California State Legislature, 2013–2014 session

Transcription

- "SUPREME COURT: THE TERM IN REVIEW," AN FJTN PROGRAM FOR JUDGES, STAFF ATTORNEYS, AND LAW CLERKS. NOW, FROM THE TELEVISION STUDIOS OF THE FEDERAL JUDICIAL CENTER IN WASHINGTON, DC, YOUR HOST JOHN COOKE. - HELLO. I'M JOHN COOKE, DEPUTY DIRECTOR OF THE FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR'S "SUPREME COURT: THE TERM IN REVIEW," OUR ANNUAL LOOK AT THE DECISIONS REACHED BY THE SUPREME COURT THAT ARE MOST LIKELY TO AFFECT THE WORK OF FEDERAL JUDGES. THE COURT HANDED DOWN 67 SIGNED OPINIONS AFTER ARGUMENT THIS TERM AND 5 PER CURIAM DECISIONS. WE'LL DISCUSS 44 OF THOSE DECISIONS. IN 47 OF THE 72 DECISIONS THIS TERM, ALL PARTICIPATING JUSTICES AGREED AT LEAST ON THE CENTRAL RESULT. ONLY 10 CASES WERE DECIDED 5-4. SEVERAL DECISIONS ATTRACTED CONSIDERABLE NEWS COVERAGE. THESE INCLUDED<i> BURWELL V. HOBBY LOBBY,</i> WHICH ACCORDED TO CLOSELY HELD CORPORATIONS A RELIGIOUS EXEMPTION FROM PROVIDING EMPLOYEES WITH CERTAIN FORMS OF CONTRACEPTION UNDER THE AFFORDABLE CARE ACT, AND<i> McCUTCHEON V. FEC,</i> WHICH STRUCK DOWN AGGREGATE LIMITS ON CAMPAIGN CONTRIBUTIONS AS A VIOLATION OF THE FIRST AMENDMENT. WE'LL DISCUSS THOSE DECISIONS, BUT WE'LL FOCUS MORE ON MORE COMMON ISSUES, LIKE SEARCH AND SEIZURE, CRIMINAL LAW, CIVIL RIGHTS, AND FEDERAL PROCEDURE. WE'RE FORTUNATE TO HAVE OUR EXPERT FACULTY WITH US AGAIN TO EXPLORE AND EXPLAIN THIS TERM'S DECISIONS. THEY ARE ERWIN CHEMERINSKY, DEAN OF THE UNIVERSITY OF CALIFORNIA AT IRVINE LAW SCHOOL; PROFESSOR EVAN LEE OF THE HASTINGS COLLEGE OF LAW IN SAN FRANCISCO; PROFESSOR LAURIE LEVENSON OF LOYOLA LAW SCHOOL IN LOS ANGELES; AND PROFESSOR SUZANNA SHERRY OF VANDERBILT UNIVERSITY LAW SCHOOL. IN ADDITION, WE'LL SPEAK WITH PROFESSOR MICHELLE HARNER OF THE UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW ABOUT THIS TERM'S IMPORTANT BANKRUPTCY DECISIONS AND PROFESSOR JOHN R. THOMAS OF GEORGETOWN UNIVERSITY LAW CENTER ON THIS TERM'S PATENT LAW AND COPYRIGHT DECISIONS. THE CENTER'S BETH WIGGINS AND JIM CHANCE WILL MODERATE OUR DISCUSSIONS. AS YOU KNOW, SINCE YOU'RE WATCHING THIS PROGRAM, IT IS AVAILABLE TO YOU EITHER AS STREAMING VIDEO ON OUR INTERNET SITE, FJC ONLINE, OR ON DVD FROM OUR INFORMATION SERVICES OFFICE. AS ALWAYS, THERE'S AN OUTLINE OF THE CASES WE'LL DISCUSS IN THE ORDER WE'LL DISCUSS THEM. THESE WRITTEN MATERIALS ALSO INCLUDE AN APPENDIX WITH BRIEF SUMMARIES OF THE TERM'S CASES THAT WE WILL NOT DISCUSS TODAY. THE ONLINE SUMMARIES OF EACH CASE ARE LINKED TO THE FULL OPINIONS. YOU'LL ALSO FIND MATERIALS YOU'LL NEED TO APPLY FOR CLE CREDIT FOR WATCHING THIS PROGRAM. YOU'LL BE ABLE TO LINK TO THESE MATERIALS FROM THE SAME WEBPAGE AT FJC ONLINE ON WHICH THIS VIDEO APPEARS. YOU'LL FIND AN EVALUATION FORM FOR THIS PROGRAM ON THAT PAGE. IT'S AN ONLINE SURVEY, SO ALL YOU NEED TO DO IS ANSWER THE QUESTIONS AND HIT SEND. PLEASE FILL IT OUT. IT'S THE ONLY WAY FOR US TO KNOW IF YOU FOUND THIS PROGRAM USEFUL AND INTERESTING AND HOW WE CAN IMPROVE IT IN THE FUTURE. NOW, HERE ARE BETH AND JIM AND OUR FACULTY TO START THE DISCUSSION. WE BEGIN WITH FREEDOM OF SPEECH AND RELIGION. - IS YOUR CLAIM LIMITED TO SENSITIVE MATERIALS LIKE CONTRACEPTIVES, OR DOES IT INCLUDE ITEMS LIKE BLOOD TRANSFUSION, VACCINES? FOR SOME RELIGIONS, PRODUCTS MADE OF PORK? IS ANY CLAIM UNDER YOUR THEORY THAT HAS A RELIGIOUS BASIS, COULD AN EMPLOYER PRECLUDE THE USE OF THOSE ITEMS AS WELL? - WHAT ARE THE LIMITS OF RELIGIOUS FREEDOM? WHO POSSESSES IT, AND WHAT CAN THE GOVERNMENT DO UNDER FEDERAL LAW BEFORE IT UNLAWFULLY BURDENS THAT FREEDOM? THOSE WERE THE QUESTIONS RAISED IN WHAT WERE PERHAPS THIS TERM'S MOST ANTICIPATED DECISIONS, WHICH CAME TO BE KNOWN COLLECTIVELY AS THE HOBBY LOBBY CASE. HELLO. I'M JIM CHANCE. THE ORIGINAL CLAIMS WERE BROUGHT BY THE OWNERS OF TWO CLOSELY HELD CORPORATIONS-- THE HAHN FAMILY, WHO OWN THE CONESTOGA WOOD SPECIALTIES CORPORATION, AND THE GREENS, WHO OWN HOBBY LOBBY STORES INCORPORATED. BOTH FAMILIES PROFESS FUNDAMENTAL CHRISTIAN VALUES AND CLAIM THAT REQUIRING THEIR CORPORATIONS TO PROVIDE CERTAIN KINDS OF CONTRACEPTION THROUGH THE EMPLOYEES' HEALTH PLANS WOULD VIOLATE THEIR RELIGIOUS FREEDOM UNDER THE RELIGIOUS FREEDOM RESTORATION ACT, OR RFRA. NOW, RFRA STATES THAT THE GOVERNMENT SHALL NOT SUBSTANTIALLY BURDEN A PERSON'S EXERCISE OF RELIGION EVEN IF THE BURDEN RESULTS FROM A RULE OF GENERAL APPLICABILITY. IN OTHER WORDS, EVEN A LAW THAT APPLIES TO EVERYONE EQUALLY AND IS NOT TARGETED AT RELIGIOUS PRACTICE CAN BE FOUND TO SUBSTANTIALLY BURDEN A PERSON'S RELIGIOUS FREEDOM. THE PERSON CLAIMING THE SUBSTANTIAL BURDEN IS ENTITLED TO AN EXEMPTION FROM THE GENERAL RULE UNLESS THE GOVERNMENT CAN PROVE THE ALLEGED BURDEN IS, FIRST, IN FURTHERANCE OF A COMPELLING GOVERNMENTAL INTEREST, AND SECOND, IS THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT COMPELLING GOVERNMENTAL INTEREST. SO, WHAT WERE THE MAJOR QUESTIONS THE COURT HAD TO ADDRESS HERE, LAURIE? - JIM, THERE WERE ABOUT 4 QUESTIONS HERE. THE FIRST WAS, DID THESE CORPORATIONS QUALIFY AS PERSONS UNDER THE RFRA ACT? SECOND, IF SO, DID THE MANDATE TO PROVIDE THE CONTRACEPTIVE COVERAGE IMPOSE A SUBSTANTIAL BURDEN ON THEIR EXERCISE OF RELIGION? THIRD, IF IT DID IMPOSE THAT SUBSTANTIAL BURDEN, WAS IT IN FURTHERANCE OF A COMPELLING GOVERNMENT INTEREST? AND FINALLY, AND IMPORTANTLY, IS THIS MANDATE THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT INTEREST? - AND HOW DID THE COURT ANSWER THOSE QUESTIONS? - THE SUPREME COURT HELD 5-4 THAT THIS VIOLATED THE RELIGIOUS FREEDOM RESTORATION ACT TO REQUIRE THAT CLOSE CORPORATIONS PROVIDE CONTRACEPTIVES TO THEIR EMPLOYEES THAT THE COMPANY FINDS TO BE RELIGIOUSLY OBJECTIONABLE. THE SUPREME COURT OPINION WAS WRITTEN BY JUSTICE ALITO. THE COURT SAID THAT CORPORATIONS ARE PERSONS WHO ARE PROTECTED UNDER THE RELIGIOUS FREEDOM RESTORATION ACT. THE COURT SAID THAT THESE PERSONS, CORPORATIONS, CAN CLAIM TO HAVE FREE EXERCISE OF RELIGION. THE COURT SAID THE OWNERS SHOULDN'T HAVE TO CHOOSE TO GIVE UP THEIR RELIGION IN ORDER TO HAVE THE BENEFITS OF THE CORPORATE FORM. THE COURT SAID IT SUBSTANTIALLY BURDENS FREE EXERCISE OF RELIGION TO REQUIRE THAT THE CORPORATIONS PROVIDE COVERAGE FOR CONTRACEPTION THROUGH INSURANCE THAT THE OWNERS FIND TO BE RELIGIOUSLY OBJECTIONABLE. THE COURT SAID IT WOULD ASSUME WITHOUT DECIDING THAT THERE IS A COMPELLING INTEREST, MAKING SURE THAT CONTRACEPTIVES ARE AVAILABLE FOR WOMEN, BUT THE COURT SAID THIS WAS NOT THE LEAST RESTRICTIVE ALTERNATIVE. THE COURT POINTED TO A COUPLE OF OTHER OPTIONS THEY THOUGHT COULD BE USED. ONE WOULD BE FOR THE FEDERAL GOVERNMENT TO DIRECTLY PROVIDE OR PAY FOR CONTRACEPTIVES FOR WOMEN. ANOTHER WOULD MAKE AVAILABLE FOR FOR-PROFIT COMPANIES THAT OBJECT TO CONTRACEPTIVES THE SAME MECHANISM THE LAW PROVIDES FOR NONPROFITS THAT ARE AFFILIATED WITH RELIGIOUS INSTITUTIONS. - NOW, JUSTICE GINSBURG WROTE A PRETTY STRONG DISSENT FOR HERSELF, JUSTICE KAGAN, JUSTICE SOTOMAYOR, AND JUSTICE BREYER. ISN'T THAT RIGHT, LAURIE? - OH, SHE DID, AND SHE SAID THAT THE MAJORITY DECISION HAD A "STARTLING BREADTH" BECAUSE IT HAD PROVIDED A WAY FOR MANY KINDS OF COMMERCIAL ENTERPRISES TO OPT OUT OF A VARIETY OF LAWS BY CLAIMING THAT IT VIOLATED THEIR RELIGIOUS BELIEFS. THE DISSENT WROTE THAT THE MAJORITY DOES NOT BASE ITS DECISION ON THE FIRST AMENDMENT FREE EXERCISE CLAUSE, BECAUSE THAT JURISPRUDENCE WOULD NOT SUPPORT THE DECISION. INSTEAD, THEY BASE IT UPON WHAT THE DISSENT SAYS IS AN INCORRECT READING OF RFRA. AND, CONTRARY TO WHAT THE MAJORITY SAYS, THE DISSENT SAYS THAT NONPROFITS<i> ARE</i> DIFFERENT. THEY'RE NOT FOCUSING ON PROFITS. THEY'RE FOCUSING ON SOMETHING ELSE. FINALLY, THEY DISAGREE WITH THE MAJORITY BECAUSE THEY SAY THAT HERE, INSTEAD WHAT YOU HAVE IS THE EMPLOYERS BURDENING THE EMPLOYEES, WHO ARE ULTIMATELY MAKING THE DECISION ON WHAT CONTRACEPTIVE CHOICES THEY WOULD LIKE TO HAVE. - ERWIN, WHAT ARE THE IMPLICATIONS OF THIS DECISION? - I THINK THE ONE THING WE WOULD ALL AGREE TO IS THAT THIS COULD LEAD TO A GREAT DEAL OF LITIGATION. THIS IS THE FIRST TIME THE SUPREME COURT HAS EVER HELD THAT FOR-PROFIT COMPANIES CAN CLAIM TO HAVE BENEFITS OF FREE EXERCISE OF RELIGION. NOW, THIS WAS LIMITED TO CLOSE CORPORATIONS UNDER THE RELIGIOUS FREEDOM RESTORATION ACT, BUT IT'S SURE THAT OTHER COMPANIES ARE GOING TO TRY TO TAKE ADVANTAGE OF IT. THERE'S ALSO THE ISSUE THAT JUSTICE SOTOMAYOR RAISED AND THE QUESTION THAT WE HEARD AT THE BEGINNING OF THIS SEGMENT-- WHAT OF A CHRISTIAN SCIENTIST WHO SAYS IT VIOLATES HIS OR HER RELIGION TO PROVIDE ANY INSURANCE COVERAGE? WHAT ABOUT AN EMPLOYER WHO SAYS THEY DON'T WANT TO PROVIDE MEDICAL CARE COVERAGE FOR THOSE PRODUCTS THAT WERE MADE FROM PORK, WHICH IS SOMETHING JUSTICE SOTOMAYOR RAISED? JUSTICE ALITO, IN HIS OPINION, SAID THIS WOULD NOT PROVIDE A BASIS FOR COMPANIES TO OBJECT TO LAWS THAT PROHIBIT RACE DISCRIMINATION BASED ON THEIR RELIGION, BUT WHAT ABOUT AN EMPLOYER THAT WANTS TO DISCRIMINATE BASED ON GENDER AND SAYS APPLYING FEDERAL CIVIL RIGHTS LAWS HERE VIOLATE THE RELIGIOUS FREEDOM RESTORATION ACT? - THOSE ARE GOOD QUESTIONS THAT I THINK THE COURT LEFT OPEN, BUT IN THINKING ABOUT THOSE QUESTIONS, WE HAVE TO BEAR IN MIND JUSTICE KENNEDY'S CONCURRING OPINION. HE WAS NECESSARY TO THE MAJORITY, AND HE WROTE A CONCURRING OPINION STRESSING THE NARROWNESS OF THE HOLDING, WHICH FOR HIM DEPENDED PRIMARILY ON THE FACT THAT THE GOVERNMENT ALREADY HAD AVAILABLE AND WAS USING, FOR NONPROFITS, A LESS RESTRICTIVE ALTERNATIVE. - THANKS. IN OUR NEXT DECISION,<i> TOWN OF GREECE V. GALLOWAY,</i> THE CHALLENGE WAS TO THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT. FOR 8 YEARS, FROM 1999 TO 2007, THE TOWN BOARD OF THE TOWN OF GREECE, NEW YORK, INVITED A MEMBER OF THE CLERGY TO START ITS MEETINGS WITH A PRAYER. THE CLERGY AND THE PRAYERS WERE ALWAYS CHRISTIAN. WHEN 2 PEOPLE COMPLAINED ABOUT THIS, THE BOARD INVITED THE MEMBERS OF OTHER RELIGIOUS GROUPS TO GIVE THE PRAYER. THAT LASTED FOR 4 MONTHS, AND AFTER THAT, THE BOARD REVERTED TO INVITING ONLY CHRISTIAN CLERGY TO SAY THE PRAYERS. CITIZENS ATTENDING THE MEETINGS FINALLY FILED SUIT, CLAIMING THE PRACTICE VIOLATED THE ESTABLISHMENT CLAUSE. SO, LAURIE, WHAT DID THE COURT HOLD? - WELL, THERE WAS A PLURALITY FOR THE HOLDING, BUT A NUMBER OF OPINIONS ON THE REASONING. JUSTICE KENNEDY WROTE FOR THE PLURALITY, WHICH INCLUDED CHIEF JUSTICE ROBERTS AND JUSTICE ALITO IN FULL AND THEN JUSTICES SCALIA AND THOMAS EXCEPT FOR ONE PART OF THE OPINION. JUSTICE KENNEDY, IN WRITING FOR THE PLURALITY, FOUND THAT THE BOARD'S PRACTICE DID NOT VIOLATE THE FIRST AMENDMENT. HE NOTED THE SUPREME COURT'S DECISION BACK IN 1983 IN<i> MARSH V. CHAMBERS</i> WHERE THE COURT HELD THAT IT WAS OK TO OPEN LEGISLATIVE SESSIONS WITH A PRAYER AND THAT THAT DIDN'T VIOLATE THE ESTABLISHMENT CLAUSE. HE FURTHER SAID THAT YOU HAVE TO LOOK AT HISTORICAL PRACTICES TO UNDERSTAND HOW THE FIRST AMENDMENT WILL WORK, AND HE SAID THAT THOSE PRAYERS DON'T HAVE TO BE GENERIC, BECAUSE OTHERWISE THE GOVERNMENT MIGHT BECOME EMBROILED OR CENSORING THE PRAYERS BY THESE VARIOUS MINISTERS. THE MAJORITY FELT, HOWEVER, THAT THE TOWN HAD MADE ENOUGH OF AN EFFORT TO REACH OUT TO OTHER RELIGIOUS GROUPS, AND THEREFORE, EVEN THOUGH THESE PRAYERS WERE PREDOMINANTLY CHRISTIAN, THEY DID NOT VIOLATE THE ESTABLISHMENT CLAUSE. - SO DOES THAT MEAN THESE PRAYERS ARE ALWAYS ACCEPTABLE? - NO. THE COURT DIDN'T GO THAT FAR, THOUGH I THINK IT WILL BE VERY DIFFICULT TO CHALLENGE LEGISLATIVE PRAYERS IN THE FUTURE. JUSTICE KENNEDY SAID IT WOULD VIOLATE THE FIRST AMENDMENT ONLY IF THERE'S A PATTERN OF PRAYER OVER TIME THAT DENIGRATED OR PROSELYTIZED RELIGION OR REFLECTED AN IMPERMISSIBLE GOVERNMENT PURPOSE. HE SAID THAT THE GOVERNMENT CAN'T DIRECT PEOPLE TO PARTICIPATE IN PRAYER OR DENIGRATE THOSE WHO CHOOSE NOT TO PARTICIPATE IN PRAYER. HE SAID THE GOVERNMENT CAN'T ALLOCATE BENEFITS OR BURDENS BASED ON WHO PARTICIPATES IN PRAYER. THE COURT EMPHASIZED, AND HERE I THINK ALL OF THE JUSTICES OF THE MAJORITY WOULD AGREE, THAT THERE CANNOT BE A CHALLENGE TO LEGISLATIVE PRAYERS JUST BECAUSE THESE PEOPLE FIND THEM TO BE OFFENSIVE. - AND WHAT ABOUT THE DISSENTERS, LAURIE? - THERE WERE 2 DISSENTS IN THIS CASE. YOU HAD JUSTICE BREYER AND JUSTICE KAGAN, AND THEY JOINED EACH OTHER IN THEIR DISSENTS. NEITHER ONE OF THEM DISAGREED WITH<i> MARSH V. CHAMBERS,</i> BUT THEY DID NOT THINK THAT THE TOWN OF GREECE HAD DONE ENOUGH NOW TO INCLUDE MORE NON-CHRISTIAN FAITHS IN THE PRAYERS. JUSTICE BREYER ALSO POINTED OUT THAT WHEN THE HOUSE OF REPRESENTATIVES ALLOWS THE PRAYERS, THEY GIVE SOME GUIDELINES TO THE VARIOUS PEOPLE-- THE CHAPLAINS WHO ARE PRESENTING THEM-- AND THAT THE TOWN SHOULD HAVE DONE THAT IN THIS SITUATION. JUSTICE KAGAN EMPHASIZED THAT THESE MEETINGS ARE DIFFERENT FROM THE MEETINGS OF THE HOUSE, THAT WHEN YOU HAVE A LEGISLATURE, IT'S ONLY THE MEMBERS OF THE LEGISLATURE WHO ARE ENGAGED IN THIS PRAYER. BUT WHEN YOU HAVE THIS TOWN MEETING, YOU HAVE OTHER CITIZENS COMING IN FRONT, AND THEY MIGHT FEEL OBLIGED OR OTHERWISE FEEL LIKE OUTSIDERS IF THEY DON'T ENGAGE IN THE PRAYER. BY PLACING ITS IMPRIMATUR ON THESE PRAYERS, THE DISSENTERS SAID THAT THEY REALLY ARE ESTABLISHING A RELIGIOUS CREED. - ALTHOUGH ABORTION IS OFTEN AN ISSUE THAT IMPLICATES RELIGION IN PUBLIC DISCOURSE, THE CHALLENGE IN OUR NEXT DECISION WAS TO A VIOLATION OF FREE SPEECH RIGHTS UNDER THE FIRST AMENDMENT. IT IS<i> McCULLEN V. COAKLEY,</i> AND IT DEALT WITH A MASSACHUSETTS LAW THAT CREATED A 35-FOOT BUFFER ZONE AROUND ABORTION CLINICS IN THAT STATE. THE ONLY PEOPLE ALLOWED IN THE ZONE WERE PATIENTS, CLINIC EMPLOYEES, POLICE, AND PEOPLE NEEDING TO CROSS THE AREA TO GET INTO ADJACENT BUILDINGS. NOW, THE STATED PURPOSE OF THE LAW WAS PROTECTING PUBLIC SAFETY AND PATIENT ACCESS TO THE CLINIC, BUT THE GROUP CHALLENGING THE LAW SAID IT VIOLATED THEIR FREE SPEECH RIGHTS BY PREVENTING THEM FROM COUNSELING THE PATIENTS ON THEIR OPTIONS OTHER THAN ABORTION. THEY CLAIMED IT WAS A CONTENT-BASED LAW THAT ALLOWED PRO-ABORTION CLINIC PERSONNEL TO TALK TO THE PATIENTS, BUT NOT ANTI-ABORTION ADVOCATES. SO, LAURIE, DID THE COURT FIND IT UNCONSTITUTIONAL? - THIS WAS ONE OF THOSE DECISIONS WHERE THE UNANIMOUS DECISION, THE RESULT-- THERE WAS A UNANIMOUS RESULT, BUT THEY WERE SPLINTERED ON THE REASONING. SO, YES, 9-0, THEY FOUND THAT THE BUFFER ZONE WAS UNCONSTITUTIONAL BECAUSE THE LAW WAS NOT SUFFICIENTLY NARROWLY TAILORED. IN THIS CASE, THE JUSTICES NOTED THAT A PUBLIC SIDEWALK IS THE CLASSIC FORUM FOR PUBLIC SPEECH AND SHOULD RECEIVE FREE SPEECH PROTECTION. THE COURT SAID THAT THE CHALLENGED BUFFER ZONES BURDENED SUBSTANTIALLY MORE ON THE SPEECH THAN WAS NECESSARY TO ACHIEVE THE GOVERNMENT'S INTEREST AND THAT THE FEDERAL AND STATES ALREADY HAD LAWS TO PROTECT THE OBSTRUCTION OF THESE CLINICS. BUT THE COURT ALSO SAID THAT THE LAW WAS NEUTRAL IN ITS DESIGN TO PROTECT PUBLIC SAFETY AND THE PEOPLE ENTERING THE CLINICS. SO THE DECISION ACTUALLY PRESERVES THE ABILITY OF STATES TO PASS LAWS WITH NARROWER TYPES OF BUFFER ZONES. - AND YOU SAID THERE WERE OTHER DECISIONS? - JUSTICE SCALIA READ AN OPINION CONCURRING THE JUDGMENT, JOINED BY JUSTICES KENNEDY AND THOMAS. JUSTICE SCALIA SAID THIS SHOULD BE FOUND TO BE A CONTENT-BASED RESTRICTION ON SPEECH THAT YOU HAVE TO MEET STRICT SCRUTINY. JUSTICE SCALIA URGED THE COURT TO OVERRULE ITS PRIOR DECISION UPHOLDING BUFFER ZONES, <i> HILL V. COLORADO,</i> IN 2000. THERE, THE SUPREME COURT UPHELD A COLORADO LAW THAT CREATED A 100-FOOT ZONE AROUND HEALTHCARE FACILITIES AND SAID IT WAS IMPERMISSIBLE TO GO WITHIN 8 FEET OF A PERSON WITHOUT AN INDIVIDUAL'S CONSENT FOR PURPOSE OF COUNSELING OR PROTEST. JUSTICE ALITO ALSO WROTE AN OPINION CONCURRING IN THE JUDGMENT. HE, TOO, WOULD HAVE SAID THAT THIS IS VIEWPOINT DISCRIMINATION VIOLATING THE FIRST AMENDMENT, THOUGH HE DIDN'T EXPLICITLY CALL FOR THE OVERRULING OF<i> HILL V. COLORADO.</i> - SO WHAT WERE THE IMPLICATIONS OF THE MAJORITY'S DECISION? - I THINK THIS IS AN IMPORTANT CASE. THE SUPREME COURT HAS SAID HERE THAT ANY BUFFER ZONES NEED TO BE NARROWLY TAILORED. THE COURT DIDN'T OVERRULE<i> HILL V. COLORADO,</i> SO STATE AND LOCAL GOVERNMENTS CAN ADOPT BUFFER ZONES LIKE THE COLORADO LAW THAT I DESCRIBED, BUT ANY BUFFER ZONES THAT INTRUDE ON PUBLIC SIDEWALKS ARE GOING TO BE NARROWLY TAILORED, ESPECIALLY TO MAKE SURE THAT THOSE WHO OPPOSE ABORTION HAVE THE CHANCE TO SPEAK TO PATIENTS ENTERING THE FACILITIES. - ERWIN, DON'T YOU THINK THE BIG QUESTION HERE IS WHERE THE COURT IS GOING TO DRAW THE LINE, AND WILL THEY BE ABLE TO RELY ON THESE ANTI-OBSTRUCTION STATE AND FEDERAL STATUTES? AND IF NOT, THEN WHAT ARE THE JURISDICTIONS SUPPOSED TO DO, ESPECIALLY WITH THIS LESS-THAN-STRICT SCRUTINY STANDARD? HOW WILL THAT PLAY OUT IN FIRST AMENDMENT ANALYSIS? - I THINK LAURIE IS ABSOLUTELY RIGHT HERE. STATE AND LOCAL GOVERNMENTS-- IN FACT, EVEN THE FEDERAL GOVERNMENT-- ADOPTED MANY LAWS THAT CREATE BUFFER ZONES TO TRY TO BALANCE SPEECH INTERESTS AGAINST OTHERS, LIKE PRIVACY. THERE'S A FEDERAL LAW THAT CREATES A 300-FOOT BUFFER ZONE AROUND MILITARY FUNERALS. 41 STATES HAVE ADOPTED LAWS THAT CREATE BUFFER ZONES AROUND CEMETERIES AND FUNERAL HOMES. MANY LOCAL GOVERNMENTS HAVE ORDINANCES THAT CREATE BUFFER ZONES AROUND PLACES OF WORSHIP-- CHURCHES, SYNAGOGUES, MOSQUES. I THINK YOU'RE GOING TO SEE CHALLENGES TO MANY OF THESE, AND THE QUESTION THAT THE COURT DOESN'T ADDRESS HERE-- HOW IS IT YOU DETERMINE WHETHER A BUFFER ZONE IS NARROWLY TAILORED-- IS GOING TO HAVE TO BE ADDRESSED BY THE LOWER COURTS. - THANKS. IN 1976, IN A DECISION TITLED<i> BUCKLEY V. VALEO,</i> THE COURT DREW A DISTINCTION BETWEEN LEGAL LIMITS ON CONTRIBUTIONS TO CANDIDATES AND POLITICAL PARTIES, WHICH GENERALLY CAN BE REGULATED, AND INDEPENDENT POLITICAL EXPENDITURES, DIFFERENT KINDS OF EXPENDITURES, WHICH GENERALLY CANNOT. THIS TERM, IN<i> McCUTCHEON V. FEC,</i> THE COURT HAD TO DECIDE IF AGGREGATE LIMITS ON CONTRIBUTIONS TO THE CANDIDATES AND THEIR AGENTS WERE UNCONSTITUTIONAL. NOW, THOSE LIMITS WERE PART OF THE BIPARTISAN CAMPAIGN FINANCE REFORM ACT OF 2002, AND THE LAW PROVIDED THAT AN INDIVIDUAL CONTRIBUTOR CAN'T GIVE MORE THAN $46,200 TO CANDIDATES OR THEIR AUTHORIZED AGENTS OR GIVE MORE THAN $70,800 TO ANYONE ELSE IN A 2-YEAR ELECTION CYCLE. IN<i> McCUTCHEON,</i> THE COURT HELD THAT THESE LIMITS VIOLATED THE FIRST AMENDMENT RIGHTS OF THE CONTRIBUTORS. AND WHAT WAS THE COURT'S REASONING, LAURIE? - WELL, THERE'S NO MAJORITY OPINION, BUT THERE WAS A PLURALITY OPINION WRITTEN BY THE CHIEF JUSTICE FOR HIMSELF, JUSTICES KENNEDY, SCALIA, AND ALITO, AND THAT OPINION FOUND THAT THE GOAL OF PREVENTING CORRUPTION OR THE APPEARANCE OF CORRUPTION IS OUTWEIGHED BY THE INTERFERENCE ON THE DONOR'S RIGHT TO PARTICIPATE IN THE POLITICAL PROCESS. AND CONGRESS CAN ONLY TARGET QUID PRO QUO TYPE OF CORRUPTION, AND THAT DOESN'T APPLY TO AGGREGATE LIMITS BECAUSE THESE CONTRIBUTIONS ARE MADE TO TOO MANY OF THE CANDIDATES. SO THE COURT SAID THAT THE REAL WAY TO PREVENT CORRUPTION, WITH BASE LIMITS ON CONTRIBUTIONS TO INDIVIDUAL CANDIDATES, AND THIS DECISION DOES NOT AFFECT THOSE, AND ALSO SAID-- JUSTICE THOMAS SAID, IN HIS CONCURRENCE, SOMETHING SLIGHTLY DIFFERENT. HE SAID THAT ALL CONTRIBUTION LIMITS SHOULD BE DECLARED UNCONSTITUTIONAL. - AND THE DISSENT? - JUSTICE BREYER WROTE FOR THE 4 DISSENTING JUSTICES. HE SAID THIS CASE, TOGETHER WITH THE SUPREME COURT'S DECISION IN<i> CITIZENS UNITED V. FEDERAL ELECTION COMMISSION,</i> AND I'LL QUOTE HIS EXACT WORD, HAVE "EVISCERATED" FEDERAL CAMPAIGN FINANCE LAW. JUSTICE BREYER OBJECTED TO THE HOLDING ON MANY LEVELS. HE SAID THE COURT DEFINES THE GOVERNMENT'S INTEREST OF AVERTING CORRUPTION TOO NARROWLY, SO IT'S ONLY ABOUT QUID PRO QUO CORRUPTION. HE SAID THE GOVERNMENT HAS MANY OTHER INTERESTS IN AGGREGATE CONTRIBUTION LIMITS THAT THE MAJORITY DOESN'T TAKE INTO ACCOUNT, SUCH AS PREVENTING CIRCUMVENTION OF FEDERAL CAMPAIGN FINANCE LAW. HE SAID THERE REALLY AREN'T ANY LESS RESTRICTIVE ALTERNATIVES. I THINK THAT THE REAL IMPLICATION OF THIS CASE IS GOING TO BE CHALLENGES TO OTHER CONTRIBUTION LIMITS THAT EXIST--FEDERAL, STATE, AND LOCAL. I THINK YOU'RE GOING TO SEE CHALLENGES TO THE SIZE OF CONTRIBUTION LIMITS, ARGUING THAT THEY'RE TOO SMALL, THEY'RE NOT SUFFICIENTLY NARROWLY TAILORED. I THINK YOU'RE GOING TO SEE CORPORATIONS CHALLENGING FEDERAL AND STATE LAWS THAT KEEP CORPORATIONS AND UNIONS FROM CONTRIBUTING MONEY DIRECTLY TO CANDIDATES. - THE FIRST AMENDMENT TO THE CONSTITUTION PROTECTS NOT ONLY THE RIGHT TO FREE SPEECH, BUT ALSO THE COMPLEMENTARY RIGHT NOT TO BE FORCED TO SUPPORT SPEECH ONE DOESN'T AGREE WITH. THAT WAS THE RIGHT UNDERLYING A 1977 DECISION BY THE COURT IN<i> ABOOD V. DETROIT BOARD OF EDUCATION</i> THAT HELD THAT NO ONE CAN BE FORCED TO JOIN A PUBLIC EMPLOYEES UNION. SO NON-MEMBERS CANNOT BE COMPELLED TO PAY FOR THE POLITICAL ACTIVITIES OF THE UNION, BUT IN ORDER TO PREVENT THEM FROM BEING SO-CALLED FREE RIDERS, NON-MEMBERS CAN BE REQUIRED TO PAY THEIR SHARE OF THE COLLECTIVE BARGAINING ACTIVITIES OF THE UNION BECAUSE THEY BENEFIT FROM THOSE. SO THIS YEAR, IN<i> HARRIS V. QUINN,</i> THE QUESTION WAS WHETHER THE HOLDING IN<i> ABOOD</i> APPLIED TO SOME HOME HEALTHCARE WORKERS WHO WERE PAID BY THE STATE UNDER ILLINOIS LAW BUT WHO WORKED FOR THEIR CLIENTS. SO THESE SO-CALLED PERSONAL ASSISTANTS WERE PAID TO TAKE CARE OF ELDERLY OR DISABLED PEOPLE IN THEIR HOMES SO THAT THEY WOULDN'T NEED TO BE INSTITUTIONALIZED, AND THE CLIENTS DEFINED THE JOBS OF THE PERSONAL ASSISTANTS, AND THEY CONTROLLED THE HIRING AND FIRING AND DISCIPLINE. ALTHOUGH THE STATE HAD MINIMAL INVOLVEMENT OTHER THAN PAYING THEM, ILLINOIS DEEMED THEM TO BE STATE EMPLOYEES SO THEY COULD JOIN A LABOR UNION AND ENGAGE IN COLLECTIVE BARGAINING ACTIVITIES. SO, ERWIN, WHAT WAS THE DISPUTE HERE? - SOME OF THE HOME HEALTHCARE WORKERS DID NOT WANT TO HAVE TO PAY THE SHARE OF THE UNION DUES THAT WOULD GO FOR THE COLLECTIVE BARGAINING ACTIVITIES. THEY SAID TO PAY THE SO-CALLED FAIR SHARE AMOUNT VIOLATED THEIR FIRST AMENDMENT RIGHTS. THE SUPREME COURT OPINION WAS WRITTEN BY JUSTICE ALITO, AND IT WAS 5-4. JUSTICE ALITO SAID THERE'S A DISTINCTION BETWEEN THESE HOME HEALTHCARE WORKERS, WHO HE REFERRED TO AS QUASI-GOVERNMENT EMPLOYEES, AND FULL-FLEDGED GOVERNMENT EMPLOYEES WHERE THE<i> ABOOD</i> PRINCIPLE APPLIES. HE NOTED THAT THESE INDIVIDUALS DON'T WORK IN A SINGLE WORKPLACE. HE SAID THEY'RE HIRED BY THOSE WHO ARE ACTUALLY USING THEIR SERVICES, THEY'RE SUPERVISED BY THOSE WHO ARE USING THEIR SERVICES, AND SO HE SAID THE GENERAL PRINCIPLES OF<i> ABOOD</i> SHOULDN'T BE EXTENDED TO THIS SITUATION. - GO AHEAD, LAURIE. - BUT IN THIS ONE, THE MAJORITY SAID, YOU KNOW, THERE WEREN'T THE USUAL COMPELLING INTERESTS THAT YOU SEE IN<i> ABOOD</i> FOR HAVING THESE UNIONS REPRESENT THE PUBLIC EMPLOYEES, WHICH WOULD BE TO PROMOTE LABOR PEACE OR TO HAVE THE GOVERNANCE OF THE EMPLOYEES. THEY SAID IT DIDN'T EXIST HERE BECAUSE IN THIS SITUATION, THE STATE LAW SET THE SALARIES FOR THE EMPLOYEES AND THE CONDITIONS FOR THE EMPLOYEES, SO THERE REALLY WAS NO REASON TO MAKE THEM PAY THEIR "FAIR SHARE" OF THE FEE FOR THE COLLECTIVE BARGAINING. - SO WHERE DID THAT LEAVE THESE PERSONAL ASSISTANTS? - JUSTICE ALITO, WRITING FOR THE COURT, SAID SINCE<i> ABOOD</i> DOESN'T APPLY, STRICT SCRUTINY IS TO BE USED, AND THE COURT FELT THAT STRICT SCRUTINY WAS NOT MET BY THE GOVERNMENT IN JUSTIFYING REQUIRING THESE HOME HEALTHCARE WORKERS TO PAY FOR THE COLLECTIVE BARGAINING ACTIVITIES. I THINK IT'S WORTH NOTING THAT JUSTICE ALITO'S OPINION FOR THE COURT WAS SHARPLY CRITICAL OF THE COURT'S DECISION IN<i> ABOOD.</i> HE SAID<i> ABOOD</i> WAS AN ANOMALY, AND IT SHOULD NOT BE EXTENDED TO THIS KIND OF WORK SITUATION. - AND WHAT DID THE DISSENTERS SAY? - WELL, THE DISSENTERS SAID, JUSTICE KAGAN WRITING, SAYING OF COURSE<i> ABOOD</i> SHOULD GOVERN THE DECISION HERE. IT IS THE PROPER STANDARD TO USE WHEN THESE PUBLIC SECTOR UNION DUES ARE AT ISSUE. THE DISSENTERS ALSO TOOK ISSUE WITH THE MAJORITY'S EVALUATION OF THE FACTS IN THIS CASE AND SAID THAT IN FACT, THE UNION DID BARGAIN FOR PAY AND DID BARGAIN FOR CONDITIONS. I MEAN, OVERALL, ONE HAS TO LOOK AT THIS DECISION AND SAY IT IS A BLOW TO PUBLIC SECTOR UNIONS. - EDWARD LANE WAS ALSO A PUBLIC SECTOR EMPLOYEE, THIS TIME AT A COMMUNITY COLLEGE IN ALABAMA. IN AUDITING THE WORK RECORDS OF COLLEGE EMPLOYEES, HE FOUND THAT ONE OF THEM, SUZANNE SCHMITZ, ALSO A MEMBER OF THE STATE LEGISLATURE, WAS COLLECTING A SALARY BUT NEVER SHOWED UP FOR WORK. LANE WAS WARNED NOT TO PURSUE THE CASE AGAINST SCHMITZ BECAUSE SHE HAD SOME POWERFUL FRIENDS, BUT LANE DID HIS JOB AND FIRED SCHMITZ FOR REFUSING TO WORK FOR HER SALARY. UNDER SUBPOENA, HE TESTIFIED AGAINST SCHMITZ BEFORE THE GRAND JURY AND TWICE AT TRIAL. AND SCHMITZ WAS CONVICTED OF MAIL FRAUD AND THEFT OF FEDERAL FUNDS AND SENT TO PRISON. LANE WAS ALSO LATER TERMINATED. HE SUED HIS SUPERVISOR, STEVE FRANKS, FOR RETALIATORY FIRING AND VIOLATING HIS FIRST AMENDMENT RIGHT OF FREE SPEECH, AND HIS SUIT WAS DISMISSED BY THE TRIAL COURT, AND FRANKS WAS GRANTED QUALIFIED IMMUNITY ON THE GROUND THAT A PUBLIC EMPLOYEE'S SPEECH PURSUANT TO OFFICIAL DUTIES IS NOT PROTECTED BY THE FIRST AMENDMENT. SO, HOW DID IT WORK OUT FOR EDWARD LANE IN THE SUPREME COURT, ERWIN? - THERE WERE 2 ISSUES BEFORE THE SUPREME COURT. FIRST, DID IT VIOLATE LANE'S FIRST AMENDMENT RIGHTS TO FIRE HIM FOR THE SPEECH THAT HE GAVE AS TESTIMONY IN COURT PURSUANT TO SUBPOENA? AND IF SO, SECOND, THEN WAS THE DEFENDANT FRANKS PROTECTED BY QUALIFIED IMMUNITY? THE SUPREME COURT WAS UNANIMOUS. JUSTICE SOTOMAYOR WROTE THE OPINION FOR THE COURT. AS TO THE FIRST, THE COURT FOUND THAT HE DID VIOLATE LANE'S FIRST AMENDMENT RIGHTS. IN<i> GARCETTI V. CEBALLOS</i> IN 2006, THE SUPREME COURT SAID THERE'S NO FIRST AMENDMENT PROTECTION FOR THE SPEECH OF GOVERNMENT EMPLOYEES ON THE JOB IN THE SCOPE OF THEIR DUTIES. THE ELEVENTH CIRCUIT HAD RULED ON THAT CASE IN COMING OUT AGAINST LANE, BUT THE SUPREME COURT SAID GIVING TESTIMONY IN COURT IS QUINTESSENTIALLY SPEECH AS A CITIZEN, AND THEREFORE, IT IS PROTECTED BY THE FIRST AMENDMENT. BUT AS THE SECOND ISSUE THE COURT HELD THAT FRANKS WAS PROTECTED BY QUALIFIED IMMUNITY. JUSTICE SOTOMAYOR'S OPINION FOR THE UNANIMOUS COURT SAID THERE WERE NO CASES ON POINT, ESPECIALLY IN THE ELEVENTH CIRCUIT, THAT THIS KIND OF BEHAVIOR WOULD VIOLATE THE CONSTITUTION. THUS, QUALIFIED IMMUNITY APPLIED. - AND THIS IS THE FIRST CASE SINCE GARCETTI TO EXPLAIN ITS SCOPE, SO THE COURT IS MAINTAINING THAT DISTINCTION BETWEEN SPEECH AS AN EMPLOYEE AND SPEECH AS A CITIZEN, WITH THIS TESTIMONY BEING THE LATTER. THAT NARROWS THAT EXCEPTION IN GARCETTI. BUT I THINK THAT, ERWIN, YOU'RE RIGHT. IT'S ALSO IMPORTANT HERE THAT THE COURT FOUND QUALIFIED IMMUNITY, EVEN THOUGH IT WAS SO OBVIOUS THAT THIS WAS A FIRST AMENDMENT VIOLATION, WHICH I THINK WE'RE GOING TO TALK ABOUT AS A CONTINUED TREND THROUGH THE COURT. - THANKS. NOW, BEFORE WE GO ON TO OUR NEXT SECTION, LET'S CHECK AND SEE IF THERE ARE ANY QUESTIONS. - WE HAVE ONE, AND IT'S RELATED TO<i> HOBBY LOBBY,</i> AND IT READS, "THE COURT GRANTED AN INJUNCTION TO WHEATON COLLEGE "THAT ASKED FOR A RELIGIOUS EXEMPTION UNDER<i> HOBBY LOBBY.</i> "WHAT DO YOU THINK THIS SAYS ABOUT THE REACH OF THE DECISION?" - THERE'S A PROVISION OF THE FEDERAL REGULATION THAT SAYS THAT NONPROFITS THAT ARE AFFILIATED WITH RELIGIOUS INSTITUTIONS DO NOT HAVE TO PROVIDE CONTRACEPTIVE COVERAGE TO THEIR INSURANCE IF THEY SIGN A 2-PAGE STATEMENT. THE SUPREME COURT AFFIRMED A PRELIMINARY INJUNCTION IN FAVOR OF WHEATON COLLEGE THAT IT SHOULD NOT HAVE TO FILL OUT THAT 2-PAGE FORM. NOW, IT SAID INSTEAD, IT COULD JUST SEND IN A 2-PAGE LETTER. NOW, THIS WAS NOT A RULING ON THE MERITS. IT WAS GIVING A PRELIMINARY INJUNCTION, WHICH MEANS THAT IT FOUND A SUBSTANTIAL LIKELIHOOD THAT WHEATON COLLEGE WOULD AVAIL ON THE MERITS THAT IT VIOLATES THE RELIGIOUS FREEDOM RESTORATION ACT TO HAVE IT SIGN THIS 2-PAGE STATEMENT. JUSTICE SOTOMAYOR WROTE IN VEHEMENT DISSENT, JOINED BY JUSTICES GINSBURG AND KAGAN. SHE SAID JUST 3 DAYS EARLIER IN<i> HOBBY LOBBY,</i> THE COURT POINTED AT THE ABILITY OF NONPROFITS TO SIGN THIS 2-PAGE STATEMENT AS A LESS RESTRICTIVE ALTERNATIVE THAT CAN BE APPROVED FOR, FOR-PROFIT COMPANIES. SHE SAID, WHAT'S THE DIFFERENCE BETWEEN SIGNING A 2-PAGE STATEMENT AND FILLING OUT A LETTER AND SENDING THAT IN? BUT IT'S INTERESTING THAT THE COURT DID GIVE THE PRELIMINARY INJUNCTION TO WHEATON COLLEGE, AND A PRELIMINARY INJUNCTION IS SOME INDICATION THAT IT IS PROBABLY GOING TO COME OUT ON THE MERITS. - THANKS, ERWIN. ALL RIGHT. WE'LL BE BACK IN A MINUTE WITH A LOOK AT SOME FOURTH AMENDMENT DECISIONS. - MR. DUMONT, ON YOUR ARGUMENT AND ON THE GOVERNMENT'S-- THE SOLICITOR GENERAL'S PRINCIPAL ARGUMENT, TOO-- A PERSON CAN BE ARRESTED FOR ANYTHING. A PERSON CAN BE ARRESTED FOR DRIVING WITHOUT A SEAT BELT. AND THE POLICE COULD TAKE THAT PHONE AND COULD LOOK AT EVERY SINGLE EMAIL THAT PERSON HAS WRITTEN, INCLUDING WORK EMAILS, INCLUDING EMAILS TO FAMILY MEMBERS, VERY INTIMATE COMMUNICATIONS-- COULD LOOK AT ALL THAT PERSON'S BANK RECORDS, COULD LOOK AT ALL THAT PERSON'S MEDICAL DATA, COULD LOOK AT THAT PERSON'S CALENDAR, COULD LOOK AT THAT PERSON'S GPS AND FIND OUT EVERY PLACE THAT PERSON HAD BEEN RECENTLY BECAUSE THAT PERSON WAS ARRESTED FOR DRIVING WITHOUT A SEAT BELT. NOW, THAT STRIKES ME AS A VERY DIFFERENT KIND OF WORLD THAN THE KIND OF WORLD THAT YOU WERE DESCRIBING WHERE SOMEBODY HAS PICTURES OF THEIR FAMILY IN A BILLFOLD. DOESN'T IT STRIKE YOU THAT WAY? - THERE'S A LONG-STANDING DEBATE AMONG CONSTITUTIONAL SCHOLARS ABOUT HOW TO ADAPT THE MANDATES AND PROTECTIONS FOUND IN THAT 18th-CENTURY DOCUMENT TO THE CHANGING REALITIES OF MODERN TIMES. THIS TERM, THE JUSTICES WERE ASKED TO DECIDE WHAT THE FOURTH AMENDMENT TO THE CONSTITUTION HAD TO SAY ABOUT CELL PHONES. AND, LAURIE, I THINK THEY FOUND THAT ANSWER PRETTY CLEAR. - THAT'S RIGHT. THEY HAD 2 CASES, ACTUALLY. THEY HAD<i> RILEY V. CALIFORNIA</i> AND<i> UNITED STATES V. BRIMA WURIE.</i> THEY HAD DIFFERENT FACTS AND WERE ARGUED SEPARATELY, BUT THE COURT ISSUED ONE DECISION, SO LET ME GO OVER EACH. IN<i> RILEY,</i> YOU HAD THE DEFENDANT WHO WAS STOPPED FOR A TRAFFIC VIOLATION. THEY FOUND SOME WEAPONS. THEY ARRESTED HIM, AND HE HAD A SMARTPHONE, AND THEY STARTED LOOKING THROUGH THE SMARTPHONE, AND THEY FOUND PHOTOS AND VIDEOS THAT IMPLICATED HIM IN A GANG-RELATED SHOOTING. IN THE WURIE CASE, IT HAD THE DEFENDANT WHO WAS ARRESTED FOR ENGAGING IN DRUG DEALING, AND HE HAD AN OLD-FASHIONED FLIP PHONE, AND THEY LOOKED THROUGH THAT. THEY WERE ABLE TO TRACE BACK THE RESIDENCE WHERE THE DRUGS AND AMMUNITION WERE FOUND. THE EVIDENCE FROM BOTH OF THESE WERE USED IN THE CRIMINAL TRIAL, AND THE QUESTION IS-- OR THEY TRIED TO USE IT-- IS THIS FRUIT OF AN ILLEGAL SEARCH? THE ISSUE FOR THE SUPREME COURT WAS, WHEN A PERSON IS ARRESTED, CAN THE POLICE AUTOMATICALLY, AS A SEARCH INCIDENT TO ARREST, GO THROUGH THEIR CELL PHONE WITHOUT OBTAINING A WARRANT? - WHAT DO YOU THINK, ERWIN? - THE SUPREME COURT HELD UNANIMOUSLY THAT ABSENT A WARRANT OR EXIGENT CIRCUMSTANCES, THE POLICE CANNOT LOOK AT THE CONTENTS OF A CELL PHONE JUST BECAUSE OF SEARCH INCIDENT TO ARREST. - OK. SO WHAT WAS THEIR REASONING? - HERE, THE COURT POINTED TO THE 2 PRIOR DECISIONS THAT DEALT WITH THE SEARCH INCIDENT TO ARREST DOCTRINE. ONE WAS<i> CHIMEL V. CALIFORNIA</i> IN 1969. THE OTHER WAS<i> UNITED STATES V. ROBINSON</i> IN 1973. THERE THE SUPREME COURT SAID WE ALLOW THE POLICE TO DO A SEARCH INCIDENT TO ARREST TO PROTECT THE SAFETY OF THE OFFICERS AND TO PREVENT THE DESTRUCTION OF EVIDENCE. THE QUESTION IN THIS CASE WAS, DO THOSE RATIONALES APPLY TO A SEARCH OF THE CONTENTS OF THE CELL PHONE? - AND THE ANSWER BY THE COURT WAS NOT VERY WELL, BECAUSE FRANKLY, IF YOU LOOK AT A CELL PHONE, IT DOESN'T PRESENT THE SAME TYPE OF DANGER AS SOMETHING ELSE. I MEAN, OF COURSE THE POLICE CAN LOOK AT IT AND SEE IF IT'S HIDING SOMETHING, LIKE A RAZOR BLADE. BUT THEY DON'T HAVE TO SEARCH THROUGH THE CONTENT. THE SECOND THING, WHEN IT COMES TO THE DESTRUCTION OF EVIDENCE, ONCE THIS PHONE IS SECURED BY THE POLICE, IT'S MUCH LESS LIKELY THAT THAT EVIDENCE WILL BE DESTROYED LIKE A PIECE OF PAPER MIGHT BE, AND SO THE COURT WENT THROUGH A FAIRLY LENGTHY DISCUSSION REGARDING COMMON THREAT TO THE EVIDENCE ON CELL PHONES-- ENCRYPTION OR WIPING THEM CLEAN-- BUT IN THE END, THE JUSTICES SAID THAT THEY DIDN'T THINK IT WOULD BE THAT COMMON AND IT WAS SOMETHING THAT THE POLICE WERE PREPARED TO DEAL WITH. - CHIEF JUSTICE ROBERTS EMPHASIZED THE TREMENDOUS PRIVACY INTEREST THAT WE ALL HAVE IN THE CONTENTS OF OUR CELL PHONE. HE REFERRED TO THE PRIVACIES OF LIFE THAT WE FIND IN THE CONTENTS OF CELL PHONES. HE SAID THERE COULD BE MILLIONS OF PAGES OF TEXT, THOUSANDS OF PHOTOGRAPHS. SO WHEN YOU LOOK AT THE CONTENTS OF A CELL PHONE, IT COULD BE INFORMATION THAT GOES BACK MANY YEARS. HE POINTED OUT THAT THROUGH A PERSON'S CELL PHONE, IT'S POSSIBLE TO BE ABLE TO ACCESS THE CLOUD OR WEB AND GAIN EVEN MORE INFORMATION ABOUT AN INDIVIDUAL. AND I THINK IT'S IMPORTANT TO SAY THE COURT DID<i> NOT</i> HOLD THAT POLICE CAN NEVER LOOK AT THE CONTENTS OF A CELL PHONE. OBVIOUSLY, IF THERE'S A WARRANT, THEY CAN DO SO. AND THE TRADITIONAL EXCEPTION TO THE WARRANT REQUIREMENT FOR EXIGENT CIRCUMSTANCES WOULD APPLY HERE, AS WELL. SO CHIEF JUSTICE ROBERTS SAID IF IT WAS A CHILD ABDUCTION OR IF IT WAS A TERRORIST SITUATION, THEN THE POLICE COULD LOOK AT THE CONTENTS OF THE CELL PHONE WITHOUT NEEDING TO GET A WARRANT. - AND THE COURT ALSO REJECTED SOME SUGGESTIONS THAT THEY LIMITED THE SEARCHES BY THE TYPE OF DEVICE OR THE TYPE OF EVIDENCE THEY'RE LOOKING FOR OR EVEN THE CRIME OF ARREST. THE SUPREME COURT SET FORTH A CLEAR RULE THAT ABSENT EXIGENT CIRCUMSTANCES OR, OF COURSE, CONSENT, THESE OFFICERS NEED TO GO GET A WARRANT. AND THE COURT OPENLY RECOGNIZED THAT THIS WAS AN IMPOSITION ON THE POLICE'S ABILITY TO FIGHT CRIME, BUT AS THE COURT WROTE, PRIVACY COMES AT A COST. - I THINK THIS IS AN ENORMOUSLY IMPORTANT CASE. THIS IS THE MOST EMPHATIC PROTECTION OF INFORMATION PRIVACY, ESPECIALLY WITH NEW TECHNOLOGY, EVER FROM THE SUPREME COURT. I'D ALSO POINT OUT ONE OTHER THING. IN THE FIRST FOOTNOTE, THE COURT SAYS THEY'RE NOT DEALING WITH SITUATIONS WHERE THE GOVERNMENT IS COLLECTING AND ANALYZING AGGREGATE AMOUNTS OF DATA. THE COURT WAS AWARE THAT THERE'S A CHALLENGE TO THE NATIONAL SECURITY AGENCY AND META DATA, AND IT WANTED TO TRANSMIT THE MESSAGE TO THE LOWER COURTS, THAT'S NOT WHAT THIS CASE IS ABOUT. - THAT'S FOR LATER. OK. IN 2006, IN<i> GEORGIA V. RANDOLPH,</i> THE COURT DECIDED THAT POLICE COULD NOT SEARCH A MULTI-OCCUPANT RESIDENCE WITHOUT A WARRANT IF ONE OF THE OCCUPANTS PRESENT CONSENTED, BUT THE OTHER DIDN'T. THIS TERM, IN<i> FERNANDEZ V. CALIFORNIA,</i> THE COURT ASKED WHETHER THAT RULE APPLIED WHEN THE CONSENTING OCCUPANT WAS PRESENT BUT THE PREVIOUSLY NON-CONSENTING OCCUPANT WAS NOT. SO POLICE SEARCHING FOR A ROBBERY SUSPECT SAW A MAN RUN INTO A NEARBY BUILDING AND THEN HEARD SCREAMS COMING FROM ONE OF THE APARTMENTS. THEY KNOCKED ON THE APARTMENT DOOR, AND ROXANNE ROJAS ANSWERED. SHE WAS HOLDING A CRYING BABY, HER FACE WAS BRUISED, AND THERE WAS BLOOD ON HER SHIRT. WALTER FERNANDEZ CAME TO THE DOOR AND REFUSED CONSENT FOR THE POLICE TO SEARCH THE APARTMENT. SUSPECTING FERNANDEZ HAD ASSAULTED ROJAS, THE POLICE ARRESTED HIM AND TOOK HIM AWAY. AN HOUR LATER, THEY WENT BACK TO THE APARTMENT AND RECEIVED CONSENT FROM ROJAS TO SEARCH IT. THEY FOUND EVIDENCE INCRIMINATING FERNANDEZ OF ROBBERY THAT WAS USED AGAINST HIM IN COURT. SO, LAURIE, WAS THIS SEARCH VALID? - THE COURT SAID IT WAS. IN THE MAJORITY OPINION WRITTEN BY JUSTICE ALITO, HE SAID THE<i> GEORGIA V. RANDOLPH</i> LIMITATION ONLY APPLIES IF THE CO-OCCUPANT IS THERE AND THAT THE COURT WAS NOT GOING TO DECIDE HOW LONG HIS OBJECTION MIGHT LAST. OTHERWISE, YOU HAVE TO PUT TOGETHER ARBITRARY RULES LIMITING POLICE'S OPPORTUNITY TO GO BACK AND ASK A CO-OCCUPANT FOR CONSENT TO SEARCH. - BUT, ERWIN, THERE WAS A DISSENT HERE, RIGHT? - JUSTICE GINSBURG WROTE THE DISSENT, JOINED BY JUSTICES SOTOMAYOR AND KAGAN. SHE STRESSED THAT THIS SHOULD BE DECIDED BY SIMPLE APPLICATION OF<i> GEORGIA V. RANDOLPH.</i> SHE EXPRESSED GREAT CONCERN THAT POLICE CAN SIMPLY CIRCUMVENT<i> GEORGIA V. RANDOLPH</i> BY WAITING UNTIL THE PERSON WHO DIDN'T CONSENT TO THE SEARCH LEAVES THE HOME. BUT THE SUPREME COURT WAS CLEAR-- <i> GEORGIA V. RANDOLPH</i> APPLIES ONLY IN A SITUATION WHERE BOTH OCCUPANTS OF THE DWELLING ARE PRESENT AT THE TIME OF THE SEARCH. - OK. FINALLY, WE HAVE<i> NAVARETTE V. CALIFORNIA.</i> ERWIN, TURNING TO YOU AGAIN, CAN YOU EXPLAIN THE FACTS HERE? - SURE. THERE WAS AN ANONYMOUS 911 CALL THAT SAID THAT A PERSON HAD BEEN RUN OFF THE ROAD BY A CAR DRIVING ERRATICALLY. THE CALLER GAVE A DESCRIPTION OF THE CAR, INCLUDING ITS LICENSE PLATE NUMBER. WITHIN 15 MINUTES, THE POLICE FOUND THAT CAR. THE OFFICERS FOLLOWED THE CAR FOR 5 MILES, FOR 5 MINUTES. THE POLICE THEMSELVES DIDN'T OBSERVE ANY ERRATIC DRIVING. BUT BASED ON THE 911 CALL, THE POLICE PULLED OVER THE CAR. THE OFFICERS SAID THEY SMELLED MARIJUANA. THEY THEN DID THE SEARCH OF THE CAR. THEY FOUND 30 POUNDS OF MARIJUANA. AND SO THE ISSUE BEFORE THE SUPREME COURT WAS WHETHER THE ANONYMOUS 911 CALL BY ITSELF COULD BE A BASIS FOR STOPPING THE CAR. - SO WHAT DID THE SUPREME COURT SAY? - THE SUPREME COURT SAID THAT THE STOP DID COMPLY WITH THE FOURTH AMENDMENT, THAT IF YOU LOOK AT THE TOTALITY OF THE CIRCUMSTANCES, THE OFFICERS COULD SAY THAT THERE WAS REASONABLE SUSPICION THAT THE DRIVER WAS INTOXICATED. JUSTICE THOMAS WROTE THE OPINION, AND HE DID SAY IT WAS A CLOSE CALL. BUT HE SAID, HERE THE POLICE COULD VERIFY THE DESCRIPTION, VERIFY THE LICENSE PLATE NUMBER. YOU'RE DEALING WITH A CLASSIC SITUATION OF A CAR, PERHAPS, A DRUNKEN DRIVER TRYING TO RUN SOMEBODY OFF THE ROAD. SO GIVEN THE TOTALITY OF CIRCUMSTANCES, THEY WOULD ALLOW THE STOP. - JUSTICE SCALIA WROTE THE DISSENT, WHICH WAS JOINED BY JUSTICES GINSBURG, SOTOMAYOR, AND KAGAN. JUSTICE SCALIA SAID IT'S JUST GOING TO MAKE IT TOO EASY FOR ANYONE TO HAVE SOMEBODY ELSE PULLED OVER BY MAKING AN ANONYMOUS 911 CALL. JUSTICE SCALIA SAID YOU CAN'T ASSUME THAT JUST BECAUSE A CAR IS MOMENTARILY DRIVING ERRATICALLY THAT THE DRIVER IS UNDER THE INFLUENCE OR INTOXICATED. IT'S INTERESTING THAT THIS CASE REFLECTS A PATTERN WE'VE SEEN IN MANY CASES. JUSTICE BREYER IS VOTING IN FAVOR OF THE POLICE AND LAW ENFORCEMENT, JUST LIKE HE DID IN FERNANDEZ. JUSTICE SCALIA IS VOTING IN FAVOR OF THE CRIMINAL DEFENDANT, AS HE HAS IN A NUMBER OF RECENT FOURTH AMENDMENT DECISIONS. - THANKS, ERWIN, AND THANKS, LAURIE. ANY QUESTIONS ON THIS PANEL? - WE HAVE ONE HERE. "WHAT EFFECT WILL THE<i> RILEY</i> DECISION HAVE ON SEARCHES "OF OTHER ELECTRONIC DEVICES, LIKE LAPTOPS AND TABLETS, AND WHAT DOES IT SAY ABOUT CASES OF SUCH DEVICES AT THE BORDER?" - JIM, I LIKE THAT QUESTION. I THINK WHEN IT COMES TO THE STOPS INCIDENT TO ARREST, OTHER TYPES OF ELECTRONIC DEVICES THAT HAVE THAT TYPE OF INFORMATION PROBABLY WILL BE GOVERNED BY<i> RILEY.</i> THE OFFICER SHOULD GO AND GET THAT WARRANT IF THEY DON'T HAVE EXIGENT CIRCUMSTANCES OR CONSENT. BUT I DON'T THINK IT ANSWERS THE QUESTION FOR THE BORDER SEARCHES. THE COURTS ARE STILL DIVIDED WHEN IT COMES TO THE BORDER HOW MUCH THE CUSTOM OFFICERS CAN LOOK THROUGH COMPUTERS AND OTHER TYPES OF DEVICES. - OK. NO MORE QUESTIONS. WE'LL BE RIGHT BACK, THEN, WITH A LOOK AT SOME CIVIL RIGHTS DECISIONS. - THE RULE THAT WE ADVOCATE IS AND THE ONLY REAL QUESTION PRESENTED IN THIS CASE IS JUST THIS--IF A STATE CONDITIONS THE OPPORTUNITY TO DEMONSTRATE MENTAL RETARDATION ON OBTAINED IQ TEST SCORES, IT CANNOT IGNORE THE MEASUREMENT ERROR THAT IS INHERENT IN THOSE SCORES THAT IS A FEATURE, STATISTICAL FEATURE, OF THE TEST INSTRUMENT ITSELF. - THAT IS SETH WAXMAN, REPRESENTING THE PETITIONER IN OUR FIRST DECISION IN THIS PANEL,<i> HALL V. FLORIDA.</i> AS YOU MIGHT HAVE GATHERED FROM THAT BIT OF AUDIO, THE ISSUE IN QUESTION WAS THE PROPER WAY TO MEASURE THE MENTAL ABILITY OF A DEFENDANT, AND WHAT WAS AT STAKE WAS WHETHER FLORIDA HAD GIVEN FREDDIE LEE HALL A CHANCE TO PROVE HE WAS INTELLECTUALLY DISABLED WHEN HE WAS TRIED FOR MURDER IN 1978. IF HE WAS, HE WOULD BE INELIGIBLE TO BE EXECUTED UNDER THE COURT'S 2002 DECISION IN<i> ATKINS V. VIRGINIA.</i> SUZANNA, CAN YOU FILL US IN ON SOME BACKGROUND HERE? - WELL, AS YOU JUST MENTIONED, UNDER ATKINS, THE COURT HELD THAT IT WAS UNCONSTITUTIONAL TO EXECUTE SOMEONE WHO IS INTELLECTUALLY DISABLED, BUT THAT CASE LEFT OPEN THE QUESTION HOW STATES COULD DEFINE INTELLECTUAL DISABILITY FOR PURPOSES OF ELIGIBILITY FOR EXECUTION. SO FLORIDA AND A FEW OTHER STATES SET AN ABSOLUTE CUTOFF OF A SCORE OF 70 OR BELOW ON AN IQ TEST. UNDER FLORIDA LAW, IF YOUR IQ WAS HIGHER THAN 70, YOU COULD NOT EVEN PRESENT ANY EVIDENCE OF AN INTELLECTUAL DISABILITY. - SO HOW DID FREDDIE HALL SCORE? - A HEARING WAS HELD IN 2009. HALL'S SCORE WAS REPORTED TO BE 71 ON THE IQ TEST. ANOTHER TEST WAS ADMINISTERED, AND HIS SCORE WAS 73, SO THE FLORIDA SUPREME COURT SAID SINCE HIS SCORE WAS ABOVE 70, HE WAS NOT DEEMED INTELLECTUALLY DISABLED, AND THE DEATH PENALTY COULD BE IMPOSED. - SO WHAT DID THE HIGH COURT SAY? - THEY HELD 5-4 THAT FLORIDA'S APPROACH WAS UNCONSTITUTIONAL-- THAT IS, THAT STATES CANNOT USE AN ABSOLUTE CUTOFF OF LESS THAN 75. - THIS IS WHERE YOU GET INTO THE STATISTICS. THE QUESTION IS, HOW DO WE DETERMINE RELIABILITY? SETH WAXMAN ARGUED TO THE COURT THAT IF YOU WANT TO HAVE A 95% CERTAINTY THAT A PERSON'S IQ IS 70 OR ABOVE, IT NEEDS TO BE SET AT 75. I THINK THE COURT WAS VERY CONCERNED ABOUT THE UNRELIABILITY OF IQ TESTS. JUSTICE KENNEDY EVEN SAYS WE SHOULDN'T BE EXECUTING A PERSON BECAUSE THE IQ IS 71 RATHER THAN 70. - RIGHT. SO WHAT DO YOU THINK THE IMPLICATIONS FOR THE LOWER COURTS ARE? - MANY STATES HAVE LAWS LIKE FLORIDA'S THAT SET THE IQ AT 70. SOME STATES HAVE LAWS THAT SET THE IQ AT 75 TO DETERMINE IF SOMEONE IS SO INTELLECTUALLY DISABLED, THE DEATH PENALTY COULDN'T BE IMPOSED. YOU'RE GOING TO SEE CHALLENGES TO ALL OF THESE LAWS. I THINK THE BOTTOM LINE FROM THIS CASE IS, THERE'S GOING TO HAVE TO BE THE OPPORTUNITY FOR A DEFENDANT TO PRESENT OTHER EVIDENCE BESIDES THE IQ SCORE, SUCH AS TESTIMONY AND BEING ABLE TO SHOW THAT HE OR SHE IS INTELLECTUALLY DISABLED AND THE DEATH PENALTY CAN'T BE IMPOSED. - I AGREE WITH ERWIN. I THINK THERE'S GOING TO BE SOME OTHER CHALLENGES, TOO. I THINK JUDGES ARE GOING TO SEE FURTHER CHALLENGES TO STATE LAWS THAT SET ABSOLUTE CUTOFFS AT 75 OR ABOVE, BECAUSE ALTHOUGH THE COURT SAID IT WAS UNCONSTITUTIONAL TO SET A CUTOFF BELOW 75, IT NEVER ACTUALLY SAID THAT IT WOULD BE CONSTITUTIONAL TO SET A CUTOFF AT 75. THERE'S ALSO, I THINK, GOING TO BE DISPUTE ABOUT WHAT TYPES OF EVIDENCE CAN BE USED TO SHOW INTELLECTUAL DISABILITY, IN PARTICULAR, EVIDENCE OF DEFICITS IN ADAPTIVE FUNCTIONING, BECAUSE THE MAJORITY RELIED ON A DEFINITION OF INTELLECTUAL DISABILITY THAT REQUIRES CONCURRENT DEFICITS IN BOTH INTELLECTUAL FUNCTIONING AND ADAPTIVE FUNCTIONING. - OK. THANK YOU. IN OUR NEXT DECISION, THE COURT AGAIN REVISITS AN ISSUE IT DEALT WITH IN RECENT YEARS-- AFFIRMATIVE ACTION IN HIGHER EDUCATION. THIS IS<i> SCHUETTE V. THE COALITION TO DEFEND AFFIRMATIVE ACTION.</i> WE SHOULD NOTE, IN THE INTEREST OF FULL DISCLOSURE, THAT YOUR NAME WAS ON THE BRIEF AS CO-COUNSEL FOR ONE OF THE RESPONDENTS, RIGHT, ERWIN? - YES. - OK. SUZANNA, LET'S START WITH YOU. WHAT'S THE ISSUE HERE? - WELL, IN 2006, MICHIGAN VOTERS PASSED AN INITIATIVE THAT AMENDED THE STATE CONSTITUTION TO PROHIBIT THE STATE OR ANY OF ITS POLITICAL SUBDIVISIONS, INCLUDING THE STATE UNIVERSITY, FROM DISCRIMINATING OR GIVING PREFERENCE ON THE BASIS OF RACE OR GENDER IN EDUCATION, CONTRACTING, OR EMPLOYMENT, AND 2 LAWSUITS CHALLENGED THAT REFERENDUM, CALLED PROPOSAL 2, IN THE AREA OF EDUCATION, AND THE SIXTH CIRCUIT STRUCK DOWN PROP 2 AS UNCONSTITUTIONAL. - WHAT WAS THE REASONING? - THE SIXTH CIRCUIT, INITIALLY IN A PANEL DECISION AND THEN IN AN 8-7 EN BANC RULING, SAID THAT PROPOSAL 2 IMPERMISSIBLY RESTRUCTURED THE POLITICAL PROCESS ALONG RACIAL LINES. THE SIXTH CIRCUIT RELIED ON 2 EARLIER SUPREME COURT CASES, <i> HUNTER V. ERICKSON</i> AND<i> WASHINGTON V. SEATTLE SCHOOLS.</i> THE SIXTH CIRCUIT SAID ALMOST ANYONE IN THE STATE WHO WANTS A PREFERENCE IN ADMISSION TO THE MICHIGAN SCHOOLS COULD GET IT BY GOING BEFORE THE MICHIGAN LEGISLATURE OR THE MICHIGAN BOARD OF REGENTS. IF IN-STATE RESIDENTS WANTED PREFERENCE OVER OUT-OF-STATE RESIDENTS, IF THOSE WHO WENT TO MICHIGAN SCHOOLS WANTED A PREFERENCE FOR THEIR CHILDREN, THE MICHIGAN LEGISLATURE, THE BOARD OF REGENTS, COULD DO IT. THE SIXTH CIRCUIT SAID THE ONLY GROUP THAT REALISTICALLY COULD NOT USE THE POLITICAL PROCESS WOULD BE RACIAL MINORITIES. FOR THEM TO HAVE THE STATE ADAPT RACIALLY SENSITIVE ADMISSIONS POLICIES--AFFIRMATIVE ACTION-- WOULD REQUIRE THE MUCH MORE ARDUOUS PROCESS OF AMENDING THE STATE CONSTITUTION. - OK. SO HOW DID THE SUPREME COURT COME DOWN? - THE SUPREME COURT REVERSED THE SIXTH CIRCUIT. IT WAS 6-2, BUT WITHOUT A MAJORITY OPINION. SO THERE WAS A LOT OF DISAGREEMENT, BUT WHAT THE 6 JUSTICES IN THE MAJORITY DID AGREE ON IS THAT WHILE AFFIRMATIVE ACTION IS CONSTITUTIONALLY PERMISSIBLE UNDER SOME CIRCUMSTANCES, IT'S NOT CONSTITUTIONALLY MANDATED, SO THAT FACIALLY RACE-NEUTRAL LAWS ARE CONSTITUTIONAL EVEN IF THEY HAVE A NEGATIVE EFFECT ON RACIAL MINORITIES, UNLESS THERE'S EVIDENCE OF DISCRIMINATORY MOTIVE. THERE WAS NO EVIDENCE OF DISCRIMINATORY MOTIVE HERE, AND SO THE COURT UPHELD THE MICHIGAN INITIATIVE. - OK. SO ONE MORE QUESTION I HAVE, THEN, IS, WHAT ABOUT THE PRECEDENTS THE SIXTH CIRCUIT RELIED ON-- THAT IS,<i> HUNTER V. ERICKSON</i> AND<i> WASHINGTON V. SEATTLE SCHOOLS?</i> - WELL, THEY HAVEN'T BEEN FORMALLY OVERRULED, BUT THEY'VE CERTAINLY BEEN NARROWED ON THE POLITICAL PROCESS POINT. IF YOU LOOK IN PARTICULAR AT JUSTICE KENNEDY'S PLURALITY OPINION AND ITS INSISTENCE ON PROOF OF INTENTIONAL DISCRIMINATION, IT'S JUST HARD TO IMAGINE A FUTURE FOR THE POLITICAL RESTRUCTURING DOCTRINE. - OUR NEXT CASES ARE ABOUT QUALIFIED IMMUNITY AND WHEN LAW ENFORCEMENT OFFICERS CAN EXPECT TO BE GIVEN ITS PROTECTION. JUST TO REMIND EVERYONE, QUALIFIED IMMUNITY MEANS THAT WHEN GOVERNMENT OFFICERS ARE SUED FOR MONEY DAMAGES FOR A CONSTITUTIONAL VIOLATION AND DON'T HAVE ABSOLUTE IMMUNITY, THEY CAN ONLY BE HELD LIABLE IF THEY VIOLATE CLEARLY ESTABLISHED LAW THAT A REASONABLE OFFICER SHOULD KNOW. WE'RE GOING TO DISCUSS THESE DECISIONS TOGETHER BECAUSE OF WHAT THEY SAY COLLECTIVELY ABOUT THE DOCTRINE. IN<i> PLUMHOFF V. RICKARD,</i> POLICE SHOT 15 TIMES INTO A CAR THAT LED THEM ON A HIGH-SPEED CHASE, SOMETIMES AT MORE THAN A HUNDRED MILES PER HOUR. THEY HAD A REASONABLE SUSPICION THAT THE DRIVER HAD BEEN DRINKING, AND HE REPEATEDLY TRIED TO ESCAPE WHEN CORNERED, EVEN WHEN POLICE STARTED SHOOTING. BOTH THE DRIVER AND THE PASSENGER WERE KILLED. IN<i> WOOD V. MOSS,</i> SECRET SERVICE AGENTS PROTECTING PRESIDENT GEORGE W. BUSH WHILE HE DINED AT AN OUTDOOR RESTAURANT HAD TO CONTROL CROWDS OF SUPPORTERS AND PROTESTERS ON THE STREETS NEARBY. IN MOVING THE 2 DIFFERENT GROUPS, THE ANTI-BUSH PROTESTERS WERE PLACED FURTHER AWAY FROM THE PRESIDENT THAN THE PRO-BUSH SUPPORTERS. THE SECRET SERVICE AGENTS WERE CHARGED WITH VIOLATING THE FIRST AMENDMENT RIGHTS OF THE ANTI-BUSH DEMONSTRATORS BY DISCRIMINATING BASED ON THEIR VIEWPOINT. THE COURT FOUND FOR THE LAW ENFORCEMENT OFFICERS IN BOTH OF THESE CASES. SO, SUZANNA, CAN WE START BY TALKING ABOUT THE SIMILARITIES AND DIFFERENCES BETWEEN THE 2 CASES? - YES. THE MOST IMPORTANT SIMILARITY IN THESE CASES IS THAT BOTH INVOLVED LAW ENFORCEMENT OFFICERS MAKING DECISIONS ON THE FLY, AND IN FACT, IN ONE CASE, IT WAS A SPLIT-SECOND DECISION. AND THE JUSTICES HAVE ALWAYS BEEN VERY RELUCTANT TO SECOND-GUESS LAW ENFORCEMENT OFFICERS IN THESE CIRCUMSTANCES, AND SO THEY OFTEN GRANT THEM QUALIFIED IMMUNITY. THESE CASES ARE PERFECT EXAMPLES. IN ONE CASE, THE SAFETY OF THE PRESIDENT WAS AT ISSUE. AND IN THE OTHER, THE HIGH-SPEED CHASE WAS POSING SERIOUS RISKS TO THE PUBLIC. - I THINK SOMETHING ELSE IS GOING ON HERE, THOUGH. I THINK THESE CASES ARE PART OF A PATTERN OF THE SUPREME COURT FINDING QUALIFIED IMMUNITY BECAUSE OF THE ABSENCE OF A CASE ON POINT. IN<i> WOOD V.</i> MOSS, THE LAW IS CLEAR THAT VIEWPOINT DISCRIMINATION BY THE GOVERNMENT VIOLATES THE FIRST AMENDMENT. BUT JUSTICE GINSBURG'S OPINION FOR A UNANIMOUS COURT SAID THERE WAS QUALIFIED IMMUNITY BECAUSE THERE'S NO CASE ON POINT AS TO WHEN SECRET SERVICE AGENTS VIOLATE THE FIRST AMENDMENT. IN<i> PLUMHOFF V. RICKARD,</i> THE SUPREME COURT FOUND THAT THE OFFICERS' BEHAVIOR DID NOT VIOLATE THE FOURTH AMENDMENT, BUT THEN WENT ON TO SAY THERE WAS QUALIFIED IMMUNITY BECAUSE THE FACTS OF A HIGH-SPEED CHASE ARE SO INDIVIDUAL, IT'S UNLIKELY THAT THERE'LL EVER BE A CASE ON POINT. I'D REFER TO A THE CASE THAT WE TALKED ABOUT EARLIER IN OUR DISCUSSION ON THE FIRST AMENDMENT. IN<i> LANE V. FRANKS,</i> THE SUPREME COURT SAID EVEN THOUGH IT VIOLATES THE FIRST AMENDMENT TO FIRE A GOVERNMENT EMPLOYEE FOR TRUTHFUL TESTIMONY GIVEN PURSUANT TO A SUBPOENA, THE DEFENDANT WAS PROTECTED BY QUALIFIED IMMUNITY BECAUSE THERE WAS NO CASE ON POINT. - I AGREE WITH ERWIN, BUT THERE IS ONE CAVEAT TO KEEP IN MIND, I THINK, AND THAT'S THAT THE CAR CHASE SCENARIO INVOLVED ONLY A LEGAL QUESTION, NOT A FACTUAL DISPUTE. THE ONLY QUESTION WAS WHETHER THE OFFICERS' CONDUCT VIOLATED THE FOURTH AMENDMENT. THERE WAS NO FACTUAL DISPUTE ABOUT WHAT IT WAS THE OFFICERS DID. EARLIER IN THE TERM, THOUGH, THE COURT REVERSED A GRANT OF SUMMARY JUDGMENT THAT HAD BEEN GIVEN TO POLICE OFFICERS ON QUALIFIED IMMUNITY GROUNDS BECAUSE THERE WERE FACTUAL DISPUTES IN THAT CASE, AND THE COURT SAID-- THIS IS A CASE CALLED<i> TOLAN V. COTTON.</i> THE COURT SAID THAT THE LOWER COURT HAD FAILED TO CONSIDER THE DISPUTED EVIDENCE IN THE LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY. SO PLUMHOFF IS BROAD IN THE SENSE THAT, AS ERWIN SUGGESTED, I THINK IT MAKES IT VERY DIFFICULT TO OVERCOME QUALIFIED IMMUNITY IN THESE SORTS OF SCENARIOS, BUT IT'S NARROW IN THE SENSE THAT IT ONLY APPLIES IN CASES WHERE THERE ARE LEGAL DISPUTES, BUT NO FACTUAL DISPUTES. - OK. THANKS. FINALLY, IN<i> STANTON V. SIMS,</i> THE JUSTICES AGAIN HELD FOR POLICE OFFICERS, THIS TIME IN A PER CURIAM DECISION WITHOUT BRIEFING OR ORAL ARGUMENT. HERE, A POLICE OFFICER FOLLOWED A MISDEMEANOR SUSPECT INTO A HOUSE IN HOT PURSUIT. THE OFFICER WAS SUED FOR VIOLATING THE FOURTH AMENDMENT RIGHTS OF THE HOMEOWNER. BECAUSE THE LOWER COURTS WERE SPLIT ON WHETHER THE OFFICER'S CONDUCT WAS A VIOLATION, THE COURT SAID THERE WAS NOT CLEARLY ESTABLISHED LAW THAT A REASONABLE OFFICER SHOULD KNOW. IN FINDING THAT THE OFFICER HAD QUALIFIED IMMUNITY, THE COURT REPEATED ITS EARLIER LANGUAGE THAT QUALIFIED IMMUNITY PROTECTS ALL BUT THE PLAINLY INCOMPETENT OR THOSE WHO KNOWINGLY VIOLATE THE LAW. QUESTIONS? - YEAH. I THINK WE HAVE ONE INVOLVING THE FIFTH CIRCUIT, A DECISION FROM YESTERDAY. IT SAYS, "YESTERDAY, THE FIFTH CIRCUIT UPHELD "THE UNIVERSITY OF TEXAS' AFFIRMATIVE ACTION PLAN. HOW DOES THIS RELATE TO WHAT THE SUPREME COURT DID IN<i> SCHUETTE?</i> - THAT'S AN INTERESTING QUESTION THERE. THE CASES RAISED VERY DIFFERENT QUESTIONS. WHAT<i> SCHUETTE</i> DECIDED WAS WHETHER AFFIRMATIVE ACTION IS CONSTITUTIONALLY MANDATED-- IN OTHER WORDS, WHETHER IT'S CONSTITUTIONAL TO ELIMINATE AFFIRMATIVE ACTION PROGRAMS, AND THEY SAID THAT IT WAS. WHAT THE TEXAS CASE RAISES IS THE QUESTION OF WHETHER PUTTING IN PLACE AFFIRMATIVE ACTION PROGRAMS IS CONSTITUTIONAL; IS AFFIRMATIVE ACTION ITSELF CONSTITUTIONAL? THIS IS THE CASE THAT THE SUPREME COURT HAD SENT BACK A COUPLE OF YEARS AGO, AND MY GUESS IS IT'S GOING TO GO BACK TO THE SUPREME COURT, BUT THEY WON'T RELY ON<i> SCHUETTE.</i> THEY'LL RELY ON<i> BAKKE</i> AND<i> GRATZ</i> AND<i> GRUTTER</i> AND THOSE CASES TO DECIDE WHETHER THE TEXAS PROGRAM IS CONSTITUTIONAL. - THANKS. NEXT, WE'RE GOING TO LOOK AT CRIMINAL LAW AND TRIAL RIGHTS. - STATUTORY INTERPRETATION PLAYED A MAJOR PART IN THE COURT'S CRIMINAL LAW DECISIONS THIS TERM, ADDRESSING ISSUES OFTEN RAISED IN THE FEDERAL COURT. THE COURT STUCK PRETTY CLOSE TO THE LANGUAGE OF THE STATUTES IN REACHING THESE DECISIONS AND TOOK A HARD LOOK AT CAUSATION ISSUES THEY RAISED. A GOOD EXAMPLE OF THIS LAST THEME WAS THE DECISION IN<i> BURRAGE V. UNITED STATES.</i> MR. BURRAGE SOLD ONE GRAM OF HEROIN TO A CUSTOMER NAMED JOSHUA BANKA. MR. BANKA WENT ON A ONE-DAY BINGE USING A NUMBER OF DIFFERENT NARCOTICS AND OPIOIDS BESIDES THE GRAM OF HEROIN HE BOUGHT FROM BURRAGE AND DIED AS A RESULT OF HIS DRUG USE. SO, EVAN, WHAT WAS THE ISSUE BEFORE THE COURT? - WELL, UNDER FEDERAL LAW, A DEFENDANT WHO'S CHARGED WITH ILLEGALLY DISTRIBUTING DRUGS HAS TO SERVE A 20-YEAR MINIMUM SENTENCE IF DEATH OR SERIOUS BODILY INJURY RESULTS FROM THE USE OF THE SUBSTANCE. THE PROBLEM IS THAT THE CONTROLLED SUBSTANCE ACT DOESN'T DEFINE THE PHRASE "RESULTS FROM." NOW, HERE, THE TRIAL COURT INSTRUCTED THE JURY THAT IT COULD CONVICT IF THE HEROIN WAS A CONTRIBUTING CAUSE OF THE DEATH. THE JURY CONVICTED BURRAGE, AND THE APPEALS COURT AFFIRMED THAT DECISION. - OK. IN OUR NEXT DECISION-- GO AHEAD. - LET ME JUMP IN JUST FOR A MINUTE AND SAY THAT IN THIS SITUATION, THE COURT LOOKED CAREFULLY AT THIS "RESULTS FROM" AND SAID IT'S REALLY SOMETHING MORE LIKE "BUT FOR" CAUSE OR "BECAUSE OF" UNDER THE TORT LAW STANDARDS, NOT JUST SIMPLY THAT HE MADE A SALE AND THAT TRAGICALLY, THE VICTIM DIED. IN OTHER WORDS, IT NEEDS TO BE ABLE TO TRACE THAT CAUSE BACK TO THE PARTICULAR DRUG THAT THE DEFENDANT SOLD TO THE VICTIM IN ORDER FOR THIS STATUTE TO APPLY. - OUR NEXT DECISION DEALS WITH THE ISSUE OF RESTITUTION. IN<i> PAROLINE V. UNITED STATES,</i> A SMALL CHILD REFERRED TO IN COURT DOCUMENTS ONLY AS AMY WAS SEXUALLY ABUSED BY HER UNCLE. YEARS LATER, AT AGE 17, SHE DISCOVERED THAT PICTURES OF HER ABUSE WERE BEING DISTRIBUTED ON THE INTERNET. UNDER THE FEDERAL VIOLENCE AGAINST WOMEN ACT OF 1994, DISTRICT COURTS ARE REQUIRED TO AWARD RESTITUTION FOR CERTAIN CRIMINAL OFFENSES, FEDERAL OFFENSES, INCLUDING POSSESSION OF CHILD PORNOGRAPHY. NOW, DOYLE PAROLINE PLEADED GUILTY TO POSSESSING CHILD PORNOGRAPHY, INCLUDING 2 IMAGES OF AMY'S ABUSE. LAURIE, THE QUESTION WAS, WHAT RESTITUTION WAS OWED HER? - RIGHT. AND AMY SOUGHT, ACTUALLY, $3.4 MILLION IN RESTITUTION FROM PAROLINE. SHE ADMITTED THAT SHE DIDN'T KNOW HIM, THAT NONE OF HER CLAIMS FLOW DIRECTLY FROM HIS SPECIFIC KNOWLEDGE OF THE PHOTOS, BUT NONETHELESS, SHE WANTED THE RESTITUTION. THE TRIAL COURT AWARDED AMY NO RESTITUTION BECAUSE THE GOVERNMENT COULD NOT SHOW THAT PAROLINE'S POSSESSION OF THE IMAGES WAS WHAT CONTRIBUTED AND WAS A PROXIMATE CAUSE OF HER LOSSES. BUT THE FIFTH CIRCUIT EN BANC REVERSED AND SAID THAT HOLDING THAT RESTITUTION WAS NOT LIMITED TO THE LOSSES THAT WERE PROXIMATELY CAUSED BY ANY INDIVIDUAL DEFENDANT, THAT THIS DEFENDANT POSSESSED THE IMAGES AND WAS RESPONSIBLE FOR THE ENTIRE LOSS. SO THE BASIC ISSUE IS, HOW DO YOU DETERMINE THE AMOUNT OF RESTITUTION OWED A VICTIM UNDER THE STATUTE BY A SINGLE POSSESSOR OF THE PORNOGRAPHY? THE LANGUAGE OF THE STATUTE REFERS TO, QUOTE, "THE LOSS SUSTAINED BY THE VICTIM AS A RESULT OF THE OFFENSE," NOT DISSIMILAR FROM THE LANGUAGE IN THE<i> BURRAGE</i> DECISION. - YEAH. THE USUAL "BUT FOR" CAUSATION STANDARD CAN'T BE MET HERE BECAUSE THERE ARE THOUSANDS OF PEOPLE WHO POSSESSED THE IMAGES OF AMY'S ABUSE, AND IT WOULD BE IMPOSSIBLE TO TRACE ANY PARTICULAR PERSON'S POSSESSION TO A CONCRETE LOSS ON AMY'S PART. SO UNDER THE AGGREGATE CAUSATION STANDARD USED BY THE APPEALS COURT IN THIS CASE, EACH PERSON WHO POSSESSED AN IMAGE OF AMY'S ABUSE WAS JOINTLY AND SEVERALLY LIABLE FOR ALL OF HER LOSSES. THE SUPREME COURT HERE CHOSE A MIDDLE GROUND WHERE IT COULD BE PROVED THAT THE DEFENDANT POSSESSED IMAGES OF THE VICTIM'S ABUSE AND THE VICTIM CONTINUED TO SUFFER LOSSES FROM THE CONTINUED TRAFFICKING IN THOSE IMAGES. BUT WHERE IT WAS IMPOSSIBLE TO TRACE A PARTICULAR AMOUNT OF THOSE LOSSES TO THE DEFENDANT'S POSSESSION, THE COURT SAID THAT THE DISTRICT COURT SHOULD USE A SET OF GUIDELINES, ROUGH GUIDEPOSTS FOR DETERMINING THE PROPER AMOUNT OF RESTITUTION. AND THE COURT ACTUALLY NAMED 14 OF THESE GUIDEPOSTS, OF WHICH, 3--I'M JUST GOING TO MENTION 3 OF THEM. ONE IS THE NUMBER OF OTHER CRIMINAL DEFENDANTS PROVEN TO HAVE CONTRIBUTED TO THE VICTIM'S GENERAL LOSSES. A SECOND WOULD BE REASONABLE PREDICTION OF THE NUMBER OF FUTURE OFFENDERS LIKELY TO BE CAUGHT AND CONVICTED OF CONTRIBUTING TO THE VICTIM'S GENERAL LOSSES. AND 3, ANY AVAILABLE AND REASONABLY RELIABLE ESTIMATE OF THE BROADER NUMBER OF OFFENDERS. THE SUPREME COURT ALSO SAID THAT THE DISTRICT COURT SHOULD THEN SET AN APPROPRIATE PAYMENT SCHEDULE, TAKING INTO ACCOUNT THE DEFENDANT'S FINANCIAL MEANS. I DO THINK THAT, SIGNIFICANTLY, THE COURT HERE SAID THAT THE DEFENDANT'S SHARE OF THE LOSSES SHOULD NOT BE, AND I'M QUOTING HERE, "A TOKEN OR NOMINAL AMOUNT, "BUT INSTEAD, IT SHOULD BE A REASONABLE "AND CIRCUMSCRIBED AWARD THAT RECOGNIZES THE OFFENDER'S ROLE IN CAUSING THE VICTIM'S LOSSES." - OK. THIS WAS A 5-4 DECISION WITH A COUPLE OF DISSENTS, THOUGH, WASN'T IT, LAURIE? - YES. THERE WERE 2 DISSENTS. THE FIRST DISSENT WAS WITH THE CHIEF JUSTICE, JUSTICES SCALIA AND THOMAS, AND THEY SAID THAT THE COURT SHOULD REJECT RESTITUTION BECAUSE WHAT THE MAJORITY CAME UP WITH IS REALLY NOT A PROPER APPROACH, AND IT'S LEFT TO CONGRESS TO CLEAN UP THE STATUTE. THE SECOND DISSENT WENT THE OTHER WAY, AND THAT WAS JUSTICE SOTOMAYOR. SHE WOULD CALL FOR FULL RESTITUTION FROM ANY SINGLE OFFENDER OF THIS VIOLATION. SHE POINTED OUT THAT THE STATUTE IMPOSES A MANDATORY DUTY ON THE DISTRICT COURT TO INCLUDE A RESTITUTION CLAIM. AND SHE SAID FINALLY, LIKE TORT LAW, EACH DEFENDANT IN THIS PORNOGRAPHY CASE SHOULD BE JOINTLY AND SEVERALLY LIABLE FOR THE RESTITUTION. - OUR NEXT 2 DECISIONS INVOLVE FIREARMS STATUTES AND WHEN DEFENDANTS CAN BE LEGITIMATELY CHARGED UNDER 18 U.S.C. 922 (G)(9), CRIMINALIZES THE POSSESSION OF A FIREARM BY ANYONE WHO'S BEEN CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE, WHICH INCLUDES STATE MISDEMEANOR CONVICTIONS INVOLVING THE USE OR ATTEMPTED USE OF PHYSICAL FORCE AGAINST A CURRENT OR FORMER DOMESTIC PARTNER. SO, EVAN, HOW DID THIS AFFECT JAMES CASTLEMAN? - WELL, IN 2001, CASTLEMAN PLEADED GUILTY IN TENNESSEE TO HAVING INTENTIONALLY OR KNOWINGLY CAUSED BODILY INJURY TO THE MOTHER OF HIS CHILD. THEN IN 2008, FEDERAL AUTHORITIES LEARNED CASTLEMAN WAS SELLING FIREARMS ON THE BLACK MARKET, AND THEY INDICTED HIM UNDER THE STATUTE THAT YOU MENTIONED, 18 U.S.C. 922 (G)(9). THE TRIAL COURT DISMISSED THE INDICTMENT, REASONING THAT UNDER THE SUPREME COURT'S 2010 DECISION IN<i> JOHNSON V. UNITED STATES,</i> THE USE OF PHYSICAL FORCE UNDER 922 (G)(9), HAS TO ENTAIL VIOLENT CONTACT WITH THE VICTIM, WHICH CASTLEMAN ARGUED WASN'T THE CASE WITH HIM. THE APPEALS COURT AFFIRMED UNDER SIMILAR REASONING, BUT THE SUPREME COURT DISAGREED. IT DISTINGUISHED JOHNSON FROM THIS CASE, SAYING THAT THERE ARE GOOD REASONS TO THINK THAT CONGRESS MEANT THE WORD "FORCE" IN A BROADER SENSE, AT LEAST WHEN IT OCCURS IN DOMESTIC SITUATIONS. THE MAJORITY FOUND THAT CONGRESS MEANT "FORCE" IN ITS COMMON LAW SENSE OF OFFENSIVE TOUCHING. SO CASTLEMAN'S TENNESSEE CONVICTION QUALIFIED UNDER 922 (G)(9), AND HE COULD BE INDICTED UNDER THE FEDERAL STATUTE. - THE BOTTOM LINE IS THIS IS GOING TO MAKE IT MUCH EASIER FOR DOMESTIC VIOLENCE OFFENDERS TO BE CHARGED UNDER FEDERAL FIREARMS LAW. - JAMES ROSEMOND HAD BETTER LUCK BEFORE THE COURT WHEN IT DECIDED HE COULD NOT BE CHARGED UNDER FEDERAL LAW FOR AIDING AND ABETTING A DRUG CRIME IN WHICH A FIREARM WAS USED. MR. ROSEMOND WAS ONE OF 4 PEOPLE TAKING PART IN A DRUG SALE GONE BAD. ONE OF THE 4 FIRED A GUN AT WOULD-BE DRUG BUYERS, WHO THEN RAN AWAY WITH THE MARIJUANA RATHER THAN PAY FOR IT. BECAUSE IT WAS UNCLEAR WHO FIRED THE SHOTS, ROSEMOND WAS CHARGED AS BOTH THE SHOOTER AND AN AIDER AND ABETTOR. NOW, FEDERAL LAW PROHIBITS USING OR CARRYING A FIREARM DURING AND IN RELATION TO ANY CRIME OF VIOLENCE OR DRUG TRAFFICKING, BUT THERE WAS SOME QUESTION ABOUT THE JURY INSTRUCTION IN THIS TRIAL, WASN'T THERE, LAURIE? - THERE WAS, JIM. THE COURT ONLY INSTRUCTED THE JURY THAT ROSEMOND HAD TO KNOWINGLY ASSOCIATE IN A DRUG CRIME TO BE GUILTY OF THIS, AND ROSEMOND'S ATTORNEY ARGUED THAT THE INSTRUCTION SHOULD REQUIRE THE JURY TO FIND THAT ROSEMOND ALSO KNEW THAT A GUN WOULD BE USED IN THE CRIME. ROSEMOND WAS CONVICTED UNDER THE JUDGE'S INSTRUCTION, AND THE APPELLATE COURT AFFIRMED. - WHAT DID THE SUPREME COURT HOLD? - THE COURT HELD THAT TO BE AN AIDER AND ABETTOR, AT LEAST UNDER THIS STATUTE, A DEFENDANT MUST AT LEAST KNOW AHEAD OF TIME THAT ONE OF HIS CONFEDERATES WILL CARRY A GUN, AND THE DEFENDANT HAS TO HAVE A REALISTIC OPPORTUNITY TO DISCONTINUE HIS PARTICIPATION IN THE CRIME. YEAH. THAT'S PRETTY MUCH IT. - OK. NEXT, WE'LL LOOK AT<i> ABRAMSKI V. UNITED STATES.</i> THIS IS THE SO-CALLED STRAW PURCHASER CASE. BRUCE ABRAMSKI OFFERED TO BUY A HANDGUN FOR HIS UNCLE. NOW, HIS UNCLE COULD HAVE BOUGHT IT LEGALLY BY HIMSELF, BUT ABRAMSKI SAID HE COULD GET IT CHEAPER USING AN OLD POLICE I.D. ABRAMSKI HAD BEEN BUT WAS NO LONGER A POLICE OFFICER. NOW, THE PROBLEM FOR MR. ABRAMSKI WAS THAT FEDERAL LAW 18 U.S.C. 922 (A)(6) DOES NOT ALLOW SUCH STRAW PURCHASES. IT REQUIRES THE BUYER TO FILL OUT A FORM ASKING IF HE'S THE ACTUAL TRANSFEREE/BUYER OF THE GUN OR IF HE'S BUYING IT FOR SOMEONE ELSE. NOW, ANSWERING THAT QUESTION FALSELY CARRIES A CRIMINAL PENALTY, AND MR. ABRAMSKI LIED. THE TRIAL COURT CONVICTED HIM, AND THE APPELLATE COURT UPHELD THE JUDGMENT, BUT HE MADE AN ADDITIONAL ARGUMENT BEFORE THE SUPREME COURT, DIDN'T HE, LAURIE? - YES, HE DID. THAT'S RIGHT. ABRAMSKI ARGUED THAT EVEN IF HE DID ANSWER THE QUESTION ABOUT BEING THE REAL BUYER FALSELY, THAT IT SHOULDN'T MATTER BECAUSE ALL THE STATUTE CARES ABOUT IS WHETHER THE PERSON WHO IS PAYING FOR THAT GUN AT THE POINT OF PURCHASE IS ELIGIBLE TO BUY THE GUN. THE SUPREME COURT REJECTED THAT ARGUMENT. THE 5-PERSON MAJORITY OPINION WAS WRITTEN BY JUSTICE KAGAN. SHE SAID THAT THE FEDERAL GUN LAW ESTABLISHES THIS ELABORATE SYSTEM OF IN-PERSON IDENTIFICATION AND BACKGROUND CHECKS TO ENSURE THAT GUNS ARE KEPT OUT OF THE HANDS OF FELONS OR OTHER INELIGIBLE PURCHASERS. THE PROVISIONS WOULD MEAN VERY LITTLE IF IN FACT YOU COULD HAVE SOMEONE EVADE THEM SIMPLY BY ENLISTING AN INTERMEDIARY TO COME AND EXECUTE ALL THE PAPERWORK. - AND, EVAN, WHAT WAS ABRAMSKI'S OTHER ORIGINAL ARGUMENT? - WELL, HIS OTHER ARGUMENT WAS IT DIDN'T MATTER WHETHER HE LIED ABOUT WHO WAS REALLY BUYING THE GUN BECAUSE HIS UNCLE WAS QUALIFIED TO BUY THE GUN, BUT THE COURT DIDN'T FIND THAT ARGUMENT VERY PERSUASIVE, EITHER. THE COURT SAID THAT ABRAMSKI'S MISREPRESENTATIONS INTERFERED WITH THE SELLER'S LEGAL OBLIGATION TO DO A PROPER BACKGROUND CHECK AND TO MAINTAIN PROPER RECORDS OF FIREARM SALES IN THEIR BUSINESS. - GOOD. WHEN THE GOVERNMENT IS PROSECUTING A DEFENDANT WHO'S BEEN INDICTED, THEY HAVE A NUMBER OF POWERS. NOW, ONE OF THESE POWERS IS THE POWER TO FREEZE THE INDICTED DEFENDANT'S ASSETS PRIOR TO TRIAL IF THEY'D BE SUBJECT TO FORFEITURE UPON CONVICTION. THIS IS WHAT THE GOVERNMENT DID TO BRIAN AND KERRI KALEY AFTER THEY WERE INDICTED FOR TRANSPORTING STOLEN MEDICAL DEVICES ACROSS STATE LINES AND LAUNDERING THE PROCEEDS OF THAT ACTIVITY. THE RESTRAINING ORDER GRANTED BY THE COURT PREVENTED THE KALEYS FROM TRANSFERRING ANY ASSETS TRACEABLE TO OR INVOLVED IN THE ALLEGED OFFENSE. NOW, THAT INCLUDED A HALF-MILLION DOLLAR CERTIFICATE OF DEPOSIT THE KALEYS PLANNED TO USE TO HIRE A LAWYER. IN ORDER TO LIFT THAT RESTRAINT, THE KALEYS SOUGHT A HEARING TO CHALLENGE THE UNDERLYING INDICTMENT ON WHICH THEY WERE CHARGED AND THE PROBABLE CAUSE FINDING THAT ALLOWED THEIR ASSETS TO BE FROZEN. SO THE QUESTION BEFORE THE JUSTICES WAS WHETHER THE KALEYS HAD A CONSTITUTIONAL RIGHT TO SUCH A HEARING. EVAN, WHAT DID THEY SAY? - WELL, BY 6-3 VOTE, THE JUSTICES FOUND THAT THERE'S NOTHING IN THE CONSTITUTION THAT ENTITLES A FEDERAL CRIMINAL DEFENDANT TO JUDICIAL REVIEW OF A GRAND JURY'S FINDING OF PROBABLE CAUSE BEFORE THE GOVERNMENT CAN OBTAIN A PRE-FORFEITURE ASSET FREEZE. THE COURT HELD THAT IT HAD ALREADY EFFECTIVELY DECIDED THIS QUESTION IN THE 1989 CASE OF<i> UNITED STATES V. MONSANTO,</i> WHEN IT HELD THAT SUCH ASSET FREEZES WERE PERMISSIBLE ON A GRAND JURY'S FINDING OF PROBABLE CAUSE THAT THE PROPERTY WOULD ULTIMATELY PROVE CAPABLE OF BEING FORFEIT. THE MAJORITY FOUND NO REASON WHY A PROBABLE CAUSE FINDING SUFFICIENT TO DENY DEFENDANTS THEIR LIBERTY WOULD NOT ALSO BE SUFFICIENT TO FREEZE THEIR PROPERTY. - I THINK THE BOTTOM LINE IS THEY SAID THAT THE GRAND JURY GETS THE LAST WORD ON PROBABLE CAUSE AND THAT THE DEFENDANT DOESN'T GET A DO-OVER IN FRONT OF A DIFFERENT REFEREE. THIS IS PART OF THE CRUCIAL ROLE THAT A GRAND JURY PLAYS IN FINDING PROBABLE CAUSE. AND MOREOVER, THEY FOUND THERE MIGHT BE GOOD REASON THAT THE GOVERNMENT DOES NOT WANT TO REVEAL ITS GRAND JURY WITNESSES THIS EARLY IN THE PROCEEDING. AND FINALLY, THEY SAID THAT IT WOULD TAKE UP A MINI-TRIAL, A MINI-HEARING, IF THEY ACTUALLY MADE THIS OPPORTUNITY AVAILABLE. - THANKS, EVERYONE. OK, BETH, ANY QUESTIONS? - YES. WE HAVE ONE, AND THAT IS, "HOW DOES THE RULE OF LENITY PLAY INTO ALL OF THESE DECISIONS?" - WELL, THE RULE OF LENITY ESSENTIALLY SAYS THAT IF THERE'S A STATUTE AND IT CAN BE INTERPRETED EITHER WAY, THEN YOU INTERPRET IT IN FAVOR OF THE DEFENDANT, BUT THAT DEPENDS ON EACH STATUTE. SO YES, THE COURT WAS CITING THE RULE OF LENITY, BUT I THINK IT HAS TO GO TO ANY PARTICULAR STATUTE THAT'S BEING CHALLENGED. - THANK YOU. WE'RE GOING TO TAKE A SHORT BREAK AND THEN BE BACK TO TALK ABOUT FEDERAL COURTS AND CIVIL PROCEDURE.