The Complicated Web of Immunities That Makes Accountability So Difficult, Part 2

Transcript

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

0:00:01 Thomas: It would be really stupid if there was absolutely nothing you could do about this obvious, egregious violation of someone's rights.

0:00:18 Jenessa: The officer is shouting, don't f***ing move, shoots into the car twice, unable to see inside. Barnes manages to stop the car. He later dies on the scene. And the grand jury declined to bring criminal charges.

0:00:35 Thomas: Hello and welcome to Opening Arguments. This is episode 1230. And a bit of a switch up. Normally we do the YouTube videos on Wednesdays. This week though, I mentioned last time I was thinking of recording a Serious Inquiries Only on the Alex Preddy murder. And I did, and it ended up being, I did it on video on the YouTube, if you'd like to watch, or on Serious Inquiries only if you would like to listen, but it ended being very long, nearly 2 hours, I think 2 hours and 40 minutes of video on YouTube, so we figured, why don't we just let that be the video content for this week. Also, Matt's got an interesting scheduling thing coming that actually might work to our advantage. He's going to be taking a little trip and we might get some coverage out of it. It. So all that is to say, we're just going to give you that part two of qualified immunity and all the other immunities today, which is great. I didn't want you guys to have to wait a week. That was a bummer. I'm glad that it's kind of working out that this will be the best of all worlds. So that's what we're going to do today. Part two, we get into more cases, a little bit of debunking of some misinformation, and we'll finish out Jenessa's comprehensive course on the tangled web of immunities that stands between us and accountability a lot of the time. All right. Thanks so much for listening. We'll get on over to Jenessa. Jenessa, how are you doing?

0:01:49 Jenessa: I am doing so different from the last time we talked.

0:01:52 Thomas: Yeah. Real life attorney and first winner of the first place prize of guess the case thing you described in your class. What was that? Did you get a plaque for that?

0:02:02 Jenessa: He He did have me take a picture at the front of the class holding a trophy, but I did not get to take it home. I swear to God. Yeah.

0:02:10 Thomas: Is that real? Oh, that's fun. I love when professors do that stuff.

0:02:15 Jenessa: It was like the banner on the blackboard for the next class until like somebody else won it.

0:02:21 Thomas: Oh, wow. They stole your crown.

0:02:21 Jenessa: So yeah, basically. God, he was a great professor. Really helpful.

0:02:27 Thomas: That's fun, yeah. Point is, Someone is very qualified to talk about qualified immunity.

0:02:32 Jenessa: Qualified immunity. So fun.

0:02:34 Thomas: And we're going to do so here in part two. Make sure you heard the last part where we really laid down the foundation. And I'm so glad we're doing this, as you've said, because I just think there's a lot of misinformation. Misinformation. And I think in this particular case, I don't think much of it is malicious. I just think this is complicated. And I think a lot of people in this Dunning -Kruger day and age try to just find like a statute that says something in a certain language and then say that applies. But it's like, well, what are we in civil court? Are we in criminal court? All that stuff that the wrinkles that you've mentioned. And that's why it's important that we're getting the real breakdown here. Yeah.

0:03:11 Jenessa: I agree. I haven't seen anything that I think is like straight up like disinformation or anything. But I definitely see like, you know, there's all those like copy paste, like a lawyer told me this.

0:03:22 Thomas: And we've got an example of this kind of misinformation you were were talking about in our very own doorstep. Don't want to call anyone out, but somebody shared something to the, where there's woke, there's Serious Inquiries Only group. I guess it's not the OA group, but that's my other show's group. And it's important to talk about what's real and what's misinformation here. It's great. Cause the post is like shared from an actual attorney, which is always good. But we're going to maybe do a little debunking of that in the, in the main show here. That'll be really fun. I always love a good debunk.

0:03:54 Thomas: So we're gonna have have as much fun as we can with this topic, which is usually officers getting away with horrible crap.

0:04:02 Jenessa: It's a little dark.

0:04:03 Thomas: All right. Well, all that's to come after the break, which you can avoid at patreon.com/seriouspod. Avoid the ads. You heard this super early if you're that kind of person. And that's awesome. So I'm always weird when I'm in the time continuum. I'm beyond space and time here. But some people already heard me awkwardly be beyond space in time. And those people are They're called patrons at patreon.com/seriouspod. All right. After this break, we'll get to it.

0:04:31 Ad: [Ad break 1 — ad music]

0:04:31 Thomas: Okay. When we last left our heroes, I believe you were saying we're finally going to get into like some cases.

0:04:39 Jenessa: So we basically left off with all the challenges that were going to hit somebody. Oh, that was a terrible pun. If they were trying to either sue or support the prosecution of an officer who punched them or shot at them or whatever, if you were just going for state crimes and state torts. And, you know, oh, that's a battery. That's a murder or wrongful death lawsuit. Not only do we hit a lot of obstacles that still exist today, and well, I guess you would still argue all the racism that still exists today. In 1871, when Section 1983 was passed, we were particularly concerned that civil rights were getting violated really badly in the the South, and there was just not a remedy available. Everything that happened that would rely on state prosecutors and state judges was just Not an unbiased place to be and you were not going to get justice. How do we deter these abuses, not just by police, but by all kinds of state officials? Well, one option was, this is a violation of your constitutional rights, and that is federal. And that will get us into federal court if we can set it up properly. They pass the Ku Klux Klan Act of 1871. This is a federal law. It's now codified as 42 U.S.C. 1983. So that's why you hear us say all the time, Section 1983.

0:06:06 Thomas: Yeah. It's not from the year 1983.

0:06:09 Jenessa: That messes with me all the Time that I think we're talking about a particular date. We are not.

0:06:15 Thomas: I'm so glad you said that because me too. I always just think that for no reason. And I'm glad that I'm not the only one.

0:06:20 Jenessa: No, I have studied this extensively and I still do it. Generally, it's not like you didn't, I mean, these constitutional rights still existed. And always sue for an injunction to say in the future, do not do this again. But at some point we had to send the National Guard down there to like stop people from doing that, right? Like this is not very helpful. So what this did is it created a private right of action. This is generally necessary to be able to get civil damages, to sue for money. Injunctions, you don't need this like special Congress wrote the ability to do this. But to sue for money, you generally do have to have somewhere in state or federal law an explicit thing that says you're allowed to do that. And it says you can sue state and local officials for civil damages in federal court. You can also do it in state court if you wanted, for violations of your constitutional rights. Number one at this this time, very important, gets us out of the state court where the judges are either elected or they're, yeah, yeah basically, elected or appointed by some other racist asshole. Like this is not helping me. The federal courts are better at this time. I don't want to act like every federal judge was an angel, but you know, it's a better place to be. We don't have to worry about the subject matter jurisdiction problem. Like there isn't federal battery as a tort or or a crime. So I can finally, this is a federal question about my constitutional rights. I do not have a problem getting into federal court. And now, of course, Section 1983 is itself a federal law. You do still have to be acting under color of law,

0:07:27 Thomas: Clan court. Yeah. Hmm.

0:08:05 Jenessa: Because private citizens can't violate your constitutional rights, it just doesn't make any sense. It also doesn't get rid of state state sovereign immunity because that's a constitutional amendment. Federal law can't override the constitution, right? So we get a little bit of a problem. If I sue you in your official capacity, I'm suing the state, which I cannot do in the federal court. I don't want to be in the state court, but you have to be acting under color of law or you can't violate my constitutional rights. So I have to sue you for something you did either on the job or using your state authority, but in your personal capacity.

0:08:50 Thomas: Hmm. Does seem weird.

0:08:52 Jenessa: Yeah, it's weird, right? I'm trying to go after your personal bank account, not the state treasury, because again, state sovereign immunity would kick in. This is why capital Q qualified immunity, the thing you hear about in the news all the time, This is where it comes from. They say, wait a minute, if the state told you to do it and then you did it, how is it fair that you got stuck with the bill?

0:09:21 Thomas: Yeah.

0:09:22 Jenessa: It doesn't really feel right. Now, the counter, of course, is going to be, and we'll hear people say this all the time, if you got rid of this, what would happen is states would indemnify public servants. They would just have insurance and they wouldn't make you pay out of pocket, right? Then they would just fire their expensive screw -ups. There's an argument that you don't actually need this, but the logic in the 60s when this first came up as a question was, yeah, maybe that's not right. Maybe that's a little weird.

0:09:55 Thomas: I'm not sure I understand that point. Let me just make sure. So for one, are we talking about when they are actually acting in their capacity? Are we talking About when they did something like, that was so wrong, that it was kind of like, oh, you weren't really being an officer, you're being a dick. Okay.

0:10:12 Jenessa: Exactly. So this is going to be the issue if they acted with reasonable force. But then we say, well, actually, actually that's unconstitutional. But I did what what the state told me to do. Now what?

0:10:28 Thomas: Oh. Okay, so these are times when like, the states are being so shitty. It's like you're you're still trying to get some recourse but the officers weren't they the officers were still doing what is considered to be their job okay right yeah

0:10:40 Jenessa: Exactly. We're in this really weird limbo. I can't sue the state, but the state was the problem. I just did my job. Now, that's never been like a moral excuse, right? Oh, God. Just what do we do? We're hitting the state sovereign immunity is what's really creating the most of this barrier. If I could just sue the state, I would sue the estate.

0:10:51 Thomas: Right

0:11:02 Jenessa: They created the problem." What they end up saying is this. Okay. If the officer violated clearly established constitutional rights that any reasonable person would have known that violates constitution yes you can hold them personally liable you can go after their personal bank account like who cares if the state told you to do it you should have known better like you're an adult exactly

0:11:01 Thomas: Right you gotta refuse that order kind of thing okay

0:11:27 Jenessa: It's not like the military level but like kind of it's kind of the same thing don't do

0:11:33 Thomas: Well now that our police are all militarized anyway so you know might as well be that pretty soon it will be like the the police officer you see I had to bomb that city because uh you know that neighborhood was looking real suspicious that's why I flew my police stealth bomber over that neighborhood and dropped a nuke on it that's what I did we're a few decades from that but you

0:11:36 Jenessa: It right I mean yeah it doesn't feel impossible to imagine right and like that's the the concern is like obviously that can't be okay there was an example our professor played for us of a video where a guy gets pulled over and it's the classic like middle -aged white guy libertarian you have a clearly established constitutional right to flip off the cops this is part of your first amendment right and he did and the cop pulled him over and the cops says get out of the the car. And the guy's like, what did I do? What did I do?

0:12:21 Thomas: Know

0:12:28 Jenessa: And the cop starts shaking a can of mace. And he goes, are you going to mace me? He did.

0:12:28 Thomas: Yeah yeah oh yeah I feel like I know this one he does mason

0:12:38 Jenessa: He does. And the video ends with him going, I'm going to sue the shit out of you. And my professor ended the video and he said, so he did and he won. Qualified immunity absolutely didn't apply here. That was a clearly established constitutional right.

0:12:41 Thomas: Yeah yeah I remember that yeah Yeah, yeah, good, right?

0:12:56 Jenessa: He knew better. If he didn't know better, he should have known better you know no excuse to not know the law kind of thing if it wasn't clearly established we're gonna say you were reasonably acting within your official capacity the quote from the case is a policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause and being mulcted in damages if he doesn't I don't know what that word is.

0:12:55 Thomas: Mm -hmm, mm -hmm. Yeah, I've never heard that one.

0:13:29 Jenessa: M -U -L -C -T -E -D. This was the 60s. I don'T know. Is that a word?

0:13:33 Thomas: M -U -L -C -T -E -D? That's the new one on me. Huh, cool. Love a new word. Extract money from someone by fine or taxation.

0:13:44 Jenessa: Oh, it was much more specific than I thought. Okay.

0:13:47 Thomas: Okay, more literal. Mulked.

0:13:50 Jenessa: Imagine you don't know how badly this ends. There's a logic to it. I did what the state told me to do. It was not clearly established that that was unconstitutional. Constitutional, how was I supposed to know, and for some reason, sovereign immunity, you're suing my personal bank account instead of the state who told me to do it.

0:14:15 Jenessa: Like, what kind of bullshit is that? Doesn't feel right. It makes sense if you don't know how badly this ends.

0:14:22 Thomas: Yeah, it kind of makes sense in principle.

0:14:24 Jenessa: Yeah, what ends up happening, unfortunately, is this is just going to get out of control. It's typically raised on summary judgment you need to not have a dispute as to material facts but in an officer involved shooting or officer is arresting somebody and is too physical with them excessive force whatever there usually isn't a dispute like the officer is like yeah I did that I'm just telling you I think it was reasonable that is a good time to raise those defenses this is not a criminal trial this This is a civil lawsuit. You know, it's not too weird at the early stage to say, even if I did, you know, if it went all the way to trial, maybe they would try to dispute some of it. But like, I mean, sometimes it's just on a body cam, you know, the thing is, if you raise this at summary judgment, that means we never get a trial.

0:15:04 Thomas: Mm -hum. Yeah, yep. Yeah. Yeah.

0:15:16 Jenessa: We never get judgment on the merits. And it's a really easy thing to win, because if you You raise it, a good faith assertion that you're going to be able to raise this defense, that you have qualified immunity. The plaintiff has the burden to show there is a genuine dispute of material fact, a jury could reasonably find a constitutional violation, and that is a violation of clearly established law, not just any old violation. Violation that's rough that's hard to get past so it ends it right at the start that case was pearson v ray in 67 there's a number of cases out of the supreme court that continue to develop this law um graham v connor in 89 said officers are held to an objectively reasonable force standard for if somebody's suing about a fourth amendment violation specifically they're saying this comes It comes from the Fourth Amendment. It's not like Section 1983 gave you your own rights. Like it's just derived from you have constitutional rights. Section 1983 lets you sue about those rights. And we're going to use an objectively reasonable force. So at least we're not going to say, oh, I subjectively like thought that was reasonable.

0:16:41 Jenessa: And then we're going to get some really concerning expansion here. Pearson v. Callahan in 2009. This one's rough. There's a guy, he lets in an undercover officer into his house.

0:16:57 Thomas: All right. Right. He doesn't know.

0:16:59 Jenessa: He doesn't know that this is a cop. Believe it or not, there was a circuit split on whether this constituted consent, which overrides the need for a warrant. If you know a cop is a cop and you let them in, well, then you don't need a warrant. There were circuits that were holding consent once removed as a doctrine that if you let in an undercover officer, that meant you let -in officers, so they don't needs a warrant, I mean, yeah, right?

0:17:25 Thomas: Oh, come on. It's ridiculous.

0:17:28 Jenessa: Get out of here. Yes. So in the criminal conviction, that was overturned as like, obviously, that's you needed a warrant. Get out of here. But a circuit split had existed on this. So the Supreme Court granted qualified immunity. The cops couldn't have reasonably known that it was unconstitutional because he consented. Right.

0:17:51 Thomas: To just to search the place because Wow. So

0:17:56 Jenessa: I didn't need a warrant, so he can't sue me for a Fourth Amendment violation.

0:18:01 Thomas: I didn't really say what happened. So like he they I assume they searched and found something and

0:18:06 Jenessa: Oh, yeah, yeah. They came in. They found some drugs. He got criminally prosecuted. He got his criminal conviction overturned. This is unconstitutional, of course.

0:18:15 Thomas: Gotcha.

0:18:17 Jenessa: That obviously seems ridiculous. I don't know how circuits were split on this. But because there were courts who had agreed to this before, it's like, oh, that's constitutional. The Supreme Court said, well, the cops couldn't have reasonably known it was unconstitional if courts were saying it was constitutional.

0:18:38 Thomas: Yeah if we've made some really dumb decisions in the past how could how could he know essentially and like kinda you're right I

0:18:47 Jenessa: Yeah, I guess like on a level you're not wrong. So when he tried to sue them for a Fourth Amendment violation, they got qualified immunity. What was really rough about this decision was not just giving those cops qualified immunity, the thing that used to happen, step one in the analysis was, was the behavior unconstitutional? And then step two was, but was that clearly established? Because if it wasn't clearly established, then we'll dismiss it on qualified immunity. They took step one away and said the first determination that was lengthy it was fact specific it was oh it's too much too hard too much work

0:18:50 Thomas: Guess yeah okay okay huh

0:19:31 Jenessa: So now you don't have to do a separate determination of whether it was or wasn't unconstitutional you just have to say was it clearly established that it wasn't unconstitutional you

0:19:44 Thomas: I don't think I get it so I didn't understand that sentence you said you don't have

0:19:48 Jenessa: Don't have to do step one we're going to have an official court finding that was unconstitutional. And step two, oh, but it wasn't clearly established, so we'll give you the qualified immunity.

0:19:53 Thomas: To oh okay gotcha okay okay so how does that end up changing it the fact that you don't do that step

0:20:08 Jenessa: Because now we never get any court legal finding that something wasn't constitutional. So we are in an endless loop where the same fact pattern comes up over and over and we never say as a matter of law that that was unconstitutional.

0:20:12 Thomas: One yeah that's right I remember this now right right

0:20:28 Jenessa: But first person who showed up in my door, okay, it wasn't clearly established. Second person, it was clearly established. I told everybody.

0:20:36 Thomas: So like one cop would get a free pass

0:20:56 Jenessa: I have, I have no idea.

0:20:59 Thomas: In the previous like you know paradigm you'd be like all right one cop found a new way to be a piece of crap and violate someone's rights but now you're all on notice but now your saying because of they sort of and and was this an intended effect or just a weird byproduct so now it's like oh no we're not going to find that first part so there's nothing in the system that says a dog cop that says paw patrol can't violate your rights in this way and so they They never have to actually know the law because it isn't there, right?

0:21:15 Jenessa: Exactly.

0:21:16 Thomas: Oh, man, I forgot about this.

0:21:18 Jenessa: It just keeps coming over and over and over.

0:21:21 Thomas: They get to have memento disease. Oh, I didn't know that I couldn't do that forever.

0:21:28 Jenessa: Yeah. Because nobody ever found it.

0:21:31 Thomas: Wow. Do you think that was intended?

0:21:33 Jenessa: The rationale. Okay. Well, the rationale given was that in order to do step one, we had to do this lengthy fact specific thing and the whole point of qualified and absolute immunity is that we get rid of the case before you waste all of our time and money that defeats the purpose and it's like okay great but then now there's been a hundred cases and there could have been one so like I don't know that this is helping yeah so this this is really bad um it's in a uh I think think it's a later case, but Sotomayor and Ginsburg in dissent wrote that this tells officers they can shoot first and think later. And it tells the public that palpably unreasonable conduct will go unpunished.

0:21:58 Thomas: Yeah, that's a good point. Wow. Yep. Wow.

0:22:22 Jenessa: It's just forever. It'll just keep going and going. And yeah, we will never get a determination on the merits because under qualified immunity, it will be dismissed and never go to a trial and now we will never do step one of like a firm finding that it was unconstitutional that should put everybody on notice that was probably the thing that I think took us from

0:22:26 Thomas: That is crazy. Wow. It's like the most harmful thing. Yeah.

0:22:49 Jenessa: Yeah it was hypothetically reasonable and now it's just nothing sotomayor called it an absolute shield

0:22:57 Thomas: Like at the time she knew that was going to happen. She foresaw the whole thing where it's like, now we won't have these judicial determinations.

0:23:05 Jenessa: Yeah she's been one of the most vocal against it and ginsburg is always signing onto her dissent says like, yeah, this is this bad. This is really bad. We're just never setting a precedent about this. And what are we supposed to do now?

0:23:19 Thomas: OK, so I was thinking maybe there was some plausible deniability in that this could have been like kind of a not the intended effect. But it sounds like if they knew then that probably this was the intended affect.

0:23:30 Jenessa: I think the dissents were pretty clear about like how bad this was going to be. It had been bad already and it was only getting worse.

0:23:37 Thomas: But that's the thing that I always forgot. I forgot that I've learned this and forgotten it again. But now I remember. That's what makes it so infuriating is it's like the dumbest possible reason for this.

0:23:47 Jenessa: It is. It really is.

0:23:48 Thomas: It almost would be better if they were just like, no, this stuff is fine. It's like, No, okay, we've created this stupid Kafka -esque thing, where you have to already have known about it being unconstitutional. But we can't we've we've taken away the part where we ever find anything unconstitutional so now you can't ever learn anything's unconstitional but if you could then you could get damages right if they could learn it can we do some uh continuing education courses for this like in that qualify can we be like all right so they can't learn it through the case law can we force them um a clockwork orange uh style can we force these officers to learn what the f violates civil rights and constitutional rights they

0:24:25 Jenessa: Without a Supreme Court finding or at least a circuit court, in theory it doesn't like we don't know

0:24:37 Thomas: Could just be like la la la no no no didn't learn it don't know and if I remember right it gets further complicated by the standard of like what that notice is or unless this all happened in this one case where it's like no it has to be something that's like exactly the same so it'slike oh he violated my rights by pepper spraying me in the face but this person sprayed a different chemical in my face couldn't have known like my memory is That was kind of the next iteration of this was like, even the stuff that I guess was grandfathered in in a weird way by existing in the kind of case law history before this stupid 2009 decision.

0:25:14 Thomas: Even that stuff is questionable because you have to have like, to be on notice, you haveと have the exact same facts as what you're doing to know.

0:25:21 Jenessa: Yeah this was uh Sotomayor's complaint in Casella v Hughes in 2018 she was like I'm sorry literally she went through all the cases of like I'M SORRY SO THIS PERSON HELD A KNIFE LIKE THIS AND THE OTHER PERSON HELD a KNIFe LIKE THAT LIKE I MEAN IN WHAT UNIVERSE COULD THIS POSSIBLY NOT BE IDENTICAL She was fuming in this dissent. And again, it's Sotomayor and Ginsburg.

0:25:40 Thomas: Oh, unbelievable. We've made so police officers not only don't have to know the law, they get to be the dumbest fucking morons in the world. And that's fine. But we have to be on our best behavior at all times and know everything everywhere. Not knowing the law is not a defense for us and just in some other thing, right? And just in basic everyday law.

0:26:04 Jenessa: No, not knowing the law is not a defense to a crime or a civil offense or anything. In theory of a law is written so poorly that no one could know what is illegal. Right. You could hit a due process thing. But if you can, by reading it, reasonably know what's illegal and what isn't, you are obligated to follow it even if you didn't. Yeah who's read all the statutes nobody we can't have a system where you can just not know the law and therefore not follow

0:26:13 Thomas: Right. Could be a due process issue or something. Yeah. Right? Sure.

0:26:33 Jenessa: It but somehow somehow cops are allowed to just have panic attacks and shoot people and like that just doesn't yeah

0:26:39 Thomas: Yeah. They don't ever have to know anything. This is insane.

0:26:43 Jenessa: Yeah it's it's pretty bad and we've ended up with um there's one um that I'm seeing getting cited a lot lately and I think it's getting a little little overused for its purpose. It's another example that's really terrible. This one is Barnes v. Felix from 2025. This guy pulls over Barnes and he's driving a rental car. He can't find his license or the registration. He says it might be in the trunk. He pops the trunk, he turns off the ignition. That whole interaction takes about two minutes.

0:27:14 Jenessa: It was all on dash cam. In the span of five seconds, the officer says to Barnes, get out of the car. Barnes opens the door but turns the ignition back on. Why? I don't know. We'll never know. The officer jumps onto, they call it the door sill. I think it's like the step when you get out. The officer is shouting, don't move. Shoots into the car twice, unable to see inside because his head is above the door frame. The car has moved a little bit. Barnes manages to stop the car. He later dies on the the scene is all over the course of five seconds he turned the car on the car started to roll a little bit and the officer just like jumps up there and shoots into the car not great and the grand jury declined to bring criminal charges

0:28:05 Thomas: Wow, that's kind of like really close to the current thing we're talking about. Very similar.

0:28:11 Jenessa: It is which is why I think a lot of people are citing it it's just an officer reacting rapidly in the moment and I think anybody would say very very unreasonably. In that case, I guess the prosecutor took it to a grand jury. God knows how strongly they did or didn't represent that case. But the grand jury said no to criminal charges. So that's the end of that.

0:28:37 Thomas: So it didn't indict. Wow!

0:28:39 Jenessa: Yeah. Barnes' mother brings a Section 1983 excessive force claim. So federal court, we're going to say this is a violation of his Fourth Amendment rights. So search and seizure is allowed, but it has to be reasonable. This was unreasonable. This is excessive force. The district court holds the mother would need to show the force was unreasonable to overcome qualified immunity. That's normal. They say that she didn't.

0:29:08 Thomas: Oh man, what?

0:29:10 Jenessa: Yeah. Yeah.

0:29:11 Thomas: Because right here you're thinking, okay, it's crazy that this person wasn't charged with a crime, this officer wasn't charged with the crime, but at least let's get a huge settlement out of it or something, right?

0:29:22 Jenessa: And the burden will be lower. It's not beyond a reasonable doubt. It's like preponderance of the evidence, I think, at the federal level. This is not raising that this was reasonable force for a police officer. So don't worry about like self -defense elements right now the fifth circuit which is where this will go up to and get upheld they had been using what's called the moment of threat doctrine that basically said when we try to say was your force reasonable we're going to assess about a two second window around when you use the force and we're not going to look at anything that happened before that uh what I

0:30:00 Thomas: Right do we touch on this and with matt

0:30:06 Jenessa: Think you did briefly yeah um I wanted to go a little deeper on this one so the supreme court did overrule this one they were like absolutely not that's ridiculous

0:30:08 Thomas: Yeah yeah sounds insane yeah yeah please wow even this supreme court was like too far for me okay

0:30:19 Jenessa: Yeah nine oh no we are not doing two seconds are you out of your mind now kavanaugh is gonna write the most bootlicking concurrence you can imagine thomas alito barrett all sign on to it but they still Still, it's a concurrence and they signed the majority opinion as well. Like they're, everybody's on board. We are not doing this. You have to look at the totality of the circumstances and that necessarily means looking at everything that happened. One thing I think is important because I see this get cited sometimes about an officer created threat. The officer created the problem, doesn't that matter? They did not rule on that in this case. It came up in, like, briefing and everything, but they do not rule on it. They say it's not properly before us. We're going to remand for further proceedings consistent with this. So district court, do it again, but look at the totality of the circumstances. Later, we can talk about this question, if we have to, about, oh, but the officer created the danger in the first place, so who cares? Like, that may well matter. That may well exist in circuit courts. The Supreme Court is like, we are not talking about that right now because this totality of the circumstances could solve the whole thing. Kavanaugh's concurrence is just like, oh, it's so scary to be a police officer.

0:30:30 Thomas: Wow. Sounds right. Yeah

0:31:40 Jenessa: Such a challenge. So hard in life. Well, it is going to create a perverse incentive if you tell the police don't chase people. When people are stopped, they can just leave. He writes, if doing nothing in response to a fleeing driver became a known and regular practice among police officers, that would presumably embolden some drivers who otherwise might have thought twice about taking off.

0:32:04 Thomas: Yeah okay wow yeah so we need the death penalty to act as a deterrent for people who might do something that barely matters in the scheme of

0:32:05 Jenessa: So shoot them? For the life of me, I don't understand how he and three other justices thought that was relevant. I just sent you the link for the oral arguments because I do think there's like one or two things to listen to here that are cool.

0:32:22 Thomas: Things unreal

0:32:27 Ad: [Ad break 2 — ad music]

0:32:33 Clip: I think that that is our view of this case, Justice Kavanaugh. And are you asking then, and I realize you're going to say this is for the Fifth Circuit on remand, but I'm going to ask it anyway, are officers always prohibited at traffic stops when the car pulls away from jumping on a car? Okay, when can they and when can't they? Let me give you an example when they can. Let's say they see an abducted child in the back seat, and they know if they don't jump onto the car then, something terrible might happen to that abducted childhood. That's a type of totality of the circumstances inquiry that looks at what's the nature of the government interest at play. What's the harm to the individual? In this particular case, we're talking about unpaid tolls.

0:33:14 Clip: So we want to be able to argue down this circuit. True, but obviously, you know, traffic stops sometimes identify people who are doing things that are much worse,

0:33:28 Thomas: But that would be the totality of the circumstances

0:33:29 Clip: Oftentimes, major criminals are apprehended for things like that, and I can give you some historical examples that are obvious.

0:33:36 Thomas: No you idiot he's what hold on this is me stopping sorry cutting in yeah I could assume then that if he pulled someone over to give them a ticket for nothing and there was an abducted child in the car he'd be fine but he's like here I'll give I'll give you an example of when you can jump on. So the argument is, no, you can't. We have to look at the totality because it is. And that absolutely should be what it is, because we do not want people dying for twenty dollar parking tickets or fees that they didn't pay. It's insane. Doesn't matter. You know, like we just don't want that. But of course, like if someone got pulled over for a minor traffic fine and they pull a gun on a cop. Yeah, the cop obviously can shoot the shit out of them. That's our society. But like Kavanaugh is trying to use the fact that you could get pulled over for something minor and be like a like Thanos as justification for, in this case, not having to look at what's going on, like just being able to like only take the two seconds. Now, I guess you told me that did he even, he did sign off on the,

0:34:44 Thomas: Huh?

0:34:43 Jenessa: That's what's So bizarre. He is gonna completely agree with the totality of the circumstances thing he just needs to get it out of his system that like cops are cool I don't know Like, it just.

0:34:54 Thomas: Yeah. And sometimes, but it's so dumb because again, he gave the circumstance where it's like, yeah, if there's an abducted child and he's saying, but what if the parking ticket person turns into a child abductee? It's like well, yeah, then I'm sure it would count. Like you're looking at the totality of the circumstances. What in the world?

0:35:02 Jenessa: Well, but what if? Yeah. Yeah, yeah.

0:35:13 Thomas: I'm going to continue on because there's more good stuff.

0:35:14 Clip: So I don't know that an officer can assume that's the only thing going on. And if someone's pulling away, they could be a danger to others on the road. So, Justice Kavanaugh, that's precisely, and maybe this was prefaced in your opening colloquy, but that's exactly what the Fifth Circuit couldn't engage in in this case. And so so I agree that there may be some sort when an officer jumps on the car the deadly force can be avoided by by the driver too well in this particular case officer Felix's own expert testifies that officer Felix shot so quickly Ashton Barnes didn't have time to stop and and if I could let me sketch out justice Kavanaugh why it's so dangerous first you to shoot a driver in fact there is I'm not aware of any police department that recommends that its officers shoot drivers. The high likelihood, in this particular case, Ashton Barnes didn't immediately die.

0:36:01 Thomas: I'm just playing this for no reason, guys.

0:36:08 Clip: He was able to break the car and put it into park. If he had been immediately killed, that car could have careened and crashed into the highway. Officer Felix put other people on that highway in grave, very serious danger that particular day. So I don't think it's just he's jumping on to stop Ashten from getting away. He's also jumping on in a manner that is going to put a lot of other people at risk.

0:36:13 Thomas: Hmm. Yeah, weird. Just want to play that for no particular reason at all, everybody. Oh, man.

0:36:34 Jenessa: We will hear later Alito specifically asks about like officers jumping in front of cars like it couldn't be more relevant. And yet it's all dicta because we just throw it back and say reconsider considering the totality of the circumstances not yet granting qualified immunity. We might after you consider the totility of the circumstance is still give give qualified immunity. Who knows?

0:37:01 Thomas: Wait, what happened in this case?

0:37:02 Jenessa: This is not yet. I mean, this was what it was argued January 22, 2025. Oh, and it was decided May 15, 2025, it would have had to go back to district court and get re -argued. So a lot of times what will happen is after the Supreme Court, somebody decides to settle.

0:37:05 Thomas: It's been a year. Oh, good point. I mean, that's still a while. Right, yeah.

0:37:26 Jenessa: The person who lost is like, let me give up.

0:37:30 Thomas: I was considering that, but in thiscase, I feel like maybe that wouldn't happen, but just because I feellike you're going to hope. I don't know. I feelike both sides could still hold out hope, I guess.

0:37:39 Jenessa: You might try for the qualified immunity And then if you lose qualified immunity in this new analysis, then you would go for, oh, now I got to settle. Because if you don't get qualified immunity, you're going to trial. You don't want a jury to watch this happen, right? Right. Yeah.

0:37:56 Thomas: Oh ,man. Man.

0:37:57 Jenessa: Decided eight months ago would have had to go back to the district court and get re -argued with a totally new perspective on the situation instead of viewing the first two seconds, the only two seconds surrounding the shooting. Like that's very different. So I'm not sure where this is at right now, but certainly a lot of relevant factors. The thing I want to really point out is what we don't want to do is look at this and say, oh, well, this is all about jumping in front of a car and shooting a driver. And therefore, the fact they didn't give this guy qualified immunity in a civil suit, they said it was or could be excessive force, could be.

0:38:40 Jenessa: Go reconsider. That means it is excessive force. And that means in a criminal trial, he won't be able to say self -defense. He wasn't saying self -defense he was saying reasonable force let's not draw that line

0:38:51 Thomas: So even though this is very, very, very, similar to what went on here, you're saying it doesn't really help us with the issues that matter with Rene Good?

0:39:06 Jenessa: Certainly not for the criminal trial like we have not yet gotten this is all

0:39:12 Thomas: Cause this is all civil stuff. Cause he already got away scot -free as they say for the criminal stuff in this absurd case. Like, come on, God.

0:39:19 Jenessa: Civil yeah and who knows uh that doesn't mean anything

0:39:23 Thomas: I guess that doesn't indict the whole system. It could just be the shitty prosecutor or something. I don't know.

0:39:27 Jenessa: Right it could be the prosecutor it could be grand jury in this I don't know where this happened maybe in that area of the country They just love their police and they were never going to find it.

0:39:29 Thomas: Uh, I know. Can we all wise up as citizens? I feel like they are in, uh, in certain places and that's why we're getting the, the sandwich trial. And that's why we were getting, there was another one just today. Uh uh, that's going to date our recording, but, uh, someone shown a laser pointer at something and they, uh they got off like within minutes, you know, but because the, uh jury didn't, it was the jury at one way or the The other point is juries and grand juries in certain places are certainly wising up and that's good.

0:40:02 Thomas: But like, let's all learn that cops are liars and not reliable and and not take their word for it and stuff on stuff in court, because that really is that really has been just what's gone on for so long. It's just people take it as gospel when the when the police officer says something. And that's a big part of it. Like some amount of the citizen we as citizens can control just through being a better random selection like maybe a better random selection of us might be slightly wiser for juries and grand juries who knows god that's

0:40:33 Jenessa: We'll never know what they might have ruled about his rights in a criminal trial because it never went there. We don't yet know. We may never know. Maybe it's settling. Who knows what's going to happen with this in terms of qualified immunity. What we know so far is you cannot do this moment of threat thing and only look at the first two seconds. What we could draw from this certainly is in Rene Good's case, you have to look at the totality of the circumstances.

0:40:40 Thomas: Insane hmm

0:41:03 Jenessa: And that should hypothetically allow you to consider things he did that escalated.

0:41:10 Thomas: That's nice how dumb this was and he put himself in danger yeah all the stuff all the things okay

0:41:17 Jenessa: They still said, we are not yet ruling on this question about an officer -created threat. We'll wait till you put the case in front of us.

0:41:25 Thomas: Yeah you know why rush I get it they do choose to be conservative small c conservative sometimes but it feels like that's yet another rig game that It only happens when it benefits the fascists.

0:41:28 Jenessa: It doesn't seem important, right? Right. Yep. I think there's definitely some very on point things here where like I love when I, you know, you get a moment of like Alito being like, well, obviously you couldn't do that. And I'm like, OK, I know this is all dicta, but it helps me think about if if a similar case got to the court, you can guess how he would probably rule. Right. So when they're saying a lot of stuff about like, Well, obviously, you shouldn't be able to do this. And then you if you look at Renee Good's case and compare it, you're like, Oh, OK. Okay, that's going to apply. But you just never know.

0:41:54 Thomas: Yeah, what might happen? You never know.

0:42:10 Jenessa: Yeah, unfortunately, this case that looks dang near identical is not telling me a ton about what's going happen here.

0:42:17 Thomas: Not to mention, obviously, there's so much that's weird about this one with the federal, you know, not allowing the investigation. There's just so much going on. I don't at all blame people for looking at this and thinking it's highly relevant, but very important and good to know that, I mean, it's kind of technically speaking, not really.

0:42:35 Jenessa: Technically speaking, it's an extremely narrow ruling that was very specific to something weird the Fifth Circuit was doing. That does move us into this question, though, with Renee Good's case, it is a federal official and you just hit on, oh, that was a state cop. What's the difference here?

0:42:52 Thomas: Right, right.

0:42:54 Jenessa: Officially section 1983 does not apply to federal officials yeah at all at all we have a huge

0:42:59 Thomas: At all. Oh, oh, well, we could have saved ourselves hours of recording. No, I'm just kidding.

0:43:03 Jenessa: Problem so the opening text says every person who under color of any statute ordinance regulation custom or usage of any state or territory or the district of columbia well it doesn't say the the united states shit that doesn't include federal officials yeah you know we have to assume that under legal obviously congress can engage in oversight but under legal principles they did that on purpose

0:43:24 Thomas: Don't like that. Also, I just am realizing I know Congress, there are members of Congress who are talking about like, hey, let's just add one line to this freaking law that would cover them. But wouldn't that not cover this? Because that like you can't like get someone on an old thing that like it wasn't the law when he decided to murder somebody. What's that called again? Post something.

0:43:54 Thomas: It's like ex post facto. I didn't even think about that.

0:43:51 Jenessa: Ex post facto laws I know that applies for criminal um I wonder for civil liability yes

0:43:58 Thomas: Oh, maybe it wouldn't. Yeah, that's a good point. That's a great point, because when it came to stuff like the statute of limitations on sex abuse crimes that they kind of have done, that clearly was allowed to go forward with some people. So, yeah, maybe you're right. Civil stuff. Okay. Okay, so got some hope still. Still.

0:44:16 Jenessa: The critical part would be the substantive right your constitutional rights have always been there the existence of the remedy is all that would change so they've held before section 1983 is not what creates the rights it creates your private right of action but it does not create your fourth amendment right against excessive force that's always existed that could matter

0:44:36 Thomas: Oh, that's interesting. Yeah. That sounded like a bit of lawyer pedantry for good for the good side for once. Like, yeah, you're right. It isn't like a new thing. It's just a remedy is that is new. Okay. Okay, I like it.

0:44:51 Jenessa: Yeah I have no idea if that'll work but hey it's what I'm here for there are sort of ways it can apply federally officially section 1983 doesn't cover those federal officials right Except it kind of has been unofficially, well, it's official in that the Supreme Court endorsed it. The case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

0:44:52 Thomas: Who knows? Yeah. Worth a shot. Huh? All right, Bivens. That's right. Bivens. Okay? I know. I know the name of Bivens.

0:45:22 Jenessa: I have no idea how they are unknown and yet named.

0:45:26 Thomas: It said that? Hold on. Read to say that again unknown named

0:45:29 Jenessa: Bivens v. six unknown named agents of the federal bureau of narcotics. I don't know. That's the title of the case.

0:45:37 Thomas: That can't be right what six

0:45:39 Jenessa: It beats me. I don' t know. No, it's the title of the case.

0:45:44 Thomas: Unknown named agents yeah wow

0:45:47 Jenessa: I don't know.

0:45:47 Thomas: That's what that is the official okay yeah unknown is it that they've been named agents of the federal bureau of like is that the name is that what named is

0:45:49 Jenessa: I don't know. I don't know, maybe he's not allowed to know. Maybe they're secret agents. I don't know.

0:45:59 Jenessa: They're named plaintiffs, but they're not named by name, I guess. I don't know.

0:46:03 Thomas: Doing unknown that's okay Okay. Anyway, don't want to get sidetracked on that, but that is really funny. That's a weird internal contradiction in the, yeah. Okay. Yeah. Bivens.

0:46:06 Jenessa: Are they John Doe's? I don't know. I don't know.

0:46:14 Jenessa: I love it. Yeah. So you've heard the name. We have tangentially said Bivens over and over again and never... It's, again, something that we sometimes take for granted that people are just gonna be like, yeah, okay. It was federal agents, Federal Bureau of Narcotics, but it's a classic Section 1983. They searched without a warrant, no probable cause, unreasonable force. And he tries to bring this lawsuit and say my civil rights were violated. And so what they said was, well, on the one hand, it's not literally in the law. And like we can't go through the statutes and find like a private right of action was created. On the other hand, there is this general legal principle that there's supposed to be a remedy for things.

0:46:56 Jenessa: And the state remedy of like just a privacy violation, that's not really truly covering this. So we're saying like the Constitution itself authorizes this. It didn't for the states because of state sovereign immunity. We had to create something. But for the Fed, surely.

0:47:10 Thomas: Back when the court, this is 1970, the year was 1971. And this is when maybe a court was slightly better and actually cared about this stuff and said, you know, it would be really stupid if there was absolutely absolutely nothing you could do about this obvious, egregious violation of someone's rights. And the Constitution is not stupid. So, you know, they could have said, they kind of did say, so therefore, there must be something we can do. Here's the thing we can Do.

0:47:44 Thomas: And nowadays, they don't they don't like to do that. They're like, well, the card says moops. So I'm sorry, your your rights are violated. Nothing you can do?

0:47:53 Jenessa: Yeah. Yeah. This is the court that like three years ago created qualified immunity. So like this is a you know, I kind of read that as like they didn't know how bad a thing they were making back then because this is the same court is like, well, clearly you can sue the federal government. Like, come on. They're not saying Congress like made an oopsie and we're fixing it. They're more just saying like, come ON. It just always has existed. The ability to sue the Fed. Right. Like you got to be able to do this. We have since extremely narrowed it to the point that, you know, at first it was like, well, only this kind of violation, only that kind of evaluation. In Egbert v. Boole in 2022, they had a First Amendment violation that was thrown out as not close enough. And then a Fourth Amendment violation. But it was an immigration claim and not a search and seizure kind of thing that was like, you know, a citizen and cops without a warrant. So that's not close enough. And Sotomayor was like all right come on man like that's they're both Fourth Amendment thingies.

0:48:59 Thomas: They just want to get rid of Bivens. This court wants to get rid of Bivens.

0:49:01 Jenessa: Yeah gorsuch wrote a uh I can't remember if it was a dissent or a concurrence but he was like just straight up throw out Bivens like can we just get rid of it um but the majority said keep Bivens but keep it so narrow it's barely useful

0:49:15 Thomas: Yeah. Keep your friends close and your enemies closer.

0:49:17 Jenessa: Yeah so okay where we're at you can sue the state officials but only in their personal capacity or else you violate state sovereign immunity And you have to get around qualified immunity. So they have to be acting like unreasonably or something like outside of their duties. And we can't find that it was this known constitutional violation because we're never going to do that anymore because we are going to throw your case out immediately. We're in a bind, mind you, this is getting weakened it's becoming a huge problem where it used to be like this extremely strong thing that let you ask the federal court to tell your corrupt local government to stop doing terrible things and not just like with a perfunctory injunction but to say to them hey like you're in trouble and you owe me money and actually you owe it out of your personal bank account. Like this isn't going to hurt. This is bad. So what do we do? Well, if you love qualified immunity, there's a bill in Congress sponsored by a bunch of Republicans to put qualified immunity into law to not be common law anymore.

0:50:27 Thomas: So there's the lick the boots even harder approach.

0:50:30 Jenessa: Yes, you could do that if you think this is amazing. But again, it is common law. Qualified immunity is not in the Constitution. Congressman Hank Johnson of Georgia and Senator Sheldon Whitehouse of Rhode Island, they wrote the constitutional accountability act and this oh boy does this hit like nine out of ten buttons it waives sovereign immunity explicitly for the federal government and adds federal officials to section 1983 explicitly no more of this like oh Bivens thingy and we we have the right to waive for uh sovereign immunity we are waiving it sue everybody do whatever you want it includes It includes people employed or contracted to do law enforcement work. So you can't do the like, oh, well, we just like hired private police. No, you are included now.

0:50:43 Thomas: Love them. One of my faves. Love it. Right. That makes sense.

0:51:25 Jenessa: It uses explicitly this thing that's been lingering in the background. The 14th Amendment, Section 5, is a thing that says Congress can make laws that abrogate state sovereign immunity. So it says, hey, you can sue the states as much as you want for this now. So that's going to get rid of this whole, oh, God, I can't touch the official capacity.

0:51:48 Jenessa: No, sue New York State for violating your federal constitutional right. Go for it.

0:51:47 Thomas: Right in the form of some officer.

0:51:55 Jenessa: Uh, yeah. So you'll still have to find a person who did something, I think. I mean, we haven't seen this play out in action, right? It's still a bill. I think this would avoid qualified immunity because I'm not suing the officer's personal bank account and we need to weigh the worries.

0:52:13 Thomas: No, yeah you'd be going after the actual state. Yeah who has a bigger bank account which is good. Yeah.

0:52:18 Jenessa: Yeah. So if the state ordered you to do something unconstitutional, we don't have to worry about, like, well, it's not fair that you were ordered to. No, they shouldn't have done that. Like, it's on them, right? That would cover a lot of stuff. The same to put a tinier bill out, which maybe they're just hoping this will pass easier, the Bivens Act of 2025. Tiny little insertion. It just says, hey, add federal officials to Section 1983. So it doesn't do anything about qualified immunity or these private officials, but at least it solves the federal sovereign immunity problem. You could sue the person who shot Renee Good. You would not have to go, oh, but you know, Bivens actions have been weakened. No, it'd be, that would be solved. There's a bill to add federal officials and remove qualified immunity. So the Qualified Immunity Abolition Act of 2026.

0:53:12 Thomas: I love the sound of that, baby. Feed that into my veins.

0:53:16 Jenessa: Representative Ayanna Pressley of Massachusetts and Edward J. Markey of Massachusetts.

0:53:22 Thomas: Some good names.

0:53:23 Jenessa: So that addresses federal sovereign immunity. It's a federal bill. The federal government can waive their sovereign immunity and it just goes through and says no good faith defense no I didn't know it was unconstitutional no more qualified immunity yeah yeah yeah

0:53:38 Thomas: That would be nice. I like that. Now, specifically, and I don't want to sidetrack you on this part, but is there something that would fix and or do we need to specifically fix the weird Supreme Court thing? The thing that created the Kafkaesque time loop of we never get to know that anything's unconstitutional. Is there something that would fix that? Do you need to fix it or would this like bypass it? How does that work conceptually?

0:53:58 Jenessa: So if you just got rid of qualified immunity all of that case law just goes right in the garbage we don't even have to worry about

0:54:11 Thomas: Oh, right. Okay. So they don't even need that crap. Okay, I like that. And you know what? That's confusing. That whole shit was confusing and that's a lot of effort. Rather than have Jenessa repeat that and explain it to me, let's just get rid of it. I think that's the good idea. That is my vote. It's going to save Save us homework is what I'm saying. It's going to save us some homework.

0:54:12 Jenessa: It yeah it is it is really hard right it's so hard I do not want anybody to think like if that was challenging or confusing like oh I'm dumb like no that's so

0:54:34 Thomas: No, the court is dumb. Don't worry. It's not you. It's the court.

0:54:41 Jenessa: It's so hard yeah and like yeah at the end of a class where we spent weeks learning about it we struggled to guess how a case was gonna turn out out it's

0:54:54 Thomas: I wanted to try my hand at your quiz, but we're not going to have time. I'll get zero. Yeah.

0:54:57 Jenessa: Bad. Oh boy, I would have to get it from my professor we have potential solutions I have no idea the likelihood of getting any of this passed but it's always worth putting it on the floor getting people on the record

0:55:03 Ad: [Ad break 3 — ad music]

0:55:13 Thomas: And it's not anything that we need an amendment for, right? Like a constitutional, because that's never happening. So like, I know there were, it seemed like there were aspects where maybe you said it was something you would need, or there was something that's part of the constitution, But it sounds like, well, that's going to be for some of the criminal stuff, I guess, is again. So all the all the qualified immunity stuff, that'S all civil, right? Like all of it.

0:55:36 Thomas: That'S something I need to keep remembering because it's so easy to forget that.

0:55:35 Jenessa: It is so at criminal you will probably have in your state common law or in your state statutes something about not just regular old self -defense but like officers are allowed to use reasonable force to affect an arrest and so in a criminal case they could try to raise that that defense, that feels very similar to qualified immunity.

0:56:04 Jenessa: And maybe, maybe some of these Supreme Court decisions about what is excessive force, maybe that could apply to like a jury instruction for a criminal case, maybe. Outside of that, yeah, qualified immunity, like capital Q, the thing you've heard about with, oh my God, police get away with this, that is all about civil lawsuits. And really, it's specifically about Section 1983 constitutional torts.

0:56:33 Thomas: Got to keep that in mind. OK, but point is, there's nothing we really need like a constitutional amendment for, right, sure.

0:56:40 Jenessa: Yeah. So there was a little bit, the state sovereign immunity is in the Constitution. So to totally get rid of it, you would need an amendment. I do think that Constitutional Accountability Act found some good ways around it to say like the 14th Amendment, Section 5, that has been found to be a way for the federal congress to get around state sovereign immunity so we're going to use it I guarantee you that will get if this bill passes and somebody tries to use that way it will get litigated is this a proper use of congress's power under that amendment but because the states ratified the amendment in a way they consented to the proper use of it that's how they're gonna pull that

0:57:24 Thomas: Interesting. Thing. Okay, so we should, as advertised, go just briefly because we're out of time, but maybe debunk this bad info that was cycling. This was a post that went pretty viral, not like mega viral, at least. Well, who knows how many other formats this was shared and you never know, but pretty viral. And it says, okay, shared from an actual attorney. Do we have an actual attorney here? We do. So let's see how this holds up. There seems to be a lot of keyboard attorneys online today. So as an actual attorney, I'd like to cite actual law. The ICE officer in Minnesota violated both protocol and case law. Officers are not allowed to fire into a moving vehicle. And two, well, there's a one. And then two, lethal force is not allowed to prevent someone from fleeing. Three, case law is clear. An officer cannot intentionally place himself in front of a vehicle and then allege self -defense. At best, this officer acted with a reckless disregard for public safety and is guilty of negligent homicide federal agents do not have blanket immunity from state laws or criminal prosecution they can be prosecuted by state authorities for violating state laws if their actions were unauthorized unlawful or unreasonable even if they were on duty okay where are we so far we're so far are we kind of in reality town or is there anything you want to correct there

0:57:49 Jenessa: Off I would say like 90 percent not a criminal lawyer so

0:58:44 Thomas: Sure

0:58:44 Jenessa: Um I always want to be a little careful on that but like you know if their actions were unlawful it's like well all right you can't be criminally prosecuted for lawful actions so that doesn't make any sense but like yeah you know for the most part that sounds about right Right. Again, they can't do X and then allege self -defense. You know, I'm going to say like a judge at a criminal trial will be very reluctant to stop you from trying to bullshittily claim self -defence.

0:59:12 Thomas: Yeah yeah that's That's funny.

0:59:15 Jenessa: I don't know if that's a word, but I'm making it up now. But yeah, I mean, like mostly we're okay. It sounds all right so far.

0:59:23 Thomas: The concept governing this is called the supremacy clause immunity. Federal agents are generally immune from state prosecution only if their actions were authorized under federal law and necessary and proper to fulfill their federal duties. If a federal agent is charged in state court, they can petition to have their case removed to federal court. In federal court, the judge would then determine whether the agent's actions met the necessary and proper standard.

0:59:47 Jenessa: I haven't heard, I would have to check. Necessary and proper is not, like I usually hear it as like unreasonable and reasonable force and excessive, like, I don't know, maybe that's a thing, but I don't think it's not what I've heard.

1:00:00 Thomas: Right. Well, that was, yeah, the necessary and proper was linking it to if they're actually acting as a government agent, right?

1:00:07 Jenessa: Maybe that's generic for federal officers.

1:00:11 Thomas: Hmm. Okay. If the court finds that the agent was acting within the reasonable confines of their duties, the state charges will be dismissed. If not, the State Prosecution can proceed in federal court applying state substantive law. It is unlikely any judge would find this behavior necessary and reasonable, which, I mean, they said necessary and proper before and now they're switching to necessary and reasonable which okay the mere fact that no other officer present unholstered their weapon and appeared shocked he fired toward them reinforces that fact okay maybe maybe and then we get a whole bunch of sighting cases this is where I think the normies would be like wow that's it's cool but you're somebody's actually going to like, you know, look at these. So what, what did you find?

1:00:34 Jenessa: Yeah, could be a typo. Yeah. So this is where it gets bad.

1:01:01 Jenessa: The nice thing is they did give me the like full case citation, so I could just pop them in real quick. So it's a whole bunch of cases. They're mostly circuit court cases, which is not inherently bad, but you do have to keep in mind if it's outside this circuit, they consider it like persuasive but not binding. I don't know what circuit actually Minnesota is in, but if it is from a Minnesota circuit, the district court would have to follow that precedent. If it's outside, it would just be very persuasive that you should follow it but like circuit splits happen eighth okay so we have a seventh a ninth an eighth a third a sixth a ninth so we've got one that is actually binding

1:01:36 Thomas: I'm seeing eighth circuit. Interesting. It goes like this, the fourth and fifth, the minor fall in the major lift. Yeah.

1:01:48 Jenessa: Yeah the big problem here is I looked them up and every single one is a section 1983 civil lawsuit these are not going to tell you that an officer cannot try to raise at the criminal trial, I used reasonable force. I used self -defense. I was defending others. The elements of self -defence could literally be different in a civil versus a criminal trial in Minnesota. I don't know what their state law is. And certainly in the Seventh Circuit, a different circuit, the elements may be different. In this case, an officer stepped in front of a slowly moving vehicle, shot the driver. He claimed fear for his life. I'm just assuming this is a correct summary. I just opened all these cases and went civil, civil, and just threw it out in my brain. The quote, it says holding paraphrased, and then there's a quote. So I don't know how it's paraphrassed if it's quoted.

1:02:51 Thomas: This is all over the place.

1:02:53 Jenessa: Yeah, it's not great. An officer may not unreasonably create a physically threatening situation and then use deadly force to escape it. So maybe that's what Kagan is talking about with like, oh, there's some circuits that hold an officer who creates the threat cannot then use excessive force to get out of the threat. It is excessive force, even if it would have been reasonable before, but now it's excessive force. These are civil lawsuits. This is not saying if Renee Good's killer was was criminally prosecuted, the judge before trial would consider, oh, well, he created the situation, so I'm not going to let him argue that he used reasonable force to get out of the situation. You just cannot do this. This is not applicable.

1:03:49 Thomas: All right. Keyboard attorney's advocate. It's not clear from the writing, but it seems like Like with the point they're making, and this may very well still be a bad point, I just want to clarify. From the writing, I could imagine that the point their making is just about the part where the judge is going to decide, was this within their duties as an officer? Like was this necessary and proper is the words they used? I mean, you're not sure if that's the right, you know, phrase for this particular thing. But if this officer is charged criminally and this post is saying the first step, essentially, after they remove it to federal court, which I'm pretty sure is a real thing. I've heard actual real people mention that a lot, that the judge is going to decide, was it necessary and proper for their duties? As in, like, if it was just them being an agent, then they can't be charged with a crime or an agent of the state or whatever that wording is there. An officer of the state, if it was just that, then they can't be charged criminally because they're just doing states. They're just the state in that case or states confusing as in federal, they are just acting as a federal agent essentially. And so they can't be charged with a crime. And then you could interpret this to mean that all this case law is like ways that will inform how the, how a judge would make that call and not necessarily talking about like defenses in the criminal trial

1:04:16 Jenessa: Yeah, maybe. Maybe, but it starts falling apart pretty quick. An officer can't provoke a confrontation, then rely on the danger they created to justify deadly force. Like, we're not talking about justifying deadly force, assuming we were talking about acting within your duties. Maybe, here's one, the key point, the court rejected summary judgment for officers where evidence showed the officer moved into the vehicle's path, creating the perceived threat. What would that have to do with it?

1:05:47 Jenessa: In a civil trial, that makes sense. So they tried to, at summary judgment, apply for qualified immunity. They said they created the threat and that's the third circuit the court stressed that pre -seizure conduct matters and officers cannot rely solely on split-second framing if their own actions escalated the situation like this to me deadly force may be unconstitutional where you can be unconstitional and acting within your duties it's just you did it shittily um so it's

1:05:44 Thomas: Rejected summary judgment oh I see yeah okay it just seems like not a great

1:06:25 Jenessa: Really Really not. And like, you need to differentiate that. It really makes it sound like this person is not going to be able to try to say they defended themselves or something. Okay.

1:06:36 Thomas: Post that's definitely not true

1:06:39 Jenessa: This is the part that I think is the most reasonable. If we assume this is accurate, which I don't want to assume anything is accurate anymore. Many courts know which ones. Modern police training instructs, don't fire into moving vehicles. Don't use deadly force to stop a fleeing vehicle, OK, assuming that stuff is true, which I mean, it probably is, that would certainly be like all of these things would be useful at a trial to say, like, that isn't a normal part of training. So you can't claim this is reasonable force. Like, I'm going to fight against your defense. But then, like the whole thing ends with that AI picture that allegedly like unmasks the officer, which obviously AI cannot, in fact, recreate a face under a mask. So like it just got all the red flags. And the biggest problem is just that conflation of like the civil cases have about whether or not a plaintiff could get money out of you is just very not relevant to whether you're going to get your federal sovereign immunity. These are cases against state officials by the way who don't have federal sovereign immunity the federal sovereign immunity thing will be taken care of in a criminal like no no it's such a stretch so I'm seeing a lot of that of like just you we gotta keep these separate state and federal civil and criminal raising defenses pre -trial versus during a trial federal and state sovereign immunities. These are all so niche. And if you don't know Minnesota criminal law, like I don't Know how you're gonna figure any of this out, basically. And I don't.

1:07:58 Thomas: Yeah. Not a good post. Yeah. Right. Yeah, wow. Yeah all right well that's good to know. I'm glad that we're properly informing people here so this is a complicated issue but thanks for the breakdown and it sounds like from what you're saying looking into the ways that they want to fix a lot of this again all talking about civil stuff we're kind of we're kinda boned on the criminal stuff it seems like in terms of making any changes that would particularly help with this.

1:08:46 Jenessa: Yeah, you know, I'm really not sure how you could get rid of like federal sovereign immunity to make it easier to prosecute a federal official. I don't actually know. I mean, I guess can they waive it the same way they can waive civil? Maybe.

1:09:05 Thomas: Interesting. Yeah.

1:09:06 Jenessa: I don't actually know. I would want to leave that to the criminal people to be sure. On the civil side, absolutely. We've done it before. We can do it again.

1:09:14 Thomas: And this is all talking about civil. It seems like there's pretty easy ways to just quickly put a new line into a law and that would completely fix a lot of this 1983 stuff and ending codified immunity. So there's a lot we can do there and we should demand that from our lawmakers for sure.

1:09:32 Jenessa: Yeah it would be a great step. We're thinking about here we've been contemplating police officers and abuse of power but this would apply to so many things. I mean, a huge part of this is First Amendment rights. And when government officials try to silence your speech, Section 1983 is how the people fired over their Charlie Kirk postings are able to sue.

1:09:57 Thomas: Right. I was just going to say that. Yeah.

1:09:59 Jenessa: It does so many different things, and it's really helpful for a lot of people.

1:10:05 Thomas: All right. Well, thanks so much for the breakdown. I feel like I understand things a lot better now. Yeah, that was that was very extensive and comprehensive. So that's what we like to do here on the show. Thanks, Jenessa.

1:10:18 Jenessa: Good talking to you.

1:10:18 Thomas: All right. Well thanks everyone for listening as well and we'll see you all next time.