Weekend Law: Trump, Pardons, Warrants & Guns

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1:54Chase Sapphire Reserve for Business. It's the card that gives back all you put in. Learn more at chase.com forward slash reserve business. Chase for Business. Make more of what's yours. Accounts subject to credit approval. Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. This is Bloomberg Law with June Grosso from Bloomberg Radio. More than 200 ,000 people have been denied gun permits since 1998 because of drug use. But now the Supreme Court will consider the constitutionality of the federal law that bans firearm possession by drug users and addicts.

2:37It's the law Hunter Biden was convicted of violating, but the Fifth Circuit Court of Appeals has concluded that the gun ban can't be applied to people unless they're using illegal substances at the same time they're found in possession of a firearm. My guest is Andrew Willinger, executive director of the Duke Center for Firearms Law. Andrew, tell us about the federal law at issue here in the Hamani case. This section of federal law might sound familiar to people who have been following the court's Second Amendment jurisprudence over the past couple of years. This lists groups of people who, because of their status, are prohibited under federal law from possessing firearms or ammunition.

3:24And one of those groups was at issue in the Rahimi case. That's individuals who are subject to a domestic violence restraining order that meets certain criteria. But there are other groups as well, felons, for example, and then as relevant to the Hamani case, individuals who are considered unlawful users of or addicted to a controlled substance. So that's the specific provision of federal criminal law that's at issue in this case is a ban on unlawful drug users possessing firearms. The Fifth Circuit found that a blanket ban is unconstitutional, but said the ban could be used against people accused of being high and armed at the same time.

4:06Explain the logic of that. It is a little bit confusing because there really isn't a lengthy decision because the circuit had decided an earlier case called Connolly. And all the judges said in this specific case is that, you know, we're applying our ruling in Connolly and therefore find that as applied to this individual Himani, the provision is also unconstitutional. But basically, the approach that the Fifth Circuit has taken in these drug cases is to say that as a historical matter, the judges believe that there's support for applying this provision when somebody is under the influence of drugs and at the same time in possession of guns or ammunition.

4:48But when there's no proof that those two things were contemporaneous, that they occurred at the same time, then the judges have said that the provision cannot be applied. And that's what they decided in the Hamani case. So the Justice Department is arguing that the law is valid. So they're arguing then for a law that restricts Second Amendment rights. That's right. Yeah, it's a little bit of an interesting posture. But again, I think what this comes back to is the distinction between a facial challenge and a has applied challenge. So the Hamani case deals with an has applied challenge. And the government is saying, you know, we think the Fifth Circuit got it wrong, but on these specific facts.

5:29So I think it's going to be a little bit of a delicate dance throughout this case as it works its way through the briefing and the oral argument before the Supreme Court, where I actually don't think that the current administration believes that 922 G3, as the language has been interpreted, is constitutional in all of its applications. I don't know that they would say that this is constitutional as applied to somebody who's just using marijuana on a regular basis. But they want to say in this case, because there are maybe exacerbating factors, it's not just marijuana, there's potentially other illegal drugs at issue.

6:07And there's a connection allegedly to foreign terrorism. That's not really relevant to the Second Amendment, but they're going to, I think, focus a lot on the as applied nature and on the specific facts of this case. The Supreme Court in 2022, in the Bruin case, ruled that any restrictions on firearms have to be consistent with the nation's historical tradition of firearms regulation. What is the history and tradition that the government is saying supports their position here? The government, at least below in these cases in the Fifth Circuit, has basically rested on three categories of historical statutes or restrictions.

6:50So the first is the historical treatment of the mentally ill. And that's sort of an argument that maybe drug users are analogous in some way to those who are mentally ill. That's some form of a temporary incapacitation. The second is more generally just laws that were based on a legislative determination that some group of people is dangerous and we're not going to allow them to have guns. And then the third is, and this kind of goes in sequential order, you know, the mental illness and the dangerousness laws are earlier. And then eventually you start to see laws that talk about alcohol and then being intoxicated with alcohol.

7:27And those are also a category that the government has come forward with in these cases. And again, I think for each one, you know, it's going to depend on this level of generality issue that courts have really been wrestling with under Bruin, which is how close do the historical statutes really need to be in order to uphold the modern law. So the historical statutes go back to the 18th century when the Second Amendment was ratified. Do they also go back to the 19th century? I mean, what does the court consider an acceptable period of time for these historical comparisons? Yeah, well, that's one of the really interesting aspects of these cases that the court has granted now, which is that in some sense, there are narrow questions.

8:12But I think in the background, you have this doctrinal uncertainty. and we're going to start to get some clues about questions like the one you raised, which is, what's even the time period, right? How far back do you go? You know, if something's enacted in the 19th century, is that too new? Like, does that not really inform the original meaning of the Second Amendment? In the Bruin case, the court seems to at least leave the door open to considering historical laws anywhere from around the time of the founding all the way up through about 1900. But there's really been a divergence in the courts of appeal in terms of what courts have done with this later in time history and how much emphasis they're putting on Reconstruction era history.

8:55And that's going to come up, I think, in these cases, actually. To me, this illustrates the problems with originalism, making comparisons to a time when the laws were dealing with muskets. But I digress. So, Andrew, tell us about the defendant's arguments here. It's really an argument for this contemporaneousness requirement. So the argument is that the historically correct way to think about this type of prohibition is that legislatures had the power to say if you are actively under the influence of some intoxicating substance, and you're not acting in your right mind, at that point in time, you can be prohibited from having guns.

9:37But otherwise, just sort of evidence that you may have used drugs in the past isn't enough. And I think that's what they're going to say here. There probably also will be a lot of back and forth about how much work these other facts are doing. You know, the connection to the terrorist organization, you know, that shouldn't really be relevant. But I think what's happened, you mentioned the Hunter Biden case, you know, the federal government doesn't charge this provision a lot. So they tend to charge it in sort of egregious cases. Because, you know, Hunter Biden, he's not just somebody who's using marijuana and happens to have a gun.

10:10He's going out and writing a memoir where he admits to this type of conduct. So I think there will be some discussion of this or how the provisions actually used with the government maybe saying, look, we're not intending to really bring this type of charge. You know, if somebody is just without any aggravating circumstance, occasionally using marijuana. it. Last year, the court did uphold a federal law that bars firearm possession by people under domestic violence restraining orders, even though there was no historical comparison. That was a reversal of the Fifth Circuit. Do you think that's where the justices are going with this case, that they took it to reverse the Fifth Circuit?

10:49Yeah, so my best guess is that they did, that they took it tending to reverse the Fifth Circuit. I think actually it could be a close to unanimous decision, again, resting on this facial versus as applied issue, which was a similar issue in the Rahimi case, right, where they're sort of getting these cases with bad facts and saying, look, as applied here, this provision is OK, but we're not necessarily going to say that the unlawful user ban is OK if somebody is just a medical marijuana user and has a gun. So that would be my guess that they'll reverse here. This is one of two Second Amendment cases.

11:22The court is going to hear this term. Earlier this month, they said they'll hear a challenge to a Hawaii law that bars people from bringing firearms to malls, stores and other private property without the owner's express permission. So tell us about this law, which is similar to laws in other states. In a year or two after that Bruin decision, which set out this new test and also ruled that discretionary concealed carry permitting was unconstitutional. So in other words, basically said that states that had these stricter laws for determining whether somebody can have a concealed carry permit had to relax them.

12:03And so the six or eight states that had those laws reacted ultimately by enacting new statutes, but they also instituted new application requirements and they restricted where permit holders can carry their guns. And so typically what these laws look like and what they look like in New York, California, and then Hawaii was that they would have a long list of what's called sensitive places. So locations where guns are absolutely prohibited. You can't carry your firearm in a school, a government building, a courthouse, and so on. And then a few states also did, as Hawaii did, what you can think of as switching the default rule for private property.

12:46So the default has always been that you are allowed to carry a firearm onto private property unless you are told otherwise. I think about businesses posting a sign that says no guns allowed, right? That's why they do that, because they have to specify if they don't want people to carry. But what these states have done is to say, we're going to flip that and we're going to make the default that no carry is allowed. And if a business, for example, would like to allow a permit holder to carry their gun, they need to post a sign or otherwise say, yes, you're allowed to do that. But as a default, if they do nothing, a permit holder is not allowed to carry.

13:23And the court hasn't scheduled either of these cases for argument yet. Thanks, Andrew. That's Andrew Willinger of the Duke Center for Firearms Law. A note, Michael Bloomberg, the founder majority owner of Bloomberg LP, the parent of Bloomberg Radio, is a donor to groups that support gun control, including Everytown for Gun Safety. Coming up next, the Supreme Court questions when police can enter a home without a warrant during an emergency. I'm June Grosso, and you're listening to Bloomberg. Support for the show comes from Public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions.

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16:36Restrictions and limitations apply. Cards are issued by JPMorgan Chase Bank N.A., member FDIC. 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. Police 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.

17:20And 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. What 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.

18:00We 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? That would be unfortunate and tragic, but we are trying to strike a balance between them. 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.

18:41Joining me is former federal prosecutor Robert Mintz, a partner at McCarter and 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. And 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.

19:30Case 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. Case 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.

20:12After 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. The 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.

20:47It 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. That 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.

21:26Mr. 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. So 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.

22:13The 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. So what standard did they argue for? The government argued that the justices should rely on a Supreme Court case from 2006. It was a unanimous opinion in a case called Brigham City v. 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.

22:59So 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. It'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.

23:37It 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. Supreme 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.

24:19When 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. First, 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?

24:56And 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. But this is something entirely different. And the justices all seemed to go back to the Brigham City versus 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 push back on the contention here of the defense lawyer that this was an unreasonable act by police.

25:46Justice 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. The 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.

26:28So 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. In 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.