OA600: Why Police Don't Have To Do Their Jobs

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 600. I'm Thomas. That's Andrew Torres Esquire. How you doing?

0:01:21 Andrew: I am fantastic. I'm extra fantastic today. 600 is a pretty great milestone.

0:01:31 Thomas: Yeah. Yeah, that's a lot.

0:01:35 Andrew: Done a lot of show, man.

0:01:36 Thomas: Can you believe we've recorded 600 of these frigging things? Plus, you know, about a hundred other things, bonus things. And you know, what's funny is we just hit LAM 60 as well. Lots of milestones. We alluded to it last week. We have a special segment planned. We're going to go over some of the lexicon of the show. Some of the things that we say that people who have listened since episode one probably get, but new listeners may not have any idea why we are saying these weird things. It's fun. You know, I think a lot of podcasts develop that common kind of language, kind the in jokes, all that kind of stuff. We're going to go through some of those. It'll be a really fun segment. And to balance that out, we have then a deep dive on Castle Rock v. Gonzalez. So a roller coaster, but it's a fun one. You know what? I like roller coasters.

0:01:53 Andrew: And I hate roller coasters, but I love the show. And

0:02:24 Thomas: Oh, I love roller coosters.

0:02:27 Clip: Down the law, down the law.

0:02:31 Andrew: So if you absorbed coverage of the Uvalde shooting, you probably know two things: one, that there are continuing questions about the police's response to that shooting or lack thereof. And number two, that that is usually accompanied by, the Supreme Court ruled that police have no duty to help you. And that citation where it is attributed to anything is attributed to a 2005 Supreme Court decision called Castle Rock versus Gonzalez. So I thought I would explain what the Castle Rock case actually stands for and how I, I don't want to say trivially easy. This will require organizing, but we can organize at the state level and make that moot, right? We can get around that rule if we get sufficient support. And so this is part two that we started last week of what we can actually do, right. You know, we're, absolutely.

0:02:53 Thomas: Yep. Wow.

0:03:27 Thomas: It's not exactly, I guess, related to gun violence, but it is a part of this whole package. And I guess my first question then would be, when you hear the, oh, they're not required to do anything, that sounds a little... Oh, another one we should have done in our list. Occupy Democrats-esque, Like, you is that really true? They don't have any obligation to help? Is that being overstated or is that real?

0:03:49 Andrew: Well, let me talk to you a little bit about the case, because I think there are ways in which that is overstated but ways in which that that is largely correct. So is the Castle Rock case. Jessica Gonzalez was a mother estranged from her still husband at the time. She was awarded, uh, custody of the, of the couple's three daughters, and the husband would, would show up and just take the kids, young kids, at times when he was not entitled to. And so she went to a state court and got a court order that prevented her estranged husband from just taking the kids outside of his court-ordered visitation rights.

So on one particular day, he pulls up at the neighborhood outside their house at about 5:30 p.m. and takes the kids without telling her. That violates that temporary restraining order. Jessica calls the police about two hours later. Right. Once she's knows that the kids are affirmatively missing and not, you know, playing hide and seek or whatever. Right, she shows the officers the TRO and the police officers say, sorry, we can't do anything about this. But, you know, call us if he doesn't bring the kids back by 10 o'clock.

Not what you're, you're supposed to do by the way when you have a lawful court order that says, know that that this person has, uh, violated an order of the court. So about 8 30 p.m., she's also Jessica's calling her husband, um, what I would imagine would be kind of non-stop. At about 8:30, he answers his cell phone and says, oh yeah, I got the kids, uh, we're in an amusement park in Denver, um. You You know, I'll bring him back eventually.

0:05:24 Andrew: So then she calls the police and says, hey, he's told me that they're at an amusement park. Can you go over, you know, send somebody out to the amusement park? And Supreme Court record doesn't list it, but I infer that he actually specified the name of the park. Right. So, yeah, he told me where he is. Send somebody out, the look for his car or look for this guy. Put out an all points bulletin, and right, the police were like, yeah, no, we're not going to do that, but again, you he doesn't bring it back by 10 o'clock, call us then.

0:05:55 Thomas: Any idea why they decided to just not be at all helpful or does that not matter?

0:05:59 Andrew: Not in the record, we do not know. So at about 10:10, she calls the police again and says, um, okay, you blew me off twice, it's now after 10, what are you gonna do, and they're like, well, well, if he doesn't bring it back by midnight, why don't you call us? Now, again, just put yourself in her shoes for a minute.

0:06:00 Thomas: Okay. Yeah, no freaking kidding.

0:06:20 Andrew: Then she calls it midnight and says, my kids are still missing and got nothing. So now it's after midnight. Jessica goes over to her husband's apartment. There's no one there. At 12:10, she calls back. And then they finally say, all right, we're going to send out an officer to his apartment. You wait there. Then she waits for 45 minutes. No officer shows up. So now she drives down to the police station. It's almost one in the morning and she fills out an incident report. And the Supreme Court record says the officer who took the report, quote, "made no reasonable effort to enforce the TRO or locate the three children. Instead, he went to dinner." She's been stonewalled by the cops at every single turn.

Content warning here, this is not going to be graphic, but this takes a dark and violent turn, so if you don't want to hear that, skip, skip ahead 15 seconds. Three hours later, the husband arrives at the police station, opens fire with a semi-automatic handgun that he'd bought earlier in the evening. Police shoot back, killing him, and inside the cab of the pickup truck they find the bodies of the three little girls whom he had already murdered. As you might imagine, uh, Jessica decided that she was going to file a lawsuit suit against the police department. The basis for this was the 14th Amendment's guarantee that the state may not deprive you of life, liberty, or property without due process of law.

0:07:10 Thomas: Fantastic.

0:07:45 Thomas: Does that make sense? Is the? I would have thought this claim would be something other than that, I guess.

0:07:49 Andrew: Yeah, that's a great question, and I'm going to explain why it was characterized this way. No, I'm glad you point that out. So there had already been a prior Supreme Court ruling in a case called DeShaney versus Winnebago County Department of Social Services from 1989 that says, hey, when a government service fails to do its job, you do not have a liberty interest in making sure that they do that. OK, and that was Child Protective Services failed to protect a young boy from his abusive father. Right. And the mother sued. You can sue under Section 1983 when 42 USC Section 1983, whenever a state actor violates your civil rights. But Jessica thought that she had a different case that was distinguishable from just the Deshaney approach.

0:07:53 Thomas: Yeah.

0:08:41 Andrew: Because Right. She wasn't just saying, hey, you have a generalized duty to protect the public. She was saying, I have a specific court-ordered restraining order, and that restraining order does not say, hey, use your best efforts if he comes within 500 feet of my daughter's. It says, you must show up and remove him. And you decided to read you must as, eh, I'm going to go to dinner instead. And so the argument that she brought was, I have a property right in this restraining order. Now, property is going to sound very, very weird here, But it actually stems from the way that these kinds of cases have been treated in the law for the past 50 years, particularly a case called Board of Regents of State Colleges versus Roth from 1972. And the question is whether a state actor has the discretion to do something or whether they're required to do something. Let let me quote from the case.

The central question in this case, according from the Supreme Court, is whether as a matter of Colorado law, respondent had a right to police assistance comparable to the right she would, would have possessed to any other service by the government or a private firm, had they been so engaged.

So when you think about it that way, right, suppose you had hired a private detective, right, and you said, hey, private detective, your job, you know, bodyguard, right, your job is to accompany me and to, you know, keep me safe from threats, and the bodyguard is like, that's cool, takes your money and then goes to dinner.

0:08:52 Thomas: Yeah. Right. Yeah. Right.

0:10:23 Andrew: Is like, and then you know you get shot while the bodyguard's away at dinner. Well, what we would describe in the law is we would prescribe that as a breach of contract. We would described that as, yeah, you had a property right, you paid the bodyguard to come protect you and he decided not to do that. That's a legally cognizant property right that you had in the right to receive those services, right, because the right-to-receive services is a kind property.

So characterizing it as a property right, Jessica was able to pitch, to pitch this as, and again this is relying on past precedent, that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion. Right. So that's the, yeah, I get it, just generally doing stuff. But as 10th, the Circuit Court of Appeals decided, and by the way, not only was, was this affirmed by the panel, but then that was re-heard en banc and affirmed en banc. That is the entire 10th Circuit. That's what en banc means.

Determined that under Colorado law, there was an affirmative entitlement to the enforcement of the restraining order because, quote, "the court-issued restraining order specifically dictated that its terms must be enforced and a state statute commanded enforcement of the order when certain conditions were met," right, that was, there was probable cause to believe that the order had been violated and the object of the order head received notice of its existence. So the tenth Circuit said, yeah, this does not give the police the discretion not to do this, therefore it contains a cognizable property right equivalent, if you'd hired a private bodyguard. So, yeah, you, you are entitled to this. And therefore, when they did not give that to you,

0:10:50 Thomas: Yeah. Okay.

0:12:11 Andrew: That deprives you of life, liberty or property without due process of law under the 14th Amendment. And you are entitled to recover from those police officers.

0:12:16 Thomas: End of story, good.

0:12:21 Andrew: Yeah. Supreme Court reversed, seven to two, this is 2005, the somewhat liberal wing, David Souter and Justice Breyer, wrote concurrences, the, what was then the far left wing was John Paul Stevens and Ruth Bader Ginsburg, who actually dissented from the result.

0:12:42 Thomas: This Is, I don't understand this, what, I in the world, old was their reasoning.

0:12:46 Andrew: Is the majority opinion, it says the 10th Circuit concluded, uh, that all of that taken together established the Colorado legislature's clear intent to alter the fact that the police were not just enforcing domestic abuse restraining orders, and thus its intent that the recipient of a domestic abuse retraining order have an, an entitlement to its enforcement, right, that's what the 10th Circuit decided. Any other result, it said, would render domestic abuse restraining orders utterly valueless. So seizing on that language from the 10th Circuit, the Supreme Court said the last statement is sheer hyperbole. Whether or not respondent had a right to enforce the restraining order, it rendered certain otherwise lawful conduct by her husband both criminal and in contempt of court. The, the creation of grounds on which he could be arrested, criminally prosecuted, and held in contempt was hardly valueless, even if the prospect of those sanctions ultimately failed to prevent him from committing three murders and a suicide.

0:13:41 Andrew: We do not believe that these provisions of the Colorado law truly made enforcement of restraining orders mandatory. A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. So think about what the Supreme Court has done. It took Colorado law and said, notwithstanding the fact that Colorado law seems pretty clearly to make this mandatory, we're going to interpret it the opposite. We're goingto say, no, this can still exist alongside police discretion.

0:14:12 Thomas: Why?

0:14:12 Andrew: As the dissent points out, if you were really modest about this, If you were not just trying to achieve the pro-police result, you could have certified the question to the Colorado State Supreme Court, Ask them, hey, how do you interpret your own laws instead of the Supreme Court deciding how to interpret Colorado law? Yeah, it really is.

0:14:25 Thomas: Yeah, this is unbelievable. And Breyer signed on to this effing thing.

0:14:34 Andrew: Indeed he did. But here's the silver lining. Because this is about what how to interpret the state law. State laws can override the Supreme Court here. I know that that seems kind of counterintuitive. You're like, wait, the Supreme Court is the highest court, the highest law on the land. But they were inferring that state law did not confer a property right, did not confer an entitlement to protection. If you pass at the state level a law tomorrow that says, yes, police protection at public schools is an entitlement of every public school student. Yeah. And you could even specify, right, this is sufficient to meet the Supreme Court's test in Roth, And add the police do not have discretion to ignore or fail to use their best efforts to protect children. You pass that tomorrow and all of a sudden this Supreme Court decision goes away and there is nothing that the Supreme court can do about it.

0:14:48 Thomas: Yes.

0:15:10 Thomas: A no duh clause.

0:15:35 Thomas: I just want to make sure I'm clear on this. So this was the wording Wording of the law in Colorado, the Supreme Court takes it up. And rather than, as you say, just saying, well, I guess we'll let Colorado courts decide what their law meant, they then made it. So the whole is this apply to the whole nation? Like all of a sudden, this same standard is the entire nation's standard since then.

0:15:56 Andrew: So, The answer to that is it is not the holding that applies to the entire nation, right? You could potentially argue that different state laws are not, are written differently, and so that that would be what we call in the law distinguishing this case. But the practical effect has been this gets cited as you do not have a property right in police protecting the public. And there have been no subsequent cases that challenge this that have gotten up to the Supreme Court level. So it has had a tremendous chilling effect on people claiming that it is a violation of their civil rights when police officers are brazenly indifferent to the job that they're supposed to do.

0:16:24 Thomas: Hmm.

0:16:40 Thomas: Do you think it's fair to say that this case was maybe not as important as we think on this? Because it sounds to me like it was already well established that if there was any discretion at all, then police had no obligation to you and you have no right. Right. But this case was so blatantly like yet letter of the law, the wording on the actual order, restraining the order is they must do it. And this is saying, no, even then now, you know, so it sounds to me more like even if that ruling had never happened, that police just standing around and letting the shooter kill people for 45 minutes. It's, from this case, that still wouldn't matter, right? They still wouldn't have had any obligation there.

0:17:20 Andrew: If, If you were to bring in that hypothetical universe where you have the DeShaney case from 1989, but you do not have this Castle Rock decision from 2005, I, I think that you are correct that a 1983 suit, the police officer's defense would be, yeah, no, we had lots of discretion, so There was no entitlement. I, I, I think you would have an argument, right, that there are conditions with being at a school that give rise to that entitlement. Like, and I would point to, you truancy, mandatory attendance laws, that kind of thing. It would be a hard argument in that alternate history. It obviously is foreclosed in the universe that we live in. But again, the significance is we can undo this, right?

0:17:39 Thomas: Mm-hmm.

0:18:06 Thomas: So do you think it's fair to say that maybe this case isn't, as important in this as it's made out to be?

0:18:10 Andrew: I think this case is the I terminal endpoint of the directionality at the Supreme Court that says, yeah, you're not entitled to government services, even when we say you're entitled to them.

0:18:14 Thomas: Hmm. Right. Yeah, that makes sense.

0:18:24 Andrew: And so, yeah. That's why this case gets cited as the case that says you I said the state is powerless to help you.

0:18:24 Thomas: Yeah, yeah. It's sort of like the exclamation point on the whole thing. Okay, gotcha.

0:18:31 Andrew: Yeah, exactly right. Exactly Right. Yeah. But I would say this, for our listeners who live in blue states, this is a great opportunity to start talking to state officials about enshrining in law the duty of police to respond in school shooting situations. Use the language that I described. Yes, police protection at public schools is an entitlement owed to every public school student by virtue of fact the that they are required to attend public schools.

0:19:02 Thomas: Yeah.

0:19:03 Andrew: Right. I

0:19:03 Thomas: Yeah. You know, what drives me the most nuts about this is is I wouldn't have thought this would necessarily be like some right wing issue, you you phrase it as the pro police thing. But like if you took them at their word that it's actually about like, you know, law and order and safety and whatever things that I do think that your average Republican is invested in law and order and safety. I would think if you asked your average Republican voter, they would say, well, yeah, the police, you know, that's why it's a dangerous job. They have an obligation to help you. I don't even understand. This just makes it seem as though really all they care about is the police union vote, not an actual sense of safety from the police and their job. I mean, I know it's Supreme Court decision, but like the fact the right that part of the court would would even lean that way is confusing to me.

0:19:46 Andrew: I wouldn't say that I disagree with, your sort of cynical view there. I think the this is the intersection of the kind of generic pro police, pro law and order with the much more well-established and superseding principle that guides the right of. Oh, no. Look, if this is a regulation, if it holds if it's government holding anybody accountable, that's a regulation and it's bad and we want it gone.

0:20:09 Thomas: Yeah. Yeah. True. Yeah.

0:20:13 Andrew: And that's how I square that circle. So the lesson I take away from that is that however much a conservative says, oh, I value X, they value not having laws more than that. And that that's worth drilling down on if you're in a discussion with an actual Uncle Frank.

0:20:30 Thomas: So, What in the world was Breyer thinking? Did they, you said they issued a concurrence, did they present like a different line of argument as to why this makes sense from a not crazy point of view?

0:20:42 Andrew: No, I have to tell you, Thomas, the the Souter and Breyer concurrence is actually worse than than the decision. So it says, so it begins with, yeah, I agree, uh, that Jessica, that Gonzalez has shown no violation of an interest protected by the 14th Amendment's due process clause. We write separately to say, by the way, anything we're talking about here is just a procedural protection. And they, quote, presuppose no enforceable substantive entitlement and thus could not possibly rise to the level of property. So, yeah, no, this is not an attempt to sort of reach the same result, but offer an alternative reason. But rather to say, oh, yeah, in addition to everything bad that the majority opinion says, there's also this additional reason not

0:20:50 Thomas: Great. Hmm.

0:21:00 Thomas: Wow.

0:21:31 Andrew: To reach that result.

0:21:31 Thomas: Well, I'm I'm glad those two people are no longer on the court. That's nice, know. OK, so the parents as of now, unless, by the way, the main message is change the laws at the state level, get get active. This is something we can change at the state. I don't want that to get lost because that's great, great point. It's been the answer to a lot of this stuff. So, yes, let's organize change on the state label. Level.

I understand that this case, this says that parents probably have no recourse in terms of them not going in, but it seems to me from the reporting I'm seeing from some of video the that I'm, again, I'm I cannot watch, but I did get some of the coverage on how the police responded because I thought like, oh, I can handle that. And it turns turns out it's just about as triggering. By the way, they seem to be restraining parents. Is there anything there?

Like, not only did you not go in, you stopped me from potentially maybe going in and helping. Is there any, you know, there? That would probably be a different cause of action, I would think, maybe.

0:22:22 Andrew: So again, we're still talking about a 42 USC section 1983 claim. That's what you bring against police officers that violate your civil rights. And the question there is, do I have a civil right as a parent to enter a school and save my kid?

0:22:38 Thomas: To go save my kid from being killed?

0:22:41 Andrew: And That seems like a pretty good argument to me. So I'm glad bring you this up at the end. I do not think that there is clear adjudication on this matter. And I would distinguish the argument of you failed to do an affirmative thing from a stronger argument in light of the Castle Rock decision of, no, you also affirmatively deprived me of something tangible. Right?

0:22:41 Thomas: Yeah. Hmm. Yeah.

0:23:07 Andrew: A tangible liberty, like restraint, stopping somebody is the definition of interfering with their liberty, right? Like, hey, I was about to go into the school, had you not been there, I would have gone into the school and you prevented me from doing that. So I think you will see Section 1983 claims against these officers and, you we'll have to see how that plays out.

0:23:13 Thomas: Yeah. Yeah. Yeah. Is it just going to be the kind of thing where it's still like a discretion thing? Like, oh, we judge that for the safety of the blah, blah, blah, that that was what a police action we should take.

0:23:35 Andrew: I I will tell you, in the research that I did in preparing for this segment, I did not see a clear determination one way or the other in terms of the affirmative restraint component. So if I'm missing, you I know our listeners will write in and say, oh yeah, no, that was plainly decided in X particular case. I, I don't see a clear answer on that, but, uh, again, you was mostly answering the question of the failure to do your job as opposed to the affirmative interference, and that's, that is also worth pointing out. So, uh, we are very likely to see Section 1983 lawsuits against these officers. It

0:24:16 Thomas: All right. Well. Thanks for that deep dive. Very interesting. And we'll keep an eye on how any of those cases develop.

0:24:17 Andrew: I I just want to add one more thing. If you're in a red state, right, then at least start asking this as a question, right? Ted Cruz came out and immediately said, well, you know, the, the way to solve these school shootings is not gun control, role, but to have more cops and active shooter training, never minding, you that they had active shooter trading at the school. Like, somebody, if a right-wing politician tells you the solution is more cops, than ask, okay, do you agree with passing state laws that would require the cops to actually do their jobs? Pin them down, hold them to it.

0:24:52 Thomas: Yeah. And I imagine they might. This is an issue that I bet is mainly ignorance, I think. I bet, I you feel like this is one of those many things that, you it's hard for the public to be perfectly informed on every issue, let alone, a legal you quirky type thing. And maybe most people don't know that this exists.

0:24:54 Andrew: Yeah. Yeah.

0:25:09 Andrew: And, and even though the, the reporting does not go into the opinion in depth, it is largely correct from, you a 30,000 foot level, right? Which is to say, 2005 Supreme Court decisions said the cops don't have to come in and help you.

0:25:25 Andrew: That's that's fair. You're not you're not getting a misleading picture of the law. What you are getting a misleading picture of is you would think, oh, with the Supreme Court said that only the Supreme Court can take that away. And that's not true. That's why I want to keep going back to that. You can organize around this at the state level, I and would encourage you to do that.

0:25:30 Thomas: OK, right.

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0:27:12 Clip: He who questions training, only trains himself at asking questions. What?

0:27:20 Andrew: We asked our patrons, we asked the people who know us best what questions they might have. And was a fair amount. So why don't we get to it?

0:27:29 Thomas: So step one, I love you wrote it down, Andrew, is just point of the show, which I love to imagine a bunch of people responded to your query by just being like, yeah, what is the point of this show? Long-time listener, first-time caller, what do you say you do here?

0:27:45 Andrew: So what we do here is we try and break down stories that are in the news that have a legal component. I'm the lawyer, and I try and translate that from legalese into real English, and you are are the real human that can tell me if I'm doing my job correctly or not. And we've evolved a little bit since, uh, planning the show in August of 2016, which was a slightly different time

0:28:04 Thomas: Allegedly. Yeah. Yeah, Andrew used to be a devoted institutionalist, and now he's like 60% that, I think.

0:28:15 Andrew: Yeah. I think that's, I think that's right. Um, so yes, the show absolutely has a political perspective. We are left of center, in some cases very left of center, and proud of it

0:28:30 Thomas: I consider myself a progressive, but yeah, sure.

0:28:32 Andrew: Yeah, I consider myself a progressive, absolutely. So that's what you're going to get. Do you always get political content? Absolutely not.

0:28:40 Thomas: And we wouldn't want you to always get political content. It's not the pointof show. Yeah.

0:28:40 Andrew: Um, in right You will end This deep dive, because you know, we are recording this at a time, uh, that is still just a couple of days out from the Uvalde school shooting, and we're trying to empower our listeners to understand and do something about what happened in terms of building a better future. But um, it's not always, we cover any story that's out there and interesting that has a legal component to it that maybe the mainstream press is not not exactly getting right. Oh,

0:29:13 Thomas: And, you know, on the topic of this very broad, it's almost like our bios and our shows bio. You say you're the lawyer, but once you briefly give a, you know, like an outline of what that means, what's your what's Your lawyerly past?

0:29:27 Andrew: Okay, so I, not not to self-promote, I am a graduate of Harvard Law School, class of 1997, with honors.

0:29:33 Thomas: What I've never heard you

0:29:35 Andrew: I know, uh, one year behind, sorry, Ted Cruz, which was not listed on this list, but when you hear references to my good buddy Ted Cruz that's where that comes from, graduated from law school, went to clerk for the Maryland Court of Appeals, which is a state supreme court, left the clerkship, went to Covington and Burling, which now one of the largest law firms in the world, and you'll hear a little bit more on that, put a pin in that for later. As long as we're doing all of my

0:29:35 Thomas: Mentioned that before. Oh, yeah. That's what that that means. That is a good one. Yeah.

0:30:08 Andrew: Habits here.

0:30:08 Thomas: And put a pin in it. Yeah,

0:30:10 Andrew: And in 2015, I left the world of big law. I was a partner at another firm called Zuckerman Spader, and I left that world to start my own law firm and do this, which began, as we said, in August of 2016. So I've traveled the legal world rather extensively. I'm a civil lawyer. I've never been a prosecutor or a public defender or criminal defense attorney. It does not stop me from having opinions on those things.

0:30:39 Andrew: And I try and bracket where something comes from my direct experience versus, you know, where it comes from what is hopefully an informed legal perspective, but maybe not necessarily within the areas in which I practice. How about you, Thomas? Thomas.

0:30:39 Thomas: Who cares? I could interview you for hours, but we got 20 of these things to get through. So, but I think it's important to establish, you know, for new listeners, kind of the expertise of the show and where that comes from and where you're not, unlike a lot of popular media, internet stuff these days, you're not just some guy, a lot of, a lot of I'm just some guys, but, but I think a lot of people in this country, in this environment, get their news, their commentary, their whatever, their breakdowns from just some guy. And I think it's important to note that you're bringing much more than, than that to bear. Not. Let's go to the next one.

0:31:01 Andrew: Yeah.

0:31:31 Andrew: Lots of people. Lots want to know who does the introductory music, which is amazing. And who did the voiceover for don't take legal advice from a podcast.

0:31:41 Thomas: I wrote, wrote and recorded the, the the intro music. It's, it's been long enough that I feel like, could I do a way better job now, but it's okay, so it's there, people like it's fine. Um, so yeah, no, I write the music for all my shows. Um. And Lydia is the lovely voiceover that I, I love so much that "Don't Take Legal Advice From a Podcast" will live forever, even though we re-recorded part of that for, uh, better sound purposes, and for changing, I think we changed a few of the things, but that "Don't Take Legal Advice From for a Podcast," uh, that take is gold, you

0:32:11 Andrew: And that is your beautiful and lovely wife, Lydia and mother of your two children. So

0:32:16 Thomas: Oh, did I not say my wife, Lydia? Oh. Sorry, I, that was just me assuming I said that, yeah, sorry about that, ah.

0:32:19 Andrew: Yeah, that's who she is. Next up, Thomas, what what is T3BE? What is what Thomas's second chance law firm?

0:32:25 Thomas: Ah, so I mean, we originally named it Thomas takes the bar exam. You know, I think we need to give credit to, because I believe Eli Bosnick, another item on this list, originally came up with the idea, at least in some form. Or we just both came up With it at the same time. And then he said it was his idea. I don't remember something like that. Happen.

0:32:46 Andrew: I think it's that one.

0:32:47 Thomas: Yeah. But, uh, yeah, no, the, the idea, and I think it started not immediately on the show, but within, 10 episodes, 20 episodes, it was early on, I think, right. To try out, have the lay person try to take, know, a bar exam question. And also the point was to illustrate where the law may or may not be just something a reasonable person would guess, you know, to oftentimes I'll phrase it that way is I'm just picking kind of the reasonable answer. Like, here's how I would hope things would work. And it's right a lot of the time.

Well, I shouldn't say a lot because my score is like 50 percent, but it's right a chunk of the time and other times it's it's more complicated. So it's hard to even know what that answer is. And that's the challenge. But that eventually was a listener suggested to be abbreviated T3BE because it's Thomas takes the bar exam. And we thought T3 BE sounds nice. I love And it.

Then the second chance law firm, what happened, ended up, we noticed a pattern that I was very often able to narrow it down to two answers and then, you know, whether I'd pick the right one from there was question that didn't always happen.

0:32:47 Andrew: Yeah. Mm hmm.

0:33:49 Thomas: And so the joke became that I'm going to open up my own law firm, and I can guarantee you that I will get you the correct legal answer half the time, or at least with two tries. Like, within two tries, I will provide great legal service to you. And so that was Thomas's Second Chance Law Firm.

0:34:04 Andrew: I love it. And it's true. I think we did we some tests, but you're probably in the 90s if we just take, you your top two answers.

0:34:10 Thomas: Oh, All right. Next one here. Yodel Mountain. Boy.

0:34:15 Andrew: Oh, well, yeah, this is the largest fail of my career. This stemmed from January of 2017, which is to say, upon inauguration of Donald Trump, folks began asking what would it take to impeach Donald Trump, because he began the day after his inauguration with committing crimes and that did not stop throughout his presidency and, I, in unbelievable irrational exuberance in terms of assuming that the present would be like the past, tried to look at the downfall of Richard Nixon as kind of a guide. And the analogy I came up with on the spot, this was an unplanned question, was the little Price Is Right pricing game with the yodeler climbing up the mountain,

0:34:15 Thomas: Yeah. Yeah. Yeah. All the time.

0:35:06 Thomas: Yeah.

0:35:06 Andrew: Right? You had to guess a series of prizes. And every time you were off by a dollar, the yodeler would move one step up, and it was a super catchy kind of great yodeling music. And the idea was, yeah, one thing was not going to bring down Trump, but all of them moved him higher and higher up Yodel Mountain. And at some point he would fall over the cliff. Um, uh, spoiler alert, the

0:35:29 Thomas: The mountain just goes on forever. It's an infinite effing mountain.

0:35:30 Andrew: Mountain the mountain is is very high, and in a way that I did not anticipate, and we could could psychoanalyze that for a very, very long time, and I think we will continue to, but

0:35:33 Thomas: Yes. Yeah. Yeah. Rather than there being a tipping point of Republicans not supporting him, it turns out the Republicans were actually up there building more mountain for him constantly. So that, that, but I don't remember if, did I actually call it Yodel Mountain or did you call it? I don't Sounds t know. Like the kind of flourish I would have added to your definite, oh, definitely your concept. But yeah, I couldn't remember if that was, that was also you or not. Who knows? But then there was also Yodel Mount Remembers. There was other Yodel Mountain things. And then were a lot of fun until it became clear that we live in a dystopia and no amount of yodeling would ever fix anything. And it became less

0:35:42 Andrew: Yeah. Yeah. No, that's right, so, I gave the analogy but you may may have you may have yeah, yep, that was rough yeah.

0:36:13 Thomas: Fun. So we kind of got away from the idea, despite the fact that at the time it was a gag. Okay. Sternly worded crunch rap. This is one of my favorites. And we asked in a Q&A and we couldn't remember where it came came from. I started to tell the story as though when I started talking, the answer would come out, and then I realized that that wasn't happening. The answer was not coming out of my face. I was like, I don't know. And so Teresa Gomez who should should also be on this list. What would you call Teresa other than the best person?

0:36:20 Andrew: Yeah.

0:36:37 Andrew: She's did, she's the best person, on earth, she runs, the OA Wiki, which is just amazing, uh, yeah.

0:36:43 Thomas: Best person. Right. Just recovered from a Russian hack, that OA wiki. For real.

0:36:49 Andrew: Which was literally hacked by the Russian government. Um, she handles our merch at live shows. She's, she's the best.

0:36:51 Thomas: Yeah. She's the best. So she did a little research into the Crunchwrap.

0:36:56 Andrew: Um, yeah, and as it turns out, so we could explain it generally, right, and the idea was folks had sort of poo-pooed some previous legal answers as, oh, well, so what you mean is somebody is going to write a sternly worded letter, right? So that's that was sort of in the background was, uh, any effort to hold Donald Trump accountable that didn't involve him going to jail was sort of dismissed by, uh, some of our listeners as, oh, yeah, another sternly worded letter, and then it could have been, and then within the first seven minutes, this is from Theresa's research, of Law'd Awful Movies episode 32, which is Sovereign Citizen Nonsense Three, so it was the third time we talked about sovereign citizens, and we were having a lot of fun. It was released August 30th, 2019, and in that first seven minutes we actually get to the first time, this is the the genesis of the sternly worded crunch rap, so I'm talking about one of the techniques that sovereign citizens use, which is to lie, and I

0:37:28 Thomas: Well, it might've been me, but yeah.

0:38:04 Andrew: Compared them to yeah, I compared him to David Barton, who just makes stuff up and then says, well, you know, as Thomas Jefferson said, quote, David Barton is the most virile man in American history, end of quote. And right, if you stick a credential, a certain number of people will just accept that.

0:38:05 Thomas: The main one, actually.

0:38:22 Andrew: And so I said, yeah, 18 U.S.C. 5 says that, Thomas, you have to send me a taco every Tuesday, and you mentioned that you were already doing that, although, though, as more of a prank than it, and then you riffed from that, this was truly hilarious, you were like, well, you know, if it were a Crunchwrap, it's basically its own envelope, you just throw a stamp on that bad boy, and the U.S. Postal Service has to deliver it, so

0:38:22 Thomas: Yeah, yeah.

0:38:46 Thomas: They're obligated. They got to take it.

0:38:47 Andrew: So that became mailing a crunch rap. It instantly took over. So sternly worded letter, yep,

0:38:53 Thomas: Yeah, probably the next time we talked about a sternly worded letter, maybe then we subbed in Crunchwrap for it.

0:38:59 Andrew: I think that's right, so that's. That's a sternly worded crunch rap now is used to mean any time the legal consequence is telling the bad actor not to do that again.

0:39:12 Thomas: Yeah, which is most of how our system is supposed to be run, unfortunately. We discovered in the years 2017 through 2021. I need to go buy me a Crunchwraps. Sorry, I'm going to take a break from the podcast. No, just kidding. All right, next one. 13th century Saxony. This is all you. I

0:39:16 Andrew: True. Yeah, that's right. So I don't remember exactly where it starts. It starts early on. This is entirely my creation. And I not to take credit for it, but to take the blame, because this is a little insider knowledge. If you're listening to this show for the first time, lawyers and people who listen to lawyers tend to be pedants, which I love. So here's the idea. We share a common law tradition with England. And what that means is for a lot of things, they're actually the underlying legal principles go back to before the founding of the United States.

0:39:29 Thomas: Mm-hmm. Yes. Yeah.

0:40:03 Thomas: The Magna

0:40:03 Andrew: Yeah, they can. In some Right. Cases now those. So, for example, like the common law definition of fraud or the commonlaw definition of murder. Those Right, actually do extend back hundreds, if not a thousand years. But Right? Mostly it doesn't matter. Right. Because, you for murder, almost every jurisdiction has replaced that with a statutory definition of murder. You're not just left with like, oh, what did the angles and the Saxons think about this? Right. However. In particular, when it comes to real property law, there are a lot of terms that

0:40:04 Thomas: Carta.

0:40:36 Thomas: Yeah.

0:40:36 Andrew: Are just left over from our common law heritage that you're like, like, oh, you, is this a bequest, is that, are you the grantor, is this in fee simple, it's, this is where people get the sense that legal language is Latin that just, you know, is utterly impenetrable, and to illustrate how much that's generally not the case, that, right, most of the law is pretty comprehensible if you just, you know, bring some common sense to, it. That's your answer on, you the point of T3BE. The times when it really does matter and you really are left with arcane language are things that I will call, yeah, we'll go back to 13th century Saxony law. Now, understand this, I get that Saxony was not a part of England in the 13th century, okay?

0:40:44 Thomas: Yeah.

0:41:25 Thomas: It's, yeah.

0:41:26 Andrew: The and now it is too delightful I'm never going to change it so yeah.

0:41:27 Thomas: Yeah. It's a funny sounding phrase as well, jokes don't always have to be literally exactly pedantically correct. Everybody can go ahead and chill.

0:41:29 Andrew: Yeah. Yep. Yeah. But I love pedantry. So I'm glad it's on this.

0:41:39 Thomas: I I guess the reason I'm reacting this way is because there is some very, very sincere anger on this on this issue, which I just thought was was too funny. So, yeah, nothing wrong with A little lighthearted pedantry, OK? Uh, next one, yeah.

0:41:48 Andrew: I find that delightful. So, I'm good. Yeah,

0:41:56 Thomas: What's a clown horn? So that comes from editor Brian, Brian Ziegenhagen, still one of my favorite people in the world, although I lament that since he's no longer editor, I don't get to talk to him as much. And yes, genuinely

0:42:06 Andrew: He left us to go found an amazing bakery. So we just get tempted by his delicious treats that he posts on Facebook.

0:42:14 Thomas: One of the greatest people. I love Brian so much, and I'm so glad that he's having tons of success with his bakery. Super cool. And he loved to, this show is, I'd call it PG-13, know, for you, the iTunes rules, you know, in order for to us to not put the explicit tag on there, which is something that we don't personally really care about, except the original idea was maybe this is something that, I don't know, could be listened to in some sort of classroom-esque setting, you know, because it's like a law education type show, so for that reason we made the decision, well, we won't drop f-bombs, well, you know, we'll, we'll keep it in some more vulgar language like, we'll keep that uh off the show, why not.

And so, but you know, when Trump was put into office, it started becoming harder and harder to not uh curse, and so when we actually did curse and it required an edit, it, Brian Ziegenhagen loved to use the clown horn sound. And so that became clown horning. And to call that a clown horn, like this clown horn, and clown horn is a funny thing to say. Now, as an editor, I don't like the clownhorn. It's

0:42:55 Andrew: Yeah

0:43:15 Thomas: An aesthetic choice. I like the bleep. I think the bleEP sounds more satisfying. Personally, just audio wise, I like that. You there's something about it, getting to hear the letters before and after, the sounds before and after the beep and the beep in the middle, it's satisfying to me. So I changed to that. But it's still funnier to say clownhorning. So we kind of got the best of both worlds. We hear the sensor beep, but when we call someone a clown or a clownhorn, we're still getting the benefit of that being a funny phrase. So, love it.

0:43:15 Andrew: And people will tweet the clown emoji and the horn emoji at us and it's just, I love that too.

0:43:49 Thomas: It's fantastic. Andrew, what is the howler monkey contingent?

0:43:49 Andrew: Yeah If, if you have never seen howler monkeys, go ahead and, pull you that up on YouTube, and I think that is a perfect way to describe the activist, right, right-wing of our Supreme Court, which uh consists of the five most rightward judges, who uh do not care at all.

0:44:11 Thomas: Well, let's talk about that because if I remember correctly, I think this was first used when it was was more about, you know, the court was obviously it wasn't great, but it was more like a more centrist, sensible court. And then there was Alito and Thomas who who were The Howler Monkey contingent. They're just these two nut jobs who would write the weirdest dissents full of just their own feces. And so they were The howler monkey contingent, but now that's just called the court.

0:44:12 Andrew: Right.

0:44:37 Thomas: That's just the whole, yeah, they are a zoo.

0:44:37 Andrew: And now we've added three more that are like that. That is exactly correct. So yeah

0:44:42 Thomas: Like the court is a zoo and they're just howler monkeys. And then a few sensible people. Yeah. Sad.

0:44:47 Andrew: Yep, that is exactly right. So it refers to Alito, Thomas, Cavanaugh, Gorsuch and Amy Coney Barrett, yeah.

0:44:54 Thomas: Not, and not really Roberts, but sometimes Roberts, you know, Roberts in his descent on the gay marriage case.

0:44:57 Andrew: I mean you know Obergefell, yeah

0:45:01 Thomas: Yeah, that's, that'S a howler monkey right there.

0:45:01 Andrew: Yeah All right, Thomas, who are Uncle Frank and Aunt Kathy, yeah?

0:45:06 Thomas: Oh, this IS definitely a you, thing. I think, I don't think I invented this. This definitely you. But uncle Frank was the idea of, trying of to, with our incredible polarization in this country, Andrew sits us down and sits Uncle Frank down for a conversation, that means he's trying to construct the show and the arguments in such a way that may even appeal to not your, you not dyed in the wool QAnon Trump or whatever. There's no getting to those people, really, at least without, not with an episode. Episode. But maybe it will be an argument that's so ironclad, so sensible that even your Uncle Frank, who is a Republican, lot, voted for Trump, you know, but is not like a super huge Trump fan. Maybe that would appeal to your Uncle Frank. That was the I think the archetype Uncle Frank that we were going for. And I think Uncle Frank, I think, is an endangered species.

0:45:53 Thomas: I think there are so few you uncles, Frank, these days that it became, we don't say it as much, I don't think, but that's the idea behind it.

0:45:59 Andrew: Yeah No, I, I think that's right. I, but that was the initial thought was, you know, Fox News viewer, somebody who's not a regular listener of the show who would turn it off in the first five minutes. Hey, but you know, not so far lost that that they can't talk to them.

0:46:10 Thomas: Yeah. Yeah, they didn't have a tiki torch in Charlottesville or anything, but yeah, exactly. Oh, Andrew, here we go, here's one. This is Code Factory Law Firms. Actually I vividly remember this. This is related to T3BE. So when we first started T3 BE, I had envisioned a bit, and we did a bit more of a skit-like premise. It was like, oh, the joke was Andrew's going to see if I can be admitted to, as a partner basically, to his law firm. And I jokingly wrote the name of the law firm because I knew it was Covington and Burling.

I joked that the name would be Covingtin and Burlington Coat Factory. And so from then on, more, you adopted this. I just did that as a one joke for kind of poking fun at the firm that you worked at, but then you sort of adopted the Covington Burlington coat factory language. And then you shortened it to coat factory lawyers, meaning like white shoe, just any kind of big law firm type thing, which is, I imagine is one of the more confusing things on this list. When the average person just hears you say factory coat factory lawyers, you know, they're like, what in the hell is their big coat factory? Like, you know like asbestos kind of thing where there's just a bunch of that kind of lawyer that works at coat factories.

0:46:16 Andrew: Yeah. Yeah, exactly. Right. Yeah And I like having that, that little bit of... makes you, you know, slow down the show if you're listening at 1.5x and just think about, "We did he just say coat factory law?" But yeah, it just means, it means big law. It means big firm law, it means white shoe firm, and and I love it. Thomas, you have to answer this one because otherwise I'll go on for an hour and a half. Is uh, Optimist Prime and Negatron

0:47:46 Thomas: I Andrew's often, especially early on in the show, been the sunny optimist about what's going on and about, again, you already already copped to it with your yodel mountain example that you thought, the you mountain ended someday and the yodeling would stop. Um, I knew also I married this with your love of transformers and I think that's why I dubbed you optimist prime. Uh, and then therefore I would be negatron, um, I I think I didn't think of negatlon. I think maybe a listener said negatrol or or I, or I saw it somewhere. Um, cause I honestly probably forgot the name Megatron cause I'm not a Transformers fan like you are, but I did remember Optimus Prime. Um. And so then it became a little shtick of like, for, for a given thingy, uh, there would be the Optimus Prime take on it and the Negatron take onit, which would be just, you know, again, the optimistic take on what's going to happen.

0:48:38 Thomas: Will there be consequences for this latest, you criming that Trump's doing or whatever, or the the more negatron take, which is now things will continue not mattering. And I want to be very clear that sometimes, a couple of times we've done Optimus Prime negatlon and it's a little bit manufactured in a debate sense, like, okay, you take the negative side, you Take the positive side. But I don't, I want To emphasize that I'm not a negatrion for the sake of being a nega Megatron. It's just, things are really bad. And my, I'll be honest, my Negatron prediction has been correct way more times than the Optimus Prime just because our world sucks.

0:49:15 Andrew: Yeah, the only thing I would add to that, if we actually gave away Optimist Crime Negatlon placards at our live show, which, uh, uh, when we resume live shows, which gotta be coming up soon, we can do that again So

0:49:19 Thomas: Oh, so good. We That'll be fun. All right. Next one. Eli Bosnick slash Puzzle in a Thunderstorm.

0:49:31 Andrew: This refers to, on a couple of, couple of levels. So Eli Bosnick and the Puzzle in a Thunderstorm crew uh put out The Scathing Atheist, they put out god-awful Movies, the Skeptocrat, uh, collaborate on uh the Citation Needed podcast. Fantastic content, real life friends of ours. And Eli's, they're also, I represent Puzzle in a Thunderstorm LLC. So uh, Eli's characterize, character is uh, completely manic. And, you know, getting into bizarre situations. And so whenever you hear, you Eli did X, you know, we had Eli Bosnick's Lava Emporium in one episode. And it's just meant to be.

0:50:09 Thomas: That's because of the argument about he doesn't accept the coffee, McDonald's coffee lawsuit thing. And also, yeah, The actual phrase, "puzzle in a thunderstorm," was designed, I believe, as like a jokey, you know, all those stupid phrases that are supposed to mean some like obscene sexual thing that they can't, get more and more elaborate, and I think that was a joke one that they came up with, as like, never Google what that is, because that's going to be a blah blah blah, and so that ended up being the name of the the company and stuff, so that's, that's the origin of all that.

0:50:15 Andrew: Yeah. He's wrong.

0:50:39 Thomas: All right right. Motions and lemonade. Oh, that's a me. That's a that's a me, I believe. Just a silly little play on the motion lemonade thing. And that was made famous by one of Trump's well, for me, anyway, it's made famous as a very basic law thingy that any lawyer or let alone a judge should know. And yet one of trump's appointees had no effing idea what a motion lemonade was. And I think during that segment, I probably just called it motion lemonade for fun because it sounds like it. And so now it's emotion eliminated and that's what we call it.

0:50:27 Andrew: Right. Yep. Yep, yep.

0:51:10 Andrew: Which is great. Also on the list, this is, I think, a genuine question. We use the phrase steel bot. And I love this one. This, I Think, was popularized. I don't think invented, but popularized by a friend of the show, Aaron Rabinowitz, also your Co-host on Philosophers in Space. And everybody knows what a straw man is, so what's the opposite of straw manning? Well, it would be steel manning, to be uh gender inclusive we have steel botting, so

0:51:11 Thomas: Yeah. Hmm. Yeah, yeah, because yeah, straw person, steel person just sounds kind of weird. But I think, you know, it is it is important to try to try and take the gender out of some of those words, because I think there's a lot of reasons for that. And, uh, yeah, Aaron popularized steel bot and I'll give you credit. You, you take that on way more than I do, even though I mean to, I usually just forget and say steel man, straw man, but you ever since I think, I think I might've told you that he said that I think maybe one time when we were talking about it. And ever since then you've used it every single time. It's amazing. You're disciplined with, with language. It'S a, no, it's really cool. I think it's great.

0:52:10 Andrew: Love It I just Think it's such a great Once you, I was introduced to it, I was like, oh yeah, that's perfect, that's that's what we should use, and we've used it ever since.

0:52:16 Thomas: Yeah, all right. Who's the second best Andrew is

0:52:20 Andrew: Well, that that flips back and forth. We often have attorney Andrew Seidel on the show who has written.

0:52:28 Thomas: The best Andrew. I mean, sorry, All right, he's the second better and

0:52:29 Andrew: Yeah, there you Go. That's it. So either myself or Andrew Seidal are the second best Andrew. And

0:52:36 Thomas: I'll never tell. And none of you should either, because they can both think they're the first best and maybe the second best, depending on their mindsets.

0:52:38 Andrew: Yeah, Thomas, I have to ask you because this came up a couple of times on our list, and it didn't occur to me that this was not a thing that people said. People said, why, Andrew, do you say I'm going down a rabbit trail instead of down a rabid hole?

0:53:00 Thomas: Yeah, that has come up before, yeah.

0:53:01 Andrew: Yeah. And, don't, to me, just growing up, the rabbit trail was, I get rabbit hole, right? Alice in Wonderland, that sort of thing, but rabbit trail is just something that distracts you, that takes you off the main path, bath and I didn't know that that was not a thing that people had heard of before, but

0:53:13 Thomas: Oh. I would tell it a different way, which is, I, I thought, uh, it might have been a thing where either me or listeners or both thought you were saying it wrong, like, don't you you know, like, this is the incorrect thing, and then I believe you're proven, proven entirely correct, that it should be rabbit trail, because it's, it's more technically correct to say rabbit trail, and it's pedantic, but, uh, I think a rabbit hole being something you fall down, versus like a rabbit trail being something you kind of voluntarily go down, and you're just kind of, you I just want to say, to give you, you, credit, that I think it ended up being like the pedantically correct thing to say is my memory of it. But I never said rabbit trail. I only ever said rabbit hole.

0:53:25 Andrew: Oh. Yeah.

0:53:53 Andrew: Relatedly, uh, we have another, not it's not a portmanteau, it's just, uh, this is like motions in lemonade. We have moving the noodle, which 100 percent, that's you.

0:54:01 Thomas: I have. I believe that you just misspoke one time and said moving the noodle. I think you're like, yeah, because you're trying to say that moves the needle. And you said move the noodle, and I believe this was one of those cases where it's like, well, I am not editing that out. That's worth, not only is that worth keeping in, because it's hilarious, that will now be the phrase, much like motion and lemonade forever. So moving the noodle.

0:54:09 Andrew: Oh, yep.

0:54:26 Andrew: There we go.

0:54:27 Thomas: Precious little cinnamon bun. That's all you.

0:54:30 Andrew: So, Yeah, ReasonCon, at a convention, gosh, six years ago now, I wandered into a hotel room in which a party was taking place with the aforementioned puzzle and a thunderstorm crew, including, no illusions, infamous, triple black belt in pot smoking, smoking, the world champion of of marijuana, and I walked into the room and said, "Why does it smell like skunk in this room?" And, you know, 50 people turned and looked at me and were like, and Noah said, "Oh, you precious little cinnamon bun." And so that has just been used generally to refer to my naivete and innocence with respect to all things, know, that would be considered controlled dangerous substances by the uh federal government for for purposes of illicit drugs, so yeah, I have no experience in that I'm a precious little cinnamon bun

0:54:52 Thomas: Yeah.

0:55:25 Thomas: And we'll never know if he's just preserving his lawyerly, image, if he is actually precious little cinnamon, but it's entirely feigned.

0:55:29 Andrew: Or you can ask during one of our Patron Q and

0:55:34 Thomas: And yeah. Oh, Justin's and Corey's. This was this was a me. Back to Motion Lemonade, too. I think it's during that discussion and Justin being Justin Walker. Famously, you debated him at a thingy. I don't know. You could tell about what that was. I forget what exactly what it was.

0:55:34 Andrew: A's, yeah yeah That was a uh joint debate sponsored by the American Constitution Society and the Federalist Society. And, and I went out that the debate audio is on our back thread somewhere. And six months later, the dishonest law professor who was teaching legal writing, right, not even a substantive course, was nominated. It's 37 years old, was nominated by Donald Trump to the federal bench. So I was using Justin as a placeholder for Donald Trump's overwhelming number of dangerously unqualified and super young partisan hacks to the bench.

0:55:56 Thomas: Yeah. Yeah.

0:56:27 Thomas: I I think the joke I made was, yeah, the young part, the youth part of it, is like, yeah, that's the thing, like, no more, down with these Justins, who they're babies that don't know anything about the law, uh, and and that's how the the right has been weaponizing the judiciary and arming it with just people, people who are 22, who have no experience. And I think I said that just joking in like the modernness of the name relative to the other justices who are named Beryl Howell or whatever, you know, Judge Winston, whatever, something, the 90 year old. And I think you add the Corys to that. Like, no, I said, like, there shouldn't be any Justins. And then you said Corys as well. And it became. Justins and Corys on

0:57:06 Andrew: And that was a that was a shout out to mid 80s where we had Corey Haim Corey Feldman Corey Hart like it was just

0:57:10 Thomas: Yeah. Oddly enough, those Corey's way too old to be nominated now. Sorry, I'm just reminding you that you're old, Andrew.

0:57:18 Andrew: Know right no that's fine yeah and and finally Thomas who is Conrad Michaels michaels no that's

0:57:27 Thomas: Oh, no one knows. He's a legend. Conrad Michaels, for the longest time, and this is, we have very some bad news about this later. Conrad Michael's is our top all-time patron, probably will be our top All-Time Patron forever, although maybe not. Pledged an amount to our show that we thought was a joke at first. I remember we literally were like, especially early on the show, you know, we have a couple of patrons and we got this pledge and I was like, is this like a, like a scam? I was trying to figure out like, we free a Nigerian Prince kind of thing or whatever.

0:57:29 Andrew: True

0:57:58 Thomas: And no, just somehow a guy who really wanted to support our show. The thing about about Conrad Michaels is I think he's spoken to us now one time and it was to tell us that he was uh he was not no longer able to support us at that level, which is huge, devastating news. Um, more on that in the Hall of Fame patron section, but Conrad Micaels ist just a legend and so much support and never asked us anything, never asked for anything, never just supported the show, likes the show, uh, and is a legend. So there are jokes about, does he really exist, is he a Russian spies? You, whatever, you know, lots of those jokes, but no, Conrad Michaels, very real supporter whom I don't believe we've ever met, unless he didn't tell us that's entirely possible, you posed as a normie or something, uh and uh yeah, top patron uh for this entire, basically entire time, and long may he reign, even after not being able to support us, it still be the top patron of all time.

0:57:57 Andrew: You're right yeah nope long live conrad michaelson seriously sincere thank you from from both of us we really appreciate it

0:58:56 Thomas: Conrad, if, if you're listening, you have all time, free, you, tickets to any live show, free whatever, like 100% just, and Conrad Michaels is exactly the kind of person who would not take us up on that. But But, for real, like if you, if we're doing a live show in wherever you are, I don't know where, uh, hit us up, free guest. It the highest level of ticket. You're the best. So much support over the years. It's amazing. Well, that is definitely not the end of all the items, Andrew, but that's the end of all that we have time for. That was a lot of fun.

0:59:23 Thomas: I love being able to reminisce on some of those things. And as you said, probably even some of the long, long time listeners might not have known all of those.

0:59:00 Andrew: Oh gosh yeah yeah yeah

0:59:40 Thomas: And now it's time to thank You already you. Heard the music, but I haven't, so I'm still going to sing it. The final quartile. Oh, it's so great. Every time, I get pumped every time. I believe I was starting us off. Thank you to Absion, Jonathan, Milo Meadsong, wishes all meteors a happy crash into Justice Thomas's stupid little RV. Join your labor union together. We bargain alone. We beg. Dysgraphic programmer. Felony trial for Sergeant Javier Escueda in retaliation for whistleblowing police misconduct begins in July. Tacos are sandwiches in the same way that clams are fish. Wordorigins.org has a new book, From Barflies to Bitcoin, How Words Map Our Modern Era, available on Amazon. Super cool. Check that out. GiveToModestNeeds.org Then visit DeepFakeStop.com My witty names aren't original and my original names aren'T witty False Anonymous Emotion and Lemonade There you go Not That Chris Wallace Derek Dude Chris Waltrip Big Easy Blasphemy Please don't read this on the pod We don't need a call out Thanks for what you do Malcolm the Dragon The Precious Variant Who Are You The Scatological Who Tribute Band

1:00:00 Andrew: And

1:00:50 Thomas: RhondaTheDork.com And Liz Puffycoatsourviolence, your turn, Andrew.

1:00:55 Andrew: A big thank you to a string of unpronounceable characters to malika chandler to they said I could be anything so I became two princes who adore you to soggy pants adopt a homeless pet in a pose declawing an ear docking day day jury belly at packies at last baby Heather L Matthew Vernon in an alley Therese Chan Danny Rosari Eli Bosnick gets to change his patreon name because patreon gave up on his blog to cars are destructive to the environment the economy and human health support transit and walkable cities Adam Costa invaginate David in Brooklyn Sam Donnell Mitchell ice cube or iced tea I'm not sure.

1:01:34 Andrew: Michael Rops. I agree with that 100%. And our all-time great number one now, the fantastic, deservedly fantastic, Sam Buck.

1:01:47 Thomas: And, well, I hereby petition, Sam, you can let us know. But, look, not an active patron anymore, Conrad Michaels, for life reasons totally understood, his lifetime amount still the highest. So, is Conrad Michael still the top patron or is it Sam Buck? I don't know. I mean, what do we say? Is it an asterisk?

1:02:05 Andrew: Let us know on Patreon.com

1:02:06 Thomas: Yeah, is it a co-top patron of all time? Maybe Sam Buck would accept that. You know, Sam and Conrad Michaels, top patrons, you know, maybe? I don't know. Well, either way, end of an era. Thanks so much, Conrad, for everything. And welcome new official, top I patron, Sam Buck, who is truly great.

1:02:07 Andrew: Slash law. Yeah?

1:02:24 Thomas: We love Sam. Can't wait to see Sam again at another live show.

1:02:24 Andrew: Oh, yeah. We love Sam. Woo!

1:02:28 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:02:34 Thomas: And now it's time for T3BE, which I just learned stands for Thomas takes the bar exam. Let's see how I did.

1:02:43 Andrew: All right. This was man walks into a convenience store, goes up to the cashier. He's got his hand in his pocket, making the finger guns, says, give me all your money or I will shoot you. The but, he doesn't you have a gun. Uh, the cashier described in the actual pattern as feeling scared the cashir tripped the alarm, and when the man heard it, he ran out of the store empty-handed. So uh, then we introduced the real part of the question, and this is a typical bar exam question, to give you three or four sentences where you're like, okay, what's the man have, what's man, and then it's like the man's friend was Was waiting for him outside the store to serve as the getaway driver. And as soon as the man runs out, he gets into the friend's car. They drive away. What is the friend? What crime is the friend liable for? And you picked attempted robbery. Thomas, I want to tell you that is exactly correct.

1:03:02 Thomas: Yeah. Hmm. Yeah. Oh,

1:03:37 Andrew: You work through this perfectly well, right? You were like, OK, it's not a robbery because he doesn't complete the robbery, right, like Like he runs out empty handed. Is it an attempted robbery? Well, robbery is a Larson. And it's for the same reason it's not a larceny.

1:03:54 Thomas: My God. Yeah, larceny was those. They finally gave me one that was so silly I was able to easily eliminate.

1:03:56 Andrew: Yeah. He doesn't walk out with anything. So robbery, right, is a subset of larceny, right? Larceny is in the law, defined at common law, 13th century Saxony, as a trespassory taking and carrying away of the personal property of another with the intent to permanently deprive him thereof. OK, so you see the multiple elements. You have to trespass, you have to take away the personal properly of another, and you have intend to permanently deprived them of that. So right, this is a specific intent crime, uh, it is a defense to larceny to say, "Oh no, I was just going to borrow this and give it back."

I know that seems weird, um, robbery is a subset, it is a larceny, uh, where, uh, the other person or presence is combined with the force or threat of force. Okay, so in other words, if I break into your house and you don't know anything about it and I steal your priceless artwork, and I intend to steal the priceless artwork and permanently deprive you of it, that's a larceny. If I break into your house and I point the gun and you're awake, and I put the gun at you, I've now transformed - and I run off with your priceless artworks - I've not transformed that from a mere larcenies to a robbery at common law. It is immaterial whether you can actually carry through with the threat, as

1:04:37 Thomas: Mm-hmm, Mm-hmm. Hmm. That's interesting.

1:05:18 Thomas: Yeah

1:05:19 Andrew: Long as the victim feels fear, or as long as force is actually used. So we very clearly have an attempted robbery here under the common law definition. He's right? Got the finger guns that causes the victim to feel fear, and it's in connection with trying to steal his stuff. The fact that you don't steal the stuff is what makes it an attempt. So now the question, that be attributed to the getaway driver? And I thought you were going to talk yourself out of it, because you were initially thinking of the felony murder rule, and you even called it out as the felony murder role. But there's also the general principle of accomplice liability, that right? Is a person who assists or encourages the person who actually commits the crime with the intent that the crime be committed.

1:05:19 Thomas: .

1:06:07 Andrew: If you do, you are liable for all of the crimes that you either aided or were encouraged, as well as the natural and probable results of the crime that actually occurred. So the law is super crystal clear, as long as there have been drivers, that getaway drivers are accomplices, right? As long as they were a knowing getaway driver, right.

1:06:23 Thomas: Yeah.

1:06:31 Andrew: And that's what this hypothetical explicitly states, right? Says, you know, he was there to serve as the getaway driver and, you and that's why you will see in legal dramas, the primary defense when you are the getaway diver is, oh, no, like, yeah, he just said, drive me to the store and wait in the car. And then all of sudden, And, you know, he comes running out and yes, I took off because, you know, I was scared and I panicked. But, I you was not in on it from the beginning. And that's up to the jury to sort of wait, you know. If there's no other evidence, right? This is one of things we mean when we say juries weigh intent all the time. They listen to the testimony and they say, okay, do we believe that this getaway driver just happened to be there? Or do we think that they probably knew what was happening the whole time? So in any event we can celebrate because you got it exactly right

1:06:30 Thomas: Not the driver. Uber Yeah I didn't know he was going to do that. Mm hmm.

1:07:21 Thomas: All right. Cool. Well, that was fun. I'm excited about that. And let's find out who our big winner is this week. And I'm doing T3BE winner this week. And so many to choose from. This time, virtually everybody got it right along with me. Only a couple ones were wrong, which is the opposite of what I like, but that's okay. So many to choose from, but here's a funny one. MadPoliticalScientist at NJordan79 says, says, attempted robbery. It's really a shame he was in grad school pursuing a degree in attempted physics. And I think that's a reference to Sideshow Bob who says, Attempted murder. What is that? They Prize for attempted chemistry. I think it's chemistry instead of physics. Either way, very funny reference.

1:08:07 Thomas: And good job, mad political scientist. You are this This week's winner, infinite fame and fortune guaranteed. And that's our show. Thanks so mucho for listening. What a fun 600th episode celebration and a really good deep dive. A truly outrageous topic. But still, I am really happy to be armed with that knowledge and I know what to do. It. We got to work at the state level. So So happy 600th Episode, Andrew. Here's to at least six more.

1:08:18 Andrew: Whoo.

1:08:36 Thomas: I said at least.

1:08:34 Andrew: Thanks. I was going to bake a cake, but oh,

1:08:37 Thomas: I said, at least, six more, this could be seven.

1:08:37 Andrew: OK. All right. Yeah, could be. Thanks, Thomas. This has been great, as always. And thank you to our listeners and patrons who have made it possible for us to get to this milestone.

1:08:51 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:09:24 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.