00:36:12,909 --> 00:36:13,409
claims

962
00:36:14,026 --> 00:36:15,703
against the officials, but you can bring it

963
00:36:15,703 --> 00:36:17,938
against the United States itself. So it's kind

964
00:36:17,938 --> 00:36:19,865
of a way of shifting to the cost

965
00:36:19,865 --> 00:36:20,580
to the government.

966
00:36:21,454 --> 00:36:21,771
And,

967
00:36:22,407 --> 00:36:23,701
those are still live

968
00:36:24,154 --> 00:36:24,789
down below.

969
00:36:25,504 --> 00:36:27,013
They... Some of them get thrown up but

970
00:36:27,013 --> 00:36:28,363
not all of them, and they're not an

971
00:36:28,363 --> 00:36:30,287
issue on the on the appeal. But so

972
00:36:30,287 --> 00:36:31,480
the district court says,

973
00:36:32,594 --> 00:36:34,981
alright. Yeah. It looks like at least some

974
00:36:34,981 --> 00:36:36,890
of these eighth amendment claims you you have

975
00:36:36,890 --> 00:36:37,527
under Vi,

976
00:36:38,178 --> 00:36:40,400
we'll let him go forward. Okay? So motion

977
00:36:40,400 --> 00:36:41,217
of the Dismiss

978
00:36:41,589 --> 00:36:43,573
denied on those claims. Now normally in a

979
00:36:43,573 --> 00:36:45,556
normal lawsuit, you would then go word in

980
00:36:45,556 --> 00:36:47,662
those claims, you would have discovery,

981
00:36:48,279 --> 00:36:50,353
the government would get another bite at the

982
00:36:50,353 --> 00:36:51,710
apple at summary judgment.

983
00:36:52,588 --> 00:36:54,991
However, we talk many, many times on this

984
00:36:54,991 --> 00:36:56,365
show about qualified

985
00:36:56,740 --> 00:36:57,240
immunity.

986
00:36:57,614 --> 00:37:01,135
So qualified immunity is you say, well, maybe

987
00:37:01,192 --> 00:37:03,990
those... That was unconstitutional but it wasn't so

988
00:37:03,990 --> 00:37:06,936
under constitutional that it was clearly established.

989
00:37:07,732 --> 00:37:08,550
And therefore,

990
00:37:09,165 --> 00:37:13,088
meaning, clearly established meaning somebody did exactly what

991
00:37:13,088 --> 00:37:15,244
you did at the exact same time to

992
00:37:15,244 --> 00:37:17,881
the exact same person on the exact same

993
00:37:17,881 --> 00:37:18,840
day. That is

994
00:37:19,414 --> 00:37:21,482
as it's usually framed by the government. And

995
00:37:21,482 --> 00:37:22,277
some courts. Yes.

996
00:37:22,914 --> 00:37:24,925
So it there... There's

997
00:37:25,300 --> 00:37:26,653
all kinds of ways of frame it, of

998
00:37:26,653 --> 00:37:28,758
course, but basically, it wasn't so

999
00:37:29,130 --> 00:37:30,582
unconstitutional. So obviously

1000
00:37:31,112 --> 00:37:32,539
unconstitutional that you win.

1001
00:37:33,173 --> 00:37:33,411
Now,

1002
00:37:34,521 --> 00:37:35,576
qualified immunity

1003
00:37:36,284 --> 00:37:37,425
you can appeal

1004
00:37:37,885 --> 00:37:39,905
straight away if you're if you're a government

1005
00:37:39,965 --> 00:37:43,405
official. So, whether it's a state, local or

1006
00:37:43,405 --> 00:37:43,885
federal,

1007
00:37:44,779 --> 00:37:45,018
official.

1008
00:37:46,297 --> 00:37:48,215
In fact, qualifying immunity came out of a

1009
00:37:48,215 --> 00:37:48,774
federal case,

1010
00:37:49,493 --> 00:37:52,050
the against president Nixon and some Aides,

1011
00:37:53,025 --> 00:37:56,144
you you can you can make that argument.

1012
00:37:57,025 --> 00:37:59,025
And, I'm sorry. And you can appeal it.

1013
00:38:00,320 --> 00:38:02,239
Immediately. So you can peel all the motion

1014
00:38:02,239 --> 00:38:04,400
this message stage. You could appeal again it

1015
00:38:04,400 --> 00:38:04,960
at the,

1016
00:38:06,160 --> 00:38:08,253
a summary judgment stage where you don't actually

1017
00:38:08,253 --> 00:38:09,532
go to trial, but you have evidence. And

1018
00:38:09,532 --> 00:38:11,848
you you can feel after trial even with

1019
00:38:11,848 --> 00:38:13,846
qualified immunity, what... Then, of course, you could

1020
00:38:13,846 --> 00:38:14,405
peel anyway.

1021
00:38:15,058 --> 00:38:17,846
Well, this is motion dismiss and they appeal.

1022
00:38:18,084 --> 00:38:18,801
But you know what?

1023
00:38:19,518 --> 00:38:21,429
I don't know why they did this. This

1024
00:38:21,429 --> 00:38:22,863
is like lightning and a hud.

1025
00:38:23,500 --> 00:38:23,635
So

1026
00:38:24,474 --> 00:38:26,155
maybe because the facts are just so bad.

1027
00:38:26,474 --> 00:38:29,695
I don't know. But the lawyers do not

1028
00:38:29,914 --> 00:38:30,414
use

1029
00:38:30,795 --> 00:38:34,243
qualified immunity on the appeal. They whatever claims

1030
00:38:34,243 --> 00:38:36,226
they had before they they drop them. For

1031
00:38:36,226 --> 00:38:38,528
these particular claims that survive that they peel

1032
00:38:38,528 --> 00:38:41,306
up the vi claims, they don't say qualified

1033
00:38:41,306 --> 00:38:41,623
immunity.

1034
00:38:42,354 --> 00:38:43,492
All they say

1035
00:38:43,950 --> 00:38:46,583
is there's no bi cause of action here.

1036
00:38:47,541 --> 00:38:49,536
Now I can see maybe why they did

1037
00:38:49,536 --> 00:38:52,332
that. And they did that because Bi is

1038
00:38:52,332 --> 00:38:56,064
on life support, or maybe it's dead. That's

1039
00:38:56,064 --> 00:38:57,414
where sure surrender nurse cat comes in.

1040
00:38:58,463 --> 00:38:59,740
Bib has been

1041
00:39:00,379 --> 00:39:02,454
d caps many times over the years by

1042
00:39:02,454 --> 00:39:05,487
the Supreme court. Basically, the the the early

1043
00:39:05,567 --> 00:39:07,577
Burger court in the 7 stop Evans was

1044
00:39:07,577 --> 00:39:09,094
a thing, and they kind they kinda came

1045
00:39:09,094 --> 00:39:10,770
up with a few ways to do Bib.

1046
00:39:11,089 --> 00:39:12,686
And since then, the the Rh was and

1047
00:39:12,845 --> 00:39:15,971
Robert's courts have just kept beating it. Every

1048
00:39:15,971 --> 00:39:17,959
year. It seems we get a new beat

1049
00:39:17,959 --> 00:39:20,266
down on Vi. And we we wouldn't have

1050
00:39:20,266 --> 00:39:22,175
done Vi today. We think that was terrible.

1051
00:39:22,429 --> 00:39:23,938
Congress should come up with a cause of

1052
00:39:23,938 --> 00:39:26,899
action. Court shouldn't be doing that. I've explained

1053
00:39:27,352 --> 00:39:30,131
ad item. And, also, so if my colleagues,

1054
00:39:30,464 --> 00:39:33,338
like, Onion Patrick, why that's not true, But

1055
00:39:33,338 --> 00:39:33,817
whatever,

1056
00:39:35,254 --> 00:39:37,489
the court has said that. And so Bi,

1057
00:39:37,808 --> 00:39:40,056
if it exists at all today is super

1058
00:39:40,056 --> 00:39:42,205
narrow and really just those 3 areas,

1059
00:39:42,921 --> 00:39:45,706
bi itself was a fourth amendment case. Carson

1060
00:39:45,706 --> 00:39:46,445
was this

1061
00:39:47,313 --> 00:39:49,302
eighth amendment case, and then there's a there's

1062
00:39:49,302 --> 00:39:51,610
another case about sex discrimination under the fifth

1063
00:39:51,610 --> 00:39:51,769
amendment.

1064
00:39:52,963 --> 00:39:54,873
That's it. That's all that's left of Vi.

1065
00:39:55,192 --> 00:39:56,226
That if anything.

1066
00:39:57,750 --> 00:40:00,527
So the the officials say on it, the

1067
00:40:00,527 --> 00:40:02,829
their appeal, the prison guards and and the

1068
00:40:02,829 --> 00:40:05,149
the medics, they say, Look, Bi is dead.

1069
00:40:05,786 --> 00:40:08,810
There's no bi anymore. And so we can

1070
00:40:08,810 --> 00:40:10,004
appeal it right away.

1071
00:40:10,720 --> 00:40:13,047
How can they do that? Alright. This is

1072
00:40:13,047 --> 00:40:14,883
some... Something... We haven't talked about too much

1073
00:40:14,883 --> 00:40:16,639
on the show. I will do real quick

1074
00:40:16,639 --> 00:40:18,954
because we could spend hours on it. The

1075
00:40:18,954 --> 00:40:20,572
collateral order doctrine

1076
00:40:21,282 --> 00:40:23,907
Sounds pretty sexy. Right? Collateral order doctor.

1077
00:40:24,703 --> 00:40:27,487
Now of course, yeah, Bob is nodding right

1078
00:40:27,487 --> 00:40:28,538
along. Well,

1079
00:40:29,895 --> 00:40:32,370
usually, when you make an appeal, you... The

1080
00:40:32,370 --> 00:40:35,026
case has to be done, final judgment. Everything

1081
00:40:35,085 --> 00:40:37,160
except ancillary stuff like maybe cost and attorney's

1082
00:40:37,160 --> 00:40:37,320
fees.

1083
00:40:38,053 --> 00:40:38,452
Or

1084
00:40:39,251 --> 00:40:40,049
enforcing judgment.

1085
00:40:40,687 --> 00:40:41,187
So

1086
00:40:41,645 --> 00:40:44,518
that's a normal course of business. But you

1087
00:40:44,518 --> 00:40:47,327
can appeal earlier in certain there's there's certain

1088
00:40:47,327 --> 00:40:48,923
ways you can appeal Like, if you you

1089
00:40:48,923 --> 00:40:50,860
have a pro... You ask for a preliminary

1090
00:40:51,318 --> 00:40:53,234
injunction, and that's denied, you can appeal that.

1091
00:40:53,393 --> 00:40:55,640
So that's it's all other thing. You could

1092
00:40:55,640 --> 00:40:57,465
also appeal if you get the... If you

1093
00:40:57,465 --> 00:40:59,632
think it's a really important issue that

1094
00:41:00,561 --> 00:41:02,489
is gonna affect the life of the case

1095
00:41:02,719 --> 00:41:04,076
And if you peel at the end, it...

1096
00:41:04,316 --> 00:41:06,311
It's kinda too late. So you wanna do

1097
00:41:06,311 --> 00:41:08,705
it early, you can have the district court

1098
00:41:08,705 --> 00:41:11,020
certify the question. This happens sometimes.

1099
00:41:11,513 --> 00:41:13,583
For whatever reason that didn't happen here.

1100
00:41:15,095 --> 00:41:16,687
Because the district court saying there's a cause

1101
00:41:16,687 --> 00:41:18,836
of action here, you you could say given

1102
00:41:18,836 --> 00:41:20,666
that Vi may or may not be dead,

1103
00:41:21,159 --> 00:41:22,435
could be something you could appeal.

1104
00:41:23,153 --> 00:41:26,184
But that doesn't happen. And so the government

1105
00:41:26,184 --> 00:41:27,859
appeals and says, well, this is under the

1106
00:41:27,859 --> 00:41:30,172
collateral order doctor. So the collateral order option

1107
00:41:30,172 --> 00:41:30,911
is really

1108
00:41:31,780 --> 00:41:33,074
judge made exceptions

1109
00:41:33,608 --> 00:41:35,277
to that final rule.

1110
00:41:36,230 --> 00:41:38,670
It comes from this case that called

1111
00:41:39,108 --> 00:41:40,863
Cohen from 19 49.

1112
00:41:41,023 --> 00:41:42,081
There's this balancing,

1113
00:41:43,096 --> 00:41:44,692
3 part tests that I don't think we

1114
00:41:44,692 --> 00:41:46,446
need to get into the the the the

1115
00:41:46,446 --> 00:41:48,280
opinion is most of just going through all

1116
00:41:48,280 --> 00:41:49,884
the ru of this test.

1117
00:41:50,994 --> 00:41:54,247
But essentially, it's something that you... That would

1118
00:41:54,247 --> 00:41:57,197
stop everything right away. That's super important,

1119
00:41:58,388 --> 00:42:00,157
and that you can't really

1120
00:42:01,324 --> 00:42:02,593
ad later in the case.

1121
00:42:03,324 --> 00:42:05,885
So that's why qualified immunity is, like, the

1122
00:42:05,885 --> 00:42:06,385
classic

1123
00:42:07,324 --> 00:42:09,005
quote... Whether you think it should apply or

1124
00:42:09,005 --> 00:42:10,284
not. This is what the courts have said.

1125
00:42:11,257 --> 00:42:14,444
Qualified immunity like that because it's really an

1126
00:42:14,444 --> 00:42:15,502
immunity from

1127
00:42:16,277 --> 00:42:16,596
litigation,

1128
00:42:17,313 --> 00:42:19,964
not exactly immunity from liability.

1129
00:42:22,022 --> 00:42:22,522
So

1130
00:42:22,974 --> 00:42:24,720
if you're I'm supposed to be immune from,

1131
00:42:24,878 --> 00:42:26,092
you know, going through

1132
00:42:27,021 --> 00:42:29,974
discovery, sitting for deposition, having to go to

1133
00:42:29,974 --> 00:42:32,043
trial. So you're a police officer and you're

1134
00:42:32,043 --> 00:42:33,396
saying, I shouldn't have to do all that

1135
00:42:33,396 --> 00:42:35,385
because I have qualified immunity. Well, then the

1136
00:42:35,385 --> 00:42:36,976
reasoning is where you should get that taken

1137
00:42:36,976 --> 00:42:38,980
away right away, and then go to it

1138
00:42:39,219 --> 00:42:40,968
a court of appeals because it's that important.

1139
00:42:41,922 --> 00:42:43,830
But courts have said over the years that

1140
00:42:43,830 --> 00:42:46,318
you you can't come up with collateral order

1141
00:42:46,628 --> 00:42:47,128
doctrine

1142
00:42:47,981 --> 00:42:48,481
worthy

1143
00:42:49,255 --> 00:42:52,039
issues willy nilly. So they're pretty ci stride.

1144
00:42:52,517 --> 00:42:54,347
And they haven't... The Supreme court hasn't come

1145
00:42:54,347 --> 00:42:55,381
up with 1 a long time.

1146
00:42:56,192 --> 00:42:58,735
Now the Supreme court in D has kinda

1147
00:42:58,735 --> 00:43:00,642
talked about what are the limits of this

1148
00:43:00,642 --> 00:43:03,130
in different places, and there's a case from

1149
00:43:03,756 --> 00:43:05,128
2007

1150
00:43:05,183 --> 00:43:06,714
where there's some pretty heavy

1151
00:43:07,641 --> 00:43:08,354
that says,

1152
00:43:09,068 --> 00:43:10,733
this doesn't apply to Bi cases.

1153
00:43:11,464 --> 00:43:14,181
So if a court says, Bib applies,

1154
00:43:15,300 --> 00:43:17,137
you can go forward with the case and

1155
00:43:17,137 --> 00:43:18,975
you think, oh, wait a minute. We we

1156
00:43:18,975 --> 00:43:19,590
we could

1157
00:43:20,030 --> 00:43:21,869
stop the whole case right now. If Bi

1158
00:43:21,869 --> 00:43:24,289
doesn't apply, that's not enough

1159
00:43:24,670 --> 00:43:27,010
is what this stick says. Now a couple

1160
00:43:27,150 --> 00:43:27,969
other circuits

1161
00:43:28,604 --> 00:43:30,463
have said, have have

1162
00:43:31,081 --> 00:43:32,041
said that yes,

1163
00:43:32,600 --> 00:43:35,637
you can't appeal. You so agree with mister

1164
00:43:35,876 --> 00:43:37,369
Mohammed here. You can't appeal,

1165
00:43:38,521 --> 00:43:40,108
denial of vi if you're if you're a

1166
00:43:40,108 --> 00:43:41,616
government official. However,

1167
00:43:42,648 --> 00:43:44,235
Wanna A descent 1 of those cases in

1168
00:43:44,235 --> 00:43:45,664
the third circuit, Judge Hard,

1169
00:43:46,794 --> 00:43:48,791
and both both cases are fairly recent. I

1170
00:43:48,791 --> 00:43:51,268
was little surprised by that. Judge Hard says

1171
00:43:51,268 --> 00:43:54,157
that that was drive by D. By the

1172
00:43:54,157 --> 00:43:56,625
supreme Court. And so, really, it's it's... We

1173
00:43:56,625 --> 00:43:58,855
shouldn't treat it that seriously. And D, of

1174
00:43:58,855 --> 00:44:01,084
course is letters court says when it's not

1175
00:44:01,084 --> 00:44:03,407
a holding, it's not the actual ruling of

1176
00:44:03,407 --> 00:44:06,270
the case, but it's other stuff that the

1177
00:44:06,270 --> 00:44:06,827
court says.

1178
00:44:07,463 --> 00:44:09,387
And the tenth circuit says we take Supreme

1179
00:44:09,547 --> 00:44:11,853
Court dick up pretty seriously, maybe more seriously

1180
00:44:11,853 --> 00:44:14,081
than the third circuit does. And so we're

1181
00:44:14,081 --> 00:44:17,037
gonna... We can't overlook this. Even if vi

1182
00:44:17,037 --> 00:44:18,863
has kind of become less of a thing

1183
00:44:18,863 --> 00:44:20,769
since this case in 2007.

1184
00:44:21,166 --> 00:44:23,310
And so the bottom line for the majority

1185
00:44:23,310 --> 00:44:24,898
is to cut a a very long story

1186
00:44:24,898 --> 00:44:25,137
short,

1187
00:44:25,708 --> 00:44:26,208
that

1188
00:44:26,742 --> 00:44:27,242
there

1189
00:44:27,697 --> 00:44:28,015
is...

1190
00:44:28,731 --> 00:44:29,469
There there

1191
00:44:30,401 --> 00:44:32,412
is not a reason to appeal

1192
00:44:33,042 --> 00:44:33,781
a bi

1193
00:44:34,635 --> 00:44:37,583
denial here, denial of the the... I should

1194
00:44:37,583 --> 00:44:38,402
say Bi

1195
00:44:39,097 --> 00:44:40,929
saying that Bi is a cause of action

1196
00:44:40,929 --> 00:44:42,780
that there is 1 here. That's not a

1197
00:44:42,780 --> 00:44:45,099
reason for an appeal. And they also say,

1198
00:44:45,500 --> 00:44:47,019
you read between the lines. It's kinda like,

1199
00:44:47,500 --> 00:44:49,980
you guys could erase qualified immunity, and then

1200
00:44:49,980 --> 00:44:52,473
you gotta to talk about Vi also in

1201
00:44:52,473 --> 00:44:54,870
the appeal because that's the hook, and then

1202
00:44:54,870 --> 00:44:56,388
everything else kind of goes up with it.

1203
00:44:56,548 --> 00:44:58,067
They said, well, that could be true, but

1204
00:44:58,067 --> 00:44:59,185
you didn't even try that here.

1205
00:44:59,838 --> 00:45:01,114
I think that's the reason By the way,

1206
00:45:01,193 --> 00:45:03,106
there's not a lot of other cases on

1207
00:45:03,106 --> 00:45:05,018
this. There's just these 2 other recent ones.

1208
00:45:05,416 --> 00:45:06,952
Is that everyone always

1209
00:45:07,662 --> 00:45:09,571
also does qualified immunity if you're in the

1210
00:45:09,651 --> 00:45:10,764
Vi zone. I mean, why...

1211
00:45:11,639 --> 00:45:13,548
If you're a defense attorney, like, why wouldn't

1212
00:45:13,548 --> 00:45:14,239
you? But

1213
00:45:14,599 --> 00:45:15,079
They didn't.

1214
00:45:15,719 --> 00:45:17,880
So I mean, the only thing yeah speculation

1215
00:45:17,960 --> 00:45:19,639
Bob, Why... Yeah I got I have some

1216
00:45:19,639 --> 00:45:21,579
spec. And, you know, maybe it's a

1217
00:45:22,133 --> 00:45:23,407
you know, maybe it's a little bit of

1218
00:45:23,407 --> 00:45:25,180
a heat check by the

1219
00:45:25,635 --> 00:45:28,103
by the feds here. Right? Like you point

1220
00:45:28,103 --> 00:45:29,479
out how much

1221
00:45:29,949 --> 00:45:32,025
The ground has just totally gone from us

1222
00:45:32,264 --> 00:45:34,659
Is the case. They're purposely doing it. Like,

1223
00:45:34,738 --> 00:45:37,053
oh, well, we've got this guy who's been

1224
00:45:37,053 --> 00:45:40,676
in federal custody for 20 plus years, probably

1225
00:45:40,813 --> 00:45:43,280
not the most sympathetic person to be bringing

1226
00:45:43,280 --> 00:45:46,226
this claim. You're right. It's at a 12

1227
00:45:46,226 --> 00:45:48,231
6 stage where we're supposed to take things

1228
00:45:48,231 --> 00:45:50,300
as true because they're revert and a claim,

1229
00:45:50,539 --> 00:45:52,631
but maybe a court is gonna,

1230
00:45:53,006 --> 00:45:54,414
you know, look at it a little bit

1231
00:45:54,534 --> 00:45:56,927
sideways and now is as good a time

1232
00:45:56,927 --> 00:45:58,783
as ever to only raise

1233
00:45:59,559 --> 00:46:01,494
Bi on an inter

1234
00:46:02,032 --> 00:46:04,106
appeal. And if they really wanna kill it,

1235
00:46:04,757 --> 00:46:06,106
they'll find a way to reach it for

1236
00:46:06,106 --> 00:46:08,327
us. And, I mean, maybe that's what's going

1237
00:46:08,327 --> 00:46:10,231
on. Maybe it was a mistake. No idea.

1238
00:46:10,469 --> 00:46:10,969
But

1239
00:46:11,993 --> 00:46:13,744
if you if you wanna guess, like,

1240
00:46:14,539 --> 00:46:15,574
strategic sinister,

1241
00:46:16,768 --> 00:46:18,518
speculation that that's what I would offer.

1242
00:46:19,885 --> 00:46:21,871
Having brought some test cases myself,

1243
00:46:22,587 --> 00:46:24,414
I I think that very well could be.

1244
00:46:25,288 --> 00:46:27,611
What what's what's going on? Test cases with

1245
00:46:27,931 --> 00:46:29,126
more sympathetic clients,

1246
00:46:29,924 --> 00:46:31,041
but I see where they are on the

1247
00:46:31,041 --> 00:46:31,519
other side.

1248
00:46:32,715 --> 00:46:35,028
The the dissent, the descent judge Tim,

1249
00:46:36,638 --> 00:46:39,032
He says... And this is what I find

1250
00:46:39,032 --> 00:46:41,585
actually most interesting of the opinion. He says,

1251
00:46:41,904 --> 00:46:43,042
look, Bi

1252
00:46:43,753 --> 00:46:46,447
is dead, and he does not talk about

1253
00:46:46,527 --> 00:46:47,398
Sc cat.

1254
00:46:48,508 --> 00:46:49,642
He talks about

1255
00:46:50,093 --> 00:46:50,806
Jacob Marley.

1256
00:46:51,936 --> 00:46:53,712
And quotes from the Christmas Carol

1257
00:46:54,488 --> 00:46:54,988
about

1258
00:46:55,445 --> 00:46:55,945
how

1259
00:46:57,039 --> 00:46:59,352
Marley was dead as a door,

1260
00:47:00,324 --> 00:47:00,824
and

1261
00:47:01,440 --> 00:47:01,919
everyone knew it.

1262
00:47:02,637 --> 00:47:04,471
Marley was dead to begin with. There is

1263
00:47:04,471 --> 00:47:07,103
no doubt whatever about that. That's the quote.

1264
00:47:07,263 --> 00:47:08,699
Yes. I guess it doesn't do the door

1265
00:47:08,699 --> 00:47:09,836
part. So

1266
00:47:10,467 --> 00:47:11,024
he says, look,

1267
00:47:12,377 --> 00:47:15,582
even if you have facts, just like Carson

1268
00:47:15,639 --> 00:47:17,707
or just like Bi. Maybe your name is

1269
00:47:17,867 --> 00:47:21,008
Webster business, Bi, you're beaten up by

1270
00:47:21,623 --> 00:47:24,194
narcotics agents in front of your family

1271
00:47:24,729 --> 00:47:27,039
without knowing their names, which is the facts

1272
00:47:27,039 --> 00:47:27,698
of Vi

1273
00:47:28,169 --> 00:47:29,606
even then you don't have a cause of

1274
00:47:29,606 --> 00:47:29,765
action.

1275
00:47:30,962 --> 00:47:33,596
And so because there's just just... There just

1276
00:47:33,596 --> 00:47:35,351
is not a claim here.

1277
00:47:36,243 --> 00:47:38,411
We can take the collateral... We can take

1278
00:47:38,626 --> 00:47:40,931
the the case on collateral order doctrine.

1279
00:47:42,122 --> 00:47:44,188
Now I have to say, I don't think

1280
00:47:44,188 --> 00:47:44,506
that's right.

1281
00:47:45,320 --> 00:47:46,380
And this is just

1282
00:47:47,880 --> 00:47:48,619
my limited

1283
00:47:48,920 --> 00:47:51,179
understanding of the area, but this is

1284
00:47:52,132 --> 00:47:53,878
AAA

1285
00:47:53,878 --> 00:47:56,179
claim that you don't have a cause of

1286
00:47:56,179 --> 00:47:56,679
action

1287
00:47:57,449 --> 00:47:59,925
is a 12 b sick And for non

1288
00:47:59,925 --> 00:48:02,152
lawyers out there, that's saying that even if

1289
00:48:02,152 --> 00:48:03,266
what you alleges is true,

1290
00:48:03,902 --> 00:48:06,623
the law does not give you relief. And

1291
00:48:06,623 --> 00:48:08,539
12 6 has happened all the time, And

1292
00:48:08,539 --> 00:48:09,338
all kinds of areas,

1293
00:48:10,296 --> 00:48:13,409
government officials, non government fix officials. They're they're

1294
00:48:13,409 --> 00:48:15,660
all over the place in in state or

1295
00:48:15,660 --> 00:48:17,900
in federal litigation, but the equivalent and state

1296
00:48:17,900 --> 00:48:18,059
litigation.

1297
00:48:19,739 --> 00:48:22,780
Just because you say you you win, maybe

1298
00:48:22,780 --> 00:48:24,380
if you if you won that... That way

1299
00:48:24,380 --> 00:48:26,153
at the end it whatever stage of the

1300
00:48:26,153 --> 00:48:28,311
case that someone doesn't have a cause of

1301
00:48:28,311 --> 00:48:28,551
action,

1302
00:48:29,590 --> 00:48:30,969
does not mean

1303
00:48:31,588 --> 00:48:34,705
that it is equivalent to say qualified immunity.

1304
00:48:35,198 --> 00:48:37,180
That it just... It's so important that you

1305
00:48:37,180 --> 00:48:38,925
can't let the case go on. The only

1306
00:48:38,925 --> 00:48:41,145
argument there, majority kinda talks about that is

1307
00:48:41,145 --> 00:48:42,652
that, well, we're the government.

1308
00:48:43,144 --> 00:48:46,101
We're government officials. We're so important. We can't

1309
00:48:46,101 --> 00:48:49,297
we can't subject ourselves all this litigation and

1310
00:48:49,297 --> 00:48:49,797
trial

1311
00:48:50,176 --> 00:48:50,416
that,

1312
00:48:51,468 --> 00:48:52,820
we should be able to appeal right away.

1313
00:48:52,979 --> 00:48:54,809
And that's not what the doctor is. The

1314
00:48:54,809 --> 00:48:57,218
doctrine is these limited areas within

1315
00:48:57,831 --> 00:48:58,204
that

1316
00:48:58,959 --> 00:49:00,626
that world, and it... It's not just for

1317
00:49:00,626 --> 00:49:03,429
government officials, but especially is. So

1318
00:49:04,517 --> 00:49:06,916
just because you you win that there's there's

1319
00:49:06,916 --> 00:49:09,541
no cause of action. Doesn't mean you can

1320
00:49:09,541 --> 00:49:11,928
appeal, and I'm a little confused like, why

1321
00:49:11,928 --> 00:49:13,679
he thinks that's true and he gives his

1322
00:49:13,679 --> 00:49:15,684
arguments in the descent. But anyway, He is...

1323
00:49:15,924 --> 00:49:18,401
He does... He doesn't win there. But I

1324
00:49:18,401 --> 00:49:21,037
think the majority kind of leans on that

1325
00:49:21,037 --> 00:49:23,215
there there is still maybe a bi

1326
00:49:23,608 --> 00:49:24,641
cause of action here.

1327
00:49:25,753 --> 00:49:28,773
They don't exactly say, even if there wasn't,

1328
00:49:29,806 --> 00:49:30,735
there would be a

1329
00:49:31,255 --> 00:49:32,055
an appeal here.

1330
00:49:32,775 --> 00:49:34,855
Although they kinda reading between the lines, maybe

1331
00:49:34,855 --> 00:49:36,934
they they are saying that. So that's...

1332
00:49:37,575 --> 00:49:39,070
That goes in into

1333
00:49:39,508 --> 00:49:41,103
lots of stuff we could talk about about,

1334
00:49:41,263 --> 00:49:43,416
causes of action and federal constitution that is...

1335
00:49:43,815 --> 00:49:45,012
We've talked about before, but,

1336
00:49:45,730 --> 00:49:48,282
that was my my take on the descent

1337
00:49:48,282 --> 00:49:48,442
too.

1338
00:49:49,173 --> 00:49:51,077
Yeah. Well, I mean, I think

1339
00:49:51,632 --> 00:49:52,584
at the end of the day,

1340
00:49:53,298 --> 00:49:53,615
the...

1341
00:49:54,409 --> 00:49:55,781
I think the majority has

1342
00:49:56,153 --> 00:49:57,239
probably the right

1343
00:49:57,677 --> 00:49:59,425
read of sort of the outcome. I mean,

1344
00:49:59,583 --> 00:50:01,014
the purpose of Vi,

1345
00:50:01,570 --> 00:50:03,715
you think at a high level, the purpose

1346
00:50:03,715 --> 00:50:05,724
of qualified immunity is helping

1347
00:50:06,193 --> 00:50:08,997
a government defendant avoid litigation

1348
00:50:09,450 --> 00:50:11,833
or the burden of litigation. Right? Like, what

1349
00:50:11,833 --> 00:50:14,399
is the purpose of bi? I mean, it's

1350
00:50:14,789 --> 00:50:18,222
just from the outset square 1 totally a

1351
00:50:18,222 --> 00:50:18,940
different purpose,

1352
00:50:19,578 --> 00:50:22,213
allowing somebody to vin authenticate their rights under

1353
00:50:22,213 --> 00:50:24,857
the constitution. I mean, for purposes of an

1354
00:50:24,857 --> 00:50:25,357
inter

1355
00:50:25,890 --> 00:50:29,706
appeal, you group things like qualified immunity and

1356
00:50:29,706 --> 00:50:32,886
preliminary injunction because there is this, you know,

1357
00:50:33,457 --> 00:50:36,315
really good argument that just the injury of

1358
00:50:36,315 --> 00:50:38,960
going through the litigation is a harm. But,

1359
00:50:39,254 --> 00:50:40,945
you know, there is no

1360
00:50:41,492 --> 00:50:43,025
no suggestion of that,

1361
00:50:43,478 --> 00:50:45,464
in in Bi or the supreme court case,

1362
00:50:45,782 --> 00:50:48,483
you know, creating Vi and or recognizing Vi.

1363
00:50:49,928 --> 00:50:50,428
So

1364
00:50:50,804 --> 00:50:53,194
III think it is... I think it's appropriate

1365
00:50:53,194 --> 00:50:54,867
to treat the the 2 differently.

1366
00:50:55,266 --> 00:50:56,642
I am surprised by

1367
00:50:57,353 --> 00:50:58,869
you know, I would think that the quote

1368
00:50:58,869 --> 00:51:00,145
that might be a little bit better for

1369
00:51:00,225 --> 00:51:01,443
Vi would be

1370
00:51:01,980 --> 00:51:03,097
from the Princess ride.

1371
00:51:04,547 --> 00:51:07,093
Billy Crystal, only only mostly did.

1372
00:51:08,286 --> 00:51:09,161
Because, you know,

1373
00:51:10,115 --> 00:51:13,068
if the Supreme Court can recognize Bi. It

1374
00:51:13,068 --> 00:51:15,393
can recognize Bi 2

1375
00:51:15,448 --> 00:51:16,242
when, you know,

1376
00:51:17,114 --> 00:51:20,063
when somebody convince them to to let a

1377
00:51:20,063 --> 00:51:22,046
plane bring a cause of action directly under

1378
00:51:22,046 --> 00:51:23,418
AAA

1379
00:51:23,553 --> 00:51:25,376
constitutional provision. So I don't know that it's

1380
00:51:25,376 --> 00:51:25,876
dead

1381
00:51:26,407 --> 00:51:27,335
all the way, but

1382
00:51:28,093 --> 00:51:30,088
certainly certainly on its way. It seems.

1383
00:51:31,126 --> 00:51:34,158
Yes. That the the the the question as

1384
00:51:34,158 --> 00:51:37,205
to whether Pi has anything left to it

1385
00:51:37,205 --> 00:51:38,959
is an an important 1. But,

1386
00:51:39,836 --> 00:51:42,069
just because something's important doesn't mean you get

1387
00:51:42,069 --> 00:51:45,042
a fl the normal rules of civil

1388
00:51:45,831 --> 00:51:47,581
litigation, I think because that... That's what these

1389
00:51:47,581 --> 00:51:49,411
prison guards are trying to do here. Yeah.

1390
00:51:49,888 --> 00:51:50,127
Yeah.

1391
00:51:51,081 --> 00:51:51,240
Well,

1392
00:51:52,927 --> 00:51:53,565
I think that

1393
00:51:54,361 --> 00:51:56,035
our our 2 are through the tenth circuit

1394
00:51:56,035 --> 00:51:56,774
has been

1395
00:51:58,027 --> 00:52:01,788
a whirlwind. Yeah. There's banks and valleys and

1396
00:52:02,346 --> 00:52:04,977
you know, the the El dorado over always

1397
00:52:04,977 --> 00:52:07,527
over the next hill and... Yeah. We'll keep

1398
00:52:07,527 --> 00:52:09,847
searching for that. But I think I think

1399
00:52:09,847 --> 00:52:12,070
we made some good discoveries, a few gold

1400
00:52:12,070 --> 00:52:12,570
nuggets

1401
00:52:13,339 --> 00:52:15,482
along the way here, Bob. So think thanks

1402
00:52:15,482 --> 00:52:17,964
for sad up with me. Yeah. A little...

1403
00:52:18,125 --> 00:52:19,085
It was a Rocky rod.

1404
00:52:20,364 --> 00:52:22,444
June. Well, I hope the rest of you

1405
00:52:22,444 --> 00:52:24,364
enjoyed it and until next time.

1406
00:52:25,099 --> 00:52:26,316
I hope that all of you

1407
00:52:26,772 --> 00:52:27,410
get engaged.