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Special Edition: San Francisco's EPA Battle; Ghost Gun Kits · Bloomberg Law

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Speaker 1: Bloomberg Audio Studios, Podcasts, radio news. This is Bloomberg Law.
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Speaker 2: What does a prosecutor have to prove in order to
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Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts.
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Speaker 2: That's Jennifer k for Bloomberg Law. Joining me is former
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Speaker 2: federal prosecutor Robert mint.
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Speaker 1: And analysis of important legal issues, cases and headlines.
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Speaker 2: It's the toughest hurdle for prosecutors proving Trump's intent. Alito
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Speaker 2: took on Congress, saying Congress has no power to regulate
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Speaker 2: the Supreme Court.
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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.
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Speaker 2: Welcome to a special Holiday edition of the Bloomberg Law Show.
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Speaker 2: I'm June Grosso. Ahead in this hour, we'll take a
0:51
Speaker 2: look back at some crucial Supreme Court arguments this term.
0:55
Speaker 2: The justices considered regulations on ghost guns just months after
0:59
Speaker 2: all landmark decision on bump stocks. Will also look at
1:03
Speaker 2: a unique death penalty appeal where the state of Oklahoma
1:07
Speaker 2: is siding with the death row inmate. But first, the
1:11
Speaker 2: liberal city of San Francisco found itself in an unusual
1:15
Speaker 2: position at the Supreme Court, taking on the Environmental Protection
1:20
Speaker 2: Agency over sewage discharge into the Pacific Ocean. With a
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Speaker 2: ten billion dollar fine on the line. The city's attorney,
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Speaker 2: Tara Steely, argued that the regulations were too vague.
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Speaker 3: They might as well have said, do not violate the
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Speaker 3: Clean Water Act. It doesn't tell us anything.
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Speaker 2: But the liberal justice is pushed back on San Francisco's arguments.
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Speaker 2: Here are Justices Elena Kagan and Sonya So to Mayor.
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Speaker 4: It's prescribing that you have to meet water quality standards, Like,
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Speaker 4: how more clearly could you meet this statutory language than that?
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Speaker 4: What they're asking you is to become responsible doing what's necessary.
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Speaker 2: The ideological divide was apparent, with conservative justices expressing concerns
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Speaker 2: about the fairness of the city facing billions in fines
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Speaker 2: without knowing what its obligations are under a vague permit.
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Speaker 2: Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew.
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Speaker 5: You're suing San Francisco separately for a lot of money
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Speaker 5: based on a standard that they had no idea. You know,
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Speaker 5: that's the theory. That's the theory in your position, your
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Speaker 5: position would allow that. I don't, yes, it will. I
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Speaker 5: mean the base I complaint is exhibit A for what
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Speaker 5: you said is not going to be true.
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Speaker 2: And Chief Justice John Roberts pointed out that Congress had
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Speaker 2: updated the law to address the kind of concerns that
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Speaker 2: San Francisco was raising about a lack of clarity.
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Speaker 6: The battle days is when we had water quality standards, right,
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Speaker 6: people didn't know what they were supposed to do, how
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Speaker 6: it was going to be allocated, sort of a problem
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Speaker 6: of the commons, and they put in the permit system.
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Speaker 6: And I think the danger here is that you're going
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Speaker 6: back to the other system.
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Speaker 2: Joining me is former US Solicitor General Gregory garr, a
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Speaker 2: partner at Latham and Watkins. Great tell us about the
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Speaker 2: city's argument here.
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Speaker 7: So, the City of San Francisco is concerned about the
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Speaker 7: lack of fair notice that they have in terms of
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Speaker 7: how to comply with the Clean Water Act as to
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Speaker 7: the sewage discharge that's going into the Pacific Ocean. And
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Speaker 7: their argument is that the Clean Water Act obligates the
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Speaker 7: EPA to set specific effluent limitations on the amount of
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Speaker 7: pollutants coming out of pink sources. Discharges like the pipes
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Speaker 7: going into the ocean, and that instead, what the EPA
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Speaker 7: has done here is just issued these vague water quality standards.
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Speaker 7: You have to be sure that the water is a
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Speaker 7: particular color where the sewage is coming out, or you know,
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Speaker 7: NEETs other criteria. And the city's argument is that, well,
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Speaker 7: they don't know how to meet those criteria, there's other
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Speaker 7: sources coming in, who's responsible for what? And you know,
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Speaker 7: all this is against the backtop of a suit brought
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Speaker 7: by the EPA in which they're seeking, according to the city,
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Speaker 7: literally ten billion dollars in penalties. So the city feels
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Speaker 7: as though they lacked the fair notice that they were
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Speaker 7: entitled to under the Act up front in terms of
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Speaker 7: what discharges could go into the ocean.
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Speaker 2: Did it seem like the three liberal justices were pushing
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Speaker 2: back on the city's argument.
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Speaker 7: Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned
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Speaker 7: in hard against the city on their arguments, and they
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Speaker 7: took a number of different tacks. Most importantly, I think
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Speaker 7: they really wanted to focus the city on the text
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Speaker 7: of the Act and put the city on its heels
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Speaker 7: in terms of identifying a provision of the Act that
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Speaker 7: stripped EPA of the authority to issue these sorts of
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Speaker 7: broader water quality standards and justice Jackson in particular went
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Speaker 7: into the language in the Act which says that the
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Speaker 7: EPA could adopt quote any more stringent limitations end quote,
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Speaker 7: and argued that, you know, the city was wrong in
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Speaker 7: saying that the limitations were limited to effluent limitations coming out.
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Speaker 7: The justices also had hard questions for the cities about
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Speaker 7: the environmental impact potential environmental impacts of the city's position,
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Speaker 7: which at times got pretty gross in terms of talking
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Speaker 7: about floating toilet paper and the like. But the city
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Speaker 7: definitely based a tough crowd from the more liberal end.
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Speaker 2: Of the court, and the EPA's attorney faced a tough
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Speaker 2: crowd from the more conservative justices. Tell us about his argument.
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Speaker 7: So his argument was that number one, that the statute
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Speaker 7: did confer this more broader authority on EPA, and that
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Speaker 7: it could be exercise in particular instances more limited circumstances,
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Speaker 7: and that here he claimed that the problem really was
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Speaker 7: one of San Francisco's own creation, and that he claimed
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Speaker 7: that EPA had asked for specific data from the city
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Speaker 7: about its discharges and the like, and the city never
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Speaker 7: provided it, and so according to the EPA attorney, they
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Speaker 7: had no choice but to issue these more general water
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Speaker 7: quality standards. And you know, really one of the more
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Speaker 7: interesting dynamics of this oral argument is this was the
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Speaker 7: City of San Francisco, one of the more progressive jurisdictions
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Speaker 7: in the country, facing off against the Biden administration EPA,
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Speaker 7: and it was clear that there was no love loss
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Speaker 7: between them, at least as to this particular issue.
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Speaker 4: Yeah.
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Speaker 2: Well, this is a case where the city's Board of
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Speaker 2: supervisors voted eight to two to urge the city officials
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Speaker 2: to resolve the suit quickly, there being a concern that
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Speaker 2: a Supreme Court ruling in the city's favor could have
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Speaker 2: sweeping implications for curtailing water pollution definitely.
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Speaker 7: And it's unclear how far the court would go even
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Speaker 7: if it ruled for the city in this case. You know,
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Speaker 7: there were justices sort of probing more narrow rulings, and
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Speaker 7: I think even if the court ruled in favor of
7:03
Speaker 7: the city, it probably would you try to limit the
7:06
Speaker 7: reach of its ruling. But you know, the basic question
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Speaker 7: on the table is whether ETA has the authority to
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Speaker 7: issue these broader water quality standards, which is something that
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Speaker 7: is the Chief Justice pointed out during the oral argument
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Speaker 7: that you know, this is what the prior regime did.
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Speaker 7: It issued these general water quality standards instead of specific
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Speaker 7: discharge limitations. And in his view, and this is what
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Speaker 7: the city argued, that the Clean Water Act was actually
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Speaker 7: enacted in part to replace that regime with one which
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Speaker 7: gave the dischargers more notice upfront in terms of the
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Speaker 7: specific limitations that were permissible.
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Speaker 2: And did it seem just as the liberals were taking
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Speaker 2: issue with the City, that the Conservatives were taking issue
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Speaker 2: with the EPA.
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Speaker 7: Well, there was a group of them. There was the
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Speaker 7: Chief Justice, Justice Kavanaugh. Justice Gorsich pushed back the hardest,
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Speaker 7: I think, and the main concern on that sort of
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Speaker 7: unified them was the lack of fair notice to the
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Speaker 7: city and other dischargers in this situation. Where As I
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Speaker 7: mentioned earlier, you know, potentially these jurisdictions are on the
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Speaker 7: hook for significant penalties in this case, you know, literally
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Speaker 7: billions of dollars according to the city, and they don't
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Speaker 7: know exactly, the city argues, and the Conservatives sort of
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Speaker 7: picked up on how to comply with the Clean Water
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Speaker 7: Act in this instance, particularly where there are multiple discharges
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Speaker 7: going into the same place, and who's responsible for what
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Speaker 7: in terms of figuring out whether or not the water
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Speaker 7: quality standard is met. But there was some uncertainty, at
8:38
Speaker 7: least in terms of where the other justices were. Justice Barrett,
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Speaker 7: who actually joined the more liberal justices in an environmental
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Speaker 7: case last term, Ohio versus EPA, you know, didn't join
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Speaker 7: the stronger attack by the other conservative justices and seemed
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Speaker 7: to be probing a narrower angle and dealing with these
8:56
Speaker 7: challenges under the arbitrary and capricious doctrine. Justice Solito picked
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Speaker 7: up a little bit on the government's argument that in
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Speaker 7: this case, the problem was that San Francisco hadn't provided
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Speaker 7: adequate data to the EPA, leaving it with the predicament
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Speaker 7: that it had to issue these more general standards, and
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Speaker 7: Justice Thomas definitely had some tough questions for the city,
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Speaker 7: although his position was a little bit less clear. So,
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Speaker 7: you know, San Francisco coming out of the argument, I
9:21
Speaker 7: think should feel good about its position, but it's not
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Speaker 7: over yet.
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Speaker 2: Are other cities in the same position as San Francisco
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Speaker 2: have the same problems.
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Speaker 7: So I think that the use of general Walader quality
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Speaker 7: standards is definitely not the norm. But one thing that
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Speaker 7: came up during the oral argument in response to questioning
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Speaker 7: from Justice Kavanaugh was that there was many amikas brief
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Speaker 7: file friends of the Court, from businesses, municipalities, and the
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Speaker 7: like who had serious concerns and reservations and problems with
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Speaker 7: the EPA's approach here, and you know, talked about the
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Speaker 7: dangers and lack of fair notice with this sort of
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Speaker 7: more general water quality standard regime, and that was something
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Speaker 7: that resonated with Justice Kavanaugh at least and probably some
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Speaker 7: of the other justices as well.
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Speaker 2: This is the first case to grapple with federal agency
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Speaker 2: power since lopeer Bright was decided last June. That's the
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Speaker 2: case that overturned Chevron deference. So you didn't hear much
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Speaker 2: about Chevron deference in these oral arguments.
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Speaker 7: No, not a word. EPA certainly didn't ask for it,
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Speaker 7: and you know, it was clear that this is going
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Speaker 7: to come down to what Congress actually said in the
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Speaker 7: statute and the Court's best interpretation of that, which, of
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Speaker 7: course is the way it works after Wiperbright, and really
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Speaker 7: the way has worked at the Supreme Court for many years,
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Speaker 7: even before Loperbright.
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Speaker 2: Do you think that we're just not going to hear
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Speaker 2: about chevron defference in future arguments at all, or about
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Speaker 2: that concept.
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Speaker 7: We're definitely not going to hear about chevron difference. I
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Speaker 7: think the more interesting question is will we hear about
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Speaker 7: other time types of difference, so called get more difference?
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Speaker 7: You know, how aggressive will the government be in trying
11:07
Speaker 7: to claim some type of difference in other cases and
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Speaker 7: try to push back a little bit? And I think
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Speaker 7: that that'll be an interesting trend to follow on the
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Speaker 7: court this term and beyond.
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Speaker 2: The EPA has faced a string of losses at the
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Speaker 2: Supreme Court in recent years, for example, with the court
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Speaker 2: curbing its ability to reduce greenhouse gases and to protect wetlands.
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Speaker 2: Does it seem like in some respect it's going to
11:37
Speaker 2: lose in this case as well, whether it's broad or limited.
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Speaker 7: I don't think that that's a certainty at this point.
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Speaker 7: I mean, one of the other questions that came up
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Speaker 7: during the oral argument was whether or not there were
11:48
Speaker 7: some flaws with this case, and maybe the court just
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Speaker 7: not decided altogether. But you know, I think you're going
11:54
Speaker 7: to feel better about youural argument coming out of it
11:56
Speaker 7: if you're san Francisco an EPA, and I think you
12:00
Speaker 7: know EPA and the government more generally has been behind
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Speaker 7: the eight ball and these administrative challenge cases, and you know,
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Speaker 7: EPA sort of finds itself in a particularly difficult positions
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Speaker 7: when you combined aggressive enforcement of its environmental priorities with
12:18
Speaker 7: broader statutory provisions, which is the area where the Supreme
12:22
Speaker 7: Court has been particularly adamant in demanding the the agency
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Speaker 7: point to more specific authority in the statute for what
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Speaker 7: it's doing.
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Speaker 2: Thanks so much for coming on again, Greg and sharing
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Speaker 2: those insights with us. That's former US Solicitor General Gregory
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Speaker 2: Garr of Latham and Watkins. Coming up next on this
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Speaker 2: special holiday edition of the Bloomberg Law Show, the justices
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Speaker 2: grapple with whether ghost guns meet the federal definition of
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Speaker 2: a firearm. I'm June Grasso. When you're listening to.
12:51
Speaker 1: Bloomberg, this is Bloomberg Law with June Grosso from Bloomberg Radio.
13:06
Speaker 2: Thanks for joining us for a special holiday edition of
13:08
Speaker 2: the Bloomberg Law Show. I'm June Grosso. We're looking at
13:12
Speaker 2: some high profile Supreme Court arguments from this term. Still ahead,
13:17
Speaker 2: we'll dive into an unusual death penalty case that finds
13:21
Speaker 2: the State of Oklahoma siding with a defendant on death row.
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Speaker 8: But first these guns were being purchased and used in crime.
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Speaker 8: They were sold to be crime guns. There was a
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Speaker 8: one thousand percent increase between twenty seventeen and twenty twenty
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Speaker 8: one in the number of these guns that were recovered
13:37
Speaker 8: as part of criminal investigations. And it makes perfect sense
13:41
Speaker 8: because the whole reason why you would want to get
13:43
Speaker 8: your hands on one of these unseerialized, untraceable firearms is
13:47
Speaker 8: if you are a prohibited person or you want to
13:49
Speaker 8: use that gun in a crime.
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Speaker 2: Solicitor General Elizabeth Prelager argued that the Supreme Court should
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Speaker 2: uphold the Biden administration's regulation of ghost guns, nearly untraceable
14:01
Speaker 2: firearms that can be assembled at home in as little
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Speaker 2: as twenty minutes.
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Speaker 8: Those untraceable guns are attractive to people who can't lawfully
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Speaker 8: purchase them or who plan to use them in crimes.
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Speaker 8: As a result, our nation has seen an explosion in
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Speaker 8: crimes committed with ghost guns.
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Speaker 2: During oral arguments, the Justice is grappled with the question
14:21
Speaker 2: of whether ghost guns meet the definition of firearms under
14:25
Speaker 2: the Federal Gun Control Act that would allow the government
14:28
Speaker 2: to regulate them. The analogies were plentiful. Justice Samuel Alito,
14:33
Speaker 2: who seemed skeptical of the government's argument, compared the gun
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Speaker 2: kits to cooking ingredients.
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Speaker 5: There I show you I put out on a counter
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Speaker 5: some eggs, some chopped up ham, some chopped up pepper,
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Speaker 5: and onions.
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Speaker 1: Is that a Western ovelet?
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Speaker 8: No, because again those items have well known other uses
14:56
Speaker 8: to become something other than an omelet. The key difference
14:59
Speaker 8: here is that these up and parts kits are designed
15:02
Speaker 8: and intended to be used as instruments of combat, and
15:04
Speaker 8: they have no other conceivable use.
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Speaker 2: But Justice Amy Coney Barrett jumped in comparing gun kits
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Speaker 2: to meal kits.
15:12
Speaker 4: No pre lager.
15:13
Speaker 3: I just want to follow up on Justice Alito's question
15:15
Speaker 3: about the omelet. Would your answer change if you ordered
15:18
Speaker 3: it from Hello Fresh and you've got a kit and
15:21
Speaker 3: it was like turkey chili, but all of the ingredient
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Speaker 3: answer in the kit.
15:25
Speaker 1: Yes.
15:26
Speaker 2: The best analogies seemed to be if you buy a
15:29
Speaker 2: bed from Ikea that you have to assemble, is it
15:32
Speaker 2: still a bed? Joining me? Is Kevin Tobia, a professor
15:35
Speaker 2: at Georgetown Law, Many people might expect that this is
15:39
Speaker 2: a second Amendment case since it concerns guns, but tell
15:43
Speaker 2: us what the question before the court was.
15:45
Speaker 9: Here, So it's not a second in the case. It's
15:47
Speaker 9: a statutory case. So it concerns the Gun Control Act
15:51
Speaker 9: of nine sixty eight. And there's two questions in the case,
15:54
Speaker 9: and so both of them involve the meaning of different
15:57
Speaker 9: language in this statute. So the question in some ways
15:59
Speaker 9: is kind of simple, right before you get to like
16:01
Speaker 9: all the kind of complexity that they were working through,
16:03
Speaker 9: which is what counts as a firearm for this law.
16:05
Speaker 9: And so these gun parts kits, they're marketed and sold
16:09
Speaker 9: as kits that you can buy and assemble and construct
16:12
Speaker 9: into a functional firearm. So, you know, a lot of
16:15
Speaker 9: the conversation was drawing analogies to different sorts of goods,
16:18
Speaker 9: playing kind of with language and trying to understand, you know,
16:21
Speaker 9: what counts as an omelet or what counts as a table.
16:24
Speaker 8: Right.
16:24
Speaker 9: So Justice A. Leado offered this example kind of possible
16:27
Speaker 9: to the government's position that if we just have you know,
16:29
Speaker 9: peppers and mushrooms and eggs, that's not an omelet yet.
16:32
Speaker 9: So in the same way, like a collection of gun
16:35
Speaker 9: parts is not a firearm yet, And just as Barrett
16:37
Speaker 9: actually sort of responded as said, well, what if those
16:39
Speaker 9: come in a Hello Fresh kit, we actually might understand
16:42
Speaker 9: that as an omelet, even though it's not completely assembled yet.
16:44
Speaker 9: And you know, the example of Nikia table came up
16:46
Speaker 9: as well. Some of the argument got into the technicalities
16:49
Speaker 9: of like what exactly is included in these parts kits?
16:51
Speaker 9: What's a frame and receiver? More broadly, a lot of
16:53
Speaker 9: the justices were drawing these analogies to other sorts of
16:56
Speaker 9: items that were pretty comfortable to call tables even though
16:59
Speaker 9: they're assembled or onless, even though they're unassembled.
17:02
Speaker 2: The ghost gun kits don't come with fully assembled frames
17:06
Speaker 2: or receivers the core component of a firearm, so a
17:10
Speaker 2: kit might require the purchaser to drill some hole so
17:13
Speaker 2: that pins can be inserted. The challengers, the gun manufacturers
17:17
Speaker 2: and gun right supporters, argue that's what puts the kits
17:21
Speaker 2: outside the law, But their attorney, Peter Patterson, faced a
17:25
Speaker 2: tough audience, especially from the Chief Justice, who didn't seem
17:30
Speaker 2: to be buying that argument.
17:32
Speaker 6: What is the purpose of selling a receiver without the
17:36
Speaker 6: holes drilled in it?
17:39
Speaker 10: Well, there are some individuals, and just like some individuals
17:43
Speaker 10: enjoy like working on their car every weekend. Some individuals
17:47
Speaker 10: want to construct their own firearms. So the purpose of
17:50
Speaker 10: selling it is to allow I'm trying to go his
17:52
Speaker 10: to assist and provide individuals with material which which they
17:56
Speaker 10: can do that.
17:58
Speaker 6: Well. I mean, drilling whole or two I would think
18:02
Speaker 6: doesn't give the same sort of reward that you get
18:05
Speaker 6: from working on your car on the weekends.
18:07
Speaker 9: Yeah, so I thought that line of questioning from Justice
18:10
Speaker 9: Roberts was really interesting. I think, especially if you're trying
18:13
Speaker 9: to read the tea leaves and sort of think about
18:15
Speaker 9: where some of these justices will vote, and I think
18:17
Speaker 9: Roberts is a kind of important one in this case.
18:19
Speaker 9: He asked straight up, like, what's the purpose of selling
18:22
Speaker 9: a receiver without the holes drilled in it? And you know,
18:24
Speaker 9: one answer from Patterson is, you know, people buy this
18:27
Speaker 9: as a hobbyist, right in the same way you might
18:29
Speaker 9: buy like a collection of unassembled parts to make it
18:32
Speaker 9: like a little toy ship or model or something, or
18:34
Speaker 9: working on a car and you enjoy it. And Justice
18:37
Speaker 9: Roberts really did not seem to be buying that answer, right.
18:39
Speaker 9: He said, you know, drilling a whole or two doesn't
18:41
Speaker 9: really give you the kind of reward you get from
18:43
Speaker 9: working on your car over the weekend. And I think
18:45
Speaker 9: he's exactly right there. Right, So, like when you look
18:47
Speaker 9: at how these guns are marketed as well, these parts
18:49
Speaker 9: kits are not marketed for hobbyists, Like they're not described
18:52
Speaker 9: by language like this is a really leisurely, enjoyable, difficult build, right,
18:57
Speaker 9: They're marketed in terms like this is extremely fast and easy,
19:00
Speaker 9: this is ridiculously easy, like this is dummy proof, like
19:03
Speaker 9: you can do this really fast with no expertise. And
19:05
Speaker 9: so I think that analogy that Patterson was trying to
19:09
Speaker 9: draw between buyers of these kids and cobbyists just really
19:11
Speaker 9: fell apart. And I think there's a great question from
19:13
Speaker 9: Justice Roberts and also give some insight into where he
19:16
Speaker 9: might stand on this case.
19:17
Speaker 2: Is anyone arguing that this isn't a kit to assemble
19:21
Speaker 2: a gun? What I'm getting at is, are they just
19:24
Speaker 2: looking for a loophole here?
19:26
Speaker 9: Yeah, So I think everyone agrees that these are kits
19:28
Speaker 9: to be assembled into a gun. Vanderstock's argument is just
19:31
Speaker 9: because of a kid that you could assemble into a
19:33
Speaker 9: gun does not in fact make it a firearm. Within
19:35
Speaker 9: the meaning of the statute, and the government sees the
19:37
Speaker 9: statutory meeting a firearm to include these kits. You know,
19:40
Speaker 9: interesting thing that came out to your question is there
19:42
Speaker 9: was some discussion, a lot of discussion actually about kind
19:44
Speaker 9: of where to draw the line. And I think even
19:46
Speaker 9: Patterson conceded that a firearm that's disassembled as a firearm,
19:50
Speaker 9: and so this question about like how close does it
19:52
Speaker 9: have to be? And so you know, the government's argument is,
19:54
Speaker 9: you know, once it's readily convertible, which these kids they
19:57
Speaker 9: think are, that's good enough. And so the term fire
20:00
Speaker 9: arms should encompass these kits which could be readily converted
20:03
Speaker 9: to function as firearms very quickly.
20:05
Speaker 2: Justice Gorsuch asked questions of a textualist nature. Where do
20:10
Speaker 2: you think a textualist analysis gets you here?
20:14
Speaker 9: So there's two questions in the case, right. So the
20:16
Speaker 9: first one is about whether a parts kit falls under
20:19
Speaker 9: the Part A of this statute. So any weapon which
20:21
Speaker 9: will is designed to or may readily be converted to
20:23
Speaker 9: expel a projectile by the action explosive. As a matter
20:26
Speaker 9: of textualism, I think that question in this case is
20:29
Speaker 9: extremely straightforward, that these parts kits fall under that language.
20:32
Speaker 9: Just as part of the ordinary meaning of firearm. And
20:34
Speaker 9: then you're underscored by the statutory language. The statute explicitly
20:38
Speaker 9: contemplates things that could be readily converted to expel a projectile,
20:42
Speaker 9: which just seems to be explicitly describing things like these
20:44
Speaker 9: parts kits. And in question, the second question in the
20:47
Speaker 9: case is about the meaning of the frame or receiver
20:50
Speaker 9: of any such weapon in the statue, and many of
20:52
Speaker 9: Justice Gorsuch's questions had to do with that second question.
20:55
Speaker 9: So there the question is, if these companies sell an
20:57
Speaker 9: eighty percent receiver, which, as the government says, you have
21:00
Speaker 9: to drill a few holes in to convert this to
21:02
Speaker 9: a one hundred percent functional receiver, does that count as
21:06
Speaker 9: a frame or receiver within the meaning of the statute?
21:09
Speaker 9: And so you know, Justice Gorsuch was asking a number
21:10
Speaker 9: of kind of interesting questions about that, and going in
21:13
Speaker 9: I would not have kind of, as a matter of politics,
21:16
Speaker 9: expected Justice Gorsage to be favorable to the government in
21:19
Speaker 9: this case, but his questions sort of suggested some openness
21:21
Speaker 9: to following the text in this case to a place
21:24
Speaker 9: that might not lead to the sort of conservative politics.
21:27
Speaker 9: So he was asking, you know, when you look at
21:28
Speaker 9: this statue and look at the context. Every other part
21:31
Speaker 9: of the statute is contemplating convertible parts in addition to
21:35
Speaker 9: fully functional parts, and so in that context, might we
21:38
Speaker 9: understand frame and receiver just giving them their ordinary meaning
21:40
Speaker 9: in that context to also include things that are extremely
21:43
Speaker 9: close to functional and frame and receivers. I thought it
21:46
Speaker 9: was a really interesting kind of exchange between Gorsuch and
21:48
Speaker 9: the Swisser General from that point, So, the.
21:50
Speaker 2: Solicitor General mentioned several times the explosion in crimes committed
21:55
Speaker 2: using ghost guns and that the new regulations are crucial
22:00
Speaker 2: for solving gun crimes. And also you had a group
22:03
Speaker 2: of twenty major cities filing with the Supreme Court saying
22:07
Speaker 2: that the regulation appears to have been effective reducing the
22:10
Speaker 2: use of ghost guns. Where does that fit into the
22:13
Speaker 2: Supreme Court's analysis, especially if it's a textualist analysis.
22:19
Speaker 9: That's interesting if you think about textualism sort of as stated,
22:22
Speaker 9: with the idea that the court will resolve this question
22:25
Speaker 9: just by looking at the statutory text and giving that
22:28
Speaker 9: language the meaning it would have in the eyes of
22:30
Speaker 9: an ordinary reader, you might think those conserations about the
22:33
Speaker 9: practical consequences are irrelevant, Like, that's exactly the sort of
22:36
Speaker 9: political consequential decisions that they're trying to screen off with textualism.
22:40
Speaker 9: So what's interesting is if that's right, looks like actually
22:42
Speaker 9: a majority of the justices are inclined to read the
22:44
Speaker 9: text in line with the government. That would be the
22:46
Speaker 9: three Democratic appointees and then potentially Roberts, Kavanaugh, Barrett Gorsich.
22:51
Speaker 9: I think Roberts in particular was responsive to some of
22:55
Speaker 9: the government's arguments about the practical consequences kind of over
22:58
Speaker 9: and above the text. So, currently, federal law prohibits selling
23:01
Speaker 9: firearms to twenty one year olds, It requires backgrounds, check, serialization,
23:05
Speaker 9: all these requirements, and if the court decides that these
23:08
Speaker 9: kits are not firearms, those requirements will not apply at
23:11
Speaker 9: the federal level. And so there's a real concern right that, again,
23:14
Speaker 9: if people who are buying these kits are not hobbyists
23:16
Speaker 9: but rather people who just want a firearm, there's a
23:18
Speaker 9: real circumvention concern that basically all of the law that
23:21
Speaker 9: would apply to firearm regulation effectively is meaningless because someone
23:26
Speaker 9: could just get the ghost gun and build their own
23:27
Speaker 9: kit in twenty minutes or however long it takes, and so,
23:30
Speaker 9: you know, some of Robert's questions, I think we're very
23:32
Speaker 9: much kind of responsive to that set of concerns and
23:35
Speaker 9: the principle that if you read the statute in that way,
23:37
Speaker 9: the way Vnderstock wants it to, you'll render a big
23:40
Speaker 9: chunk of federal law meaningless. And so Congress was really underscoring.
23:45
Speaker 2: Just a few months ago, the Supreme Court, in a
23:47
Speaker 2: six to three decision, tossed out a ban on bump stocks.
23:52
Speaker 2: That Cargol case was also a statutory interpretation case. Does
23:57
Speaker 2: that case have implications for this Vounderstock case?
24:03
Speaker 9: That case it actually concerned a different firearm statue, So
24:06
Speaker 9: it concerns the definition of machine gun. Wherever you come
24:09
Speaker 9: out on Garland versus Cargo, whether it's sort of easy
24:11
Speaker 9: or difficult case textually, the case that they heard dander
24:13
Speaker 9: Stock as a matter of language is like just much
24:16
Speaker 9: more straightforward, you know. I think it's reassuring actually that
24:19
Speaker 9: the Court's oral argument, many of the questions, especially from
24:22
Speaker 9: Barrett and Roberts and course such in Kavandah, really seem
24:25
Speaker 9: to recognize that fact these gun part kits are firearms
24:27
Speaker 9: in ordinary English. And then the statute explicitly talks about
24:31
Speaker 9: weapons that could be readily converted to expel a projectile,
24:33
Speaker 9: which you know also really underscores that these sort of
24:36
Speaker 9: kits are included, and the context indicates the same with
24:38
Speaker 9: the frame of receivers. And so for this oral argument,
24:41
Speaker 9: I think if you think the court is primarily a
24:42
Speaker 9: political actor, you see the bump stock case, you think
24:45
Speaker 9: this is going to come out the same way. Six
24:47
Speaker 9: y three after the oral argument, I've got a little
24:49
Speaker 9: more hope that the Court's going to follow the text,
24:51
Speaker 9: although time will tell.
24:53
Speaker 2: Thanks Kevin. That's Georgetown Law professor Kevin Tobia. I note
24:57
Speaker 2: Michael Bloomberg, the founder majority owners of Bloomberg LP, the
25:01
Speaker 2: parent company of Bloomberg Radio, is a donor to groups
25:05
Speaker 2: that support gun control, including Every Town for Gun Safety.
25:09
Speaker 2: You're listening to a special holiday edition of the Bloomberg
25:12
Speaker 2: Law Show. Up next a death penalty case that finds
25:16
Speaker 2: the State of Oklahoma siding with a defendant on death row.
25:21
Speaker 2: Remember you can always at the latest legal news by
25:24
Speaker 2: listening to our Bloomberg Law podcast. You can find them
25:27
Speaker 2: on Apple Podcasts, Spotify, and at Bloomberg dot com Slash
25:31
Speaker 2: podcast Slash Law. I'm June Grosso and you're listening to Bloomberg.
25:47
Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio.
25:53
Speaker 5: This is a.
25:54
Speaker 2: Special holiday edition of the Bloomberg Law Show. I'm June Grosso.
25:58
Speaker 2: We're looking at some import and Supreme Court case. Is
26:01
Speaker 2: this term?
26:02
Speaker 11: Attorney General Drummond did not confess error here lightly. Indeed,
26:07
Speaker 11: he continues to defend multiple capital convictions and opposed mister
26:12
Speaker 11: Glossop's pen ultimate sert petition, But after commissioning an independent review,
26:18
Speaker 11: he reluctantly reached the conclusion that Brady and Napu violations
26:22
Speaker 11: by the state's own prosecutors obligated him to confess error
26:27
Speaker 11: and waive procedural obstacles.
26:29
Speaker 2: It's a very unusual death penalty case where the State
26:33
Speaker 2: of Oklahoma is coming before the Supreme Court on the
26:36
Speaker 2: same side as a defendant on death row, arguing that
26:40
Speaker 2: Richard Glossop's nineteen ninety seven murder conviction and capital sentence
26:45
Speaker 2: should be undone due to prosecutorial misconduct. Former US Solicitor
26:50
Speaker 2: General Paul Clement argued for the Oklahoma ag gentner Drummond,
26:54
Speaker 2: who had made an extraordinary concession known as a confession
26:58
Speaker 2: of error admitted that the prosecutor in the case withheld
27:02
Speaker 2: evidence from the defense and elicited false testimony from the
27:06
Speaker 2: state's star witness at trial. The prosecutor's handwritten notes, which
27:11
Speaker 2: were unearthed in twenty twenty two, revealed that the state's
27:14
Speaker 2: star witness had been diagnosed with bipolar disorder and was
27:18
Speaker 2: being treated by a psychiatrist with lithium. Several of the
27:22
Speaker 2: justices seem to be divided about how important that evidence
27:26
Speaker 2: would have been to the jury. Here are Chief Justice
27:29
Speaker 2: John Roberts and Justice is Elena Kagan and Brett Kavanaugh.
27:33
Speaker 6: Because the jury knew about the lithium, and what they
27:36
Speaker 6: didn't know is that it was prescribed by a psychiatrist,
27:40
Speaker 6: do you really think it would make that much of
27:42
Speaker 6: a difference to the jury.
27:45
Speaker 4: That seems pretty material to me. I mean, it's just
27:48
Speaker 4: your one witness has been exposed as a liar.
27:52
Speaker 5: Would have made the conviction more likely if the jury
27:55
Speaker 5: knows that not only does he have an incentive to lie,
27:58
Speaker 5: that he's lied on the stand in that he's bipolar,
28:02
Speaker 5: therefore creating all sorts of avenues for questioning his credibility.
28:07
Speaker 2: Gossip has faced nine execution dates and eaten his last
28:11
Speaker 2: meal three times. In is more than twenty five years
28:15
Speaker 2: on death row. Joining me is Cliff Sloan, a professor
28:18
Speaker 2: at Georgetown Law who's argued several cases at the Supreme Court,
28:23
Speaker 2: including a victory in a case involving the death penalty.
28:26
Speaker 2: Tell us about the evidence the Oklahoma ag found a
28:29
Speaker 2: few years ago about the state star witness who testified
28:33
Speaker 2: against Glossop in exchange for not getting the death penalty himself.
28:38
Speaker 12: So what was discovered was very important prosecutorial notes establishing
28:46
Speaker 12: that the main witness, and really the only witness tying
28:51
Speaker 12: Gossop to the murder, had a bipolar disorder and had
28:56
Speaker 12: received lithium under a prescription from a psychiatrist. And this
29:00
Speaker 12: was directly contrary to this witness's testimony at the trial
29:06
Speaker 12: where he said he had received lithium for a cold,
29:09
Speaker 12: and he flatly said he had never seen a psychiatrist,
29:13
Speaker 12: And right there in the notes of the prosecutor or
29:16
Speaker 12: notes establishing that it was from a psychiatrist. And also
29:21
Speaker 12: there was separately a medical record establishing that the psychiatrist
29:26
Speaker 12: had prescribed the lithium for the bipolar disorder. This would
29:30
Speaker 12: have been extremely important to the jury both in its
29:33
Speaker 12: consideration of guilt or innocence and in his consideration of
29:37
Speaker 12: the death penalty. Because the witness was really the entire
29:41
Speaker 12: case against mister Glossop. It's undisputed mister Glossops had no
29:47
Speaker 12: role in the actual killing of the victim himself. The
29:51
Speaker 12: theory of the state was that he hired this other man,
29:54
Speaker 12: Sneed to do the killing, and so Sneed's testimony was
29:59
Speaker 12: the only thing that linked Glossop to the killing.
30:03
Speaker 2: What's so unusual in this case is that Oklahoma's age
30:07
Speaker 2: is arguing along with Glossop that his murder conviction should
30:11
Speaker 2: be set aside.
30:12
Speaker 12: The Republican Attorney General of Oklahoma, who generally is very
30:17
Speaker 12: much in favor of the death penalty, has really acted
30:21
Speaker 12: in the finest traditions of justice here because he commissioned
30:25
Speaker 12: an independent investigation which concluded that mister Glossop's conviction and
30:31
Speaker 12: his death penalty cannot stand because of this false testimony
30:36
Speaker 12: and because of the failure to turn over important evidence
30:42
Speaker 12: to the defense, which is a constitutional violation, and so
30:45
Speaker 12: he concluded in good conscience he had to stand up
30:48
Speaker 12: and say that the conviction should be set aside and
30:52
Speaker 12: the death penalty should be set aside. And there also
30:54
Speaker 12: was another independent investigation commissioned by the Republican state legislator
31:00
Speaker 12: which reached the same conclusion. But what is really striking
31:03
Speaker 12: here is that the Oklahoma Court flatly rejected the very
31:09
Speaker 12: considered decision of the Oklahoma Attorney General that there needs
31:13
Speaker 12: to be a new trial and that the death sentence
31:16
Speaker 12: cannot stand.
31:17
Speaker 2: And at the oral arguments, a lot of time was
31:20
Speaker 2: spent on the procedural question whether the state court's decision
31:26
Speaker 2: rested on independent state grounds, in which case the Supreme
31:31
Speaker 2: Court couldn't review the case. Something Justice Samuel Alito kept pressing.
31:36
Speaker 12: Well, you know, that's the issue that's presented about whether
31:40
Speaker 12: there's a threshold procedural problem that is based in state
31:45
Speaker 12: law and that would prevent the Supreme Court from reaching
31:49
Speaker 12: the federal constitutional issues. So it's an important threshold issue.
31:53
Speaker 12: But you had other justices very much emphasizing that they
31:58
Speaker 12: don't think that is a serious problem. That they think
32:00
Speaker 12: it's clear that the Oklahoma Court rested its decision on
32:05
Speaker 12: an erroneous analysis of the federal constitutional claims. That the
32:10
Speaker 12: state procedural reference was wrapped up in that, and you
32:13
Speaker 12: even had Justice Kagan asking a question where she suggested
32:17
Speaker 12: that the reference to the state procedural issue was simply
32:22
Speaker 12: because the Oklahoma Court was throwing in the entire kitchen sink,
32:26
Speaker 12: and so it was just mixed up with a lot
32:28
Speaker 12: of other things. It had no independent basis. And you
32:31
Speaker 12: also had a number of the justices, including Justices Kagan,
32:35
Speaker 12: so the mayor and Jackson emphasizing that this supposed independent
32:41
Speaker 12: rule that the Oklahoma Court was enforcing had never been
32:46
Speaker 12: enforced in this kind of context in any case other
32:50
Speaker 12: than one involving Richard Colossa, which added to their view.
32:55
Speaker 12: But this is something that was a makewight that Oklahoma
32:58
Speaker 12: was just throwing in and is not a bar to
33:02
Speaker 12: Supreme Court review.
33:03
Speaker 2: So Glossop has a claim of a Brady violation where
33:07
Speaker 2: the prosecutor didn't turn over evidence, and also a NAPU
33:10
Speaker 2: violation where the prosecutor presented false testimony and didn't correct
33:15
Speaker 2: it at trial. Here's Justice Kagan on that a.
33:18
Speaker 4: Napoo violation is a pretty dramatic thing when a prosecutor says, leg,
33:23
Speaker 4: we'll stop there, that was a lie under NAPO.
33:27
Speaker 12: A prosecutor, of course cannot put on perjured testimony, and
33:30
Speaker 12: if the prosecutor learns that the testimony has been perjured,
33:34
Speaker 12: the prosecutor has to corrected or notified the defense about
33:38
Speaker 12: it and hear. What the independent investigations have found is
33:43
Speaker 12: that the prosecutor put out perjured testimony, never corrected it
33:48
Speaker 12: to the contrary, took efforts to protect it. That's a
33:52
Speaker 12: very very serious constitutional violation. It goes to the heart
33:57
Speaker 12: of what the criminal justice system should be about. And
34:00
Speaker 12: you know, some of the justices were very much bothered
34:04
Speaker 12: by this violation and seemed to think that it's open
34:08
Speaker 12: and shut. Other justices seemed more skeptical about whether it
34:14
Speaker 12: was as clear a violation and also how significant it
34:19
Speaker 12: would have been, you know, in terms of materiality, which
34:22
Speaker 12: is important for NAPO, and whether it would have made
34:25
Speaker 12: a difference or not. So I think there's clearly a
34:28
Speaker 12: split among the justices both about the procedure and the
34:31
Speaker 12: substance in terms of how they're viewing it.
34:34
Speaker 2: It's always hard to read through oral arguments what's going
34:37
Speaker 2: to happen, and particularly in this case where a lot
34:41
Speaker 2: of the justices said very little, Do you have any
34:43
Speaker 2: idea of what the lineup might be from these arguments, well.
34:47
Speaker 12: You know, with the usual important caveat that is very
34:52
Speaker 12: difficult to predict. Here's what I took away from the argument.
34:56
Speaker 12: And by the way, Justice course it was not participating,
34:59
Speaker 12: but it as from the argument that Justice Alito and
35:03
Speaker 12: Justice Thomas were very hostile to glossop claims into the
35:08
Speaker 12: position of the Oklahoma Attorney General and very skeptical of it.
35:12
Speaker 12: It seems that Justices Soda, Mayor, Kagan, and Jackson were
35:17
Speaker 12: very sympathetic to the positions of Glossop and the Oklahoma
35:22
Speaker 12: Attorney General. And so that leaves Chief Justice Roberts, Justice Kavanaugh,
35:27
Speaker 12: and Justice Barrett. And I think it was difficult to
35:31
Speaker 12: tell from the questions exactly where those three are, and
35:35
Speaker 12: I think that you know, that's going to be the
35:37
Speaker 12: ballgame where those three justices are.
35:39
Speaker 2: There did seem to be some support for a sort
35:42
Speaker 2: of middle position remanding the case back to the State
35:46
Speaker 2: Court for an evidentiary hearing.
35:48
Speaker 12: A couple of the justices were suggesting that perhaps what
35:52
Speaker 12: should happen is that it should be sent back for
35:55
Speaker 12: additional facts finding about exactly what happened and how important
36:00
Speaker 12: it was. Some of the Justices were very explicitly saying
36:03
Speaker 12: that they didn't think that was necessary in light of
36:05
Speaker 12: the record and how clear the violations were.
36:08
Speaker 2: The Supreme Court rarely grants relief in death penalty cases.
36:12
Speaker 2: Tell us about the Roberts Court's history in this area.
36:15
Speaker 12: Well, I think that the way in general that the
36:19
Speaker 12: current Supreme Court is approaching death penalty cases is very,
36:24
Speaker 12: very troubling. It's very very difficult for capital defendants. The
36:29
Speaker 12: Court is creating all sorts of new procedural obstacles, and
36:33
Speaker 12: it's also as a general matter, being very unsympathetic to
36:39
Speaker 12: claims of capital defendants. Now that's not you know, one
36:42
Speaker 12: hundred percent of the time. There have been, you know,
36:44
Speaker 12: a few cases in recent years where the Court has
36:47
Speaker 12: rules for capital defendants, but overwhelmingly, the Court is dramatically
36:52
Speaker 12: tilting the playing field in favor of the death penalty.
36:56
Speaker 12: And you know, the class of case really illustrates three
37:00
Speaker 12: of the most troubling characteristics of the death penalty in
37:04
Speaker 12: the United States today. One of them is the prevalence
37:08
Speaker 12: of cases of innocence and exoneration of people on death row.
37:14
Speaker 12: There have been two hundred people on death row who
37:17
Speaker 12: have been found to be innocent and who have been exonerated,
37:22
Speaker 12: a truly shocking and alarming fact. The second problem that
37:27
Speaker 12: it highlights is misconduct by prosecutors. In seventy percent of
37:33
Speaker 12: the cases where there has been found to be innocence
37:36
Speaker 12: of people on death row, there has been misconduct by
37:40
Speaker 12: prosecutors exactly this kind of thing, putting on false testimony,
37:44
Speaker 12: not correcting it, not turning over very important evidence. And
37:48
Speaker 12: the third, very disturbing problem is when courts don't accept prosecutors'
37:55
Speaker 12: conclusions that a conviction and a death penalty cannot stand.
38:00
Speaker 12: That happened recently in the execution of Marcellus Williams, and
38:04
Speaker 12: we're seeing it in the Glossop case.
38:06
Speaker 2: And in Glossop's case, he can only afford to lose
38:09
Speaker 2: three votes because with eight justices hearing the case, a
38:13
Speaker 2: four to four vote would affirm the Oklahoma courts ruling
38:17
Speaker 2: against him. Thanks so much for being on the show.
38:19
Speaker 2: That's Professor Cliff Sloan of Georgetown Law, and that does
38:23
Speaker 2: it for this special holiday edition of The Bloomberg Law Show.
38:27
Speaker 2: I'm June Brosso. Stay with us. Today's top stories and
38:30
Speaker 2: global business headlines are coming up right now.