OA606: How Egbert v. Boule Portends Shocking US Fascism – with Matt Cameron

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments, this is episode 606, I'm Thomas, that's Andrew Torres, how you doing?

0:01:23 Clip: I am fantastic, legitimately fantastic, excited about this episode. How are you doing?

0:01:29 Thomas: I am doing well as well, I can't wait for our interview, although, you I think it's one of those interviews about how the Supreme Court is ruining our lives, but you know fun to have a guest on the show.

0:01:43 Clip: Yeah, immigration law is an area that started bad, got worse, is, you know, marginally improving, and the Supreme Court seems to be, you know, hacking off those efforts at the knees. But, see, maybe there's reason for optimism.

0:01:58 Thomas: Yeah, and so we'll be discussing Egbert v. Bull with Matt uh Cameron, looking forward to that, new guest on the show, so that's cool, always fun to inaugurate a new guest. Before we get to that, though, Andrew, uh, there's a topic coming up, pardons. And this is something we covered five years ago in episode 90, I think it was. And so, I can't believe people don't remember, but I guess there's some, you know, struggling students among the OA. No, just kidding. I have no memory of it either. Why is this a thing again? And tell us about it.

0:02:16 Clip: We Did I think it's a good thing that people are starting to wonder and ask about pocket pardons, because that, that is the, the pessimists, the negatron's next response to, hey, uh, you know, looks like maybe we're gonna get an indictment out of the uh DOJ, maybe we'll get an indictment from Fannie Willis in Georgia, right? Like, so now people have asked, okay, but, but what if Trump has a bunch of pocket pardons for himself, self and John Eastman and yeah

0:02:56 Thomas: So, I see. So you're pointing out that this would be the moving the goalposts of the constant naysayer. Like, oh yeah, but they'll I'll have some pocket part. Yeah, no, I see. I, I would welcome that being the next phase of the argument. Like, yeah. Okay. Someone's getting a convicted or something. And then, know, uh. Pardons, but, yeah, I thought pocket pardons weren't a thing from my memory.

0:03:01 Clip: Pocket pardons aren't a thing, so that's, we could, we could end the segment here. Uh, as you point out, we did an in-depth deep dive, episode 90, which was about an hour on the pardon power, which uh is what, three minutes for each word in the Constitution, right? Because here's the entirety that the Constitution, it's Article 2, Section 2, it says, says the president, quote, "shall have power to grant reprieves and pardons for offenses against the United States," comma, "except in cases of impeachment." And that's it. That's all that it says, right? So the argument for a pocket pardon, and what's pocket part in pocket pardon, would be, you know, Trump secretly signed a whole bunch of pardons on or before January 20th, 2020, but hasn't told anybody about them.

0:03:17 Thomas: Ah, okay.

0:04:00 Thomas: It would be like the, the literal monopoly card, wouldn't it? It'd be like that kind of thing where it's like, get out of jail free card for just anytime you get in jail kind of thing, like in the future. Sure?

0:04:02 Clip: They're Yeah, I guess, right, it, and so, you the folks who are arguing maybe there's a pocket pardon, I understand, I understand this line of argumentation, I understand how you get there, it, it is twofold. It is number one, right, there's no rule that says a dog can't play basketball, right, I just read you what the Constitution says, it doesn't say, you and the president cannot, you know, right.

0:04:30 Thomas: Yeah.

0:04:30 Clip: It just says those, you 13 words or whatever, and right, number two, if there's a deviously evil thing, we should be concerned that, you know, maybe Trump will do it, so I get that, but I want to walk you through thinking about how a quote pocket pardon would work in the real world, to prove to you beyond a of doubt there aren't such things, right? And what would have to happen is, let's say there's there's a pocket pardon for John Eastman, right? So what would happen is, uh, Eastman gets arrested, uh, and indicted, and uh is then uh arraigned, and the judge says, uh, how do you plead, and John Eastman says, I plead, I got a pardon.

0:05:09 Thomas: Yeah.

0:05:09 Clip: MFR.

0:05:10 Thomas: Yahtzee!

0:05:10 Clip: Right, and he and he pulls out a document that looks like it was signed by Donald Trump, uh, that looks like it's a pardon and is dated to, you know, January 19th, 2020. Well, the prosecutors would not just say, oh, okay, all right, well, we're gonna go home then.

0:05:10 Thomas: Bam! Slams it on the table.

0:05:26 Clip: They would say, um,

0:05:26 Thomas: Yeah, how do we know that's a real pardon?

0:05:29 Clip: Yeah. Look, Donald Trump is your client, he could have easily signed this at any point over the last two years, and one of the ways in which we would know that that's the case is no one's ever heard, heard of this thing before. And it wasn't disclosed. It's not a part of the National Archives. And the burden would then shift back to you to have to demonstrate, more likely than not, that that document is authentic. Now, Donald Trump refused to give John Eastman a letter that says you represented Me. Do you think Donald Trump is going to show up in court and testify and lie under oath? I mean, you know, he he would happily lie under oath for himself, but do you think he's honestly gonna give an affidavit or otherwise show up in court and go, "I don't know, I definitely did that"?

No, he's not gonna do any of that. You know, this is the equivalent of the like, uh, you know, this verdict is written on a cocktail napkin and it still says guilty and guilty is spelled wrong. There right is no way in which you would be able to prove, uh, that that document was issued prior to January 20th 2020, which is the time it would have to have been issued. And right, are there's not a legal requirement in the Constitution that pardons be made public, but there are regulations, right, 28 CFR 1.7 and 1.8 require you to notify anybody. Anybody who is petitioned for a pardon when it's either granted or has been refused. Right.

0:06:00 Thomas: Yeah, he's his client. Yeah yeah yeah.

0:06:26 Thomas: And As you say, there must be something, even though the Constitution doesn't strictly require such and such. As you said, there must be some practical practicalities we have to keep in mind here, otherwise I could just say, you know, I could write a document right now. Look, it's a pardon that was Trump drafted for me before the thing. And it's like, there has to be some way in which you would prove that it happened.

0:07:19 Clip: Yeah, that's right. It There would be subject to the Presidential Records Act. It would Be A thing that would have been memorialized while he was president. And 28 CFR 1.5 says that in the interest of justice, the attorney general can release all records relating to the pardon of an individual. And right, that's the current attorney general. These are the same rules that, you know, allow Joe Biden to declassify one six documents. Like, right, so Merrick Garland would just be like, OK, we will turn over all contemporaneous records related to the part of John Eastman. Oh, look, nothing. And so then you would be left with in court saying, I promise you this wasn't a thing that my client just signed a couple of days ago, and no real way to prove that that's the case.

0:07:23 Thomas: I

0:08:11 Clip: So, no, it's not a thing. It wouldn't happen. You would not be satisfied with that. John Eastman, who wrote back to Rudy Giuliani and is like, hey, can I be on the pardon list?

0:08:21 Thomas: Know it's so good.

0:08:23 Clip: If Rudy Giuliano.

0:08:23 Thomas: Hey, we still, you got a lunch order going? I just want to get on, you Know, I'll tell you, it'S like that kind of casualness to the message. Are you guys stopping by the pardon store on your way back? Are you stopping by? I know, sorry to put put you out. But if you're stopping by the pardon store on your way back.

0:08:24 Clip: Yeah. And...

0:08:36 Clip: Yeah. Pick me up one. I'll take, you know, I'll take a... I'll take a double with sprinkles on top. Yeah, no, yeah, right. If Giuliani had written back and said, "Yeah, you're absolutely on the pocket pardons list," Eastman would have written back another time and been like, "No, I want on the real pardons list, thank you very much." Right? Because again, it's a question of how reliable is this. And in the case of a Donald Trump self-pardon, there's again, I come down on the side, uh, in episode 90, that Donald Trump could have pardoned himself while in office and can pardon himself again if God help us, he is elected president again. Okay, Lawrence Tribe and and other people who are smarter than me are on the other side of... So that... Now think about Trump pardoning himself.

You not only have the overcoming the legal difficulty of, is that a valid pardon in and of itself, but now you would say, is he, could he pocket pardon? No, I mean, like, that's like having a magical dog playing basketball, right? Like, it's just, there's too many, there's two many gaps there. So don't be worried about it. If the one six committee results in referrals that are criminal referrals to the DOJ, or causes the DOG independently to issue criminal indictments of the major players in this, of John Eastman all the way up the chain, of Donald Trump. Trump, do not. The thing to worry about is not that Donald Trump is going to pull out the secret uno reversi draw, for like, there isn't one of those. Don't worry about it. Let's get there.

0:08:38 Thomas: Yeah. Yeah, yeah. Oh, yeah.

0:09:36 Thomas: Yeah all All right.

0:10:10 Clip: I hope we get there, yeah.

0:10:11 Thomas: Looking forward to that. Thanks for dispatching that pardon pocket myth.

0:10:15 Clip: Hello! Operator! Give me the number for 911!

0:10:17 Andrew: So, Thomas, it is my pleasure to bring onto the show Matt Cameron, immigration lawyer. When the Supreme Court released its 6-3 decision, breaking down exactly the way you would expect in Egbert v. Bull, I reached out and wanted to bring somebody who is really kind of on the front lines of talking about CBP actions and really up to date on immigration law. So, Matt, welcome to the show. Yeah.

0:10:43 Matt: Thanks. Happy to be here, happy to join you. Although, not the most fun we could have, but... Oh,

0:10:49 Thomas: I'm hoping this was going to be one of those ones where you guys were going to tell me that actually it's not so bad and it's being blown out of proportion, because I saw, this is the one where, and you're going to go into it, but this is one where it's like, within you 100 miles of a border, blah blah blah, and people are posting maps of like, that's everywhere in the whole country, the government can just do whatever. So, I am hoping that's not as bad.

0:11:10 Matt: It's worse than that!

0:11:10 Thomas: Oh god, it's even worse! Oh no.

0:11:11 Matt: It's... It's It's actually everywhere. But yeah, well, we can get into it. Where do you want to start?

0:11:14 Thomas: Wow. Wow.

0:11:18 Andrew: So, I mean, why don't we start with kind of the background protection that individuals have had against government agents who violate their civil rights? So a lot of people are familiar with Section 1983 claims. That's when a state government actor violates your civil rights. You have the right to bring a civil lawsuit against that state actor. And that excludes federal government actions.

0:11:47 Matt: Right.

0:11:47 Andrew: And so one of the things that's sort of informed in the background is a previous case called Bivens. And why don't we start there in terms of gap filling, and then we could talk about sort of the the sad history post Bivens

0:12:03 Matt: Yeah. Yeah, and as you said, 1983, actually, it goes back all the way to the Reconstruction era, when the federal government, obviously, was trying to get the South to actually follow the new constitutional amendments that were supposed to guarantee equal protection to everybody in the states. You know, so you got the Ku Klux Klan running rampant, you got terrorism, racial terrorism for the most part. And so the federal government opened the door to make sure that people could go sue in their federal courts if they were being mistreated by state and local authorities, but they never actually opened the drawer to sue federal authorities. Imagine that. That. So it comes around about 50 years ago, 1971, that my man William Brennan and the liberal justices on the court at the time, including my main man, Bill Douglas, of course, signed off on a 6-3 decision saying that it doesn't make a lot of sense to have a Fourth Amendment if you don't literally have to pay for violations of the Fourth Amendment, among others amendments.

0:12:52 Matt: It's been extended to other things as well. And or less just saying, look, we've got this exclusionary doctrine, which was about 10 years old at this point. MAP had been decided in 61, I think. And so we're still trying to figure out the contours of what happens when the police raid your shit and take something they shouldn't or see something they should when they came in without a warrant. We all know that that gets thrown out, right? That's pretty easy. But what happens when they actually really hurt you, when they do something way beyond bad evidence? And essentially, Brennan finds that it just makes sense that you should have to pay. And this kind of goes back to a common law tradition that can be traced back to the very beginning of country, Justice Marshall said that basically the very essence of civil liberty is that whenever you receive an injury, you got to have a right to come in front of the court and get protection from the law. And that wasn't really controversial until, don't know, the last 50 years or so.

0:13:38 Andrew: Well, I I love the the way you've introduced that. We have long discussed, uh, William Brennan as my personal, uh, Supreme Court hero here on the show. Uh, so the case is Bivans versus Six Unknown Federal Federal Narcotics Agents, 1971 Supreme Court, like you point out, six to three, not particularly controversial at the time. And in my view, it fills that gap, right?

In addition to the justification that you gave, that I think makes a lot of sense, right, that is, it makes no sense to say that the Fourth Amendment provides you with a remedy as against illegal legal searches and seizures if, uh, that does not extend to the harm that could be inflicted upon. Right, so Map versus Ohio says yeah, we we practice an exclusionary rule, we say the evidence that they illegally seize can't be introduced against you, but what if they they beat the crap out of you, right?

Like you, you, it it is cold comfort to say that federal agents can, uh, know, can hurt you, uh, and you have no right against them, but but there was this gap, there was, yep, the if if the cops, beat the crap out of you, well, they're state officials, you can sue them civilly under Section 1983, uh, but you can't sue an equivalent, uh, federal agent, and that didn't seem to make a lot of sense, so kind of common sense decision, put all of that together, uh, and then it feels to me anyway, I'm sure there's one or two exceptions, Supreme but Court has basically been chipping away at Bivens since 1972.

0:14:37 Matt: Right. Yeah, actually, I went back and checked and there has not been a positive decision from the Supreme Court in my lifetime. I was born in June 1980. So there is that. There was like this glory period for about eight years where they were actually upholding some Bivens claims. And of course, what the plaintiffs were trying to do in these cases was extend Biven's to different kinds of scenarios. And there were a couple of workplace things. There's actually a woman who was fired for being a woman and they found that's a Biven claim. That makes sense. Equal protection violation straight up. But there was another one that involved a more nuanced workplace claim where they said, no, that's not enough. You actually have to have some real injury here that we can do something about. So that makes sense. But essentially, yeah, like I said, they've been chipping away to the point that it's been on life support. And I think Thomas just pulled the plug on this one.

0:15:15 Andrew: Yeah, I think that's right. So let me try and set up the facts here for Egbert versus Boule, which is the decision that just came down from the Supreme Court last week. And let me know if I've got it right. And, to me, this fits very clearly within this right wing activist Supreme Court pattern of, hey, let's reach the conservative result. And it does not matter that we have direct precedent that is, you know, completely on point, we're just going to pretend that doesn't exist. So So, bull, I've got to give some of the color because not, not the most sympathetic plaintiff. Um. He runs his home as a bed and breakfast on the border between the United States and Canada, calls it the smugglers in, uh and has a license plate that says smuggler S S-M-U-G-L-E-R. And it is, this, by the way, I think this may have the most photographs of any Supreme Court opinion I've ever read, um, uh so people entering the country illegally sometimes enter the country illegally through canada and

0:16:08 Matt: Sure.

0:16:34 Matt: Truth in advertising.

0:16:44 Matt: I did appreciate that.

0:16:45 Thomas: What is he smuggling? Syrup?

0:16:54 Matt: And his property is five feet into the Canadian border. So this is not a difficult smuggling operation.

0:16:55 Andrew: Yeah The fact section says that, folks, you will cross the border and then walk into the smugglers in through the back door.

0:17:07 Thomas: Should we keep this guy's number for when we want to move to Canada?

0:17:07 Andrew: Right. Yeah, Well, that's, that's right. So one, one door leads to Canada and one door leads to the United States. It's called the Smugglers In. You get the picture. But in addition to all of that, Bull has also decided that it's not just enough to, you charge exorbitant fees and, you know, would charge fees on driving folks across the border and would charge them for their hotel reservations even when they never stayed there. I mean, you know, that, we get the picture, but also, uh, he was an informant for, uh, Customs and Border Patrol.

0:17:42 Matt: Yeah, it turns out he's not so much Han Solo as Lando Calrissian. He'll take you in, but he'll turn you over to the empire pretty quickly.

0:17:48 Thomas: The

0:17:43 Andrew: Yeah that's an excellent excellent And so CBP would feed tips to Bull, and where possible, he would then cooperate and arrange for them to come in and arrest folks who were suspicious. What's an example of someone who's suspicious? The person at issue in this case, for example, who was traveling from Turkey to Canada, and as the Supreme Court notes, and this is attached to one of the photos, traveled more than 7,500 miles to stay at a home bed and breakfast that kind of looks like a college dorm room, room, right?

0:18:29 Thomas: Pancakes must be great. This is amazing.

0:18:30 Andrew: Yeah. Yeah, yeah, I look like the, the point of of building all of this up is uh, it, does not matter, right? It should not matter, uh, that the plaintiff is not particularly sympathetic here, yeah

0:18:41 Matt: Lot of people with Bivens claims aren't particularly sympathetic. It's not unusual.

0:18:43 Andrew: That's that's the whole point of having your constitutional rights protected

0:18:47 Thomas: Wait, are you saying the law is supposed to protect people we don't like as well as people that we like? Weird. Gross.

0:18:48 Andrew: Right Yeah. Very, very weird thing. Here I'm just going to read from, from the Court opinion, from the fact section. CBP agent Egbert observed one of Bull's vehicles, that's the black SUV with the license plate "smuggler," coming back to the inn. Egbert suspected that Bull's Turkish guest was a passenger and followed the SUV into the driveway way so he could check on the guest's immigration status. On Bull's account, the situation escalated from there. Bull instructed Agent Egbert to leave his property, but Egbert declined. Instead, Bull claims, Egbert lifted him off the ground and threw him against the SUV. After Bull collected himself, Egbert allegedly threw him to the ground. Agent Egbert then checked the guest paperwork, immigration concluded that everything was in order, and left. Later that evening, Bull's Turkish guest unlawfully entered Canada from the smuggler's inn. Bull then lodged a grievance with Egbert's supervisors alleging that he had used excessive force and caused him physical injury. Yeah, I mean, you know, the cops can't just pick you up and slam you to the ground.

0:19:46 Matt: Well, sure they can, it turns out.

0:19:47 Andrew: Bull also filed an administrative claim with the Border Patrol pursuant to the Federal Tort Claims Act, and according to that, Egbert retaliated against him while these claims were pending by reporting the smuggler license plate to the Washington Department of Licensing for referencing illegal, illegal conduct, um, I'm sure his response was no, it's the smugglers in, so, you know, makes sense, but, and by contacting the Internal Revenue Service and prompting an audit of Bull's tax returns, and obviously that happened, so, and then the FTCA claim was denied uh after a year-long investigation, Border Patrol took no action against Agent Egbert for his alleged use of force or acts of retaliation. So that's the setup. It seems to me to fit, not as an extension of, of, but squarely within the facts of Bivens.

0:20:30 Matt: Absolutely.

0:20:31 Andrew: Go ahead, Matt. So

0:20:32 Matt: Yeah, I mean, it's been noted over and over, including I found a Judge Kavanaugh decision back when he was a judge saying this is exactly the purpose of Biven, is to go after rogue agents, to go after people who are doing these kinds of things to people. But I will tell you, as somebody who deals with CBP and ICE quite a lot, this is not necessarily even a rogue agent. This is just a CBP agent doing what they do. And this is not unusual to get slammed into the ground. Bull, 60 years old, I checked, and says he's got ongoing bank problems from this. So there's a real harm here. He's got something. But and again, I don't find this to be at all unusual from what I know about the way CBP does things. We're not too far from the Canadian border here in Boston, and I deal with a lot of people who've had issues up there. And And CBP just goes onto people's properties, searches their homes, you know, pulls them over, throws them to the ground, does all this stuff all the time because they can.

0:20:48 Thomas: Yeah.

0:21:15 Andrew: The first thing that really struck me is that, Thomas, the majority opinion frames this as a question of extending Biven's in this particular circumstance. But I'm having trouble sort of wrapping my head around why this, this would be framed as an extension and not just the precise

0:21:33 Thomas: Classic Bivens. It should just be quintessential Biven.

0:21:35 Andrew: Application. Yeah, exactly right. Yeah.

0:21:37 Matt: Right. Yeah. Original formula. But it's actually, the problem is that it's CBP and nobody had actually successfully sustained one of these against CBP so far as I know. And the problem was this case Hernandez from a few years ago, from 2020, is actually when Kavanaugh had just joined. And the facts in Hernandez are pretty weird. They're very sad, but they're very unusual. Not the kind of thing that's going to happen too often. In. But Border Patrol was right on the edge, was right on the border, and they shot a kid. They shot a 15-year-old who was running around just playing by the border just goofing around. There was no weapon. There was not a gun. Indication of harm or anything else. They just thought he was too close to the border and they shot him. And the family understandably came after them in a Bivens action and I think it was Alito in that case, but it was one of the conservative justices, wrote essentially that this is a matter of national security. They had to shoot this kid, I guess, or maybe we

0:21:40 Thomas: My God.

0:22:20 Matt: Don't care. I don't know. But yeah. So basically because CBP does does national security. We can't ask questions. We can't let you bring a lawsuit. And this is what Thomas relies on. And then he takes it way too far, taking a perfectly good joke, like way beyond what I'd expect. The bounds of rationality here, just saying you can't see them at all.

0:22:21 Thomas: Okay It feels like there's two separate questions here. On one hand, you would think, okay, does border patrol have the right to do some policing around the border? And then you think there'd also be the question of, like, and do they have the right to either throw a 60 year old to the ground or shoot a kid? But, not is is that not the right way to think about it?

0:22:56 Matt: No, that's the human way to think about it. It's not the Supreme Court way to thinking about it, but

0:23:00 Thomas: Gotcha, so I guess when that case was decided, was it decided on on the basis of, like, we need to evaluate whether shooting this kid was in any way justified? Or, like, now you can't even look at that because we have some sort of supreme authority if we're anywhere near a border?

0:23:15 Matt: Yeah, they basically found, I think from what I remember from Hernandez, they essentially said, we can't look at this one, but they didn't go as far as Thomas actually did here in saying you can't ever sue border patrol. But the real problem with Hernandez is just the weirdness of it, because the actual murder occurred in Mexico, right? They were standing in U.S. soil, and they said that Bivens was never supposed to include international claims, right, which makes sense. I mean, you know, if you're talking about the limitations of this thing, I don't think that the people – nobody would have ever anticipated it being an international claim. You'd literally have to do what happened here. You'd have to have a federal agent committing a crime that ends up, now, actually you being in another country. And there are very limited circumstances where that could happen.

0:23:49 Andrew: This is very easy to understand from an outcome determinative set of jurisprudence. But right, the Hernandez versus Mesa case, to me, does not of clearly fit within this lineage. I would add, I guess, kind of two things here to think about. The first is, let's recall the original Bivens case is against DEA agents, so right? The difference constitutionally between being roughed up by the DEA or being rough up by CBP seems to me to be the proverbial distinction without a difference, right, like like we are not we're not talking about, being roughed up by the IRS or something like that.

Right. Like where where you could argue that the Other thing is Supreme Court, it narrowed, but came up with a pretextual justification for that just five years ago in the Ziegler decision, right? It's all over the the dissent obviously, um, but Ziegler versus Abbasi 2017 case, and and in Zieglar it defines, right, and again, conservative Supreme Court 2017, we're not talking about, um, liberal court here, um, it listed out all of the differences that might be meaningful in terms of whether determining that this is a, is, in Thomas's words, right, like classic Bivens, right, original formula, or, you

0:24:23 Thomas: That'll be next

0:24:26 Matt: Yeah. Right,

0:25:04 Andrew: Know, new Biven's right with the with the extra NutraSweet in And It. Those differences were the rank of the officers involved, the constitutional right at issue, the generality or specificity of the official action, the extent of judicial guidance on how an officer should respond to the problem or emergency to be confronted, presented the statutory or other legal mandate under which the officer was operating, the risk of disruptive intrusion by the judiciary into the functioning of other branches of government, that's a great one, or the presence of potential special factors that the previous cases, uh, did not consider. And, you know, if you have enough of those, you know, kind of mushy factors, that will, will be a new Bivens actions, but if the differences, quote, are so trivial, they will not create, suffice to create a new Bivens context. So I read that I'm, and an idiot, because I think that, you know, Supreme Court decisions from five years ago should still mean something today.

0:25:05 Matt: Right. Wow, Radical.

0:25:58 Andrew: That seems, yeah, and that seems really, really clear to me, right, like, it's a new Bivins action if a whole bunch of these things are different. It's not a new bunch. It's not a new Bivens action if this is all mostly the same. And and I'm just sort of at a loss for how this is not, you mostly it's all right, CBP instead of DEA, but everything else is identical. And and I guess where I struggle the most with this is not, how is is this not discussed in the majority opinion?

0:26:25 Matt: Well, you know what your problem is, Andrew, is you want this to be the law. That's your hang up here, because you want Bivens to actually be law. And they don't. Thomas really doesn't. And Thomas has been very clear about this from the beginning. He's taken every opportunity, including what you're just reading from in Ziegler, which involved Guantanamo Bay, where Obviously there's a lot more going on than most places for abuse-wise, um, and that was just trying to find some justice for, like, actually going after the top people at Guantanamo Bay for the the known systemic issues they had there. But here's where it comes down, as I understand it. I'm not saying this makes sense, I'm just saying this is my understanding of the opinion.

Basically, Thomas is saying that national security constitutes special circumstances here that advise against extending Pivots, and they're looking to not extend Pivons as much as they possibly can, right? They're trying to limit it as much as they can. They don't want to open any doors, and he says, you know, we just can't second guess Yes, CBP.

Though, You and I guess I should just mention really quickly, just because I don't know how much people understand about this, but, you know, obviously the Department of Homeland Security was created, you Know, essentially they began drafting it weeks after 9-11, right? This is very much a response to 9-1-1. It's a national security agency.

0:26:30 Thomas: Wow Wow.

0:26:30 Andrew: Yeah Yeah. Mm hmm.

0:27:26 Thomas: So you're saying

0:27:26 Matt: It's the, yes, somehow they forgot to include the largest federal reorganization of the government ever in history, possibly in world history, and to create the largest immigration police force ever created in the world, as far as we know, between CBP, which is supposed to be responsible for our ports and borders, and that includes airports, of course, and ICE, which is the internal enforcement, the immigration cops, and they're all under the umbrella of CBP.

0:27:26 Thomas: The Founding Fathers didn't make homeland security.

0:27:42 Thomas: Jeez. They're

0:27:52 Matt: And I'll point out, just for context here, that when CBP began, they had a massive of hiring rush because they were creating a new agency. They're giving, Congress is just dumping money on these people. And they loosened up their hiring restrictions. They made it as easy as possible to join. And then they ended up hiring a lot of really shady people who did a lot of terrible things. And CBP, there was a period here, there's a great Politico article, called excuse me, The Green Monster, well worth a read, very long detailed history of CBP. And They mentioned in there that from 2005 to 2012, on average, a CBP officer are committed an act of arrestable misconduct every day every day so so that's this is who we're talking about these are the people that we are now giving a blank check

0:27:52 Andrew: Mm hm.

0:28:24 Andrew: Jesus.

0:28:29 Thomas: Probably true of the police as well, though, if we're being honest.

0:28:30 Matt: Oh yeah no doubt of of the nypd no doubt I'm

0:28:34 Andrew: Right. But you can sue the NYPD. I mean, that's. Yeah. Think about this. Right? Yeah.

0:28:35 Thomas: Yeah. Oh, right. Okay. When

0:28:34 Matt: Sure right 1983 Yeah, so, that, that but of course, as somebody who is constantly dealing with people on the wrong end of these actions of these people, it's very concerning to me, more but so, you look at what Trump was doing with CBP during the Trump administration, during that last round in 2020 of racial justice protests after the murder of George Floyd, you've got people out on the streets in places like Portland and Minneapolis. And someone actually responded actually to my tweet about all this with a video from Minneapolis, which is well worth watching. It is extremely disturbing. It's about 40 seconds of just tanks, heavily militarized, dystopian-looking police force just going through a regular suburban street, just screaming at people, saying, let them up, shooting tear gas into houses, just total chaos.

0:29:20 Matt: And that is not within 100 miles of the border. Minneapolis famously is not a border town. I haven't even checked. So this whole thing about, I should explain too, sorry, I just want to get this out right now, that there is this general idea of a constitution-free zone within 100 miles of the border. And that is true. The Supreme Court has signed off on literal racial discrimination. You can actually pull somebody over on the Mexican border if they look Mexican. That was actually something that they said and signed off. I'm not going to remember the name of case right now, but it's like the one place.

0:29:20 Andrew: Yeah, it

0:29:48 Matt: That wasn't the 70s, I think. There's a van full of people that CBP, at the time of the border protection, there were too many people in the van and they looked too Mexican and they were too close to the border, so they pulled them over and they made the reasonable argument that this is racial discrimination. The Supreme Court said, "Yeah, great, you're Mexican, we can do that to you." It's the one place where they've signed off on it openly.

0:29:50 Thomas: Was that? Okay. But

0:30:07 Andrew: Let will. Me add here that this is I wanted to to pull Thomas's pin out from the beginning of the episode. This is where that hundred mile map has been sort of making its rounds on the Internet. This stems Right, from statutory justification going back to the 1950s, amended a couple of different times. This is 8 U.S.C. Section 1357, and it lists the warrantless powers that immigration officers and employees have. So it says any officer or employee of the INS authorized under regulations prescribed by the attorney general. And there are regs that confirm this as recently as 2021, right, shall have the power without warrant. And then it goes and lists, you five separate things: to interrogate any alien or person believed to be an alien, to arrest any alien who in his presence or view is entering or attempting to enter into the United States in violation of any law, within a reasonable distance. And that's where the hundred miles comes from. That's the that has been explained. I think it started at like five miles from the border and has, yeah, now been extended out to 100.

0:30:31 Matt: And I won't make the point that Trump tried to actually and briefly did make it the entire country. They said that was a reasonable distance from the border. So that was the thing.

0:31:17 Andrew: So

0:31:18 Thomas: Seems like such nonsense to me. I mean, if the reasoning is, okay, you're right by the border, so somebody, you know, even though obviously this still sounds horrible, but like if I'm going with that, you right next to the border or so, okay, you know, maybe allow for like someone just went over, but like 100 miles, if they get 100 miles away, they could also be anywhere. Like how does it, how is that a reasonable interval? I don't even understand I

0:31:38 Andrew: So

0:31:38 Matt: Oh, yeah. No. I mean, they were doing border checkpoints in New Hampshire, deep which into New, New Hampshire around here. They were doing border checkpoints. I've heard about in like the middle of Texas, the middle of Washington, as close as they can get for those hundred miles. Like totally just random border check points in a way that wouldn't be legal anywhere else. The problem is that CBP is a political institution, unlike allegedly the FBI or the NYPD or other institutions. CBP has openly political.

And my friend Jen Budd is well worth a follow on Twitter. Former CBP, had a very bad experience there, I was still in touch with people, and has a very good sense of the organization. She's been warning for a while now that this essentially is an organization that considers itself to be the personal police force of the president of the United States, at least the president they like. And they were all on board with the idea.

And their union is very openly, they were pro-Trump all the way. They were very much on board with Trump sending them out to racial justice protests to keep the peace in American cities.

0:32:29 Matt: I think this has already been forgotten, but just before the elections, they They sent out strike teams. Basically, they're called BORTEC. They're very, very heavily armed, military-trained, like snipers and SWAT team-style people to go to sanctuary cities just to keep the peace, just in case. And that is horrifying. That's absolutely horrifying. And there's no reason whatsoever that what happened to Mr. Bull couldn't happen in Omaha. That 100-mile distinction doesn't matter when they're just running around questioning people and throwing people to the ground.

0:32:56 Andrew: I okay I want to unpack a lot of what you just said no no no that's good um Recall the plane closed with unmarked vans near the end of the Trump presidency, is that the same incident or am I conflating two fascistic things in my head? Yeah.

0:32:58 Matt: Sorry. Yeah. There's a lot there. Yeah.

0:33:16 Thomas: Remember that during george floyd right isn't

0:33:16 Matt: So far as I know, yeah. Exactly. I think some of them were, I don't know if it was ever known, like some of what was going on there. I remember that. They're just throwing people into vans and driving off. But you do see there are plenty of pictures out there of CBP in really scary gear. And a lot of them, they just say police on them. They don't actually clearly identify them as federal agents. And out there with tear gas, looking as dystopian as possible. Possible. And I will make the point, I don't want to go on about this too much. I'm sure your listeners are very familiar with the concepts of fascism that we're getting into here, but there is a very real historical precedent, not just in Germany, but lots of other places, that when your border cops start becoming domestic cops, you've got a problem. You're well on your way to fascism. That is pretty much it.

0:33:19 Andrew: And those were cbp agents and

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0:35:23 Andrew: Of the additional criticism that you leveled, I want to drill down on is the politicization of of CBP's. And, um, I guess, you know, if I'm gonna to do my best to steal bot the other side, you what's the evidence that, um, particularly in comparison to, uh, armed forces, right, the National Guard, that sort of thing. You, I would say, yeah, um, it seems like certain professions tend to attract folks who are interested in, you know, they use of force to maintain order. And so, so, you know, we shouldn't be surprised that, know, the you military votes more Republican than Democratic, that sort of, that's that thing. That's my best kind of counter argument for the other side. Or how would you respond to, I guess? That,

0:36:04 Matt: Well, check out the National Border Patrol Council, which is essentially their union, and the public statements that these people have been making. The way that when Trump was in office, they were fully behind Trump. They were calling Biden a socialist. They were on board with all the stuff that you'd expect hard right Republican elected leaders to say. And it's pretty scary because they're supposed to be a nonpartisan law enforcement organization. They just happen to be, I think, the single largest armed in the federal government. I'm almost completely sure that's true. Certainly if you combine them with ICE, they are. And DHS itself is almost completely unaccountable to anything but itself at this point. So if they want to be political, they can be.

0:36:39 Thomas: The police union, this, I think Andrew's saying, like these People all suck. Do these people suck more than other suck people? Like the police union is terrible too.

0:36:42 Andrew: OK, well,

0:36:49 Matt: Yeah, except the police unions are for the most part representing individual police departments. I mean, certainly there are national police interests. And that's one reason, and we can get into this too, but that's one reason I don't think that Bivens is ever going to be federal law because of police unions, right? That's just not going to happen because of federal law enforcement units, especially like this one. But the CBP union is just a particular breed. It's a very familiar kind of hard right. And it makes sense when you think about what they're doing.

0:36:55 Thomas: I see yeah

0:37:11 Matt: I mean, this is an organization, not to put too fine a point on it, but their actual purpose is to enforce deeply white supremacist laws that have been around since the time that we were trying to keep the Chinese out in 1881. The original CBP was called a Chinese inspector. They were just going around only enforcing against Chinese people, right? It only got worse from there. The original Border Patrol was heavily influenced by the KKK, and the KKK members are happy to join. They basically just picked up where the KKK had left off doing border patrol.

0:37:11 Thomas: That's a good point because like you Could come up with the idealized version of, "Now I want to be a cop because I, I want to stop bad guys," or, "I want," whatever, but like, what's the idealised version of border patrol, you know? Like, I mean, it's just, "I want to kick people out people I don't like in the the country I don't know what the good version of that is hmm

0:37:38 Matt: Right. Uh, Yeah. Well You take this a little further, too. CBP, at least you can say, "We're going after cartel members and drug traffickers," and whatever else. But with ICE, the statistics clearly show, what I'm about to tell you, you're going after people without criminal records, with kids, um, so- that's even worse, and this is going to get us all put in a camp in 15 years, but these are people that couldn't cut it as cops.

0:37:59 Thomas: Geez. Well, I-

0:38:11 Andrew: At least we'll have, good company. Do I want to drill down again, because I want to understand all of this. I read the decision, and I look at 8 U.S.C. 1357, I understood the reason for drawing that map. Right. Which is to say, you have federal regulations promulgated in 2021 that establish that that reasonable distance from the border is 100 miles. And that's the distance at which essentially the Fourth Amendment doesn't apply. If you have made a positive showing of, you know, I reasonably believed that that was an alien. And obviously we could talk about, you have alluded to the court's extreme deference to government agents in connection with that.

Right, like, you kind of looks Mexican-y, uh, know, has been accepted as an excuse for that. So understanding that that, that threshold is a pretty low bar to clear, uh, as Torres, somebody with some, some interest in some, you know, some dogs in this fight, um, so I do see a difference there, right? In other words, if you have deploying, uh, Customs and Border Patrol police, uh, as, you plain-clothed agents, like we were talking about during the Trump administration, in the heartland, right, like more than a hundred miles from the border, it seems to me you would still have, right, your classic, classic Fourth Amendment due process rights.

And before this case, right, before Egbert versus Pool, you, you would have, uh, you know, in addition, the right, the to bring up Evans, uh, civil proceeding, in a way that you would not, you know, kind of within that band. Um, but when we laid that out kind of at the beginning, your first sort of pushback was, "No, no, it's going to apply everywhere." So, so what am I missing? I-

0:39:10 Matt: Well, Really the difference between the law says and what they can do. And if they know there's no consequences, I just, honestly, I will tell you, there's this new sort of line in the hard right that is pretty scary. And it is that every county is a border county. That's the new sort of talking point. Yeah. Because it turns out that most American counties have people who are not born in the United States in them. So that's the thinking. And when I'm looking at this stuff, as somebody who thinks a lot about immigration policy, And as somebody who, frankly, has been thinking a lot about fascism for the past five years, I think about where this is going. I don't think about even where we are.

And when I hear about things like Border Patrol being deployed to Chicago, a special strike team being deployed Chicago and potentially Boston, to kind of keep things under control before an election, but only to blue cities for some reason, because those are the ones that are sanctuary cities. They started openly talking about democratic cities as sanctuary cities and using that distinction to say they could enforce the law differently there. This stuff is all happening. It was happening. I'm afraid it's already being forgotten and it's all going to happen again.

0:40:04 Andrew: Tell

0:40:49 Matt: And I don't think it really matters about the regulatory definition of what a reasonable distance from the border is. If you get this mentality that every county is a border county, that the CBP has this broad mandate. I mean, the idea of internal immigration enforcement is actually completely new too. It's not something that we thought we should be doing for most of American history.

0:41:07 Andrew: Me What you mean by that

0:41:09 Matt: So I told you about the Chinese inspectors, right? But that was one sort of discrete thing that was happening in California where the Chinese were. But this idea of an internal immigration force, Border Patrol was created the year that Ellis Island closed for all intents, right, in 1921, I believe. And there's real transition there. Ellis Island closes, Border patrol opens, there is a very definite message being sent. But the actual idea of internal immigration enforcement didn't really start to come about for all intents until the 50s. And even then, it wasn't really being used. And it wasn'T until ICE that we saw the kinds of numbers, anywhere near the kinds of numbers that we're now accepting as normal today.

0:41:41 Andrew: This when was ice created again just uh

0:41:42 Matt: 2003, it's just about old enough to drive now. Yeah. Not old enough for a car. Yeah.

0:41:46 Andrew: Yeah

0:41:48 Thomas: I mean, yeah, that's when people were saying abolish ICE, you know.

0:41:51 Thomas: I mean, this was a lot of the arguments you heard, and even, you know, I had forgotten that was that new, it, you and it's so easy for us, it feels like it's easy, whether it's uh Scalia completely changing how the Second Amendment reads or something like this to be like I guess this is how the founders drew it up way back in 2003 or whatever yeah

0:41:56 Andrew: Yeah

0:41:56 Matt: Yeah. Exactly. Exactly. Exactly. No, that's a perfect analogy because there's actually a page on the DHS website that explains the lineage of DHS and how it's essentially, they can trace it back to 1789 or whatever, even though obviously DHS itself was created in 2003, because they want that, they need that imprimatur of being legitimate. And one of the reasons they've been so rankled by the abolished ICE thing is they are not necessarily a legitimate agency. And they were were never straightened out. They were never given proper oversight. They know it and they don't want us to know it.

0:42:36 Thomas: Can I just ask, me, tell me the state of the law. If, if there's a border patrol agent or whatever who just decides, maybe for these political fascism reasons, but they're just gonna start shooting people they think are liberals, what can be done? It's sounding like, like, based on the other cases, they just get to do it. I don't understand. What stops them?

0:42:56 Matt: A constitutional right to duck and cover, I think. But sorry, this is getting dark. If happy hour were legal in Boston. So the thing is that, no, obviously, I mean, that would be a crime at that point. If they're just going to Omaha and just shooting people, could you be charged with a crime. And ultimately, a lot the things we're talking about right but no crime because it was a mexican kid in mexico so You get a free pass there, I guess, um, and it was national security because it was on the border and we can't ask questions about that

0:43:11 Thomas: Well, they've just shot a kid. Oh, my God.

0:43:21 Andrew: Wow well well Here, I want to drill down on that a little bit more, um, I, come to you as a client, right? CBP shot shot my son, zero provocation, you you've just said, okay, that's a crime, uh, what do we we do. I come to you. I, you know, engage you to represent me. What's the next steps?

0:43:36 Matt: That's question I'd really like to ask Clarence Thomas, because he said in the decision that not only was, basically, he didn't care, it was pointed out to him that CBP's internal process is useless because CBC actually found the guy should be fired and they didn't fire him, um, and there's no appeal, there's no person, you don't get to participate in this process, you just file a complaint and that's it. But Thomas actually very strangely said not only should there be a congressional remedy, a legislative remedy, but the executive could go ahead and create a remedy if it wanted to, which it doesn't, obviously. But I guess if we're talking about my clients, we're within 100 miles of the border here in Boston. Obviously, we're on the ocean. So I think that we might have to have a different analysis. But don't know. I mean, this decision tells me that I don't think we have a Bivens claim. We could certainly try to bring one. It's not really something I do. But I would hope that that agent would be investigated for an actual crime.

0:44:21 Matt: I mean, that's really the ultimate fallback here. But I mean, again, though, if it was in the line of duty and the kid was in a house where they're looking for somebody and he pulled a weapon or whatever, who knows? Whatever they're going to say. But I really am very, very concerned. And again, I was following this stuff so closely during the Trump years about exactly where they were going.

And we know that Stephen Miller had a drawer full of stuff ready to go, like a whole second term of the Trump administration. They had big plans for immigration, big, terrifying plans. And one of those things was the idea of extending expedited removal, which is what we're just talking about. Because usually, if you're caught in the United States, you have to go through some due process. It's still an executive court, but you have to be deported by an immigration judge.

But one of the things, the exceptions within the 100 miles we're talking about, is if they catch you within 100 miles of the border and you can't pray if you've been here for more than 10 days, then they can just send you back, and so the Trump administration, from almost weeks of Trump being sworn in, they were they were kind of previewing this for us, and we knew it was coming, they were extending this rule, not from 100 miles in 10 days, but to anywhere in the United States, within, I think it was five years.

And if you were stopped on the street right now and they took your phone away, could you prove that you've been here for more than five years, could you proof, you know, that you, whatever they need you to prove, if you can't call anybody, if you don't have your phone, if you doesn't have access to the internet, I mean, it's scary. It's really scary. And again, I'm not trying to be too doomerist about this. I'm trying to being realistic.

But I'm just looking at what Trump was actually saying and doing, and what Border Patrol was actually doing and during the Trump administration. And I fully believe we're going to get ourselves a better looking, more articulate,

0:45:58 Matt: Much smarter Trump sometime in the next 10 to 15 years, who's going to have all these policies come right back. Think I it's going happen, and we need to know what they are so

0:46:04 Thomas: Not for nothing. Why was Stephen Miller waiting for anything? Well, I thought they already did as much evil as they wanted. What was stopping him from doing it in the first... Well, what stopped him from doing it?

0:46:10 Matt: Oh, no, there was so much more. Well, they did actually want to get reelected. Some of the stuff, I mean, and they, oh, yeah.

0:46:16 Thomas: Oh, so it was like, after you've gotten re-elected, whatever. Like, no

0:46:20 Matt: Oh, then we can really unleash because They do actually, I meant Trump got a significant Latino vote, right? And I think that some of this stuff might have actually cost him that, had it become more known. It's just for one example, we know for sure. So the Supreme Court, one of the other things they actually did this week was the only good immigration decision in this month was that they threw out the state challenge to the public charge rule that, I won't get into it too much, but Trump had a very bad rule. It was a complete disaster. Stephen Miller basically wrote it, it's 100 pages of regulations, but this rule would have made it very hard for people who do not have significant amount of money or significant income to get residency. Residency. And the Supreme Court, I agree with them, obviously, did not accept this challenge from the states. But the public charge rule right now has to do with admissibility, with the idea of whether or not you get to get residency. There is a never-used provision in the Immigration Nationality Act of the public-charge rule that allows deportability.

0:46:20 Thomas: Holds barred anymore. Okay. Gotcha.

0:47:11 Matt: We could literally deport you for being poor. And we know for sure they were working on a regulation that would allow that to happen, or likely to. That's the real thing.

0:47:17 Andrew: So public charge, meaning someone who is living on government assistance, right? That's the. Yeah.

0:47:25 Matt: So it's not even the accepted benefits, but it's literally the officer, they extended, extended the discretion on this so far that the officer could sit there and look at every aspect of your life, including your English skills, which is something that's not required for residency, including your educational background, including everything else about you, and decide whether or not you're likely to become a public charge. It's an extremely prejudicial determination, potentially. It's actually kind of how they did it at Ellis Island, um, but but being done by in a very different political circumstance with two different kinds of people.

0:47:51 Andrew: And again, one of the very first decisions of the Biden administration was to announce publicly that they were not going to enforce that particular regulation while they worked to promulgate new regulations that unwound it, which they have now done. And so the question was, so the Supreme Court granted cert in a couple of cases from, and I forget, I think it was Texas was one of them, but from a couple of different states that said, hey, we want to sue to enjoin, to force the Biden administration to enforce this particular Trump era regulation, and the Supreme Court just a couple of days ago dismissed that. In fact, I think yesterday dismissed that as a certiorari having been improvidently granted, which you see infrequently. Right. That isthe Supreme court coming back after briefing on the merits and saying, yeah, I know that four of us voted to take up this case, but that was sure a mistake. We should not have taken this case up

0:47:59 Matt: Right. Exactly. Takes a while.

0:48:48 Matt: Why'd

0:48:48 Andrew: To begin with.

0:48:48 Matt: We do that again?

0:48:49 Andrew: Yeah, exactly. And I'm and glad that we've kind of pivoted to that to end because there's been a pretty dark episode. And so, you what's your thought process there? This is What a positive result seems to indicate that maybe, you the entire howler monkey contingent of the Supreme Court is not fully on board with, the Trump white nationalist agenda in all its forms. I don't know. How do you read it?

0:48:49 Matt: Yeah.

0:49:11 Matt: I wish I could go that far. As I

0:49:13 Andrew: Oh, that's not that far. This is that's a very modest claim.

0:49:18 Matt: Often say to my students at the end of class, I wish I could end with some good news. And then I just leave.

0:49:24 Thomas: And then you just and then and

0:49:23 Andrew: Yeah, we say that on this show a lot, too.

0:49:25 Thomas: Then you just leave I wish I could answer the good news door shut well hold

0:49:30 Andrew: So

0:49:27 Matt: Exactly, yeah. Yeah. And I mean, literally. Literally, at the end of my last class, I ended with, you know, the best thing I can tell you right now is the best we can hope for is you're going to need a visa to travel from Massachusetts to Florida in the next 20 years. But I will answer this by saying that I think that the public charge rule was clearly illegal. Like the way that they extended it was clearly illegal. But we're at a real impasse right now because Congress obviously can't get anything done. They're never going to get anything on immigration. There's never going to be another big immigration bill. I just don't see it happening.

0:49:53 Thomas: On I mean, look, unless we elect a few more senators and get rid of the filibuster, let's at least give people there is a realistic way to do this possible.

0:50:02 Matt: It's possible. But again, depends on who's president also. So,

0:50:06 Andrew: People need

0:50:07 Thomas: I think they're going to let Biden finish his last two years possibly so if we do this in the midterms just

0:50:07 Andrew: To be motivated. But yeah, like, yeah.

0:50:07 Matt: Yeah. Let's hope. Sure. No, no, I'm sorry. I don't mean to be that negative. Yes, there are circumstances that would allow. I'm very concerned about what kind of Kamala it ends up being. But the point is, though, that in the absence of legislation, because we've had an absence of regulation essentially since 1996, the last big thing was something actually that Biden helped to get through, which wasn't great, frankly. We have seen the executive take more and more power, which is understandable because they've been frustrated. Obama creates DACA because the Congress was unable to pass the DREAM Act because John Boehner didn't want to. It was that simple. And so, you know, I do think that the executive has had to step up, which is good and bad. We've seen how bad it could get under Trump. And the courts have been our last defense against some of that. So the courts, essentially, Trump took L's on pretty much everything during his administration on the worst stuff, the stuff that was really, and even now we're finally seeing some of the worst of it struck down like the public charge.

0:51:02 Matt: Many other examples too, though. And they tried to end asylum as we knew it. They tried in so many ways to streamline the deportation process, to get people out as quickly as possible, all these other things. But a real Sorcerer's Apprentice situation when you allow the executive branch to control immigration policy. It can be great times like this, not so good times like the last guy.

0:51:21 Thomas: Final question, and apologies, I feel like I'm just not understanding it. Are you really saying that if a Border Patrol guy, let's say he just has a personal grudge against someone, he happens to be on duty, he drives over to that person's house, kills him, what's the, like, the police, can they arrest him? And then he's like, well, but I'm Border Patrol, and he's like, oh, okay, you're free to go? What are we talking about here?

0:51:43 Matt: We're into some new territory. If there's no Bivens claim, if there's no chance of actually suing for damages, and if this happened with the thing you just described, If it happens in Vermont, where they do go into people's houses all the time without warrants, yeah, I don't know. I mean, I would hope that there would at least be a murder investigation, and then he could be charged with murder, but I'm not sure that you could ever recover civil damages from that based on what we're seeing here.

0:52:02 Andrew: And let me jump in on that one, Thomas, just to make that clear. I think in many, many areas, there, right, would be a criminal investigation and a prosecutor would love to bring those cases because that would be consonant with what the neighborhood, neighborhood, the population, the area that in which uh they work, the problem is that there would be nothing that you as the victim could control, right? You could go to the police and say, hey, you know, CBP shot my son, uh, you should open up an investigation, and if you have to let, you know, live in a nice, you know, liberal area like Maryland or California, uh, then you probably have uh, you... You're probably going to get a sympathetic ear. Don't know how sympathetic the ear is if you live in Arizona or Texas. Civil, right? Suits have been a thing that you can say that is within the control of the plaintiffs, right.

0:52:53 Andrew: And again, let's go back and analogize to, you police brutality, right, like the NYPD beats the crap out of you. You can go sue them for violating 42 USC 1983. And Right. Does that then shame the police department into conducting its own internal investigation? Sometimes, you know, does that shame the local district attorney into bringing charges sometimes? Right. Right. But even if they don't, even if you get completely screwed with respect to how the institutions handle it, you still have the ability to take to take some charge, to go to the courts, to tell your story, to to motivate outrage, that sort of thing. And that, to me, is kind of the fundamental takeaway of that a case like this becomes inapposite to bring a Bivens action because, right, that's the parallel 1983 against CBP, It right? Means you can't—nothing within your control.

0:53:45 Matt: And Bivens' express purpose, as is the case of Moleska from 2001, actually specifically says it's supposed to be deterrence, not even against the agency, but from individual officers, right? They should have some kind of safety here where they understand that they're going to be held personally accountable because it's hard to personally hold federal agents accountable for the most part. But if they do something really crazy, they should be held accountable.

0:54:05 Thomas: Justice Thomas says no. Yeah, I understand, so there is still a possibility of criminal stuff in an outright just murder case, but it also sounds like there'd be other opportunity for a lot of things that are just short of that to still be fine, if they have some justification, like the most flimsy justification.

0:54:22 Andrew: Well, and again, to me, the harm is it now becomes at the discretion of your local prosecutor and your local police, right? And that's going to fall disproportionately. Like, you know, will probably have it better off being in Boston. Uh, but, the places where you're most likely to have the, well, I don't want to say that I was going to say most likely to have the most egregious conduct. It sounds like what you've said is that that egregious conduct is fairly ubiquitous, but the, yeah, that the places that need it the most are the ones where you are least likely to be able to rely on, you an impartial and fair investigation by, uh, local police and, uh a reasonable determination by the prosecutor.

0:54:48 Matt: For CBP, sure? Sure.

0:55:01 Matt: Well, the good news is that one third of the population lives outside those 100 miles. So they're a little bit more protected.

0:55:06 Andrew: Good thanks uh any anything else yeah can we kick some puppies on the way out um please tell me you were not actually about to kick a puppy

0:55:08 Thomas: Well, this was horrible. Oh

0:55:10 Matt: I was actually about to tell you about the time that Steven Seagal shot a puppy in the head. Pio, actually—did you know about that case? To me, it's the ultimate example of why we need 1983, right? Because Gerard Pio showed up with a tank, 30 SWAT team members completely armed to the teeth, ready to go. So I think they burned part of the house, but they brought Steven Seagal along just to add like this, you know, horrible insult to your injury Sunday, right? And just like, I mean, imagine Steven Seagal shoots your dog in the head and there's no relief. I mean that's just, that wasn't CBP, but I'm giving an example of the kind of things you should be able to recover.

0:55:37 Thomas: My god, I thought you were joking. But why were they there? For what? Because a suspect of something? Thing.

0:55:48 Matt: The stupidest possible reason, two stupid possible reasons, actually one was that they thought the guy was involved in illegal cockfighting, he was a chicken farmer. The other reason was that Steven Seigal was shooting a TV show called Lawmaker or something. And they wanted good footage. Yep. That suit was dismissed ultimately. So that's a classic 1983 claim, somebody right? Shows up with ridiculously over-armed, terrorizes your family, shoots your dog over nothing. But anyway, so yes, who knows? Who knows what the future of all this is? But I think that it is very important that we at least understand where this is going and what they're doing. This one didn't make as much news as I would have hoped it would have. And I still hope that people take some time to understand it.

0:56:05 Andrew: Yeah yeah well I, I think you've helped us sound the alarm, uh, at least, wish I keep trying to direct us to something that we had the brief moment of positivity, but I think that's overwhelmed by the – Thomas, I found someone more negatron than you, but there we

0:56:32 Matt: Sorry about that. Going back to parties after COVID has been really fun for me. I'm sure you can tell.

0:56:43 Andrew: Go. No, but Matt, thank you so much for coming on. We really appreciate it.

0:56:46 Matt: My pleasure.

0:56:43 Thomas: All right. And And Matt, where can listeners find you?

0:56:47 Matt: At matt, M-A-T-T underscore cam, C-A-M, and my dopamine receptors would very much appreciate a follow. Thank you.

0:56:56 Thomas: I will follow you right now.

0:56:59 Matt: Appreciate it.

0:56:59 Andrew: Can can confirm opening arguments has been following you for a while and matt thank you so much for coming on the show uh

0:57:01 Matt: I appreciate that very much. Thankyou both.

0:57:05 Thomas: Thanks very much.

0:57:06 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:57:15 Thomas: And now it's time to thank our top patrons, our hall of famers, our all-time greats at patreon.com/law. We are on the third quintile. And Andrew, you have the first decile, I guess.

0:57:26 Clip: Right. Well, thank you, too. Jurisprudence fetishist gets off on a technicality.

0:57:31 Thomas: Love it.

0:57:32 Clip: Don Quixote, don't laugh. Donkey Hody may deliver you a swift kick in the ass. I learned the name in a book, OK? Pablo Escargo's heroin snails that that always makes me laugh. Brian K. Angry Macface. Penelope is glad Sidney got sanctioned for terpsichoree. This is not the final decile. No, this is just a tribute. April Poff. General contact unit problem child. His name is my name too. Matricide, patricide. Catricide? Hattricide!

0:58:05 Thomas: Weird.

0:58:05 Clip: All right. Wuthering Shites. The Dows. Time for some dear old dad jokes. What do call a group of whales with broken fins? A podcast. I like It learned hand job, copyright 2022, all rights reserved. And and there may be some uh you identity theft issues regarding learned hand jobs. So interesting. Halster Goodwater. Jake, after meeting with Putin, Susan Collins is absolutely certain Russia won't invade another country. Again. That is Exceptional.

0:58:33 Thomas: All God. Yeah. Too real.

0:58:35 Clip: And Christopher Brown, take it away, Thomas.

0:58:38 Thomas: And they could do Philly live show 2022 or anytime after the bar exam if I'm still alive. Awesome. Me Grimlock. What you do with COVID-19? Not good, but be better soon. June. Vaccinated Aussie in Germany. If I get the next T3BE right, can you top up my supply of Vegemite and Tim Tams, please? Sure. Seattle Pete. Court overturns Lawrence v. Texas, fellatio and cunnilingus may be illegal sodomy, but will still be okay. Okay. There's a lot there. Claire from Paris, France. Darth Mandy Pants. Congrats, Gavin, for graduating law school. Go, Yeo. Nice.

0:59:06 Clip: Wow. Oh. Congratulations.

0:59:14 Thomas: Lou, practicing 80s Florida law, Miami pro hoc Vichay. Bob Loblaw's Law Podcast. Ballerina live show after the cup. Yeah, that has been an accurate prediction for a long while now. That's all but assured in my opinion. I mean, it's Tampa, so you never know, but geez, those avalanche, they look really, really, really really good. The impossible, Cheese Brogler. Hmm. Polly Hernandez. Donate seized Russian oligarch yachts to 1877. Make Yachts for Kids. Love that one. Ethical Thomas.

0:59:43 Clip: Oh.

0:59:44 Thomas: Is the real ET. Jason Kopas and Bob Coburn. Thanks so much for being our top patrons. We love you so much and looking forward to the next quintile next time.

0:59:52 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:59:58 Thomas: And now it's time for T3BE answer time. Well, was it two trick questions in a row, or did I try to outsmart myself? Let's see.

1:00:07 Clip: This was a soccer question. So soccer player brings a battery action against a player on the opposing team. The soccer player presented evidence that the opposing player kicked him in the shin while the soccer player was trying to score a goal. The opposing player presented evidence that he was merely trying to get the ball and that the kick to the shin was an accident. The opposing player then testified that the game was played rough. In this week in Sacramento, we play our soccer rough, right?

1:00:28 Thomas: Yeah. Yeah.

1:00:32 Clip: And the soccer player consented to being kicked. The opposing player also presented a witness who testified that several players are injured over the course of a typical game in, you know, the rough city of Sacramento, and the games have been played that way for several years. The soccer prayer did not cross examine the witness. And then, after After resting its case, the opposing player, the defendant, moves for judgment as matter of law. Should the court grant the motion?

You said, I think this is a trick question. There's a special rule. I'm going with D. No, a judgment as a matter of law must be made at the close of the plaintiff's case in chief rather than for the first time at the end of trial. Sadly, not the case. Not a trick questions special rule, I do want to tell you, though, your Second Chance Law Firm remains intact. Tack. You picked as a backup and I love it when you go all in on no answers. You said no because whether the kick was an accident and whether the soccer player consented to it are questions of fact for the jury. That is just the straightforward answer, absolutely correct. So yeah, you can move JNOV at any time. I liked the thought process of why you would want to make it after, at the conclusion of the plaintiff's case in chief, but that's not what the federal rules require. They say that. But until it is submitted to the jury, it is live for either side to request a J.N.O.V. And I guess because the plaintiff can also move for judgment, notwithstanding the verdict that, you

1:01:55 Thomas: Interesting.

1:01:55 Clip: Know, so I don't know. But in any event, it isn't customary, by the way, for defense to move for judgement as a matter of law at the conclusion of the plaintiffs case. I've done that in every trial I've been in and it's never worked. But but you do.

1:01:57 Thomas: Yeah. Yeah. I think if I had found another answer that I really liked, I wouldn't have picked D. It was the combination of that kind of making intuitive sense as a rule and the fact that I just didn't really like any of the other answers. And I guess that's because they really, you know, not trick you, but they kind of lead you astray by making this a ridiculous case that would never exist. I mean, this is silly. Like it would never exit. So, I'm glad I got my second chance, but, isn't this the kind of thing that would be dismissed as a matter of law? Like playing soccer. Like, really? Are we to believe that you could bring a case for a foul in soccer like every time?

1:02:30 Clip: I let's unpack this in a practical sense. There's no way a judge would ever allow this to get to the jury. But in terms of leaving it as an undefined question, right, like the questions of right. Did you consent to be kicked? Was the kick an accident or was the kick intentional? Those are sort of classic fact issues. Now, it seems to me what is very likely in soccer, in professional sports, I can tell you from my familiarity with the Major League Baseball uniform players contract, you have certain representations regarding, you the nature of physical contact that would probably cover, you most of these kinds of examples.

Right. Like would say, I understand that this is, you know, soccer is a competitive physical sport and that, I you run the risk of being kicked in the, course you of running around the field and chasing after the ball, whatever they do in soccer. Right. So I think it is likely solved by taking beyond the realm of fact questions. What would happen here? But but here in this hypothetical, the question is, it would hinge on, again, as stated by the question, was this kick an accident or was this pick intentional?

1:03:29 Thomas: Hmm. Yeah. Hmm.

1:04:00 Clip: And that is the classic thing that you just, you listen to testimony about. Should

1:04:03 Thomas: Yeah. Should have gotten it, but went for a, you know, a penalty kick, a Hail Mary kick of a ball. Doesn't work with soccer. I went. No, there's nothing. Not. I There's no Hail Marys. Really? It's another reason the game is boring and sucks is like once you're down by one, even when there's like 10 minutes left, they're like, wow, this one's over. No chance.

1:04:19 Clip: Have. No, it is Soccer is the exact opposite of the experience I get when I watch, um, cricket, right? Especially Australian rules. I will never forget, uh, watching it in a bar in Australia.

1:04:29 Thomas: Ah, cricket. Are you talking about Australian rules

1:04:36 Clip: Oh, no, no, I mean cricket and

1:04:36 Thomas: Football? Oh, okay. Because there is Australian rules. Football. That sport is frigging cool. Do you know that one? There's all kinds of field goal kicking at all times. I don't know. I don't understand it, but it's a cool sport.

1:04:41 Clip: I uh, yes. Yeah. Yeah. And rugby, rugby, school, yeah, no, cricket, the thing was I was watching it that had, like, the one team was down by like 400 runs and the guy at the bar next to me was like, "Well, they've obviously won," and it was like, okay, like,

1:04:52 Thomas: Yeah. Yeah. It's I I have a better chance of becoming a lawyer than I do of ever understanding cricket. I've read the rules 8,000 times and every time I'm like that doesn't make sense and my brain just throws away the information. I'd have to see it. You know, I'd have to live with it. It seems like a cool sport though.

1:05:18 Clip: Yeah.

1:05:18 Thomas: Nothing against the sport. It's just so, so different. But anyway, all right. I failed this, but in a rare, we're both here at the same time when the, when we have the winner, let's talk together about this week's T3BE winner and we can both wish them never ending fame and fortune.

1:05:18 Clip: Absolutely. Yeah.

1:05:31 Clip: Whoo. Well, I want to give the win, a bunch of people wrote in in with the correct answer. A couple of people wrote in to say, well, D is wrong, but it's going to be B, which I love it when people are confident that you're wrong, but then also wrong themselves, which is, it's always fun.

The first correct answer that came in that is filled to the brim with an insider joke, so I really love it, comes from Mad Political Scientist on Twitter, that is at n jordan 79 n j-o-r-d-a-n-7-9 who writes, "T3BE is C, defendant doesn't win the point just because the plaintiff didn't rebut it. Still has to be a good point. Litigation isn't policy debate.

Just what that one kid from your high school debate team is doing now," and then the hashtag ld for life uh, LD meaning lincoln douglas debate, the kind of debate that I did, my son Alex did. We, I coached for a long time and I'm now out of, so that it made me nostalgic. I love the idea, and high school debate is very often about who has dropped, you what argument failed to respond to what argument, so, exactly right on, and taking me back to that watching debate feeling, and, and also the right answer. So congratulations to at and Jordan 79 Mad Political Scientist, on being this week's winner.

1:06:21 Thomas: Sure.

1:06:48 Thomas: Andrew grants me fame, no, and fortune, because it's not guaranteed, mine is guaranteed, so I, if you add it together, infinite fame and fortune, one guaranteed, one not, I don't know, we'll have to get a mathematician to tell us what that is, it's some sort of yeah, there's something weird going on, but whatever that answer is, you have it, congratulations. And that's our show. A little bit dismal there, but thanks. Thanks for the breakdown from Matt Cameron. Make sure to check him out on Twitter and all that. And we will see you next time. And it may be a little happier next episode because there is a J6 hearing in between now and then.

1:06:59 Clip: Yeah. Oh, that's that's divide by zero error, right? Yeah.

1:07:21 Thomas: So looking forward to watching that. See you then.

1:07:21 Clip: I can't wait 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.

1:07:59 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.