Advisory Opinions - Hot Pursuit

Episode Date: March 2, 2021

The Supreme Court heard oral arguments last week for Lange v. California, a Fourth Amendment case that will determine whether a police officer’s hot pursuit of a person suspected of committing a misdemeanor counts as an exigent circumstance to justify the officer’s warrantless entry onto the suspect’s property. In today’s Supreme Court heavy episode, Sarah and David also talk about two other cases dealing with hostile work environments and whether women should constitutionally be required to register for the draft. Show Notes: -Lange v. California oral arguments and transcript. -National Coalition for Men v. Selective Service System cert petition. -Robert Collier v. Dallas County Hospital District cert petition. -Rostker v. Goldberg. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Enterprise. For lives and drive. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. Really interesting Supreme Court oral argument, police chase case discussion to talk about. It's like a Michael Bay movie, but over 130 pages of oral argument. I will tell you this, Sarah. I've seen probably every Michael Bay movie ever, and I've never seen one with facts this boring. I think it's exciting. Well, the underlying facts of the case are super boring,

like not Michael Bay-like. There's not an explosion here. We could add one. There's not a gun battle. There's no asteroid hurtling to the U.S. or to the world. It's a very boring fact situation that results in a super interesting discussion about encounters between police and citizens with some really interesting alignments. But we're going to get to that. And then we're also going to talk about, as we've long promised, hostile environment harassment, a fascinating case going to the Supreme Court that is going to try to resolve an issue regarding the use of racial slurs

that we're going to use to talk about, basically, workplace harassment more broadly and what it really is and how we often misidentify it. And then the last thing we're going to talk about is should women constitutionally be required to register for selective service for the draft if the U.S. is going to require men to register for the draft? So this is just an all-law advisory opinions, Sarah. I'm pumped. It's going to be. I mean, it's going to be a good one. It's going to be a good one. Okay. So how about this? How about if I set up the facts of what happened in our case and we don't know, we just had a whole discussion beforehand. Is it Lang v. California

or is it Lange v. California? L-A-N-G-E. And this is one of the perils when everything you know about a case is by reading the case. I guess we could have cleared it up in nine seconds by listening to the oral argument transcript rather than reading it. Well, sure, when you say it that way. We will hear argument this morning in case 2018, Lang v. California. morning in case 2018, Lange versus California. We have done an instant oral argument transcript fact check or oral argument recording fact check, and it is Lange. Well, that doesn't actually mean it's Lange, but it means that we're going to say it Lange. As we know, the court has actually often mispronounced party names as well. And so these things end up being ambiguous through time. But we'll go with Lange as the chief did.

Yes. All right. So here are the facts. Case begins in 2016. So here we are in 2021, which I'm going to repeat my old lawyer's joke, Sarah. The great thing about America is that everyone gets their decade in court.

But so case begins in 2016 lang is driving his car near his home in sonoma california i'm getting this summary from the very helpful scotus blog amy howe former friend of the pod scotus blog former guest um he's playing loud music and honking his horn an An officer sees this, follows Lang into his neighborhood, tries to stop him as he gets near to his garage. Lang, who said he didn't see the officer, continued into his garage and began to close the door behind him. The officer parked the car in the driveway,

put his foot under the door to block it from closing, walked into the garage, said he smelled alcohol, gave Lang an alcohol test. His blood alcohol was later determined to be three times the legal limit. So Lang is not taking this lying down. So now you see why this was no Michael Bay movie. It was like the most casual seizure you can imagine.

No, let's... David, I don't think you were doing it right. Okay, so, Lang is driving down his street at a relatively reasonable speed. And then, a hundred yards from his driveway, a police officer turns on his siren.

For a hundred yards, the police officer stays behind Lang as Lang continues to drive at a reasonable rate of speed, with his music blaring loudly. Then Lang casually pulls into his driveway. The police

officer pulls up behind as the door is shutting. It is almost to the ground. The police officer's foot comes underneath and triggers the motion sensor. Is that better? No. No.

Okay, but the point is, Lange is then charged with two misdemeanors. Driving under the influence, which was a misdemeanor in Sonoma, and playing music too loudly, which is actually an infraction, not a misdemeanor. There's infractions in California that don't even comeraction, not a misdemeanor. There's infractions in California that don't even come to the level of misdemeanor. So one infraction and one misdemeanor is what he is charged with. He does a motion to suppress under the exclusionary rule, the idea being that if an officer violates your Fourth Amendment rights, the remedy for that, we all, I think now take for granted because we've watched a lot of Law and Order and various police dramas, is that we exclude that evidence against you. That is not, by the way, in the Constitution,

and it is not something to take for granted. You could have civil fines or something against the officer or the police department that allows such things, such as we do with other civil rights violations, BT dubs. But anyway, we do the exclusionary rule for the Fourth Amendment. So he has a motion to exclude. And that's more or less what we're up upon. He is convicted, by the way. He loses his motion to exclude. But that's really what we're talking about here. Was there a Fourth amendment violation where that should have been excluded at his trial? And one of the key issues is, wait a minute, they were quote unquote chasing him, although it's the most boring chase ever. And let me just, I fully endorse your reading of the facts as Michael Bay-esque, but here's how it'd have to end. Lange, in despair over being seized in his own home

for the mere offense of committing an infraction and a misdemeanor, looks up into the sky to pray and there he sees it, the asteroid that could spell the doom of humanity. So that's how it would set up okay i can i can accept that um i also really want to just spend 10 seconds talking about how like

curtilage because i like saying curtilage so right there in his garage which is like only kind of sort of part of your home so your your porch, certain types of garages, a carport, et cetera, are considered your cartilage. They're not part of your home, your true castle of the castle doctrine. But they're, you know, like in this other area, an intermediate scrutiny, if you will. And so he's sort of in a cartilage aspect here, I think, with the garage. and so he's sort of in a curtilage aspect here i think with the garage yeah and so setting this thing up you had multiple uh multiple uh advocates arguing in this case you had the biden administration intervening through the solicitor general and this is very interesting to me taking a quite law and order position here, one that is not exactly what you would expect from all those who said

that Biden was going to be, you know, Mr. Defund the Police. This is, he takes, the Biden administration takes a quite law and order perspective, but one of the, there was multiple sort of strands of this argument, but sort of one of the core issues was, wait a minute, if it's only a misdemeanor he's suspected of committing, why are you going into his house without a

warrant? And can we draw bright line rules that say, for example, if you're chasing someone over a misdemeanor, well, that's not going to allow you to walk into someone's home if you're a police officer without a warrant or to break into, you know, bust you to walk into someone's home if you're a police officer without a warrant or to bust down the door into someone's home if you're a police officer. Should we draw a bright line rule or is it not appropriate to draw a bright line rule? What should the rule be? for multiple obvious reasons, including when do we want to grant that ability of the state to enter your home without consent in situations that are often quite fraught with high degrees of confusion and uncertainty. And I'll just start with you, Sarah. What was your first couple of

sort of standout takeaways from the oral argument? Well, obviously I had to divide the whole thing into buckets of potential outcomes. I should have led with what were your buckets. Yeah. Yeah. So obviously I'm going to lead with what were my buckets. I do want to mention, so there's four attorneys that argue this. It's why the oral argument, if you want to go read it as 130 pages long, it's very long. So you have the attorney for Lange. You have the attorney for the state of California, for the California Attorney General's office. Then, because nobody wanted to take the position that all misdemeanors can qualify as hot pursuit, no Fourth Amendment problem with warrantless entries, they appointed an attorney

to argue that position. They are called an amicus, same as amicus briefs, for instance, because friend of the court covers all sorts of types of friends, friends with benefits, friends you only see casually on the weekends. So Amanda Rice was appointed as the amicus for this, and she is a former law clerk to Justice Kagan. This happens pretty frequently, and it's kind of fascinating when it does. They will generally pick a former clerk of theirs, and it's considered a high honor and a big deal. It usually goes to a younger attorney, you know, not like fresh off the clerkship or anything, but someone who maybe is not even particularly close to the level of getting a Supreme Court

argument in their big law practice. So good on Amanda Rice. She did a fabulous job, I thought, with a pretty hard position to take. The reason you're appointed as amicus is because nobody else wants to take that position. So extra points to her for executing that well. And then, of course, the Department of Justice, like you mentioned. All right. So we have four attorneys and I'm going to pick out three buckets for us to talk about David, uh, potential outcomes here. One of the buckets has several sub parts in it. So wait, I know there's subdivisions within my bucket. Okay. Okay. I've not seen many buckets with subdivisions. There's like a little tripartite within your bucket.

Like it divides it. Like you put it into, of course, like popcorn. When you get those popcorns, that's a bucket of popcorn. And then it's divided into the caramel popcorn, the original popcorn, and the cheddar popcorn. How about this? Your bucket is filled by several cupfuls of legal liquid. I like my popcorn. Okay.

Okay. So bucket number one. I like my popcorn. Okay. So bucket number one, hot pursuit alone is what justifies warrantless entry. So this was sort of the unpopular bucket, right? This is Amanda Rice's bucket that it doesn't matter whether it's a felony or a misdemeanor. If there is a hot pursuit, you can make a warrantless entry period. There was a little bit of a discussion over weather. Like, okay, fine. That's a great, bright line to draw. But Alito, and by the way, if that's the line, this is the only bucket in which Mr. Lange loses his case. Right.

But even there, Alito sounded very tempted tempted by that bucket except basically you have nine zero you have nine justices who don't think that this evidence should have been admitted against laying so you're going to be up against the facts which we've talked about plenty right like the facts make the law these are good facts for mr laying i mean 100 yards. So Alito's point on this bucket is, okay, maybe all hot pursuits should qualify, but we also should ask whether this is a hot pursuit and it's not. There's nothing hot about it. There's arguably not a pursuit. 100 yards with your lights on where no reasonable person and certainly not a reasonable drunk person would know that they were being pursued, cannot a pursuit make.

So that's bucket number one, where Lange loses, except with the Alito. Even if we do this bright line, this case doesn't fit into it because we still have to make sure it's a hot pursuit. The problem for Justice Alito is that the lowest court, the trial court, found that it was a hot pursuit. So you'd sort of have to send it back with a weird, weird thing. But Alito disagrees. He says that it's very much before the court of whether this is a hot pursuit.

So suck it, trial court. Yeah, and the phrase, just to interrupt real fast, that phrase hot pursuit, in layman's terms, sort of communicates like the chase on the freeway. In legal terms, a hot pursuit is, yeah, OJ. In legal terms, a hot pursuit is a pretty broad definition. It's much broader.

The main case about hot pursuit is the Santana case from the 70s, where Santana is sitting in her doorway with the door open, dealing heroin, basically. And the police kind of approach and Santana moves from her doorway into the main body of her house and the police follow her. That was a hot pursuit.

Right. Yes. So this was... And by the way, why your doorway was considered not part of your home, I'm not sure how that would go today, but the idea was if your door's open and you're doing, why your doorway was considered not part of your home, I'm not sure how that would go today. But the idea was if your door's open and you're doing business in your doorway, you open that up to the public. You no longer have an expectation of privacy.

And that's the curtilage conversation that we sort of were having. And note how the expansion of hot pursuit definition involved a drug case. It's true. You're right. Okay. You're right. Okay. Buck're right. Okay, bucket number two.

In order to have a warrantless entry, you have to have hot pursuit plus a felony. Lang wins in this case because obviously he did not have a felony. He had a misdemeanor and an infraction. Literally no justices liked this rule. Zero votes as far as I can tell for this because the distinction between misdemeanor and felony is completely made up. You know, in some states, something will be a felony,

something will be a misdemeanor. I thought the best example was, you know, a third DUI is a felony, but a first one is a misdemeanor. And how is the officer supposed to know while he's pursuing you, whether this is your third one or only your first one? It's an unworkable bucket, but nevertheless, the bucket exists. So here's the popcorn bucket with our three types of popcorn. of popcorn. This is that actually there is no hot pursuit doctrine by itself, that the doctrine is actually exigent circumstances, and that within the exigent circumstances bucket, you could have different versions of hot pursuit meeting the standard of an exigent circumstance. One, for instance, a hot pursuit where violence is likely part of the underlying crime

or part of what's going to happen if you don't pursue, let's see, our caramel corn, just case by case, it's just totally up to the officer, not legally speaking, but the officer is simply going to have to decide whether this meets the exigent circumstances test. And we're not going to provide any guidance, really.

Or three are cheddar popcorn. This was the Department of Justice's position that if you're in hot pursuit, there is a presumption that that's an exigent circumstance. It doesn't mean that it always will meet that, but we will presume that by the fact that you're fleeing, that that gives rise to an exigent circumstance. In which case, by the way, this would probably be the one outlier, right? Generally speaking, a hot pursuit would meet the exigent circumstance, but not in this case. Obviously this was not an exigent circumstance to meet that. I don't think this is a close call, David. I think that we're going to be in this bucket. The only question is which type of popcorn we're picking, but we're definitely eating popcorn in this case.

Yeah, I mean, I broadly agree with you. And I think, again, to talk about definitions. So hot pursuit has a legal definition that's a lot broader than the term would tend to indicate. Exigent circumstances, it's a very similar. So exigent would seem to be, well, there's something really, truly exceptional going on. And here's a pretty common definition of exigent. Circumstances that would cause a reasonable person to believe that entry or other irrelevant prompt action was necessary to prevent physical harm to the officers or other persons. Okay, that's something that you would think, well, that's definitely exigent. The destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

Well, an escape of the suspect sort of by definition, like, well, I was pursuing them. I didn't get them. Now they're in a house, so they escaped, so i can go into the house exactly exactly and so you know it seems like it seems as if you would as i'm reading it and tell me if if you disagree and i think you have 90 for something that says under these facts under these specific facts of the case, that there weren't exigent circumstances, which would be a slight, maybe tiny narrowing of the exigent circumstances doctrine, but there wasn't probable that this is an unreasonable seizure under these specific

facts. Going beyond that, I honestly thought Kagan made the most sense. Ooh, say more. And so Kagan was the one who really started to hone in on the violent or not violent distinction. Alito was interesting in sort of, can we talk about what hot pursuit really is? But so Kagan is, you know,

where Kagan honed in, which I think was really interesting, is that, look, the misdemeanor felony distinction, as you note, is kind of arbitrary. And in fact, isn't actually a stand-in for danger. It's not a felony. A felon is not always somebody who is more dangerous than somebody who commits a misdemeanor and you know as as amy howell points out very well that uh and and as kagan points out for example there are some domestic violence offenses that are misdemeanors whereas most white collar crimes are felonies and so so domestic violence involves violence. Would you need to be screaming down I-65 here in Nashville, we've got an accountant who cooked the books in a

2015 Camry? In that circumstance, is that a situation where you're going to just go, you know, barging into someone's home as opposed to a situation where you might have a domestic violence situation that is a misdemeanor, but the important, the most relevant issue is violence. amendment um you know that the text is dealing with unreasonable searches and seizures uh you know a violence non-violence distinction makes a lot of sense but then of course you had gorsuch coming and helicoptering in with his sort of idea that says wait a minute um you know in the founding era you're not barging in on a misdemeanor um and you know he asked specifically asked rice why would we create a rule that's less protective than what everyone understands the case of the fourth amendment as an original matter which was a very interesting sort of gorsuchy intervention but of all of the back and forth between the justices about what about this and what about that and what about this and what about that. I thought the Kagan and the violence versus nonviolent distinction made a lot more sense than a lot of the other distinctions I heard, or especially a lot more

than, hey, we're just going to kind of leave this up to the officers and then, you know, kind of Monday morning quarterback it after that. Oh, I think we're going to leave this up to the officers and then, you know, kind of Monday morning quarterback it after that? Oh, I think we're going to leave it up to the officers and Monday morning quarterback it. So in other words, like the worst possible outcome other than Lange losing his case. I take I won't make any sort of normative thought on that, but I'll normative the heck out of that. So you have Kavanaugh taking this on directly. I thought everyone here concedes that even if there's not a categorical rule, the exigent circumstances doctrine would apply.

Is that correct? Yes. And then one of the exigent circumstances that I mentioned to Mr. Fisher was to prevent a suspect's escape. Yes. And that wouldn't necessarily always have what Justice Gorsuch was talking about

with respect to violence. It could, it might not, but I think everyone's conceded. In this case, you and Mr. Fisher are acknowledged. I don't want to put it pejoratively, but acknowledged that the law is that preventing escape is an exigent circumstance that would justify warrantless entry into the house. Correct? So you've got at least one vote on another one. And then you have Barrett basically saying the same exact thing, but in a way that I found so wonderful because David, one of my favorite phrases to use all the time. Uh, and you know what? I'm just gonna, I'm just gonna read the story because it's so much fun. And in case any of our listeners are not aware of it, it's worth a little cul-de-sac. You all right if I drive down the cul-de-sac?

I love a good cul-de-sac. At a slow rate of speed with my music blaring? Yeah, absolutely. So the anecdote goes that this was William James, who was a philosopher, psychologist, etc. Back in the day. This is, you know, old. Your theory that the sun is the center of the solar system and the earth is a ball which rotates around it has a very convincing ring to it, Mr. James. But it's wrong. I've got a better theory, said the little old lady. And what is that, madam, inquired Professor James politely, that we live on a crust of earth which is on the back of a giant turtle.

James politely, that we live on a crust of earth, which is on the back of a giant turtle. If your theory is correct, madam, what does the turtle stand on? Ha, you're a very clever man, Mr. James, and that's a very good question, but I have an answer to it. And it's this. The first turtle stands on the back of a second, far larger turtle, who stands directly under him. of a second, far larger turtle, who stands directly under him. But what does this turtle stand on? Persisted Professor James. To this, the little old lady crowed triumphantly,

it's no use, Mr. James. It's turtles all the way down. And indeed, Justice Barrett said during the argument, why isn't it all then just exigent circumstances all the way down? Yeah. And I think that despite the Kagan-Gorsuch violence distinction, that there's too many exceptions to that. And the exigent circumstances, you know, world alone, that hot pursuit plus violence now lives under exigent circumstances. Exigent circumstances is going to eat that up so that it doesn't even mean anything in the end. And you're going to end up where I am anyway, David, which is this case-by-case exigent circumstances inquiry.

We already do it because it's the exigent circumstances doctrine. I think, though, that there's a reason that the justices wanted so much argument on this question that they really, I mean, they were struggling with this more than I think we've seen them struggle in oral arguments with far more, I don't know, philosophical problems. You had Breyer talking about, you know, the trilemmas and all the problems. You had Breyer talking about the trilemmas and all the problems.

It's because they know that they need to have a real thing here. This opinion needs to say something. And I think they are worried about a, sure, it's 9-0 for Lange, and that it's 27 different opinions on what officers should do, uh, in hot pursuit cases. Um, so I, I think this is actually one of the more fascinating, totally doesn't fall on partisan lines, at least in the oral argument.

And so we're going to sort of see the Supreme court at its best when this opinion comes out. And so I'm very, very excited about it. Yeah. You know, and it's also, it's also an interesting case that shows you just don't sit there and say,

okay, if I'm an originalist, then I know how everything's going to turn out. Oh, they tried. They tried. They tried. Many a question was, do you have any cases in common law? And each time they're like, no, your honor, like we don't have any. They tried. Many a question was, do you have any cases in common law? And each time they're like, no, your honor.

Like, we don't have any. Stop asking. We didn't come up with any in the last 20 minutes. And you begin to realize, for example, how much different the criminal code is now than it was in common law. And so it's not that you can draw these neat distinctions between felonies and misdemeanors and a current criminal code compared to common law for example in in one part of the oral argument the point was made then you know back in the day if you committed a felony you were basically subject to the death penalty and um wow yikes so in other words the severity of the offense was deemed to be

quite much more dramatic than what we label a felony today and then that's why i thought that i thought the kagan i thought the kagan violence and not violence such a dichotomy was particularly helpful in sort of giving to officers something concrete to pin decision-making on. Otherwise, it's exigent circumstances all the way down, and are they going to do anything really to the exigent circumstances doctrine to more narrowly and helpfully define it? And here's where I'm going to kind of dive into, sort of extend it beyond why this matters so much and why we would spend so much time talking about this. I mean, we just had American cities erupt in massive amounts of urban unrest and large-scale violence over police allegations of police brutality, over police killings, police violence. And one of the really critical issues here is under what circumstance is the are the police allowed to

escalate a situation under what circumstance are they allowed to sort of escalate the very real and physical stakes of the encounter between citizen and police officer this is a constant theme a constant theme and a lot of the most um most infuriating and most explosive police violence cases, they're getting a call not based on violence, but maybe a noise complaint, or somebody is seen walking through backyards, or somebody's asleep in their car in a drive-through line. I mean, all of these are real-life cases that have escalated under various circumstances

into deadly force. And those of us who are really concerned about this tendency that exists of seemingly innocuous encounters escalating into deadly force are beginning to ask themselves if a lot of these constitutional doctrines, like exigent circumstances, like hot pursuit, have been so broadly drawn that in

encounters with citizens, police have far more discretion than the Constitution ever intended them to have, or the text of the Constitution says that they should have. And this is, I think, a really important case for wrestling with this. And as you see, if you read through it, and we'll put the transcript in our show notes, they're working hard on this, and they're working hard on it both from an originalist perspective and also from a policy perspective. We haven't talked about Roberts. Roberts spends a lot of time talking about danger to police officers. All of his time, almost. Exactly. So he's talking a lot about,

well, wait a minute, what's the danger to police officers here? And you can tell that's weighing on him heavily, and he's leaning towards rules that are going to minimize the danger to the police officer and doesn't seem to be indicating that there's any real danger to the suspect. And that's something that I think is, you know, where, you know, one of the things that we need to be aware of, and this might inflame a few listeners, is that there's in police encounters that maybe shouldn't escalate, the dangers run both ways. in police encounters that maybe shouldn't escalate, the dangers run both ways.

These dangerous situations run both ways and granting police maximum discretion to grab a citizen, often in confused circumstances, is not something that is by default going to ease danger. And I would have liked to have seen sort of more exploration of that, but I thought that that was very interesting to see Roberts focus so much on the perceived danger to police.

you know oh it's a woman who's afraid at night oh it's a teenager who wants you know who's afraid and wants to be closer to their parents and so they run back into their house the police officer doesn't know those things and so i found those hypotheticals that were brought up during oral argument to be totally unhelpful and at times irrelevant because this always has to come from the perspective of the police officer, including whatever rule the court hands down. The rule can't be that each potential fleer, oh, well, you can flee if you're a woman who's afraid because it's late at night and you don't know that this is a police officer. That's not what this is going to end up being. So I thought from an advocate perspective, that was a huge mistake that they allowed themselves

to go down that road, except, and again, I will compliment Ms. Rice, the Caden clerk who was appointed to argue her sort of extreme position. But she said something that I thought was spot on. The justifications for the exceptions relate to the suspect's flight, not the nature of his initial crime. He claims that officers must point to exigencies other than a hot pursuit, even in felony cases. At least there, she's, I think, making an important point. This idea that violence in the underlying crime is relevant, there's all sorts of reasons that someone may grab a gun in their house because they don't want to be arrested. Maybe they've done something else, then the officer doesn't know about that thing. The officer thinks they're pulling him over for

a taillight. But in fact, there's a whole bunch of, I don't know, uh, you know, heroin in their house or something. The violence is in the officer's reasonable state of mind, not the, the person fleeing and not from the initial crime. Uh, I do have, there wasn't like any humor in this argument, uh, for obvious reasons, but there was a moment that I found quite funny. And it also is from Mrs. Rice's oral argument,

uh, justice Thomas, one last question with respect to the common law. This is like all of justice Thomas's questions in this were like written by a justice Thomas AI bot. Um, so if we should create a Justice Thomas AI bot Twitter account. It wouldn't be hard. If we think that there is some doubt as to whether or not common law favors you,

or if we think it actually disfavors you, what should we do? Miss Rice. Like in Atwater, this just isn't a case where there was a clear answer that existed in 1791 and has been adhered to ever since. So like an Atwater, Justice Thomas, other modes of constitutional analysis, like the traditional interest balancing we've been discussing today, should control. This is like after three different times of Justice Thomas asking her like what her originalist argument is. Finally, the Kagan clerk is like, originalism ain't going to help you here. Move it along, buddy.

I thought it was a bold answer to basically say like, okay, I'm not going to get your vote. That's fine. I'm moving on. That's fascinating. You know, one thing that is interesting to me about the roberts line of questioning the danger line of questioning is it there is an awful it feels to me that a lot of jurisprudence is centered around guarding against worst case sort of taking the police and sort of saying we're going to create a jurisprudence that gives you the tools to deal with worst case, as opposed to a jurisprudence that says we're going to bind you to the most likely case. In other words, how many people are chasing someone who honks their horn and has music too loud? How many times is that going to result in an ambush, an armed ambush at the home?

The odds of that are vanishingly low, like vanishingly small. Well, yes and no. I just want to challenge you on that. One of the most dangerous things an officer does is pull over people on the road, oftentimes for missing taillights or for playing their music

too loudly. Many of the officers who are shot in the line of duty, it's a traffic stop. So yes, I understand that we're now talking about someone going into their home, but I wouldn't underestimate it. The odds are vanishingly low in any given traffic stop. I mean, that's the point is what you're talking about is yes, in theory, and one of the ways that training is done for police officers is they are taught possibilities, not probabilities. And so this is something that we dealt with a lot in Iraq in do you make your tactical decision on the basis of a possibility or a probability? And that was the way a lot of our rules were fashioned, was based on probabilities, not possibilities. And so, you know, one of the

issues is when you're going to say that we're going to allow maximum discretion based on a very very low degree of possibility, that's where I begin to have some issues with that kind of thinking. And if you look at the sort of like, what are the most dangerous jobs in America? A lot of people would say, oh, the most dangerous job in America is a cop. And that's not true. That's actually pretty far from true. And so it's one of the things that I think that we've done is we've sort of taken this notion of the danger of policing and we've enhanced it in our minds beyond what the facts suggest and based on that enhanced perception have granted an immense amount of authority in the moment to police. And that's one of the things that I question the wisdom of. And it's one of the reasons why doctrines like hot pursuit are so broad or exigent circumstances are so broad. Anyway, that's a much longer discussion. And it's one that's very relevant, I think, into the police training,

much more than the doctrine into training. And it's fascinating for me to see some of the differences between military training and counterinsurgency operations as opposed to police training and domestic policing operations. And the military training in counterinsurgency operations often teaches greater restraint than police training and domestic policing operations. But that's a whole other discussion. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com.

Tennessee sounds perfect. Speaking of the military, how about that draft? How about that draft? Yeah, let's talk military. So your idea, let's just cut to the chase, is what we're about to discuss legally

isn't really going to matter because the Supreme Court's not going to take cert in the case. Yeah, so this is right now matter because the Supreme Court's not going to take cert in the case. But... Yeah, so this is right now up at the Supreme Court on a cert petition brought by the National Coalition for Men. The lawyers for this are Hogan Lovells, which is a well-respected law firm,

and the ACLU. I just want to repeat, this is the National Coalition for Men, formerly known as the National Coalition of Free Men. If you're wondering where you've heard about this group before, they've been around a long time actually. Interestingly, David, the Southern Poverty Law Center has characterized them as an extremist group. But most recently, do you remember the just horrific story from several months ago of the federal judge whose son was killed and whose husband was shot when a man came to their door posing as a delivery man? Yes, terrible.

That guy was kicked out of this group five months ago. I'm sorry, five years ago and a week before that judge was shot the vice president of this group was also murdered by someone posing as a delivery man which they now assume for the most part was the same assailant and he was killed at least according to some of his friends in the organization, over this case because the murderer, who took his own life, so we're never going to know the full story, but was found with notes about this guy and about this case in his car where he killed himself. he was jealous. He wanted to be the one, he thought this was his issue. And he was upset that the national coalition for men with this vice president, who we thought was sort of the driving force was bringing this case without him and without his help. So this case has a really tragic background at this point. I, you know, going up on a cert petition that's interesting is all fun. I, yeah, I don't

know where the four votes are to take this case right now. It doesn't have a whole lot of far reaching implications. They are correct that this is one of the only areas of federal law where there is still explicit distinction between genders, but also kind of, so what? No one believes that there will be a draft anytime soon. Right. Yeah, I mean, that's absolutely right. I can imagine if I sort of put on my pessimistic future dystopian hat that in the one area where we would have a draft, Sarah,

is a land war in Asia. That's the one area where we'd have a draft is a land war in Asia. And what is our emerging primary geopolitical rival? It's, of course, China. So I could imagine a time period, say, if we're in something approximating a Cold War with China, something along the lines of what was contemplated, a kind of confrontation that was contemplated against, say, the Soviet Union in Western Europe in the mid-1980s, a draft would be far, far more relevant. But you're right. I mean, it's not relevant right now. And if that does happen and we use the draft, then this lawsuit will be filed

three hours after the draft is instituted and the Supreme Court will take it. So what they're asking them to overturn is a case called Rosker v. Goldberg from 1981, which upheld the gender distinctions in the Military Selective Service Act in large part, if not wholly, because women were not allowed in combat and the government said, this is for combat positions. We need it for combat. Therefore, it doesn't matter. We don't need women in it. It's fine to have this distinction because there's a distinction in the Uniform Service Code.

That, however, changed in 2013, David? Roughly. Yeah, I can't remember the exact year. In 2013, the Department of Defense lifted the ban on women in combat, thus, you know, massively undermining this 1981 roster B Goldberg case. Okay, I get it.

I'm not saying that this isn't a well-brought case in a lot of ways, but there's a who cares problem. Right. Yeah, it's an interesting case from the standpoint of, yeah, as you were saying,

it's one of the last sort of solidified within law legal distinctions between men and women. There's an interesting sort of aspect of this that I think is under-discussed. And that is, what kind of pool of eligible young people do we have in the United States? When I say eligible, people who are fit for military service. And I mentioned this in a previous podcast, but what's really interesting and troubling is we, again, not immediately, we have the most lethal and powerful military in the world. As of this moment, anyone who would try to directly challenge us that is in a force-on-force confrontation. That's a bad idea. But if you fast forward in the future,

those realities might change. But one of the things that we have seen is a decreasing number of American young people who are fit for service, who, if they were called up, would be eligible to serve. And I think that if you're talking about a future situation where there's a massive national emergency, that would be a big part of the dynamic in play is, do we have enough people that we can draft who are fit for service? that we can draft who are fit for service. And one of the other things is, okay, very few women right now who are entering into combat arms training,

there are very few women relative to men who entered into combat arms training and make it through combat arms training. Some do certainly in land combat, but many do not. If you've got a problem with the number of people who are fit for service, and you have far more people in support roles than combat roles, there's going to be some really interesting questions about whether, as a matter of national, vital national security, you're going to want to be drafting a lot of women, even if they're not going to be infantry, to free up more men to be infantry

who have the physical capability to go through the training. It's a fascinating question for some time in the future if the strategic posture changes. Maybe just for funsies. But I think with all of the other conversations going around with Bostock, which was the case about sexual orientation and gender identity discrimination,

I just don't see them saying, you know what will be super fun and random guys? What if we hear a case about the draft? Right. And then there's also the underlying reality that this is the area in which the court is most likely to defer to the political branches of government. Also true. Yeah. National security. I mean, I'd be curious whether the Biden administration would really fight to not include women in the draft. I'm sort of surprised it hasn't already just happened from a policy standpoint instead of a legal standpoint.

I think that is far more likely to just happen because, you know, why the heck not? Well, I think the probably last priority of any American administration would be raising the possibility of a draft. Well, that's an interesting point, I suppose. Of all of the things that we're going to deal with, while we have the most powerful military, arguably in the history of the world, we're going to talk about conscription. Although I think a democratic administration that is seen as somewhat dovish, set aside what happened in Syria last week, would be well positioned to say this has nothing to do with the draft. This is everything to do with equality in our country right now at a time where we are grappling with these issues as a society or something or other. Yeah. Yeah. But it's an interesting legal issue that, as you say, probably won't be decided. So in disagreeing with me, I feel like you've been very hostile

on this podcast. And so let's talk about what makes a hostile work environment. Did you like that segue? Was that a good segue? That's a fantastic segue. So in order for a work environment to be considered hostile under Title VII of the 1964 Civil Rights Act, harassment has to be unwelcome, number one. Number two, because of the employee's status in a protected class, that's what Bostock was about, by the way, or what are those protected classes? But we know race and ethnicity are a protected class, for instance. Number three, attributable to the employer. And number four, and this is where things get tricky,

severe or pervasive enough to change the conditions of employment and create an abusive environment judged by one, an objective standard, any reasonable person would find this conduct abusive, and two, a subjective standard, the employee themselves did find the conduct abusive. And so with that fun, very superficial walk down employment law, David, why don't you introduce us to this super fun case? Yeah, interesting, fascinating case. And this comes from, this is a cert grant or a cert petition to the Supreme Court, Collier v. Dallas County Hospital District. And the question that's going to be at issue is that, does the mere utterance of a particular offensive epithet create a hostile work environment, specifically here, the N-word, as to whether the single use, so here are the

exact questions presented, whether an employee's exposure to the N-word in the workplace is severe enough to send his Title VII hostile work environment claim to a trier of fact, to the jury. In other words, for the jury to decide whether or not it meets the standard. And whether in what circumstances racial epithets in the workplace are extremely serious incidents sufficient to create a hostile work environment under Title VII rather than non-actionable mere utterances. And under the facts of this case, this individual worked in a hospital, and the N-word was apparently carved into the wall. And despite Collier's multiple complaints to supervisors, he alleges his employer never did anything to remove the elevator graffiti. There were also SWAT stickers that were, you know, there was SWAT sticker graffiti. And so, but the real issue is the N-word. So the real issue is exposure to the N-word in that

circumstance sufficient to create a hostile work environment. And there's a circuit split on the issue. And this is what makes this incredibly likely to have cert granted. Like near 100% look for circuit splits. So people, Tom Goldstein, for instance, comes to mind, Amy Howe's husband, formerly mentioned as friend of the pod.

His whole thing was he looked for cases that had big circuit splits and would take up those cert petitions and the court granted them at an incredibly high rate. And he was not sort of considered one of the elect and elite Supreme Court litigators. And now he is because of sort of the math side, the money ball side of Supreme Court cert grants. And boy, is this one teed up nicely. cert grants. And boy, is this one teed up nicely. Yeah. In third and fourth circuits, a jury may find a workplace use of the N-word is extremely serious, isolated incident that is sufficiently severe. In the fifth, sixth, seventh, eighth, and tenth, on the other hand, a single workplace use of the epithet is a non-actionable mere utterance that will never reach a fact finder. And I bet you money that if you talk to an average person who said, if someone is called the N-word in the office, is that illegal racial harassment? They would say, yes. Yes, it is. In part because a lot of employers have policies that you would call

prophylactic. In other words, because they don't want hostile environment harassment to take place in the workplace, and because the definition of hostile environment harassment is this complicated thing that you just laid out that can often sweep in an awful lot of rude stuff on the basis of, say, race or gender, that it doesn't rise to the level of illegality. What workplaces will do is they'll put in place these prophylactic rules that say, hey, our rules are way more strict than federal anti-harassment law. And so, you know, most employers, if there is a use of the N-word as a slur, you're gone. You're gone. But a lot of people would not realize that that isn't necessarily

unlawful hostile environment harassment under Title VII. So Sarah, how do you see this playing out? Okay, so the circuit split, they have got a great shot here on the single-use issue. Here's their problem. I don't know that this is going to be considered a single-use. So this is coming up from the Fifth Circuit, one of the circuits that does not allow the single use of, in this case, the N-word, to reach a jury. By law, they say that cannot be enough. In this case, though, where it is carved into an elevator bank

and he says every single day he has to go up and down the elevator, so twice a day at minimum, he has to see a racial epithet. That, me is sort of the definition of not a single use racial epithet. And so I think there's potentially some other ways this case will resolve itself. yeah, I don't see how something carved into a wall comes anywhere in the ballpark of, you know, a random dude who you work with walking by and saying like, hey, N-word. Like, that's an interesting question that should be resolved, actually. And the circuit split makes it clear that someone will get to take that case. I don't know that Mr. Collier is going to get to have that case, though. And oddly, because his case is worse. Right. Right. His case is worse,

but he's still lost. I know. Which is fascinating. Yeah. You know, these employment cases are incredibly hard to win. A lot of other stuff goes, you know, comes up in them.

And we've talked a lot about how facts make the law a lot of the time. And even though it is not really supposed to be considered at this stage, what happens is the employer says, this guy didn't show up to work for three days out of five for

two months in a row. So yeah, we fired him. It has nothing to do with the fact that he's black. It has nothing to do with the hostile work environment. And oftentimes, you know, they'll say like, yeah,

we're not dealing with this. Yeah. Well, and I'll, yeah, you're, so I'm going back to the, um,

I'm going back to the, the actual fifth circuit decision, um, filed in April, 2020. And here's how, Who's on the panel? Who is on the panel? Let me roll up and look at this.

King, Jones, and Costa. That's a spicy panel. Percurium. Ooh, even more interesting. Yeah, okay. So they didn't spend a lot of time on this. Yeah. So in June 20, and here's why, I bet you, Sarah, here's why. And by the way,

when I say they didn't spend a lot of time on it, just so I can clarify for people what I mean by that, a PC opinion, when I say they didn't spend a lot of time because they believe it is controlled by fifth circuit precedent, they did not need to spend a lot of time on this because it was going to fall squarely under some other case that had already been decided. Okay, go ahead. because it was going to fall squarely under some other case that had already been decided. Okay, go ahead. In June 2016, Collier had a disagreement with Reyes, his supervisor, which eventually led to his determination.

According to Reyes, Collier refused to work in Pod D, one of the four stations where operating room aides worked. And Collier later cursed at Reyes, threatened him, and became very aggressive, violent, and started hitting the wall. Other nearby employees confirmed that Collier refused to work in Pod D, despite their attempts to convince him to do so, and that Collier exhibited threatening and aggressive behavior. The Dallas-Collier Hospital District Police Department was summoned,

and Collier was issued a citation for assault and was escorted off the property. Yep, that's a tough one. Or rather That's a tough one or rather not a tough one. So this is again, how many times we have to say it about how facts, how you always, and this is one of the first things that I was told, and I wasn't told this much in law school. I wasn't told this as much as you might want to be told it in law school. Part of that is due to the fact that after our mandatory first-year classes, that I just went straight towards the highly ideological course selections. If it was like the law and, you know, that's the giveaway, that this is a super ideological kind of theoretical area of study, the law and anything.

But one thing that I was not taught sufficiently was how facts, facts, facts, facts, facts matter so much. And man, if I have not seen this a million times in employment cases, that here's what often ends up happening, Sarah, and this is that, and I, the last case that I ever actually took to a jury was an employment related case. It was for unconstitutional retaliation in denying someone a promotion. And I sat my client down and I said, here is your job. You have one job aside from answering truthfully and et cetera, and you're directing cross examination. Your job is to spend the entire trial looking and acting like somebody who deserves a promotion

to full professor. That's your job. The judge should believe it was crazy that you wouldn't get a promotion. The jury should believe it was crazy that you wouldn't get a promotion because here's a weird sort of fact about a lot of these employment law cases is that a lot of these employment law cases, there's the law and then there's the subjective assessment that the judge and the jury make of, do I want to work with this person? Is this a person that I want to work with, I would work with, or that I would want to see get a promotion, or I would want to see get hired? It's not supposed to be there. That's not supposed

to be the part of the equation, but there's always this sort of subjective dynamic underneath it. One of the things that I look for when I see otherwise kind of odd court decisions are on the law, I'm always going to dive into the facts. And when you have that kind of fact pattern, that has nothing to do with the inward issue, right? Or very little, but I think, I feel like it had a lot to do with the outcome. Of course, yeah. So, you know, I give it a very slim shot of getting granted cert because of the underlying facts and two, because they are applying for cert

on something that is a good circuit split, but it's not the facts of their case. I don't think this counts as single use. Now, it could have been interesting, and I don't know all of the circuit decisions on this. Does something in writing on a wall count as a single use because someone only scratched it into the wall one time? I can't imagine that there's a circuit split on that, but maybe. I can't imagine that there's a circuit split on that, but maybe. Well, you know, when I was younger in the practice of law, our employment department, employment litigation department,

had cases in which supervisors put up centerfolds in public spaces. Things like that actually happen. That's not a single-use gender discrimination. Exactly. Yes. Exactly. So this is use gender discrimination. Exactly. Yes, exactly. So this is why, by the way, listeners, some of you guys send us stuff from time to time, cert petitions. And I write back and say, let me know when search is granted. Unfortunately, this time, the person sending them to me was my co-host.

I still think it's an interesting launch. Didn't we just have an interesting discussion about this? We did. I'm just explaining why we generally don't talk about all the cert petitions. Right. Right. No, you're exactly right. Fundamental problems like the two that you wanted to talk about today. Well, but did I not send you the cheerleader one that got granted?

Yes. Okay. No, that's true. Look, your batting average isn't zero. No question. No, it's not. Okay. I have a ending short cultural topic that I'm going to spring on you, but you're super

well-equipped to answer this. Yikes. Okay. Young Sarah is driving slowly through her neighborhood and the the windows are down, and the music is blaring. My Dave Matthews crash album is just going out to the world. That was going to be my question. What music is Young Sarah blasting? And you went ahead and answered it.

No, so I had actually a very small, um, CD, uh, plastic thing holder in my car, probably only fit like 10 or 12 CDs. Uh, I also did not have the money to buy CDs. So most of them were ripped off of my friend's CDs because I did have a CD-ROM copy, um, uh, drive. Yeah. For some reason, my parents wouldn't give me the money to buy CDs, but that was a good investment. And it was. So I had The Offspring, Bush 16 Stone, Dave

Matthews Crash, Soul Asylum, Runaway Train. That wasn't the name of the album, I don't think, but that's like the main song on it. Bare Naked Ladies. Those are the main ones that I'm like reaching for in my head right now. I was, I was pretty into,

Oh, um, they might be giants flood album. Hmm. Uh, yeah. So pretty alternative late nineties rock. So I'm a little bit older than you.

So I, if the teenage, teenage david who would you know ne'er-do-well teenage david who would catch the eye of the local cops would have been probably listening to one of two albums that i had on that were my car albums that were on cassette tape because we didn't have cds in the car back in my day, Sarah. We were just barely removed from the horse and buggy. And so we were, I had two cassette tapes that were- Combustion engines were a miracle. Exactly. We were still in the controversial,

is this horseless carriage going to be a thing stage? But so I had really, I had three. One was the evening and a mellow and kind of chilling. But when it was going to be a thing stage. But so I had really, I had three. One was the evening and a mellow and kind of chilling. But when it was going to be blasting, it was going to be either rush power windows or yes, 90125. And so you haven't heard owner of a lonely heart? Oh, yeah. Okay.

Yeah. Yeah. Yeah. So it was going to be rush power windows. Yes, yeah. Okay, yeah. Yeah. So it was going to be Rush, Power Windows. Yes, 90125. But when I'm chilling and not getting pulled over, it's Billy Joel's Greatest Hits Volumes 1 and 2. That's funny because literally was introducing my son

to some Billy Joel. He's eight months old, so it was time. And I was noting how I feel like Billy Joel's two main contemporaries are Eric Clapton on sort of the one side who gets a ton of credit and sort of legit praise by, you know, really people into music and guitar as one of sort of the all time great guitarists. And then on the other side of him is. Oh, my gosh. You know, Yellow Brick Road. Beatles. No, no. Elton John. Is the Beatles? Did they do a Yellow Brick Road? I don't follow the Beatles. Yeah. Not the Beatles. Elton John. Sorry. Oh,

man. Listeners are going to crush me for saying that. So on the other hand is Elton John who got a ton of attention because he was a better performer. I will maybe even concede. But Billy Joel arguably has the best actual music to listen to when you're just like cooking dinner or driving chill in your car. And I don't feel like he gets nearly enough credit for so many of his songs that are just good. That's it. They're just good. credit for so many of his songs that are just good. That's it. They're just good. I'm just going to tell you, if you go to Billy Joel 1 and 2 and you just these songs, Piano Man, Piano Man is incredible. Okay. That's like the one song I don't like, but still. You don't like Piano Man? No, I don't. The Entertainer is great. Allentown is fantastic. Goodnight, Saigon. Oh my gosh. That song is, yeah, that's incredible. But I did find the best Spotify list ever for listeners who were like, yeah, Sarah's six CDs. That sounds awesome. 90s rock anthems by Spotify is about as good as you get to what was at least where I grew up, 96.5, your rock alternative.

So here's the assignment for listeners in the comments. What are you going to be pulled over listening to? Because it's got to be loud. I was never going to get pulled over listening to Piano Man. I feel like, yes, Bl blasting The Offspring is the perfect CD to get pulled over to. Not going to disagree. Not going to disagree. Totally.

All right. Well, that is it for the latest edition of Advisory Opinions. We will be back on Thursday. Until then, again, please go rate us. Please go subscribe

on Apple Podcasts and please check out thedispatch.com. And we will talk to you again on Thursday. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app,

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