Weekend Law: A Supreme Court Roundup

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2:15Bloomberg Law with June Grosso from Bloomberg Radio.

2:22Welcome to a special holiday edition of the Bloomberg Law Show. I'm June Grosso. Ahead in this hour, we'll focus on cases before the Supreme Court. The justices will decide when it's okay for police to enter a home during an emergency, whether a judge can bar a criminal defense attorney from talking to their own clients during their testimony, and whether to invalidate Colorado's ban on conversion therapy for minors. If the police could not enter this house based on the facts that they knew, then I don't know when the police are ever going to be able to enter a house to prevent somebody from committing suicide.

3:10Police didn't have a warrant when they entered the home of an Army veteran in Montana, but they weren't there to arrest William Trevor Case. They were there to help him. His ex-girlfriend said that Case had threatened suicide and had a loaded handgun. The police knocked. They yelled. They waited 40 minutes. And then they went in. The question before the Supreme Court is, what's the standard for police entering a home in an emergency? Justices from across the ideological spectrum suggested that the officers were right to go in in this case. Here are Justices Samuel Alito and Ketanji Brown-Jackson.

3:50What more would they need here? They need to be able to look through the window and see him with a gun pointed to his head, or they need to see a dead body on the floor? What more did they need? This person had a long history of threatening suicide, whether it be by cop or whether it be on his own or whatever. We have a long conversation, detailed, specific with the girlfriend about circumstances that look like they're creating a pretty significant emergency. And Justice Brett Kavanaugh questioned Case's attorney about the alternative scenario. Well, if they, after deliberations, walk away and he commits suicide, I mean, what are you thinking then of the officers?

4:33That would be unfortunate and tragic, but we are trying to strike a balance between them. Well, and the officers need some clarity, I would think, in circumstances like this about what they can do and what they can't do. But there was no such clarity by the end of the arguments. Joining me is former federal prosecutor Robert Mintz, a partner at McCarter & English. Bob, so police normally need a warrant to enter home, but there are some emergency situations that are exceptions. Tell us about that. So there is a so-called emergency aid exception to the Fourth Amendment, which allows police officers to conduct a warrantless search if they have reasonable suspicion that there is an emergency and an immediate need to protect others or themselves from harm.

5:23And tell us about the facts here, because Case ended up being convicted of assaulting a police officer. The defendant in this case, William Trevor Case, was an Army veteran who had a girlfriend who contacted police suggesting that Mr. Case might be suicidal. Officers arrived at Mr. Case's house around 9 p.m., and they were familiar with his history of alcohol abuse and certain mental health issues. The ex-girlfriend had told police that Mr. Case had a loaded gun. He had threatened to harm police if she tried to send officers to his home. and she claimed before she hung up with the police that she had heard a pop and then silence and was concerned that Mr.

6:04Case had actually pulled the trigger. The officers arrived at Mr. Case's door. They yelled. They shone flashlights through the windows. They could see empty beer cans, an empty handgun holster, and a notepad with handwriting, which the officers believed at the time was a possible suicide note. After about 40 minutes, they entered through the unlocked front door, And when they went upstairs, they saw a closet curtain open. Mr. Case lunged forward, his arm outstretched with what officers believed was a handgun. The officer fired one shot, striking Mr. Case in the abdomen. It turned out the handgun was found in a nearby laundry basket.

6:41The issue with trial then was when the defense tried to exclude the gun and other evidence of the confrontation from the trial. The trial judge overruled that defense and allowed the prosecution to present it to the jury. And he was convicted after a trial. It seemed like the police had a lot of reasons to go in. How much more did the defense think they should have before they entered the house? To put this in context, the Fourth Amendment of the Constitution prohibits unreasonable searches and provides protections for a person's home by generally prohibiting law enforcement from entering without a warrant.

7:16That is really set up in order to allow people to have privacy in their home in the context of a possible criminal case. The question that was facing justices in this case is what level of certainty must police have that an emergency is underway before entering a home without a warrant? Mr. Case's lawyers argued that it should be a high bar. They argued that it should be something called probable cause, which is what police officers need in order to get a warrant to search your home in the case of a criminal investigation. But here, this was not a criminal investigation. This was a circumstance in which they believed that there was an emergency and there was someone's life at risk inside the house.

7:59So the question is, what is the level of certainty that police officers need to have in order to enter the home without a warrant? And the defense argued that that level of certainty, in order to avoid needless and dangerous confrontations and to prevent police officers from circumventing the concept of probable cause, that there has to be probable cause that they believe that there is an emergency and that somebody is in imminent danger. The state of Montana and the Trump administration argued that probable cause was too high a standard in these emergency cases. Montana's solicitor general said that a stricter rule of probable cause would, quote, require police to stand outside a dying man's door.

8:41So what standard did they argue for? The government argued that the justices should rely on a Supreme Court case from 2006 was unanimous opinion in a case called Brigham City versus Stewart, in which the Supreme Court held that police may enter a building without a warrant when they have an objectively reasonable basis to believe that an occupant is seriously injured or threatened with such injury. So in that case, they took it completely out of the context of probable cause, which really has an entire body of case law that talks about when police may enter a home with or without a warrant in the context of a criminal investigation, and said that here we're talking about imminent risk to somebody.

9:24It's not a criminal investigation. It's really a circumstance where police officers may come into a home in order to arguably save the life of somebody or save the life of somebody who may be with somebody who's in danger of hurting them. And in that case, the standard is objectively reasonable basis to believe that the occupant is seriously injured or threatened with such injury. It seemed like justices across the ideological spectrum thought that the police had good reason to enter here. Yeah, well, what's interesting here is that the Montana Supreme Court, which is the court that had just heard the case before going to the U.S.

10:00Supreme Court, sided with the state. But it was a 4-3 decision. And there were actually three judges on the Montana Supreme Court who dissented and said that for a warrantless search to be reasonable, the higher bar of probable cause must apply. And then they went further and added that there was no probable cause to believe Mr. Case was an imminent danger or in need of immediate assistance that would have justified the warrantless entry into the home. When the case went to the Supreme Court and was argued before the justices there, there was virtual unanimity that the standard that had been applied by the state was the correct one.

10:38First, for example, Justice Thomas noted that the issue of probable cause is a standard that is normally limited to the criminal context. This was not a criminal investigation. And Justice Robert joined in on that to say, when we talk about probable cause, we talk about probable cause that a crime is occurring. What standard would be used here when we're not talking about a crime, but about a risk of injury to somebody? And Justice Kagan also jumped in saying that there is a full body of case law out there describing what probable cause is. It's not a self-defining term. It has been raised in many cases, and there is a full explanation in the criminal context of what constitutes probable cause.

11:22But this is something entirely different. And the justices all seemed to go back to the Brigham City v. Stewart case from 2006 to say that the standard of objectively reasonable basis for believing that somebody needs emergency help is the standard that should apply here. And Justice Alito and Justice Brown agreed, which doesn't happen very often, they both pushed back on the contention here of the defense lawyer that this was an unreasonable act by police. Justice Alito went so far as to say if the police could not enter the house based on the facts that they knew in this case, then I don't know when police are ever able to go into a house to prevent somebody from committing suicide.

12:05The concern here is that if there is a legal standard of probable cause in order to go in under these emergency situations, that police officers may hesitate to go into a house when somebody's life is at risk. And they seem to weigh more in favor of protecting the life of an individual and allowing police officers more latitude to go in under these circumstances than they were about the privacy concerns of entering a house without a warrant. So do you think that the justices will just announce a standard and that will be the end of the case? If the Supreme Court decides to uphold the lower court, then there was some discussion about what comes next.

12:48In other words, there were some justices who said that they should simply rule that the lower court was correct and that the standard of objectively reasonable was properly applied and that in this case, clearly the facts warranted the police entering the home. Justice Sotomayor and Justice Thomas, on the other hand, argued that it's the normal practice of the court if they're not certain about a standard and state a new standard that it should be sent back to the Montana Supreme Court to determine whether based on these facts that objectively reasonable standard had in fact been satisfied. Justice Alito expressed some concern that in doing that, it might suggest to the lower court that this was in some way a close call.

13:32And could, he argued, have some kind of a killing effect on police when they're trying to determine whether to enter a house to prevent somebody from committing suicide? And the Supreme Court is usually protective of the expectation of privacy in one's own home. And we should point out here that some civil rights and privacy groups did line up behind the defendant in this case. Mr. Case's attorney reminded the justices that police had entered Mr. Case's home without permission, without a warrant, or without even probable cause and ended up shooting him in his own home. He argued that the reasonableness standard that the state was suggesting was so vague as to invite abuse and confusion by law enforcement.

14:16This is one case, this term, where it appears, you never know, but it appears that we know how it's going to turn out. But we shall see. Thanks for joining me, Bob. That's former federal prosecutor Robert Mintz of McCarter & English. Coming up next, the Supreme Court appears likely to invalidate Colorado's ban on conversion therapy for minors. I'm June Grosso, and you're listening to Bloomberg. With LPL Financial, we provide the services to help push you forward. When it comes to your finances, your business, your future, the only question should be, what if you could? Pitt advertisement, Anna Kendrick, is not a client of LPL Financial LLC and receives compensation to promote LPL.

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17:11Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. This is Bloomberg Law with June Grosso from Bloomberg Radio. You're listening to a special holiday edition of the Bloomberg Law Show. We're looking at several cases before the Supreme Court. Colorado Solicitor General Shannon Stevenson defended the state's ban on conversion therapy for minors at the Supreme Court. She argued that the Constitution allows states to protect patients from harmful, discredited treatments, even if a regulation incidentally affects speech. A health care provider cannot be free to violate the standard of care just because they are using words.

17:59And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words. An evangelical Christian therapist is challenging the law, saying it violates her free speech rights. And the court's conservative justices appeared to agree with her, questioning the constitutionality of the law. Here are Chief Justice John Roberts and Justice Samuel Alito. In other words, just because they're engaged in conduct doesn't mean that their words aren't protected. Looks like blatant viewpoint discrimination.

18:37Liberal Justices Sonia Sotomayor and Ketanji Brown Jackson were the only justices who addressed the harms of conversion therapy that every major medical association warns about. There are studies that say that this advice does harm the people emotionally and physically. And Justice Jackson questioned why the Colorado law should be struck down when in June the court upheld a different measure from Tennessee that bans transition-related treatments for transgender kids. The regulations work in basically the same way and the question of scrutiny applies in both contexts. So it just seems odd to me that we might have a different result here.

19:23My guest is First Amendment expert, Caroline Mala Corbin, a professor at the University of Miami Law School. Caroline, will you explain conversion therapy and Colorado's law banning it? As about half the states in the country have done, Colorado bans something that has been called gay conversion therapy. And it's the idea of trying to convince someone who is gay that they're not actually gay or trying to convince someone who is trans that they're not actually trans. And this approach to gay and trans people has been proven to be very deleterious for their mental well-being. And so states have forbidden it.

20:09They have made it illegal for licensed medical professionals to provide this as part of their practice of medicine. So to be very clear, it doesn't ban clergy from talking to people about sexual orientation or gender identity. And it doesn't even ban the therapist from talking about it in their own free time. But if they are in the process of providing health care services that they have been licensed to provide, they're not allowed to try and convince gay people that they're not gay or trans people that they're not trans. That's the law. And what's the fundamental issue in the case? So you have this law.

20:53It says if you're licensed by the state, the state does not allow you to do things that are contrary to the standard of care. And so you cannot provide conversion therapy. And we have this white Christian woman who argues that the ban forbids her from providing the type of therapy that she wants to practice. She gets help from Alliance Defending Freedom. And so the question before the court is, does this ban on this medical therapy violate the licensed practitioners' free speech rights? And so the question before the court is, does this ban on this medical therapy violate the licensed practitioners' free speech rights?

21:41And the legal question that makes all the difference is whether providing conversion therapy is speech or whether it's conduct. Because if it's speech, then it implicates the free speech clause. In fact, it becomes presumptively unconstitutional. If, on the other hand, it's considered conduct, then it doesn't trigger the free speech clause and the government is likely to be allowed to regulate it. So the million dollar constitutional question is how should this practice of conversion therapy characterize? Is it speech or is it conduct? Now, I just want to point out that speech in the colloquial sense doesn't always match speech in the constitutional sense.

22:33So let me give you a couple of examples when speech is not actually speech, which seems counterintuitive. And yet, if, for example, you told national security secrets to a foreign enemy, that's speech. But that wouldn't be treated as speech. it would be treated as the conduct of treason. It's not protected by the free speech clause. Or, for example, a sign on a restaurant that said, we do not hire, fill in the blank, we do not hire Black people or Latino people or Asian people. That's words. But that wouldn't be considered speech. It would be considered the act of discrimination. And so while it may seem really obvious on its face that, well, this is words and therefore it's speech, it's not quite as clear cut as the Supreme Court is going to probably conclude.

23:30It seems like there is almost universal agreement among those who listen to the oral arguments that the Christian counselor is going to win here. I mean, clearly, whenever you have a white conservative Christian arguing before the Supreme Court, they're going to win, especially if the only thing at stake, and I say only from the court's perspective, is LGBTQ rights. They just don't care, right? So I think it was a foregone conclusion, apart from any of the legal principles, that the white Christian woman was going to win. You know, I never used to predict the outcome of Supreme Court cases, but it seems the pattern is so clear these days that I think one could say with a certain degree of confidence that she's going to win.

24:18And they're basically going to say, this is speech, and therefore it is presumptively unconstitutional. And only if the government has a super compelling justification for its law, and the law was the only way to accomplish its goals, it's not going to win. In other words, it's going to have to pass what is known as strict scrutiny. And that is very hard to do in the speech context. It seemed like most of the discussion was about what standard should be applied here. Well, that's because if it is considered speech, then the standard is going to be strict scrutiny. And if it is not speech, then it's only going to be rational basis scrutiny.

25:02So what level of scrutiny a court must give to this law, how hard it looks at it, questions it, The level of evidence the government needs to provide will depend on whether it is speech or conduct. Because, again, if it is speech, then it implicates the free speech clause. Is this a novel issue coming to the court? Have they decided any similar cases? The Supreme Court is not deciding this against a blank slate. They have already considered the question of medical treatment and speech conduct, but in the abortion context. So I want to highlight that many states who are hostile to abortion, one of the things that they require their abortion providers to do is to give women certain information about abortion.

25:56So, for example, you have to let women know that adoption is an option or that fathers have to pay child support. Other states have held that women have to be told all the harms that may result from abortion, some of which are not even medically accurate. But the point I want to make here is that doctors challenged this regulation on speech grounds and argued the government is forcing us to say things that are contrary to what we believe is appropriate and correct. And you might think, well, these are words and they're being forced to articulate a particular viewpoint on things. For example, don't have an abortion, you know, adopt your child out instead.

26:41that it too should be considered a regulation of speech that sort of compels a viewpoint. It's a viewpoint-based restriction and therefore should trigger strict scrutiny and be presumptively unconstitutional. But that is not what the Supreme Court did. What the Supreme Court said is that these laws that compel doctors to speak against their will and say things that they don't want to say the Supreme Court held, that is not a regulation of speech. That is actually a regulation of the medical profession that only incidentally affects speech. So they're deciding this case against a backdrop of the Supreme Court already having held in a different context that speech Speech that is connected to the provision of medical treatment is not necessarily going to be treated like speech.