Minnesota Becoming A Constitutional Law Issue-Spotter

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by Catherine Rubino and Chris Williams. Hey. How's everybody doing? Pretty good. All right. Well, we are here as we usually are to talk about the big stories for the week that was in Above the Law. We begin, as we often do, or almost exclusively do, with... It's almost like, you know, there's a typical set of segments that, you know, podcasts have that, you know, encourages listeners to, you know, feel like they know what's about to happen. So that brings us to the beginning of our segment about small talk.

0:50Yeah, quick question. How do I go about buying gold? Yeah, I know, right? I saw it spike overnight. Yeah, it's like there's a special mine that traders have. I remember seeing a documentary about this little thing, 9-11. A bunch of traders immediately decided to buy gold once the towers got hit because there was a cache of gold bars at the bottom of the building, to my knowledge. So whenever crises happen, I just ask myself, what is gold doing? This is definitely one of those times. Well, as we all learned from Die Hard with a Vengeance, the gold is actually a couple blocks away in the Federal Reserve building because that was the whole plot of that.

1:32I actually think that that one holds up. Like, I don't think that Die Hard 2 necessarily holds up as well. Oh, yeah. 3's great. I think that 3, I mean, arguably better than the first one. Bold. Bold. Incorrect, but and bold. Well, maybe it's that I do enjoy New York-based shows more, generally speaking. But it certainly holds up. And maybe it's also that, like, anytime I watch the real original Die Hard, I'm like, oh, it's a Christmas movie, as opposed to, like, you know, Die Hard with Vengeance is anytime. It's a summer movie. It's a summer movie. And, you know, listen, there's definitely a market for a summer movie.

2:06And we are now, I think, officially in the dregs of January, which means that I am just begging for the sun. So maybe that's part of my current hot take, the hottest of takes. Yeah, no, and it, look, gold goes up when people think that the dollar is going to crash and the stock market and all is going to crash, which is the sort of thing that might happen if you start trying to put the Federal Reserve in prison, which is what apparently the Department of Justice is considering doing. So that's where you get here. also one of those one of those weird moments where so much my understanding of economics is based off this video game i played as a kid called runescape um because uh they had this they had this thing called the grand exchange where you could like cut your u logs and kill your monsters and sell them to other players and you know they'd be able to just trade with the grand exchange i'm like wait this is the stock market so like whenever i think about like fiat currencies or like uh buying it's like uh buying loans selling high i'm like wait this thing i played as a teenager prepared me for all the sorts of manipulation I'm seeing in the AI markets.

3:14Like, this is crazy. There you go. But yes, no, we're, so, yeah, gold is, seems like a good bet at the moment, unfortunately. We'll see. Who knows how that'll play out? We'll probably, it'll probably be a topic that we have to talk about next week, actually. But we'll, you know, it's very new at this point. Other than that, though, it's been, you know, dregs of January, as Catherine says. It is the dregs of January. I am at a particular personal low point. I am in the midst of potty training. I have a two and a half year old. It might take a couple decades. I have a two and a half year old. Okay.

3:54Oh, I was going to say, like, we're not judging, but for the baby. Yeah, for the child. I'm used to saying it depends in legal context. So I was just ready to. Fair. No, I'm potty training my daughter. And because the preschool that I think we're going to try to put her in in September requires full independence in the bathroom and she's not there yet. So, you know, I know I have a few I have nine, eight and a half months or whatever. And but, you know, no time like the present. Also, that feels like a very little amount of time to master a thing she has zero conception of. And it's really wild to think about, like, just go to the bathroom, kid.

4:37And it's amazing how little that very seemingly basic concept gets through at first. So from all the parents I've spoken to, potty training is the worst. So I'm just strapped in for hell week. Okay. Well, good luck on that. Thank you for at least taking a break from your taking a break from work to do this show. Yeah, you know, don't be surprised if next week we talk about nothing that I've written because I will not be writing very much because I am, again, in my own personal hell week trying to potty train a two and a half year old. All right. Well, let's let's. Oh, there it is. The end of our small talk period.

5:20And let's begin chatting about news and legal things that took place last week. It was a very heavy on heavy stories week. industry stuff took kind of a backseat to what's going on in the political landscape, unfortunately. We'll begin the show talking about what's going on in Minnesota. We had an ICE agent kill a woman who was in her vehicle. Obviously, ICE then responded by saying that, well, she was trying to hit the guy, which the video is pretty, pretty shockingly clear, shockingly clear wasn't or to the extent that there was any risk it was because he moved into that position uh which brought up that that itself may be in dispute because if you if you remember donald trump said that the man was hit and hospitalized so there's like just so much disinformation that's also happening of course that did not happen but right there's the right well well the the well that what i was going to go is the moving into the space uh it prompted people to go back and find that almost like 11 years ago, there was an article about how Border Patrol agents had been moving in front of vehicles in order to create the pretext that they were going to be hit by it to shoot.

6:39So it seemed like this was a redux of that. Regardless, the issue, you know, obviously there's what's going to happen there. The administration seems pretty clear that they aren't going to do anything about this. They're largely hailing the guy as some sort of a hero. The state government has the capacity to prosecute federal agents who do things, but that, and there's a good piece that Ellie Mistal wrote in The Nation about this, but it also runs afoul of some issues. And one of the articles that we wrote, we didn't talk, the article that I wrote for this week didn't really talk about the criminal prosecution aspects of it, but so much but more the civil process.

7:25But I think we can we can hear just kind of talk about and break down the legal issues surrounding all of them. One of the things you wrote an article, obviously, about this, but one of the things that I know you've written about it previously as well, that always gets me anytime we talk about qualified immunity is that it's a scrivener's error. Right. That's not really relevant to this instance. But yeah, that is an interesting It's not specifically relevant, but I think anytime you talk about qualified immunity, we should always bang that drum. We should make it super clear that the fact that we even have to talk about qualified immunity is a fundamental mistake.

8:00Right. So the civil side is – so assume, put aside whether or not there's any ability to prosecute. We'll get back to that and just jump over to the civil side. So can the victim's family sue to get financial recourse for what happened? And that is available to most people who are wronged in this way. It is probably going to not work out here for a couple of reasons. First, which is the Bivens stuff, which is that the federal government has made it more or less impossible to sue federal government agents for doing nearly anything. Theoretically, if they're acting outside of their, you know, outside of the law, they should be suable.

8:44but that has been something that the courts have consistently eroded over the years. So it may not even be available to the extent that it could be. Qualified immunity would be the recourse. Now, the Scrivener's error part that you raise is an interesting point, but it doesn't apply here because this is a federal agent. The Scrivener's error part is that the courts created the qualified immunity protection saying that state law, if you try to get somebody through state law, the state law, common law protections that existed at the time of the 18, in the reconstruction would apply to prevent federal civil rights laws from being used against state people there.

9:27So basically, if a state police officer violates your civil rights, the qualified immunity doctrine says that the federal government can't use its civil rights laws to prosecute that person because the state had common law protections before that. Now, that is what we call a scrivener's error because scholarly research has determined that that actually wasn't part of the original law. It was just added at some point, not by any legislator, but just by somebody writing it down wrong. So there is that aspect. And there's some question about that. Now, here, of course, this is a federal agent, so it's less of an issue.

10:02The criminal side of it, of course, has its own set of issues because there's sovereign immunity issues, which stem, frankly, they're all wrapped up in the Trump versus United States case too. There are lots of arguments that sovereign actors, federal agents doing things for the executive would be immune. That's going to be an argument they're going to be able to make. Of course, they aren't going to have access to state judges because the way the law is set up, A federal officer sued in state court will – has the right to remove it to federal courts where federal defenses come in. So they'll be able to utilize all of these defenses.

10:45And it's also true. Somebody made the point. There's also extradition issues. You don't think about extradition when you're talking about the United States. Yeah, I actually think those extradition issues are really interesting, especially kind of given the fractured nature of the country right now. I guess we don't know exactly where Jonathan Ross is right now, but I imagine ensconced somewhere where a governor has very little motivation to do anything but listen to Donald Trump. Yeah, you would think that it would be really easy for one state to turn over somebody to another state. I mean it is a single country.

11:28Yeah, it is what should be very, very easy. But we have a series of weird and probably best defined as archaic obstacles that can get in the way of that that I think people are going to learn a lot about if it really comes to that. So, yeah, so there's also a bunch of criminal reasons why a criminal prosecution probably will run into obstacles, too. Yeah. And and, you know, obviously, they're the sort of most serious charges that are people are potentially talking about, which is, you know, murder of various degrees. But what something that I think is also really disturbing is the sort of lesser criminal charges like leaving a scene.

12:13Right. Like officers, when they discharge their weapon, when someone has been shot, are meant to stay there until they secure the scene and evidence is collected. There's procedure for that. And that was not followed in this instance. So that just really shocks me the way that they didn't allow medical help to get to the victim. Also is really shocking and against procedure, you know, which, again, if this was a justified shooting, it was not. If it were, all those procedures should still be followed, and they were not. Well, and that's part of the argument that some people have made that to the extent this – we're able to get to a genuine criminal prosecution.

12:58The first shot probably would not be something that you could get very far on because even if it wasn't – whether it was justified or not, it was probably insufficiently murky in the area that the officer would take advantage of the way in which all of our defenses are stacked in that direction. But the shots afterwards and definitely the letting them bleed out and refusing medical attention would probably be super clear case. Yeah. If only if only we could prosecute things that were super clear. Right. But it seems unlikely, unfortunately, that that's going to get very far. We'll see. One quick thing about the case that I think is the most interesting was the two things that went hand in hand.

13:48Initially, when this happened, there was they tried to paint her as being a terrorist. Of course, we all know terrorism is when you say to a federal agent, it's OK, you can go on. I'm not mad. I'm not. Yeah, I'm not mad. And secondly, the posthumous shaming that happened to justify her being murdered. um so there was the uh the video from the office we're not also not an officer from the ice agent's phone uh where you pulled his gun out and people were like why would they release this it just seems this just makes it looks worse on him but that was the video where you saw that renee good had a wife and then there was like this point where it was like oh she her pronouns or her bio what have you like as if these are all quick justifications that were given to be like oh well it's okay to kill it's okay for ice to kill someone else because they're not one of us like they're not in the the end group and one thing that i think is really interesting about like you know how fascism tends to eat itself is there are a lot of white people who were like wait they're doing this to white women now i thought that you know she looks like she could be my daughter she could be my sister but that's the thing it's like you're not you're usually not as in the end group as you think you are like it did not take much effort at all for her to get labeled as violent as a terrorist, and as a threat, despite, you know, being like a legal observer with kid toys in her glove compartment, you know?

15:09So this is as a thing, as we think about the strengthening of ICE in, you know, what's the name of J.D. Vance saying like the day after, if not the day of, that they're going to be knocking on doors soon. This is an opportunity to think about how safe we are and the importance of the rule of law. Black folks have been talking about this for years, but I think this is a moment of awakening for white people to be like, wait, we saw them make it up in real time. We saw the video. That's not what actually happened. You know, so opportunity to think about safety. Also, hands in hand with that has been the sort of mom shaming that, you know, even the quote unquote leftist saying like, oh, you know, I support what she did, but how selfish what she did to her child to put herself in that position where now her child is motherless, which is just a super, I think, evil kind.

15:58Because theoretically, summary execution is not what one expects when they just join a program or whatever. But now that is part of the sort of mom discourse that's going on in plenty of parts of the internet that I think is also designed to prevent other people from putting themselves into the fight. Well, right. And that, of course, is what all of this is about, is about chilling anyone else from joining in. Yeah. So we went from, just to be clear, we went from the first they came from the Venezuelans part of the poem to the, and then they came from the white mothers. So just, you know, keep in mind.

16:38We've taken quite a jump. Yeah. All right. Well, let's take a break at that point and move on to another topic. Let's face it. You didn't become a lawyer to stress over summaries and analysis. You could hand it off, but you need an assistant you can trust. Co-counsel handles those important but tedious tasks that keep you from being a lawyer. And because it's trained only on expert legal content from Thomson Reuters, it's as precise as you are, which means less stress and more confidence to focus on what matters. Head to tr.com slash co-counsel to discover AI that lawyers swear by. All right, well, let's stay in Minnesota for now, I guess.

17:18I was going to jump, but why create a sandwich? We're still here in Minnesota. This is actually a story that took place before the killing, but was still interesting. And I think is a very, I actually think it's interesting just as like a law school hypothetical situation. You know, and I think all of us are huge fans of the Third Amendment that prevents us from having to house troops in peacetime. Sure, sure. It is the – as the onion has that post that goes up like Third Amendment lawyer celebrates 250th consecutive year of no cases. It is a case that – it is a amendment that hasn't gotten a Supreme Court challenge or anything like that.

18:03Things have been – things worked out pretty well for that one part of the Bill of Rights. But we always wait for that Third Amendment doomsday clock to hit. But last year, Chris and I actually jointly wrote an article about the National Guard surges in some that Trump tried to do in some of these states that now the Supreme Court has at least temporarily blocked. And whether or not those would force the issue of the Third Amendment because they were not – they didn't have barracks for these folks and they were putting them in commercial hotels. And at some point, what would happen if people say no?

18:37And that got tested here because in Minnesota with this surge, Department of Homeland Security tried to put a bunch of people in a Hampton Inn. That is a subsidiary brand franchisee of Hilton. That hotel said no for reasons that a lot of times when hotels do put these folks up, it attracts protesters. Sure. And they don't want to have to deal with protesters. They don't want to make their other guests deal with a protest out. To walk across a protest line in order to get to your hotel room. Exactly. So they, this Hampton Inn said, we're not renting rooms to the Department of Homeland Security.

19:17Thank you. Homeland Security took this the way you would expect a rational, you know, adult-like organization. And they threw a hissy fit and used social media to blast Hilton over this. Hilton, rigmarole went down and ultimately - Caved immediately. Yeah. Yeah, caved immediately, but said they were, you know, they'd worked with the local hotel. Ultimately, that didn't pan out, and they're now cutting off that hotel. So question that was posed. But the hotel, the now independent hotel that's not part of the franchise still will not allow ICE in. So there was also sort of a contract issue lingering in terms of your franchisee agreement, and Hilton has now disavowed the local hotel.

20:05Right. The local hotel has stood strong against ICE. Right. So now the question is, what does this do for Third Amendment jurisprudence? Now, OK, I do think that this came up on social media, Third Amendment jawboning, and whether or not maybe that's something we should start talking about. Can the government utilize its pressure campaign and threats to indirectly force a private actor to comply with putting people up against their will? Shout out to Anthony. Yeah. Yep. Shout out to Professor Anthony Kreese who put this up. So I don't think that – I wrote an article about this. I don't think that that's going to happen.

20:50But I – neither did the professor. But I do think that it is an interesting question. Is that something that could happen here? Because here, I don't think that takes place for a few reasons. I think that, frankly, I think the Hampton, the former, the artist formerly known as the Hampton Inn, has better legal recourse. I think they can argue that there was tortious interference with contract between them and Hilton. I think they can argue that Hilton breached a series of agreements. It's my I got to believe that there's no way that this franchise agreement says you waive your right to deny service to anybody for any legal reason.

21:28Like, yeah, you yeah, you you can't discriminate against protected classes. But you, you know, no shirts, no shoes is within your power and no shirts, no shoes and and and ice is should be well within your power. So I think there are a lot of legal claims that the hotel's local management has anyway, so they don't need to get into a third-evenda case. But, you know, it could be interesting. Yeah. Maybe just throw it out there as part of a – Put it in the complaint. It's colorable. Listen, there's only one way that this will resolve in our contemporary climate. Joe, me and you, we need to fundraise, make a think tank.

22:12and we need to make up something, have like really shitty standing and make some, just like straight up 303 creative this shit so that way we can finally get the third amendment case we've been waiting all these years for. I'm not even joking. I have$3 I'm willing to put down on this. But I do think, yeah, I think you do put this in any complaint you bring as an alternative cause of action. But it also, I do think, raises – even in this case there are better arguments. I do think it raises an issue that could be actionable in the future. Like, look, we're now two years into – we wrote that article last year writing this.

22:57It doesn't seem like there's going to be a lot of relief. I think there's going to be more instances like this. There's an opportunity here for the Third Amendment nerds. Yeah, yeah. And I do appreciate that, you know, legal academia is kind of leading this push because a lot of these, a lot of the hypotheticals throughout the years have had less colorable arguments get you some points. So at least, you know, we're making it all happen here. So anyway, that was a big one. Every time we write about the Third Amendment, people get very interested. An angel gets its wings. That's the thing. We say Third Amendment nerds, but our traffic tends to suggest that there are a lot of you Third Amendment nerds out there.

23:41I think there are a lot of Third Amendment speculators maybe would love to see it. But you can't really be a Third Amendment nerd as they haven't been Third Amendment cases, right? Like nerd nerddom implies that, you know, you're deep in the literature base and there's not a it's not a ton of that. So I don't think you understand nerddom, but there's a lot of nerddoms that surround themselves around fantasy and things that haven't actually happened. For example, Harry Potter literature. There's still literature. They may not have happened. Well, cool. I'm going to let's take a break here and be right back.

24:21All right. The final big thing of the week, this one annoyed me. Yeah, well, that's because James Ho is the worst. All right, so Judge Ho of the Fifth Circuit can best be described as thirsty. Yes! He wants to be on the Supreme Court. So bad! He really wants to make sure that Donald Trump understands that he wants to be on the Supreme Court. And he's willing to say anything. Say and do anything to get there. uh he just put out a little piece in a harvard journal of law and public policy where he yeah just the whole thing i think he crosses the line into like despicable in this latest one because he said some wild wild shit but this is yeah i think i think that's very true but quick thing i do have a question context he wrote a really dumb article it got published in the harvard law review we're going to talk about it soon you didn't bring this up an article at what point do we ask why harvard law review was was posting this bullshit well this is the journal of law and public policy so different folks different different but still yeah and no like should they have should they have posted this like should they have accepted this submission i mean that yeah i mean that's a thing and like look you you say hey this is a federal judge writing something but at a certain point and it's that's actually a problem with scholarly journals being completely student run i mean as a law student i don't know if i could have called back a federal judge and said this just seems like a weird blog post uh and not an actual article but yeah so what he writes is this long thing where he basically says that all judges are stupid except for him they have an overinflated view of their intelligence and abilities this of course plays into kind of the the narrative that the that trump likes to have of all the judges trying to stop him are dumb activists who are out to get him.

26:13He talks about how they're all weird political and have an overflated view of their intelligence, which - I mean, Alanis Morissette has some words here. I mean, yeah. In my article, I point out, I quote Sterling Archer here to say that this is like, oh, Henry and Alanis Morissette had a baby and named it this exact situation. Yeah, the irony is in fact overwhelming. But yeah, so Judge Ho talks about how all these judges are bad. And he uses the phrase woke constitution in the article. So you know we're not talking about a serious position. But as dumb as it is on a lot of levels, the part that I was willing to just kind of let it go and roll my eyes at this nonsense just because he puts out nonsense like this all the time.

26:59Where he got me and where I felt the need to respond is he started down a track where he complained about judicial security along the lines of saying that judges are overblowing judicial security. They politicized it. Quote, today they're fearful when a judge receives an unsolicited pizza delivery at home. But a few years ago, they applauded when protesters, swarms of protesters disrupted certain justices homes for weeks on end. And now this makes me angry. Yeah. So I want to put the context for those who don't understand this. The pizza deliveries situation is that people are sending pizza deliveries to unsolicited to federal judges homes in the name of a federal judge's son who was murdered several years ago.

27:55Yeah, Esther Salas's son was murdered in the judge's home because an angry litigant found her house, came to her door, rang the bell and murdered her and shot blankly. And I believe her husband was injured and her son was murdered. And these Trump fans are sending pizzas in the name of that murdered son to federal judges around the country that they are mad at for issuing injunctions against the administration. This is – these are violent threats even if they aren't acting upon – they aren't going to follow through. These are – this is very much the we know where you are and we could have killed you is the message being sent.

28:35Right, like Esther Salas' son, right? It's very clear. You don't have to assume a lot. It is very, very obvious what's going on here. Now, Ho describes this as, today they're fearful when a judge receives an unsolicited pizza delivery at home, which massively undersells what's happening. Absolutely. Which he knows good goddamn well that this is not what's happening. He later says, a$20 large pepperoni is an outrage. Like he is dismissing not only the problems there, he is kind of committing real erasure of the tragedy that happened to Judge Salas. Like this is all sorts of bullshit. And it's extra bullshit because he tries to compare this to the protesters at Justices' Homes, which now that was post-Dobbs.

29:27People went to the Justices' Homes because they could find them and protested on the street outside of them. So protested in public areas outside of their homes. They did this for like 20 to 30 minutes at a time and left. They complied with noise, noise provisions and stuff like that. Didn't really stay there for all night. But the justices were annoyed that this was happening. And I I'll go ahead and say I kind of agree on the grounds that I don't think you should be able to necessarily take a work complaint like that and make the protest be at their home. Only the Supreme Court has made very clear that you can.

30:08Yes. But the issue is when it wasn't them, when it wasn't in front of their house, the Supreme Court was like, oh, sure. People can protest in front of the homes of abortion doctors. Exactly. They the the conservatives on the Supreme Court had already ruled that it was OK for people to camp out in front of the home of people of doctors that that they learned worked at abortion clinics. that was something that had been challenged because people didn't want a bunch of nut jobs and neighborhoods protesting doctors. And the Supreme Court was like, eh, seems like that's the First Amendment because rights apply to everybody but them.

30:48It's all well and good until it inconveniences these people. So I don't think it was necessarily great, but you know what? It was peaceful protests that happened on the public roads outside of their homes that only happened because of the actions of the conservative members of the supreme court and i'm i have very little sympathy for them at that point because of you yes the thing that frustrates me and this is uh something i see happen in more like academic settings but it's it also happens on twitter is when like people abuse abstraction because like one one thing that's being referred to is uh people calling back to a court case while the other thing being referred to as a person is being called back is a call back to a murder like they are referring back to widely different things and just to say oh a person was voicing discontent that's sufficient you are abstracting so distraction is so strong there's no way you're making a good faith argument and i wish that there was a there was there was more of a focus especially of judges judges that are making bad faith arguments in order to get brownie points it's ridiculous and i wish and it's sad that we've moved past the expectation of just some sort of decorum that a judge speaks in good faith.