Topics of Discussion:
- Listener Questions: Follow-up on Originalism
- Breakin’ Down the Law: Derek Chauvin Trial (Graham v. Connor)
- Wild Card Segment: Can Jordan Peterson Sue for being Red Skull?
- T3BE Question
Thomas: Hello and welcome to Opening Arguments, this is episode 480. I’m Thomas, that’s Andrew, how’re you doing, sir?
Andrew: [Laughs] I am fantastic, Thomas, how are you?
Thomas: I am great. You know, those originalism episodes were so fun. I am the editing time police on this show, and on last episode I was just like “Andrew? No chaperones.”
Thomas: You know, no parents. Go wild, man!
Andrew: Ohh, yeah you let me have access to the punchbowl, man.
Thomas: [Laughs] That meant just a long episode of originalism. That’s what that means for us.
Thomas: But still, we’ve got a follow-up on that, and we’ve got an interesting case being cited by both the defense and the prosecution in the Chauvin trial. That’s interesting, I want to get the breakdown on that. Then we’ve got a wild card, but I’m gonna go ahead, right now I’m using host privileges, Andrew, and I’m saying we’re getting to the wild card today no matter what.
Thomas: Because I guess I’ll pose it in the form of a question that we all know the answer to. Can Jordan Peterson sue-
Thomas: -for being depicted as red skull, the Red Skull? I don’t know comic books.
Andrew: The Red Skull, yeah.
Thomas: But anyway, the bad guy in the latest, what the heck, Captain America? Is that what it is?
Andrew: Captain America, yeah.
Thomas: There we go. I remember because Hugo Weaving is the guy in the movie I think I saw 10 years ago. Right?
Andrew: Indeed, indeed he was.
Thomas: Good times.
Listener Questions: Follow-up on Originalism
[2:41.3] [Segment Intro]
Thomas: What feedback, what questions, what follow-ups on the originalism stuff have we gotten so far?
Andrew: We’ve gotten a lot of really great engagement on those two episodes, which I am really, really happy about. I’m glad we were able to do it, I’m glad we were able to find the right venue. Let’s tackle some of these listener questions and points. Number one, yes, I have spoken both to Julia and-
Thomas: Oh, you have? I didn’t know that.
Andrew: I have, yup.
Andrew: And to-
Thomas: I guess I find out the news with the rest of you plebs!
Andrew: [Laughs] William Baude liked a reply back in which I said I’d be happy to have a discussion with him. Not quite the same, but-
Thomas: Oh, okay.
Andrew: They are both aware of our episodes and you know, to the extent there is interest in interacting I am more than happy to interact and clarify these issues. I am excited about that and we will let you know if there are developments as events warrant. The second – I got a bunch of these and I do get it. [Laughs] Of folks who were like “well, maybe you’re both right.”
Thomas: [Laughs] Well, if that’s true then maybe all the originalists can resign from the Court and it’ll be fine because it’s all the same, right?
Thomas: The originalists should resign, we’re both right, so we agree, we’re both right, if the originalists resign and are replaced by people with the normal jurisprudence then I think we’ll all be happy because we’re both right.
Andrew: Well, the argument was – and there is not just a kernel, there is large texture, large grain of truth, to the fact that Professor Baude defined originalism-
Andrew: -in a way differently than I would define originalism. A number of people have asked, well isn’t the way to reconcile these two arguments that you’re just defining the terms differently? I wanted to specifically address that because if you define it as broadly as Professor Baude defines it, then Ruth Bader Ginsberg was an originalist. Then I’m an originalist. Literally there’s nothing left. All you’re saying is, you know, everything that is not-
Thomas: Judges changing the law because they feel like it, which nobody does.
Andrew: Right. You could find such that it would not be the empty set, but it would be damn near the empty set. That doesn’t give us a meaningful distinction and it is not the argument that Professor Baude wants to make.
Andrew: Again, I’ve tried very carefully not to ascribe motive or intent. If I were doing that, I would say there’s a sleight of hand going on here. That there is an equivocation fallacy of defining originalism as expansively as possible, and then using it for 2/3 or ¾ of your interview in the way in which we all interpret it.
Thomas: Yeah. And not only that, it goes the other way too because he knows, and we all know, there are judges who don’t identify as originalists, namely all the good ones.
Thomas: And so, if you are doing this little trick you’re also implying that they are doing something awful when they’re really not. It’s one thing to be like “oh, it’s just a definition thing, I defined originalism as this completely normal thing that every judge does,” but people are hearing that and they’re saying well, I know that a lot of judges aren’t originalist, so they must be doing this bad thing.
Andrew: Yup, I agree. It is why I have – and look [Laughs] I’m trying to lay as many of my cards on the table as possible. I do this whenever we have, if we have a debate or a discussion, because it is part of my training in the law that you get the best interaction when the other side knows what your arguments are. Very clearly the first question I would ask Professor Baude if he were to come on the show would be “you would agree that, say, Ruth Bader Ginsburg, is not an originalist.”
Thomas: Mm-hmm. So, show me where she changed the meaning-
Andrew: [Laughs] Right, right, exactly! I suspect, because I would give him the out. I suspect he would say, yeah, I’m trying to summarize it in a shorthand way and you’re parsing down as a lawyer and we would kind of move from there.
Thomas: Oh, is he not a lawyer?
Andrew: No, no, he absolutely is.
Thomas: Oh. Interesting.
Andrew: He’s a professor at University of Chicago Law School.
Andrew: But, you know, so am I and I oversimplify things sometimes. Again, trying to give benefit of the doubt here. Alright, next question that came up a bunch of times, it’s a really, really good point, is what about Supreme Court Justice Elena Kagan’s statement that (quote) “We’re all textualists now.” That is a little bit of lawyerly inside baseball.
Thomas: We’ve talked about that on here several times, but-
Andrew: Yeah, yeah. But it’s worth reiterating. In December of 2015 Elena Kagan, certainly prior to her appointment to the Supreme Court, and I think it’s born out in cases like Trinity Lutheran, for example, where she’s fractured from the furthest left position on the Court. A more moderate Supreme Court Justice. If we’re using that number line again, it’s so hard to keep it straight because all of the Court right now is in the 90s.
Andrew: You know, on the right wing. Maybe John Roberts is a 91 now or what have you.
Andrew: But you know, Kagan would be, I don’t know, a 40? It’s hard to pull the numbers. In any event, she was there to honor Antonin Scalia. Now, that’s not a job I would have taken. We know this because that was, in fact, your and my very first show together.
Andrew: When you called me up and was like –
Thomas: In honor of Scalia, I’ve got some punishment that is not both cruel and unusual that I’m gonna do to him in front of you all today.
Thomas: And he can’t do anything about it.
Andrew: [Laughs] Indeed, and I came on and from there, you know, small acorns led to mighty oaks.
Andrew: She’s at a speech, she’s giving the keynote. [Laughs] The Scalia lecture at Harvard Law School to honor Antonin Scalia. Then she’s describing his influence in the legal profession, and in the same way you and I disagreed in that first Scalia non-honoring, in which I said yeah, he was a brilliant guy, and you’re like no, I think he’s just an idiot.
Thomas: Well, I don’t think he’s an idiot, but- [Laughs]
Andrew: That’s not fair, that’s not fair. But you disagreed with my characterization of his intelligence. She paid him a compliment, and she correctly described that he was an incredibly – he was still alive at that point.
Andrew: She correctly described the biggest influence that Antonin Scalia had had at that point over the Supreme Court. Let me unpack that a little bit. This has actually changed in my lifetime practicing as a lawyer. Back when I just got out of law school and I was clerking for the Maryland Court of Appeals, our State Supreme Court. It was customary for judges right and left, including in particular my judge, to ask for legislative history as part of the background of understanding a statue, understanding what that law meant. What legislative history meant was drive down to Annapolis, go into the microfiche room and pull up transcripts of the actual arguments, the actual debates on the floor of the legislature over the bill. From there you would then say “look, the people who wrote this intended this bill to do X.” This method of legal analysis is often summarized under the word “purpose.” What’s the purpose of the statute?
The biggest contemporary defender of the purpose approach is UVA Professor Richard Re, and I’m gonna link one of his law review articles in the show notes. It’s called The New Holy Trinity, super fascinating. The point is pre-Scalia it was possible to look at a statute, have that statute be crystal clear on its face, and nevertheless as a judge say “right, but I want to know what the people who wrote this thing intended for it to mean.” I could go through the Holy Trinity case that they talked about, which was a statute that prohibited entering into a contract for a noncitizen to immigrate and work within the United States.
Andrew: That’s what the law said, and then a church hired an immigrant to come from overseas and Pastor at their church, and the Supreme Court said “right, right, right. We all know this law was not meant to apply to ministers, it was supposed to bar (quote) ‘cheap unskilled labor.’” (End of quote).
Thomas: Oh god.
Andrew: Right, so it doesn’t apply to that church’s contract. Your “oh my god” is really, really illustrative here. Remember, my judge was a very, very conservative judge. Looking to purpose, or not looking to purpose, is not a leftie or a righty tool. It’s a way of analyzing the text of the law. One of the things that Antonin Scalia has succeeded in doing is today I think very, very few judges, approaching zero, would say if a law is crystal clear on its face then it could be made ambiguous, or otherwise reinterpreted based on what the people who originally passed the law intended for it to do. That was not the case 30 years ago, 40 years ago.
A really, really good example of that we’ve talked about on the show that maybe goes the other way is Title VII, which says no discrimination on account of sex. Some of the earliest landmark cases, particularly in California, were claims of discrimination by men under Title VII. The earliest judges sort of split two ways. They said right, we get it, it says “no discrimination on account of sex,” but this was meant to protect women, it was not meant to protect men, we’re not going to entertain challenges by men under this statute, even though it clearly says no discrimination on account of sex.
Today that view is, like I said, an exceedingly small, approaching zero view of how to interpret a statute. When Justice Kagan said “we’re all textualists now,” that’s what she meant. She meant when the text is crystal clear, we do not look for reasons to depart from it that are grounded in other considerations. Now, when the text is not at all clear, then Justice Kagan continues to apply the same methodology I described in our two episodes. That’s the right context for that comment.
Again, it sort of shows the difference between the kind of thing you would say at a “three cheers for Antonin Scalia” lecture versus what you would put in your opinions. She would never have put that in an opinion, because it’s not true. It’s a hyperbolic statement meant to describe somebody who as a singularly influential Supreme Court Justice, you know, whether you like it or not. That’s the Kagan bit. [Laughs]
Thomas: I was having trouble tracking who cared about what side of that argument because on one hand it’s about intent, and you would think originalism is about did they intend at the time? On the other hand, it sounds like you’re saying – the comment is he made everybody textualists.
Thomas: I have to admit, I don’t totally understand what went on there.
Andrew: This is really crucial to the next couple of comments, so I’m glad you brought it up. Remember that for a textualist like Scalia it is not what is subjectively going through the heads of x-number of legislators who vote in favor of this. It is what was – for Scalia the original public meaning of the words of the thing that they wrote.
Andrew: What that leaves open the possibility for, and Scalia himself has written about this, is I am a State legislator, or I’m a founding father, whatever, and I write a provision into – I vote for a provision that is written into law or the constitution or whatever, and I intend subjectively for it to do a thing that it doesn’t say.
Andrew: Too bad on me. Elect smarter legislators is what Scalia would say. What it means is what it means to, at the time, to the general public, to their understanding at the time that that law was passed. It has nothing to do with the subjective intent of the people who voted in favor of it. Now, as you point out [Laughs] and as we talked about at some length on our originalism episodes, what people intended is often very, very good evidence of what the words meant.
Andrew: You know, I think it shows the difficulty in making theses kinds of hairline distinctions. But that’s how I’m steel-botting Antonin Scalia, and that’s as much as I can do on that, by the way. That’s where he would draw that distinction. Next up a number of folks, and I always forget that not everybody has been with us since the very beginning. This is a good time to-
Thomas: Wait a minute, there are people who haven’t listened to all 480 episodes including all the LAMs and bonus materials?
Andrew: [Sighs] Yeah. I mean, there should be a law against that, I know.
Andrew: No, but a bunch of people said “well, isn’t the strongest argument against contemporary originalism” you know, I went with Janus v. AFSCME, “isn’t D.C. v. Heller a much stronger example of that?” 100%, yes it is.
Thomas: We ought to do two episodes or more about that in 2016.
Andrew: We should.
Thomas: Okay, we’re gonna hop in our time machine.
Andrew: [Laughs] Episodes 21 and 26 of the show from five years ago, now, go through the history of that. The nut graph is prior to 2008 no federal court had ever overturned a federal law regarding the possession of firearms as violating the 2nd Amendment. This was a challenge, a manufactured, astro-turfed challenge to a decades old ban on handguns in the District of Columbia. Something people had been living under for generations. You just knew you were not allowed to have a handgun in D.C. and that became the landmark case that turned into D.C. v. Heller and invented the contemporary NRA-backed-
Andrew: (Quote) “Understanding” of the 2nd Amendment out of whole cloth. They had to do it in D.C. because the 2nd Amendment had not yet been incorporated to the States as of 2008. If you’re sitting there thinking this has been a key individual right that has been at the bulwark of – no it hasn’t!
Andrew: It literally – we did not know that it applied to State law until a case called McDonald v. Chicago in 2010.
Andrew: Eleven years ago. Yes, those are very, very good arguments against originalism, it’s just that we’d already covered them. Finally, I included this, I actually think your question made this a little more clear, but Matt Weland wrote in and said “I’m a software engineer, and from us programming languages counting starts at zero instead of one, which got me thinking.” (You might anticipate where this is going). “The one example we held up was the President must be over age 35.”
Andrew: “What if as a society we collectively decided to start counting from some other number?” We just count your birthday, you’re 100 when you’re born. He says, “look, this is obviously a stupid hypothetical, but for argument’s sake if someone was counted as 100 when they’re born and we count upward, would an originalist in that situation be happy with a newborn child running for office?”
Andrew: Here, again, I wanted to use this to make sure we’re steel-botting the other side and carefully define, it is the original public understanding of the words at the time they were enacted. If the words later come to have different meaning, then that’s an area where I think Professor Baude-
Thomas: The items change?
Andrew: Even his “not the same items”
Andrew: Is kind of fair. It’s like okay, we get it, it meant 35 years old had a particular meaning in 1789, and now it doesn’t because we’re all counting in hexadecimal or whatever, but we would still use-
Thomas: Is that a place where you’re two theories would kinda converge and you’d both be like “yeah, 135 then.”
Andrew: [Laughs] Yeah, exactly right.
Andrew: Under modern – our reasons would be different.
Andrew: We would say effectively – well I shouldn’t even say our reasons would be different. Go back to we gargnacks the zorblean. You would say okay, gargnacks meant what we would call 2F7 today. [Laughs]
Andrew: And they called 35 back then.
Andrew: Then you would still apply it. I don’t think that is a valid criticism. Again, it hinges on that knife’s edge of the difference between a lot of different things, and original public understanding of the text. I think that goes to illustrate – the reason I went through some of these edge cases and the like is I think the fact that the word “text” was not mentioned, as far as I can tell, in the original interview, is one of the overarching problems I have with it.
Andrew: Because it is so key to what the originalist argument is about. It is, you recall, we read those definitions from Scalia and from Bork that said “look, the only thing you can call the law is the written text of the law.” That is where so much of the substantive disagreement takes place. No, we can call lots of other things the law! You might not agree with that, but that goes a long way towards explaining the differences and approaches far more so than what was described. Keep it coming, obviously love talking about this. I think you’re gonna get it a lot more, why originalism is bad and you should feel bad in the future and we had a lot of engagement.
Thomas: Yeah, along the lines of that last comment, there was a good – I was trying to make this argument at the time, I’m not sure I quite have it outlined yet, but in my mind there’s something to do with the ongoing consent of the people being governed and how they’re understanding the law, and all of a sudden Scalia comes along and is like “nope, actually it was this way all along.” Someone pointed out in the Facebook group, wouldn’t we just – if we were gonna pass an amendment. Well, I guess this is already true with the Supreme Court, but [Laughing] but if tomorrow it was like “sorry, everything means what they meant at the time, what the words meant at the time,” then we would have to pass amendments, but then the Constitutional amendments, a lot of them would just be the same exact wording because we all think it means something now.
Thomas: I was like oh, yeah. That kind of makes sense. I think that sort of – I don’t know that I have it entirely right, but that sort of illustrates the absurdity of this. We would have to pass an amendment that has the exact same wording because we all think that means something now. It doesn’t matter what it meant back then so much.
Andrew: I think there’s a lot in that objection. Where I would begin is actually something we cut for time from part 1, and that is basic social contract theory. The idea is among social contract theorists – we talked about is there a concept of rule of law? Do you have an underlying moral obligation to obey the laws out of something other than self-interest? One of the justifications for that is the idea of social contract theory, and contract theorists are all over the map on whether it’s like oh, all I have to do is show that hypothetically 800 years ago your ancestors would have agreed to X.
Andrew: Sort of more Hobbesian versus a more Rawlsian view of the social contract, which is no, this is an ongoing process.
Thomas: I want to know if you meant Hobbesian or if there’s someone named ho-bees or something.
Thomas: Is it pronounced ho-beesian?
Andrew: I have often heard it that way.
Thomas: Oh, wow.
Andrew: You can say hobbs-ian as well.
Thomas: Okay. My mind is blown. Look, I’ve been embarrassed by my past pronunciations. I think it’s fair-
Andrew: So have I, so have I!
Andrew: You know, break out theh-surus but-
Thomas: Write us in on ho-beesian.
Andrew: I will defend ho-beesian.
Andrew: But yeah. If you believe that the social contract justification requires some ongoing back and forth, a reflective equilibrium between the citizenry and their representatives, as I think most modern political philosophers would, then that has the implications you’ve described. It also has the implications of why we generally think a free society can’t prevent you from leaving. [Laughs] There’s this notion of it’s not just theoretical consent, it’s actually some level of real, ongoing consent.
Andrew: At minimum you’ve got to be free to get out. If you can’t leave how can we infer that you’re here voluntarily? I think that’s an excellent, excellent point and I would love to spend another hour talking about it.
Andrew: But, you know.
Thomas: I was gonna say, people wouldn’t believe what we had to cut from Andrew’s notes. He’s like “okay, where do I start? We’re all actually energy. It’s the energy, it’s the bonds, we’re not actually- no I can’t go that far back.” [Laughs]
Thomas: There was a lot of deep diving.
Andrew: It all begins 13 billion years ago.
Breakin’ Down the Law: Derek Chauvin Trial (Graham v. Connor)
[30:36.3] [Segment Intro]
Thomas: Okay, Andrew, why is Graham v. Connor being cited by both the defense and the prosecution in the Chauvin trial?
Andrew: Because it is the first time that the Supreme Court clarified what it meant for a police officer to use excessive force. You might be looking at the citation going, um, 490 U.S. 386? Yeah. This case is from 1989.
Andrew: Let that one sit in for a little bit. It is also not a criminal case. It’s a civil lawsuit. It’s a § 1983, 42 U.S.C. § 1983 claim. Because under that statute when a State actor, acting under color of law, violates your civil rights, you can then sue them for damages. We’ve all heard about 1983 claims, we’ve talked about this. I think we did a dedicated episode on the show. You can get civil damages against State officials who violate your civil rights. The question was in this case, were the plaintiff’s civil rights violated by the police? You have to make that determination, and the Supreme Court clarified the rules. Again, terrifyingly recently.
Here are the facts of the case. On November 12th, 1984, Dethorne Graham was diabetic. He felt the onset of an insulin reaction and asked his friend, William Barry, to drive him to a nearby convenience store so he could purchase some orange juice to counteract the diabetic reaction. Barry drove him to the corner convenience store. Graham walks into the store and the line is 12 deep. He’s like screw that, I’m leaving, asks his friend just drive me to a friend’s house that’s just around the corner and I’ll drink something sugary or eat something sugary at my friend’s house. Now, a police officer named Connor watched Graham enter, kind of look around, and then leave the store, and the officer decided he was going to follow Graham.
Andrew: That there was something wrong about this. I’m gonna ask you a question that I could not answer from reading the text of this opinion, and I think you know what that question is going to be. It is, what race is Graham and what race is Connor?
Thomas: I mean, obviously black and white is what you’re looking for, but oftentimes plenty of non-white cops, also racist as well.
Andrew: Yeah, black and white is what I was looking for, it is the correct answer. You would not be able to tell that from the opinion.
Andrew: The opinion is 100% silent.
Thomas: So, that’s not relevant information to them?
Thomas: Not at all. Okay. Good to know, yeah, doesn’t matter. [Laughs] Totally irrelevant to the case, I’m sure.
Andrew: Let’s go back to what was happening. A half mile from the store Connor pulls over Barry, remember that’s the friend, and Barry says look, Graham is suffering from a sugar reaction. The officer says no, I watched you come in and case this joint, you’re gonna sit and wait here in the car until we find out from our comically oversized walkie talkies what happened back at the convenience store. Then Connor goes back to his patrol car and calls for backup.
Thomas: Oh my god.
Andrew: That is an undisputed fact. Graham, suffering the onset of his diabetic reaction gets out of the car and runs around the car twice, and then sits down on the curb and passes out. I have made a look at this; I sent a message to my dad who has some diabetic issues. I don’t know if that’s appropriate diabetic behavior or not, I’m sure our listeners can weigh in. That’s what Graham does. Then backup shows up and one of the officers comes over, picks up Graham, cuffs him tightly and all the while the friend is going “look, just get him some sugar, he’s diabetic, he’s gonna pass out, he’s having a reaction.” The officer says, (quote) “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M-Fer but he’s drunk. Lock the SOB up.” Some of those words have been clownhorned at the Supreme Court.
Thomas: Oh, they got a Supreme Court clownhorn.
Thomas: That’s interesting, I wonder whose job that is. An actual clown.
Andrew: [Laughs] Brian actually moonlights the Supreme Court in the 1980s. Several officers then lifted Graham up from behind, carried him over to the car and [Sighs] I don’t love this verb – “placed” him facedown on the hood. Graham now is in and out of consciousness and he says look, if you get out my wallet I have a decal on my license that shows that I’m a diabetic. He tries to squirm to get his wallet. In response – he’s handcuffed and face down on the car at this point – one of the officers told him to shut up and shoved his face down against the hood of the car. Four officers then picked up Graham and threw him headfirst into the police car. A friend – this has now caused a community response, so a friend, maybe the same friend that his house he was going to, has brought orange juice over. Brings it over to the car and says look, just let me give him some orange juice, he’s cuffed, he’s in the backseat of the car, officers refused to let him have it.
Officer Connor receives a report from the convenience store now coming back over the telegraph wires because it’s 1989 that no, Graham didn’t do anything wrong, there was no holdup, there’s nothing missing, there’s nothing wrong. You just tracked down a Black guy who was having a diabetic attack and the officers drove him home and released him. Graham, in this entire arrest, suffered a broken foot, cuts on his wrist, bruised forehead, injured shoulder, and developed tinnitus, a loud ringing in his right ear that continued to this day as of 1989, so five years into the future. Probably for the rest of his life.
The question was, did the use of force by a police officer in that case constitute excessive force in violation of your Constitutional rights?
Andrew: And if so, which ones?
Thomas: Boy, tough case. Um, yes!
Andrew: The answer is we don’t know – I do know the ultimate answer to this, but we don’t know from this Supreme Court opinion. What this Supreme Court opinion did was clarify the rules, because the test that had been used at the 4th Circuit was a subjective test. What the 4th Circuit said was you (Graham) have to prove that the police used force (quote) “maliciously and sadistically for the very purpose of causing harm” (end of quote).
Andrew: Yeah, that’s not a great standard. The 4th Circuit said “you can’t prove that.” They weren’t malicious and sadistic, they were, I dunno, cruel but usual. Whatever. That’s what the 4th Circuit said, and the Supreme Court overturned that finding. They said look, the right that’s being violated here is your 4th Amendment right to be free against unreasonable searches and seizures. By the way, they’re correct on that. That’s how you analyze when the police are exercising dominion over a criminal suspect. It’s a 4th Amendment question. They said look, the word “unreasonable” does not have a subjective component to it. Here’s how the Supreme Court put it, they said “as in other 4th Amendment contexts, the reasonableness inquiry in an excessive force case is an objective one. The question is whether the officer’s actions are objectively reasonable in light of the facts surrounding them without regard to their underlying intent or motivation. And officer’s evil intentions will not make a 4th Amendment violation out of an objectively reasonable use of force-
Andrew: -nor will an officer’s good intentions make an objectively unreasonable use of force Constitutional.”
Thomas: Makes sense to me.
Andrew: Yeah, absolutely. By the way, even before I show how that’s applied, I think you now see exactly why this case is being cited by both sides. From the prosecution side of it you’re saying look, we’re not trying, nor do we have to prove, that Derek Chauvin hated George Floyd, that he was try- all we have to prove is that this was not an objectively reasonable way of restraining someone that was in police custody and control.
Thomas: Are you saying this is unclear whether or not that’s the standard? We don’t know?
Andrew: Oh no no.
Thomas: That sounds like it ought to be the standard.
Andrew: It is the standard; it remains the standard to this day. I’m gonna tell you the Negatron side, but first let me get through all of it.
Andrew: How do you figure out whether this restraint is objectively reasonable? Again, I just want to point out, I love doing this after we did a little bit more on originalism because this is the kind of mainstream decision that we got up until 20, 25 years ago, even though this opinion is written by William Rehnquist, who flirts with some originalism. Very, very conservative guy. But basically, the answer is you balance a bunch of factors. It would have done no good to say well, what would the framers have thought about this.
Andrew: Because you didn’t have cops in 1791 the way you do today. You didn’t have Terry stops, that is the stop and frisk. It would have been such a laughably stupid inquiry to say.
Andrew: Instead what you say is okay, the 4th Amendment protects you against unreasonable searches and seizures, how do we balance those interests? Here’s what the Court said, “The test of reasonableness is not capable of precise definition or mechanical application.” That’s a slap, through the future, at Scalia. Well, he’s on the Court at the time, so it’s a slap across the aisle at Scalia.
Andrew: “It’s proper application requires careful attention to the facts and circumstances of each particular case, including” (and I’m gonna number these here for convenience) “one, the severity of the crime at issue; two, whether the suspect poses an immediate threat to the safety of officers or others; three, whether he is actively resisting arrest; or four, attempting to evade arrest by flight.” That’s not an exhaustive list, but that list is still used today, it’s still in police training manuals in terms of how you figure out what level of force is appropriate to the situation. Put all that together and you were sitting there thinking “well, this sounds like a pretty good case.” It sounds like it got rid of a terrible standard.
Andrew: A high bar, and replaced it with an objective standard, and that’s true. Graham’s lawyer, for example, to this day says that this is the most important civil rights case of the latter half of the 20th Century. However-
Andrew: The question of how you balance those factors was described by the Supreme Court this way, the framing mechanism, how you determine is whether the force was appropriate under the totality of those circumstances using the factors that we just described at the moment force was used without 20/20 hindsight. These are the words, “from the perspective of a reasonable police officer.”
Andrew: Yeah. Now you see where we are. And, in particular, why over the past 30 years all of these cases you will hear the police officer describing-
Thomas: “I was afraid for my life.”
Andrew: “This is why I was afraid for my life; this is why-” exactly right.
Thomas: That’s gonna be tough in this case. I had my sunglasses on my head, didn’t even move. They’re just sitting – I feel like a new court test could be if your sunglasses stayed on your head the whole time you were doing the murder then you weren’t really in that much danger.
Andrew: You joke, but a 1990 Supreme Court could very well have articulated that as one of the factors as the totality of the circumstances. How much – and, you know, they wouldn’t have said, you know, “do you have your sunglasses on?” They would have said “how much did you have to deviate from your normal practice?” When the answer is zero that should be a really strong argument against it.
Thomas: He couldn’t have looked more casual as he was doing the murder.
Thomas: He really couldn’t have. He may as well have been plate-spinning while he’s doing it.
Andrew: Yeah. [Laughs]
Thomas: Like, come on.
Andrew: I think that’s right. At the end of the day I think that this legal standard will favor the prosecution, but this is why both sides are citing to the case.
Andrew: The prosecution is citing to it saying yeah, we’ve got to look at the totality of these factors, and the totality of these factors amounts to zero risk to you or as damn near zero as you can possibly get.
Thomas: I want an extensive line of questioning about those sunglasses – well I guess he won’t, will he ever be on the stand? Probably not, huh.
Andrew: I sure wouldn’t put him on the stand.
Thomas: Do you still have those? How’re they looking? Are they scratched at all? They’re perfect, those sunglasses that were on your head the whole time? You were never in danger in any way?
Thomas: Yeah, those? Look beautiful, not a scratch on them. I enter into evidence those sunglasses, they’re pristine. They’re better than mine!
Andrew: [Laughs] I chuckled there, but I absolutely think that that’s a valid argument and it is a valid technique. I would like to see the prosecution do that. What they need to do – [Laughs] this goes back to, you know, we talked about this in my sad episode of revisiting Alan Dershowitz and the concept of testi-lying, which was all – literally the only thing Alan Dershowitz spoke on until the moment the check cleared for being on the O.J. Simpson defense team. I really stupidly believed Alan Dershowitz cared about this back then. But he would talk about how – he coined the phrase “testi-lying.” It was because of these manuals; police officers are trained to give answers that respond to the factors that have been outlined in the law that exonerate their conduct. We saw even a little of that in the Law’d Awful Movies of Your Honor.
Andrew: Where the classic police officer at the very beginning – I mean, the entire thing goes off the rails in about 8 seconds, but the police officer is testifying “I absolutely saw the defendant hide drugs on their person, and I could smell pot.” These are just the kinds of things – again, it’s why I love the Dershowitz characterization as “testi-lying.” Nobody really thinks that that’s the case. Nobody thinks police officers are trained bloodhounds and they’re like “I could definitely smell that sealed Ziplock back of weed.” No, no you couldn’t.
Andrew: The sad conclusion to the story, as you probably guessed was that this was remanded back down to the trial court, the trial court once more said that Graham was the victim of unreasonable force, that was appealed to the 4th Circuit and the 4th Circuit reversed and said that the use of force in this case under the factors articulated by the Supreme Court was reasonable, so Graham never got a dime from the city.
Andrew: You know, today his family is active in lobbying with respect to police brutality causes.
Thomas: Oh my god, that is insane.
Thomas: Nothing. For all that.
Andrew: Nothing, nothing.
Andrew: That’s the sad ending to that story, but that is the significance of the seminal case in this area, Graham v. Connor and why you hear it being cited on both sides.
Thomas: I actually have a little bit of faith in this case going the right way, but we’ll see. Actually, no, we talked about in the Q&A, I want to ask you real quick, we have a minute. I said this on the Q&A last night, the Patreon Q&A, or sorry, Tuesday, I feel a little bit optimistic about this case, and I grant that it’s because we’ve heard from the prosecution so far. But it just feels like the evidence is overwhelming that even people who are kind of blue lives matter-y in the jury might be able to see that okay, this was just not reasonable behavior. How are you feeling about this case? Are you willing to predict anything?
Andrew: I share that view with you. I think the prosecution has – and there are things that I have nitpicked, but you know, look, if one of these prosecutors watched one of my trials they would nitpick.
Thomas: Or listened to our show.
Andrew: [Laughs] Sure!
Andrew: Yeah, I mean, you’re never able to articulate everything that’s going on in your head. The prosecution has done an excellent job, and like I said on the Q&A, generally speaking even though at this point in the trial your defense theory should be somewhat visible in your cross examination of the witnesses. That’s just not the case. It is very, very difficult to see them building a comprehensive case of “George Floyd was a dangerous pill popper but also fragile and ready to die of an underlying heart condition.”
Andrew: It just – the argument wasn’t great from the start, and I don’t see that it’s being built up that way during the trial. I share your cautious optimism, and we’ll see.
Wild Card Segment: Can Jordan Peterson Sue for being Red Skull?
Thomas: We will see. Well, we have just enough time for a fun wild card that I’m insisting we cover. Does Jordan Peterson have a case?
Andrew: [Laughs] Okay! This is my favorite story of the week. This is just, this is the best. Okay, so I know you’re not a huge comic book fan.
Thomas: I’m a zero comic book fan.
Andrew: I know.
Thomas: I’ve seen some of the movies, I have never read a comic book. I don’t even know what they are.
Andrew: Alright, so the Red Skull is a Captain America villain. He is the Joker to Captain America’s Batman, that’s how important he is. And he is a literal Nazi. When I say a literal Nazi, I mean he got his nickname “The Red Skull” from Hitler.
Thomas: [Laughs] We’ve got words for people like you back home. We’re already comfortable being called Nazis, I don’t know what you think-
Andrew: [Laughs] Exactly, right.
Thomas: Some Rick & Morty humor there.
Andrew: [Laughs] I’ve actually seen that clip.
Thomas: Oh, it’s so good! [Laughs]
Andrew: Adolf Hitler gave him the nickname he wears proudly. He wears the swastika on his chest, okay?
Andrew: Also, we both know Ta-Nehisi Coates. He wrote the seminal article “The Case for Reparations.” He is also a longstanding writer for Marvel Comics. He wrote on Black Panther, consulted on the movie which I think you’ve seen, which is excellent.
Thomas: Yeah. I like the movie.
Andrew: Black Panther is really, really good.
Thomas: Michel B. Jordan was right, but yeah. It got the villain wrong. [Laughs]
Andrew: That’s what makes Black Panther so good. So, Ta-Nehisi Coates has also been writing for Captain America since 2018 and on the just released Captain America, Volume 9, issue 28, March 31st is released, the Red Skull goes on his YouTube channel-
Andrew: -to preach his “Ten Rules for Life.”
Andrew: As well as “Chaos and Order,” and “The Feminist Trap.”
Andrew: And speech – I love this more than anything – the speech – okay. You have these two bits that are just amazing. When they show Red Skull monologuing his speech about “you, the American male have been ground underfoot and women have been charged to do your jobs, but I offer you the sword of manhood.”
Andrew: Okay? That’s how that speech ends. Then watching that is Captain America, he’s talking to a police officer and he says “look, it’s the same for all of them. They’re young men, they’re weak, they’re looking for purpose. I found the flag, you found the badge, they found the skull. He tells them what they’ve always longed to hear, that they’re secretly great, that the whole world is against them, that if they’re truly men they’ll fight back, and bingo, that’s their purpose. That’s what they live for, and that’s what they’ll die for.” And so Jordan Peterson has just found this out! And I need to say this, even though it pains me. Jordan Peterson has had a good sense of humor about this. I really, really, really wanted him to go James Lindsey, just freak out-
Andrew: [Sighs] Jordan Peterson has been funny about it. He’s tweeted out the Hydra logo with a lobster.
Andrew: It’s pretty good. That kills me. But his fanboys do not disappoint. If you go read over on Jordan Peterson’s tweets every third one is “well, I can’t wait until Dr. Peterson sues Marvel into nonexistence.”
Andrew: [Laughs] By the way, way to prove you’re not easily triggered snowflakes.
Andrew: The case closed here; this is not defamation. This is not a copyright violation. Parodying a public figure’s works is within the core of what you assholes who claim to be pro-free speech should find to be free speech.
Thomas: Oh, Andrew getting a little hot under the collar. I like it! Come after his comic books and that’s what’ll do it!
Andrew: [Laughs] There was a line credited to philosopher Jeremy Waldron about Robert Nozick because late in his life Nozick, somebody I’ve met, I’ve attended lectures from, brilliant philosopher.
Andrew: Wrote Anarchy State and Utopia, and then like sort of spent the next 30 years, spent the rest of his life kind of living down the fact that he was the Anarchy State and Utopia guy, and actually wrote that. Wrote a long essay in a book called Socratic Puzzles that says “Anarchy State and Utopia was an accident. I never really meant to be associated with these fringe libertarian nutjobs, this is kind of bothering me.”
Andrew: Michael Waldron has said, I can’t find this anywhere, I’ve looked for it, to have quipped “Well, if Professor Nozick is concerned that his views placed him in rather nasty company, he should reflect that they are, upon close examination, rather nasty views.” [Laughs] I like to shorten that down to Professor Peterson, perhaps you shouldn’t have ideas that appeal to Nazis.
Thomas: [Laughs] If the skull fits!
Andrew: [Laughing] Oh my god that is beautiful. If the skull fits, I love it. There you go, case closed. Jordan B. Peterson is Adolf Hitler’s best friend, and there’s nothing you can do about it, JBP fans.
[56:36.9] [Patron Shout Outs]
[59:18.4] [Segment Intro]
Thomas: And now it’s time for T3BE! Failure time, here we go! Another bolder … Really I’m not even Sisyphus. I’m Sisyphus if the boulder rolled down and just flattened me every time. I’ve gotta just get up and get flattened by another boulder. There’s no pushing involved. Okay, here we go.
Andrew: I honestly thought you might break into Tub Thumping by Chumbawamba there. Anyway, here we got. Thomas, a 50-year-old nurse who had been fired from his job at a hospital told his attorney, “I was fired because of my age, and I want to sue the hospital.” Based on this information, the attorney filed an age discrimination complaint against the hospital in federal court. As it turned out, the hospital had hired a 52-year-old man as the nurse’s replacement-
Andrew: -a fact that rendered an age discrimination claim unavailable. The hospital responded to the complaint by filing a motion for sanctions against the nurse’s attorney.
Thomas: Oooh. Wow!
Andrew: Is the court likely to grant the hospital’s motion?
Thomas: Oh my gosh.
Andrew: (A) No, because sanctions are not proper against the attorney of a represented party.
Andrew: (B) No, because the hospital failed to give the attorney the chance to withdraw the complaint in advance of filing the motion with the court.
Andrew: (C) Yes, because the nurse’s attorney failed to conduct a reasonable pre-filing inquiry; or (D) Yes, because the nurse’s complaint contained legal contentions that were not warranted by existing law based on the facts in this case.
Thomas: Wow! I think based on the fact that Sidney Powell still exists [Laughs] I’m kind of leaning toward a “no” answer, but maybe I shouldn’t let that bias my answer. I don’t know that we’ve ever had a question about this kind of thing, about sanctions against a lawyer, have we? In our 220, I don’t remember one.
Andrew: We have not. This is a first.
Thomas: This is a new one. Okay. I’m gonna just do what I think is reasonable. Sanctions, that’s not the same as being disbarred, I know it’s not just for messing with client funds. [Laughs] So, the nurse essentially tells the attorney “I was fired because of my age and I want to sue the hospital.” Let’s see what the attorney actually did. Filed an age discrimination complaint against the hospital in federal court. Okay. As it turned out, the hospital had hired a 52-year-old man as the nurse’s replacement, a fact that rendered an age discrimination claim unavailable. So, the lawyer has now filed something that is not available. Yeah, that seems pretty bad but it doesn’t seem like, you know. This sounds like a little bit of negligence, a little bit of light lawyer negligence, but sanctions feel a little rough, that feels a little harsh but who knows?
Hospital responded to the complaint by filing a motion for sanctions against the nurse’s attorney. So, they go to sanctions right away. Okay. A, no because sanctions are not proper against the attorney of a represented party. That sounds like nonsense to me. If the exam is porked it’ll be that, but that … sanctions are not proper against the attorney of a represented party. That doesn’t make any sense. I’m pretty sure that is what they are proper for. I don’t know, that doesn’t make sense to me.
B, no because the hospital failed to give the attorney the chance to withdraw the complaint in advance of filing the motion with the court. That seems reasonable to me. B seems pretty solidly reasonable. I think from what you’ve described in your interactions with the judge and the court and the other side, I feel like there’s a “hey, why don’t you go ahead and withdraw this before you get sanctions slapped on you. You made an oversight; you should have investigated a little bit and didn’t.” I dunno, B is what I’m leaning strongly towards.
C, yes because the nurse’s attorney failed to conduct a reasonable pre-filing inquiry. I mean, maybe? That sounds pretty … reasonable. It could be that. D, yes because the nurse’s complaint contained legal contentions that were not warranted by existing law based on the facts in this case. [Groans] I think that’s too broad. I think D would mean there’d be a whole lot of sanctions flying around. That feels like a pretty broad – legal contentions that were not warranted by existing – naw, no way. That’s too broad.
I think I’m between B and C, and this is how this all turns out, except for that one I totally blew. It’s usually between 2 and then I pick the wrong one. No because the hospital failed to give the attorney the chance to withdraw the complaint in advance of filing the motion with the court. Or is it just “sorry, you should have conducted this reasonable pre-filing inquiry.” [Exhales] How lenient are courts? I dunno, I feel like you give them the chance. I’m gonna go with B. Ooh, I could see it being C, I’m between B and C, I could see an argument for C. You’ve gotta do this thing, you didn’t do this thing, sanctions. I also could see you give them the chance to say “whoopsie.” You know, whoopsie daisy. I feel like a takesies backsies, whoopsie daisy in something like this is reasonable before you get sanctioned. I’m gonna go with B, that’s my answer, could be C but I’m going with B.
Andrew: [Laughs] Alright! If you wanna play along with Thomas, you know how to do that by now. Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore. We will pick a winner and shower that winner with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: And that’s our show, thanks so much for listening. Oh, that was a lot of fun. We got deep dives, we got important issues with the Chauvin trial and we got a Jordan Peterson Red Skull, but that had everything, Andrew.
Thomas: I think we did it. We squeezed everything that’s critical key OA into one show. That was a lot of fun.
Andrew: I had a lot of fun too, and hopefully listeners did as well.
Thomas: Alright, well, we’ll see you next time!