Latest / Ask the Lawyer / 01/29/2026 Ask the Lawyer with Tom Peyton

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01/29/2026 Ask the Lawyer with Tom Peyton · Ask the Lawyer

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Speaker 1: The views and opinions expressed on this program do not
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Speaker 1: necessarily reflect the views and opinions of five eight whs
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Speaker 1: it's employees or WVRC media courts.
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Speaker 2: Oh created equally.
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Speaker 3: Well.
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Speaker 4: Last come here to kit.
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Speaker 5: I can rock well this morning. There's no reason to
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Speaker 5: fight the law. You can hit the law on your side.
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Speaker 5: The Paton Law Firm is here. Tom is in studio
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Speaker 5: with us this morning, and you can give us a call.
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Speaker 5: Three four five fifty fifty eight three four five fifty
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Speaker 5: fifty eight text threes or four non three five five
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Speaker 5: years or eight Tom Peyton from the Peyton Law Firm
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Speaker 5: online Peyton Lawfirm dot com.
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Speaker 3: Tom, how are you doing this morning?
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Speaker 6: Doing well?
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Speaker 2: Doing well, living in West Virginia, but feeling cold like Minnesota?
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Speaker 3: I know, right, yeah, very chilly. Yeah.
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Speaker 2: So we uh, last weeks I was going to kind
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Speaker 2: of do a little summary on the law and what's
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Speaker 2: happening up in Minneapolis and Minnesota, and we got some
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Speaker 2: really good calls actually, which if you got to call,
1:10
Speaker 2: certainly call in. But I want to try and get
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Speaker 2: right to that because it's hot topic. And unfortunately, in
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Speaker 2: between our show last week, when I was mentioning Renee Good,
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Speaker 2: and this week we've had another unfortunate incident where a
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Speaker 2: person was killed Alex. I think his last name's pretty.
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Speaker 2: I don't know how you pronounce it, But unless you've
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Speaker 2: had your head in this end, you've seen one or
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Speaker 2: more videos of both the Renee Good situation where she
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Speaker 2: was operating a vehicle and ICE agents in mass approached
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Speaker 2: your vehicle cursing she's either blocking or at least partially
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Speaker 2: blocking the road, and then backed up, pulled forward at a.
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Speaker 6: Not a rapid pace.
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Speaker 2: But there was an ICE officer standing to the driver's
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Speaker 2: side left front of her vehicle, and her vehicle made
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Speaker 2: contact with him, and then of course he shot three
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Speaker 2: bullets and killed her. I think forensics has come out,
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Speaker 2: and at least the first shot probably went under her arm,
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Speaker 2: the second shot went through her breast, wasn't fatal, and
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Speaker 2: then the third shot, which it appears to me on
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Speaker 2: the video, she was clearly clear of the officer at
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Speaker 2: that point I think shot her in the that was
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Speaker 2: the fatal shot was the third one, and she was
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Speaker 2: past the officer and he didn't appear to be in
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Speaker 2: danger any longer at that time. And then of course
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Speaker 2: we have the pretty shooting where you know he is
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Speaker 2: part of this these protesters. I don't know if he
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Speaker 2: had a whistle was blowing it while Ice was driving
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Speaker 2: down the street. But there was two women there that
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Speaker 2: were doing that, I think, and Ice approaches one of
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Speaker 2: them on a public way and it's icy there, as
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Speaker 2: you can imagine annisoda and shoves her down and starts
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Speaker 2: to pepper spray her, and this fella gets in between
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Speaker 2: and ultimately results in a tussle on the ground where
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Speaker 2: he is he was carrying I think he had a
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Speaker 2: concealed carry permit. It wasn't He certainly wasn't carrying illegally,
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Speaker 2: but they removed the pistol from him, and then in
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Speaker 2: the fray they ended up. I think there were ten
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Speaker 2: shots killed him, and you can hear five of them
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Speaker 2: clearly after he was incapacitated laying on the ground. And
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Speaker 2: in this day and age, you have multiple views. There
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Speaker 2: was a woman just a I don't think she was
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Speaker 2: she wasn't part of the protest, but she was there.
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Speaker 2: I think she was driving to go somewhere else and
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Speaker 2: kind of was going to go around the Ice agents,
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Speaker 2: according to her, and then couldn't really get around, so
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Speaker 2: she pulled in and hopped out and had her phone on,
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Speaker 2: and so we have a really good angle there, and
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Speaker 2: it's a it's a shocking video because she, you know,
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Speaker 2: just went from a non aggressive, enthusiastic kind of protest
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Speaker 2: to just middle aged man just being shot and killed.
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Speaker 2: And so it's hopefully we never get conditioned to that
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Speaker 2: in this country. Have a fear that we might based
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Speaker 2: on what's happened here recently. But you know, what's the
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Speaker 2: law regarding these situations, and kind of start with how
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Speaker 2: I think we got here. We have First, we have
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Speaker 2: a we get an underlying court say hey, Ice, you
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Speaker 2: can't stop people just based on race, ethnicity generally where
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Speaker 2: they work.
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Speaker 6: Those are just.
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Speaker 2: Mere suspicions and I wouldn't even call it circumstantial evidence
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Speaker 2: of being quote illegally in the country or not having
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Speaker 2: permanent residence status. But that was a preliminary ruling and
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Speaker 2: it was appealed to the US Supreme Court, and then
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Speaker 2: they issued a ruling on their shadow docket, which usually
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Speaker 2: doesn't have full opinion, where they explain why they're making
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Speaker 2: their ruling, and they overturned the lower court, so, you know,
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Speaker 2: injunction terminated, which without that injunction in place, then Ice
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Speaker 2: could go back to doing using what has generally been
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Speaker 2: prohibited factors at least prohibited as soul factors for detaining
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Speaker 2: people and arresting people, like race or ethnicity, color their skin,
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Speaker 2: types of businesses or places of employment. But Justice Kavnall decided, well,
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Speaker 2: we need to explain this, so he actually issued what's
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Speaker 2: called a concurring opinion and explained expressly that, oh no,
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Speaker 2: it's a totality the circumstances. So you can considering all
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Speaker 2: the circumstances which you're allowed to use race, ethnicity, type
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Speaker 2: of business, type of employment where immigrants might be, or
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Speaker 2: of course using the color of their skin, which is
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Speaker 2: a departure from previous precedent racial profiling basically normally in
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Speaker 2: the past, other than right on the border, you would
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Speaker 2: have to have it would have to articulate objective facts
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Speaker 2: about this particular person which gives rise to enough evidence
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Speaker 2: that there's good cause to just make a stop and
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Speaker 2: then determine if the suspicions are dispelled at that point,
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Speaker 2: then you can't arrest them. You can do a brief
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Speaker 2: stop of inquiry. That's what Justice Kavanaugh points out, Well,
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Speaker 2: you know, these will just be is whether it's an
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Speaker 2: unreasonable search and seizure. Unreasonable is a way of factors,
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Speaker 2: and how long somebody's detained or stopped is one of
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Speaker 2: those factors as well. And so Justice Kavanaugh talks about
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Speaker 2: his opinion, well, these will just be brief stops, you know,
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Speaker 2: just long enough to for the citizen or the person
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Speaker 2: to notify ICE whether they're legal or not, or citizens
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Speaker 2: or not. He didn't bought to explain how persons to
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Speaker 2: do that. Now, I think, with all due respect to
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Speaker 2: Justice Cavanaugh, that's an idealistic, naive view of the of
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Speaker 2: the real world. Best, especially this was in September, especially
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Speaker 2: in the light of what's been actually happening, and now
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Speaker 2: we've seen the aftermath because ICE has taken that opinion.
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Speaker 2: Oh we we can use I mean there are count
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Speaker 2: these aren't one offs. There's countless stories that are not
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Speaker 2: stories there what actually happened. Even off duty police officers
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Speaker 2: that are African American or Hispanic just being stopped on
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Speaker 2: the street for no other reason there than they're around
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Speaker 2: where protesters are or in a particular area, seem to
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Speaker 2: be based solely on skin color. Some of them detained
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Speaker 2: and I don't know what papers you would carry to
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Speaker 2: show that you're a citizen. That's not really your burden
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Speaker 2: to prove. There should be some factual basis for isis stops.
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Speaker 2: And if a person says, well, here's my idea, and
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Speaker 2: I'm a citizen or I'm here legally, I mean I don't.
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Speaker 2: Normally in America, you don't have a stock pile of
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Speaker 2: documents in your pocket or on your phone that require
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Speaker 2: you know, that would allow you to prove beyond all
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Speaker 2: doubt that you're here legally. So combine that with a
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Speaker 2: memo that was just uncovered recently where we've also seen
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Speaker 2: situations where Ice has used a battering ram to smash
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Speaker 2: into people's homes, which in the entire history of our country,
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Speaker 2: into the constitution, the home is sacred in a way.
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Speaker 2: You have to basically have a warrant to go in
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Speaker 2: somebody's home to search or seize search property inside, or
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Speaker 2: seize property inside or humans inside, unless there's an exigent
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Speaker 2: what's called exitent circumstances. If a person committed a crime
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Speaker 2: and they're running from police, they're running their house and
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Speaker 2: close the door, no the police can go in, or
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Speaker 2: if there's a evidence a person's in danger inside a home,
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Speaker 2: they can go in. Otherwise you got to stop and
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Speaker 2: get a warrant.
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Speaker 6: Now, what.
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Speaker 2: This memo says is that we'll know we're going to
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Speaker 2: allow ICE to do these raids of homes. One based
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Speaker 2: on the factors in the Kavanaugh stops. Now this memobent
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Speaker 2: came out before then. But two, you don't need need
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Speaker 2: a real search warrant. So a real search warrant is
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Speaker 2: where an officer goes to a member of the judiciary,
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Speaker 2: a neutral and detached magistrate or judge, and they filled
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Speaker 2: out a naffa day but and the judge where the
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Speaker 2: magistrate looks at it, reads it, and from the four
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Speaker 2: corners of that document, is there probable cause that you know,
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Speaker 2: there's evidence of a crime or a person who committed
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Speaker 2: may have committed a crime or inside that residence. And
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Speaker 2: then they sun off on it. So it's a screening
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Speaker 2: measure by a neutral, detached manastrate. Now what ISA is
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Speaker 2: saying is we'll know we're going to use administrative warrants,
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Speaker 2: so that, as I understand, is not issued by a
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Speaker 2: member of the judiciary. It's an employee of the executive
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Speaker 2: branch that can be there's been evidence in the Trump
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Speaker 2: administration of you know, sanctioning or discharging what we'll call
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Speaker 2: them hearing examiners or administrative judges that are employees because
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Speaker 2: they don't rule certain ways or things like that. So
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Speaker 2: that's who is now issuing these They're not neutral and
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Speaker 2: detached members of the judiciary. They're just administrative judges. You
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Speaker 2: can say that are employees of the executive branch signing
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Speaker 2: off one and you can see where there would create
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Speaker 2: problems there. So you take all that.
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Speaker 6: And we just have this scenario where.
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Speaker 2: People that are citizens, people that are not charged with
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Speaker 2: the crime, but they're here going through the asylum process
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Speaker 2: where they've been allowed to stay, and say now they're
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Speaker 2: being captured, arrested, detained, not provided due process. Judge a
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Speaker 2: good One just issued to ruining this week allowing someone
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Speaker 2: who is detained to be released. They had to hire
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Speaker 2: a lawyer to fillo what's called a habeas corpus petition.
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Speaker 2: It could be released. The government provided no evidence as
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Speaker 2: to which would justify detaining this person. As Judge Goodwin
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Speaker 2: pointed out, what's not the person being detains burden to.
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Speaker 6: Prove they should be free.
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Speaker 2: Freedom is the default so government, you have to prove
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Speaker 2: why you can continue to detain this person, and he
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Speaker 2: just summarily dismissed it. And the government didn't provide any events.
12:27
Speaker 2: I think they tried to dismit some kind of check
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Speaker 2: the box form that was wholly insufficient. And so that's
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Speaker 2: where we are now. You go to Minnesota where we
12:39
Speaker 2: have this surge of ice agents, and I think you've
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Speaker 2: got a calamity of issues there. One being a law
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Speaker 2: enforcement officer. I mean, I know local police officers, deputies,
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Speaker 2: they have a tough job. It's not easy to go,
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Speaker 2: you know, even just to think about a regular traffic
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Speaker 2: stop in a big city or here out in the
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Speaker 2: country and you go just to approach a car that
13:07
Speaker 2: might be swerving a little bit, maybe it has out
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Speaker 2: of state plates, in the middle of the night by yourself.
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Speaker 2: That could be an intense situation for a lay person,
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Speaker 2: and law enforcement.
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Speaker 6: Deal with that every day.
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Speaker 2: But they're trained, they have I looked up the sheriff
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Speaker 2: at least the Putnam County Sheriff's deputies training mean they
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Speaker 2: get months and months of training, continuing education. I assure
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Speaker 2: you that a significant amount of that training is devoted
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Speaker 2: to proper search and caesar techniques, how to de escalate situations,
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Speaker 2: not escalate situations. And you know, now we have ice
13:51
Speaker 2: agents who are hired quickly. I think they're given fifty
13:56
Speaker 2: thousand dollars hiring bonuses. And what I've understood is they
14:00
Speaker 2: reduced the training period from a matter of months to
14:04
Speaker 2: a few weeks at least anecdotally, some have said it's
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Speaker 2: forty seven days of training, which represents the forty seventh president.
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Speaker 2: And then they throw them out in these situations where
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Speaker 2: it's already.
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Speaker 3: Stewing.
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Speaker 6: I mean, there's alway.
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Speaker 2: Things are running, tempers are running high, and you know,
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Speaker 2: you throw these guys in there that you have weapons,
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Speaker 2: they wear masks, they I don't think they're training. You
14:33
Speaker 2: get in these intent they That's why police get a
14:36
Speaker 2: lot of difference in these situations. Normally it's because they're
14:39
Speaker 2: they're bang banged decisions you got. You don't see a
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Speaker 2: lot of officers get convicted of crimes for their behavior
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Speaker 2: as law enforcement officers. You don't see a whole lot
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Speaker 2: of successful civil cases against them, even when there's not
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Speaker 2: an immunity, because they get a lot of difference because
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Speaker 2: they have a difficult job and you throw these agents
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Speaker 2: in there that don't have much training at all, and
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Speaker 2: you got citizens blowing whistles in their ear and yelling
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Speaker 2: and standing in the street, most of which they're.
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Speaker 6: Entailed to do.
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Speaker 2: Some of it goes over the line, for sure, and
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Speaker 2: here we go. It's just we're seeing it play out.
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Speaker 2: When you get this circumstances that just it's like a
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Speaker 2: series of unfortunate events that are culminating now.
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Speaker 6: So hopefully it'll get better. I don't know.
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Speaker 2: If it will, and I don't think it's anything that
15:43
Speaker 2: should have been unforseeable when we have a civil justice system,
15:48
Speaker 2: and so that's you know, as opposed to the criminal
15:50
Speaker 2: justice system. You can't as a regular citizen charge somebody
15:53
Speaker 2: with a crime. Normally there's a couple exceptions, but you
15:58
Speaker 2: have to go to the law enforce and long or
16:00
Speaker 2: a prosecutor, and then they make the decision where to prosecute.
16:04
Speaker 2: And then if they do charge somebody with a crime,
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Speaker 2: they can consult with a victim, but ultimately it's up
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Speaker 2: to the government to decide how to prosecute that clime,
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Speaker 2: whether to dismiss the case, push it to trial intro
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Speaker 2: plea agreement that's not for normal citizens to decide, and
16:21
Speaker 2: so the way in which citizens can seek redress when
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Speaker 2: they're done wrong is through the civil justice system. So
16:29
Speaker 2: you can hire a lawyer and file a lawsuit if
16:31
Speaker 2: you've been harmed physically or financially. And you know, the
16:41
Speaker 2: civil justice system has there's kind of some global overwhelming
16:47
Speaker 2: points to it. One, it provides some sense of deterrence
16:52
Speaker 2: for bad conduct. You know, you have negligence cases somebody
16:55
Speaker 2: just isn't paying attention to rearing somebody, and then you
16:58
Speaker 2: have cases that involve reckless or intentional behavior. And if
17:02
Speaker 2: you have reckless or intentional behavior, normally absent quote tort
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Speaker 2: reform or or other measures to prevent cases from going
17:10
Speaker 2: to a jury, there's the potential for punitive damages. And
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Speaker 2: part of punitive damage awards is to deter bad conduct
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Speaker 2: not just for the person that committed it, but for
17:19
Speaker 2: others that might be observing the case. And in a
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Speaker 2: more global perspective, the civil justice system gives regular people,
17:34
Speaker 2: other than having to rely on the government in a
17:36
Speaker 2: criminal case, to have some recourse if they feel they've
17:41
Speaker 2: been done wrong, and that prevents things like significant civil
17:50
Speaker 2: unrest or people taking the law into their own hands.
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Speaker 2: If you didn't have a civil justice system, there would
17:56
Speaker 2: be so much frustration with folks.
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Speaker 6: That are on the wrong side.
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Speaker 2: Of people who are negligent, grossly negligent, reckless, or intentionally
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Speaker 2: do bad things that physically or financially harm others. And
18:14
Speaker 2: you would have mobs with pitchforks. So that's just the
18:19
Speaker 2: way it is. That's reality on a policy level. So
18:23
Speaker 2: you take that, and then we have this situation with
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Speaker 2: Ice where everyone's seeing them behave routinely in a way
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Speaker 2: that violates our notions of due process.
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Speaker 6: We'll call him the.
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Speaker 2: Kavanaugh stops, where he has expressed the right to use
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Speaker 2: these factors that have been disfavored in the history of
18:51
Speaker 2: our country to detain and stop people.
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Speaker 6: But.
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Speaker 2: They're violating I'm not blaming Justice Kavanaugh. I just think
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Speaker 2: his opinion was naive at the time when you're looking
19:04
Speaker 2: at the reality of the situation. Now it's his his
19:08
Speaker 2: verbiage has been parleyed into stops and detainments and arrests
19:14
Speaker 2: that go far beyond what he described. But so what
19:20
Speaker 2: recourse is there in the civil justice system. And so
19:27
Speaker 2: we'll say, all right, well, this officer shot my dad
19:32
Speaker 2: or my spouse and they didn't have a right to
19:35
Speaker 2: do so it was illegal. Our supreme courts also immunized
19:41
Speaker 2: those individual officers from civil suits. Basically, can't file a
19:47
Speaker 2: suit against individual officers. They'll it'll be dismissed for immunity grounds.
19:53
Speaker 2: So there's no civil recourse to the extent that a
19:59
Speaker 2: person can hire lawyer and prosecute the individual actors who
20:02
Speaker 2: did the shooting if they're working as a federal agent
20:08
Speaker 2: for RICE. Now you can file a claim under what
20:11
Speaker 2: it's called the Federal Twurt Claims Act. You don't get
20:14
Speaker 2: a jury trial, your damages are limited compared to a
20:17
Speaker 2: regular case, but you don't it's not a suit against
20:20
Speaker 2: the individual actors. It's against the US government. When the
20:22
Speaker 2: US government pays any resulting judgment, which cannot include punitive damages,
20:30
Speaker 2: so it doesn't have a it's not satisfactory to the
20:34
Speaker 2: harmed party. It doesn't address the individual actors who actually
20:41
Speaker 2: committed will call it the offense. So you've got this
20:46
Speaker 2: situation where there's just total frustration because routine there's routine
20:53
Speaker 2: violations of our constitutional norms. There's routine violations of even
20:59
Speaker 2: the Kavanaughs stopcase, and the folks that are being harmed
21:03
Speaker 2: and don't have, at least in their mind, an adequate remedy.
21:09
Speaker 2: I mean, there's no way to really take action in
21:12
Speaker 2: our civil justice system against these individual actors for ICE
21:15
Speaker 2: that are that are doing this other than potentially a
21:18
Speaker 2: civil case with limited damages that is against the US
21:21
Speaker 2: government versus any type of individual actors. And it just
21:26
Speaker 2: has created a boiling point. And and that's that's where
21:29
Speaker 2: we've gotten. I don't think I don't condone damaging property
21:36
Speaker 2: and in in as part of a protest for sure.
21:40
Speaker 2: And uh, there shouldn't be obstruction of law and actual
21:46
Speaker 2: law enforcement officers actually carrying out legitimate duties. But the
21:53
Speaker 2: First Amendment is pretty strong as far as protecting protesters
22:00
Speaker 2: based on noises they make or things they say and
22:05
Speaker 2: that kind of thing.
22:06
Speaker 6: And so that's what we're seeing. So then.
22:13
Speaker 2: You know, you've got some other issues in these cases.
22:17
Speaker 2: We'll see whether you know, the state charges any of
22:24
Speaker 2: these ICE agents with crimes. That'll be interesting to see
22:26
Speaker 2: how it plays out.
22:27
Speaker 3: It's it's if there's some local.
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Speaker 5: Attorney generals and things along the attorney's general and things
22:34
Speaker 5: along those lines that are that they're making those statements
22:37
Speaker 5: that our council's telling us that we can pursue charges
22:41
Speaker 5: in these cases, and so we're going to pursue charges
22:43
Speaker 5: of these cases.
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Speaker 2: Sure, and that's a possibility. I mean, talk about the
22:48
Speaker 2: technicalities of that, but it's it's going to be. They
22:52
Speaker 2: still have to prove their case beyond a reasonable doubt
22:54
Speaker 2: and meet the elements of a criminal charge. I think
22:56
Speaker 2: from what I've seen on the videos and the forensics
23:00
Speaker 2: thus far, there's enough to charge one or more officers
23:05
Speaker 2: in both not saying they be convicted, but at least
23:08
Speaker 2: enough for you to charge.
23:09
Speaker 3: You just have to have probable cause.
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Speaker 2: So I think some homicide level offense, there's enough there
23:19
Speaker 2: to charge one or more of the officers in both
23:22
Speaker 2: of these killings in Minneapolis. It might be hard to
23:30
Speaker 2: convict for a multitude of reasons, one evidentiary because as
23:34
Speaker 2: I understand, the federal government is not cooperating with the
23:39
Speaker 2: local law enforcement agencies. And if you don't have the
23:44
Speaker 2: information you need to conduct proper forensics, or it's not
23:47
Speaker 2: being shared, or evidence is being what they call spoliated,
23:50
Speaker 2: it's disappearing, and now we can't go back.
23:53
Speaker 5: And there were apparently phones collected from the government apparently
23:58
Speaker 5: collected phones around the Pready shooting actually detained some people
24:01
Speaker 5: that were around there.
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Speaker 2: Yeah, well, and maybe they have phones from the officers,
24:05
Speaker 2: and maybe there's other video on. Then some agent might
24:11
Speaker 2: have in wearing a camera body camera or a helmet
24:15
Speaker 2: camera or something like that, but I don't know if
24:17
Speaker 2: that's being.
24:18
Speaker 3: And the goovery said they're not releasing it, releasing.
24:21
Speaker 2: It to other law enforcement agencies, so it's a little
24:24
Speaker 2: bit of protection. You combine that with this over the top, amateurist,
24:32
Speaker 2: embarrassing rhetoric that comes out within minutes of these incidents
24:36
Speaker 2: happening from Christy Nome and Bonvino or whatever his name is,
24:43
Speaker 2: you know, calling these citizens you know who's coming there
24:46
Speaker 2: to massacre ice and just over the top statements that
24:51
Speaker 2: shouldn't be made by anyone, certainly not the highest echelons
24:55
Speaker 2: of our federal government, that are conclusory inflammatory. I mean why,
25:01
Speaker 2: but it's just I find it all embarrassing. They put
25:04
Speaker 2: out memes, they make these over the top, goofy, I'll say,
25:08
Speaker 2: even dangerous type statements right off the bat, and any
25:13
Speaker 2: American citizen puts up with that, which you don't I
25:16
Speaker 2: don't know what you can do other than, you know,
25:20
Speaker 2: continue to put pressure on the politicians. But it's it's
25:26
Speaker 2: something I never thought I would see in my lifetime,
25:29
Speaker 2: for sure, and but that just feeds the problem.
25:33
Speaker 6: And so.
25:36
Speaker 2: Now other than you probably want to take a break
25:41
Speaker 2: whenever you want to. We gotta take one break, right, yeah,
25:43
Speaker 2: just one? Okay, take it now. Yeah, let's okay, let's
25:46
Speaker 2: go do this. If we're gonna take a break. If
25:48
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25:50
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27:43
Speaker 2: Yeah, that's a good, good way to come back into it.
27:48
Speaker 3: But was we stopped.
27:49
Speaker 2: We stopped kind of talking about, you know, criminal charges,
27:52
Speaker 2: and I was saying, you know, I think from what
27:53
Speaker 2: I've seen and there's there's probable cause to charge some
27:58
Speaker 2: of those officers with it, that would be a a
28:00
Speaker 2: state crime. So Minnesota state law would apply now, other
28:05
Speaker 2: than the evidentiary hurdles they might run into because of
28:09
Speaker 2: potential lack of evidence due to the federal government not
28:12
Speaker 2: cooperating with local officials. Is some technical things. So there's
28:18
Speaker 2: the supremacy clause in the US Constitution with basically says
28:21
Speaker 2: that you know, the states can't infringe on a federal
28:25
Speaker 2: officer carrying out his federal duties. So if any of
28:29
Speaker 2: these officers are charged in state court, I presume they'll
28:33
Speaker 2: they have a right to remove the case to federal court,
28:35
Speaker 2: which is normally can't be done. In normal you get
28:40
Speaker 2: charged with the crime in Knall County and violation of
28:42
Speaker 2: state law, you don't get a choice to So I
28:44
Speaker 2: don't want this to be in Kannall County. I want
28:47
Speaker 2: to take it to the federal court over here, so
28:49
Speaker 2: we have a different jury pool and different judge.
28:51
Speaker 3: That kind of thing.
28:53
Speaker 2: Federal officials, when they're charged with a crime, at least
28:56
Speaker 2: it arises during their even remotely during their employment, they
29:00
Speaker 2: can remove the case to federal court, and then the
29:04
Speaker 2: federal court has to conduct an analysis basically stemming from
29:07
Speaker 2: the supremacy clause to figure out whether it's complicated. Really,
29:13
Speaker 2: I don't think there's been a US Supreme Court case
29:16
Speaker 2: interpreting this in a century, but there certainly have been
29:20
Speaker 2: some other cases that have filtered through. So the federal
29:23
Speaker 2: court will then have to determine whether that officer, when
29:28
Speaker 2: the alleged criminal conduct was occurred, whether they were carrying
29:34
Speaker 2: out their their federal duties as a federal agent, and
29:38
Speaker 2: whether what they did was quote necessary and proper to
29:41
Speaker 2: carry out those duties. And then necessary and proper language
29:44
Speaker 2: has been interpreted all different ways. So well, it obviously
29:49
Speaker 2: wasn't necessary and proper because they didn't need to shoot
29:52
Speaker 2: Renee good after and kill her after she was clear
29:55
Speaker 2: of the officer and driving the opposite direction. But it's
29:58
Speaker 2: not nearly that that simple and I think the state charges,
30:06
Speaker 2: I'm not sure they'll be complete roadblocks, but there's going
30:11
Speaker 2: to be major hurdles to those types of cases because
30:15
Speaker 2: it has to do with analysis maybe of the intent
30:18
Speaker 2: of the officer and that kind of thing. Now, if
30:21
Speaker 2: there's different versions of events, which I'm not sure there
30:24
Speaker 2: would be here with all the video and forensics, but
30:27
Speaker 2: if you had back in the olden days, and you
30:29
Speaker 2: have a witness that says, well, this is what he did,
30:31
Speaker 2: and then the defendant or another witness says, no, this
30:34
Speaker 2: is what he did, and you have conflicting facts. Usually
30:37
Speaker 2: that results in a trial. But there has to be
30:40
Speaker 2: a kind of a summary proceeding by the judge, not
30:43
Speaker 2: by a jury, to determine whether the federal officers' actions.
30:48
Speaker 2: I kind of define it as operating within the scope
30:50
Speaker 2: of their employment. If they get outside the scope of
30:54
Speaker 2: their employment, then they're probably not going to be immune.
30:58
Speaker 6: Either way.
30:59
Speaker 2: The the federal officer has a right to ultimately have
31:02
Speaker 2: a trial about guilt or innocence in the federal system
31:04
Speaker 2: versus in the state system, and it either way, if
31:09
Speaker 2: they charge them, it's not gonna I don't think a
31:14
Speaker 2: result of that proceeding will be anytime real soon because
31:18
Speaker 2: of all the legal hurdles involved with immunity and that
31:23
Speaker 2: kind of thing. So we'll see. If I was betting,
31:26
Speaker 2: i'd say they'll charge one or more of the officers
31:29
Speaker 2: in these two incidents. But if I was also betting,
31:32
Speaker 2: I would say it's probably a decent chance of federal
31:36
Speaker 2: court or rule that they're immune from federal prosecution based
31:41
Speaker 2: on what I've seen.
31:43
Speaker 5: Is there any there's so much, you know, I guess
31:47
Speaker 5: aggressive stance around all of this, and there's some elements
31:52
Speaker 5: of playing cute with some things. And this is something
31:55
Speaker 5: that I came across yesterday where there's these photos that
31:58
Speaker 5: are being released by the government of some of the
32:00
Speaker 5: bookings and arrests and things along those lines. And they're
32:03
Speaker 5: manipulating the people that are arresting everybody there to continue
32:08
Speaker 5: to do it. And and I don't mean that that
32:09
Speaker 5: they're making a means I mean they're actually changing their
32:12
Speaker 5: facial structures to make them look like more sinister or
32:16
Speaker 5: in some cases more I mean frankly more darker skin
32:20
Speaker 5: than what they actually are, with more exaggerated features than
32:23
Speaker 5: what they actually have. Is there anything where this can
32:26
Speaker 5: show some sort of intent on. I mean that it
32:29
Speaker 5: is not a serious thing to do.
32:32
Speaker 2: I mean it's manipulation and propaganda, which I think they've
32:36
Speaker 2: come out and said, not President Trump directly, but somebody
32:40
Speaker 2: on his behalf. So we're going to keep putting out
32:42
Speaker 2: means which there is no real meaningful purpose to any
32:47
Speaker 2: of That is their recourse. I don't know when it's
32:50
Speaker 2: the government doing it, not just in the setting I've
32:52
Speaker 2: been discussed. There's there are a lot of legal hurdles
32:56
Speaker 2: to do that.
32:57
Speaker 5: It's just wowed to think that not only I mean,
32:59
Speaker 5: what even your you could be guilty of something, but
33:03
Speaker 5: it just seems like a bald faced problem for you
33:06
Speaker 5: to actually get your picture manipulated to lean into some
33:10
Speaker 5: sort of caricature. I mean, if you have the evidence,
33:13
Speaker 5: you have the evidence, why do you need to go
33:14
Speaker 5: so far?
33:15
Speaker 6: Well, they don't.
33:16
Speaker 2: I mean we've seen obviously that they make grandiose statements
33:22
Speaker 2: that are false, not based on actual evidence, right off
33:25
Speaker 2: the bat. And that's fine for me or you or
33:28
Speaker 2: everyday person to type into Facebook or some other social media.
33:32
Speaker 2: It should never be tolerated from the top officials in
33:36
Speaker 2: our government because they you know this, we've been conditioned
33:42
Speaker 2: to these tweets or whatever the president sends out. But
33:44
Speaker 2: that's we shouldn't be conditioned to that. That office should
33:48
Speaker 2: be above that type behavior. And and the folks I
33:53
Speaker 2: talked to, well, I agree with his policy, sort of
33:56
Speaker 2: ignore all that. I don't ignore that. And that's one
33:57
Speaker 2: of the reasons I can't. I agree with his at
34:02
Speaker 2: least some of his underlying policies. I do, but I
34:05
Speaker 2: just can't stomach myself to tolerate that type of behavior.
34:10
Speaker 2: So going back to the issues in Minnesota. Here, I
34:12
Speaker 2: see some rhetoric on social media about well he had
34:16
Speaker 2: a gun or you know, they just need to do
34:18
Speaker 2: whatever the police tell them to do. That's interesting, Well,
34:21
Speaker 2: what's the law on that. It's actually looked up. There's
34:24
Speaker 2: a case in West Virginia. It's actually State v. Settle
34:28
Speaker 2: s E. T. T L E. It's from twenty twenty.
34:32
Speaker 2: And if law enforcements coming to arrest you, is it
34:37
Speaker 2: absolutely you just have to comply with everything they tell
34:40
Speaker 2: you to do. And I think, first of all, disclaimer,
34:44
Speaker 2: if you have a legitimate law deputy, local police, and
34:50
Speaker 2: you know, I would never I can't imagine a situation
34:52
Speaker 2: when I would advise somebody to he's forced to try
34:55
Speaker 2: and escape the police. You do that, you operate at
35:00
Speaker 2: your own risk. I'm not talking about risk of death
35:02
Speaker 2: from being shot. I'm talking about risk of committing a
35:06
Speaker 2: crime or being criminally prosecuted. But this case from twenty
35:09
Speaker 2: twenty was involved an officer state trooper I believe, pulling
35:13
Speaker 2: somebody over rural area. I think they're a weaving or something,
35:17
Speaker 2: probably suspected the UI. Well, then I think the guy
35:22
Speaker 2: doesn't pull over, he speeds off, recks his car, flips
35:25
Speaker 2: his vehicle. The officer goes to help or get him
35:29
Speaker 2: out of the vehicle, and during the process, even though
35:31
Speaker 2: he had his gun out, he didn't. The guy starts
35:33
Speaker 2: to struggle with the officer, and the officer uses multiple
35:37
Speaker 2: means to try and subdue him. I think he had
35:39
Speaker 2: a baton and maybe pepper spray I can't remember that
35:42
Speaker 2: fact for sure, but gets the guy of the vehicle.
35:43
Speaker 2: He's still fighting with the officer and maybe even ran
35:47
Speaker 2: on foot. Eventually they capture him and the guy's charged
35:51
Speaker 2: with like eight different counts, some of them stending from
35:54
Speaker 2: his driving behavior, some of them from his behavior and
35:56
Speaker 2: interacting with the officer, and a salting the officer base
36:00
Speaker 2: that kind of thing. First, he wasn't shot. He lived
36:03
Speaker 2: and had a trial. But even in that case, and
36:08
Speaker 2: this wasn't. The Supreme Court approved the judge's jury instruction.
36:16
Speaker 2: And I think this was probably a little probably favorable
36:20
Speaker 2: to the defendant and may not have been necessary, but
36:22
Speaker 2: the judge gave the jury an instruction on this guy
36:25
Speaker 2: had a self defense defense based on that scenario. I
36:28
Speaker 2: just went over even though the officer certainly had cause
36:32
Speaker 2: to arrest him detain him, and he basically fought with
36:35
Speaker 2: the officer, And so I was just trying to defend
36:37
Speaker 2: myself against an unlawful arrest. So here's what you'd be
36:42
Speaker 2: told if somebody says, well, I was only resisting that
36:46
Speaker 2: officer because I thought it was an unlawful arrest and
36:50
Speaker 2: I was just trying to escape. So here's what a
36:52
Speaker 2: jury would be told. And it's a little dry, but
36:58
Speaker 2: this is all you get if you're if you're a
36:59
Speaker 2: j listening to the case. Under the laws of this state,
37:03
Speaker 2: a person who is subject to an attempted unlawful arrest
37:06
Speaker 2: may use such reasonable force proportion to the injury attempted
37:11
Speaker 2: on him as is necessary to affect his escape, but
37:15
Speaker 2: no more. And he cannot do this by using or
37:18
Speaker 2: offering to use a deadly weapon if he has no
37:21
Speaker 2: reason to believe that he will receive greater injury than
37:24
Speaker 2: a mere unlawful arrest. So you can't use a deadly
37:28
Speaker 2: weapon to I mean, whilst he weaponized the car, well maybe,
37:33
Speaker 2: I mean it's a car a deadly weapon in that situation.
37:37
Speaker 6: I don't know.
37:37
Speaker 2: Oh we got to go yeah, Well continues on talks
37:40
Speaker 2: about whether I'm lawfulrested, But point being, I never prescribed
37:45
Speaker 2: resisting arrest from a legitimate lawful officer, trying to make
37:49
Speaker 2: just go with it, be arrests, get it arrested, and
37:51
Speaker 2: then deal with it later. But this attitude that you
37:55
Speaker 2: just have to do everything these massmen say in Minnesota
37:58
Speaker 2: and if they if you don't, you should be nick
38:02
Speaker 2: you're begging to be shot or her is not.
38:05
Speaker 3: In the law.
38:07
Speaker 5: That's Tom Payton from the Peyton Law Firm Peyton Law
38:09
Speaker 5: Firm Online, Peyton Lawfirm dot com, Peyton Lawfirm dot com.
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38:18
Speaker 5: Thanks a lot, look forward to it.
38:19
Speaker 6: I'll be here.
38:20
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