Latest / Bloomberg Law / Trump Can Deploy Troops to Portland But Not to Chicago

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Trump Can Deploy Troops to Portland But Not to Chicago · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Chicago residents are now documenting violent encounters with federal agents,
0:14
Speaker 2: from the use of tear gas on protesters, to vehicle
0:18
Speaker 2: crashes to forceful takedowns, all on video.
0:22
Speaker 1: That you don't know what's going on.
0:27
Speaker 2: Federal Judge Sarah Ellis said the images she's seen indicate
0:31
Speaker 2: her order restricting ICE agent's use of force was being ignored.
0:35
Speaker 2: The judge issued a new order on Friday that federal
0:39
Speaker 2: agents have to turn their body cameras on when making
0:42
Speaker 2: arrests or interacting with the public. Here's Illinois Governor J. B. Pritzker.
0:48
Speaker 3: I think the judge reacted to that properly by ordering
0:52
Speaker 3: that now the federal agents are required to have body
0:56
Speaker 3: cameras on them because they clearly lie about what goes on.
1:02
Speaker 2: Judge Ellis also ordered immigration officials to testify in her
1:06
Speaker 2: courtroom today and answer questions about the aggressive tactics. My
1:11
Speaker 2: guest is Leon Fresco, a partner at Holland and Knight
1:14
Speaker 2: and an expert in immigration law. Leon explain what's been
1:18
Speaker 2: happening in Chicago with ICE.
1:21
Speaker 4: So, what's been happening in Chicago's all based on an
1:23
Speaker 4: operation called Operation Midway Blitz, and that operation started early
1:29
Speaker 4: in October, where there was a deployment of all kinds
1:33
Speaker 4: of federal troops. There was ICE, there was CBP, there
1:37
Speaker 4: was National Guard troops into the Chicago area to try
1:42
Speaker 4: to ostensively stop violent protests, help immigration enforcement do their
1:48
Speaker 4: job stop crying. There's a lot of different justifications that
1:52
Speaker 4: were given for this, but in any case, there was
1:56
Speaker 4: immediate lawsuits by the State of Illinois and the City
1:59
Speaker 4: of Chicago, and there's multiple findings, ones that had to
2:04
Speaker 4: do with the use of force and how people were operating.
2:09
Speaker 4: And so there were orders that were given by the
2:11
Speaker 4: judge with regards to having to use body cameras so
2:15
Speaker 4: that the agents wouldn't just be operating without any accountability there.
2:20
Speaker 4: And the judge was hearing arguments today about the fact
2:24
Speaker 4: that body camera uses wasn't happening and was basically saying, look,
2:28
Speaker 4: you're going to be held in concept of court if
2:30
Speaker 4: you don't use these body cameras. Then there's also some
2:34
Speaker 4: debate about tear gas being used and whether that's proper
2:37
Speaker 4: to be used during the protests, and so the judge
2:41
Speaker 4: also had ordered the agents to stop dispersing peaceful crowds
2:44
Speaker 4: and ban the use of tear gas on people who
2:47
Speaker 4: are in a threat and so both of those are
2:50
Speaker 4: part of this overall litigation that involves also limitations on
2:55
Speaker 4: the use of the National Guard, but specifically with regard
2:58
Speaker 4: to the use of force by federals. This is the
3:01
Speaker 4: immediate concern is the use of body cameras, especially when
3:05
Speaker 4: there's use of force, and also the use of tear
3:09
Speaker 4: gas and chemical agents without proper justification for it.
3:14
Speaker 2: Yeah, So last Friday, the judge issued the additional order
3:19
Speaker 2: about the body cams because she was concerned that ICE
3:23
Speaker 2: wasn't obeying her first order that banned the use of
3:27
Speaker 2: tear gas and other munitions against protesters who are not
3:33
Speaker 2: posing an immediate threat. And then she sees all this
3:35
Speaker 2: video of the use of tear gas that the ICE
3:39
Speaker 2: agents didn't listen to her.
3:41
Speaker 4: Correct, That was the concern is she was telling the
3:45
Speaker 4: government attorneys in court, hey, are you following my order?
3:50
Speaker 4: And she said she was caught a little startled after seeing,
3:53
Speaker 4: as you said, these TV images of street confrontations that
3:57
Speaker 4: involved teergas. And so they had witnesses from ICE and
4:01
Speaker 4: from CBP saying that they're all going to be wearing
4:04
Speaker 4: body cameras now and that this isn't going to be
4:09
Speaker 4: something that's going to happen any longer that they will
4:11
Speaker 4: respect or order. But we'll see again if there's just
4:14
Speaker 4: another injunction that is shoo, or if there's actually content
4:18
Speaker 4: order that issued, or where this judge is going to
4:21
Speaker 4: go here. But certainly, I think no matter what side
4:24
Speaker 4: you stand on this, there's certainly been an escalation and
4:28
Speaker 4: detention in Chicago, and we will have to see how
4:31
Speaker 4: this all plays out, whether the courts will be able
4:34
Speaker 4: to resolve this escalation on their own, or how it
4:37
Speaker 4: will end up getting results.
4:38
Speaker 2: The ICE agents are camouflaged with masks, you can't tell
4:44
Speaker 2: who's who. Could she issue individual contempt citations against specific
4:50
Speaker 2: Ice officers?
4:52
Speaker 4: Absolutely, I mean, at the end of the day, there's
4:55
Speaker 4: multiple remedies here in terms of, yes, one contempt of
4:59
Speaker 4: court against the ICE leadership first of all if she
5:03
Speaker 4: can't identify the individual people, but also against the individual
5:06
Speaker 4: ICE agents. And then there's certainly claims that individuals can
5:10
Speaker 4: file under the Federal Thwart Claims Act or Bivens, which
5:14
Speaker 4: is the remedy that's created when federal officers personally violate
5:19
Speaker 4: constitutional rights. And so from that perspective, there are multiple
5:24
Speaker 4: claims that can be made, both individually in separate lawsits.
5:28
Speaker 4: But even in this area, content orders can be issued.
5:32
Speaker 4: And the thing with these content orders is those can
5:34
Speaker 4: either have a financial component to it or they can
5:37
Speaker 4: actually have, in a very unlikely but theoretically possible scenarioid
5:42
Speaker 4: prison component to it. And so from that perspective, it
5:47
Speaker 4: does benefit people to follow these orders because unless they
5:51
Speaker 4: get those orders overturned by an appellate courts, the judge
5:54
Speaker 4: has that kind of content authority, is.
5:57
Speaker 2: The Trump administration I or they can think that the
6:00
Speaker 2: judge doesn't have the authority to tell them how to
6:03
Speaker 2: carry out their actions.
6:05
Speaker 4: Well, I think this is all going to be part
6:07
Speaker 4: and parcel of the litigation as it goes to the
6:10
Speaker 4: Supreme Court. Is they're going to say that the judge
6:15
Speaker 4: certainly has authority in terms of issuing an injunction and
6:19
Speaker 4: enforcing their injunction, but they're going to say that at
6:22
Speaker 4: the end of the day, the judge's injunction was wrongly issued,
6:27
Speaker 4: that there isn't this constitutional right to have body cameras
6:32
Speaker 4: that's going to be the argument that Trump administration makes
6:35
Speaker 4: is that may be something that Congress can put as
6:37
Speaker 4: a requirement, or that may be something that the agencies
6:42
Speaker 4: themselves can put as a requirement. But whether the judge
6:45
Speaker 4: actually has an enforceable manner in which to enforce this
6:50
Speaker 4: body camera obligation or even the tear gas obligation. They
6:55
Speaker 4: may say, Look, the judge exceeded her legal mandate under
7:00
Speaker 4: either Bivins or under the Federal Toward Claims Act to
7:03
Speaker 4: come in and say, here are my specific remedies for
7:07
Speaker 4: these issues. And judge can perhaps say, here is a
7:11
Speaker 4: specific violation that occurred and punished that specific violation. But
7:16
Speaker 4: to issue an injunction with regard to how one can
7:19
Speaker 4: use force or with regard to how one has to
7:23
Speaker 4: document that use of force, that may be considered an
7:26
Speaker 4: overstepping of the bounds. But we'll have to wait and see.
7:28
Speaker 4: I mean, judges have issued those kinds of orders in
7:31
Speaker 4: the past, and we'll just have to see. Not so
7:34
Speaker 4: much the Seventh Circuit, but as the Supreme Court actually
7:37
Speaker 4: wants the weigh in and limit the abilities that the
7:40
Speaker 4: judges have to issue these prospective enforcement orders that limit
7:45
Speaker 4: the enforcement authorities of the federal government.
7:49
Speaker 2: As of today, we have conflicting decisions from the Seventh
7:52
Speaker 2: Circuit and the Ninth Circuit. So let's start with the
7:56
Speaker 2: Seventh Circuit's decision from last Thursday extending the order that
8:01
Speaker 2: blocks Trump from deploying National Guard troops in Chicago. And
8:07
Speaker 2: the three judge panel consisted of a Trump appointee, an
8:10
Speaker 2: Obama appointee, and a George H. W. Bush appointee.
8:15
Speaker 4: Well, again, this was the case that involved both the
8:18
Speaker 4: federalization of deployment and the National Guard deployment in the
8:25
Speaker 4: area of Chicago or of the state of Illinois. And
8:29
Speaker 4: the issue was, first of all, was this subject to
8:33
Speaker 4: judicial review? Because the Trump administration has been arguing that
8:37
Speaker 4: this isn't subject to judicial review and that this should
8:41
Speaker 4: be an unreviewable discretion. The court said, no, we actually
8:45
Speaker 4: when the president wants to operationalize a state guard in
8:50
Speaker 4: contravention of the wishes of the state, that that is
8:53
Speaker 4: a reviewable situation that has specific fractual predicates that the
8:58
Speaker 4: courts can review and that the president's discretion is not absolute.
9:02
Speaker 4: There and so then it starts asking the questions about
9:05
Speaker 4: the statue, which talk about when a president can operationalize
9:11
Speaker 4: the state National Guard in contravention of the wishes of
9:15
Speaker 4: the state. So that's is there a rebellion or is
9:17
Speaker 4: there danger of rebellion? And the court rules here that
9:22
Speaker 4: knows there was protests, but those protests aren't rebellion. There
9:26
Speaker 4: may be, you know, some political opposition, but that's not
9:29
Speaker 4: designed to actually overturn the government of the United States
9:33
Speaker 4: or to have a coup or some kind of insurrection,
9:36
Speaker 4: So that's not going to be enough to do that.
9:40
Speaker 4: And then it asks, okay, well, is there an inability
9:42
Speaker 4: to execute federal laws? And here the courts basically took
9:48
Speaker 4: the language of DHS against it, where DHS has been saying, hey,
9:52
Speaker 4: we're having record immigration enforcement. We're having a lot of
9:55
Speaker 4: success in arrests and deportations, and so the court says, well,
9:59
Speaker 4: if you have all of that record success, then this
10:03
Speaker 4: must mean you don't have an inability to execute the
10:06
Speaker 4: federal laws. And so then you don't need this ice
10:09
Speaker 4: can operate without the need for guard to protect it.
10:13
Speaker 4: And then also the court ruled that the local and
10:16
Speaker 4: state law enforcement was able to manage their protests without
10:20
Speaker 4: this federal military aid. So you took all of those factors,
10:25
Speaker 4: and the court ultimately ruled. The Seventh Circuit ultimately ruled
10:29
Speaker 4: that the District court judge was correct that there was
10:32
Speaker 4: a harm to illinois constitutional right by taking the Guard
10:37
Speaker 4: and operationalizing it against Illinois's wishes, and that that harm
10:41
Speaker 4: outweighs the federal interest in deploying the Guard. And so
10:44
Speaker 4: they said, yes, you can federalize the Guard, but you
10:47
Speaker 4: can't deploy the Guard in Illinois pending further proceedings. And
10:51
Speaker 4: so now the Supreme Court is looking at it, and
10:55
Speaker 4: briefing is scheduled to be finalized by the end of Monday,
11:00
Speaker 4: the twentieth, and then the Supreme Court will decide what
11:02
Speaker 4: it's going to do. Is it going to issue a
11:04
Speaker 4: temporary say that allows the Guard to keep operating, or
11:08
Speaker 4: is it going to issue an order saying we're going
11:10
Speaker 4: to consider this on an expedited basis and not issue
11:13
Speaker 4: a stay. So it'll be very interesting to see this
11:16
Speaker 4: week what happened.
11:17
Speaker 2: Could they just ignore it. They could ignore they're not
11:20
Speaker 2: taking any action at all.
11:22
Speaker 4: They could just take no action at all, and you know, hey,
11:25
Speaker 4: we are in a government shutdown, so you never know,
11:27
Speaker 4: they may say, hey, look we're we're not getting paid,
11:29
Speaker 4: we're not doing any cases. Well, we're not getting paid.
11:33
Speaker 4: But I doubt that will happen. If I had to
11:35
Speaker 4: make a prediction, I do think they will probably, as
11:38
Speaker 4: they've been very differential to the president, at least conduct
11:43
Speaker 4: expedited briefings to come up with a decision. If not,
11:46
Speaker 4: even more likely potentially just allow the President to continue
11:51
Speaker 4: with this deployment without any explanation, subject to better briefing
11:57
Speaker 4: in the meantime, because I think what worries then is
12:01
Speaker 4: what if things really did get out of hand, that
12:03
Speaker 4: there was an injunction and now you couldn't do anything.
12:06
Speaker 4: And so I think the Supreme Court might have this
12:08
Speaker 4: practical concern and they'll say, look at the moment, let's
12:12
Speaker 4: not place any limitations on deployment, and then let's have
12:16
Speaker 4: some very detailed briefing where we can figure this out
12:19
Speaker 4: long term. That's where I think this is most likely
12:22
Speaker 4: to go if I had to make a prediction, but
12:24
Speaker 4: I couldn't say for sure.
12:26
Speaker 2: And coming up next, we're going to talk about the
12:29
Speaker 2: Ninth Circuit's decision, which is the opposite of the Seventh
12:33
Speaker 2: Circuits decision, meaning that Trump can send federal troops into Portland, Oregon,
12:38
Speaker 2: but not into Chicago, Illinois, at least at this point.
12:42
Speaker 2: That's coming up next on the Bloomberg Law Show. I'm
12:45
Speaker 2: June Grosso. When you're listening to Bloomberg, it's a major
12:49
Speaker 2: boost for the administration's effort to send the military into
12:53
Speaker 2: democratic led cities. The Ninth Circuit Court of Appeals, in
12:57
Speaker 2: a divided opinion, is allowing President Trump to deploy troops
13:02
Speaker 2: to Portland, Oregon, to counter protests against his immigration crackdown.
13:08
Speaker 2: The two to one Appella decision focused on a series
13:10
Speaker 2: of violent acts by protesters starting in early June at
13:15
Speaker 2: a single ice facility outside downtown Portland. The city and
13:20
Speaker 2: state argued those incidents were isolated and had been handled
13:24
Speaker 2: effectively by local law enforcement, but the appeals court agreed
13:28
Speaker 2: with the administration. Now last week, on Thursday, the Seventh
13:33
Speaker 2: Circuit Court of Appeals ruled that the Trump administration could
13:37
Speaker 2: not send troops into Chicago, Illinois. I've been talking to
13:41
Speaker 2: immigration attorney Leon Fresco Leon tell Us about this Ninth
13:45
Speaker 2: Circuit decision. The same basic facts, different city, different court.
13:51
Speaker 4: Correct. So the Ninth Circuit actually ruled differently than the
13:54
Speaker 4: Seventh Circuit. And even though it's the same statute ten Usc.
13:57
Speaker 4: Twelve four h six, which is the federalization of National
14:01
Speaker 4: Guard statutes, the difference here is that two out of
14:06
Speaker 4: the three judges, they were judges appointed by Trump. On
14:09
Speaker 4: the Ninth Circuit ruled that the president's actions were likely
14:13
Speaker 4: lawful under this section twelve four to zero six, which
14:17
Speaker 4: permits federalization when the president is quote unable with the
14:21
Speaker 4: regular forces to execute the laws of the United States.
14:24
Speaker 4: And what the court ruled here is they basically created
14:28
Speaker 4: the standard. And we were talking about this with the
14:30
Speaker 4: Seventh Circuit and the Supreme Court what standard would be
14:33
Speaker 4: created in terms of difference, and they decided to use
14:37
Speaker 4: a standard called colorable assessment of the facts and law
14:41
Speaker 4: within a range of honest judgment. And so if the
14:45
Speaker 4: president has a colorable assessment of the facts in law
14:49
Speaker 4: within a range of honest judgment, which is a highly
14:52
Speaker 4: deferential standard, then the president's assessment that there is violence
14:57
Speaker 4: that needs to be dealt with is going to be
14:59
Speaker 4: the to And so that executive judgment in national security
15:04
Speaker 4: matters was deferred to here and the court issued as
15:07
Speaker 4: stay saying that the National Guard can continue in the
15:11
Speaker 4: organ case.
15:12
Speaker 2: So did they just make up that standard to apply
15:15
Speaker 2: that standard here?
15:16
Speaker 4: Basically? Basically obviously there wasn't a case like this before,
15:22
Speaker 4: and so the court took a standard but way very
15:24
Speaker 4: similar standard in the visa adjudication front. When you try
15:28
Speaker 4: to sue for visas, it's this sort of facially legitimate
15:33
Speaker 4: and bonified standard. And even that standard has been taken
15:37
Speaker 4: away almost to where there's no depending on the context,
15:40
Speaker 4: there's basically no judicial review here. They've taken a very
15:43
Speaker 4: similar deferential standard colorable assessment of facts in law within
15:48
Speaker 4: a range of honors judgment similar concept basically saying unless
15:52
Speaker 4: the president is telling you they're acting illegally, if they
15:56
Speaker 4: basically have any facts to support it, then you or
16:00
Speaker 4: to the president. And here the court said, look, there
16:02
Speaker 4: were facts, there were months of riots in Portland. You
16:06
Speaker 4: didn't just have to look at the minutes before the judgment,
16:08
Speaker 4: you could look at the months before. And because of that,
16:12
Speaker 4: the Court said there was sufficient evidence here to permit
16:16
Speaker 4: difference and to permit the National Guard to be deployed.
16:19
Speaker 2: So is it because of a difference in the facts
16:21
Speaker 2: in the two cases or a difference in the standard.
16:25
Speaker 4: That it's a difference. It's a difference in the standard
16:28
Speaker 4: of defference being given to the president. So in the
16:31
Speaker 4: Seventh Circuit, they just analyzed the facts and they're basically
16:35
Speaker 4: a clearly erroneous standpoint, and they said the district judge
16:39
Speaker 4: wasn't clearly erroneous in deciding that there were no reasons
16:44
Speaker 4: that the federal law couldn't be enforced in the Chicago area. Here,
16:49
Speaker 4: the court added, difference is that you can't just look
16:52
Speaker 4: at it that way. You actually have to start with
16:54
Speaker 4: a standard that the president wins unless you show that
16:58
Speaker 4: the president wasn't in this highly deferential standard of colorable
17:03
Speaker 4: assessment of the facts in law within a range of
17:05
Speaker 4: honors judgments. And so the court did look at the
17:09
Speaker 4: facts of Oregon and said, look here in Oregon, there
17:12
Speaker 4: was a situation where there were months of assaults and
17:18
Speaker 4: arts and attempts and docsing a federal agent. And so
17:21
Speaker 4: because of that, that was enough to trigger this and
17:24
Speaker 4: they're not going to disturb the president's determination there, and
17:27
Speaker 4: that was two to one. There wasn't descent where the
17:30
Speaker 4: descent said that at the end of the day, there
17:34
Speaker 4: isn't any difference. That's permitted in this there wasn't a
17:37
Speaker 4: president emergency. The protests were small and peaceful, and the
17:41
Speaker 4: states have sovereignty and there's constitutional limits, just all the
17:44
Speaker 4: stuff the Seventh Circuit said. And so we'll see on
17:47
Speaker 4: an non bank or what happens with the Supreme Court now. Anyway,
17:50
Speaker 4: probably this case just sits there as persuasive until the
17:54
Speaker 4: Supreme Court decided something, but lots the aagency.
17:58
Speaker 2: The judge who dissented, a Clinton An appointee, Susan Graber,
18:03
Speaker 2: suggested a swift on bank review. Quote above all, I
18:08
Speaker 2: asked those who are watching this case unfold to retain
18:11
Speaker 2: faith in our judicial system for just a little longer.
18:15
Speaker 2: Very unusual.
18:16
Speaker 4: It definitely doesn't hurt to ask for the en banc
18:19
Speaker 4: panel for the lawyers for Oregon. But the problem is,
18:23
Speaker 4: we're going to get some guidance pretty soon from the
18:25
Speaker 4: Supreme Court in the Chicago case, and that's going to
18:27
Speaker 4: figuratively and literally trump anything that happened from the Ninth
18:32
Speaker 4: Circuits standpoint. But I think you have to just play
18:36
Speaker 4: out the string in the way the schedule works, and
18:38
Speaker 4: so here you would normally ask for n bank review.
18:41
Speaker 4: You'd ask for it here in this case.
18:44
Speaker 2: Okay, so Leon, So do you think that the Trump
18:47
Speaker 2: administration will now jump to the Supreme Court and say, hey,
18:50
Speaker 2: we have two conflicting opinions.
18:52
Speaker 4: Well, you're already there. The briefing was already required of
18:55
Speaker 4: Chicago as of the end of today. So I do
18:58
Speaker 4: think they'll do a notice of supplement authority that says, hey,
19:01
Speaker 4: here's this great Ninth Circuit decision for us, so please
19:04
Speaker 4: let us know what's going on.
19:07
Speaker 2: Let's talk about some other immigration issues. There's a new
19:11
Speaker 2: report that nearly as many migrants have died in detention
19:15
Speaker 2: so far this year than over the four years of
19:18
Speaker 2: the Biden administration. So you've had ICE reporting twenty detainee
19:22
Speaker 2: deaths in custody since Trump took office, compared to twenty
19:26
Speaker 2: four deaths in the Biden administration. There are lots of
19:30
Speaker 2: complaints about the conditions in ICE custody.
19:36
Speaker 4: I would say there's multiple factors going on. So the
19:39
Speaker 4: first and most important is when you have more people
19:42
Speaker 4: in custody, more people will perish in custody, because that's
19:47
Speaker 4: just an actuarial table situation. And so you have more
19:51
Speaker 4: people in custody than ever before. You have over sixty
19:54
Speaker 4: thousand people in custody right now, and that was never
19:58
Speaker 4: anywhere close to that in the administration. You have to
20:01
Speaker 4: remember that during the first two years of the Biden
20:04
Speaker 4: administration you were dealing with COVID and so there was
20:07
Speaker 4: very few people in immigration detention at all during the
20:10
Speaker 4: COVID era. So that's one issue, and then the second
20:14
Speaker 4: issue is during the last two years, the detention centers
20:19
Speaker 4: were much more short term in terms of what they
20:22
Speaker 4: were doing is taking people who had come across the border,
20:25
Speaker 4: detaining them for some period of time, and then either
20:30
Speaker 4: immediately removing them or letting them into the United States,
20:34
Speaker 4: which was called guidgen release. And so from that perspective,
20:38
Speaker 4: you're going to have a lot fewer debts just because
20:40
Speaker 4: the amount of time in detention is much lower per person.
20:45
Speaker 4: So even if you have a lot of people that
20:47
Speaker 4: the amount of time matters. But now you have more
20:50
Speaker 4: people for more time. You have people being detained until
20:53
Speaker 4: they either win their case or they are deported. You
20:57
Speaker 4: have more people in the tention, you have more people
20:59
Speaker 4: in detention in facilities that perhaps cannot hold that many people,
21:04
Speaker 4: and you have a shortage of health professionals. Ice admit
21:07
Speaker 4: that so they're hiring over forty new health professionals, including doctors, nurses, psychiatrists,
21:14
Speaker 4: and pharmacists to try to meet this shortage of care.
21:18
Speaker 4: And so that's what's causing the debt is you have
21:21
Speaker 4: more people to pain for a longer period of time
21:24
Speaker 4: with fewer health professionals. This is unfortunately going to lead
21:28
Speaker 4: to more deaths of people in attention.
21:31
Speaker 2: A terrible situation, A terrible situation all around. Let's talk
21:35
Speaker 2: about another report, also bad news. A new study released
21:40
Speaker 2: Friday said the immigration enforcement policies will decrease the country's
21:45
Speaker 2: workforce by fifteen million people over the next decade. I mean,
21:50
Speaker 2: is this being considered at all in Trump's immigration crackdown?
21:54
Speaker 2: The need for workers?
21:56
Speaker 4: So this is kind of a tricky subject, I would say,
22:01
Speaker 4: amongst everybody in the in this space, because there are
22:06
Speaker 4: so many subtexts to this. You have, first of all,
22:09
Speaker 4: some groups of people who say, that's great, we want
22:12
Speaker 4: fewer people, and we want fewer people because we think
22:17
Speaker 4: that fewer people means that there will be a higher
22:21
Speaker 4: demand for the workers that are here, which will raise
22:24
Speaker 4: the wages of workers that are here. And yes, there's
22:27
Speaker 4: certainly some truth to that. But remember that the economy
22:32
Speaker 4: is not static, meaning there's not just a set number
22:36
Speaker 4: of jobs. Because if that was true, then whatever the
22:39
Speaker 4: population was in eighteen hundred, we would have unemployment that
22:44
Speaker 4: is equal to the amount of people we have now
22:47
Speaker 4: in twenty twenty five minus the amount of people at
22:49
Speaker 4: eighteen hundred. So it obviously doesn't work that way. It's
22:53
Speaker 4: not that that when there's more people there's more unemployment,
22:56
Speaker 4: because those people create jobs. They need things, they need aircuts,
23:00
Speaker 4: they need mechanics, they need plumbers, et cetera. So it
23:04
Speaker 4: creates a cyclical thing. But having said all of this,
23:08
Speaker 4: there are some long term tensions in terms of mechanization, AI, automation,
23:16
Speaker 4: other things of that nature, which I think no one
23:18
Speaker 4: is talking about, and so we don't actually know are
23:21
Speaker 4: we going to need more or less workers moving forward.
23:25
Speaker 4: This is a big tension that neither the left nor
23:30
Speaker 4: the right talks about when they talk about this immigration issue.
23:33
Speaker 4: And then another tension that I think the right deals
23:36
Speaker 4: with sometimes is they'll say, we need more Americans to
23:41
Speaker 4: have babies, we don't want more immigrants coming in. And
23:44
Speaker 4: so that's a separate sort of social argument that has
23:48
Speaker 4: all kinds of undercurrents that I don't like to deal
23:51
Speaker 4: with an illegal show. So those are the debates. Where
23:54
Speaker 4: are the people, I mean, should we have more or
23:56
Speaker 4: less people? Period? If we should, should they be American
24:01
Speaker 4: born people or people who are supplemented through immigration? And
24:05
Speaker 4: then third, do we have anybody who actually has any
24:09
Speaker 4: idea what a labor force will look like ten years
24:11
Speaker 4: from now? So does that even matter if we have
24:14
Speaker 4: more or less people? And I think that's where really
24:17
Speaker 4: the thought needs to be given at all. There's no
24:21
Speaker 4: thought being given to this by any leaders because this
24:24
Speaker 4: is really the issue that should then be driving what
24:27
Speaker 4: you're doing with immigration policy.
24:30
Speaker 2: It seems doubtful that any of those considerations were behind
24:34
Speaker 2: Trump's immigration policy. Thanks so much, Leon. As always, that's
24:40
Speaker 2: Leon Fresco of Honda Night. Coming up next on The
24:43
Speaker 2: Bloomberg Law Show, the Supreme Court will decide when police
24:47
Speaker 2: officers can enter a home to respond to an emergency.
24:51
Speaker 2: I'm June Grosso. When you're listening to Bloomberg. Police didn't
24:58
Speaker 2: have a warrant when they I entered the home of
25:00
Speaker 2: an army veteran in Montana, but they weren't there to
25:04
Speaker 2: arrest William Trevor case. They were there to render emergency aid.
25:09
Speaker 2: His ex girlfriend had called police saying he had a
25:12
Speaker 2: loaded handgun and had threatened to commit suicide. The police knocked,
25:16
Speaker 2: they yelled, they waited forty minutes, and then they went in.
25:20
Speaker 2: The question before the Supreme Court was what's the standard
25:24
Speaker 2: for police answering to help people in an emergency. Justice
25:28
Speaker 2: is from across the ideological spectrum seemed to think that
25:32
Speaker 2: the officers were right to go in on these facts.
25:35
Speaker 5: That's not a question of whether they could dispense with
25:38
Speaker 5: a warrant requirement. If there's no probable cause, then they
25:41
Speaker 5: can't get a warrant. It seems to me that if
25:46
Speaker 5: the police could not enter this house based on the
25:52
Speaker 5: facts that they knew, then I don't know when the
25:55
Speaker 5: police are ever going to be able to enter a
25:57
Speaker 5: house to prevent somebody from committing suicide. What more would
26:03
Speaker 5: they need here? They need to be able to look
26:05
Speaker 5: through the window and see them with a gun and
26:08
Speaker 5: pointed to his head, or they need to see a
26:09
Speaker 5: dead body on the floor. What more did they need?
26:13
Speaker 2: And Justice Brett Kavanaugh questioned the defense attorney about a
26:17
Speaker 2: possible tragic outcome if police chose not to enter the home.
26:22
Speaker 6: Well, if they, after deliberations, walk away and he commits suicide,
26:26
Speaker 6: I mean, what are you thinking then it's the officers.
26:28
Speaker 4: Would be that would be unfortunate and tragic. But we
26:31
Speaker 4: are trying to strike a balance.
26:33
Speaker 6: Between them, and the officers need some clarity, I would
26:36
Speaker 6: think in circumstances like this about what they can do
26:39
Speaker 6: and what they can't do. And it seems like they
26:43
Speaker 6: thought about it carefully and decided that the risk was
26:46
Speaker 6: sufficiently high at Justice Jackson's point, and that harm that
26:51
Speaker 6: would occur was sufficiently substantial that they should go in.
26:55
Speaker 6: And by the way, they're going in at great risk themselves.
26:59
Speaker 6: Of course, you know this is not just of course,
27:02
Speaker 6: such is pretextually looking for a crime, or going in
27:06
Speaker 6: for some other pretextual reason, or going into you know,
27:09
Speaker 6: for it's going in really to help someone.
27:15
Speaker 2: My guest is former federal prosecutor Robert Mintz, a partner
27:18
Speaker 2: maccarter and English Bob. So police normally need a warrant
27:23
Speaker 2: to enter home, but there are some emergency situations that
27:27
Speaker 2: are exceptions. Tell us about that.
27:31
Speaker 7: So there is a so called emergency Aid exception to
27:35
Speaker 7: the Fourth Amendment which allows police officers to conduct a
27:38
Speaker 7: warrantless search if they have reasonable suspicion that there is
27:42
Speaker 7: an emergency and an immediate need to protect others or
27:46
Speaker 7: themselves from harm.
27:48
Speaker 2: And tell us about the facts in this case.
27:50
Speaker 7: The defendant in this case, William Trevor Case, was an
27:53
Speaker 7: army veteran who had a girlfriend who contacted police suggesting
27:59
Speaker 7: that mister Case might be suicidal. Officers arrived at mister
28:02
Speaker 7: Case's house around nine pm, and they were familiar with
28:06
Speaker 7: his history of alcohol abuse and certain mental health issues.
28:10
Speaker 7: The ex girlfriend had told police that mister Case had
28:13
Speaker 7: a loaded gun, he had threatened to harm police if
28:16
Speaker 7: she tried to send officers to his home, and she
28:18
Speaker 7: claimed before she hung up with the police that she
28:21
Speaker 7: had heard a pop and then silence and was concerned
28:24
Speaker 7: that mister Case had actually pulled the trigger. The officers
28:28
Speaker 7: arrived at mister Case's door, they yelled, they shine flashlights
28:31
Speaker 7: through the windows.
28:32
Speaker 1: They could see empty beer.
28:33
Speaker 7: Cans, an empty handgun, holster, and a notepad with handwriting,
28:38
Speaker 7: which the officers believed at the time was a.
28:40
Speaker 1: Possible suicide note.
28:42
Speaker 7: After about forty minutes, they entered through the unlocked front door,
28:46
Speaker 7: and when they went upstairs, they saw a closet curtain open.
28:50
Speaker 7: Mister Case lunged forward, his armed outstretched with what officers.
28:54
Speaker 1: Believed was a pangun.
28:55
Speaker 7: The officer fired one shot, striking mister Case and the abdomen.
28:59
Speaker 7: It turned out handgun was found in a nearby laundry basket.
29:03
Speaker 1: The issue with trial.
29:04
Speaker 7: Then, was when the defense tried to exclude the gun
29:07
Speaker 7: and other evidence of the confrontation from the trial. The
29:10
Speaker 7: trial judge overruled that defense and allowed the prosecution to
29:15
Speaker 7: present it to the jury, and he was convicted after
29:17
Speaker 7: a trial.
29:18
Speaker 2: It seemed like the police had a lot of reasons
29:21
Speaker 2: to go in. How much more did the defense think
29:24
Speaker 2: they should have before they entered the house.
29:26
Speaker 7: To put this in context, the Fourth Amendment of the
29:28
Speaker 7: Constitution prohibits unreasonable searches and provides protections for a person's
29:33
Speaker 7: home by generally prohibiting law enforcement from entering without a
29:37
Speaker 7: warrant that is really set up in order to allow
29:40
Speaker 7: people to have privacy in their home in the context
29:44
Speaker 7: of a possible criminal case. The question that was facing
29:47
Speaker 7: justices in this case is what level of certainty must
29:51
Speaker 7: police have that an emergency is underway before entering a
29:55
Speaker 7: home without a warrant. Mister case's lawyers argued that it
29:59
Speaker 7: should be a eyebar. They argue that it should be
30:01
Speaker 7: something called probable cause, which is what police officers need
30:05
Speaker 7: in order to get a warrant to search your home
30:09
Speaker 7: in the case of a criminal investigation. But here this
30:12
Speaker 7: was not a criminal investigation. This was a circumstance in
30:15
Speaker 7: which they believed that there was an emergency and there
30:18
Speaker 7: was someone's life at risk inside the house.
30:21
Speaker 1: So the question is what is.
30:23
Speaker 7: The level of certainty that police officers need to have
30:25
Speaker 7: in order to enter the home without a warrant? And
30:28
Speaker 7: the defense argued that that level of certainty in order
30:31
Speaker 7: to avoid needless and dangerous confrontations and to prevent police
30:34
Speaker 7: officers from circumventing the concept of probable cause, that there
30:38
Speaker 7: has to be probable cause that they believe that there
30:41
Speaker 7: is an emergency and that somebody is in imminent danger.
30:45
Speaker 2: And what's the government arguing here? What's the standard they want?
30:49
Speaker 7: The government argued that the justices should rely on A
30:53
Speaker 7: Supreme Court case from two thousand and six was a
30:56
Speaker 7: unanimous opinion in a case called Brigham City versus Stewart,
31:00
Speaker 7: in which the Supreme Court held the police may enter
31:02
Speaker 7: a building without a warrant when they have an objectively
31:06
Speaker 7: reasonable basis to believe that an occupant is seriously injured
31:10
Speaker 7: or threatened with such injury. So in that case, they
31:14
Speaker 7: took it completely out of the context of probable cause,
31:17
Speaker 7: which really has an entire body of case law that
31:20
Speaker 7: talks about when police may enter a home with or
31:23
Speaker 7: without a warrant in the context of a criminal investigation,
31:26
Speaker 7: and said that here we're talking about imminent risk to somebody.
31:31
Speaker 7: It's not a criminal investigation. It's really a circumstance where
31:34
Speaker 7: police officers may come into a home in order to
31:37
Speaker 7: arguably save the life of somebody or save the life
31:40
Speaker 7: of somebody who may be with somebody who's in danger
31:43
Speaker 7: of hurting them. And in that case the standard is
31:46
Speaker 7: objectively reasonable basis to believe that the occupant is seriously
31:49
Speaker 7: injured or threatened with such injury.
31:52
Speaker 2: It seemed like justice is across the ideological spectrum, thought
31:56
Speaker 2: that the police had good reason to enter here.
32:00
Speaker 7: Yeah, Well, what's interesting here is that the Montana Supreme Court,
32:04
Speaker 7: which is the court that had just heard the case
32:06
Speaker 7: before going to the US Supreme Court, sided with the state,
32:09
Speaker 7: but it was a four to three decision, and there
32:11
Speaker 7: were actually three judges on the Montana Supreme Court who
32:15
Speaker 7: dissented and said that for a warrantless search to be reasonable,
32:19
Speaker 7: the higher bar or probable cause must apply, And then
32:22
Speaker 7: they went further and added that there was no probable
32:24
Speaker 7: cause to believe mister Case was an imminent danger or.
32:28
Speaker 1: In need of immediate.
32:29
Speaker 7: Assistants that would have justified the warrantless entry into the home.
32:33
Speaker 1: When the case went to the Supreme.
32:35
Speaker 7: Court and was argued before the Justice is there there
32:38
Speaker 7: was virtual unanimity that the standard that had been applied by.
32:43
Speaker 1: The state was the correct one.
32:45
Speaker 7: First, for example, Justice Thomas noted that the issue of
32:49
Speaker 7: probable cause is a standard that is normally limited to
32:52
Speaker 7: the criminal context. This was not a criminal investigation, and
32:56
Speaker 7: Justice Robert joined in on that to say, when we
32:58
Speaker 7: talk about probable call cause, we talk about probable cause
33:02
Speaker 7: that a crime is occurring. What standard would be used
33:05
Speaker 7: here when we're not talking about a crime, but about
33:08
Speaker 7: a risk of injury to somebody? And Justice Kagan also
33:12
Speaker 7: jumped in, saying that there is a full body of
33:14
Speaker 7: case law out there describing what probable cause is it's
33:19
Speaker 7: not a self defining term. It has been raised in
33:22
Speaker 7: many cases, and there is a full explanation in the
33:26
Speaker 7: criminal context of what constitutes probable cause, but this is
33:30
Speaker 7: something entirely different. And the justices all seemed to go
33:34
Speaker 7: back to the Brigham City versus Stewart case from two
33:37
Speaker 7: thousand and six to say that the standard of objectively
33:42
Speaker 7: reasonable basis for believing if somebody needs emergency help. Is
33:46
Speaker 7: this standard that should apply here, and Justice Alito and
33:50
Speaker 7: Justice Brown agreed, which doesn't happen very often. They both
33:54
Speaker 7: push back on the contention here of the defense lawyer
33:58
Speaker 7: that this was an unreasonable act by police. Justice Alito
34:01
Speaker 7: went so far as to say, if the police could
34:04
Speaker 7: not enter the house based on the facts that they
34:06
Speaker 7: knew in this case, then I don't know when police
34:09
Speaker 7: are ever able to go into a house to prevent
34:11
Speaker 7: something from committing suicide. The concern here is that if
34:15
Speaker 7: there is a legal standard of probable cause in order
34:19
Speaker 7: to go in under these emergency situations, that police officers may.
34:23
Speaker 1: Hesitate to go into a house.
34:25
Speaker 7: When somebody's life is at risk, and they seem to
34:28
Speaker 7: weigh more in favor of protecting the life of an
34:32
Speaker 7: individual and allowing police officers more latitude to go in
34:37
Speaker 7: under these circumstances than they were about the privacy concerns
34:41
Speaker 7: of entering a house without a warrant.
34:43
Speaker 2: Whether police have met this standard, is that going to
34:47
Speaker 2: turn out to be a jury question or a question
34:50
Speaker 2: for the judge about whether evidence even gets into trial.
34:54
Speaker 7: If the Supreme Court decides to uphold the lower court,
34:58
Speaker 7: then there was some discussion of what comes next. In
35:01
Speaker 7: other words, there were some justices who said that they
35:05
Speaker 7: should simply rule that the lower court was correct and
35:08
Speaker 7: that the standard of objectively reasonable was properly applied, and
35:14
Speaker 7: that in this case, clearly the facts warranted the police
35:17
Speaker 7: entering the home. Justice Soto Mayor and Justice Thomas, on.
35:20
Speaker 1: The other hand, argued that it's the normal.
35:23
Speaker 7: Practice of the court if they're not certain about a standard,
35:25
Speaker 7: and we state a new standard, that it should.
35:27
Speaker 1: Be sent back to the Montana.
35:29
Speaker 7: Supreme Court to determine whether, based on these facts, that
35:33
Speaker 7: objectively reasonable standard.
35:35
Speaker 1: Had in fact been satisfied.
35:36
Speaker 7: Justice Alito expressed some concern that in doing that it
35:40
Speaker 7: might suggest to the lower court that this was in
35:43
Speaker 7: some way a close call, and could, he argued, have
35:46
Speaker 7: some kind of a killing effect on police when they're
35:49
Speaker 7: trying to determine whether to enter a house to prevent
35:52
Speaker 7: somebody from committing suicide.
35:54
Speaker 2: And we should point out that here some civil rights
35:56
Speaker 2: groups did line up behind the defendants.
36:00
Speaker 1: Sure case is defense.
36:01
Speaker 7: His attorney argued to the Supreme Court that the reasonableness
36:04
Speaker 7: standard that the state was suggesting was so vague as
36:08
Speaker 7: to invite abuse and confusion by law enforcement.
36:12
Speaker 1: He reminded the justices.
36:13
Speaker 7: That police had entered mister Case's home without permission, without
36:17
Speaker 7: a warrant, or without even probable cause, and ended up
36:20
Speaker 7: shooting him in his own home. That was essentially the
36:23
Speaker 7: civil rights argument that mister Case's lawyer was arguing, and
36:27
Speaker 7: a number of prominent civil rights organizations came out in
36:31
Speaker 7: favor of the defense, arguing that the warrantless surch here
36:35
Speaker 7: was a violation of the Fourth Amendment, and they were
36:38
Speaker 7: more comfortable with the probable cost standard to allow police
36:41
Speaker 7: to enter a home even in a case where there
36:44
Speaker 7: was an emergency and there was some concern for the
36:47
Speaker 7: safety of an individual inside the home.
36:50
Speaker 2: This is one case this term where it appears you
36:53
Speaker 2: never know, but it appears that we know how it's
36:56
Speaker 2: going to turn out. We shall see. Thanks so much.
37:00
Speaker 2: That's Robert Mints of maccarter and English. And that's it
37:03
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
37:06
Speaker 2: can always get the latest legal news on our Bloomberg
37:09
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
37:12
Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,
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Speaker 2: and remember to tune into The Bloomberg Law Show every
37:21
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
37:25
Speaker 2: and you're listening to Bloomberg