In Lange v. California, defendant Arthur Lange challenges the application of the exigent circumstances exception to the warrant requirement of the Fourth Amendment in California state court arguing exigent circumstances should apply only in genuine emergencies – not where the police are in hot pursuit following a misdemeanor traffic violation. Lange argues the evidence supporting his DUI arrest and conviction should be thrown out because it surfaced only after the police followed Lange into his garage following his commission of misdemeanor traffic offenses. California upheld Lange’s conviction favoring a case by case approach to applying the exigent circumstances exception to pursuit following probable cause of a misdemeanor. Other states have adopted a blanket ban on misdemeanors providing the exigent circumstances necessary to justify a warrantless search.
In granting certiorari, the Supreme Court will address the split among the states and consider whether pursuit following probable cause of a misdemeanor always qualifies as an exigent circumstance allowing warrantless entry. Oral argument is scheduled for February 24, 2021.
Panelists Larry James, Managing Partner at Crabbe Browne & James LLP and General Counsel of the National Fraternal Order of Police, Clark Neily, Vice President for Criminal Justice at the Cato Institute, and Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute, will join us to discuss.
Larry James, Managing Partner at Crabbe Browne & James LLP and General Counsel of the National Fraternal Order of Police
Clark Neily, Vice President for Criminal Justice at the Cato Institute
Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute
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Evelyn Hildebrand: Welcome to The Federalist Society’s Teleforum conference call. This afternoon, February 24, we discuss today’s Supreme Court oral argument in Lange v. California. My name is Evelyn Hildebrand, and I’m the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us Larry James, Clark Neily, and Vikrant Reddy. Mr. Larry James is a managing partner at Crabbe Browne & James LLP. He is a life member of the Sixth Circuit Judicial Conference and has served as general counsel for the National Fraternal Order of Police in 2001.
Mr. Clark Neily is Vice President for Criminal Justice at the Cato Institute. He is also an adjunct professor of law at the University of Texas School of Law, and he served as co-counsel in the landmark Supreme Court case District of Columbia v. Heller.
Mr. Vikrant Reddy is a senior research fellow at the Charles Koch Institute. He previously served as a senior policy analyst at the Texas Public Policy Foundation, where he managed the launch of the foundation’s national Right on Crime initiative.
We are very pleased to have these experts on our call today. After our speakers give their opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Vikrant, the floor is yours.
Vikrant Reddy: Thanks so much, Evelyn. I just want to thank you and the entire Federalist Society for inviting me to do this today. It’s such an incredibly interesting case, and it starts with really deceptively simple facts. Mr. Lange is driving through Sonoma, California. He was having a great time, as I suppose one does when one visits Sonoma, California, although he lives there. And he’s driving his car, and the windows are down. He’s blasting his music. He’s honking for no reason, really, and just behaving somewhat erratically.
He’s driving this way as he drives past a police officer. The officer follows his car. And he continues driving, and he drives to his home in Sonoma, and he pulls into the driveway. And as he’s pulling up to his home, the officer’s lights start flashing. Mr. Lange doesn’t see the lights flashing. He pulls into his home and, in fact, pulls into his garage. The police officer steps out of the car, walks over to the garage, and as the garage door is coming down, he puts his foot underneath the garage door so that it triggers the sensor, and the garage door goes right back up.
The police officer can smell alcohol inside the garage. He goes in, and sure enough—it will be no surprise to anybody on the call—that Mr. Lange is drunk. He was extremely drunk. He was three times over the legal limit, and he ends up being charged with a DUI and also with some kind of a noise infraction.
But Mr. Lange goes to court, and he argues that the evidence that was collected inside the garage ought to be excluded because police officers generally cannot enter your home without a warrant, and this police officer clearly entered the home without a warrant. The court disagreed with Mr. Lange. And they said, “Yeah, that’s the general rule. You can’t go in without a warrant, but there are exceptions, and being in hot pursuit of someone is a clear exception. If you are chasing somebody, and they seem to be evading arrest, they can’t just escape into their home and get away from law enforcement. It doesn’t work that way.”
This case went up to the Supreme Court today, where we heard oral arguments. Interestingly, Mr. Lange defended his position, but the State of California didn’t actually defend the position of their state court. I’m not entirely sure why that was, but my hunch is that that had to do with politics and the fact that it would’ve not been tenable in California’s political culture for the state to be defending that court’s decision, which seemed to be anti-privacy and pro-law enforcement, etc., etc.
But the amicus who was appointed, a former Kagan clerk, to argue the lower court’s decision or to defend the lower court’s decision, I thought did a great job. I also thought that Mr. Lange’s attorney, Jeff Fisher from Stanford Law School, did a great job. It’s a tough case. It’s going to be a narrow call most likely, in the end.
And there were a whole lot of people who are interested in how to think about this question of what constitutes a hot pursuit and, principally, whether or not you should fundamentally draw a distinction between felonies and misdemeanors, whether or not, “Well, it’s okay if you’re in hot pursuit of somebody who’s committed a felony, and perhaps less okay to have an aggressive policing tactic when you’re in hot pursuit of somebody who has committed a misdemeanor.”
And a lot of the argument today focused on that question, and a lot of justices just found that kind of distinction to be maybe understandable in an old kind of common sense, instinctive way, but completely unworkable as a matter of practical reality these days. Justice Gorsuch pointed out that, “Look, just about everybody has committed a felony. Everything is criminalized these days.” Justice Kagan pointed out that, “Look, you have cases where something like domestic violence, which is very serious and violent is a misdemeanor, and something like white-collar crime, which is not at all violent, is a felony. This kind of felony/misdemeanor distinction doesn’t work. This isn’t the right kind of lens to apply here.”
That was a big part of the tenor of the argument. But the bottom line was that they’re going to have to figure out how to handle this felony/misdemeanor, hot pursuit question. And it was an absolutely fascinating case, but those are the basics of it. And I think now we’ll turn to Clark Neily from the Cato Institute to give his thoughts on how the argument went, and perhaps, you have the better of it.
Clark Neily: Well, thanks, Vikrant. This is Clark Neily from the Cato Institute. I want to thank you, and Larry, and Evelyn, and all our friends at The Federalist Society. This is a really fascinating case. It’s a challenging case, and what I see in this case is a collision of a number of different values or dynamics that make it an especially difficult case, I think, to decide.
First, we’ve got the point that you and Justice Gorsuch and others have alluded to which is the complete trivialization of the concept of crime. It’s not just felonies that have been trivialized; misdemeanors are trivialized as well. I can go out into my neighborhood in suburban North Arlington and observe dozens, dozens of misdemeanors. I myself have committed a number of misdemeanors. I won’t elaborate, but I have.
And I will tell you that, for example, it’s a tradition in the cul-de-sac where I live for parents to come out on Halloween with their children with an adult beverage in their hand as they walk around with the kids trick-or-treating. Every single one of those parents has committed a misdemeanor under Virginia law.
And so we’ve utterly trivialized the concept of crime, and many of us just go out going about our daily lives. We commit crimes for which we could be arrested regularly and without really thinking too much about it. So that’s the first point is the extent to which we’ve utterly trivialized the concept of crime.
Then, second, we’ve got the justices’ very legitimate concern about the deliberate resistance to the authority of law enforcement. It’s unclear whether that happened in this case, and Justice Alito repeatedly questioned the different advocates about whether this really was someone trying to evade a hot pursuit. He kept alluding to the video, and his impression was that Mr. Lange didn’t even know that the officer was trying to pull him over.
But I think it’s reasonable, I suppose, that in the majority of cases, there will be, in fact, a conscious effort to resist the authority of a police officer who’s trying to make a stop or perhaps also an arrest for a misdemeanor, and that’s concerning.
Third, of course, we have the sanctity of the home. The Supreme Court has held repeatedly that for Fourth Amendment purposes, the home is a particularly sensitive and highly protected environment, and we do not typically lightly allow the government to intrude into somebody’s home. And the requirement that law enforcement generally obtain a warrant before penetrating into the home is a very clear and important value in American constitutional law and common law.
And then, fourth -- and I think this is relatively new. And it’s not entirely clear to me that the justices have updated their perspective on this point, yet it’s, I think, the increasingly legitimate fear that people have about interacting with members of law enforcement. And unfortunately, we can see video after video and incident after incident.
Recently, there was a nine-year-old girl who was pepper sprayed by police in Rochester, New York. Same department asphyxiated a man by kneeling on him for 15 minutes, somewhat reminiscent of the George Floyd incident. That happened to a man in Dallas, Texas. Tony Timpa called police for help. When they arrived, he was having a mental health issue. They kneeled on him for 15 minutes until he was dead.
So to minimize or dismiss the very real concerns that people have about interacting with police, I think, is untenable in the current environment. The question, I think, is how does all of this shake out? So we’ve got a situation where, at least, some people will have legitimate reasons for not wanting to interact with a police officer, even if they know that they’re being pursued. Sometimes, they won’t know they’re being pursued. What do we make of that?
They have managed to reach a place of extraordinarily important constitutional significance, their home, which the Supreme Court has not always consistently but has generally been quite protective of. And once they have reached that home, does this additional constitutional protection kick in where the officer cannot enter without a warrant? And these are not easy values to resolve.
The last point I want to make is this: I think it’s also the case that really clearly in some of these instances, the pursuit itself is merely the prelude to a fishing expedition. Society has nothing particularly at stake about a man driving down the street, honking his horn, and playing loud music. I don’t know for a fact that that was what was going on this case, but there will be cases where what’s really going on here is that the officer wants to extend or wants to make contact and extend that contact however long is necessary to develop an investigation and see if there’s something actually meaningful that they can make an arrest for.
I think part of what may be driving this is that it seems clear to me, anyway, that in this particular instance, if there were a warrant requirement -- in other words, if this officer had been required to get a warrant after Mr. Lange managed to get inside his garage and begin shutting the garage door, can anybody really imagine this police officer going to the trouble of getting a warrant and having to explain to a judge that the only thing that he has observed is somebody playing loud music and honking their horn while driving a car? I suspect the judge is going to say, “Don’t waste my time.”
So you can see the law enforcement officer who wants to extend an investigation, who wants to be able to question somebody. Maybe they want to be able to get close enough to smell their breath or smell the interior of their car. They have strong reasons why they might want to avoid a warrant requirement and be able to, on their own initiative, conduct a non-consensual investigation, which is ultimately what happened here.
I don’t know how all these values shake out, but I think it’s clear that the justices were aware of at least some of them. But I am personally somewhat concerned about whether they were aware and demonstrated enough concern about all of them, particularly the concern that an increasing number of people have about their personal safety when interacting with members of law enforcement.
Larry James: Larry James. I think the court’s going to sustain the decision of the California court. I think the question that the court was struggling with is, should it hand down a blanket rule that goes nationally? The court clearly stated that each state, looking at Massachusetts versus California, have very different guidelines as to what is a misdemeanor versus a felony.
The one thing I would take issue with, I think the court was very clear that they thought the law enforcement community had common sense and good judgement. The officer in this case was a seven-year veteran, who we would assume had the ability to look at when drivers are driving erratically, or dangerous, or giving off signals that something might be wrong. So I would say it would be the equivalent of a Terry stop, and I think we all agree that officers on their own reasonable suspicion have the ability to inquire of a driver or a citizen if they are concerned.
I think the court said that—and I think they will hold it—that it doesn’t make a lot of difference to this court when we’re talking about is it a felony or a misdemeanant offense. And the reason is the states around the country are all over the place. So in our instance, with the individual drunk driver, did the officer believe that? Did the officer believe that that individual was a potential danger? Did he believe that maybe there were some drugs or any number of things? And he had the right to make that inquiry.
I think the other thing is when you are in pursuit, or hot pursuit, however you want to call it, and the officer gives a signal and turns on his lights and/or siren, should the public be required to obey that? I think we made a distinct difference between those crimes that were referred to in neighborhoods; during a block party, someone walks out with an open container, or you have children playing in the park, and then they disperse, and they do nothing.
So I think the courts going to come down and say that they will not make a distinction and force law enforcement to try to determine whether a felony or the degree of the crime. I think the court seemed to suggest that if it required jail time of X number of months or a year, then it’s clearly inclined to go along with the California ruling where the officer had justifiable reason to pursue the individual and to go into the home without a warrant.
When we look at the statistics of drivers who are uninsured or who may be driving intoxicated, I think those are the sort of things, I think, the court, although it didn’t spend a lot of time talking about, is going to come down to. I think the court also talked about trying to make a distinction. The question is whether if you have an individual who was in custody who had escaped versus an individual who’s fleeing, and I don’t think the court’s going to make a big distinction. It is clear, I think, from the case law, if an individual is escaping, that law enforcement official has the ability to follow that individual and go into the home.
I think the court is cognizant of the fact that traditionally, a home is a person’s castle. But I think if it’s these emergency exceptions, I think, the court’s going to allow that officer to have a warrantless invasion. It’s not going to try to determine whether the officer has to make a constitutional determination; is it the degree of misdemeanor or is it a felony? And I think that is an impossible imposition to place on law enforcement officers.
So, although the court -- the way the argument went, the court -- Justice Roberts started out asking his questions, and then each justice. And I don’t think one justice passed. I think there was a clear indication that they were siding with the officers in this area, and I think that’s the way the case is going to come down.
The big question, I think, the push was should the court say it’s an absolute right for law enforcement to have the right to pursue a misdemeanant violation and also make that a warrantless search if that’s the case. And I think it may make that distinction, but I think it’s going to uphold the lower court.
Thank you, and I’d like to thank you all for inviting the National FOP to be a part of this discussion. So thanks.
Vikrant Reddy: Hey, Evelyn. This is a --
Evelyn Hildebrand: -- Yes. Would you like to take audience questions?
Vikrant Reddy: Yeah. Well, actually, before we jump to audience questions, I want to just raise of few thoughts that I have about some policy issues that I think come out of this case. They’re not directly connected to the central question of the case, but I think they’re peripheral, and they’re fascinating. The main thing that we discussed, I think, is this question of overcriminalization, and the number of crimes that are on the books, and the ways in which officers are expected to address all of them.
And I wondered, there’s a big national conversation happening right now about whether or not we’re simply asking officers to do too much. They have to respond to traffic incidents. They have to respond to mental health crises. They have to respond to drug abuse problems. And, of course, we still want them to respond to very serious violent crimes, which is their primary role.
There are a lot of people out there thinking about ways to what sometimes people call “unbundle” these functions of the police and find other people in society who can handle certain tasks so that not every single one of these problems is handled by an armed agent of the state. That is causing, I think, a lot of intimidation and mistrust. And Clark spoke a lot about this also, but the fact that there are just certain people in the country who are -- they’re frightened whenever they see police officers approach. It doesn’t necessarily mean that they’ve done anything wrong, but they just have this profound mistrust, and it’s affecting these police-civilian relationships.
There were some interesting moments in the arguments today where some justices -- like I think Justice Roberts said, “Look, the moment somebody is running from the police, they become quite suspicious. You start saying to yourself, ‘Well, does this person have to hide?’”
And Mr. Fisher, who was representing Mr. Lange, said, “Well, you can have people who are teenagers who are close to home and feel ‘Oh, gosh, I don’t want to have a conversation with police officers unless mom or dad are around,’ and they try to get home.” You can have women who have heard stories, read stories, and know people who have been sexually assaulted by a police officer. Maybe it’s late at night, and they worry about what could happen to them, and they just want to get back home.
And, of course, the biggest question overall of this is, is the question of some minority population in the minority communities who might say, “I’ve just seen too much in the news. I’m worried. I just want to get home. I don’t want to have this adversarial interaction with a member of law enforcement.” So to the extent that we can maybe unbundle some police functions, I think it could help to rebuild trust and confidence in law enforcement. I think it can helpful.
The final thing I want to note—this is a little bit idiosyncratic, but I just thought it was fascinating and I want to point it out—is that there were a number of amicus briefs filed in support of Mr. Lange, and you could probably guess that they came from civil libertarian-oriented organizations. The Institute for Justice filed one; the National Association of Criminal Defense Lawyers; the ACLU.
But I also thought it was so interesting that the Gun Owners of America filed one. And I think that’s something I’m starting to see more and more in the criminal justice reform space that people who are concerned with Second Amendment rights are increasingly concerned with criminal justice reform. And you saw an interesting example of that here.
You see it from time to time when there are laws that deny Second Amendment rights to certain classes of felons. And gun owners are coming forward and saying, “Well, this is in the bill of rights. We better be careful about denying these rights to people just like we’re careful about denying First Amendment rights to people who’ve been convicted of crimes.” It’s a really interesting nexus that’s emerging, and I just think one that’s worth keeping our eyes on.
Larry James: This is Larry. I think that may very well be true, but that is not this case. I think the thing that probably is going to guide us in this case more than anything else -- across the nation, we have 20 percent of the police department that restrict pursuit to felony offenses, and then another 50 percent allow for misdemeanant pursuits. And then you have your state laws that are going to govern in some instances.
But I think this is a pretty straightforward case. I think the difficulty for the court is, can it lay down a blanket policy that makes sense? And I think it’s probably going to hesitate on that and side more with the reasoning that came out of California. And I’ll stop there.
Clark Neily: It’s Clark. I don’t have much more to say or to add. Again, I will emphasize I think this is a challenging case. I personally think that the time has come for the justices to somewhat update their perspectives, as I suggested in my initial remarks. I suspect that many of them, to some extent, their worldview is colored by their own interactions, perhaps, or their own lack of interactions with law enforcement.
I don’t say that they are unaware that other people have different experiences, but a number of other doctrines that are in play right now, including particularly the qualified immunity doctrine, which is the one that provides government officials, including particularly police, with a defense to civil rights actions if the conduct at issue or the wrongfulness of the conduct was not clearly established.
My overall impression of the court is that it remains bound in a somewhat old-fashioned view of the fundamental essence of the relationship between citizens and law enforcement that really no longer accurately reflects the perception and the feelings of a very significant and, I would say, growing chunk of Americans. And I think the longer it takes the court to update its understanding, its awareness, on those fronts, the greater the tension is going to become both doctrinally and in terms of people’s confidence in law enforcement as an institution.
Larry James: I think if I were -- just from a practical standpoint, I think the court was also concerned with an individual who is fleeing from a police officer, for that individual to retreat in his or her home, and at the same time, potentially destroy evidence, whether that be drugs or whether -- one of the arguments was that the officer could go and knock on the door. And I think the justices uniformly agreed that that is not practical and will not work.
It also talked about the difficulty of securing a warrant in a reasonable time in order to pursue this. I just think the question, and I think we’ll all agree, I did not hear one justice that was, in fact, troubled by the sustaining of the conviction. I think what the justices are wrestling with and will wrestle with is whether they can articulate a policy and bridge these concerns on this case, and I think they will try to be narrow on that.
Clark Neily: It might be time to take some questions.
Larry James: For those who did not listen to the argument, it is now up. And I agree that hopefully they -- I don’t know if the quality of the recording is going to be helpful, but I think listening to it -- and I think it went, what, about an hour and 45 minutes?
Vikrant Reddy: Yeah.
Larry James: It was long. It was an hour and 45 minutes that the justices, without exception, each one questioned each advocate that came before the court.
Vikrant Reddy: Yeah. I’ll say that if the audio that was posted is as bad as the audio that Clark and Larry and I heard, he may just want to go the transcript instead.
Larry James: Correct.
Evelyn Hildebrand: Are we ready to take some audience questions, or perhaps you have more things to discuss among yourselves?
Larry James: Questions would be good.
Vikrant Reddy: Yeah. Great.
Evelyn Hildebrand: All right. Great. We’ll now go to audience questions. So we will now move to our first caller.
Christopher Melling: This is Christopher Melling. I’m a 2L here at BYU, and I’m going through a criminal procedure class right now. And I apologize, I can’t remember who said it, but the comment about 50 states plus D.C. with different circumstances and just the state of the exceptions and how complicated it is. I just strongly feel—and I agree that this is an issue—when you’re looking at just felony versus misdemeanor in hot pursuit, that should be left to the state legislatures.
I didn’t get a chance to listen to argument. Is that a valid concern for the court that there’s, perhaps with the current makeup now that we have, more of that concern that with some of these issues should be left to the states? Do you think that’s part of this case specifically?
Larry James: This is Larry. They did not talk about leaving it to the legislature. What they did acknowledge is just the different criteria. And they really harped on between Massachusetts, which had some misdemeanants in jail time, domestic and other type of crimes that would put someone in jail for two years. In California, some of the same would have de minimis jail time. And so the debate was, should the criteria be if it was a crime that led to incarceration, and you had hot pursuit and a warrantless search. I think I stated that right. You want to help me out, Clark?
Clark Neily: Yeah. So I think one thing to clarify is that Mr. Lange’s counsel in this case did not take the position that a hot pursuit of a suspected felon would represent a categorical exception to warrant requirement. Their touchstone was really more seriousness of the offense, and their position was that it’s not so much as for the matter of formalism or terminology in terms of how a state has chosen to label the conduct at issue, but really the seriousness of the conduct as one factor, one potential factor, among many.
But their position, as I understand it, was that this is best considered under the rubric of exigency. And then the question is, does the fact that the person is suspected of having engaged in a particular conduct represent this officially exigent circumstance to represent an exception to the warrant requirement? I find myself sympathetic to that approach, perhaps not surprisingly.
I certainly understand that it may place an additional burden on law enforcement officers, but I thought that Mr. Fisher, Mr. Lange’s counsel, made an effective response to that by saying that police in many jurisdictions, including California, have to make those kinds of distinctions as a regular part of their job. And I will harken back to something I said in my initial remarks, which is that part of the problem here, of course, is that state legislatures have—and not just state legislatures but also the federal government—have utterly trivialized the concept of felony.
So point one, they’ve trivialized the concept of crime to begin with so that all kinds of perfectly harmless activity has been denominated criminal. Justice Breyer got really obsessed with an example, and I guess there’s a real example from California where, apparently, it’s a misdemeanor to give somebody a rabbit as a prize for some kind of contest. But we could multiply the examples endlessly.
So I’ll sum it up by saying that when you have a country like ours that has utterly trivialized the concept of crime in general, and the concept of what constitutes a felony in particular, the idea of essentially allowing the legislature to effectively legislate away any meaningful content for the Fourth Amendment simply by slapping a label of felony on relatively harmless conduct I think is both problematic and not something that’s going to be easy to sell to the Supreme Court. I don’t think that’s likely to be the basis for their decision. I think it’s going to be significantly more nuanced than that.
Larry James: Did that answer your question or help you at all?
Christopher Melling: It does. Yes. Obviously, the court for a while -- the Fourth Amendment. And I recognize the home -- the fact that it was in the garage of a home just makes it more of a Fourth Amendment issue. So I see why the court took this case, likely, and, yeah, the little faith in the state legislatures play as well. So thank you.
Larry James: I think the other thing, the court really pressed on that distinction of trying to impose on law enforcement to make a distinction on the underlying crime. I think they will stay away from that. I think they’re not going to impose that on law enforcement.
I think the decision will more likely say if it’s an observation and a reasonable objective standard that the police officer has that a crime may be committed, and then the individual flees and is pursued, then the right to a warrantless search will more than likely be upheld. And the question is, do we continue on a case-by-case basis? The answer is yes, but I think there will be a general proposition handed down by the court.
Evelyn Hildebrand: Wonderful. Thank you. And while we’re waiting for other callers to join the queue and ask a question, I did want to ask our panelists, do you know of other cases that are in the pipeline or other collateral consequences that might result from the decision that the court makes today?
Larry James: I think that one of the observations I have on this subject is, you have the veteran seasoned police officer. Usually, these cases are going to be in the municipal court. The practical reality if a lawyer files a motion to not accept evidence, or prohibit its introduction, or to dismiss for fruit of a poisonous tree, or something like that, I think the municipal courts are pretty good at that. I know in our jurisdiction, that would be one of the first things that are argued.
I think prosecutors, on the same vein, are going to—unless they were being overly zealous—are going to make sure that there is a rational, reasonable objective, a standard by which the police officer’s going by. And they did talk about the situation of it being a crime for someone being given a rabbit. I think the court’s going to look at those situations as absurd. And I don’t think that under those circumstances, it’s ever going to pass muster.
So I think the court is really wrestling with trying to hand down a policy. I don’t think these other issues—although they came into discussion—are going to carry today.
Vikrant Reddy: When you ask about other possible consequences, maybe I’m being overdramatic with this speculation, but I spent a lot of the past year—and I know Clark did too—thinking a lot about overcriminalization as it connected to pandemic safety measures. I’m very supportive of things like mask-wearing and other kinds of measures to make sure that we do what we can to protect public health and public safety, but I’ve always been skeptical of putting those things into our criminal law.
And I think in a case like today’s, in the sorts of debates that were had in the court today, that they kind of shed a light on why we should be careful about those kinds of things. I don’t want to be in a situation where we say it’s okay for police officers to enter a home when they’re in hot pursuit of somebody who has committed a misdemeanor because if that misdemeanor is something like violating a pandemic-related curfew or being suspected of not wearing your mask whenever you’re out in a public place, this just seems to me to be a very dangerous road to head down.
And like I said, maybe I’m being overdramatic, but I don’t know. People get really understandably concerned about taking the public safety and public health measures seriously, and they want police officers to do something about it, and it’s a dangerous road. You deputize police officers to enforce laws. You better make sure that the things you make laws really need to be criminal laws.
Larry James: This is Larry. I would respond and say on all of those related issues, those are ticket writing issues. Those are not arrest issues. If the extreme were to happen that an officer walked up to write a ticket and individual runs off, as you see today in speeding tickets or things of that sort, I don’t think there’s a floodgate’s going to open on that. I think the case is pretty straightforward.
I think lawyers who defend individuals know how to file motions to quash, motions to limit it, motions to dismiss. The question asked earlier, are there a lot of these cases in the pipeline? That argument did not come up. It wasn’t a groundswell or an argument that law enforcement is abusing that privilege. So I just don’t see that, and I think it is a bit overdramatization of that.
Clark Neily: This is Clark Neily from Cato. I’ll just jump in really quickly. One of the briefs in the case was submitted by the National Association of Criminal Defense Lawyers, and it has a very shocking recitation of incidents that started very small, something as ridiculous as somebody just urinating on the corner of the patio of his girlfriend’s apartment.
That case escalated into very nearly a gunfight inside her apartment, as a plain clothes officer pursued him inside the apartment. People didn’t know who was doing what. Why is this person here who’s not wearing a uniform? I believe the girlfriend drew a pistol from her purse, and it was only through a miracle that no lives were lost.
The truth of the matter is that happens, and it doesn’t just happen sporadically. Again, the more we over-criminalize, the more we trivialize the concept of crime, the more we put police officers in a position where they have to make a decision. Do they turn a blind eye, or do they just enforce all the laws evenhandedly? People are going to run away from police from time to time, or they are going to resist orders to stop and come and talk to the police. Sometimes, they’ll do so for motives that we would not sympathize with, and other times, they’ll do so for motives that you absolutely sympathize with.
The thing to be aware of, unfortunately, and most of us are already aware of this if you’ve been reading the news at all for the past year, is how quickly these situations can get out of hand. And particularly, when people who do not belong there enter someone’s home by force without having to knock and announce themselves as members of law enforcement, but just to come barging in, things can get very, very tragic very, very quickly when we allow people who do not truly belong inside a home to enter of their own volition. It has happened before in the past, and it will certainly happen again in the future.
And as I suggested during some earlier remarks, my concern is that the members of the Supreme Court do not seem to have sufficiently updated their perspectives, both about the propensity for those kinds of tragedies and also, frankly, the fact that in this day and age, there can be perfectly legitimate reasons for people to try to evade members of law enforcement, even when they understand that the person’s trying to make an arrest and perhaps even do so lawfully. Maybe 50 years ago it was very difficult to imagine somebody running from a police officer for any sort of a valid reason. Now, I think it is entirely plausible to imagine people doing that, at least, in some situations.
Larry James: This is Larry. I would agree there are some policy considerations. I think representing law enforcement all these years that there are certain instances where there would be better professionals responding to certain type of situations, such as individuals with mental illness and other related situations.
But this case will not go to the case where a parent called the police officer. The police officer shows -- the parent called the police officer because her son is off his meds, and he’s naked in the street, and it just leads to bad situations. Those are major policy issues and decisions that are collateral, at best, as it relates to this case.
I know in Ohio, where I live, our Supreme Court has been pretty specific. It’s been very consistent about this issue that was presented to the court, and officers have that right. Is it a perfect system? No, it’s not. But these type of issues where you have a warrantless search, you have many defenses to those warrantless searches, and if they are not legitimate, you’re going to end up in a lawsuit.
I know the issue of qualified immunity was thrown out there, and that’s a subject that we’ve talked about before. But I think on this case, I’m not sure if all those issues that have been raised are germane or legitimate as to the court’s issue. Whether the courts are old school or looking at the common law theory or not, I think it’s going to sustain a conviction. And I think it should. Thank you.
Evelyn Hildebrand: Great. I wanted to give you this opportunity among yourselves if there are questions that you’d like to ask each other or areas of your previous remarks that you’d like to expand on, please feel free to do so at this time.
Larry James: This is Larry. I think it would be interesting for each of us, since we obviously have some very strong feelings about this case and what that outcome should look like. How would you decide it? And from a policy standpoint, are you going to issue a blanket decision that prohibits misdemeanant pursuits into the home, or where are you going to draw the line? Because that’s what the court’s wrestling with, and I think that’s what people are interested in, and I think that’s what this case is really all about.
Clark Neily: That’s a great question. Vikrant, do you want to take a first crack at it?
Vikrant Reddy: Not really, but I will. I suppose it’s really, really difficult. I don’t envy the justices here. Part of me wants to say, look, just don’t even try to draw a categorical standard here and continue to do these on a case-by-case basis. The amicus arguing in defense of the lower court decision said, “Look, you are going to invite a flood of endless constitutional litigation if that happens.” I don't know. To some extent, we already have a lot of that. I don’t know that it could get much worse. That might be what I would prefer. That was Mr. Lange’s argument in the case today.
I could maybe see an argument for allowing police officers to enter the home in a very small number of cases, and the distinction wouldn’t be misdemeanor versus felony. Maybe it would be something like violent versus non-violent, and also, risk of evidence disappearing versus no risk of evidence disappearing. That’s just some initial thoughts. But I’m not too married to any of that, to be honest with you. What do you guys think?
Larry James: Let me follow up on that. Would you put jail time, incarceration, as the penalty as a consideration?
Vikrant Reddy: What do you mean by that, Larry?
Larry James: I can’t remember what justice it was, and I think he was talking about Massachusetts. He said the penalty for violating this statute is 11 months, and it wouldn’t reach the 12-month threshold. You remember that exchange?
Vikrant Reddy: Yeah, yeah. I remember now. I don’t know if that’s a workable standard to expect that the members of law enforcement know all of the potential legal penalties that would attach to the thousands upon thousands upon thousands of crimes out there.
Larry James: Right, and I think that’s my point. So when you look at whether it’s a misdemeanor or a felony—and that’s why I don’t think you can make that distinction—I thought when he started talking about jail time, that clearly went in the abyss. So that’s why, I think, they will not go down that rabbit hole.
Clark Neily: This is Clark. I’ve got to say, I think Larry’s right that the court is likely to hold a conviction in this case and come down relatively on the side of the government. And I’m not going to take a strong position that that’s wrong because I do think this is a very challenging case and probably a close call. That being said, I think that there is a tremendous amount at stake for the citizen when we allow armed agents of the state to enter the home by force without a determination on the part of an ostensibly neutral magistrate, that whatever it is that they’re after is sufficiently important to overcome the sanctity of the home.
You said there are about 13 million misdemeanor cases that are processed every year in this country. My own perception is that most of those are relatively trivial cases, where society really doesn’t have a great deal at stake. Most of those cases end up being resolved through the payment of a fine. I think a lot of this is about revenue raising. Not all of it, but a lot of it’s about revenue raising.
So my perception is that the state rarely has a great deal at stake in the pursuit of any particular misdemeanant. Of course, they will sometimes. Somebody who’s driving drunk down the road certainly puts others at risk, so I’m not saying that it never happens. But on balance, I think the state generally has a relatively low interest in pursuing and apprehending the average misdemeanant immediately in the moment, whereas I think there’s a tremendous amount at stake for individuals who have reached the sanctity of their home in allowing police officers to enter the home by force and against the will of the people who live there.
And so I would come down on the side of saying to the government, if you really think it’s that important, put your money where your mouth is. Go get a warrant. If you need to summon some additional officers to put a perimeter around the dwelling, then do that. But if it’s not worth the trouble of getting a warrant, if it’s not worth the trouble of hanging around until you have been given permission by a magistrate to enter the home and continue your business, then it seems like maybe there’s not all that much at stake, and you should just go on about your business. But that’s certainly my inner libertarian talking. I recognize that.
And I think both as a matter of doctrine and just realpolitik, it is likely that the court will come down in this case some distance away from my personal preferences. And I don’t even want to make the case that -- I’m not making a strong case, but I think the Constitution compels the result that I’m talking about because there is a collision of some really, really challenging and conflicting values here.
But I would prefer to see the court place relatively greater emphasis on the security interests of people inside the home and lesser weight on the interest of a state that has utterly trivialized the whole concept of crime, including misdemeanors, and make the state put its money where its mouth is. If it really wants to apprehend somebody, it can wait a little bit until it gets a warrant.
Larry James: This is Larry. One of things that fascinated me about this case were the facts. So the officer puts his foot under the garage door, and it goes back up. He enters. He has a conversation with the individual. He asks for his driver’s license, his registration, and asks why he was playing the loud music, blah, blah, blah. The individual did not say, “I exert my fifth right. You need to go get a warrant. I’m not leaving.”
The individual actually cooperated, stepped outside, and when he stepped outside is when the officer actually placed him under arrest. And I’m wondering if that narrow fact that no one talked about would’ve made a difference if the individual had not cooperated and had not stepped outside of his home. But I thought that was a little curveball that no one picked up on. So the decisions will probably come down -- usually about six months on this case, you think?
Clark Neily: Yeah. I think it depends, honestly, on how many different justices end up writing. That tends to extend the time a bit. Of course, we expect the court’s term to end in June as it normally does. I’d be somewhat surprised if they end up holding this case until the very end of the term, so I tend to expect to see a decision in this case more in perhaps the April/May timeframe. But again, if the justices end up all over the map, as they very well could, then it could be one of those cases we have to wait until the very end of the term.
Larry James: Justice Sotomayor seemed to have an idea, and she may end up coaxing the court one way or another, because I think she was the most definitive of the justices in offering up what she thought might be a solution. But, again, I think she was siding with California and giving law enforcement the discretion to pursue certain things with certain limitations.
Vikrant Reddy: Whenever the case comes out, one thing that I think will be fun is that I really doubt that this outcome is going to fall along traditional partisan lines. The criminal law cases sometimes can be scrambled in ways that surprise people. I suspect this case will be the same way. I could, for example, maybe imagine Sotomayor and Gorsuch being on the same side of the case.
Larry James: Yeah. I agree. I agree on that. It was interesting, Thomas was very active. He did not pass on any questions and presented, and he seemed to be stuck in the common law theories and what guidance we could take from that.
Clark Neily: Any port in a storm, I suppose.
Evelyn Hildebrand: All right. Thank you very much for this discussion. We are approaching the hour, so I want to give you an opportunity to just make a closing remark before we close.
Vikrant Reddy: Same order?
Evelyn Hildebrand: Sure, same order.
Larry James: Well, all right. Okay. If we go in the same order, then I’ll go first and just say that it’s a difficult case. It’s a challenging case. I’m not sure how they’re going to decide it. I’m not sure that I know how they should decide it, but I think that the broader policy issue that emerged from the case was about overcriminalization, and just the enormous number of criminal laws in the books. And whatever the court does here, I think that legislatures and Congress need to step up and reverse the overcriminalization problem.
Clark Neily: This is Clark. I agree, no surprise. I want to emphasize a theme that I noted several times throughout the conversation, and that is that I do think that there’s an increasing gap between the justices on the one hand and the general public on the other in terms of the perception of where things stand with law enforcement. I think that the court has been quite protective of the prerogatives of government and particularly of law enforcement when it comes to their interactions with citizens.
My sense is that that is now increasingly out of step with what ordinary people perceive, and desire, and understand as what our Constitution guarantees them in terms of its protections. It is an extraordinarily difficult issue to fine tune and to get right, but I think it matters tremendously that in these close calls, or these cases that represent a close call, that the justices at least have an accurate perception of how the general public is moving.
It doesn’t mean that that dictates the outcome, but I think it should at least be a factor in how the court assesses the various competing dynamics that we discussed in this case and the weight that it gives to the interest on both sides. And they are significant interests. The state certainly has an interest in enforcing its own laws and having its authority respected. People, of course, have a strong interest in their own safety and the security of the home in which they live.
Larry James: This is Larry. Lastly, I don’t disagree that we need to revisit some of our laws, and we’ve seen that in the marijuana area and the decriminalization around the country on that point, but I would hope equally concern with everyone is the peculiar situation that law enforcement find itself.
If the laws are on the brook, and the officers are to observe, and the officers are to decide what laws to enforce and what laws not to enforce, they’re going to find themselves administratively disciplined from time to time. So if you’re going to fault law enforcement, understand that this is not the bed that they made. This is the bed that they’ve inherited, and they are required by law to enforce those.
If the speed limit’s X, and someone’s going 1 mile over, or 5 miles over, or 20 miles over, let’s articulate and say these are the rules. And if the rules are on the brook -- when we look at the situation that came out of Minneapolis, that provision technique had been on the books for 20 years. I’m not justifying it. I think it was a horrible situation. I would’ve audited it. I would have those laws and those techniques off the books.
But law enforcement finds itself -- you talk about an arcane situation where justices might find themselves, this is law enforcement realities, the dos and don’ts, and the consequences of those, and I think that’s grossly unfair. Thank you, everyone. I appreciate having the opportunity to be a part of this program.
Nick Marr: Hey, this is Nick from FedSoc. Thanks all for joining. On behalf of The Federalist Society, I want to thank you for the benefit of your valuable time and expertise this afternoon, also to our audience for calling in and their good questions. Just a reminder, keep an eye on your emails and our website for announcements about upcoming teleforum calls and Zoom events that you can register for. We’ve got one coming up tomorrow, a couple of events, actually, so check out the website for more information about those. And with that, thank you all for being with us this afternoon. We are now adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.