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SCOTUS on Music Piracy & Qualified Immunity · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law, with June Grossel from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court dealt a major blow to the music
0:11
Speaker 2: industry in its fight against the piracy of copyrighted songs
0:16
Speaker 2: on the Internet. A jury had awarded the stunning sum
0:20
Speaker 2: of one billion dollars to Sony Music against Cox Communications
0:25
Speaker 2: for failing to shut down the accounts of people who
0:28
Speaker 2: repeatedly downloaded and distributed copyrighted songs without permission. But on Wednesday,
0:34
Speaker 2: the Supreme Court let Cox off the hook completely. In
0:38
Speaker 2: a unanimous decision, The court held that Cox couldn't be
0:43
Speaker 2: held liable for copyright infringement even if they knew their
0:46
Speaker 2: users were illegally downloading copyrighted works. My guest is intellectual
0:52
Speaker 2: property litigator Terrence Ross, a partner at catin Mutchen Rosenmann Terry.
0:57
Speaker 2: The jury said Cox had to pay a billion dollars
1:00
Speaker 2: in damages, and now the Supreme Court says, no, Cox
1:04
Speaker 2: doesn't have to pay anything at all.
1:06
Speaker 1: That's correct. The cause of action in the lower court
1:10
Speaker 1: was for contributory copyright infringement, which means that the defendant
1:15
Speaker 1: did not actually commit the copyright theft, but somehow contributed
1:20
Speaker 1: to the ability of a third party to commit copyright infringement,
1:25
Speaker 1: and the Supreme Court determined that the lower courts had
1:30
Speaker 1: applied the wrong standard for measuring whether or not contributory
1:36
Speaker 1: copyright infringement had occurred, and therefore reversed as to liability,
1:41
Speaker 1: which eliminated the damages verdict.
1:43
Speaker 2: Cox got something like one hundred and sixty three thousand
1:47
Speaker 2: copyright infringement notices and never cut off service to its subscribers.
1:53
Speaker 2: And just as Sonya Sotomayor pointed out how flagrant that
1:56
Speaker 2: was during ural arguments, you.
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Speaker 3: Did nothing and in fact, counselor your clients sort of
2:04
Speaker 3: lais a fair attitude towards the respondents is probably what
2:10
Speaker 3: got the jury upset.
2:12
Speaker 2: So was it surprising that this was a unanimous verdict.
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Speaker 2: I mean, just as Sodo Mayor said, you did nothing,
2:20
Speaker 2: and now the court saying you don't have to do anything.
2:23
Speaker 1: Well, as we discussed that week after the oral argument
2:27
Speaker 1: before this Supreme Court, I had commented that I thought
2:30
Speaker 1: this was one of the most opaque oral arguments I'd
2:33
Speaker 1: ever listened to at the Supreme Court. And you'd ask me,
2:36
Speaker 1: what's going to han, I said, I just blain, don't know.
2:38
Speaker 1: I do not have a clue, and I was proven right.
2:41
Speaker 1: The oral argument centered so heavily on the really terrible
2:48
Speaker 1: facts were Cocks surrounding its efforts, half hearted at best,
2:53
Speaker 1: to comply with the safe harbor provision of the Digital
2:56
Speaker 1: Millennium Copyright Act. And they were just terrible facts. We
3:01
Speaker 1: know the jury thought they were so bad that they
3:03
Speaker 1: found Cox to be willfully liable for contributory infringement. And
3:09
Speaker 1: yet none of that came out in this opinion. There
3:13
Speaker 1: was some discussion, although very limited, during oral argument, as
3:18
Speaker 1: to what the correct standard for contributory copyright Fraedman was,
3:22
Speaker 1: but Cox in particular had pushed that argument into a
3:26
Speaker 1: very odd place where it was drawing upon aiding in
3:30
Speaker 1: a betting cases from common torts. Even cited to the
3:34
Speaker 1: recent Mexican government case against American gun manufacturers, which was
3:39
Speaker 1: on ato aiding in a betting theory that the Supreme
3:42
Speaker 1: Court had lost. And so the decision is maybe not
3:47
Speaker 1: surprising as to the result, but a little bit surprising
3:51
Speaker 1: after the orror argument that it went in the direction
3:54
Speaker 1: that it went.
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Speaker 2: Just as so, Domayor and her concurrence wrote that without
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Speaker 2: proof that Cox knew about individual instances of infringement. The
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Speaker 2: record labels have at most shown that Cox was indifferent
4:07
Speaker 2: to infringement. There was evident that a Cox manager overseeing
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Speaker 2: piracy compliance told his team to f the DMCA. I mean,
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Speaker 2: there were over one hundred and sixty three thousand infringement notices,
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Speaker 2: and as we discussed, Cox kept giving them chance after
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Speaker 2: chance after chance. I mean, it didn't seem like it
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Speaker 2: was impossible for Cox to cut off some of these people.
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Speaker 1: That's clearly all correct. Justice Thomas, who wrote the opinion
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Speaker 1: from the majority of the court, simply chose to ignore
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Speaker 1: the Digital Millennium Copyright Act. In essence, he said that
4:44
Speaker 1: Cox had failed to comply with the safe harbor in
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Speaker 1: the Digital Millennium Copyright Act because they did not have
4:52
Speaker 1: a program in place to comply with copyright infringement notices.
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Speaker 1: But then he said, and this is the but that
5:01
Speaker 1: does not prove the case for the recording companies. He said,
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Speaker 1: a mere failure to establish that you're entitled to take
5:10
Speaker 1: advantage of the safe harbor defense of the Digital Millennium
5:14
Speaker 1: Copyright Act. It does not establish the affirmative grounds for
5:20
Speaker 1: contributory copyright infringement. And then he went through an analysis
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Speaker 1: of what he viewed to be the elements of cause
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Speaker 1: of action for contributory copyright infringement, and he found, and
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Speaker 1: this is the important part of his decision, he found
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Speaker 1: that there was an affirmative action required on the part
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Speaker 1: of the defendant to be accused of contributory copyright infringement.
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Speaker 1: And that's what surprised I think a lot of us.
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Speaker 1: There is a long history of decisions in the circuit
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Speaker 1: courts and in the Supreme Court stretching back to nineteen twelve,
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Speaker 1: in which courts have allowed contributory copyright infringement cases go
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Speaker 1: forward in situations, factual situations which it seemed to be
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Speaker 1: nothing more than providing a product or a service. And
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Speaker 1: Justice Thomas starts off by recharacterizing those cases as our
6:22
Speaker 1: findings that a company cannot be liable as a copyright
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Speaker 1: infringement for purely providing a service to the general public,
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Speaker 1: even with knowledge that it will be used by some
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Speaker 1: copyright infringers. And that's the big surprise here. The cases
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Speaker 1: had implicitly understood the provision of services and products that
6:41
Speaker 1: led to copyright infringement as an affirmative action on the
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Speaker 1: part of the defendant. Now the Supreme Court says that's
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Speaker 1: not good enough, and indeed, in their recitation of past cases,
6:53
Speaker 1: they seem to be of the view that the only
6:57
Speaker 1: way you can bring a contributory copyright infringement case against
7:02
Speaker 1: a provider of a service or product is if they
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Speaker 1: specifically promote that product or service as capable of engaging
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Speaker 1: in copyright infringement.
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Speaker 2: And who does that, well, it's.
7:15
Speaker 1: A great question. In the very famous Groster case of
7:19
Speaker 1: a few years ago, which was a file sharing software program.
7:23
Speaker 1: In the early days of the Groster program, it was
7:27
Speaker 1: actually advertised as capable of downloading and distributing files of
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Speaker 1: music without bankfort. So it does happen when you have
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Speaker 1: a company that has no legal advisors and is managed
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Speaker 1: by people with absolutely no sensitivity to copyright. So it
7:46
Speaker 1: does happen. But in the modern world that is a
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Speaker 1: true unicornt, it rarely ever happens. And so the result
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Speaker 1: of this case is that it will be extraordinarily hard
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Speaker 1: to ever again bring a cause of action for contributory
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Speaker 1: copyright infringement.
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Speaker 2: Justice Soda Mayor did say that the majority opinion written
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Speaker 2: by Justice Thomas strips ISPs of any real reason to
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Speaker 2: deal with piracy making the DMCA's safe Harbor rules pointless
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Speaker 2: than one.
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Speaker 1: The myrior's point is well taken. I simply don't see
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Speaker 1: a reason to comply with the Safe Harbor or the
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Speaker 1: DMCA anymore. But I do want to point out that's
8:34
Speaker 1: a criticism of a result. The actual reasoning she disagreed with,
8:39
Speaker 1: and she disagreed with it on a very important point
8:44
Speaker 1: that on a quick read you might easily miss now.
8:49
Speaker 1: But there requires me a little bit of history here.
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Speaker 1: So the Copyright Act in nineteen seventy six provides for
8:55
Speaker 1: a cause of action for the direct infringement of copyrights.
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Speaker 1: It does not provide for contributory copyright infringement or vicarious
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Speaker 1: copyright infringement. Subsequent to the nineteen seventy six Act, the
9:08
Speaker 1: Supreme Court impliedly allowed causes of action for contributory vicario's
9:15
Speaker 1: copyright infringement based on the fact that such causes of
9:20
Speaker 1: action had been allowed going back to the mid nineteenth century,
9:27
Speaker 1: and it wasn't really well addressed by the Supreme Court.
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Speaker 1: But I believe the thinking was Congress, in passing the
9:33
Speaker 1: seventy six Act, must have understood that there were such
9:37
Speaker 1: things as contributory and vicarious copyright, and therefore we're going
9:41
Speaker 1: to allow those to go forward. But those past decisions,
9:45
Speaker 1: the Betamax case, the Grostar case, never said we are
9:49
Speaker 1: limiting a secondary liability to contributory vicarious copyright, And indeed,
9:55
Speaker 1: cases have generally been written wording such as, amongst the
9:59
Speaker 1: causes of act action for secondary liability are contributory vi
10:03
Speaker 1: carri's infringement. Justice Thomas, however, throws in sort of an
10:07
Speaker 1: odd phrase here in which he says, I'm not even
10:13
Speaker 1: sure if he meant this or thought it through, but
10:17
Speaker 1: he essentially says that those are the only causes of
10:21
Speaker 1: action for secondary liability. And this is where Justice Sodaba
10:27
Speaker 1: Worn I think rightly takes him to task. She says,
10:30
Speaker 1: what about aiding in a betting liability? Now we've never
10:33
Speaker 1: found such a case in the copyright field, but if
10:36
Speaker 1: you're going to allow contributory and vicarious copyright infringement, why
10:40
Speaker 1: can't you allow aiding in a betting liability? And oh,
10:43
Speaker 1: by the way, why are you limiting it at all?
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Speaker 1: There may be other forms of action, so why are
10:48
Speaker 1: you limiting it to just contributory or vicar's copyright infringement?
10:52
Speaker 1: If we're going to say that a statute which does
10:55
Speaker 1: not actually allow those things allows those things because of
10:59
Speaker 1: historical precedent. Then we got to look at the total
11:01
Speaker 1: historical president, very unusual position for just as so the
11:04
Speaker 1: minority take, by the way, and the historical president says,
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Speaker 1: there are other types of secondary liability, and then she
11:11
Speaker 1: goes on to spend the rest of her opinion explaining
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Speaker 1: why in this case she doesn't think that there is
11:17
Speaker 1: aiding in a betting liability, and therefore she concurs in
11:21
Speaker 1: the result, but not the decision. And so, yes, it
11:25
Speaker 1: was nine to nothing on the result, but it was
11:27
Speaker 1: seven to two on the reasoning for that result. But
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Speaker 1: seven is a majority, and that means this Court has
11:37
Speaker 1: now said that the only secondary causes of liability under
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Speaker 1: the Copyright Act are for contributory copyright. And if my
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Speaker 1: carries copyright infringement and nothing else.
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Speaker 2: Stay with me. Cherry coming up next. So what can
11:50
Speaker 2: the recording industry do about music piracy?
11:53
Speaker 1: Now?
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Speaker 2: This is bloomberg. The Supreme Court dealt a major blow
12:00
Speaker 2: the music industry this week, ruling unanimously in favor of
12:04
Speaker 2: Cox Communications, finding that Internet service providers are not liable
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Speaker 2: for copyright infringement for failing to disconnect customers who are
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Speaker 2: downloading copyrighted music illegally. I've been talking to intellectual property
12:20
Speaker 2: litigator Terrence Ross of Catain Mutchen Rosenman, Terry, does this
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Speaker 2: decision effectively stop the music industry from being able to
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Speaker 2: combat music piracy online? Are there any other options available
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Speaker 2: to music labels?
12:38
Speaker 1: Now? Okay, So it seems to me there are two
12:41
Speaker 1: options here, one is legal and one legislative. On the
12:44
Speaker 1: legislative side, they could go to Congress and say, look,
12:47
Speaker 1: this is an absurd decision and it's completely gutted the
12:50
Speaker 1: Digital Millennium Copyright Act. This is not what you intended
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Speaker 1: with the Digital Millennium Copyright Act. And I thought I
12:58
Speaker 1: saw Congressman put out a press released yesterday essentially saying
13:02
Speaker 1: that they could then ask Congress to rewrite the Digital
13:05
Speaker 1: Millennium Copyright Act to provide that the ISPs must comply
13:11
Speaker 1: with the safe harbor provisions in order to avoid contributory
13:16
Speaker 1: or vicarious copyright fringement. So that's one route that the
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Speaker 1: music companies could pursue. The other route, which is more complicated,
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Speaker 1: is to serve subpoenas upon Cox or other ISPs for
13:32
Speaker 1: the IP addresses that are doing the most downloading of
13:38
Speaker 1: copyrighted music and get the names and addresses whoever the
13:44
Speaker 1: owner is, and then sue that owner. So you bypass
13:49
Speaker 1: Cox and you sue the person who's actually engaged in
13:52
Speaker 1: the music file downloading for copyright infringement. Now, this was
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Speaker 1: a course of action that occasionally has happened in the past,
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Speaker 1: and it's relatively successful because the defendant usually caves in
14:06
Speaker 1: quickly and they enter into some settlement where they agree
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Speaker 1: never to download music again. It seems to me that
14:12
Speaker 1: that remains a viable option from a legal side. It's
14:16
Speaker 1: just very cumbersome. You don't always get courts willing to
14:20
Speaker 1: enforce such a subpoena, and that it requires it follow
14:24
Speaker 1: on litigation, so it's going to be a little bit
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Speaker 1: more costly. But those are the only two options I
14:29
Speaker 1: see for the music company at this point.
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Speaker 2: Are there estimates of how much the music labels lose
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Speaker 2: or artists lose because of the piracy of copyrighted music.
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Speaker 1: I've seen all sorts of estimates, but it's over a
14:42
Speaker 1: billion dollars a year typically. Now, the interesting thing about
14:45
Speaker 1: this case is that the music companies didn't even pursue
14:49
Speaker 1: all the copyright infringements that were being utilized through the
14:54
Speaker 1: cock system. They were only going after the really large
14:59
Speaker 1: downloads and distributions of files. And the jury found damages
15:04
Speaker 1: of a billion dollars, and that was against a single ISP,
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Speaker 1: not the many ISP's in this country, and for only
15:11
Speaker 1: a portion of the copyright infringement that was going on.
15:14
Speaker 1: So that suggests that the number is many billions of dollars.
15:19
Speaker 2: Do you have any hint as to how the justices
15:22
Speaker 2: got to this sort of radical position that basically eliminates
15:27
Speaker 2: liability for Internet service providers even when they know their
15:32
Speaker 2: subscribers are downloading music illegally.
15:37
Speaker 1: Justice so do my r at or argument was clearly
15:42
Speaker 1: perplexed as to what to do. She thought the positions
15:46
Speaker 1: on either side were extreme, yet she ended up not
15:50
Speaker 1: being the one who fashioned the way out for the
15:53
Speaker 1: Supreme Court. I called this a way out, not a compromise.
15:56
Speaker 1: This was a way to avoid a really hard decision
15:59
Speaker 1: with respect to damage element, but was not a compromise.
16:02
Speaker 1: It was basically a complete one to eighty change in
16:06
Speaker 1: direction of the cases that have existed for one hundred
16:10
Speaker 1: and twenty years now in the courts that adopts such
16:14
Speaker 1: a radical view of secondary liability under the Copyright Act
16:19
Speaker 1: that I don't think was attended by Congress, that it
16:21
Speaker 1: basically kills off the two causes of action. Only a
16:24
Speaker 1: complete moron could be found liable for contributory or vicary's
16:29
Speaker 1: copyright infringement at this point in time, So I don't
16:32
Speaker 1: know what went on behind closed door. I found it
16:34
Speaker 1: fascinating that Justice Thomas wrote the opinion. Justice Thomas tends
16:38
Speaker 1: to write opinions that are short, sweetened to the point,
16:43
Speaker 1: and so sometimes he gets designated for a case that
16:48
Speaker 1: the Court does not want to spend too much time intellectualizing.
16:52
Speaker 1: They just say, look, here's what we think. You only
16:55
Speaker 1: get contributory infringement if you show an affirmative act. There
16:58
Speaker 1: was no firmative act found case, and that's what this
17:01
Speaker 1: opinion is. It certainly doesn't address any of the past
17:04
Speaker 1: cases involving contributory copyright infringement except for Grockster and Beta Max,
17:09
Speaker 1: both of them the Preme Court cases, which were only
17:13
Speaker 1: slightly helpful in this decision. They really needed to look
17:15
Speaker 1: at the full spectrum of contributory copyright cases over the
17:20
Speaker 1: last century and they failed to do that.
17:22
Speaker 2: There's a similar music industry suit against Verizon for two
17:27
Speaker 2: point six billion dollars. Do you think that's now dead
17:30
Speaker 2: in the water after this decision?
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Speaker 1: So I don't know the facts of that case. At
17:34
Speaker 1: a minimum, the districtquarity is going to have to say, okay,
17:39
Speaker 1: in light of Cox Communications versus Sony, we need to
17:43
Speaker 1: do a rethink here. It may be possible that there
17:45
Speaker 1: are facts involving Verizon that are better for the music companies,
17:49
Speaker 1: but it would be surprised if that's true. And look
17:52
Speaker 1: to understand the extent of the problem. June, at one
17:56
Speaker 1: point in time, over the entire cos Internet system, twenty
18:01
Speaker 1: one percent of all traffic involved music copyright infringement. The
18:08
Speaker 1: fall of the traffic is infringement upon copyrighted music. I mean,
18:13
Speaker 1: it's just a phenomenal number. And here the Supreme Court says, well, no,
18:17
Speaker 1: there's actually no remedy for that. And that's not what
18:20
Speaker 1: Congress thought when they passed the Digital Millennium Copyright Act.
18:24
Speaker 2: And Terry, this is supposed to be a textualist court,
18:27
Speaker 2: but were they reading the text of the statutes here?
18:30
Speaker 1: None of this is in the Copyright Act. I mean
18:33
Speaker 1: the whole purpose of having a statute is to set
18:36
Speaker 1: out the meats and bounds of causes of action, and
18:39
Speaker 1: writes none of this is in the Copyright Act. I
18:43
Speaker 1: just plain, don't give it. And you know, over the
18:44
Speaker 1: years there have been a lot of good justices no
18:47
Speaker 1: copyright law, and even Justice Scalia, who was all about
18:51
Speaker 1: the text, never ever stopped to say, wait a minute,
18:55
Speaker 1: there is no secondary liability in the seventy six Copyright Act.
18:59
Speaker 1: What are we talking about here, It's just crazy.
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Speaker 2: Well, it will be very interesting to see what action
19:04
Speaker 2: the record labels take next now that this avenue has
19:08
Speaker 2: been foreclosed. Always a pleasure, Terry, thanks so much. That's
19:12
Speaker 2: Terence Ross of Cataneuchen Rosenmann. Once again, this week, the
19:16
Speaker 2: Supreme Court weighed in in favor of police officers, shielding
19:21
Speaker 2: them from liability under the theory of qualified immunity. The
19:25
Speaker 2: conservative justices found that a Romant police officer who used
19:30
Speaker 2: a restraint technique known to be painful to remove a
19:33
Speaker 2: non violent protester from the state capitol in twenty fifteen
19:38
Speaker 2: is protected from a civil rights lawsuit for the use
19:41
Speaker 2: of excessive force under qualified immunity. The three liberal justices dissented,
19:48
Speaker 2: writing that the Court has turned qualified immunity into a
19:51
Speaker 2: quote absolute shield for law enforcement officers. The case is
19:56
Speaker 2: one of two this week in which the Justices weighed
19:59
Speaker 2: in on court qualified immunity, a hotly debated legal doctrine
20:03
Speaker 2: that involves protections for police facing lawsuits. In the other case,
20:08
Speaker 2: the Court lets stand a decision by the Fifth Circuit
20:11
Speaker 2: granting qualified immunity to officers in Texas accused of targeting
20:15
Speaker 2: a journalist for arrest over disagreements with her reporting. My
20:20
Speaker 2: guest is Anya Bidwell, a senior attorney at the Institute
20:23
Speaker 2: for Justice. Annya, will you start by explaining what qualified
20:27
Speaker 2: immunity is.
20:29
Speaker 4: Qualified immunity is a doctrine that the Supreme Court invented
20:35
Speaker 4: in the late sixties. At first, but it then significantly
20:39
Speaker 4: amended its test, and in nineteen eighty two it announced
20:45
Speaker 4: this rule that in order for the officer to be sued,
20:50
Speaker 4: a plaintiff must show that the violation of the law
20:56
Speaker 4: was clearly established. So it doesn't matter if an officer
21:00
Speaker 4: acted in bad faith. Right, it could be that the
21:03
Speaker 4: officer acted in bad faith, but as long as there
21:07
Speaker 4: isn't a case directly on point saying that the exact
21:13
Speaker 4: same conduct was deemed unconstitutional before then that violation is
21:18
Speaker 4: not clearly established. The Court justified this idea in reasonable ways,
21:23
Speaker 4: like the officer needs to have fair warning, right, a
21:27
Speaker 4: reasonable officer needs to have fair warning that what they're
21:31
Speaker 4: about to do violates the law.
21:33
Speaker 5: The problem is that the.
21:34
Speaker 4: Way this fair warning clearly established law test has been
21:38
Speaker 4: interpreted pretty much anything but bar's plaintiffs from recovering for
21:46
Speaker 4: violations of the Constitution, and the Supreme Court's latest summary
21:51
Speaker 4: reversal in this case Zorn really kind of demonstrates how
21:55
Speaker 4: difficult it is for a person to sue a police officer,
22:01
Speaker 4: even if they come to court armed with the decision
22:04
Speaker 4: that they say clearly establish that what the officer did
22:08
Speaker 4: is unconstitutional. Like in Zorn, there was a case in
22:12
Speaker 4: the Second Circuit that said that it could be a
22:15
Speaker 4: violation of the Constitution of the Fourth Amendment excessive force
22:19
Speaker 4: prohibition if you put a protester's hand in a wristlock.
22:26
Speaker 5: Right, there is a case like that.
22:27
Speaker 4: So they came to court and they showed that case,
22:30
Speaker 4: and the Court said, fine, thank you for showing us
22:32
Speaker 4: this case. That's a good point. We will deny qualified
22:35
Speaker 4: immunity to the officer, and then it gets to the
22:37
Speaker 4: Supreme Court and the Supreme Court says, well, actually, it
22:41
Speaker 4: is not exactly what we are looking for, even though
22:45
Speaker 4: every reasonable officer would have been fairly warned that putting
22:48
Speaker 4: a protester's arm in a wrist lock unjustifiably is unconstitutional,
22:53
Speaker 4: and the Supreme Court, without really delving into the details,
22:57
Speaker 4: just said, yeah, that doesn't look right for us.
23:00
Speaker 2: And in this case, the Justice is just summarily reversed
23:04
Speaker 2: the Second Circuit in like a six page opinion.
23:08
Speaker 4: One of the problems is that the Supreme Court is
23:11
Speaker 4: refusing to deal with the doctrine heads on right grant
23:15
Speaker 4: oral arguments, grant merits briefing, so both sides could spend
23:20
Speaker 4: time wrestling over this and then the Supreme Court would
23:23
Speaker 4: announce the doctrine in the most complete manner. Instead, they
23:29
Speaker 4: just keep granting and summary reversing, without oral argument, without
23:34
Speaker 4: the briefing, and basically saying, nah, that doesn't look right
23:37
Speaker 4: to us. The Second Circuit you were wrong in this case,
23:39
Speaker 4: or whatever circuit you're wrong in that case, and we're
23:42
Speaker 4: just going to reverse without really explaining ourselves. So what
23:46
Speaker 4: the lower courts are left with are like not super
23:50
Speaker 4: clear directions about what to do, other than the Court
23:54
Speaker 4: is very hostile, especially in the cases involving police officers
23:59
Speaker 4: being accused of excessive use of force, to deny qualified
24:05
Speaker 4: immunity to the officers. The result then is that it's
24:08
Speaker 4: victims of the constitutional violations who are carrying the burdens
24:13
Speaker 4: of those constitutional violations. That's the problem, right. The Court
24:16
Speaker 4: is so concerned with being unfair to the officers that
24:20
Speaker 4: they are forgetting about being unfair to the people who
24:24
Speaker 4: were actually hurt, and by granting qualified a unity to
24:29
Speaker 4: the officers, they're basically saying those people, even though they
24:32
Speaker 4: alleged constitutional violations, have no remedy, which is something that
24:37
Speaker 4: is absolutely inconsistent with how the courts were approaching this
24:43
Speaker 4: before the sixties, the seventies, the eighties, when the Court started.
24:48
Speaker 2: To I've been talking to Anya Bidwell, a senior attorney
24:51
Speaker 2: at the Institute for Justice, about the Supreme Court once
24:55
Speaker 2: again this week weighing in in favor of police officers
25:00
Speaker 2: by shielding them from liability under the theory of qualified immunity.
25:04
Speaker 2: In this case, there were descents from the three Liberals
25:09
Speaker 2: and just as Sonya Sotomayor accused her conservative colleagues of
25:13
Speaker 2: a one sided approach, saying they're willing to intervene in
25:17
Speaker 2: favor of officers and qualified immunity disputes, but rarely the
25:21
Speaker 2: other way, and so the doctrine becomes an absolute shield
25:25
Speaker 2: for police officers. How long have we seen this pattern
25:29
Speaker 2: from the Supreme Court. It's not just been the Roberts Court.
25:34
Speaker 5: Yes, it's true, it's modern.
25:36
Speaker 4: Iteration of the qualified immunity test started in nineteen eighty
25:39
Speaker 4: two with a decision called Harlow versus Fitgerald, which didn't
25:43
Speaker 4: even involve police officers or excessive force. It involved White
25:48
Speaker 4: House aids to President Nixon. And with that case they
25:52
Speaker 4: announced this clearly established law test, and over time the
25:57
Speaker 4: test has become more and more, more and more protective
26:02
Speaker 4: of police officers especially. There was like a bright moment
26:07
Speaker 4: in two thousand and two when the Supreme Court, with
26:11
Speaker 4: Justice Stevens writing for the majority, said that when we're
26:14
Speaker 4: talking about clearly established law, sometimes violation can be obvious.
26:19
Speaker 4: So you don't even need to come to court armed
26:22
Speaker 4: with the case. You can just say it's obvious that
26:25
Speaker 4: you can't do these horrible things. To me, and in
26:28
Speaker 4: that decision, the court seemed like it was going into
26:33
Speaker 4: a direction where it would maybe liberalize the test a bit,
26:36
Speaker 4: but that wasn't.
26:37
Speaker 5: The case at all.
26:38
Speaker 4: Whole crew short lived, and the war attempts to kind
26:42
Speaker 4: of breathe new life into it. But for the most part,
26:45
Speaker 4: the court has been making it more and more and
26:47
Speaker 4: more difficult to sue state and local officials, giving them
26:51
Speaker 4: qualified immunity. And that just puts in context federal police, right, Like,
26:56
Speaker 4: if it is this hard to sue state and local police,
27:00
Speaker 4: federal police they have additional protections that you and I
27:03
Speaker 4: talked about a couple of months ago, So imagine how
27:06
Speaker 4: hard it is to sue federal police. They have qualified
27:10
Speaker 4: immunity the same as state and local police, but in
27:14
Speaker 4: addition to that, they don't even have that civil rights
27:17
Speaker 4: statute that you can use to sue state and local police.
27:20
Speaker 4: So when you sue federal police, you don't even get
27:22
Speaker 4: to argue the qualified immunity point.
27:24
Speaker 5: You just get thrown out completely.
27:26
Speaker 4: So overall, the direction has very much been what such
27:29
Speaker 4: about your calls one sided approach, but it's not just
27:32
Speaker 4: qualified immunity. It's one sided approach to vindicating constitutional rights
27:36
Speaker 4: against the government.
27:37
Speaker 2: So then when Vice President Vance after I believe it
27:40
Speaker 2: was the first shooting in Minneapolis, he said, federal officers
27:45
Speaker 2: have immunity, absolute immunity from these things, which is technically incorrect,
27:51
Speaker 2: but does it seem to be practically the case.
27:55
Speaker 4: It is practically the case, I think to be generous
27:58
Speaker 4: to Vans. In the context of answering that question, he
28:02
Speaker 4: was talking about criminal liability instead of civil liability. But
28:06
Speaker 4: Stephen Miller talked about civil liability specifically, and he called
28:10
Speaker 4: it federal immunity. He said, ICE, you guys have federal immunity,
28:14
Speaker 4: and DHS had these announcements on their Twitter feed saying
28:19
Speaker 4: that you guys don't have to worry because you have
28:21
Speaker 4: federal immunity, and federal immunity is even more protective than
28:26
Speaker 4: qualified immunity. And like you said, it really is absolute immunity.
28:30
Speaker 5: That's how it works. In practice.
28:33
Speaker 4: When ICE uses successive force against you, or when they
28:37
Speaker 4: take your gun away, or when they prevent you from
28:40
Speaker 4: filming them, all those clearly established constitutional violations are impossible
28:45
Speaker 4: to invoke against ICE.
28:47
Speaker 2: This is Supreme Court made so Congress, if Congress wanted
28:51
Speaker 2: to could change this.
28:54
Speaker 5: Yes, Congress absolutely could change this. Well.
28:57
Speaker 4: Frankly, it's an interesting kind of situation because when Congress
29:01
Speaker 4: passed this law allowing suits against state and local officers
29:05
Speaker 4: right called Section nineteen eighty three, it never said that
29:08
Speaker 4: qualified immunity is a defense. It never mentions any immunity defenses.
29:13
Speaker 4: So the court invented out of whole cloth. The Court
29:17
Speaker 4: really should say, wait a minute, just like Professor Boude
29:21
Speaker 4: argues William Bowed that it's not in the text and
29:25
Speaker 4: it wasn't a background against which Congress operated, So court
29:29
Speaker 4: really should look at it and say, qualified immunity is
29:31
Speaker 4: something that we really shouldn't be dealing with. But yes,
29:35
Speaker 4: if Congress wants to do something about it, Congress can
29:38
Speaker 4: pass a law to say that qualified immunity is not
29:42
Speaker 4: a thing, that qualified immunity is not a defense to
29:45
Speaker 4: Section nineteen eighty three claims something like this. Congress tried
29:49
Speaker 4: after the killing of George Floyd, but they famously failed
29:54
Speaker 4: at doing this, and they also famously failed at amending
29:58
Speaker 4: Section nineteen eighty three to include federal officials in its
30:02
Speaker 4: ambit too. So there are two things that Congress can do.
30:05
Speaker 4: It can do them tomorrow, but over the years, they
30:08
Speaker 4: showed a complete inability to get their votes on those issues.
30:15
Speaker 2: What can the states do? What are the states doing?
30:18
Speaker 4: As Alexander Hamilton talked about in Federalist twenty eight, you know,
30:22
Speaker 4: and I kill read the mark kind of tried to
30:24
Speaker 4: revive the excitement about that particular federalist states can contrabalance
30:30
Speaker 4: the federal government and the abuses by the federal government.
30:33
Speaker 4: Then frankly, that's a conservative issue, right. The conservatives are
30:35
Speaker 4: the ones who've been warning us forever and ever about
30:38
Speaker 4: the abusive federal government.
30:40
Speaker 5: So yes, let's go to states.
30:42
Speaker 4: And some of the states have been very successful already
30:46
Speaker 4: when it comes to qualified immunity. For example, Colorado specifically
30:49
Speaker 4: said that when it comes to police a state and
30:52
Speaker 4: local police, qualified immunity is not a defense. And guess what,
30:56
Speaker 4: the floodgates did not open, right what they're always talking about,
30:59
Speaker 4: Oh my god, they're going to be a whole bunch
31:01
Speaker 4: of meritless lawsuits that didn't happen because it's still difficult
31:05
Speaker 4: to state acclaim and qualified immunity is just one of
31:08
Speaker 4: the obstacles that plenty of space. So Colorado and New
31:10
Speaker 4: Mexico they already enacted laws making it easier to overcome
31:14
Speaker 4: qualified immunity, if not bank qualified community altogether. And states
31:18
Speaker 4: can also enact laws allowing suits for violations of the
31:22
Speaker 4: United States Constitution, including by those.
31:25
Speaker 5: Who work for the federal government.
31:27
Speaker 4: And that's something that we've been seeing happening across the country,
31:31
Speaker 4: especially after ice started invading essentially America's cities. So we
31:37
Speaker 4: are seeing there are so far five states that allow
31:40
Speaker 4: suits for violations of the United States Constitution under state law,
31:44
Speaker 4: and there are fifteen more.
31:45
Speaker 5: Bills at least that are.
31:48
Speaker 4: Currently being considered that would allow the same thing. So
31:52
Speaker 4: the solution by Congress is much easier. Right, it's a
31:54
Speaker 4: solution for all fifty states. But if Congress is not
31:57
Speaker 4: going to do it, then it's imperative that states.
31:59
Speaker 2: Do you know Minnesota is trying to just get evidence
32:04
Speaker 2: looking into prosecuting the officers involved in those two shooting deaths.
32:09
Speaker 2: What do you think about this suit against the Trump administration.
32:13
Speaker 4: Yeah, So that is what Jade Evans was talking about,
32:16
Speaker 4: this idea of absolute immunity when it comes to criminal prosecutions, right,
32:21
Speaker 4: And what he is really referring to is the supremacy clause.
32:25
Speaker 4: Arguments that they invoke that Essentially, state governments cannot prosecute
32:31
Speaker 4: federal officials because the federal officials are acting pursued to
32:36
Speaker 4: federal law and states cannot kind.
32:39
Speaker 5: Of interfere in that process.
32:43
Speaker 4: And the supremacy laws, immunity has been interpreted rather broadly.
32:49
Speaker 4: But again, the Supreme Court hasn't spoken about this in
32:53
Speaker 4: a very very very long time, and certainly not definitively.
32:56
Speaker 4: So this is something that states should absolute the person
33:00
Speaker 4: you saying that, you know, we have the right to
33:03
Speaker 4: ensure that we're at least a part of the investigation.
33:07
Speaker 4: Right here, federal government is not even sharing evidence, which
33:12
Speaker 4: is something that wasn't part of a traditional practice. When
33:16
Speaker 4: those kinds of things happen, usually the federal government involves states.
33:19
Speaker 4: But now states are completely excluded and it's incumbent upon
33:22
Speaker 4: them to fight that.
33:24
Speaker 2: And tell us about the second case involving a Texas journalist.
33:28
Speaker 4: So it's really interesting that on the same day that
33:32
Speaker 4: the Supreme Court essentially reversed the denial of qualified immunity
33:38
Speaker 4: in this police successive force context, it also refused to
33:43
Speaker 4: hear a case involving a journalist. That case also was
33:48
Speaker 4: a qualified immunity case, and just as such a manor
33:52
Speaker 4: wrote a descent from the denial of review there. And
33:56
Speaker 4: it's something interesting to think about because qualified immunity often
34:00
Speaker 4: comes up in the context of split second decision making
34:02
Speaker 4: an excessive force, but it also comes up in all
34:05
Speaker 4: the other constitutional violations. For example, here it's a journalist
34:08
Speaker 4: and you can certainly relate to that. She basically was
34:12
Speaker 4: corroborating information by asking her sources about it, and after
34:18
Speaker 4: she asked her sources within the police about it, she
34:21
Speaker 4: published the information and she was put in jail for it.
34:25
Speaker 2: The circumstances were really i say crazy, but certainly unusual.
34:30
Speaker 2: Why they decided to go after and then they took
34:33
Speaker 2: pictures of her in handcuffs and made fun of her.
34:36
Speaker 5: It just seemed busy.
34:38
Speaker 4: She was on the butt, you know, to them, because
34:40
Speaker 4: she was following them around and she was recording what
34:44
Speaker 4: they were doing, including sometimes very uncomfortable things. So they
34:50
Speaker 4: decided to teach her a lesson, and they did something
34:53
Speaker 4: that the Constitution clearly prohibits. Freedom of the press is
34:57
Speaker 4: one of the foundational blocks of our republic, and they
35:02
Speaker 4: violated her First Amendment right and in that case, qualified
35:06
Speaker 4: immunity shielded them again, right, not an excessive force case,
35:10
Speaker 4: but a clear violation of the First Amendment putting a
35:13
Speaker 4: reporter in jail. Qualified immunity shielded them in that situation,
35:18
Speaker 4: and the Supreme Court, on the same day as it
35:22
Speaker 4: reversed qualified immunity denial to police officers in zorn it
35:26
Speaker 4: also refused to even consider this case, allowing qualified immunity
35:31
Speaker 4: grant in this case to stand. So that reporter, fundamentally,
35:35
Speaker 4: who was silenced and who was putting jail for reporting,
35:40
Speaker 4: she has no remedy. She is the one who will
35:43
Speaker 4: have to carry the burden of the constitution violation. And
35:46
Speaker 4: by the way, all the other reporters in Texas watching
35:49
Speaker 4: her being treated this way are likely to be much
35:54
Speaker 4: more cautious about how the report on what's happening in Texas.
35:58
Speaker 2: So, knowing the history of what the Supreme Court's been doing,
36:01
Speaker 2: were you surprised by these actions this week?
36:05
Speaker 4: Unfortunately I was not, though I always am optimistic about
36:11
Speaker 4: the Court. And there are conservative jurists who spoken out
36:17
Speaker 4: very convincingly against qualified immunity, including Justice Thomas himself, but
36:23
Speaker 4: also lower court judges right Trump appointee Judge Willet, even
36:28
Speaker 4: Trump appointee Judge Oldham on the Fifth Circuit and Judge
36:32
Speaker 4: Hoe as well. So the Conservatives think about this in
36:36
Speaker 4: a very nuanced way, but.
36:39
Speaker 5: So far the Supreme Court is just very.
36:41
Speaker 4: Reluctant to genuinely engage with qualified immunity other than just
36:48
Speaker 4: send signals that we like it, especially when it comes
36:52
Speaker 4: to police officers using excessive first, so lower courts be
36:56
Speaker 4: very cautious when you deny qualified.
36:58
Speaker 2: Immunity, very cautious. Indeed, thanks so much, Anya. That's Anya Bidwell,
37:04
Speaker 2: a senior attorney at the Institute for Justice. And that's
37:07
Speaker 2: it for this edition of The Bloomberg Law Show. Remember
37:10
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