OA624: Good News Show! Williams v. Kincaid Sets a Good Precedent for Trans Rights

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 624, I'm Thomas, that's Andrew Torres, how are doing?

0:01:23 Andrew: I am fantastic, Thomas, how are you?

0:01:25 Thomas: Well I'm super pumped for what I heard was a good news episode, can't wait, oh

0:01:29 Andrew: I can't wait to tell you about it.

0:01:32 Thomas: So before we get going today, Andrew, we wanted to talk about the ads we've gotten some emails that the dynamically inserted pre-roll ads have sometimes been pro-life. That seems crazy. So here's the deal with this. It's a little weird and it makes no sense to me, but here's how it works and why it sucks. We have absolutely no control over who buys those ads. The way those dynamic ads work, the way they can tell it is companies can tailor it to like where you are and all that kind of stuff, whatever information, only way I talked to them about this and the only way to get rid of those pro-life ads would be to get rid of all government and political ads, like all of them, so that would mean that since our show is a government and political show, there'd virtually, we wouldn't be able to have any anything really, um, so that doesn't strike me as a great option, but here's the thing in this. I feel like the best place for right wing ad dollars to be spent is

0:01:46 Andrew: Yeah, absolutely. It is on our

0:02:32 Thomas: On an audience that has zero chance of listening to them. Like, for real, if you were going to say, OK, X right wing monster has, you a billion dollars in ad money. Would you rather that go toward susceptible audiences or not at all susceptible audiences? I feel like I know what I'd pick.

0:02:32 Andrew: Show, yeah.

0:02:51 Andrew: I agree with that, look, I answered a couple of emails and yeah, that was named like the Grand Rapids right to life organization. You know, when I read like the Moink ads, like I literally mean that like I have a fridge full of Moink bacon right now. It's delicious stuff, we right? Have absolute control. And if Moink tasted like garbage, I would just tell them to go pound sand.

0:03:14 Thomas: We turn down adds all the time.

0:03:15 Andrew: We Yeah, because, but the dynamic thing, because it, it actually is tailored to the area in which, like, I assume this person who emailed us is from Michigan, right? Right? Or his phone is otherwise feeding him Michigan ads, can't block at that level of abstraction. So we really have two options. We have the get rid of the whole category, which I think would do a disservice, right, and would also lock us out of the people that most want to advertise on our show. And you came up with this, Thomas, and I think it is just Just absolutely brilliant.

0:03:26 Thomas: Yeah I was thinking because this argument of it, aren't the right wing dollars better spent on us, can sound a little self-serving, so then I thought, Okay, well, we'll just, you know, we should just donate whatever right wing daughters we get, and then that's the best of both worlds. I, weirdly enough, they can't even itemize out what ad ads guy gave us, what we'll probably have to do our best guess, or one way or the other, we're going to make a donation to, uh, a not pro-life group, the opposite, anti-life, no, that's not, a pro-choice group, uh, with these dollars because it's, it really isn't about us wanting, you right, know, wing dirty money, it's that, can't we, we don't have any control over those pre-roll ads whatsoever, uh, which kind of sucks, so that's the solution we've come to. We'll try to find a way to get at least an estimate maybe from the ad company on what, where that revenue is, what it is, and uh, yeah, we will donate that to the opposite of their cause.

0:04:14 Andrew: Yeah. Yeah, we're gonna err on the side of overestimating what it is we are going to, you know, up that donation. And by the way, like we got a pretty good illustration in this episode of of how we can make sure those dollars get spent.

0:04:40 Thomas: Uh, oh, what a segue so not only will their ads not work, their money, they're giving us, will go to the opposite of them. I think that's a win-win. I mean, come on, absolutely.

0:05:03 Andrew: But please do continue to hit a problematic ads. Please do send those our way. Yeah a hundred percent and

0:05:07 Thomas: Yeah, absolutely, we would, we would rather have the information for sure. Terrible. All right, Andrew, with that sad, let's get to our good news main segment. Can't wait. So, Andrew, so much has been going on, I completely missed this, a new case has dropped that is good news and I am excited to hear your breakdown. So tell us about Williams v. Kincaid, but

0:05:28 Andrew: Yeah, this is a case that just dropped in the Fourth Circuit, so may be appealed to the Supreme Court. But this is the first ruling of any appellate court of any kind, right? So there is not yet a split between the circuits, right. And so under ordinary criteria that the Supreme Court uses to determine whether they want to grant cert, usually you do that when, the The circuits, some come out one way and some come at another. Opinion, you know, I'm pretty sure we're going to get a Fifth Circuit opinion or an 11th Circuit opinion that comes out the other way. And, you Know, we'll worry about fighting the Supreme Court when we get there. But in the meantime, unambiguously good. I'm going to give a little bit of a content warning. I'm gonna describe what happens in the case, which involves the government's mistreatment of a trans woman at the hands of prison officials.

0:06:15 Andrew: It is not graphic in any way. But, yeah, that that part is a bummer. And so, you I want to give you a little bit of a warning on

0:06:22 Thomas: I imagine that's why it's a case.

0:06:23 Andrew: Exactly right. So this case involves Kesha Williams, trans woman was convicted of a minor drug offense, sentenced to six months in prison. And so, as the court says, and by the way, again, you know, we want to call out whenever the court gets inclusive language correct, the court says her gender identity, female, differs from the gender, male, that she was assigned at birth. Prior to her incarceration, Williams changed her legal name, lived her life as a woman. Her home state of Maryland has recognized her gender as female and issued her a driver's license with that designation. Definition, Williams suffers from gender dysphoria, which is comfort, discomfort, or distress that is caused by a discrepancy between a person's gender identity and that person's sex assigned at birth, that's her, her definition, quoting the World Professional Association for Trans, for Transgender Health Standards of Care, so that's W-PATH. Then the court notes people suffering from gender dysphoria often benefit from medical treatment, including hormone therapy.

0:07:20 Andrew: William's had received such medical treatment in the form of a daily pill and biweekly injections for 15 years prior to her incarceration. Okay, she was incarcerated in December of 2018, or November of 2018, so, yeah, since 2003, right at the outset of her incarceration, prison deputies searched Williams, assigned her housing on the women's side of the prison, gave her uniforms typically provided to female inmates, including several bras and women's underwear. Later that same day, Williams told the prison nurse that she was trans, suffers from gender dysphoria, and for 15 years had received, received hormone medical treatment for her gender dysphoria. Williams had brought that medication with her to the prison and asked the nurse to retrieve it for her from, presumably you, the storage locker. The nurse did not return the medicine to her. Instead, she instructed her to fill out a medical release form and indicated that prison health care staff would follow up with her soon.

So you know what happens next. In response to the questioning, Williams explained that she had not undergone trans feminine bottom surgery, so, because Williams retained the genitalia with which she was born, the nurse labeled Williams as male, changed her prison records, including her housing assignment, to reflect the male label, pursuant to the prison's policy, which provides that male inmates shall be classified as such if they have male genitals and female inmates shall be classified as such if they are female genitals, prison deputies required Williams to live on the men's side of the facility.

0:08:53 Andrew: They also required her to give up the women's clothing that they had assigned to her previously and to wear men's clothing. As instructed by the prison nurse, Williams filled out the medical release form later that same day, but two weeks went by without her receiving her prescribed hormone medication for gender dysphoria. As a result, she began experiencing severe mental and emotional distress. She requested a visit from a nurse who directed her to fill out another form. She did so.

So the prison nurse received those medical records from outside the prison, from her, from right, our physician on December 4th, 2018, but did not approve the medication or reinitiate the hormone treatment for another week until December 10th. After that, the nurse failed to provide Williams with her approved and scheduled hormone treatment on two separate occasions. So intermittent and delays. Days. Then again, I need to give this to you for context. While Williams was housed on the men's side of the prison, prison deputies repeatedly harassed her regarding her sex and gender identity. Deputies ignored her request that they refer to her as a woman. They referred to her as Mr. Sir, he or gentlemen. Her request for some accommodations to shower privately and for body searches to be conducted by a female deputy were denied.

0:10:02 Thomas: Come on, geez.

0:10:04 Andrew: To place her in solitary confinement if she continued to resist a search. A male deputy, male inmates, as you might imagine, harassed Williams, causing her to fear for her safety throughout her incarceration in male housing. Again, six months, January of 2019, during a shakedown search, that's what the court describes it as, of William's housing unit, Williams again requested that a female deputy conduct the body search. Despite the presence and availability of a female deputy, deputies ignored her request. Instead, a male deputy, Deputy Garcia, who knew Williams to be a woman but referred to her as a man, told her, quote, "Sir, you are a male and I need to search you." He then subjected her to a highly aggressive search that resulted in bruising to her breast and caused her pain for several days. Afterwards, he mocked, mocked Ms.

0:10:04 Thomas: Sues

0:10:50 Andrew: Williams, and made light of his actions in searching her person. She gets out of prison May 2019, and as you might imagine, brings

0:10:58 Thomas: The hell out of people. Wait, did she have to get out first to do that, or just to be able to, like, have the wherewithal and the, because you can sue from prison, right? I just, I just want to clarify it, could not everyone has unlimited resources, uh, to tackle those kind of things.

0:10:59 Andrew: Section 1983 action for violation of her civil rights.

0:11:08 Andrew: I mean, she could have that's right, but no, great great question. Right, I Know, reading between the lines, I think it was just so awful that she was focused on getting out and then after getting out, decided to pursue legal remedies. So defendants moved to dismiss. And what they said was gender dysphoria is not a disability under the ADA. So we don't have to accommodate it. So, we didn't violate any of your civil rights. There are other claims in this lawsuit. I'm going to focus on the ADA because that's the groundbreaking the, part of this. Now, the Americans with Disabilities Act, 1990, parenthetically, right? Republican President George H.W. Bush, right, this would get zero Republican votes today. Sweeping, say, bipartisan legislation back then, if you're again thinking, you, about uh, which party has drifted in which direction, how about, know, our, you, landmark civil rights legislation to accommodate, uh, those with disabilities was garnered significant Republican support 30 years ago. Anyway, 42 U.S.C. 12101 at sec.

0:11:22 Thomas: Yeah survival. Rival, yeah.

0:12:10 Andrew: Um, among the protections that the ADA offers, it prohibits public entities like prisons from discriminating against or excluding from participation in the benefits, services, programs, and activities, any qualified individual with a disability, that's section 12132. The ADA defines disability broadly to include a physical or mental impairment that substantially limits one or more major life activities of such individuals, so you're thinking gender dysphoria seems to fit. I Want to continue with that. Um, the Supreme Court narrowed the scope of the ADA in the late 90s and early 2000s, because, again, the Supreme Court's been pretty conservative before going hard conservative for the past 40 years.

And so Congress in 2008, again Republican administration, Congress in 2009, passed an amendment to the ADA that specifically instructed the courts that the definition of disability, I'm going to read this this to you directly, quote, "Shall be construed in favor of broad coverage of individuals under this chapter to the maximum extent permitted by its terms." In section 12102 4A, Congress expressly directed courts to construe the amended ADA as broadly as possible, right?

And noted in the purpose section that the point of the amendments in 2008 were intended, quote, "to make it easier easier for people with disabilities to obtain protection under the ADA."

0:12:39 Thomas: Yeah

0:13:32 Andrew: So that means you construe the definition of disability broadly and any exclusions therefrom narrowly. So that's the legal background. The defendants here do not argue that gender dysphoria doesn't fall within the definition, but rather that it's covered by an exclusion. And here's their textual argument, this is 42 USC 12211 B, and as I read this to you, you will quickly realize uh that it's uh gross, this was a section added uh to the ADA by uh Jesse Helms, one of the worst monsters of of the 20th century. So Jesse Helms wrote essentially what became what uh, 12211 B, which says, "Certain conditions. Under this chapter, the term disability shall not include one, transvestism, transsexualism, pedophilia, exhibitionism," voyeurism, gender identity disorders not resulting from physical impairments or other sexual behavior disorders. Two, compulsive gambling, kleptomania or pyromania, or three, psychoactive substance use disorders resulting from current illegal use of drugs. Not hard to figure that out, right? We've we've lumped all of this together in with a bunch of stuff that we morally disapprove of.

0:14:48 Thomas: Conservatives Want to hate people for and blame them for, yeah.

0:14:53 Andrew: Right, Right. Now, what the court has kind of done on both sides, right, both the the majority opinion and the dissent, which is Judge Quattlebaum, a Trump appointee, we'll talk about the dissent in a minute, is basically read all the discriminatory stuff out of that section. Put a pin in that because we're going talk about the constitutional implications.

0:15:11 Thomas: Do, how do you, do read it out? How does that work? What?

0:15:13 Andrew: Yeah, well, what they've read it is they've ready to say under this chapter, the term disability shall not include gender identity disorders not resulting from physical impairments. And the reason that I read, which was in the middle, that was part of that list that comes in between voyeurism and pyromania, that's why I read you the whole section first. Because if you just read the court's opinion, excluding the one point where they refer to the entire subsection here, get the idea that it just says, "Disability shall not include gender identity disorders not resulting from physical impairments," and that doesn't convey the deep-seated bigotry and hatred of trans people that was specifically added into this bill.

0:15:24 Thomas: Yeah.

0:15:56 Thomas: And Gamblers.

0:15:59 Andrew: Yeah.

0:15:59 Thomas: By the way.

0:15:59 Andrew: Gamblers, kleptomaniacs, pyromaniacs.

0:15:59 Thomas: Was, I, mean, this is not important, but it's kind of like really like, so so somebody was had like a gambling addiction addiction, and someone at a government run whatever was just like taunting them all the time about it, that Jesse Helms was like, "Well, that's fine, you're allowed to make fun of somebody who has an addiction to something as long as I hate it." Okay.

0:16:02 Andrew: Yeah, yeah. Yes. That's exactly right, okay.

0:16:23 Thomas: I'm sorry, I, I really, this is a basic question. But what do you mean they read out, is how does a court, I mean, I'm not to turn and all conservative decide

0:16:23 Andrew: They're No, no, No, by by reading out, I mean, yeah, I mean, they just

0:16:33 Thomas: That the law is different than it is, oh.

0:16:35 Andrew: Well, rather than deciding, they're, they're just focused on, they're like, okay, the law says A, B, C, D, E, F, G, and section D applies, so we're going to talk about D. So when I say read out, I means, I, they are effectively.

0:16:47 Thomas: Just for the purposes of this case. Oh, okay, sorry. I got you.

0:16:49 Andrew: Yes. Yeah. Not. Yeah, I'm going to the constitutional argument in a few minutes, so you're right to bring it up as a question, hopefully I'll answer it then. So the arguments that are raised by Kesha Williams here are pretty straightforward. She says gender dysphoria is not a gender identity disorder, disorder, so doesn't fall under the exclusion. And even if it was, it's a gender identity disorder that results from physical impairments. So thank you for writing it like this. It does not fall under the exception in either way, and the Fourth Circuit agreed on both counts, so and and and it required, the first one requires more to unpack, because, yeah, because you think, well, gender, that sounds like a gender identity disorder.

0:17:17 Thomas: Oh, the first one sounded a little iffy to me, okay. Yeah No.

0:17:37 Andrew: But to understand why it isn't, you have to go back to, this is kind of the perfect gotcha for the textualist originalist in dissent. You have to go back to 1990 to look at the DSM-3, 3R at the time, that was in place. And the status of our medical care with respect to trans folks was not great in 1990. So, yeah, I know, shocker. The medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition. But it did recognize a class of other disorders that it called gender identity disorders. So that language was taken directly from the DSM 3R that was in place at the time. And according to the DSN-3R, the essential feature of a gender identity disorder was an incongruence between the assigned sex, i.e. the sex that is recorded on the birth certificate that's listed in that document. Right. And gender identity. So the important thing to understand is that everything that was classified as a gender identity disorder in 1990 was being trans. That's the definition of being trans, right?

0:18:01 Thomas: Way I don't believe it. Makes

0:18:49 Andrew: Part of what a diagnostic manual will do is say symptoms of this may include. Right. And you sort of look for the symptoms ofthis gender identity disorder. But the gender identity disorderof 1990 was defined essentially as being trans. The court then continues, crucially, advances in medical understanding led the American Psychiatric Association in 2013 to remove gender identity disorders from the most recent DSM, which is now the DSM-5, and, right, at the same time that the APA removed gender identity disorder from the DSM-5 the APA added the diagnosis of gender dysphoria, which did not exist as a diagnosis in 1990. The court then notes, dysphoria as the clinically significant distress felt by some of those who experience an incongruence between their gender identity and their assigned sex.

Here the, the court, later, but but I think it's relevant, it's to the explanation to bring it up, in going through some of the psychiatric literature uh related to this issue, quotes a professional, "As for many transgender people, the incongruence between gender identity and assigned sex does not interfere with their lives. They are completely comfortable living just the way they are." And that makes sense, right? So in other words, not all trans folks experience gender dysphoria. It's a subset, right,

0:20:34 Andrew: Makes total sense, some are happy, some totally understandable that they would suffer clinically significant distress. One of the treatments for that is hormone therapy, as is the case here with Kesha Williams. So the DSM-5 then goes on to explain that that discomfort or distress caused by gender dysphoria may result in intense anxiety, depression, suicidal ideation, even suicide. In short, being trans alone cannot sustain a diagnosis of gender dysphoria under the DSM-5 as it could for a diagnosis of gender identity disorder under earlier versions of the DSM. So reflecting the shift in medical understanding, the Fourth Circuit and other courts have explained that a diagnosis of gender dysphoria, unlike gender identity disorder, concerns itself primarily with the distress and disabling symptoms rather than just being trans.

0:20:34 Thomas: Sense and

0:21:23 Andrew: Then for one last go-round, the DSM-5 itself emphasizes this distinction, explaining that gender dysphoria diagnosis, quote, "focuses on dysphoria as the clinical problem, not identity per se." Put simply, while the older DSM pathologized the very existence of trans people, the recent DSM-5's diagnosis of gender dysphoria takes as a given that being trans is not a disability and affirms that a transgender person's medical needs are just as deserving of treatment and protection as anyone else's. That's direct language from the opinion. So it isn't a gender identity disorder, no matter how you might parse those words out, because that's not a thing anymore. And to drive that point home, footnote five kind takes issue with the the shotty originalism of the dissent, right?

0:22:09 Andrew: And so, you know, you can imagine how the dissenter would go, right, the dissident would say, "Well, we would ask in 1990, what would people say that Kesha Williams has," and they would say that she has a gender identity disorder, so therefore, it's a gender identity disorder under the ADA. And the court says, that's nonsense. The dissent insists that Williams' gender dysphoria must constitute a gender identity disorder because, as defined by the now outdated DSM three are a diagnosis of gender identity disorder required evidence of persistent discomfort and a sense of inappropriateness about one's assigned sex. Remember, right, I told you that there were symptoms listed, it's a diagnostic manual. So they would say one of the signs of someone having a gender, gender identity disorder, is a sense of inappropriateness and persistent discomfort.

0:22:58 Andrew: The dissent reasons that this persistent discomfort sounds like distress in a diagnosis of gender dysphoria. But this contention misses the point. Even if there are similarities between the now obsolete definition of gender identity disorder and the DSM-5's definition of gender dysphoria, the diagnosis of Gender Identity Disorder no longer exists. Those differences are not semantic or the result of linguistic drift. And I love this line, "Equating the two is like equating the now obsolete diagnosis of hysteria with the modern diagnosis of generalized anxiety disorder simply because they share a common diagnostic criterion." And I think that's dead on, don't diagnose women as hysterical anymore, and we don't diagnose trans folks as having gender identity disorder anymore, and so therefore, not a thing.

0:23:45 Thomas: It's not even relevant that the people at the time would have diagnosed, who cares?

0:23:51 Andrew: Because the act does not say we want to entrench the 1990 understanding of disabilities. I mean, like, nobody would think that? Unless, you know, they're religiously motivated and would want, you to be right.

0:24:04 Thomas: They hold six out of the nine seats on the Supreme Court would be the only people that would think that

0:24:07 Andrew: Right. Yeah. So the fallback argument is, and Even if you're not convinced by that, even if you'RE convinced that we have to look at the archaic definition of gender identity disorder, this would be a gender identity disorder with a physical basis. Right. And in fact, the other side seemed to argue this more as a pleading defect than anything else. Right? Like the failure to say my gender dysphoria has a physical basis in the complaint was, you know, essentially the reason they were arguing that her complaint should be dismissed. And the Fourth Circuit says, look, Congress's mandate that we must construe the definition of disability broadly as the text of the ADA permits. I read that section before, Though the statute itself does not define the phrase physical impairments, the EEOC has promulgated regulations defining that term expansively as, quote, any psychological disorder or condition affecting one or more body systems such as neurological and endocrine.

0:25:02 Andrew: There's Right. A citation for that. And we must defer to the EEOC's reasonable interpretation of ambiguous terms in the ADA. I mean, at least for now until the Supreme Court jettisons that. So, those are your textual arguments. The Fourth Circuit goes one step beyond that and says, look, even if we weren't convinced by the textual arguments, and it should be, this exclusion would likely be unconstitutional. We are not going to find on the basis of constitutionality because of an important avoidance doctrine that federal courts have. Right. And we've talked about that before. Right. It is the idea that if you can decide a case without having to rule on the constitutional issues, you should do so. Right. But here's what they have to say about the constitutionality of that section. One need not look too closely to find evidence of discriminatory animus towards transgender people in the enactment of the law.

0:25:53 Andrew: To begin with, the provision lists gender identity disorders alongside pedophilia, exhibitionism, and voyeurism. This grouping implicitly brands all trans people as equivalent to criminals, thereby making it more difficult for them to be treated in the same manner as everyone else. Else. The legislative history of the ADA reflects the moral judgment implicit in that list. And here's where I got the information on Jesse Helms. For example, Senator Jesse Helm's, a leading force behind the exclusion of gender identity disorders from the ADA, stated, and I'm not going to try and do a Jesse Helmes voice, "If this were a bill involving people in a wheelchair, or those who have been injured in the war, that's one thing. But how in the world did you get to the place that you did not even exclude transvestites?" Another legislator advocating this exclusion, Senator William Armstrong, quote, "Could not imagine the sponsors would want to provide protected legal status to somebody who has such disorders, particularly those that might have a moral content to them or which in the opinion of some people have a oral content."

0:26:48 Andrew: In short, we're talking about behavior that is immoral, improper, or illegal, which individuals are engaging of their own volition, admittedly for reasons we do not fully understand. That's in the legislative record.

0:26:57 Thomas: Is unreal. Like It's And and

0:27:00 Andrew: Yeah. One

0:27:00 Thomas: They're Like admitting, like, yeah, it's disorder in their mind, so like what is the disorder then? So it's disorder, but it has moral content to it, so therefore we want to be able to hate these people even if we don't understand what's happening.

0:27:12 Andrew: One of the law reviews upon which the majority opinion rests quotes a leading scholar, notes that with the passage of the Armstrong Helms Amendment, the ADA became became, in effect, a moral code. Disability coverage applies to those we pity, not those we despise. I thought that was a pretty pithy explanation of what happened back in 1990. So then the court says, look, this is not the first time that we've had to look at potential legislation that withdraws protection from only one group, but not others, from the injuries. In fact, in the early 1990s, Colorado passed a constitutional amendment that carved out a safe harbor to its state anti-discrimination laws. And I'm not kidding, this is how the ballot proposition was worded, quote, "To the extent they prohibit discrimination on the basis of homosexual, lesbian or bisexual orientation, conduct practices or relationships.

Relationships, end of quote. So in other words, it said, we're Yeah, that's exactly right. And that went all the way up to the Supreme Court, which struck it down in 1996. And the court said, and that was a case called Romer versus Evans, that said the laws of the kind that we have now before us raise the inevitable inference that the disadvantage imposed is born of animosity towards the class of persons affected. And Fourth Circuit then goes on to note that they have previously recognized that the ADA's exclusion of gender identity disorders itself was potential evidence of such discriminatory animus. So putting that all together, going, yeah, look, when you take a statute that is meant to protect disabled people and you say, right, right, right, everybody has these rights except for this one group

0:28:11 Thomas: Want to hate gay people."

0:28:55 Thomas: Yeah.

0:28:55 Andrew: Of people. That's evidence of discriminatory intent that cannot survive the intermediate scrutiny that courts ought to apply, that the Fourth Circuit does apply in cases discriminating on the basis of gender identity. And so they say, look, even if even if the law were clear, right, even if it said, you know, the ADA said in perpetuity throughout the universe, you don't ever have to accommodate trans people? That's not what it says. But but if it had said that, then the Fourth Circuit said, well, then that would very clearly violate the Equal Protection Clause, right. There's no way that that discriminatory animus could stand. Yeah, so you're stuck. Either read the statute the way we do or you want to read it in the most high bound traditionalist bigoted way. Great. Then we'll strike down that part of the law. Your pick. And again, like I said, the dissent Quattlebaum Trump appointee just, you makes makes the textualist arguments that are debunked in the majority opinion.

0:28:56 Thomas: I don't

0:29:46 Andrew: This great and again, there's basically no answer to the contrary arguments are that are listed in the footnote. It's just nope. If this were 1990, you would have had a gender identity disorder. So you have a gender identify disorder and there's no getting around that. Think And that this opinion will hopefully be a model for other circuits as an issue. And it's binding law, right? There is no higher authority the Fourth Circuit for the states that are covered by the Fourth circuit. So Maryland, Virginia, North Carolina, that's great news. And it really is fantastic a development for trans folks. And I wanted to celebrate that. So there you go. So

0:30:25 Thomas: Want to yuck everyone's yum, but saying that this isn't something that will just get appealed up and then overturned by our horrible Supreme Court instantly?

0:30:33 Andrew: I think this it's question of first impression. And the decision by the Fourth Circuit panel is moderate. Right. It is meant, that's why they have cabined off the discussion of constitutionality, know, to an even if section. And so typically, what happens is that one of the primary grounds for the Supreme Court to grant certiorari is that there is a split between the circuits or there is substantial uncertainty. Well, there's neither of that right now. This is the first case of first impression. And I would point out that, you even, you knows, sort of before the Bostock versus Clayton County, the first couple of cases, you know, were sort of allowed to stand on their own until you developed a competing body.

0:31:19 Andrew: Right. Like this Supreme Court is going to want to see, I think, is going to wantto see if other circuits come to a different conclusion. And if so, you know, the reasoning, the Fifth Circuit or the 11th Circuit decides in in determining that gender dysphoria does not have to be accommodated under the ADA.

0:31:38 Thomas: Boy, that strikes me as very optimist prime there. I don't know.

0:31:41 Andrew: Well, let's find out. We will know like we're going to track the Supreme Court docket. I will tell you if they take this case,

0:31:47 Thomas: It'll still take forever, right? So there's going to be some amount of time where this good law is good law.

0:31:52 Andrew: It will be it will stay good law, you know, during the pendency of the case being briefed and then heard on oral argument. Well, you know, you were to grant cert now, yeah, you could probably hear it in December and get an opinion in spring of 2023. But I don't think that will happen, even with this activist Supreme Court. I've been wrong a lot, it would be very, very aggressive.

0:32:17 Thomas: I think it just depends on how much attention it gets by right-wing monsters, maybe. But yeah, well, so it would be very aggressive and horrible, but we sometimes have a very aggressive and horrible Supreme Court, so I guess we'll see. But good news, good ruling, and we'll be good law for some time. That's great.

0:32:20 Andrew: Yeah, maybe.

0:32:33 Andrew: There you go.

0:32:34 Thomas: Andrew, and other good news, uh, we've got an interview up that we've gotta get to, and it has a little bit to do with the fact that our amazing audience raised a, uh, I think is this okay, if, if chicken shit is okay, a shit ton is that, well, they get, get past the censors, our amazing audience raised a shit ton of money, uh, to help maintain abortion care and coverage. So, and uh, we've got the director Jaleesa Jackson of ARC Southeast, one of the organizations, organizations that we donated to, that we raised money for, on to talking about what good that's going to do, what the fight is like in this day and age and all that good stuff. So let's get on over to our interview.

0:32:35 Andrew: Ooh. Ooh. Yeah, absolutely.

0:33:13 Thomas: This episode has brought to you by Mint Mobile. After years of fine print contracts and getting ripped off by big wireless providers, if we've learned anything, it's that there's always a catch. So when I first heard that Mint mobile offers premium wireless starting at just 15 bucks a month, I thought, all right, what's the catch? But after talking to them and using their service, it all made sense. There isn't a catch. Mint Mobile's secret is that they're the first company to online only. They cut out the cost of retail stores and pass those sweet savings directly to you. I've got Mint Mobile on my phone right here. The service is great. And more importantly, the bill is just so much less. There's just less to it. They don't need as much paper or email space to send you this bill because it's not huge.

0:33:58 Thomas: It's great. So for anyone who hates their phone bill, Mint Mobile offers premium wireless for just 15 bucks a month. Mint Mobile gives you the best rate, whether you're buying for one or for a family. And at Mint, families start at two lines. With unlimited talk and text, plus high-speed data delivered on the nation's largest 5G network. Use your own phone with any Mint Mobile plan and keep your same phone number along along with all your existing contacts. It was super easy. I did it myself.

Switch to Mint Mobile and get premium wireless service starting at just $15 a month. So to get your new wireless plan for just $15 a month and get the plan shipped to your door for free, go to mintmobile.com opening. That's mintmobile.com opening. Cut your wireless bill to 15 bucks a month at mintmobile.com slash opening. Episode is brought to you by the Jordan Harbinger Show. I've told you all about the Jordan Harbingers Show, and I'll tell you about a different aspect of the show that I haven't mentioned thus far. It's the Feedback Friday. These are a lot of fun. They're listener questions and situations that are fascinating, actually. And Jordan and company their best to help the listeners through these complex situations. So, for example, through.

Your significant other of five years refuses to acknowledge their social anxiety as a problem, but it's always used as an excuse to get out of doing things with you in public. So what do you do? Interesting situation. Or another one. Adopted and raised by a loving family, A listener was curious enough to still seek out their biological parents and learn the story when they reached adulthood. It turns out they were the result of a forbidden tryst between a traveling American woman and a married Australian man.

0:35:36 Thomas: So what do you do? That's a fun one. I plug so many other things. Great guests all the time. Political, sports, lots of categories. I thought it'd be fun to plug the Feedback Friday, so go search for the Jordan Harbinger show. That's H-A-R-B as in boy, I-N as in Nancy, G-E-R on Apple Podcasts, Spotify, or wherever you listen to podcasts.

0:35:56 Clip: Hello! Operator! Give me the number for 911!

0:35:59 Thomas: We are so pleased to be joined by Jalisa Jackson, the executive director of Access Reproductive Care Southeast. Jalisa, how are you doing today?

0:36:08 Jalessah: I'm doing well, how are you two?,

0:36:10 Thomas: We are just so thrilled to have you on. As you can tell, we're a bit excited. Our listeners, the reason you're here today, is our listeners came together and raised $165,000 for abortion care in the wake of Dobbs and to be split among three organizations, yours being one of them. And we're just so thrilled. It's just such a cool thing. And we're happy to have you on the show today.

0:36:31 Jalessah: Yes, I'm also thrilled and deeply appreciative of your listeners for raising funds in this critical time, happy to be here,

0:36:39 Thomas: Why don't we just maybe take a step back? And could you tell us about your organization and give these amazing listeners who raised all these funds, give us an idea of the good that's going to do for people and what the efforts are?

0:36:53 Jalessah: So Access Reproductive Care Southeast is an organization that has been around for seven years now, the organization was born out of a need that was identified by the co-founders as they were working in an abortion clinic, They saw a gap between folks' ability to access the care that they had, that they were sort of constitutionally to. And so born out of the idea that legality does not mean access for a lot of our community members.

0:37:23 Jalessah: So ARC provides practical and logistical support to our callers in six southeastern states. That's Florida, Georgia, South Carolina, Mississippi, Alabama, and Tennessee. And we help connect people to care by for their abortions, as well as supporting with travel costs, child care, lodging, et cetera. And so that's sort of the dynamic work that we're doing every day. And we're deeply committed to continuing this work in the region.

0:37:23 Andrew: Now that is awesome and we love uh that you You know, you are boots on the ground, you know, paying for abortions and for the associated costs for for people to access their full constitutionally protected rights. Of course, precipitating incident here was the Supreme Court's ruling in Dobbs, which drastically changed the scope of those rights. Right. So how how has that impacted the work that you're doing in those states now that access has been severely curtailed in most of those jurisdictions?

0:38:25 Jalessah: Yeah, definitely. That's a great question. ARC operates in a few states that have total bans. And for a while, when those states had total bans, Georgia, where ARC is sort of located, still had access to abortion care. But since then, with the overturn of Roe and now with Georgia's law in effect, what we're seeing is folks are needing to travel much further to access their care. So just depending on where they are in their gestation, if it's beyond six weeks, they can't access their abortions in the state of Georgia under HB 481.

0:38:59 Andrew: Yeah.

0:38:59 Jalessah: Yeah. And so in real time, the thing about the Georgia law is that when it came down in July, typically there's a period, you know, approximately 21 day period before the law takes into effect. That was not the case with the Georgia ban. It wasn't effective immediately. And so in real time, people were denied access to care. And in real time, we had to very quickly reroute folks that had appointments later in that week to other locations. Some people, because of that, likely were not able to access their care and so will be forced to carry a pregnancy, an unwanted pregnancy.

We're already seeing sort of the catastrophic effects of the overturn of Roe and, know, Georgia's ban and across the Southeast, This right? Presents additional barriers for our callers who are predominantly people of color, over 80% are black, 70% are already parents, right? So they're already sort of navigating, you know, I'm a parent, so I know like how difficult it can be to find quality childcare and affordable childcare. People are already dealing with housing insecurity and economic sort precarity, right. And so what these sort of repressive of legislation do is create compounding effects that, for people's already existing sort of material realities where they might be facing structural barriers.

0:40:22 Thomas: It must have been a very, weird thing have to that opinion leaked, you know, and kind of have that waiting for the other shoe to drop. I'm wondering if you could just tell us, what was that like for you and the folks you work with to have that leak? And then like, I mean, just on a human level, what has it been like going through this awful era in the Supreme Court, and what was the leak like and then waiting for when this decision was going to come?

0:40:26 Jalessah: Right?

0:40:44 Jalessah: Yeah, I, the reproductive health rights and justice movement had been anticipating the overturn of Roe. So we were, in theory, prepared for what was to come. Of course, when you sort of see it in real time, the actual impact of that sometimes is not felt until it's happening. And so the leak was unprecedented, as we know, and kind of just just alerted us to the sort of impending reverberations of the SCOTUS decision. I think we knew that we needed to be thinking strategically about what we would, how we would pivot when that time came so that we were able to continue doing our work to the best of our ability and within what's legally acceptable.

0:41:30 Jalessah: But, you know, I think at the same time, it was sort of surreal to, to sort of realize that this was really going to be happening. And I think for those people in my movement those and that I work with every day, a lot of us are a part of the communities that we serve. And so there's the sort of impact, the ways that it's impacting your work in the world and sort of your commitment to community. And it's also of balancing that with the ways in which we will, those of us that are in this work, will be also directly impacted by this repressive, wave that we're seeing from the Supreme Court.

0:42:20 Andrew: Right. Only a couple of days or a week. How are you dealing with that kind of imminent time crunch of, you know, this is somebody who has to get referred for an abortion right away. Multiple states, I know, have, you Know, sort of multiple visit requirements. I mean, what you know. So let's talk a little bit about the practicality of of working with these draconian new laws that have kicked in, thanks to Dobbs.

0:42:21 Jalessah: Right. Right. Yeah, I think they have presented additional hurdles where they've already been. Right? Right. And so you you make a good point to speak to some of the ways that, you know, barriers are intentionally put into place to delay the process of someone being able to access abortion. Some states require, you multiple visits. There's ultrasound requirements. Some places have parental notification laws and judicial bypass requirements. And so it speaks to the ways in which the these barriers are deeply embedded. In the actual laws of of our States. Right. And so that's just something to know about what our current context is. Um, and what it means is that it is much more costly for people to access their care.

You know, if you are not able to confirm pregnancy very early on, which most people don't know by six weeks, um, I certainly did. And the first time, um I carried a pregnancy, It's a very short amount of time from a missed period to actually be able to determine that. And so, yeah, you know, people will have to now travel. The option of accessing care, and when we think about a state like Georgia where care is already very difficult to access, we're talking about 159 counties and only half of them having access to OBGYNs, right? Right. And so there's already existing barriers. And what these new laws do or these abortion bans do is exacerbate those already existing of gaps that our communities face.

0:43:29 Andrew: Have

0:44:13 Thomas: Are there states that are trying to stop you from even helping people within their state go out of state to get an abortion? Portion?

0:44:20 Jalessah: Yes. SBA in Texas, there's some specificity around or language in that legislation that specifically targets abortion funds. Um, that is not the case for all states, but I think we can and should anticipate that, um, we'll see more legislation introduced that will, um, to make what we do much more difficult.

0:44:42 Andrew: You been sued under under Texas SB8?

0:44:45 Jalessah: No.

0:44:46 Andrew: Well, that's good. I mean, let's not give anyone any ideas. Right, but Uh, Obviously, we've talked about that a lot on the show.

0:44:47 Thomas: For now. Yeah.

0:44:49 Jalessah: Yes. Yeah. Yeah, right. Right, right.

0:44:54 Thomas: Yeah, I was I was just curious, because I know, different funds we're looking into, some of them seem to like pause operations, because they just weren't sure if they could be doing what they're doing. What was your organization's approach kind on that?

0:44:54 Andrew: Yeah.

0:44:56 Jalessah: Mm-hmm. Right. Yeah. Yeah. We actually took an intentional pause. We take a yearly break in the summer. The first day of our break happened to be when the SCOTUS decision came down. So we actually had, you know, we took a week off from that point and we consulted with around what the most up-to-date information was and made a decision, made our decision based on that. And so because we were in a space where where abortion was still legal in Georgia, and ARC is based in Georgia, we were able to continue our operations, but that's not the case for a number of funds who have had, you know, since had to pivot the way that they support community, the way that they do work, including expanding services for folks who will be forced to carry unwanted pregnancies.

0:45:51 Andrew: With this sort of changed rules of the road, are there sort of additional educational efforts that you were undertaking? Right. Yeah. If you want to talk a little bit about that.

0:45:59 Jalessah: Mm-hmm. Yeah. So there's the part of our work that is specifically about connecting people to care, Paying right? For their abortions and getting them to their appointments. Then there's other side of our works that is very much around building power in our communities and changing culture, shifting culture around the issue area of abortion. So right, we're, we're part of a number of coalitions that we're collectively in the Atlanta area around community education, specifically as it relates to abortion and its connection to other issues like criminalization, housing issues. So thinking really broadly and intersectionally around the issues that are very pressing in the communities that we serve. The same people that are calling Arc Southeast for support with access and care are the same people that are being pushed out of their neighborhoods because of gentrification, are the same people being surveilled and criminalized by increased policing in their neighborhoods, and sort of inflating police budgets and the defunding of public schools, right? And so part of our work is helping our community see the ways in which these issues are connected, and seeing that as a pathway to building power and support for abortion access.

And so that is another component of our work. And we'll have a number of, you know, community events coming up this fall, and educated, education events to help people understand what abortion is, because the reality is a lot of folks are just, just not aware of what abortion is.

0:46:10 Andrew: Mm hmm.

0:46:21 Andrew: Well, Mm-hmm, I

0:47:38 Jalessah: And, know, a number of the states that we work in have abstinence-only sex education. And so our schools don't do a good job of really, you know, educating people and preparing them for the world. And so part of our work in community is really filling the gaps where we see these institutions sort of failing our young people and not necessarily adequately preparing them, filling the gap so that we can do some of that work and support each other in that way.

0:48:05 Andrew: Hadn't even thought about the intersection with abstinence only education. In the areas where you're serving. But wow, I can only imagine that, you know, you've got of multiple tracks of disinformation that, that, you know you've to deal with. Wow.

0:48:14 Jalessah: Right, exactly, exactly. Yeah,

0:48:22 Thomas: It really sounds like it's full Full steam ahead. That's really cool. You know, it sounds like folks took a whole week off some hard, hardworking, you know, hard working people over there and, you know, gathered together, gathered yourselves and it's full steam ahead that's really encouraging. I was kind of scared that these these draconian laws, we're you scaring some of these organizations into silence.

0:48:30 Jalessah: Yeah, yeah. Yes, yeah yeah, definitely.

0:48:44 Thomas: But yeah, that

0:48:39 Andrew: Well,

0:48:46 Jalessah: I mean, I think we're definitely seeing some of that and, you know, we're operating under the most current information and we'll continue to be flexible and nimble in how we do our work. But, we are deeply committed to this work ongoingly and know that winning reproductive freedom is a long fight. And so see this sort of outpour of support from community, including the folks that so graciously raised money for us, your listeners. And we really want people to to sort of make a long term commitment to supporting our work that is very much long term and needs ongoing support. And so that could look like a lot of ways, you know, tapping in with people's local funds and figuring out how to volunteer and become a practical support volunteer.

0:49:32 Jalessah: You know, there's a number of ways that folks can tap in locally to continue to show support. So wanting to encourage that.

0:49:38 Thomas: You anticipated my question. I was just going to ask what you would like our listeners to do or to know. I would say, I guess, additionally to that, what about our listeners like me who are in blue states where, you know, it seems as though abortion is relatively protected? What do you think they should be doing right now? In addition to, you Know, donating, of course, but as they already have, what should they think? What do You want them to do? What would You like them to take away from this interview and what they should do?

0:50:05 Jalessah: Yeah. That's a great question. I think we're seeing a lot of states where abortion access is protected, sort of receiving a number of folks that are needing to be rerouted or to travel long distances for care. And so the clinics and a lot of these states have been very overwhelmed. Um, and the funds in these states, um, also need support, right, because a lot of the funds are connected, they're, we're part of a network and, um, we support each other in connecting people to care.

And so while it might not seem sort of like imminent in your specific context, um, there's still work to do that can support cross-region collaboration between funds, and your local abortion fund would be the best people to to reach into to see how you could support, uh, support that work. I'd also say, um, spending time with, um, really learning about the reproductive justice movement. Um, Arc is a reproductive justice organization, and that, uh, that sort of framework takes, um, an intentional sort of intersectional approach to thinking about the ways that our issues are connected, um, and so we really want people that care about abortion to also care about colonization, to also care about immigration issues, to also care about housing, right.

And so taking that time to really educate yourself, um, you to better sort of leverage your skills in the service of, um, what we're trying to achieve, which is broad, and, um, we'll need, we'll take all of us.

And so just wanting to encourage that too, of course, becoming, um, monthly, uh, donor at your local fund, um, know, committing to to sustaining this work long-term is one of the ways that we're able to, you know, train our staff and, um, you don't have the necessary infrastructure to continue this work, even as we

0:51:43 Jalessah: Face unprecedented, um attacks. And so those three are three, ways that folks can tap in.

0:51:48 Thomas: Well, that's excellent. Thank you so much, Jaleesa Jackson, Arc Southeast. Thanks for coming on and explaining funds that our amazing audience raised are going to good use. And it sounds like you are continuing to go strong and we are just so grateful.

0:52:02 Jalessah: Yes. Thank you so much for having me.

0:52:05 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,

0:52:14 Thomas: And now it's time to thank our Hall of Famers, our all-time greats at patreon.com/law. We're on the third quartile. I think it's a quartile, yeah, third quartyle. Sounds right, and I've always said that's my favorite quartile and why Don't you start us off, Andrew, with our favorite best quartile of all the quartiles?

0:52:27 Andrew: I'm Yeah. Uh, big thank you to What Are the Legal Steps for Minnesota to Become a Canadian Province, Asking for a Friend, the Dows, sorry patrons, we lost the rest of the names, we'll give you your shout out next, next week, that's mean. Halster Goodwater, learn at a hand job, copyright 2022, all rights reserved. Jake, Fred from Colorado, keep Colorado an abortion access haven with LGBTQ legal protection. Support Colorado Statehouse Dems. Absolutely. After meeting with Putin, Susan Collins is absolutely certain Russia won't invade another country again. Yeah, I'm going to allow, this one's been hanging around for a while, but I'm going to let it, it on the basis that Susan Collins' garbage. Garbage, Christopher Brown, if you see a faded sign at the end of the road that says 15 boxes, hit the Trump Shack, Trump Shack, baby Trump Shack, uh, that's outstanding, Philly Live Show 2022.

0:53:26 Andrew: I've survived the bar, so it's time to go to the bar, it is incredibly important that I convey to you, placeholder while I think of something interesting, I love that, vaccinated Aussie in Germany, if I get the next T3BE right, can you top up my supply of Vegemite and Tim Tams, please, both awesome, Claire from Paris, France, Seattle Pete, Darth Bandy Pants, Robert M, Bob Loblaw's Law Podcast, cuddle ism is a religious belief about being sincerely held, oh, the impossible cheese brogler ball.

0:54:00 Thomas: Yeah, love.

0:54:01 Andrew: Arena Live Show with the Cup, Polly Hernandez, and donate seized Russian oligarchy yachts to 1-877-MEGA-YACHTS-FOR-KIDS, oh. But seriously, don't, don't donate to that Cars for Kids charity, that's that's

0:54:12 Thomas: It and Oh. Yeah, it's the worst, and thank you too, check out the We Descent podcast, Jason Copas, Bob Coburn, New Life Goal, OA matching donor, we love all of them, stop calling them Uncle Frank, Night Drex has to call him dad, is this the pardon list, Ian Hamilton, your personal Perry Mason moment, civilpoliticsradio.com, Fridays at 7pm Eastern on Valley Free Radio, John Bilderbeck, Dasvidaniya Comrade, Michael's Pets of Belonging, new band name called it, Lawful Copter, says America, where we want our children to breed, but not read.

0:55:05 Thomas: There you go. Yeah. A lot of the boards of education are under howler monkey threat. Yeah, same. Philip Kizer, Andrew the Arbitrary and Capricious, Payne's Trumpet, person one, C-O-B-R-A, Cobra, person two, no, pronounce Mike, a foreign name. Is that something you know? Is that a reference to something? No idea what that is, sorry.

0:55:14 Andrew: Uh, not

0:55:36 Thomas: I don't know why Trump kept box A1 when all he uses is ketchup.

0:55:35 Andrew: That I know

0:55:43 Thomas: Ah, good times. Thank you so much, top patrons. We love you very much.

0:55:47 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:55:53 Thomas: Now it's time for T3B Thomas takes the bar exam answer time. Let's see if I rebounded after that horrible prank war.

0:56:01 Andrew: Burglaries do not happen during the Daytime.

0:56:03 Thomas: Yeah, burglars can't happen. It's so weird.

0:56:03 Andrew: Yeah. Oh, side note, the bar exam phrases those questions in a way that lawyers understand what that signal means. And they will say in a common law jurisdiction. And so So a bunch of folks asked, well, what does that mean? Right. And and a few people remembered that Louisiana is not a common law jurisdiction because it traces back its lineage, not to 13th Century Saxony, but but to French law. But that's not entirely. So it doesn't just mean in the other 49 states. What it means is in a hypothetical jurisdiction in which the state has not replaced the common law definition of a crime or a tort with with a statute. And right, there are more of those than you would think. Right.

Like there there are plenty of states that like, oh, yeah, we do we not have a statute defining what, know, fraud you is, for example, like fraud whatever lords thought fraud was, that's what we think fraud is. Lots of states do create statutes. Sometimes the statutes just repeat 13th century Saxony common law. Sometimes they change it up a little bit. So that's the bar's way of telling you, hey, you just have to know the

0:56:19 Thomas: Yeah. Oh, yeah? Like French law?

0:57:16 Thomas: Yeah.

0:57:16 Andrew: Common law answer. Or don't go saying like, my oh, answer is technically correct. If we're in South Carolina, the bar doesn't care. Anyway. So All right. Back to your question. A man was taken to a police station for questioning after his girlfriend disappeared. He was not given Miranda warnings. After a few minutes of questioning, he confessed to murdering his girlfriend, told the police officer he threw the gun he used to shoot his girlfriend in the swamp. And that was several miles outside of town. The police then go over intensive search of the swamp over a period of several weeks, eventually they find the gun, the man is charged with first degree murder, the prosecutor plans to use the gun in evidence, the man argues that the gun should be suppressed, will he prevail? You correctly narrowed this question down to A and C, right? So, uh, you excluded out B, yes, because the interrogation violated the man's due process rights.

0:57:24 Thomas: Right.

0:58:10 Andrew: That's not correct? This is custodial interview and there was nothing in the fact pattern that's showing that they forced him to do something, The right? Question is failure to give a Miranda warning, right, so that's not a due process Even before this recent Supreme Court, you also excluded D properly. So no pursuant to the inevitable discovery exception to the exclusionary rule. And I think you rightfully noticed, hey, if three weeks of draining a literal swamp is inevitable discovery, then everything is inevitable. Then nothing is not inevitable. Right. And I agree with you on that. And more importantly, the bar examiners agree with You on that that's a way of writing the fact pattern to say, yeah, it would not have inevitably.

0:58:43 Thomas: Yeah.

0:58:54 Thomas: This was not inevitable.

0:58:56 Andrew: Yeah. So then the question is, is it a yes, because the man was not given his Miranda warnings were be no, because The exclusionary rule will not serve to exclude the gun from evidence. And here you referred to the correct analysis, which is the the fruit of, as you called it, the fruit of the poisonous whatever. And I'd like to ask you, where else do you think fruit grows, but fruit of the poison is tree. But this requires you to parse to a very important distinction, and that is we are talking about the failure to advise you of your rights, particularly of your Miranda rights, failure-to-so-advise-you operates respect to the Fifth Amendment only to suppress the statements that you make, Not the physical fruits of that statement. The fruits of the poisonous tree are not admitted Well, it only if it's a Fourth Amendment violation, right?

0:58:56 Thomas: Yeah.

0:59:49 Thomas: Not poisonous. What?

0:59:53 Andrew: So if they're searching your property, right, and they have yeah, and They have an improper search warrant and they grab something, then you can say, "Oh no, you don't get anything related to that," and then that's when the inevitable discovery kind sees of if you can circumvent it. But when you're talking about statements, um, if they fail to of Mirandaju. Notice that the fact pattern does not say they want to use his confession. They know better than that. They can't use your confession, but they can use the information from your confession in their investigation and then use the fruits of that investigation if it's only a Fifth Amendment violation. And that's what we have here. You were not advised, uh, of your Fifth Amendment right against self-incrimination. That was the, that the harm

0:59:55 Thomas: Yeah, yeah. Actually, that kind of occurred to me. Yeah.

1:00:39 Thomas: Yeah,

1:00:39 Andrew: Here of course it is. Yeah, no, yeah.

1:00:39 Thomas: Even though this is definitely self-incrimination, and this encourages Police to try to exploit this. Yeah, okay. And

1:00:47 Andrew: No, 100%, should we change this law? Yes, we should. And you know, as you're thinking about where, where is it's not a thumb on the side of the scale, right? It's an 800 pound sumo wrestler on the cops' side of the scale, and, uh, you know, a handful of decisions that keep getting whittled away.

1:01:03 Thomas: I really should have known. I did know, but I don't Maybe I just felt so optimistic because of the good news lately and I was just like, maybe This will be the kind of thing that's a good thing in the world, but now it's about, okay, gotcha.

1:01:05 Andrew: Did know? Nope. You Cannot have good

1:01:15 Thomas: Gotcha. Should have gotten it.

1:01:15 Andrew: Things, it is C, not A. You Should

1:01:18 Thomas: Absolutely Yeah, no, I accept that. I should have been more, uh, negative. All right, well, let's see who, uh, is this week's winner, who was successfully the amount of negatron that I could have been, who out negatrond the the Negatron. And I'll be T3-ing you some BE this time because Andrew is off dropping Alex off at college. Big old milestone. Congratulations to Alex and to Andrew. And to our T3BE winner, who is at Andrew underscore O underscore Drake. Andrew Drake, who says, in a just world, the answer is A. This is not a just world. This is a world where the constitutional protections for criminal defendants have, have been systematically eroded. So clearly a 16th century witch hunter has determined that the answer is C, and the court agrees. Yep. Nope. Should've gotten it. I don't know what I was thinking. Got too optimistic. Never happened again. I will never be optimistic about the state of the law, especially when it comes to criminal defendants, ever again.

1:01:28 Andrew: Yeah.

1:02:16 Thomas: So congratulations, Andrew Drake, you are appropriately Negatron and you win. And that's the show. Thanks so much for listening, everybody. Looking forward to a Friday episode. Hopefully we get some more juicy Trump, uh, document news. We'll see, talk to you then.

1:02:28 Andrew: So

1:02:30 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.

1:03:04 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.