1
00:00:00,754 --> 00:00:02,821
Imagine a swat team raids a house,

2
00:00:03,456 --> 00:00:07,509
battering doors, breaking windows, and coating everything inside

3
00:00:07,509 --> 00:00:08,622
with tear gas residue.

4
00:00:09,989 --> 00:00:12,240
Now imagine the swat team had the wrong

5
00:00:12,297 --> 00:00:12,536
address.

6
00:00:13,491 --> 00:00:14,844
Who do you think would pay for the

7
00:00:14,844 --> 00:00:15,162
damage?

8
00:00:16,197 --> 00:00:18,758
If you said insurance, you're probably off.

9
00:00:19,553 --> 00:00:22,278
If you said the city, you're probably also

10
00:00:22,334 --> 00:00:22,652
wrong.

11
00:00:23,764 --> 00:00:25,964
I'm Kim Nor of the nonprofit of law

12
00:00:26,084 --> 00:00:28,152
Liberties law firm, the institute for Justice.

13
00:00:28,630 --> 00:00:31,176
Joined by c host Keith Feel, and I

14
00:00:31,176 --> 00:00:33,165
attorneys, Jeff Red, and Dylan Mo

15
00:00:34,376 --> 00:00:36,710
Today, they'll talk with us about this nightmare

16
00:00:37,087 --> 00:00:40,914
situation facing homeowners across America and how the

17
00:00:40,914 --> 00:00:43,077
institute for justice is far fighting to change

18
00:00:43,077 --> 00:00:43,235
it.

19
00:00:44,345 --> 00:00:45,852
This is beyond the brief.

20
00:00:49,895 --> 00:00:49,950
Fighting

21
00:00:54,523 --> 00:00:56,670
So Jeff, 1 of the people that experienced

22
00:00:56,670 --> 00:00:58,912
this is Vicki Baker in Texas this. Can

23
00:00:58,912 --> 00:01:00,260
you tell us a bit about that?

24
00:01:00,975 --> 00:01:04,466
Sure. So Vicki Baker's story is pretty typical

25
00:01:04,466 --> 00:01:05,870
for these swat cases. This

26
00:01:07,028 --> 00:01:10,064
she's our first client who we lit a

27
00:01:10,064 --> 00:01:11,981
swap case on behalf of all the way

28
00:01:11,981 --> 00:01:12,940
up from the trial court.

29
00:01:13,594 --> 00:01:15,111
Our our first walk case was 1 that

30
00:01:15,111 --> 00:01:16,068
we took over on appeal.

31
00:01:17,026 --> 00:01:18,543
So she owned this house in,

32
00:01:19,102 --> 00:01:19,660
Mckinney, Texas.

33
00:01:20,219 --> 00:01:22,549
It's a suburb north of Dallas and was

34
00:01:22,549 --> 00:01:24,947
on the market. She was relocating to Montana,

35
00:01:25,187 --> 00:01:26,865
and it was actually under contract. She was

36
00:01:26,865 --> 00:01:27,904
gonna close in, like, a week.

37
00:01:28,863 --> 00:01:30,701
Her daughter was at the house kinda of

38
00:01:30,701 --> 00:01:31,820
finishing up a few last things.

39
00:01:32,553 --> 00:01:33,053
When

40
00:01:34,148 --> 00:01:36,539
a fugitive showed up at her door.

41
00:01:37,257 --> 00:01:39,090
Now she had heard on the news that

42
00:01:39,090 --> 00:01:40,445
this guy was on the run from the

43
00:01:40,445 --> 00:01:42,288
police, and she knew who he was because

44
00:01:42,288 --> 00:01:43,478
he had been a handyman man at their

45
00:01:43,478 --> 00:01:44,931
house, like a year previously.

46
00:01:46,178 --> 00:01:47,448
And he must have known that it was

47
00:01:47,448 --> 00:01:48,956
on the market or something and figured it

48
00:01:48,956 --> 00:01:49,671
was gonna be empty.

49
00:01:50,483 --> 00:01:52,000
He had a 15 year old girl in

50
00:01:52,000 --> 00:01:52,239
tow,

51
00:01:53,038 --> 00:01:53,277
and,

52
00:01:54,235 --> 00:01:57,029
Vicky daughter said, oh, I've gotta run to

53
00:01:57,029 --> 00:01:58,466
the grocery store sure. You guys can hang

54
00:01:58,466 --> 00:02:00,073
out here for a bit. Pretended she didn't

55
00:02:00,073 --> 00:02:02,059
know that there was anything wrong, and then

56
00:02:02,059 --> 00:02:02,853
they called the police.

57
00:02:03,806 --> 00:02:05,474
Well, the Mckinney police showed up with the

58
00:02:05,474 --> 00:02:07,222
swat team. They surrounded the entire house.

59
00:02:08,031 --> 00:02:08,746
Pretty quickly,

60
00:02:09,381 --> 00:02:11,685
the fugitive let the the 15 year old

61
00:02:11,685 --> 00:02:12,162
girl loose,

62
00:02:12,956 --> 00:02:15,339
but he refused to come out. So, eventually,

63
00:02:15,657 --> 00:02:18,706
the Mc mckinney swat team assaulted the house.

64
00:02:19,664 --> 00:02:22,221
They blew up the garage door, like, literally

65
00:02:22,221 --> 00:02:23,020
with explosives,

66
00:02:23,434 --> 00:02:25,350
They knocked down the fence. They use these,

67
00:02:25,510 --> 00:02:26,388
these bear cats.

68
00:02:27,425 --> 00:02:29,101
Would you like tanks? Right? Yeah. They're they're

69
00:02:29,101 --> 00:02:30,059
basically like tanks.

70
00:02:30,778 --> 00:02:31,576
And then they

71
00:02:32,707 --> 00:02:34,699
absolutely saturated the whole thing with tear gas,

72
00:02:35,495 --> 00:02:36,770
like over 60 canisters.

73
00:02:37,327 --> 00:02:38,761
And I didn't know this until I was

74
00:02:38,761 --> 00:02:40,274
doing these swap cases, but it turns out

75
00:02:40,274 --> 00:02:41,230
that tear gas is, like,

76
00:02:41,883 --> 00:02:44,596
unbelievably destructive. Like it's non lethal, but it

77
00:02:44,596 --> 00:02:47,628
it basically gets into anything Por and destroys

78
00:02:47,628 --> 00:02:50,917
it. So, like, drywall wall carpet, flooring, all

79
00:02:50,917 --> 00:02:52,356
of the personal property in the house,

80
00:02:53,075 --> 00:02:54,593
pretty much had to be torn out and

81
00:02:54,593 --> 00:02:55,073
thrown out.

82
00:02:56,112 --> 00:02:58,030
And that was over 60000 dollars worth of

83
00:02:58,030 --> 00:02:59,717
damage even when she was, like, half moved

84
00:02:59,717 --> 00:02:59,876
out.

85
00:03:01,309 --> 00:03:03,299
They turns out when they went into the

86
00:03:03,299 --> 00:03:06,107
house, the fugitive had killed himself

87
00:03:06,721 --> 00:03:08,050
at sometime prior, g

88
00:03:09,043 --> 00:03:11,666
So the house is trashed. Obviously, the sale

89
00:03:11,666 --> 00:03:12,302
doesn't go through,

90
00:03:13,097 --> 00:03:14,607
and it turns out the city won't pay

91
00:03:14,607 --> 00:03:16,753
her. They say, you know, our our police

92
00:03:16,753 --> 00:03:18,044
officers, acted lawful,

93
00:03:18,523 --> 00:03:19,722
so there's nothing you can do.

94
00:03:20,681 --> 00:03:21,960
Her insurance company said,

95
00:03:22,679 --> 00:03:25,896
your policy has an exclusion for acts of

96
00:03:25,956 --> 00:03:26,755
government authority,

97
00:03:27,889 --> 00:03:29,409
and most people don't know this, but this

98
00:03:29,409 --> 00:03:32,229
is actually really common almost every insurance policy

99
00:03:32,849 --> 00:03:34,370
excludes damage done by the government.

100
00:03:35,650 --> 00:03:36,150
So

101
00:03:36,464 --> 00:03:38,702
our client, Vicky was, like, totally out of

102
00:03:38,702 --> 00:03:40,860
luck. She thought that she was gonna have

103
00:03:40,860 --> 00:03:41,499
to, you know,

104
00:03:42,218 --> 00:03:44,056
get money out of her retirement accounts to

105
00:03:44,056 --> 00:03:45,495
try to cover this and repair it.

106
00:03:46,468 --> 00:03:48,961
So is... What happened to Vicki

107
00:03:49,418 --> 00:03:51,809
exceptional how common is this sort of situation?

108
00:03:52,926 --> 00:03:54,600
Nationwide I think it's pretty common.

109
00:03:55,173 --> 00:03:57,646
We hear about a situation like this where

110
00:03:57,646 --> 00:03:58,762
it's an innocent owner,

111
00:03:59,639 --> 00:04:01,553
and the swat team trash the property.

112
00:04:02,590 --> 00:04:03,707
Probably every few weeks,

113
00:04:04,599 --> 00:04:06,110
On the other hand, I don't think it's

114
00:04:06,110 --> 00:04:08,122
super common on, like, a

115
00:04:08,497 --> 00:04:10,326
municipality by municipality basis.

116
00:04:11,201 --> 00:04:12,474
Most of the time when we hear about

117
00:04:12,474 --> 00:04:14,558
these, It's like the... First time something like

118
00:04:14,558 --> 00:04:16,308
this has happened in 10 years in a

119
00:04:16,308 --> 00:04:16,944
particular city.

120
00:04:17,978 --> 00:04:19,569
So I think that there are a lot

121
00:04:19,569 --> 00:04:21,797
of affected people nationwide, but I don't think

122
00:04:21,797 --> 00:04:23,488
it's so common that

123
00:04:24,047 --> 00:04:26,124
this is something that cities can't afford to

124
00:04:26,124 --> 00:04:26,523
pay for.

125
00:04:27,322 --> 00:04:28,920
So what happened?

126
00:04:29,495 --> 00:04:30,314
With Vicki

127
00:04:30,774 --> 00:04:31,254
specifically.

128
00:04:32,055 --> 00:04:33,334
Well, it was a bit of a legal

129
00:04:33,334 --> 00:04:34,134
roller coaster.

130
00:04:34,615 --> 00:04:35,495
So initially,

131
00:04:36,055 --> 00:04:36,694
we sued...

132
00:04:37,189 --> 00:04:39,416
The city of Mckinney Federal Court, and we

133
00:04:39,416 --> 00:04:41,962
argued that the destruction of her house of

134
00:04:41,962 --> 00:04:42,598
her property,

135
00:04:43,394 --> 00:04:45,621
it was lawful, but it was a taking.

136
00:04:46,351 --> 00:04:47,939
Just like if the government took your house

137
00:04:47,939 --> 00:04:50,004
with eminent in a domain to build, a,

138
00:04:50,163 --> 00:04:51,751
a road or a school or a jail,

139
00:04:52,624 --> 00:04:53,815
they destroyed her property,

140
00:04:54,610 --> 00:04:55,110
for

141
00:04:55,499 --> 00:04:57,570
public use to get a dangerous criminal off

142
00:04:57,570 --> 00:04:57,968
the street.

143
00:04:58,844 --> 00:04:59,163
And,

144
00:04:59,959 --> 00:05:02,189
the federal trial court actually agreed with us.

145
00:05:02,349 --> 00:05:03,782
It said this is a taking under the

146
00:05:03,782 --> 00:05:05,555
fifth amendment said that some other

147
00:05:06,274 --> 00:05:08,855
decisions by other courts had been poorly reason

148
00:05:08,915 --> 00:05:09,634
on this issue.

149
00:05:10,514 --> 00:05:13,495
And we ended up getting about 60000 dollars

150
00:05:14,208 --> 00:05:15,405
in a jury trial for her.

151
00:05:16,203 --> 00:05:17,879
But then we went up on appeal to

152
00:05:17,879 --> 00:05:19,496
the fifth circuit, and

153
00:05:20,593 --> 00:05:21,925
that verdict got reversed

154
00:05:22,762 --> 00:05:25,096
it was a surprising ruling because

155
00:05:25,474 --> 00:05:25,974
the

156
00:05:27,627 --> 00:05:30,259
court of appeals basically said that everything the

157
00:05:30,259 --> 00:05:32,926
town had been arguing for getting this verdict

158
00:05:33,061 --> 00:05:34,332
overturned was wrong.

159
00:05:34,888 --> 00:05:36,794
But... It sounds like we win. Right. Right.

160
00:05:37,032 --> 00:05:39,256
That's normally... It works on appeal, especially when

161
00:05:39,256 --> 00:05:41,480
you are the Apple, normally, they say that

162
00:05:41,480 --> 00:05:43,329
you're you know, you can, win on any

163
00:05:43,329 --> 00:05:43,648
ground.

164
00:05:44,845 --> 00:05:46,839
So... But the court came up with a

165
00:05:46,839 --> 00:05:48,514
different reason that we should lose. It basically

166
00:05:48,514 --> 00:05:50,986
said that there's this implied exception.

167
00:05:51,639 --> 00:05:52,037
To the,

168
00:05:52,674 --> 00:05:56,495
fifth amendments just compensation clause. For government actions

169
00:05:56,495 --> 00:05:56,893
that are,

170
00:05:57,928 --> 00:06:00,254
necessary is the word that they used. Where

171
00:06:00,254 --> 00:06:01,854
where does that come from? Because when when

172
00:06:01,854 --> 00:06:03,294
you look at the text of the taking

173
00:06:03,294 --> 00:06:05,294
clause, You know, it it says Nor shell

174
00:06:05,294 --> 00:06:07,694
private property be taken for public use without

175
00:06:07,694 --> 00:06:10,584
just compensation, it doesn't say comma accepted if

176
00:06:10,584 --> 00:06:12,817
the police are doing their job or except

177
00:06:12,817 --> 00:06:15,130
in cases of the police power. So what

178
00:06:15,130 --> 00:06:17,943
was the basis for reading in this implied

179
00:06:18,241 --> 00:06:18,560
exception.

180
00:06:19,530 --> 00:06:22,553
Well, the the fifth circuit reasoning, basically,

181
00:06:23,269 --> 00:06:24,542
it was it was based on a lot

182
00:06:24,542 --> 00:06:25,576
of common law cases.

183
00:06:26,309 --> 00:06:29,026
So there is this defense of necessity to

184
00:06:29,026 --> 00:06:30,725
the to of Tres.

185
00:06:31,263 --> 00:06:33,821
So at common law, let's say, like, you're

186
00:06:33,821 --> 00:06:34,460
caught in a blizzard.

187
00:06:35,113 --> 00:06:35,613
And

188
00:06:36,068 --> 00:06:37,820
there's a convenient barn there that you could

189
00:06:37,820 --> 00:06:39,412
shelter in. So you you break down the

190
00:06:39,412 --> 00:06:42,300
door and you take shelter inside. That's private

191
00:06:42,357 --> 00:06:42,755
necessity.

192
00:06:43,169 --> 00:06:44,286
You're allowed to do it and you're not

193
00:06:44,286 --> 00:06:46,120
a tres pass, though you do have to

194
00:06:46,120 --> 00:06:48,353
compensate them for the damage you cause, because

195
00:06:48,353 --> 00:06:50,427
it's better that you... Your life be saved

196
00:06:50,427 --> 00:06:52,421
than that someone's lock not be broken.

197
00:06:53,472 --> 00:06:56,181
Similarly, if there's, like, a fire raging through

198
00:06:56,181 --> 00:06:56,341
town.

199
00:06:57,058 --> 00:06:57,775
And you

200
00:06:58,333 --> 00:07:00,245
tear down some houses to create a fire

201
00:07:00,245 --> 00:07:01,599
break, and you save the town,

202
00:07:03,049 --> 00:07:04,107
you're not a tres,

203
00:07:04,484 --> 00:07:06,238
and you can't be held liable for tearing

204
00:07:06,238 --> 00:07:08,709
down those few houses. What you as a

205
00:07:08,709 --> 00:07:12,073
private person can tear down other people's. Houses

206
00:07:12,073 --> 00:07:13,590
for, like, a fire prevention.

207
00:07:14,468 --> 00:07:16,384
You can. That's that's an old common law

208
00:07:16,384 --> 00:07:18,700
defensive of necessity, but it has to be...

209
00:07:19,338 --> 00:07:22,143
It has to actually be necessary. Just to

210
00:07:22,143 --> 00:07:23,732
avert this greater good. It's sort of, like,

211
00:07:24,129 --> 00:07:25,798
it's like the Trolley problem in towards.

212
00:07:27,386 --> 00:07:28,363
And because

213
00:07:28,674 --> 00:07:30,509
you make that decision yourself. You're taking a

214
00:07:30,509 --> 00:07:32,265
big risk. If you're wrong, you could be

215
00:07:32,265 --> 00:07:32,744
held liable.

216
00:07:33,542 --> 00:07:35,957
The other famous example is, like, throwing cargo

217
00:07:36,175 --> 00:07:38,188
overboard, a storm to save the ship so

218
00:07:38,188 --> 00:07:38,907
that it won't sync.

219
00:07:40,186 --> 00:07:41,624
You're allowed to do it, but

220
00:07:42,344 --> 00:07:44,342
you know, so you're... You are not personally

221
00:07:44,342 --> 00:07:46,260
a tres or even though you've destroyed someone

222
00:07:46,260 --> 00:07:48,586
else property in order to save a larger

223
00:07:48,586 --> 00:07:50,736
number of people. Well, what the court did

224
00:07:50,736 --> 00:07:52,330
was it looked at these old cases, and

225
00:07:52,330 --> 00:07:54,415
then it basically said it's This is just

226
00:07:54,415 --> 00:07:55,848
like what the government's is doing here. It

227
00:07:55,848 --> 00:07:58,635
was necessary to to damage this property in

228
00:07:58,635 --> 00:07:59,351
order to

229
00:07:59,988 --> 00:08:01,580
you know, promote the greater good.

230
00:08:02,474 --> 00:08:03,992
The problem is that all of those old

231
00:08:03,992 --> 00:08:07,507
necessity cases are about the private to of

232
00:08:07,507 --> 00:08:10,713
necessity. And will about paying? Right? Like, if

233
00:08:10,713 --> 00:08:12,064
you said if you break the lock, you

234
00:08:12,064 --> 00:08:13,256
have to pay for the lock, but you're

235
00:08:13,256 --> 00:08:15,560
not a tres. Well, that's that's in cases

236
00:08:15,560 --> 00:08:17,944
of private necessity because you got the benefit

237
00:08:17,944 --> 00:08:20,341
of it. In cases of public necessity,

238
00:08:21,533 --> 00:08:23,121
you're generally out of luck. If it's just

239
00:08:23,121 --> 00:08:25,266
a private person that destroyed your property for

240
00:08:25,266 --> 00:08:25,901
the public good.

241
00:08:27,029 --> 00:08:29,180
Oh, so if I tear down people's houses

242
00:08:29,180 --> 00:08:30,295
to prevent a fire,

243
00:08:31,013 --> 00:08:32,128
I don't have to pay them for those

244
00:08:32,128 --> 00:08:33,345
houses if it's deemed

245
00:08:33,801 --> 00:08:36,192
necessary. That's that's the old common law rule.

246
00:08:37,720 --> 00:08:40,028
But there are also cases that the fifth

247
00:08:40,028 --> 00:08:40,926
circuit didn't

248
00:08:41,700 --> 00:08:44,089
look at, didn't see maybe because this issue

249
00:08:44,089 --> 00:08:44,805
was never briefed.

250
00:08:47,054 --> 00:08:49,847
Where federal courts actually said in the nineteenth

251
00:08:49,847 --> 00:08:50,246
century,

252
00:08:51,124 --> 00:08:53,695
you know, if the officer, the the government

253
00:08:53,695 --> 00:08:54,195
officer

254
00:08:54,815 --> 00:08:57,134
takes your property and it's necessary, destroys your

255
00:08:57,134 --> 00:09:00,014
property and it's necessary. He's not a tres,

256
00:09:00,174 --> 00:09:01,454
and he can't be held liable.

257
00:09:01,948 --> 00:09:03,940
But the government has to make the property

258
00:09:03,940 --> 00:09:06,512
owner whole. Sure. So courts have actually distinguished

259
00:09:06,649 --> 00:09:09,614
between this this private court defense, and the

260
00:09:09,614 --> 00:09:10,114
government's

261
00:09:10,493 --> 00:09:13,289
obligation to provide just compensation. Because the whole

262
00:09:13,289 --> 00:09:15,287
idea of the just compensation clauses is that

263
00:09:15,287 --> 00:09:16,027
we're taking

264
00:09:17,045 --> 00:09:18,596
these these benefits

265
00:09:18,971 --> 00:09:21,596
or sorry, we're taking these burdens which are

266
00:09:21,596 --> 00:09:24,301
public and sharing them across the entire public.

267
00:09:25,030 --> 00:09:27,729
We're not forcing some random individuals to

268
00:09:28,363 --> 00:09:29,554
to bear these public burdens.

269
00:09:30,347 --> 00:09:31,696
1 of the examples we use in these

270
00:09:31,696 --> 00:09:34,015
cases, we always say that you know, this

271
00:09:34,015 --> 00:09:35,287
damage is just 1 of the costs of

272
00:09:35,287 --> 00:09:38,310
law enforcement and that making Vicki Baker pay

273
00:09:38,310 --> 00:09:40,059
for it is is like having a lottery

274
00:09:40,059 --> 00:09:42,063
to determine who pays, like, the police. Chief

275
00:09:42,063 --> 00:09:42,382
salary.

276
00:09:42,939 --> 00:09:46,124
Sure. Yeah. So the individual officers that did

277
00:09:46,124 --> 00:09:49,490
this aren't liable, but the city is liable

278
00:09:49,707 --> 00:09:51,870
because this is part of the city's general,

279
00:09:52,108 --> 00:09:53,165
you know, police

280
00:09:53,540 --> 00:09:55,846
force. Exactly. And and this is something that

281
00:09:55,846 --> 00:09:56,959
comes up when

282
00:09:57,516 --> 00:09:59,686
government lawyers they always wanna talk about

283
00:10:00,950 --> 00:10:03,496
deter and and the idea that, well, you

284
00:10:03,496 --> 00:10:05,326
know, police officers in the moment, they're gonna

285
00:10:05,326 --> 00:10:07,156
hesitate, and they might not do the thing

286
00:10:07,156 --> 00:10:08,747
that they have to do if they're worried

287
00:10:08,747 --> 00:10:09,247
about

288
00:10:09,957 --> 00:10:10,755
the cost of this.

289
00:10:11,712 --> 00:10:14,344
Obviously, in our immunity, accountability cases, this comes

290
00:10:14,344 --> 00:10:16,418
up all the time. Because in those cases,

291
00:10:16,578 --> 00:10:19,264
we really are usually suing the individual officer,

292
00:10:19,862 --> 00:10:21,297
even though everyone knows that at the end

293
00:10:21,297 --> 00:10:23,370
of the day they're gonna be ind. Well

294
00:10:23,370 --> 00:10:25,044
in this case, we don't even have to

295
00:10:25,044 --> 00:10:27,436
deal with that fiction because the individual officers

296
00:10:27,436 --> 00:10:29,045
are not theirs defendants. There's no way they

297
00:10:29,045 --> 00:10:31,038
could be held liable, Like, the defendant here

298
00:10:31,038 --> 00:10:32,314
was the city of Mckinney.

299
00:10:33,510 --> 00:10:35,025
And 1 of the things that we've come

300
00:10:35,025 --> 00:10:37,667
across is that actually more often than not

301
00:10:37,667 --> 00:10:38,541
the police officers,

302
00:10:39,097 --> 00:10:40,845
they think that these property owners are gonna

303
00:10:40,845 --> 00:10:43,386
be compensated. Like Vicki Baker was given a

304
00:10:43,386 --> 00:10:45,628
card by the police officers or hurt. Rather

305
00:10:45,628 --> 00:10:47,143
her daughter was given a card by these

306
00:10:47,143 --> 00:10:48,978
police officers and they said, look, call this

307
00:10:48,978 --> 00:10:50,812
number, they'll take care of you. They'll fix

308
00:10:50,812 --> 00:10:53,365
everything up. They assumed that this damage would

309
00:10:53,365 --> 00:10:54,402
be covered by the city.

310
00:10:55,769 --> 00:10:58,626
And I actually think that the deter angle

311
00:10:58,626 --> 00:11:00,713
might really go the other way because if

312
00:11:00,848 --> 00:11:03,070
if police officers are people of goodwill, I

313
00:11:03,070 --> 00:11:04,919
think it's just is plausible that they would

314
00:11:04,919 --> 00:11:05,419
hesitate

315
00:11:05,799 --> 00:11:08,279
to cause this damage in in the course

316
00:11:08,279 --> 00:11:10,279
of their duties. If they knew that doing

317
00:11:10,279 --> 00:11:12,679
so would visit financial ruin on innocent people.

318
00:11:12,855 --> 00:11:14,774
Like, they don't want Vicki Baker's house to

319
00:11:14,774 --> 00:11:17,174
be trashed. Of course. Recourse. And so so

320
00:11:17,335 --> 00:11:19,495
Vicki thought she was gonna be compensated. The

321
00:11:19,495 --> 00:11:21,427
officers thought she was gonna be comp. Say

322
00:11:21,427 --> 00:11:23,332
that the trial court agreed she should be

323
00:11:23,332 --> 00:11:23,832
compensated,

324
00:11:24,205 --> 00:11:25,872
and then the fifth circuit said for reasons

325
00:11:25,872 --> 00:11:27,460
that no one's talked about, and that no

326
00:11:27,460 --> 00:11:29,524
one's briefed, we're gonna cut the other way,

327
00:11:30,000 --> 00:11:32,162
say what happened after that? Well,

328
00:11:32,798 --> 00:11:35,740
we filed a l brief, but it pointed

329
00:11:35,740 --> 00:11:37,808
out that for 1 thing, none of this

330
00:11:37,808 --> 00:11:39,658
was brief for, and, you know, the principle

331
00:11:39,658 --> 00:11:41,656
of party presentation says that you're not supposed

332
00:11:41,656 --> 00:11:43,035
to be deciding cases

333
00:11:43,414 --> 00:11:45,412
on a basis that no 1 ever argued

334
00:11:45,412 --> 00:11:47,730
with with, you know, some exceptions like jurisdiction.

335
00:11:48,050 --> 00:11:48,105
For

336
00:11:49,260 --> 00:11:50,456
so we didn't have a chance to brief

337
00:11:50,456 --> 00:11:51,890
it, and then we explained how they were

338
00:11:51,890 --> 00:11:53,644
getting all the history wrong. They missed ton

339
00:11:53,644 --> 00:11:55,636
of material that goes the other way, and

340
00:11:55,636 --> 00:11:57,406
they even... Even 1 of the key cases

341
00:11:57,406 --> 00:11:59,400
that they cited actually said the opposite of

342
00:11:59,400 --> 00:12:01,315
of what they thought it said. So there

343
00:12:01,315 --> 00:12:02,990
were a lot of errors in the decision.

344
00:12:04,042 --> 00:12:06,195
The fifth circuit called for response, and then

345
00:12:06,195 --> 00:12:08,905
it sat for about 4 months. Ultimately, they

346
00:12:08,905 --> 00:12:11,537
denied the petition by a 6 to 11

347
00:12:11,537 --> 00:12:11,776
vote.

348
00:12:12,587 --> 00:12:14,417
Which is pretty good as then bank goes

349
00:12:14,417 --> 00:12:16,406
because, you know, that indicates that the 6

350
00:12:16,406 --> 00:12:18,634
probably think we're right, but just because someone

351
00:12:18,634 --> 00:12:20,384
votes against in bank doesn't mean they think

352
00:12:20,384 --> 00:12:22,153
the panel's right. Like, end bank is a

353
00:12:22,153 --> 00:12:22,872
really high bar.

354
00:12:23,751 --> 00:12:25,189
So a lot of judges will will look

355
00:12:25,189 --> 00:12:27,186
at a petition and say, well, it looks

356
00:12:27,186 --> 00:12:28,478
like they might have made a mistake. Here,

357
00:12:28,636 --> 00:12:30,221
but I I don't quite think this is

358
00:12:30,221 --> 00:12:31,488
worth our time, and we only do a

359
00:12:31,488 --> 00:12:32,835
handful of bank cases a year.

360
00:12:33,786 --> 00:12:36,105
And then we got a great descent from

361
00:12:36,105 --> 00:12:37,465
denial of re recurring in bank

362
00:12:37,785 --> 00:12:39,785
that largely agreed with our arguments.

363
00:12:40,745 --> 00:12:42,825
So we're gonna petition the Supreme Court for

364
00:12:42,825 --> 00:12:43,065
review.

365
00:12:43,785 --> 00:12:44,024
And,

366
00:12:44,919 --> 00:12:46,996
You know, I think that having having 6

367
00:12:46,996 --> 00:12:48,514
votes for in bank and a really good

368
00:12:48,514 --> 00:12:50,511
descent is a pretty good platform for that,

369
00:12:50,671 --> 00:12:51,550
so we'll see how it goes.

370
00:12:52,125 --> 00:12:54,605
What happened with with Vicki, you know, maybe

371
00:12:54,605 --> 00:12:57,485
we can argue about, you know, wasn't even

372
00:12:57,485 --> 00:12:59,817
reasonable for them to, you know, use a

373
00:12:59,817 --> 00:13:01,749
tank on our house and throw 60 tier

374
00:13:01,805 --> 00:13:03,634
grenades in it and and whenever, I think

375
00:13:03,634 --> 00:13:06,577
we all have potentially about that. But it

376
00:13:06,577 --> 00:13:08,103
at least it was the right house. And

377
00:13:08,103 --> 00:13:09,932
the guy they were looking for was actually

378
00:13:09,932 --> 00:13:10,251
in there.

379
00:13:11,126 --> 00:13:13,671
That's not the case always. So

380
00:13:14,307 --> 00:13:16,860
what are some examples of... You know, it

381
00:13:16,860 --> 00:13:17,969
doesn't feel like it can get even worse,

382
00:13:18,207 --> 00:13:20,663
but there are even worse examples. So... Yeah.

383
00:13:20,901 --> 00:13:23,059
It does get worse. So we actually have

384
00:13:23,059 --> 00:13:25,049
another case in the fifth circuit that came

385
00:13:25,049 --> 00:13:26,960
from just outside Dallas in a town called

386
00:13:27,358 --> 00:13:28,074
Lancaster, Texas.

387
00:13:28,711 --> 00:13:29,348
In this case,

388
00:13:30,239 --> 00:13:30,739
a

389
00:13:31,117 --> 00:13:33,193
swat team commander was hoping to lead his

390
00:13:33,193 --> 00:13:35,828
swat team to bust a methamphetamine stash house.

391
00:13:36,626 --> 00:13:38,782
So he knew basically everything that there was

392
00:13:38,782 --> 00:13:39,660
to know about this house.

393
00:13:40,314 --> 00:13:42,309
Obviously, he knew the address. But he also

394
00:13:42,309 --> 00:13:44,305
knew exactly how the house looked. He knew

395
00:13:44,305 --> 00:13:46,141
that it had a perimeter fence and a

396
00:13:46,141 --> 00:13:48,696
detached garage that 3 swat team members were

397
00:13:48,696 --> 00:13:50,466
supposed to raid. He knew the color of

398
00:13:50,466 --> 00:13:52,539
the house and he knew... Had stairs leading

399
00:13:52,539 --> 00:13:53,575
up to its front door.

400
00:13:54,452 --> 00:13:55,590
But when this

401
00:13:56,126 --> 00:13:58,372
swat commander, his name was Mike Lewis. Went

402
00:13:58,372 --> 00:14:00,040
to lead his swat team to this house.

403
00:14:01,231 --> 00:14:03,296
They all gathered on a front porch, and

404
00:14:03,296 --> 00:14:05,520
then Lewis realized, oh, this isn't the right

405
00:14:05,520 --> 00:14:05,758
place.

406
00:14:06,649 --> 00:14:07,929
The right place was on his left.

407
00:14:09,209 --> 00:14:11,209
A house of innocent people was on his

408
00:14:11,209 --> 00:14:11,449
right.

409
00:14:12,169 --> 00:14:14,649
But Lewis for some reason seemingly just looked

410
00:14:14,649 --> 00:14:16,504
to his left looked to his right and

411
00:14:16,504 --> 00:14:16,745
guest.

412
00:14:17,465 --> 00:14:20,024
And instead of directing his officers to the

413
00:14:20,024 --> 00:14:22,264
stash house that he knew the address of

414
00:14:22,264 --> 00:14:24,194
and knew what it looked like. He ordered

415
00:14:24,194 --> 00:14:26,817
them to raid a completely innocent family's home.

416
00:14:27,770 --> 00:14:29,995
And so our client Karen Emerson owned that

417
00:14:29,995 --> 00:14:30,234
home.

418
00:14:31,044 --> 00:14:33,282
And the swat team did what's called a

419
00:14:33,282 --> 00:14:35,599
break and rake. So they busted down the

420
00:14:35,599 --> 00:14:37,996
door, they threw a flash bang grenade on

421
00:14:37,996 --> 00:14:38,715
the front s.

422
00:14:39,368 --> 00:14:41,755
And they shattered all the windows, raining glass

423
00:14:41,755 --> 00:14:43,506
over her Karen and her sleeping family.

424
00:14:44,540 --> 00:14:46,863
And these 2 houses look completely different, They

425
00:14:46,863 --> 00:14:48,373
look completely different and there are a few

426
00:14:48,373 --> 00:14:50,599
reasons why that anybody you don't have to

427
00:14:50,599 --> 00:14:52,984
be, you know, a sophisticated swat team leader

428
00:14:52,984 --> 00:14:55,051
to realize the differences between these 2 houses.

429
00:14:55,607 --> 00:14:58,356
So the the correct house had

430
00:14:58,734 --> 00:15:00,889
a perimeter fence, It had a detached garage.

431
00:15:01,528 --> 00:15:04,263
And maybe most glaring, Karen's house had an

432
00:15:04,322 --> 00:15:05,414
impossible to miss

433
00:15:06,009 --> 00:15:06,485
wheelchair ramp.

434
00:15:07,595 --> 00:15:10,291
It should not. Bags across the. There's 2

435
00:15:10,291 --> 00:15:12,036
exits. 1 goes to the driveway and 1

436
00:15:12,036 --> 00:15:14,273
goes to the front path, and the officers

437
00:15:14,273 --> 00:15:16,498
had to clam up this wheelchair ramp to

438
00:15:16,498 --> 00:15:18,643
bust down the front door. They had every

439
00:15:18,643 --> 00:15:20,152
reason to know that it shouldn't have been

440
00:15:20,152 --> 00:15:21,923
there. So you you you you'd think at

441
00:15:21,923 --> 00:15:23,761
some point. Right? These officers are are walking

442
00:15:23,761 --> 00:15:25,679
up the ramp that they would think to

443
00:15:25,679 --> 00:15:25,918
themselves,

444
00:15:26,718 --> 00:15:29,035
this isn't on the briefing. How how are

445
00:15:29,035 --> 00:15:31,367
we... Here why are we moving forward with

446
00:15:31,367 --> 00:15:33,444
this, but these officers did none of that.

447
00:15:33,684 --> 00:15:36,161
They just proceeded right ahead? They they proceeded

448
00:15:36,161 --> 00:15:38,327
right ahead and I would imagine from the

449
00:15:38,327 --> 00:15:40,953
individual officers perspective, they were probably just following

450
00:15:40,953 --> 00:15:43,181
the orders of the commander, even though, you

451
00:15:43,181 --> 00:15:44,852
know, they also had reason to know that

452
00:15:44,852 --> 00:15:45,887
this wasn't the right place.

453
00:15:46,619 --> 00:15:48,612
But really, it it's astounding to me that

454
00:15:48,612 --> 00:15:50,925
the the Swat team commander could watch his

455
00:15:50,925 --> 00:15:51,425
officers,

456
00:15:51,961 --> 00:15:54,035
clam up the wheelchair ramp that was not

457
00:15:54,035 --> 00:15:56,522
supposed to be there to break, open windows

458
00:15:56,522 --> 00:15:58,598
and bust down a door, especially when.

459
00:15:59,236 --> 00:16:02,030
Karen's house had the address numbers right next

460
00:16:02,030 --> 00:16:02,988
to the front door,

461
00:16:03,706 --> 00:16:04,206
and

462
00:16:04,837 --> 00:16:07,380
officer, Lewis knew what the correct houses numbers

463
00:16:07,380 --> 00:16:10,002
were, but he he even admitted that he

464
00:16:10,002 --> 00:16:11,194
didn't really bother to look.

465
00:16:12,402 --> 00:16:14,629
I mean, he already double checked once. We

466
00:16:14,629 --> 00:16:16,220
can't ask him to double check a second

467
00:16:16,220 --> 00:16:18,208
time. Well, and that makes it even worse

468
00:16:18,208 --> 00:16:20,844
because when... The Swat team first lined up

469
00:16:20,844 --> 00:16:22,272
and prepared to raid the wrong house.

470
00:16:23,066 --> 00:16:25,367
Officer, Lewis should have been on notice that

471
00:16:25,367 --> 00:16:26,954
they were at risk of going to the

472
00:16:26,954 --> 00:16:29,113
wrong place. And if anything, that should make

473
00:16:29,113 --> 00:16:29,828
you more careful.

474
00:16:30,463 --> 00:16:32,925
So so what happens in the... We took

475
00:16:32,925 --> 00:16:36,341
this case over. Right? And... Right. So what

476
00:16:36,341 --> 00:16:37,190
did the court

477
00:16:37,629 --> 00:16:40,186
decide already. Right. We took this case over

478
00:16:40,186 --> 00:16:42,344
after the fifth circuit had already issued an

479
00:16:42,344 --> 00:16:42,584
opinion,

480
00:16:43,463 --> 00:16:45,381
and we filed an on ban petition that's

481
00:16:45,381 --> 00:16:48,107
still pending right now. So basically, what the

482
00:16:48,107 --> 00:16:51,211
court said was sure. This violated the fourth

483
00:16:51,211 --> 00:16:54,968
amendment. And officer, Lewis actually conceded that... Ordering

484
00:16:54,968 --> 00:16:56,563
this raid on a house full of innocent

485
00:16:56,563 --> 00:16:57,998
people violated the fourth amendment.

486
00:16:58,636 --> 00:17:00,790
But the court still said that he was

487
00:17:00,790 --> 00:17:03,182
entitled to qualified immunity, which I think anybody

488
00:17:03,182 --> 00:17:04,892
listening to this podcast

489
00:17:05,345 --> 00:17:06,854
knows is something that we run into quite

490
00:17:06,854 --> 00:17:09,315
a lot. So even though the law was

491
00:17:09,315 --> 00:17:09,815
violated.

492
00:17:10,188 --> 00:17:12,276
The fifth circuit said that it wasn't clearly

493
00:17:12,490 --> 00:17:12,967
established.

494
00:17:13,539 --> 00:17:14,655
That the law was violated.

495
00:17:15,612 --> 00:17:18,266
And really that boils down to a complete

496
00:17:18,484 --> 00:17:21,196
misread of Supreme Court precedent and Fit circuit

497
00:17:21,196 --> 00:17:23,051
precedent. There's a case from the eighties

498
00:17:23,444 --> 00:17:25,696
called Maryland versus garrison where

499
00:17:26,232 --> 00:17:28,383
police wanted to... Before you go down that

500
00:17:28,383 --> 00:17:29,260
rabbit hole. Mh.

501
00:17:29,897 --> 00:17:32,378
I I... Just to to distinguish this case

502
00:17:32,378 --> 00:17:34,445
from the Vicki Baker case. Yeah. Here we're

503
00:17:34,445 --> 00:17:36,035
suing the individual officers?

504
00:17:36,591 --> 00:17:38,658
True. Are we suing the town as well,

505
00:17:38,976 --> 00:17:41,136
just to kind of give... Listeners a sense

506
00:17:41,136 --> 00:17:43,516
of who this suit is against. Short. So

507
00:17:43,516 --> 00:17:46,452
this lawsuit is just against the officer who

508
00:17:46,452 --> 00:17:49,019
ordered the raid. Other officers and the town

509
00:17:49,019 --> 00:17:51,019
had been parties to the lawsuit before we

510
00:17:51,019 --> 00:17:53,339
got involved, but they had been dismissed, and

511
00:17:53,339 --> 00:17:54,539
by the time we got in on it,

512
00:17:54,700 --> 00:17:57,434
it was just the Gym sense against Mike

513
00:17:57,514 --> 00:17:59,669
Lewis, the the swat commander. And so that's

514
00:17:59,669 --> 00:18:01,745
the reason we're talking about qualified immunity here,

515
00:18:01,905 --> 00:18:04,220
but not baker. Right. Because this is just

516
00:18:04,220 --> 00:18:06,295
a suit against the individual who ordered the

517
00:18:06,295 --> 00:18:06,455
raid.

518
00:18:07,108 --> 00:18:09,360
Gotcha. So the the fifth circuit granted qualified

519
00:18:09,418 --> 00:18:09,736
immunity,

520
00:18:10,294 --> 00:18:13,162
and it sounds like they probably mis misspelled

521
00:18:13,162 --> 00:18:14,755
the law. You were about to talk about,

522
00:18:14,993 --> 00:18:15,631
I think a case.

523
00:18:16,523 --> 00:18:18,118
What what case did they miss?

524
00:18:18,756 --> 00:18:21,946
Short. So the Fifth circuit missed its own

525
00:18:21,946 --> 00:18:24,042
precedent, but also kind of mis

526
00:18:24,658 --> 00:18:25,536
Supreme Court precedent.

527
00:18:26,029 --> 00:18:28,095
There's a case called Maryland versus Garrison from

528
00:18:28,095 --> 00:18:30,240
the eighties, where the police wanted to execute

529
00:18:30,240 --> 00:18:31,750
a search warrant at an apartment,

530
00:18:32,465 --> 00:18:32,965
and

531
00:18:33,594 --> 00:18:35,667
This apartment was located on the third floor

532
00:18:35,667 --> 00:18:36,703
of an apartment complex,

533
00:18:37,262 --> 00:18:38,697
and the cops were trying to figure out

534
00:18:38,697 --> 00:18:40,930
if there was 1 or 2 apartments on

535
00:18:40,930 --> 00:18:42,205
the third floor of this complex.

536
00:18:42,700 --> 00:18:44,460
So they did a bunch of research. They

537
00:18:44,460 --> 00:18:46,140
talked to the utility company. They talked to

538
00:18:46,140 --> 00:18:46,940
the local police.

539
00:18:47,500 --> 00:18:49,579
They talked to neighbors, and they did some

540
00:18:49,579 --> 00:18:51,594
site visits to try and figure out. You

541
00:18:51,594 --> 00:18:53,672
know, is there 1 or 2. And at

542
00:18:53,672 --> 00:18:56,090
the end of all of this, like, reasonable

543
00:18:56,150 --> 00:18:59,107
good faith investigation, they just couldn't have known

544
00:18:59,107 --> 00:19:00,785
that there were actually 2 apartments.

545
00:19:01,518 --> 00:19:03,291
When they stormed in, they actually

546
00:19:03,666 --> 00:19:05,416
entered the wrong apartment, but it was a

547
00:19:05,416 --> 00:19:07,722
reasonable mistake because after all of the due

548
00:19:07,722 --> 00:19:09,631
diligence, they just had no way of knowing.

549
00:19:09,870 --> 00:19:12,429
So So the Supreme Court said this doesn't

550
00:19:12,429 --> 00:19:14,575
actually violate the fourth amendment because they put

551
00:19:14,575 --> 00:19:16,585
in a lot of work into finding out

552
00:19:16,801 --> 00:19:18,629
the place that they were supposed to execute

553
00:19:18,629 --> 00:19:20,239
the search warrant. But there was no way

554
00:19:20,239 --> 00:19:22,716
for them to know that that there were

555
00:19:22,716 --> 00:19:24,394
actually 2 apartments in this building.

556
00:19:25,673 --> 00:19:27,671
That's not at all like, what's going on

557
00:19:27,671 --> 00:19:30,639
here. I mean, officer Lewis knew everything there

558
00:19:30,639 --> 00:19:32,471
is to know about the right house that

559
00:19:32,471 --> 00:19:34,383
he was supposed to raid. He had pictures

560
00:19:34,383 --> 00:19:36,136
of it. He had the warrant on hand,

561
00:19:36,708 --> 00:19:39,491
and and the houses all had their addresses

562
00:19:39,491 --> 00:19:41,400
clearly marked. I mean it would have taken

563
00:19:41,400 --> 00:19:43,706
about 5 seconds for him to make sure

564
00:19:43,706 --> 00:19:45,376
that he was directing his officers to the

565
00:19:45,376 --> 00:19:45,853
right place.

566
00:19:47,063 --> 00:19:49,458
We expect more from pizza delivery drivers and

567
00:19:49,458 --> 00:19:51,635
girl scouts and plumbers than

568
00:19:52,013 --> 00:19:53,849
the fit circuit expected of Mike Lewis.

569
00:19:54,887 --> 00:19:57,059
Did you know, I j represent ordinary people,

570
00:19:57,378 --> 00:19:59,296
free of charge as they fight back against

571
00:19:59,296 --> 00:19:59,936
government abuse.

572
00:20:00,655 --> 00:20:02,253
If you're looking for a rewarding way to

573
00:20:02,253 --> 00:20:04,171
support our work, consider becoming a member of

574
00:20:04,171 --> 00:20:06,423
our mary band of monthly donors, and stand

575
00:20:06,423 --> 00:20:08,659
shoulder to shoulder with I clients every month

576
00:20:08,659 --> 00:20:11,373
of the year. Multi donations are convenient and

577
00:20:11,373 --> 00:20:13,769
cost efficient, meaning more of your money goes

578
00:20:13,769 --> 00:20:15,525
directly to our fight for freedom and justice.

579
00:20:16,099 --> 00:20:17,615
Sign up to donate today at I j

580
00:20:17,615 --> 00:20:19,850
dot org slash monthly. So is this just

581
00:20:19,850 --> 00:20:20,350
a,

582
00:20:20,808 --> 00:20:22,346
you know, fifth circuit

583
00:20:22,804 --> 00:20:25,293
problem. Does the fifth circuit not know what

584
00:20:25,293 --> 00:20:27,127
it's doing like that can't be what's going

585
00:20:27,127 --> 00:20:29,122
on here, but sort of, you know, seeing

586
00:20:29,122 --> 00:20:31,037
these examples next to each. It just sort

587
00:20:31,037 --> 00:20:31,595
of feels like,

588
00:20:32,330 --> 00:20:34,650
what's going on over there in Texas? It

589
00:20:34,650 --> 00:20:36,269
does seem to be a fifth circuit problem

590
00:20:36,330 --> 00:20:37,769
in 4 other circuits,

591
00:20:38,570 --> 00:20:40,661
a claim like this could go forward. And

592
00:20:40,661 --> 00:20:42,729
just to reiterate, this a qualified immunity.

593
00:20:43,286 --> 00:20:45,671
Like, this case has been dismissed without actually

594
00:20:45,671 --> 00:20:47,262
getting into the heart of the case.

595
00:20:47,977 --> 00:20:49,806
So the fifth circuit is basically just said,

596
00:20:50,457 --> 00:20:52,605
you know, lieutenant Lewis can't be sued for

597
00:20:52,605 --> 00:20:54,354
this at all. We're not even gonna go

598
00:20:54,354 --> 00:20:56,501
past this. But in 4 other circuits, and

599
00:20:56,660 --> 00:20:58,092
I think under that garrison case,

600
00:20:58,982 --> 00:21:00,496
it should be the case in all other

601
00:21:00,496 --> 00:21:03,364
circuits. These claims could at least proceed beyond

602
00:21:03,364 --> 00:21:05,276
qualified immunity and sort of get into the

603
00:21:05,276 --> 00:21:05,435
merit.

604
00:21:06,086 --> 00:21:07,675
So it seems like we have sort of

605
00:21:07,675 --> 00:21:10,614
2 different kinds of cases going on here.

606
00:21:10,773 --> 00:21:12,521
I mean, these are 2 of, you know,

607
00:21:13,094 --> 00:21:15,647
probably half a dozen I cases about these

608
00:21:15,647 --> 00:21:16,605
swat things at this point.

609
00:21:17,643 --> 00:21:20,297
And, you know, some of them involve

610
00:21:21,410 --> 00:21:22,549
hey, the police

611
00:21:22,930 --> 00:21:24,609
completely messed up in ways that are very,

612
00:21:24,690 --> 00:21:27,509
very obvious and, you know, maybe that's those

613
00:21:27,650 --> 00:21:28,609
individuals fault.

614
00:21:29,184 --> 00:21:31,174
And then we have these cases sort of

615
00:21:31,174 --> 00:21:33,404
like, baker where, you know, they had the

616
00:21:33,404 --> 00:21:34,997
right house. They had the right guy. They

617
00:21:34,997 --> 00:21:36,669
were doing, you know, the things that they're

618
00:21:36,669 --> 00:21:37,306
supposed to do,

619
00:21:38,038 --> 00:21:40,189
and it, you know, sort of falls to

620
00:21:40,189 --> 00:21:41,963
the... It the issue isn't

621
00:21:42,340 --> 00:21:44,013
what they did. It's just that, you know,

622
00:21:44,092 --> 00:21:46,084
now the city has to pay them for

623
00:21:46,084 --> 00:21:49,054
the fact that this this happened. So kind

624
00:21:49,054 --> 00:21:51,375
of going back to that that second 1,

625
00:21:51,615 --> 00:21:54,654
how do you get a city to pay

626
00:21:54,654 --> 00:21:55,134
for things?

627
00:21:56,414 --> 00:21:59,294
Well, you know, it... It's funny because as

628
00:21:59,294 --> 00:22:01,440
we started to track these cases and I

629
00:22:01,440 --> 00:22:02,633
have people reaching out to me on a

630
00:22:02,633 --> 00:22:04,461
pretty regular basis telling me about...

631
00:22:05,832 --> 00:22:06,550
Incidents like this.

632
00:22:07,507 --> 00:22:09,901
What we found is actually more often than

633
00:22:09,901 --> 00:22:12,236
not, the city does pay

634
00:22:13,109 --> 00:22:14,627
and no lawsuit has to be filed.

635
00:22:15,905 --> 00:22:17,584
Oftentimes there's a bit of foot dragging, and

636
00:22:17,584 --> 00:22:19,821
then they realize, okay. Like, you really were

637
00:22:19,821 --> 00:22:19,981
innocent.

638
00:22:21,193 --> 00:22:22,941
You know, why don't we send us the

639
00:22:22,941 --> 00:22:24,769
receipts and we'll make sure that it's reasonable,

640
00:22:24,929 --> 00:22:26,836
but we'll... We're gonna make you whole.

641
00:22:27,710 --> 00:22:29,618
And I don't know whether these cities think

642
00:22:29,618 --> 00:22:31,787
that there acquired to under the law or

643
00:22:31,787 --> 00:22:33,145
they just think that it's the right thing

644
00:22:33,145 --> 00:22:33,545
to do.

645
00:22:34,184 --> 00:22:35,702
I think most people have the instinct that

646
00:22:35,702 --> 00:22:36,820
that's the right thing to do.

647
00:22:37,791 --> 00:22:39,541
So I think it is a minority of

648
00:22:39,541 --> 00:22:40,734
cases where people

649
00:22:41,132 --> 00:22:42,961
are just out of luck and have to

650
00:22:42,961 --> 00:22:43,757
resort to the courts.

651
00:22:44,806 --> 00:22:46,634
If they can find a lawyer. You know,

652
00:22:46,793 --> 00:22:48,304
we we do this, but a lot of

653
00:22:48,304 --> 00:22:50,870
lawyers are not gonna take a case where

654
00:22:51,245 --> 00:22:53,232
the legal claim itself is unsettled.

655
00:22:54,042 --> 00:22:55,869
You know, they'll take something where the the

656
00:22:55,869 --> 00:22:57,617
framework is very clear and then they can

657
00:22:57,617 --> 00:22:58,729
try to extract a settlement.

658
00:22:59,603 --> 00:23:01,986
But there's not... There's a lot of effort

659
00:23:01,986 --> 00:23:03,200
involved in lit

660
00:23:03,910 --> 00:23:04,809
a cutting edge

661
00:23:05,110 --> 00:23:07,049
constitutional case where the precedent isn't an

662
00:23:07,350 --> 00:23:08,309
entirely clear cut,

663
00:23:09,269 --> 00:23:11,682
and that just you know, eats into your

664
00:23:11,682 --> 00:23:13,197
profits if you're if you're trying to make

665
00:23:13,197 --> 00:23:15,851
a living as a a lawyer doing small

666
00:23:16,148 --> 00:23:18,540
damages claims. And it's tough because if you

667
00:23:18,540 --> 00:23:20,708
wanna bring a civil rights suit against a

668
00:23:20,708 --> 00:23:22,221
city. You have to do someone under a

669
00:23:22,221 --> 00:23:23,017
case called Mon.

670
00:23:23,575 --> 00:23:24,075
And

671
00:23:24,451 --> 00:23:26,123
to win under Mon, you have to show

672
00:23:26,123 --> 00:23:28,193
that the city had an official policy or

673
00:23:28,193 --> 00:23:28,511
custom.

674
00:23:29,083 --> 00:23:32,181
That led to the constitutional deprivation. And so

675
00:23:32,181 --> 00:23:34,563
it can be really, really difficult to prove

676
00:23:34,563 --> 00:23:35,119
those things.

677
00:23:35,913 --> 00:23:37,160
I was about to ask, how do you

678
00:23:37,359 --> 00:23:39,517
prove a policy or custom in this context?

679
00:23:39,676 --> 00:23:41,035
I mean, do do you point to a

680
00:23:41,035 --> 00:23:42,712
document where the city says we have a

681
00:23:42,712 --> 00:23:45,362
policy of violating your constitutional rights? I don't

682
00:23:45,362 --> 00:23:47,351
think many city officials would put that down

683
00:23:47,351 --> 00:23:49,498
in writing? So how how on Earth do

684
00:23:49,498 --> 00:23:51,645
you build a record to demonstrate that what

685
00:23:51,645 --> 00:23:53,529
the city is doing is pursuant to some

686
00:23:53,809 --> 00:23:54,690
policy or custom.

687
00:23:55,490 --> 00:23:57,809
Well, before, actually, you answer that to add

688
00:23:57,809 --> 00:23:59,890
to that question, is it that they have

689
00:23:59,890 --> 00:24:03,009
a policy or practice of, you know, using

690
00:24:03,009 --> 00:24:05,651
tanks and 60 tear grenades on your house

691
00:24:05,651 --> 00:24:07,322
or that they have a policy and practice

692
00:24:07,322 --> 00:24:09,469
of not paying you after that happens.

693
00:24:10,519 --> 00:24:12,759
Well, so for taking claims, we've argued that

694
00:24:12,759 --> 00:24:13,399
it's the latter.

695
00:24:14,359 --> 00:24:16,279
I don't think it's a real problem either

696
00:24:16,279 --> 00:24:17,659
way because ultimately,

697
00:24:18,533 --> 00:24:20,605
they're defending their actions by saying the police

698
00:24:20,605 --> 00:24:22,597
did everything exactly the way they're supposed to.

699
00:24:22,756 --> 00:24:24,031
So it's hard to say that's not a

700
00:24:24,031 --> 00:24:24,430
policy.

701
00:24:25,067 --> 00:24:28,350
But the the constitutional violation in a taking

702
00:24:28,350 --> 00:24:28,589
claim.

703
00:24:29,386 --> 00:24:30,980
It's not the taking of property. The government

704
00:24:30,980 --> 00:24:32,835
is allowed to take your profits. The not.

705
00:24:33,451 --> 00:24:36,279
Right. And it's it's very hard to say

706
00:24:36,737 --> 00:24:38,493
that we don't have a policy of not

707
00:24:38,493 --> 00:24:41,206
paying these claims when your city attorney is

708
00:24:41,206 --> 00:24:43,523
in court. Arguing. We don't wanna pay this

709
00:24:43,523 --> 00:24:45,980
claim. Right. Yeah. You're you're doing the thing.

710
00:24:46,138 --> 00:24:48,753
Right exactly. Okay. Okay. Sorry. I didn't mean

711
00:24:48,753 --> 00:24:50,679
to interrupt your question. Oh, no. I, I

712
00:24:50,679 --> 00:24:52,272
think we're we're kind of halfway through answering

713
00:24:52,272 --> 00:24:54,503
it then. So it sounds like with taking

714
00:24:54,503 --> 00:24:55,220
claims at least,

715
00:24:55,937 --> 00:24:58,110
it's it's maybe a little bit easier to

716
00:24:58,110 --> 00:25:00,190
prove the existence of a policy because often,

717
00:25:00,350 --> 00:25:03,070
the attorneys in court are advancing that policy

718
00:25:03,070 --> 00:25:04,910
when they're trying to object to to paying

719
00:25:04,910 --> 00:25:07,000
your client, In the context of a a

720
00:25:07,000 --> 00:25:07,956
fourth amendment claim,

721
00:25:08,514 --> 00:25:10,826
I I know in in the lancaster case

722
00:25:10,826 --> 00:25:12,580
that we're pursuing a suit against the officer,

723
00:25:12,739 --> 00:25:15,144
not against the municipality. But what sort of

724
00:25:15,144 --> 00:25:18,167
evidence would we have had to uncover to

725
00:25:18,167 --> 00:25:21,132
trace that constitutional violation in lancaster

726
00:25:21,523 --> 00:25:24,253
to an official policy of the of the

727
00:25:24,709 --> 00:25:25,027
municipality.

728
00:25:25,744 --> 00:25:27,815
I think there it would probably be something

729
00:25:27,815 --> 00:25:29,726
like a failure to train claim.

730
00:25:30,299 --> 00:25:32,693
Which those are kind of an evident beneficiary

731
00:25:32,693 --> 00:25:36,145
uphill battle, but you can hold cities accountable

732
00:25:36,443 --> 00:25:37,480
and and liable.

733
00:25:37,974 --> 00:25:39,972
If you show that they aren't training their

734
00:25:39,972 --> 00:25:41,511
officers to respect people's

735
00:25:42,130 --> 00:25:43,968
constitutional rights. So I think it would probably

736
00:25:43,968 --> 00:25:46,366
be something along those lines because, I mean,

737
00:25:46,445 --> 00:25:46,925
to be honest,

738
00:25:47,659 --> 00:25:49,493
it's sort of you won't find a smoking

739
00:25:49,493 --> 00:25:51,726
gun of, like, we train our officers under

740
00:25:51,726 --> 00:25:52,385
our policy

741
00:25:52,922 --> 00:25:54,995
specifically to ignore the fourth amendment. Right. I

742
00:25:54,995 --> 00:25:56,351
think it'll be more like, well,

743
00:25:57,084 --> 00:25:58,601
the city just didn't brief them up as

744
00:25:58,601 --> 00:26:00,277
much as they should have. And, of course,

745
00:26:00,437 --> 00:26:02,832
to to show that if I'm remembering correctly,

746
00:26:03,391 --> 00:26:04,987
you have to show that the right was

747
00:26:04,987 --> 00:26:07,075
kind of obvious enough that that the city

748
00:26:07,075 --> 00:26:09,463
was being deliberately and indifferent to it by

749
00:26:09,463 --> 00:26:10,975
failing to train the officer, and then it

750
00:26:10,975 --> 00:26:13,282
kinda sounds like we're almost back ending our

751
00:26:13,282 --> 00:26:15,533
way into qualified immunity again because you have

752
00:26:15,533 --> 00:26:18,030
to be able to show that, hey, this

753
00:26:18,090 --> 00:26:19,848
violation was so obvious that it was gonna

754
00:26:19,848 --> 00:26:21,606
happen that the city should have trained its

755
00:26:21,606 --> 00:26:22,645
officers accordingly.

756
00:26:23,219 --> 00:26:25,288
It it almost sounds like at a certain

757
00:26:25,288 --> 00:26:27,835
point, Mon dovetail tails back into qualified immunity.

758
00:26:28,232 --> 00:26:30,755
It's really frustrating, and that's something that we're

759
00:26:30,953 --> 00:26:32,541
trying to fight back against in several of

760
00:26:32,541 --> 00:26:34,630
our cases, but it is hard

761
00:26:35,083 --> 00:26:37,228
when qualified immunity keeps popping up in places

762
00:26:37,228 --> 00:26:38,022
where it doesn't pull on.

763
00:26:39,467 --> 00:26:41,217
And manila, I mean, you're kind of hinting

764
00:26:41,217 --> 00:26:43,286
at this, but this problem, it isn't just

765
00:26:43,286 --> 00:26:46,804
going on in swat raids sort of cases.

766
00:26:47,044 --> 00:26:48,961
Right? At what other context does that come

767
00:26:48,961 --> 00:26:49,280
up in?

768
00:26:50,159 --> 00:26:51,938
Mon can come up in pretty much any

769
00:26:52,317 --> 00:26:53,695
constitutional torque case

770
00:26:54,327 --> 00:26:56,020
I think that it

771
00:26:56,713 --> 00:26:58,327
it is most logical

772
00:26:58,941 --> 00:27:00,555
in cases where

773
00:27:01,264 --> 00:27:03,336
you have lower ranking people who might be

774
00:27:03,336 --> 00:27:05,089
going rogue. I mean, the basic idea of

775
00:27:05,089 --> 00:27:05,987
it is that

776
00:27:06,523 --> 00:27:08,697
municipalities are not supposed to be strictly liable

777
00:27:09,088 --> 00:27:11,316
for the to committed by their employees.

778
00:27:12,350 --> 00:27:14,179
But it has become, you know,

779
00:27:15,213 --> 00:27:15,904
almost the

780
00:27:16,579 --> 00:27:18,190
like a parody of that where

781
00:27:18,800 --> 00:27:19,300
unless

782
00:27:20,387 --> 00:27:23,268
violations are, like, actively caused by a mustache

783
00:27:23,402 --> 00:27:26,208
t, like mayor who's, like, telling people to

784
00:27:26,208 --> 00:27:26,527
do things,

785
00:27:27,486 --> 00:27:28,924
then you can't hold

786
00:27:29,564 --> 00:27:31,801
municipalities is liable. And I I think the

787
00:27:31,801 --> 00:27:33,660
the the weak version of Mon

788
00:27:34,053 --> 00:27:36,038
is not crazy to me. The idea that,

789
00:27:36,197 --> 00:27:38,897
you know, they're... If if someone goes totally

790
00:27:38,897 --> 00:27:39,215
rogue,

791
00:27:40,327 --> 00:27:43,446
that's not the government. That's a government employee

792
00:27:43,446 --> 00:27:44,643
who did something insane.

793
00:27:45,760 --> 00:27:48,473
And, like, acting outside of whatever his capacity

794
00:27:48,473 --> 00:27:49,192
is supposed to Yeah.

795
00:27:50,084 --> 00:27:52,385
Stories about, like, a police officer who's off

796
00:27:52,385 --> 00:27:54,211
duty who puts on his uniform and goes

797
00:27:54,211 --> 00:27:55,901
and and beats up his ex girlfriend's

798
00:27:56,354 --> 00:27:57,227
boyfriend or something.

799
00:27:58,437 --> 00:28:00,670
You know, that seems like pretty far afield

800
00:28:00,670 --> 00:28:02,744
from government action even though he might have,

801
00:28:02,824 --> 00:28:04,339
like, used his government tools.

802
00:28:05,615 --> 00:28:08,203
But, you know, it it has become something

803
00:28:08,260 --> 00:28:10,249
so much more powerful. Where basically,

804
00:28:10,806 --> 00:28:13,510
it's very, very easy for government to say,

805
00:28:13,749 --> 00:28:16,793
well, this this wasn't something that we caused

806
00:28:16,793 --> 00:28:17,532
to happen

807
00:28:18,388 --> 00:28:19,505
directly intentionally.

808
00:28:20,302 --> 00:28:21,897
But more often than not It is some

809
00:28:21,897 --> 00:28:23,652
version of a failure to train. It's it's

810
00:28:23,652 --> 00:28:24,505
negligence. It's

811
00:28:25,419 --> 00:28:27,033
it's a hands off approach

812
00:28:28,124 --> 00:28:30,749
with, you know, real ind to what the

813
00:28:30,749 --> 00:28:32,836
constitution requires. And I I think particularly in

814
00:28:32,836 --> 00:28:35,411
the context of of people like police off

815
00:28:35,710 --> 00:28:38,822
who are dealing with the general public every

816
00:28:38,822 --> 00:28:39,801
day in

817
00:28:40,114 --> 00:28:40,933
in context

818
00:28:41,390 --> 00:28:44,261
where lots of constitutional rights are relevant.

819
00:28:45,219 --> 00:28:47,133
I think it it absolutely should be incumbent

820
00:28:47,133 --> 00:28:49,286
on municipalities to make sure that they are

821
00:28:49,286 --> 00:28:51,293
very, very well. Trained. And I wanna pause

822
00:28:51,293 --> 00:28:54,022
here to emphasize the difference between

823
00:28:54,557 --> 00:28:57,344
municipalities and their liability for their employees versus

824
00:28:57,344 --> 00:28:59,827
the private sector. Which is held to a

825
00:28:59,827 --> 00:29:02,374
a much stricter standard in the sense that,

826
00:29:02,533 --> 00:29:04,864
you know, of course, by curious liability exists

827
00:29:05,160 --> 00:29:06,990
when AAA

828
00:29:06,990 --> 00:29:09,077
delivery driver knocks over your mailbox,

829
00:29:09,477 --> 00:29:11,871
you sue the company. Right? You don't sue

830
00:29:11,871 --> 00:29:14,186
the individual driver, and the law says that

831
00:29:14,186 --> 00:29:16,182
the company is generally liable for the towards

832
00:29:16,182 --> 00:29:17,060
of their employees.

833
00:29:17,473 --> 00:29:19,216
But when it comes to the government and

834
00:29:19,216 --> 00:29:22,094
when it comes to constitutional violations, Mon

835
00:29:22,466 --> 00:29:23,600
establishes this

836
00:29:23,971 --> 00:29:24,471
stricter

837
00:29:24,859 --> 00:29:27,091
higher bar that's much harder for plaintiffs to

838
00:29:27,091 --> 00:29:29,244
prove. Is there any way to make sense

839
00:29:29,244 --> 00:29:31,476
of that besides we're just gonna treat the

840
00:29:31,476 --> 00:29:33,884
government better than we treat private companies? I

841
00:29:33,884 --> 00:29:35,325
mean, I think I I think I gave

842
00:29:35,325 --> 00:29:37,164
probably the the best defensive of it, which

843
00:29:37,164 --> 00:29:37,904
is that

844
00:29:38,205 --> 00:29:38,445
it...

845
00:29:39,565 --> 00:29:40,384
The the

846
00:29:40,684 --> 00:29:43,732
constitution restricts state action And at some point,

847
00:29:44,447 --> 00:29:46,593
there... There's gotta be a bar at which

848
00:29:46,593 --> 00:29:48,898
someone who happens to hold a government office

849
00:29:48,898 --> 00:29:51,298
is doing something, but they're not really exercising

850
00:29:51,298 --> 00:29:53,603
state power. They have gone totally rogue.

851
00:29:55,033 --> 00:29:57,202
And I think, you know, we we should

852
00:29:57,418 --> 00:29:59,166
give remedies to those people anyway.

853
00:30:00,380 --> 00:30:02,799
But I I at least understand the logic

854
00:30:02,859 --> 00:30:05,579
of saying that it's not a constitutional violation

855
00:30:05,579 --> 00:30:08,233
when it's not truly government power being exercised.

856
00:30:08,553 --> 00:30:10,387
But if it's somebody just acting, you know,

857
00:30:10,547 --> 00:30:11,845
in the course of their

858
00:30:12,222 --> 00:30:14,536
employment. Mh. And they cause harm to somebody

859
00:30:14,536 --> 00:30:16,308
else. It doesn't make a lot of sense

860
00:30:16,308 --> 00:30:18,226
to me that we couldn't go to essentially

861
00:30:18,226 --> 00:30:18,965
their boss

862
00:30:19,424 --> 00:30:21,262
and hold the boss liable in the same

863
00:30:21,262 --> 00:30:22,860
way we do for private companies. I do

864
00:30:22,860 --> 00:30:25,050
think it's really government favor.

865
00:30:25,586 --> 00:30:27,500
Yeah. I mean, it seems to me, like,

866
00:30:27,739 --> 00:30:30,768
you know, whether I'm acting as a government

867
00:30:30,768 --> 00:30:32,852
official whether I'm acting. You know, poorly and

868
00:30:32,852 --> 00:30:34,599
malicious religiously and, you know, as this rogue

869
00:30:34,599 --> 00:30:36,346
agent or whether I'm just, you know, doing

870
00:30:36,346 --> 00:30:37,776
my job the way I'm supposed to or

871
00:30:37,776 --> 00:30:39,364
whether I'm just kind of, you know, minding

872
00:30:39,364 --> 00:30:41,032
my own business and something happens.

873
00:30:41,684 --> 00:30:43,999
It feels like the government should have to

874
00:30:43,999 --> 00:30:46,394
pay for that. Somebody made an analogy the

875
00:30:46,394 --> 00:30:47,671
other day of, you know, if you're just

876
00:30:47,671 --> 00:30:49,587
walking through target and your coat brushes up

877
00:30:49,587 --> 00:30:51,439
against a ace or something. You have to

878
00:30:51,439 --> 00:30:53,117
pay for that vase the same way that

879
00:30:53,117 --> 00:30:54,476
you would if you were walking through targets,

880
00:30:54,635 --> 00:30:57,453
smashing faces intentionally. Right? And and so

881
00:30:57,832 --> 00:30:59,910
it seems like that same principle should apply

882
00:30:59,910 --> 00:31:02,478
to the government, and, you know, it's maybe

883
00:31:02,478 --> 00:31:05,589
an uphill battle to to make that reality

884
00:31:05,589 --> 00:31:08,061
happen in court. Yeah. It's definitely an uphill

885
00:31:08,061 --> 00:31:09,976
battle, but I think it's important to just

886
00:31:09,976 --> 00:31:10,430
emphasize how

887
00:31:11,350 --> 00:31:13,750
harmful this is to the individuals who suffer

888
00:31:13,750 --> 00:31:15,350
at the hands of... Whether you wanna call

889
00:31:15,350 --> 00:31:16,470
it government and incompetence,

890
00:31:17,269 --> 00:31:18,710
or individual officer,

891
00:31:19,190 --> 00:31:21,044
malicious ness, or in the case of Vicki

892
00:31:21,204 --> 00:31:24,164
Baker, the government doing arguably everything that it

893
00:31:24,164 --> 00:31:26,025
should have done, but still leaving the homeowner

894
00:31:26,085 --> 00:31:26,724
with the bag.

895
00:31:28,018 --> 00:31:30,637
These are individual people and not like knocking

896
00:31:30,637 --> 00:31:32,462
something over at Target where that's a large

897
00:31:32,462 --> 00:31:33,890
company that can sort of eat the loss.

898
00:31:34,366 --> 00:31:36,112
I mean, losing your entire home,

899
00:31:36,683 --> 00:31:38,664
or losing large features of your home as

900
00:31:38,664 --> 00:31:40,962
it's destroyed by a swat raid. And then

901
00:31:40,962 --> 00:31:43,419
just being left, totally up the river on

902
00:31:43,419 --> 00:31:43,919
that

903
00:31:44,229 --> 00:31:46,387
really destabilize families and makes it a lot

904
00:31:46,387 --> 00:31:47,985
harder for them to just go about their

905
00:31:47,985 --> 00:31:49,983
day to day lives or trust government or

906
00:31:49,983 --> 00:31:50,542
other people.

907
00:31:51,182 --> 00:31:54,544
So what is the solution? To making people

908
00:31:54,544 --> 00:31:58,036
whole when the government violates their rights. And

909
00:31:58,036 --> 00:32:00,259
specifically, you know, destroys their homes, destroys their

910
00:32:00,259 --> 00:32:01,608
stuff, you know, up ends their lives.

911
00:32:02,418 --> 00:32:03,614
I think at the very least if you

912
00:32:03,614 --> 00:32:04,331
break it, you buy it.

913
00:32:06,403 --> 00:32:08,714
And and then we can have further conversations

914
00:32:08,714 --> 00:32:11,037
about things like, you know, the effects of

915
00:32:11,037 --> 00:32:13,207
the trauma of being rated or or

916
00:32:14,058 --> 00:32:15,807
how that might affect you and your family.

917
00:32:16,125 --> 00:32:18,748
But just at a bare minimum. If government

918
00:32:18,748 --> 00:32:19,248
agents

919
00:32:19,637 --> 00:32:21,464
in the course of their job, whether they're

920
00:32:21,464 --> 00:32:22,917
acting correctly or ne,

921
00:32:23,688 --> 00:32:26,547
break the possessions of innocent owners. They need

922
00:32:26,547 --> 00:32:27,342
to be paid back.

923
00:32:27,913 --> 00:32:30,217
So so how do we actually get there?

924
00:32:30,455 --> 00:32:31,886
I mean, we've talked about some of these

925
00:32:31,886 --> 00:32:33,316
cases and we're trying to do this in

926
00:32:33,316 --> 00:32:35,476
court and, you know, the deck is... Very

927
00:32:35,476 --> 00:32:36,904
much stacked against us in a lot of

928
00:32:36,904 --> 00:32:39,443
ways, but we're getting there. Keith, I know

929
00:32:39,443 --> 00:32:42,062
that you're also working on, you know, not

930
00:32:42,062 --> 00:32:43,451
to turn you from C

931
00:32:44,305 --> 00:32:46,533
interviewing. Don't mind. But you're working also on

932
00:32:46,533 --> 00:32:49,000
some legislative things. That's right. So, you know,

933
00:32:49,080 --> 00:32:50,911
as always at I j, you know, we

934
00:32:50,911 --> 00:32:52,438
we we try to lit case is to

935
00:32:52,438 --> 00:32:54,110
win them. We try to to change the

936
00:32:54,110 --> 00:32:56,658
law through litigation, but we also recognize that

937
00:32:56,658 --> 00:32:59,365
legislative fixes are important. And so we've developed

938
00:32:59,365 --> 00:33:02,728
model legislation called tis protecting everyone's constitutional rights

939
00:33:02,728 --> 00:33:05,440
act, Pe for short because acronyms are important.

940
00:33:05,599 --> 00:33:06,158
We all know that.

941
00:33:07,195 --> 00:33:09,268
And what Pe says is we're gonna create

942
00:33:09,268 --> 00:33:11,516
a state cause of action. And it's going

943
00:33:11,516 --> 00:33:14,226
to mirror section 19 83. It's gonna hold

944
00:33:14,226 --> 00:33:18,154
the state liable when its officers commit constitutional

945
00:33:18,292 --> 00:33:18,451
violations.

946
00:33:19,104 --> 00:33:21,336
But we're going to explicitly hold the government

947
00:33:21,336 --> 00:33:23,908
liable. We're not gonna be holding individual officers

948
00:33:23,966 --> 00:33:24,365
liable.

949
00:33:24,843 --> 00:33:27,155
And so it's basically a state's way of...

950
00:33:27,329 --> 00:33:29,398
Saying, you know, we can't fix section 19

951
00:33:29,398 --> 00:33:32,422
83. That's a federal statute interpreted by federal

952
00:33:32,422 --> 00:33:34,331
courts, but what we can do is we

953
00:33:34,331 --> 00:33:36,082
can open the state courthouse stores.

954
00:33:36,734 --> 00:33:39,845
And so Pet is our way of giving

955
00:33:39,845 --> 00:33:41,918
states, perhaps the best way to do that.

956
00:33:42,397 --> 00:33:45,428
And we've seen some success early in states

957
00:33:45,428 --> 00:33:46,225
like New Mexico.

958
00:33:46,639 --> 00:33:47,512
That have adopted,

959
00:33:47,989 --> 00:33:49,180
very similar language,

960
00:33:49,657 --> 00:33:52,119
and the the results that we're starting to

961
00:33:52,119 --> 00:33:53,945
see there are positive. Right? I mean, we're

962
00:33:53,945 --> 00:33:54,605
we're seeing,

963
00:33:55,312 --> 00:33:58,118
state government behaving in a way that that

964
00:33:58,414 --> 00:34:00,562
essentially recognizes that there's now a system of

965
00:34:00,562 --> 00:34:03,198
accountability in place. And so, you know, the

966
00:34:03,198 --> 00:34:05,261
more states that can buy into that. The

967
00:34:05,261 --> 00:34:07,721
more states that can adopt Pe and other

968
00:34:07,721 --> 00:34:10,678
models of legislation. You know, the more opportunities,

969
00:34:10,917 --> 00:34:12,829
victims of this kind of abuse are going

970
00:34:12,829 --> 00:34:13,387
to have,

971
00:34:14,502 --> 00:34:16,909
because as as both Jeff, and Dylan have

972
00:34:16,909 --> 00:34:19,309
shown, Like, right now, we're we're kind of

973
00:34:19,309 --> 00:34:20,670
in a a tough spot with the courts.

974
00:34:20,909 --> 00:34:22,670
It's hard to win these types of cases.

975
00:34:23,150 --> 00:34:25,661
And so these these kinds of state legislative

976
00:34:25,796 --> 00:34:27,700
fixes I think are gonna be, you know,

977
00:34:27,858 --> 00:34:29,525
1 of the most concrete ways that we

978
00:34:29,525 --> 00:34:31,190
can move the ball forward here over the

979
00:34:31,190 --> 00:34:33,599
next few years. But... Yeah. So it... You

980
00:34:33,599 --> 00:34:35,599
know, that can sound a little bleak on

981
00:34:35,599 --> 00:34:37,679
the court side even though it's optimistic on

982
00:34:37,679 --> 00:34:39,359
the list It's meant to be. I promise.

983
00:34:40,175 --> 00:34:42,974
But we are still optimistic about these cases

984
00:34:42,974 --> 00:34:44,735
that we're bringing and and we're bringing them

985
00:34:44,735 --> 00:34:47,535
even beyond Texas. So, you know, why should

986
00:34:47,535 --> 00:34:50,015
we... Feel optimistic about what's happening in the

987
00:34:50,015 --> 00:34:51,761
courts now. Yeah. So I think on the

988
00:34:51,761 --> 00:34:54,778
fourth amendment front specifically. There are 4 circuits

989
00:34:54,778 --> 00:34:56,778
who have taken the Gary. Garrison case, I

990
00:34:56,778 --> 00:34:58,787
was talking about a little bit earlier seriously

991
00:34:59,081 --> 00:35:01,885
and said that qualified immunity doesn't protect officers

992
00:35:02,100 --> 00:35:03,768
when they have every reason to know that

993
00:35:03,768 --> 00:35:05,198
they're ordering a raid on the wrong house.

994
00:35:05,849 --> 00:35:06,885
But even more broadly,

995
00:35:07,364 --> 00:35:09,197
it's important to get these cases up in

996
00:35:09,197 --> 00:35:11,908
front of the Supreme Court sometime soon so

997
00:35:11,908 --> 00:35:13,582
that we can at least have some clarity

998
00:35:13,582 --> 00:35:16,625
about what... Plaintiffs in under federal law, cannon

999
00:35:16,625 --> 00:35:18,936
can't bring claims for. So we have cases

1000
00:35:18,936 --> 00:35:21,327
in south Bend, Santa Monica. It's not just

1001
00:35:21,486 --> 00:35:21,805
Texas.

1002
00:35:22,938 --> 00:35:23,977
Even though we do have a lot of

1003
00:35:23,977 --> 00:35:26,775
cases in Texas, but our mission is sort

1004
00:35:26,775 --> 00:35:28,932
of to get 1 of these cases, multiple

1005
00:35:28,932 --> 00:35:30,770
of these cases in front of the supreme

1006
00:35:30,930 --> 00:35:32,961
Court, so that there can be some final

1007
00:35:33,259 --> 00:35:34,556
about what exactly

1008
00:35:35,332 --> 00:35:38,044
is protected and and how far can the

1009
00:35:38,044 --> 00:35:40,357
police go before they have to start answering

1010
00:35:40,357 --> 00:35:40,995
for what they've done.

1011
00:35:41,648 --> 00:35:43,239
Right. It... It's not even that we need

1012
00:35:43,239 --> 00:35:43,557
to get

1013
00:35:44,511 --> 00:35:46,182
Overrule, though would be great if we could.

1014
00:35:46,579 --> 00:35:48,273
It's just that we need to get,

1015
00:35:48,900 --> 00:35:50,195
the the crazier

1016
00:35:50,965 --> 00:35:52,396
interpretations of Mon overrule.

1017
00:35:53,110 --> 00:35:55,176
There are cases that apply In a way

1018
00:35:55,176 --> 00:35:56,447
that is not totally crazy.

1019
00:35:57,577 --> 00:35:58,931
Even if it's not a precedent that we

1020
00:35:58,931 --> 00:36:01,321
love and a lot more cases could go

1021
00:36:01,321 --> 00:36:02,436
forward under those precedent.

1022
00:36:03,472 --> 00:36:06,181
In the fifth amendment, the swat taking context,

1023
00:36:07,075 --> 00:36:08,035
I think there are a lot of reasons

1024
00:36:08,035 --> 00:36:08,835
to be optimistic,

1025
00:36:09,474 --> 00:36:11,555
there really aren't that many precedence out there,

1026
00:36:12,195 --> 00:36:13,335
and, significantly,

1027
00:36:14,355 --> 00:36:16,289
even though we've lost a few cases. We're

1028
00:36:16,289 --> 00:36:17,963
not losing them in the same way. Like,

1029
00:36:18,122 --> 00:36:20,115
every time we have a new case, the

1030
00:36:20,115 --> 00:36:22,905
new court disagrees with the previous court and

1031
00:36:22,905 --> 00:36:24,754
comes up with a different reason. And then

1032
00:36:24,754 --> 00:36:26,432
we have to explain why that reason is

1033
00:36:26,432 --> 00:36:28,910
also wrong. But eventually, they're gonna run out

1034
00:36:28,910 --> 00:36:30,828
of reasons for us to lose these.

1035
00:36:31,867 --> 00:36:34,356
I think it's also significant that Texas and

1036
00:36:34,753 --> 00:36:37,056
Minnesota, as a matter of of their own

1037
00:36:37,056 --> 00:36:39,996
state constitutional law already require compensation for claims

1038
00:36:39,996 --> 00:36:40,393
like these.

1039
00:36:41,525 --> 00:36:44,324
So it it really demonstrates that, the rule

1040
00:36:44,324 --> 00:36:46,565
that we're asking for is entirely workable and

1041
00:36:46,565 --> 00:36:48,565
hasn't caused, major problems.

1042
00:36:49,856 --> 00:36:51,691
So I I think that, you know, if

1043
00:36:51,691 --> 00:36:53,286
if the case goes to the Supreme Court,

1044
00:36:53,844 --> 00:36:54,983
I I think we

1045
00:36:55,360 --> 00:36:58,072
absolutely win. I think the question is just

1046
00:36:58,072 --> 00:36:59,923
getting it there. And getting a really clean

1047
00:36:59,923 --> 00:37:00,083
split.

1048
00:37:01,122 --> 00:37:02,401
But no 1 has come up with a

1049
00:37:02,401 --> 00:37:05,938
really persuasive reason why under a, a normal

1050
00:37:05,997 --> 00:37:07,995
understanding of the fifth amendment, those claims shouldn't

1051
00:37:07,995 --> 00:37:10,077
go forward. Yeah. It seems like courts are

1052
00:37:10,077 --> 00:37:12,612
kind of... They kind of reflex understand what's

1053
00:37:12,612 --> 00:37:14,911
right. What's happening here isn't right, and they

1054
00:37:14,911 --> 00:37:15,624
just kind of need.

1055
00:37:16,432 --> 00:37:18,417
To show up all the holes around it

1056
00:37:18,417 --> 00:37:19,688
so that they can get to the right

1057
00:37:19,688 --> 00:37:21,752
answer. Yeah. I mean, there... There's this version

1058
00:37:21,752 --> 00:37:23,181
of of the the old,

1059
00:37:24,133 --> 00:37:25,030
judicial conservative

1060
00:37:25,499 --> 00:37:25,738
who,

1061
00:37:26,775 --> 00:37:30,521
every time they see a constitutional claim. They

1062
00:37:30,521 --> 00:37:32,036
think that their job is a good job

1063
00:37:32,036 --> 00:37:33,844
is to reject it unless there's a case

1064
00:37:34,044 --> 00:37:36,355
on point that absolutely ties their hands and

1065
00:37:36,355 --> 00:37:37,550
forces them to accept it.

1066
00:37:38,586 --> 00:37:40,658
So, you know, we've run up against a

1067
00:37:40,658 --> 00:37:41,670
few of those judges

1068
00:37:42,186 --> 00:37:43,933
but, you know, I'm I'm hopeful that we

1069
00:37:43,933 --> 00:37:45,387
will eventually exhaust

1070
00:37:46,157 --> 00:37:46,713
their endurance.

1071
00:37:48,064 --> 00:37:49,652
Sounds great. Well, thank you so much, guys

1072
00:37:49,652 --> 00:37:51,242
for joining us today. Thank you.

1073
00:37:52,213 --> 00:37:54,366
Thanks for watching today's episode. We got a

1074
00:37:54,366 --> 00:37:55,961
lot of great comments in our last episode,

1075
00:37:56,121 --> 00:37:57,955
so let's dive in and respond to a

1076
00:37:57,955 --> 00:37:58,194
few.

1077
00:37:59,072 --> 00:38:01,225
Tay za day of chocolate rain fame writes,

1078
00:38:01,719 --> 00:38:05,071
it's astounding that items criminal disappeared in the

1079
00:38:05,071 --> 00:38:08,184
process of inventory them for alleged crimes. Well,

1080
00:38:08,344 --> 00:38:10,907
that's exactly right, Tay. At every stage of

1081
00:38:10,907 --> 00:38:13,468
the rate on Us private vault from planning

1082
00:38:13,602 --> 00:38:16,401
to executing and documenting the seizure and ins

1083
00:38:16,535 --> 00:38:17,589
forfeit proceedings

1084
00:38:17,979 --> 00:38:21,251
the Fbi's failure to comply with the constitution

1085
00:38:21,251 --> 00:38:22,448
is truly astounding.

1086
00:38:23,007 --> 00:38:24,523
You might even say it's enough to make

1087
00:38:24,842 --> 00:38:27,330
Angels cry and shake their heads in shame.

1088
00:38:28,207 --> 00:38:29,802
And if you don't get that last reference,

1089
00:38:29,962 --> 00:38:32,194
do yourself a favor in Google chocolate reign

1090
00:38:32,194 --> 00:38:34,130
to check out ta immortal

1091
00:38:34,587 --> 00:38:37,229
contribution to viral Internet videos. Thanks for watching

1092
00:38:37,308 --> 00:38:37,467
Tae.

1093
00:38:38,502 --> 00:38:41,605
F leonard writes, c grandma stuffing her mattress

1094
00:38:41,605 --> 00:38:43,514
with cash. Wasn't so crazy after all.

1095
00:38:44,564 --> 00:38:46,955
Maybe tempur pe needs to think about using

1096
00:38:46,955 --> 00:38:49,984
a new slogan. Great sleep, even better protection

1097
00:38:49,984 --> 00:38:50,861
against Fbi rates.

1098
00:38:51,897 --> 00:38:55,094
Ko the third rights, Steve Let brought this

1099
00:38:55,094 --> 00:38:57,478
case in many others to my attention. He

1100
00:38:57,478 --> 00:38:59,624
has took a strong supporter of the Institute

1101
00:38:59,624 --> 00:39:01,949
for Justice, and I donate them as much

1102
00:39:01,949 --> 00:39:02,586
as possible.

1103
00:39:03,065 --> 00:39:04,362
They are 1 of the few

1104
00:39:04,818 --> 00:39:06,333
organizations that fights for the little guy.

1105
00:39:07,210 --> 00:39:08,667
Thanks for your support K.

1106
00:39:09,380 --> 00:39:11,300
We're big fans of Steve Let work too,

1107
00:39:11,619 --> 00:39:13,860
and we appreciate all the attention he helps

1108
00:39:13,860 --> 00:39:14,820
bring to our cases.

1109
00:39:15,460 --> 00:39:18,355
On issues like forfeit, it's important to talk

1110
00:39:18,355 --> 00:39:20,275
about what's happening and why it matters.

1111
00:39:20,914 --> 00:39:23,474
Because far too often, the government gets away

1112
00:39:23,474 --> 00:39:25,474
with abusing people's rights when they do it

1113
00:39:25,474 --> 00:39:26,685
quietly, and discreet.

1114
00:39:27,401 --> 00:39:30,024
Voices like Steve Le helps to bring these

1115
00:39:30,024 --> 00:39:32,250
issues to light and we're so glad that

1116
00:39:32,250 --> 00:39:32,965
he led you to us.

1117
00:39:34,078 --> 00:39:36,715
Rex Parker writes why can't the Fbi be

1118
00:39:36,715 --> 00:39:39,255
charged with crimes and send people to prison.

1119
00:39:39,573 --> 00:39:42,114
Why can't the Fbi just be soon for

1120
00:39:42,114 --> 00:39:43,146
damages above?

1121
00:39:43,716 --> 00:39:47,130
Returning property and charged punitive if they don't

1122
00:39:47,130 --> 00:39:48,083
return that property.

1123
00:39:48,878 --> 00:39:51,181
That's a great question, Rex, and the answer

1124
00:39:51,181 --> 00:39:52,331
it a little complicated.

1125
00:39:53,260 --> 00:39:55,245
Contrary to what you might see in movies

1126
00:39:55,245 --> 00:39:58,421
and Tv shows, victims of crimes don't always

1127
00:39:58,421 --> 00:40:01,299
get to decide whether to press charges against

1128
00:40:01,299 --> 00:40:02,338
the people who harm them.

1129
00:40:03,217 --> 00:40:05,854
Instead, those decisions are made by state and

1130
00:40:05,854 --> 00:40:06,833
federal prosecutors.

1131
00:40:07,372 --> 00:40:10,183
And because those prosecutors work along as side

1132
00:40:10,183 --> 00:40:13,395
the government officials who harmed you, they're considerably

1133
00:40:13,453 --> 00:40:15,686
less likely to bring charges against them when

1134
00:40:15,686 --> 00:40:16,085
they do.

1135
00:40:16,883 --> 00:40:20,165
The result, most government officials who violate people's

1136
00:40:20,165 --> 00:40:22,570
rights in a way that violates criminal law

1137
00:40:22,626 --> 00:40:25,007
don't get charged, much less convicted.

1138
00:40:25,960 --> 00:40:27,786
And the reason that it's difficult to sue

1139
00:40:27,786 --> 00:40:30,661
the Fbi for monetary and punitive damages is

1140
00:40:30,661 --> 00:40:33,524
because of a doctrine called sovereign immunity, which

1141
00:40:33,524 --> 00:40:35,829
draws its name from the idea that the

1142
00:40:35,829 --> 00:40:37,829
sovereign king can do no wrong.

1143
00:40:38,702 --> 00:40:40,844
Sovereign immunity effectively says that you don't get

1144
00:40:40,844 --> 00:40:42,613
to sue the government for damages

1145
00:40:43,065 --> 00:40:45,857
unless it expressly allows you to do so.

1146
00:40:46,333 --> 00:40:48,874
And as you might guess, the government doesn't

1147
00:40:48,874 --> 00:40:50,382
do that all that often.

1148
00:40:51,255 --> 00:40:53,955
And that's why suits against individual officers and

1149
00:40:53,955 --> 00:40:56,604
you the legal doctrines like qualified immunity that

1150
00:40:56,604 --> 00:40:58,759
prevent them are so important.

1151
00:40:59,318 --> 00:41:01,553
They're often the only way for a victim

1152
00:41:01,553 --> 00:41:03,011
of government abuse to be

1153
00:41:03,484 --> 00:41:05,402
or made whole for past misconduct.

1154
00:41:06,121 --> 00:41:08,759
That's why I j fights so hard to

1155
00:41:08,759 --> 00:41:11,896
convince courts and legislature to in qualified immunity

1156
00:41:12,115 --> 00:41:14,440
and give faith everyone the chance they deserve

1157
00:41:14,440 --> 00:41:15,554
to vin their rights.

1158
00:41:16,668 --> 00:41:19,056
Bad man 20 99 rights, I got a

1159
00:41:19,056 --> 00:41:22,413
question, doesn't asset forfeit law violate up part

1160
00:41:22,413 --> 00:41:24,323
of the fourteenth amendment where it says that

1161
00:41:24,323 --> 00:41:26,710
you can't be denied your property without due

1162
00:41:26,710 --> 00:41:27,108
process.

1163
00:41:27,903 --> 00:41:31,126
Thank goodness you're here, bad man You're absolutely

1164
00:41:31,264 --> 00:41:33,257
right that 1 of the biggest problems with

1165
00:41:33,257 --> 00:41:35,568
civil asset forfeit is that it violates due

1166
00:41:35,568 --> 00:41:35,967
process,

1167
00:41:36,525 --> 00:41:38,119
often in more than 1 way.

1168
00:41:38,773 --> 00:41:41,248
Sometimes, the government will seize property and hold

1169
00:41:41,248 --> 00:41:43,643
on it for months before property owners give

1170
00:41:43,643 --> 00:41:45,798
an opportunity to can test that in court.

1171
00:41:46,755 --> 00:41:49,487
Other time, the government won't give property owners

1172
00:41:49,487 --> 00:41:51,805
any idea of why they took the property

1173
00:41:51,805 --> 00:41:54,202
in the first place, making it difficult if

1174
00:41:54,202 --> 00:41:56,494
not impossible for the owner to figure out

1175
00:41:56,774 --> 00:41:58,926
the best way to get their property back.

1176
00:41:59,723 --> 00:42:03,310
Some other times, government has financial incentive to

1177
00:42:03,310 --> 00:42:04,288
forfeit property

1178
00:42:04,665 --> 00:42:06,745
because the law allows the government to keep

1179
00:42:06,745 --> 00:42:07,301
the proceeds.

1180
00:42:08,016 --> 00:42:10,398
We think all of this violates due process,

1181
00:42:10,715 --> 00:42:12,701
which is why we at I are always

1182
00:42:12,701 --> 00:42:14,862
trying to bring new case it is challenging

1183
00:42:14,862 --> 00:42:17,171
the different ways that government tries to forfeit

1184
00:42:17,171 --> 00:42:17,671
property

1185
00:42:18,047 --> 00:42:21,152
without following the constitution. With your help, we

1186
00:42:21,152 --> 00:42:22,825
hope to 1 day put an into it

1187
00:42:22,825 --> 00:42:22,880
is

1188
00:42:23,713 --> 00:42:27,130
Maria Mango writes, why is carrying cash in

1189
00:42:27,130 --> 00:42:28,083
itself a crime?

1190
00:42:28,639 --> 00:42:31,914
Well, carrying cash isn't a crime? Which is

1191
00:42:31,914 --> 00:42:34,875
why the government's decision to seize forfeit is

1192
00:42:34,875 --> 00:42:35,695
so problematic.

1193
00:42:36,474 --> 00:42:38,554
Most of our cases involve people who are

1194
00:42:38,554 --> 00:42:40,885
traveling with cash and who are stopped, by

1195
00:42:40,965 --> 00:42:44,373
Tsa agents, border patrol or even sheriff and

1196
00:42:44,373 --> 00:42:45,324
have their money seized.

1197
00:42:46,195 --> 00:42:48,753
The government claims that it's because carrying large

1198
00:42:48,753 --> 00:42:50,828
amounts of cash can indicate that a person

1199
00:42:50,828 --> 00:42:54,261
is involved in certain illicit activity. Usually drug

1200
00:42:54,261 --> 00:42:54,501
dealing.

1201
00:42:55,299 --> 00:42:57,710
But lots of people carry cash for yearly

1202
00:42:57,710 --> 00:42:58,429
lawful reasons.

1203
00:42:58,989 --> 00:43:01,550
Past I client, kermit warren flew with cash

1204
00:43:01,550 --> 00:43:03,710
from New Orleans to Ohio to buy a

1205
00:43:03,710 --> 00:43:05,723
new tow truck for his business this. But

1206
00:43:06,042 --> 00:43:09,634
Ohio Dea officials stopped kermit and seized his

1207
00:43:09,634 --> 00:43:11,709
money, claiming that he was using it to

1208
00:43:11,709 --> 00:43:12,267
buy drugs.

1209
00:43:13,145 --> 00:43:15,554
That's when I stepped in and helped kermit

1210
00:43:15,554 --> 00:43:16,512
get his money back.

1211
00:43:17,230 --> 00:43:20,182
Traveling with cash isn't illegal, and it's not

1212
00:43:20,182 --> 00:43:22,429
a reason for government and officials to stop

1213
00:43:22,429 --> 00:43:24,441
and harass law abiding citizens

1214
00:43:24,817 --> 00:43:27,523
much less, try and take their hard earned

1215
00:43:27,523 --> 00:43:27,762
money.

1216
00:43:28,638 --> 00:43:31,043
Well, that's All today, thanks again for watching

1217
00:43:31,043 --> 00:43:32,723
and make sure to subscribe and tune in

1218
00:43:32,723 --> 00:43:33,683
to our next episode.