Advisory Opinions - Prior Restraint and Project Veritas

Episode Date: November 29, 2021

On today’s podcast, David and Sarah open with the puzzling case of Project Veritas and James O'Keefe. Why is a New York appeals court appearing to let stand a prior restraint on the press? They then answer a fascinating reader mail question before wrapping up with an extended discussion of self-defense in the context of an incredibly troubling Texas shooting that was caught on tape.   Show Notes: -Near v. Minnesota -New York Times Co. v. United States -University of Richmond Law Review: “The Meaning of Life (or Limb)” -Reason: “Are People Allowed to Use Deadly Force to Defend Property?” -Lubbock Avalanche-Journal: “Widow releases video of Chad Read's fatal shooting in South Lubbock” -Warning Graphic: Lubbock, Texas shooting video Learn more about your ad choices. Visit megaphone.fm/adchoices

maple syrup we love you but canada is way more it's poutine mixed with kimchi maple syrup on halo halo montreal style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at Real Canadian Superstore. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it.

Try the other side. Get started at Fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at Fizz.ca. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we're going to cover a number of things today. We talked a little bit last podcast about this really interesting case involving Project Veritas, James O'Keefe, what looks to all the world like a prior restraint imposed on the New York Times to prevent them from publishing some privileged documents they had

obtained from Veritas, or they obtained not necessarily from Veritas, but privileged documents of Veritas that they obtained from somewhere that they are currently blocked from publishing or talking about. Very, very interesting. We're also going to answer a really interesting reader mail question about the phrase life and limb in the Constitution. And maybe Sarah will be able to answer a question that I have is, were there a lot of punishments back in the day where limbs were lopped off in the colonial era? house case, but also talk about it in the context of a Texas case that has been burning up social media over the last several days. It actually triggered a day-long conversation with some of my friends. It involved a shooting and a domestic dispute that was all caught on camera. We'll talk about it, and I think we'll probably put a link to the video in the show notes that I just want to warn everybody and very explicitly. It's not a bloody video, but it's a very awful and sad video. So you don't have to watch it, but we're going to talk about it because it hits on about every sort of self-defense controversy you can imagine in one 90-second span of time.

But Sarah, first, you're puzzled. I'm puzzled about this James O'Keefe Project Veritas prior restraint case. What the heck? So I'm pretty into prior restraint law and previous to this whole thing had sort of built my own little, I don't know, historical dossier on prior restraint. And so when I initially saw that a judge in New York, a state judge, state trial judge had, you know, the headline was, judge basically issues prior restraint against the New York Times. I was like, la-ha, my dossier will finally come in handy. Obviously, this judge is wrong. But David, the punchline to all of this, to fast forward, is, I don't know. So let's back up. Project Veritas is the group run by James O'Keefe. He is a conservative who tries to out liberal bugaboos and organizations through hidden cameras or pretending to be a journalist, sort of deceptive practices.

deceptive practices. He's maybe most famous for the work he's done infiltrating Planned Parenthoods, asking questions to their employees, doctors, etc., and then publishing the results. Project Veritas is dealing with two different legal issues right now. I'm sure they're dealing with a lot more than that, but two that are relevant here. One, the FBI raided the Project Veritas headquarters in relation to Joe Biden's daughter's stolen diary. stolen diary. That's about all we know at this point. Separately, Project Veritas sued the New York Times for defamation. In that lawsuit, the New York Times lawsuit, that's the judge that we're talking about here. And then on November 11th, the New York Times wrote an article that I'm quoting here from a Reuters story, drew from memos from a Project Veritas lawyer and purported to reveal how the group worked with its lawyers to, quote, gauge how far its deceptive reporting practices can go before running afoul of federal laws.

practices can go before running afoul of federal laws. That is what the judge said no to. Now, these were attorney-client privilege documents. No one's really disputing that. But the New York Times, as... Here's part of the problem. There's things that we just don't know about this case. So it does not appear that the New York Times got these documents through discovery. There was some allegation that the New York Times must have gotten them from the FBI from that raid that they did. Now, there's supposed to be a team, an FBI team, basically, when you raid headquarters looking for information. You're supposed to have one team, an FBI team, basically, when you raid headquarters looking for information. You're supposed to have one team just scrub the attorney-client privilege stuff that would not go to investigators, and that somehow that team either screwed up or that team gave those

documents to the New York Times. But that's disputed, too. So we don't know how the New York Times got these documents. We do know that they're privileged, and we do know that the trial-level judge told the New York Times that they could not publish any further documents that were attorney-client privileged. That's the prior restraint, by the way. In reference to that November 11th article that they already published, that's not prior restraint. They already published it, which is why we can quote it all over all these other stories. The prior restraint is that the judge said no further attorney-client privilege documents. So David, you and I were like, well, that's weird and dumb. And then an appellate court upheld it. And then they had a hearing and they upheld it at the

hearing too. Now, not permanently, we're still in sort of limbo land. There's going to be another hearing in a few days that'll, in theory, expound upon this a little further. And maybe we'll learn more of the facts of why the New York Times, whose business is journalism separately from this lawsuit, would have any prior restraint put on them. So those are the facts, David. And but then I want to dive into the history of prior restraint, which is so cool. Yeah, what's interesting about this case, so there's so much here that's going on. One of the things that I've seen people furious at the New York Times about is that they published attorney-client privilege documents.

attorney-client privilege documents. And I'm thinking, yeah, and so? It's the responsibility of parties to maintain the confidentiality of their documents. If they can't maintain the confidentiality of documents, and I'm a journalist and I obtain attorney-client privilege documents, it's not my responsibility to maintain their confidentiality. And so there is a long history of news outlets publishing confidential documents that have fallen into their hands from sources or otherwise. Now, it is a real problem if the government, which seized confidential documents, leaked those confidential documents to the New York Times. But that's the government's problem, not the New York Times.

But the Times says that didn't happen. The Times says that didn't happen. So that's why it is- But again, just to emphasize, even if it did, your legal remedy is with the FBI and the government, not the New York Times. Yeah, that's why this is so very strange,

is if the New York Times obtains confidential documents, even classified material, I mean, this is the Pentagon Papers case, they're just generally going to be able to publish this stuff. It's the responsibility of the entity that is trying to keep the documents confidential to maintain that confidentiality. of the documents where that there might be some gray areas, but even then the remedy is to prosecute the person who stole the documents, not necessarily to maintain the confidentiality of the documents. Those are, again, different things. So that's what's so curious about this

and why I just need to see more before I figure out what the heck is going on with this case itself. David, I want to read you the First Amendment as you know it. Please. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or of the right of the people peaceably to assemble and to petition the government for a redress of grievances. My question to you is, in that, what is the difference between freedom of speech or of the press? Like, legally speaking,

when would the press freedom not be subsumed under the speech freedom? freedom not be subsumed under the speech freedom? That's a really good question for which there's no really tremendous answer to that. It's true. You're correct. There's not really a right answer to that. But I want to read you Madison's first draft to Congress. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments. And the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. Totally separating speech and even the speech to write and disseminate your sentiments, to publish your sentiments, separately from the freedom of the press. Really interesting. One of the great bulwarks of liberty. I don't think we talk nearly enough about that first draft. Now, of course, you can argue that the fact that that

first draft isn't what made it into the final version means they rejected that. But interesting where it started from. So Blackstone, about 20 years before that, Blackstone, of course, being sort of the alpha and omega sometimes of American common law, the liberty of the press is indeed essential to the nature of a free state. But this consists in laying no previous restraints upon publications and not in freedom from censure for criminal matters when published. And so in those two, the Madison First Draft and Blackstone, you can sort of see this, you can never have a prior restraint.

But that's different than the freedom of speech, which is punishing someone for what they said. And so Blackstone's point is, there's no prior restraint, but then you can sue them afterwards. And so it gets into like sort of what initial thoughts on defamation law would have been, on even being able to criminalize speech when published

by the press, for instance, could be totally separate. So a couple interesting cases to mention. The most famous one, the one that sort of sets the current prior restraint law as we know it in a lot of ways is Neer v. Minnesotanesota this is in 1931 now the state supreme court the lower court said there is no constitutional right to publish a fact merely because it is true how amazing is that i mean these are smart people right this isn't like some random dum-dum this is the state state Supreme Court of Minnesota stating what they believe to be the First Amendment at the time, even when it is applicable to the states. It is a matter of common knowledge that prosecutions under the criminal libel statutes do not result in efficient repression or suppression of the evils of scandal. Men who are the victims of such assault seldom

resort to the courts. This is especially true if their sins are exposed. And the only question relates to whether it was done with good motives or justifiable ends. The law is not for the protection of the person attacked, nor to punish the wrongdoer. It is the protection for the public welfare. Now, this is insane. David, what they're saying is, this is especially true if what they're saying about you is true, because then your sins are exposed Court. And the Supreme Court says, the protection, even as to previous restraint, is not absolutely unlimited, but like it basically is.

The limitation has been recognized only in exceptional cases. Quote, when a nation is at war, many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right. But otherwise, the Supreme Court says you cannot have a state law that creates a prior restraint on the press. Fast forward. And by the way, if you want to dive into the facts of Neer versus Minnesota,

it's really interesting because we've talked about this before, right, David, that like bad defendants can make some really bad law. These are two of the most not sympathetic people. They're writing incredibly anti-Semitic stuff. They're writing incredibly anti-Semitic stuff. They were using the paper for blackmail purposes. And then Neer sells his interest to Bevins. Bevins still is using it to blackmail, to dominate public gambling and other criminal activities, exert control over public officers by threatening them that he would publish things that were false, true, whatever in his paper.

And basically calls everyone a Jew. Like if he writes about you, the slander is that you're Jewish. That's a long and short of it. So not a lot of sympathy for these guys, certainly coming up in Minnesota, you know, tries to create this prior restraint. So that is like prior restraint law as we know it from 1931 on. And then you have the New York Times versus U.S.

That's a 6-3 case, by the way. Still not, you know, 9-0 on prior restraint. And it says that, you know, the New York Times gets to publish these things. And I just thought it was interesting to read the Harlan

dissent. And David, I mean, this is really so applicable to our times because one of Harlan's main objections is, quote, with all respect, I consider that the court has been almost irresponsibly feverish in dealing with these cases. The Second Circuit rendered judgment on June 23rd. The New York Times petition for Sir Shirari, its motion for accelerated consideration, June 24th at 11 a.m. Interim relief, June 24th at 7.15 p.m. The court's hearing set before us, June 26th, 11 a.m. A course which I joined only to avoid

the possibility of even more peremptory action by the court was issued less than 24 hours before. The record in the post case was filed with the clerk

shortly before 1 p.m. on June 25th. The record in the Times case did not arrive until 7 or 8 o'clock that night. The party's briefs were received less

than two hours before the oral argument on the 26th. This is quoting Harlan, this frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the court to shun such a precipitate timetable. In order to decide the merits of these cases properly, some or all of the following questions should have been faced. So, I mean, when we talk about emergency docket, this is the downside. They don't even have the briefs for two hours before they're then supposed to do oral argument and then have this whole opinion and the whole thing moves very quickly. So here would be Harlan's

questions. Whether the Attorney General is even authorized to bring these suits in the name of the United States. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security. whether the threat to publish highly secret documents is of itself a sufficient implication of national security, whether the unauthorized disclosure of any of these particular documents would seriously impair the national security, and what weight should be given to high officers in the executive branch with respect to those questions. I mean, that's some really intense stuff that we're putting in, you know,

pretty quick line. Okay, last thing, David, then. In 2012, so really recently, Judge Posner out on the Seventh Circuit has an Illinois statute prohibiting the taping of conversations without the consent of all parties to the conversations. And it was challenged as applied to a program intending to openly record police officers performing their duties in public, whether that then Illinois statute violated the First Amendment if you were seeking to record police officers. Posner says, judges asked to affirm novel, quote, interpretations of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution.

The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the 18th century meant freedom only from censorship, that is suppressing speech rather than punishing the speaker after the fact. A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides. But in a prosecution, he would at least have the protection of a trial by jury, which he would not have if hauled before a censorship board, and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood

to create, and this is why I end on this, David, because if you understand what we have as the First Amendment, if you want to look for a difference between speech and press, Posner is giving you the difference, which is, in fact, when it comes to freedom of the press, it is the freedom to have a jury trial when you are tried for what you printed and not a censorship board, no prior restraint. Right. Yeah, I'm following this case with real interest because there's so much conjecture

about what's really going on. Even when you go and you dive into the raid, the FBI raid into the Project Veritas, that obtained Project Veritas material, is this an unbelievable act of heavy-handed state intervention against a dissident member of the media that the state doesn't like?

Or did this dissident member of the media cross the state doesn't like? Or did this dissident member of the media cross the line into actually participating in criminal activity? We don't know. We don't know. And so there's just a ton of, I've seen some pretty angry definitive commentary that, hey, it may prove, all that anger may prove to be right weeks or months down the line when we know more of the facts or it may prove to be completely wrong. It's but the point real the point is there's a lot of conjecture right now. And we don't know. in this sort of undercover style journalism, even if you think, or even if you have critiques in the way that some of the videos were edited or the way the presentation makes,

they make the presentation, an FBI raid is an egregious violation of First Amendment rights. If, however, the O'Keefe team or anyone affiliated with it actually engaged in theft, the fact that you're a member of the press doesn't give you the right to engage in theft. So there's just so much we don't know. So much. I find it very frustrating that in reading about this, you have a bunch of

media outlets saying, you know, prior restraint, wildly unconstitutional, not really covering what is going on here in any great detail, not doing sort of their basic journalism, which is, well, wait, what are the facts here that could lead a judge and an appellate judge to both sustain this unless, you know,

unless you want to assume they have bad motives. And I'm not willing to assume that. These seem like smart people. What do they know that you don't? That is like job number one of a journalist. And where are the leaks now, so to speak? And to your point, David, about the raid, just to flesh that out a little, yes, somebody stole her diary. yes, somebody stole her diary. That person is guilty of a crime. Again, based at least on what Project Veritas folks have said publicly, and again, this may turn out to be false, they're saying that they didn't steal it. However, they were given snippets of it and used it in their journalistic capacity. That is no different, in principle at least, from the New York Times getting leaked classified documents and publishing it.

And the New York Times would tolerate absolutely no FBI raid to try to find out who their source was. They would be screaming to high heaven, and correctly so, by the way. And so if this FBI raid was simply to determine the source of the diary, I'm deeply disappointed in how many journalism outlets' principles only seem to extend to their own friends and allies. Right, right.

But again, we don't know. We don't know. And that's, you know, what's difficult about a lot of this stuff is when a raid actually occurs is when most eyeballs are on the situation. But that's also when we know the least about it. It's true, but David, I mean,

remember when the Department of Justice, during my time issued a subpoena against a New York Times reporter, there wasn't this rush to wait to find out the facts. a journalist's emails and toll records. And in that case, it was that a person who was later charged for lying to investigators related to his role as the head of basically Senate security over classified information had engaged in an inappropriate relationship with this reporter and was using her to basically funnel these documents out of the Senate. Again, I have no problem if the New York Times wants to wait to jump to conclusions and wait for all the facts. I have no problem if they don't want to, but it needs to be evenly applied. And when it comes to Project Veritas, because they don't like their political affiliation and don't consider them to have the same journalism ethics that they do, and I agree,

they don't. But it is still the principle should matter. And the principle here is identical. True. Correct. I agree with you completely. 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. Hot chicken in the window. 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.

All right. Do we want to move on to life and limb? Yeah. So I got this email from one of our regulars. My 10-year-old son and I have started reading the Constitution together. He raised an interesting question I wanted to ask you. The Fifth Amendment says, My son was wondering about the or limb part.

As he pointed out, the Eighth Amendment prohibits cruel and unusual punishments. So what type of jeopardies of limb is the Fifth Amendment referring to? David, what a cool question. It is a very cool question. And you've got the answer. Well, I've got some answers. I've got better than nothing answers. So first, we're going to go back again to Madison's first draft of the Fifth Amendment. Poor Madison, man. He gives his drafts to Congress and they just rip them apart. So here's the first draft of that part. No person shall be subject, except in cases of impeachment,

to more than one punishment or one trial for the same offense. Now, wowzers. Now, there's not actually a whole lot on why this was rejected, and there's basically nothing on how we suddenly got to life or limb, but I'm going to try to fill in some gaps. One, the no person shall be subject to more than one punishment or one trial for the same offense. Well, that could mean that you can't even appeal if you're found guilty. It's a one-way ratchet right now. The prosecution can't appeal, but the defense can. But if you can't be subject to more than one trial for the same offense, what would happen if you're the defendant and you want to appeal? You couldn't remand back for a second trial.

And so people, we think, pointed out there were some problems with that. But now to some history. And I'm going to read from this very cool law review article by Judge Stephen Limbaugh, published in 1999 in the American Criminal Law Review. Georgetown Law publishes that. It is peculiar that the Fifth Amendment's terminology of life or limb had no exact antecedent among the English or American versions of the doctrine. Clearly, the emphasis is on the type of punishment instead of the type of crime. The English authorities use the word life as a reference to capital punishment, but without the word limb. However, wording similar to life or limb appeared not infrequently in context other than law or double jeopardy. The Magna Carta, for instance. Some writers have

suggested that life or limb as used for doubley, derived from the practice of trial by battle, David, an early common law alternative to trial by jury. As the name implies, the contestants in a prosecution settled their disputes by combat, placing their limbs as well as their lives in jeopardy. So, first of all, okay. Hey, Game of Thrones was a documentary, Sarah. Trial by combat. I guess so. The Framers' additions of the limb component to the common law maxim was probably more than an indirect reference to trial by battle. Conceivably, the word limb referred to the punishment of

cutting off one's hand or ear, but by the 1700s, that practice had become rare, to answer your question, David. So no, we weren't just like willy-nilly cutting off limbs for things. Limb may have instead pertained to the horrible quartering of bodies after hanging. But this too is problematic, because the clause states life or limb, not life and limb, and there was no limbing of bodies except in connection with executions. Most likely, life or limb was simply an alliterative improvement on Lord Koch's nearly identical words, life or member. Quote, a judgment of life or member, as that phrase was used in other parts of Koch's Institutes, pertains to felony offenses. Thus, as one scholarly work has logically concluded, the term life or limb was meant as a reference to felony

offenses. So fascinating, David, because if you take that to its logical conclusion, as another law review article by Justin Curtin, The Meaning of Life or Limb, an Originalist Proposal for Double Jeopardy Reform, mentions. He has a whole law review article in the University of Richmond Law Review about how the double jeopardy clause, from an originalist perspective, was actually only meant to refer to felonies. And applying it to misdemeanors is relatively recent, pretty much created by the Supreme Court, and not what the framers intended. Interesting.

Interesting. I'm so intrigued by the trial by battle. I thought you would be. I am so intrigued by that. I'm intrigued how we get the double jeopardy clause applying to misdemeanors. But remember, David, we've had another case where they're trying to distinguish between misdemeanors and felonies at the Supreme Court. And it becomes really hard because some states have the exact same act as a misdemeanor versus felony. And so in 1873, in a case called Ex Parte Lange, the court basically

just said the double jeopardy clause applies to all of the above. But if you look back at the founding and the double jeopardy clause originally applying to felonies, almost all felonies carried a capital punishment. And that was the distinction. It was the punishment that if it's a capital crime, then you can't put them in jeopardy twice. Now, also worth noting in double jeopardy cases, of course, you can put them in jeopardy twice. Now, also worth noting in double jeopardy cases, of course, you can be put in jeopardy twice, just not by the same sovereign, which means that you can be tried by both the state and the feds. I mentioned the Slager trial when we talked about Rittenhouse, where the officer was tried by the state. It resulted

in a mistrial. And then the feds swooped in and were like, second bite at the apple, y'all. So double jeopardy is, I mean, super interesting. And the history of life and limb, life or limb, I had never considered. I love this question. I spent all weekend reading all these law review articles and I had so much fun. That's fantastic.

Now, that was a great question. As soon as I read it, I had two thoughts at the same time. Huh. Fascinating question. And two, I know Sarah is going to think about this for hours, for hours. And you did. It also violates the canon though, David, the basic canon that you don't read a word as superfluous and especially not in the Constitution. And even under this reading of, you know, a judgment of life or member, that doesn't, it's circular to me because you're still reading or limb as being, as he puts it, an alliterative improvement, basically still superfluous.

Even with that original understanding that only applied to capital cases, which were all felonies, the or limb wasn't doing a lot of work there. And why is it there when it wasn't in the original James Madison version? All good questions, Sarah. All good questions. But that was a fascinating question. Thank you, reader, or listener, sorry. Thank you, listener, for that question. And thanks, Sarah, for doing the research while I was still eating turkey. I can multitask.

Yeah, I'm glad you took, as one of my old law partners said, the laboring ore on that question. 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, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame.

That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, so let's talk about something not controversial, self-defense. It's very, this is an issue that is uh it keeps coming up it's coming at we had a lively uh discussion in the written house um and our on our podcast about the written house trial a very lively discussion with very many people

seemingly a bit peeved at us. We also, you know, also self-defense was at issue in the Ahmaud Arbery trial. And then there was a case out of Texas. It's not a case yet. So far, police have not charged the person who shot. There was a shooting recorded on camera. They've not charged the shooter. I mentioned at the opening of the show,

we'll put the shooting video in the show notes. You do not have to click on it. I'm warning you, if you're easily disturbed, don't click on it because it's very, very disturbing. But in law school, we had these exams called issue spotters. And essentially what happens in an issue spotter exam is you're told a story. They just tell you a story, essentially, in the exam question. And you're supposed to find all the legal issues that are relevant to the topic of the class and discuss those in a way that is shaped by the question. And so it'll just tell a story. And then as you go through the story, you're just spotting, here are the key points legally.

Okay, so, and this is gonna flow into some of the Rittenhouse discussion as well. And so let me just set the stage. So what you have is a situation where a man has showed up apparently seeking to pick up his kid. It's time for his custody. The kid is not there. He is demanding to see his kid. Now, we only get about a minute and 56 seconds out of this. a minute and 56 seconds out of this. The longest section, there's one part that's about 15 seconds.

The longest section is about a minute 30. He's demanding to see his kid. He says it's his time for custody. He is yelling at everyone. He has no visible weapons. He's got a long sleeve shirt that, in theory, he could be hiding weapon in his belt, but there's no visible weapon. He's not threatening anybody with force.

He is saying he's going to take people to court. He's going to issue subpoenas. He's essentially saying, really, really angry, wants to take people to court. Then a man walks out with what looks to be a nine millimeter carbine, carbine, however you want to pronounce it, and says, demands that this man leave, yells that he leaves.

Well, one of the things that's very, what happens next is very unfortunate on a number of levels. So he comes out, he holds the gun up. He says, leave. He then puts the gun in what you might call a low-ready position. The other man gets in his face and starts screaming at him. The homeowner or the person with the gun fires a single shot at his feet. The man then grabs at the rifle and wrestles with it for a moment.

The other man pulls away, shoots him twice, pop, pop, the man falls immediately. And then in the weirdest thing, one of the weirder things, I mean, this whole thing is awful. One of the weirder things is that they then, the person who's recording the video and the man who just shot the guy,

start arguing about the shooting while the guy's lying there. Like nobody runs up and renders aid immediately, which was remarkable. But that's a circumstance. I've got lots of thoughts on this that are related to this whole issue of open carry, related to defensive property, related to defensive life.

What are your rights regarding when somebody's on your property? Okay, Sarah, was that a fair enough description? And what are your initial thoughts? I want you to go through an issue spot this like it was a law exam. So that's the exam question. And then it says you are hired to defend the guy who pulled the trigger. What issues do you see here in raising a self-defense claim at trial? Go. Yeah. Okay. Here we go. All right. So you have a guy on the property. Initially, it's not clear to me, is he trespassing? Okay. Yep. Good issue spot. And that would,

to some extent, depend on the custody agreement. Right. So he's there apparently to pick up his child. You're not a trespasser if you're there to pick up the child. By the way, it turns out that the child apparently wasn't there. So he's at least there initially not as a trespasser. Okay. As he yells, as the fight escalates, it becomes very clear that he is no longer welcome there. How is it clear that he's no longer welcome there? It becomes clear that he is no longer welcome there. How is it clear that he's no longer welcome there? It becomes clear that he's no longer welcome there when a man walks out of the house with a gun and says at the top of his lungs, leave, okay?

So the instant the owner of the property or the person who's in charge of the property tells you to leave and you do not leave, you become a trespasser, okay? But David, real quick. What if he's mistaken and that it's actually tomorrow he's supposed to pick up his kid?

Does it matter whether he is mistaken about the custody agreement? Yeah, that's a really good question. I mean- And on the flip side, does it matter that maybe the kid, you know, is there and they're lying to him and just not letting him take custody of the kid?

And so he's coming out and yelling leave, but he's yelling leave because he doesn't want to turn over the child, even though he has the man who's about to be shot has the legal right to get the child. Well, that's a good I would say the man still would probably have to leave the property and at least stand on the sidewalk, demand his kid, maybe call the police if the kid, if he has a legal right to receive the child, and they're not granting him that right to receive the child. But there is, you know, a lot of it, the trespassing status, a lot of it depends on, did they, is this a situation where, you know, if somebody walks up and rings my doorbell,

they're not a trespasser. That's not trespassing. Or if somebody comes up and I'm willing to talk to them on my property, that's not trespassing. It's much more when I'm affirmatively wishing that somebody leave my property and they refuse to do so. And so he's very clearly told to leave the property. And it's not clear to me that he has a legal right to be on that property at that point when he's being explicitly told to leave. So he doesn't leave. Okay. Now here's the next question. Well, if when he doesn't leave, can I brandish a weapon at him to make him leave? Now, this is where the video gets really, really interesting. Does he even brandish the weapon at him? He's holding the weapon. He's carrying the weapon. Does he brandish the weapon at the victim? When I look at it once, I say yes. When I look at it another time, I say no. But that's one of the issues with open carry is sometimes the line between just carrying the

weapon and brandishing the weapon, when you're talking about a rifle that's in your hands, is not necessarily very clear. Now, what can I do to make him leave? Can I use deadly force to defend my property? Now, this is a put this in the show notes, but there's this great Eugene Volokh post from back all the way back in June of 2020 when the riots were raging about the use of force in defending property. And I'll just kind of hit on the key parts of this. Okay, in all states, you can use deadly force to defend yourself against death or serious bodily injury. When your fear is reasonable of death and injury and the danger is imminent. Okay. In all states. In basically all states, I like the phrase basically all states, you can use non-deadly

force to defend your property. So if you're just simply defending property, you can use that non-deadly force. But if the person you're using force against puts you in danger of deadly, of death or serious bodily injury, then you can escalate to deadly force. So in other words, if I'm pushing someone out of the property, if I'm pushing someone out of the store, and they respond by attacking me in a way

that raises an imminent threat of death or grave bodily harm, I then can respond with deadly force. But David, there's one other thing that's been raised. We have a bunch of family members going to the press at this point. One interesting nugget that I'll be curious to see if there's any evidence brought forth about this is that this was a setup.

That they intended to have him come to the house, refuse to give him the kid, all for the purpose of being able to use justifiable self-defense to kill him because, in fact, the wife was having an affair with the guy who shoots him and they wanted him out of the way. Interestingly, that guy's married too,

so if that's the case, it's going to look a little more suspicious if his wife also ends up being self-defensed. But nevertheless, at least that possibility has been raised that this was all to create an atmosphere where they could use self-defense. Yeah, there's a problem with that, though, and that is the next part of the video. So as soon as the guy comes out with the rifle and he says, leave, at that point, the guy should have left. Okay. Now, that doesn't mean that you have the right to use deadly force against him if he doesn't leave, but he should have left when he was told to leave.

He didn't leave. Instead, he very aggressively got in the face of the person with the rifle, start screaming profanities at him. I can't really tell exactly what he said, but he seems to threaten to take the gun away from him. In the middle of all that, the person with the gun shoots down at the ground. Very unclear if he's trying to shoot at the guy's leg or firing some sort of warning shot. That only escalates the situation. At that point, the man tries to take the gun away from him. He tries to take the gun away from him. When he tries to take the gun away from him, if I'm the defense lawyer or the guy with the rifle, at that point, as soon as he grabs the gun, I'm arguing that I'm under imminent threat of death or serious bodily harm. And this

turns back to the Rittenhouse case when Rittenhouse was afraid, for example, that the first person who charged at him was going to take the gun from him and use it against him. This is a situation where police officers often use force when they're in a fight and they feel like someone is reaching for their gun. Then that will, the act of grabbing at a gun has long been held to create it. This is Michael Brown. This is what sets off Ferguson. Exactly. Exactly. To create a threat of death or serious bodily harm. And so that's the point where he wasn't, he didn't need, he should have left. Nothing was making him get in that guy's face.

Now, if I'm a prosecutor, I'm looking at this and saying, wait a minute, when that first shot was fired, that first shot put the victim in the fear of death or serious bodily harm and gave him the right to grab the gun. It wasn't necessarily clear that was a warning shot. It was a shot in the heat of the moment. And did that give the man who was ultimately killed the right to grab the gun and wrestle the gun or try to wrestle the gun away from a person who had just fired a shot, perhaps at him. It was certainly at his feet. And so that's why, gosh, I mean, this is like peeling an onion, Sarah. And there's a couple of things I want to zoom back on. But yeah, go ahead. Your comments.

I want to zoom back on. But for, yeah, go ahead, your comments. So we're back to two issues that I wanted to highlight that were true in the Rittenhouse case and they're true here. One is, what is the frame? Is the frame in the three seconds

before the shot is fired? Is the frame in the five minutes before the shot is fired? That is always going to be so, so important to these self-defense cases. This one too, because I think it does matter

what was going on and what each person believed vis-a-vis that custody question. Did they intentionally have the child not there? Was the child there? Was he mistaken? Things of this nature. Obviously, it's not that the affair matters, but it goes to kind of the state of mind.

You're having him pick up his child at the place of the guy who you're having an affair with, and then you're told the child isn't there, I think you're setting up a bad situation. But I'm not sure any of that is in the frame for legal purposes. Second, because you have to prove anything beyond a reasonable doubt, what becomes really interesting where you have two people who both might have self-defense claims. That reasonable doubt, which has to be, sorry, beyond a reasonable doubt, that's not 51%. That's probable cause. Probable cause is more likely than not. Reasonable doubt, we've never really set a percentage on it, but beyond a reasonable doubt. It means you could have an unreasonable doubt. There could be some inkling in your brain,

but it needs to be beyond a reasonable doubt. That means that you could have two people who both could be guilty, by the way, but not beyond a reasonable doubt. And so you end up with this interesting Venn diagram where both people could be guilty if they had shot, but not beyond a reasonable doubt, or both people could have valid self-defense claims because you can't prove it beyond a reasonable doubt, however you want to splice it. And legally, that's where

I find the self-defense case is really interesting because even if, you know, guy who pulls the trigger had a 51% self-defense claim and guy who got killed was a 49% self-defense claim. Nope. Not beyond a reasonable doubt for either of those. So they would both have had the ability to shoot and go free. So, yeah, Sarah, I think that that's a really good point, that the beyond case for the shooter here is that first shot that he took. When he took a shot, and now he might say this was a warning shot to try to get the guy to back off,

did that warning shot place the ultimate victim in reasonably in fear of death or imminent bodily harm? Because a shot is different from an open carry. A shot is different even from brandishing. Few things place you in more reasonable belief that you might die than a shot. But you can't question the victim anymore. The victim is gone. He's dead. And so you're left with one story now, which is the shooters, which would likely be, I tried everything to avoid. I didn't shoot him when he rushed up against me. I didn't shoot him when he threatened to take the gun from me. I

even fired a warning shot and he still grabbed the gun and tried to wrestle it out of my hands. And we could see that on the video that he tried to grab the gun to wrestle it out of my hands. And we could see that on the video that he tried to grab the gun to wrestle it out of his hands. But I want to zoom back a little bit more, Sarah, because I want to zoom back into the question about introducing a gun openly in the first instance. Please do. Because I think this is something that a lot of people have, if you're going to really get down to what has made people upset in some of my critiques about Rittenhouse, it really does get down to when are you carrying a gun openly? My general view is I am against open carry of firearms.

As I believe the Second Amendment protects the right to carry a firearm outside the home. I also know that hundreds of years of precedent indicate that you cannot go armed, quote unquote, offensively, for example, or to the fear or terror of the public. And so I think that there are reasonable regulation on the right to bear arms is not to eliminate the right to bear arms, but to tightly regulate open carry. And why do I say that? The reason why I say that is I think that contrary to the way a lot of people think about open carry and think about the open display of firearms, is it is not stabilizing to a situation. It is quite often destabilizing to a situation. And it's destabilizing for many reasons.

One, because the self-defense analysis depends on a reasonableness standard and the reasonableness of a person's view of their own right to self-defense is highly contingent on the immediate facts and circumstances, it puts an extraordinary premium on careful handling of your firearm, your open-carried firearm, to avoid giving anyone in your vicinity the belief, the reasonable belief, that your carrying of that firearm is putting them in imminent danger. So the difference between, say, patrol carry of a firearm, where the gun is definitely a long gun, a rifle is definitely pointed at the ground.

Your finger is clearly not on the trigger. And low ready, where the gun is raised ever so slightly, still finger typically not on the trigger, but often positioned in a way that it looks like it is, is pretty slight. It's pretty slight.

The transition of moving a rifle from sort of a high position to a low position is the exact movement that you might take when you're moving it from a high position to a shooting position. All of these things are very subtle differences and very subtle changes in the attitude and the position of the rifle that can have dramatic effects on a person's perception of the danger of the moment. It can be incredibly inherently destabilizing and inherently problematic when you're talking about the reasonableness of a self-defense claim. Number two, it is a myth that the introduction of a firearm into a heated situation cools the situation. Okay. Sometimes it causes someone to immediately retreat. Often that might be in the circumstance where they're not particularly mad at you. Maybe they're not really mad at you at all. Maybe they're there for your television and they don't want to risk their life for a television. Or maybe they're there for what's in your cash register and they don't want to risk their life for what's in the cash register. And so the introduction of the gun might cause an

immediate retreat. But if somebody is really, really mad at you, often the introduction of the gun is inflame it inflames the situation it you are being perceived as presenting a direct challenge a willingness to kill an angry person which surprise surprise often makes angry people angrier and so what i saw in this as i saw I thought we saw on tape the way a lot of domestic violence kinds of shootings unfold where people are in unreasoned fury around each other, often over their children, which there's few things in life that people get into fury about more than their children. Ask family lawyers. Being a family lawyer is typically more dangerous than being a criminal lawyer. People get into fury over their kids. So two things.

One, the introduction of the gun typically or often does not diffuse the situation. It inflames it. Number two, it creates an inherent instability in that the difference between open carry and imminent risk of death or bodily harm is then very slight, is very slight. And then number three, the introduction of the gun itself often creates the conditions for the shooting because you then have an opportunity to shoot. Opportunity is the wrong word. You have a legal right to shoot, often to protect your gun, because the seizure of the gun is what then leads someone to be able to, a risk of a seizure of the gun leads someone to be able to do what the homeowner did here, which was shoot another person. All of those things are demonstrations of how the open carry of weapons, particularly in volatile situations like protests, like domestic disputes, these are things that become inherently destabilizing and increase the risk of deadly violence in many ways.

violence in many ways. And so that's kind of zooming out a bit as to why I have been talking a lot about open carry in these circumstances. You could almost say that introducing a gun to the situation puts in danger life or limb. Right. Life or limb. Yeah. And you know, that one of the ironies, and I did this, and I recommend it, I'll put it in the show notes, I did a debate with Stephen Gutowski, who's an awesome guy. I remember I subscribed to his website, The Reload, which I recommend strongly. He's super thoughtful, Second Amendment advocate and analyst and reporter. And we talked about this very open carry issue. And, you know, part of the problem is, um, since I don't have a right to use deadly force typically, or almost anywhere to defend property, when I'm brandishing a weapon in defense of property, what in essence I'm doing is I'm making an, it's in essence an empty threat. So the implication is you come at my property, I'll kill you, but I don't have any legal

right to do that. The only thing I have a legal right to do is if you come at me, and in coming at me, you do so in a way that places me in threat of imminent death or grave bodily injury, then I can kill you with the weapon that I'm carrying that you see. And that's a very different thing than I think of the image that a lot of people have of armed citizens protecting against looters well the they can't use the weapons to stop the looting um contrary to the clear implication of possessing the weapons there and around the looting and so it creates this tension in this instability and this ambiguity that, and again, look guys, by the fact that I'm focusing on the rights of the, you know, when somebody can shoot or not shoot in self-defense,

I have to be honest, it feels a little weird to me that the critique is, well, you're not talking enough about how bad rioting is, as if I've ever said anything in my entire life to imply that rioting isn't terrible. We're focusing in on the use of deadly force in specific circumstances. I'm not zooming out to talk about how bad rioting is. But from now on, can we stipulate that I agree 100% that rioting is terrible and rioters are doing terrible things. Rioting is terrible and rioters are doing terrible things. What we're talking about are the legal ability and what are the things that you can do and not do that either can protect yourself or property or might enhance the risk of deadly violence. And that's why

we're focusing in on the open carry question. Well, I'm sure we'll get many comments in the comments section on today's as well as we did on last week's. But thank you all for sending in. A lot of you wanted to talk about that Texas case. Again, I got comments that I said that the Rittenhouse case was tragic because people pointed out that, well, some people pointed out that I got comments that I said that the Rittenhouse case was tragic.

Because people pointed out that, well, some people pointed out that like one of these people was a man in need of killing. That's not how the law works. But also, I think what I find particularly tragic about this is that I think it was a coin flip of who ended up dead in that situation. I think it could have been Rittenhouse. I think it could have been, you know, all three of the people he shot. None of the, you know, like, so same in this Texas case. I think it's a coin flip who ends up dead or both of them could have ended up dead.

That's the tragedy to me. I don't think there are any, you know, good outcomes there where a bunch of people can end up dead slash will end up dead. And I think that for those who question that, like, imagine if Rittenhouse were the only person killed. And I think that the people who would have shot him in that situation probably would have also been acquitted under a self-defense theory. Would you have been okay with that? Or would you have found that to be a tragic

situation? I think it's tragic. Either way. Yeah. The rioters shouldn't have been there riding. One of the guys who was shot in the bicep, the guy who lived, was a medic. So I don't think there's any... He was there trying to

perform the duties of a medic, let me put it that way. I don't think there's any allegation that he was a rioter. He pulled his gun on somebody that he thought had just murdered somebody. to be a medic and none for the guy who had his bicep vaporized when he was there trying to be a medic and pulled his gun on somebody that he thought had just murdered someone um i find it you know so i think to say that this is tragic is just a simple human response when you watch yes none of them should have been there like i yeah to your point david i I'm not in favor of looting and rioting. They shouldn't have been there. But that's not the point. Shouldn't have been there shouldn't cost you your life either. Right. Exactly. Exactly. And it shouldn't have cost Rittenhouse his life. I don't think he should have been there. Yeah. I mean, we said in the podcast that he had a valid self-defense claim.

We had a valid self-defense claim. But this goes to a point that I've been making and people have been very upset about. People want me to say this. He had a valid self-defense claim. And by the way, he's a really good kid. And he was just trying to do what's right. Look, when I say that it's foolish or reckless to go down to a riot when you're 17 years old with no training with an AR-15, I'm not saying he had bad intent. Foolishness is not the same thing as villainy, okay? It can still be foolish.

It can still be reckless. And the other thing that I find really interesting about a lot of this commentary is, I've said this before, I'll say it again, a lot of the people furiously typing away at their keyboards about the proper responses to riots, A, would never in a million years send their kid to a riot with a rifle.

Not in a million years. All right, all right. Well, all right, all right, all right. Now that Matthew McConaughey isn't running for governor of Texas. I think we've said our piece. We've talked about self-defense now several times in this podcast.

Hopefully this can be it. And you know what? Like more fun history questions. That was really great. So David, let's wrap it up. Yes. Well, I got to compliment you guys, dear listeners. We asked, you answered.

We said, you know what? We have 1,800 ratings on Apple Podcast. The Dispatch Podcast has 1,900. Can you go rate us to get to 2,000 first? And you know what? You did. You did. The flagship has 2000 ratings.

The Dispatch Podcast, one of our escort ships. Let's look at the Dispatch Podcast array like a task force. The USS Advisory Opinions with Admiral Isger's flag flying from it is like the aircraft carrier. Then you've got, you know, USS Remnant, the mighty battleship next to us, and USS Dispatch Podcast with its, you know, a cruiser next to us. But we're still the flagship. We have our 2,000 ratings. You asked, we asked, you answered.

Thank you. So please keep it up. Please keep it up. Please keep it up. It's actually one of the ways that people find us are by these ratings, believe it or not. It helps people who are trying to find the best legal podcast in podcast world. It helps them find us. So please go rate us.

And please subscribe when you do. And also please check us out at thedispatch.com. And we'll be back on Thursday. And you know what we're going to be talking about on Thursday, Sarah? What? The oral argument in the Dobbs case. Ma, it's time! Yes, on Wednesday, you're going to have the oral argument in Dobbs,

the case that may, may end the Roe-Casey legal regime. We're going to have analysis. So you're not going to want to miss that podcast. That is coming Thursday, and we will talk to you then. When you're working out at Planet Fitness, it's a judgment-free zone, so you can really step up your workout. That's why we've got treadmills. And our team members are here to help, so you can be carefree with the free weights. There are also balance balls, bikes, cables, kettlebells, and TRX equipment.

But, like, no pressure. Get started at Planet Fitness today for $1 down and then only $15 a month. Hurry, this great offer ends April 12th. $49 annual fee applies. See Home Club for details.