Advisory Opinions - Israel's Legal Responsibilities in War (Live at Duke University)

Episode Date: October 10, 2024

Judge Roy Altman joins Sarah and David at Duke University School of Law. Note: The opinions expressed on this podcast do not represent Duke (who would have thought that anyways?). The trio discuss Altman’s trip to Israel and legal troubles the country has in defending itself. The Agenda: —The intersection of law and military operations —Proportionality as legal principle in armed conflict —How Hamas’ tactics complicate the legal landscape of military operations —Tire chalking! And Fourth Amendment issues —Don’t erase David's identity, SarahShow notes: —Judge Roy Altman’s first appearance on AO —NYU Law Review article on tire chalking —Advisory Opinions live at UNC Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. Special guest David French is back with me at Duke University. That's right, David. We did the University of North Carolina and Duke in the same visit, which is pretty controversial. Minimal bloodshed. I'm not going to say there was no bloodshed, but it was manageable.

Husband of the pod, as you may or may not know, went to Purdue, but is also a third generation Purdue graduate. And he gave me a list of horrible things to say to you all that I will refrain from, but just know he hates you. Before we get started, Duke has asked me to read the following statement. We are recording this episode in front of an audience at Duke University School of Law. However, this podcast is not sponsored by Duke University and views expressed belong to the person expressing them and not Duke Law or Duke University.

I'm so glad we were able to clear that up lest anyone believe that I speak on behalf of Duke University. I knew everyone was assuming that I do. Yeah, okay, so good. All right, well, today's episode, I think is gonna be especially fantastic because we have Judge

Roy Altman here joining us and we're going to talk about two very related topics, the laws of war as we look at a year later and the conflict in Gaza and Lebanon and tire chalking and Fourth Amendment searches. So really this is what AO does at its best. It's all over the place. And if past performance is any predictor of future results, we're going to end up spending much more time on tire-chalking than the debate that is dominating international discussion. That brings me a lot of joy.

Okay, David, kick us off. For listeners who do not remember their AO lore, this will be Judge Altman's second time on the podcast to talk about Israel, laws of war, the conflict post-October 7th. So you joined us after your first trip to Israel post-October 7th, and now you're joining us again after a second trip to Israel. So let's just

set it up. And why don't you talk about those two trips? What did you see in one and not the other? How was the second trip different from the first? Just, you know, talk about that experience. All right. Well, thank you again for having me. I have nothing bad to say about Duke University. I guess I should say, since you reminded me, that nothing I say today reflects the views or opinions of the federal judiciary as a whole. That probably goes without saying. The first trip that we took to Israel was a trip of 14 federal judges from around the country, some Jewish, some not, some who had

been to Israel before, some who had not been to Israel before. And it's the first ever judicial education mission to Israel. It's not uncommon. We do these to other countries, England, for example. I was just in Cambridge. And we met with a whole gamut of Israeli legal society. We spent the day with the Supreme Court justices of Israel, somewhat forgotten now here in the international community, but very hot topic still among Israelis was the

judicial reform dispute that pretty much ended abruptly on October 7th because nothing unites Jews like genocidal organization trying to kill them all. And so we spent, we did feel that that was an interesting thing to discuss because we, they deal with a lot of the same constitutional law problems that we have in our own country. For example, to what extent is a judiciary legitimate when it invalidates the acts of a democratically elected legislature? Obviously, that's a problem we've been dealing with, I guess, since Marbury versus Madison. You all know what that is, presumably, yes. And they're dealing with it big time now. Big difference, of course,

is that they don't have the political branches appoint the judges, which was a focal point of the judicial reform like we do. And they also, well, they don't have a written constitution, which can get very hairy. So there's a question about the extent to which they're just making it up as they go along. That's obviously very flippant. The Supreme Court of Israel doesn't see it that way. And they have compelling arguments. On their side of it, we also met with the former Minister of Justice of Israel, who's now the speaker of the Knesset, who was a chief proponent of the judicial reform. So we met with the Supreme Court to get one side.

We met with the Minister of Justice to get the other side of the story. We met with the MAG, the Military Advocate General, who is the chief legal officer of the military. And that was an eye-opening meeting. We actually did that on our second trip as well. Because when it comes to the laws of war, and the war in particular in Gaza and now against Hezbollah in Southern Southern Lebanon, there is a lot that goes into the decisions about approving and not approving a strike. And a couple of differences that really resonated with me, both the first time and the second time, was the level of control that lawyers have over military decision-making in that

country. A very legalistic country. I'm Jewish, so I get to say that. And it's very litigious, and lawyers do have a lot of power, both at the Supreme Court level as we saw in the judicial reform issue, but also when it comes to the war. So for example, a couple things, almost every strike in Gaza is approved unless it's an emergency strike that someone comes up above a hole and is going to be struck right away by lawyers, reviewed and approved by lawyers. Lawyers are deployed with the commanders in the field. And the lawyer's advice, unlike, for example,

a JAGS advice in the United States, the lawyer's advice, unlike, for example, a JAGS advice in the United States, the lawyer's advice in Israel on military matters is not precatory. So in the United States, we have kind of a safe harbor, kind of like you would in the Fourth Amendment, as I understand it. David can correct me if I'm wrong, but my understanding from very close friends who were JAGS is like in the Fourth Amendment, you don't need to get a warrant sometimes, right? But if you get a warrant, then you're very well insulated against a 1983 lawsuit, for example. But it doesn't mean that it's illegal just because you didn't get the warrant. There are exceptions under the Fourth Amendment. Same thing with the

advice from a Jag. You don't need to follow it, right? You don't need to follow it in the United States, but if you do follow it, you get certain safe harbors when you do. In Israel, it's not that way. The lawyer's advice, quote unquote, you can't see me, but I'm doing the air quotes, is not precatory, it's mandatory. The lawyer decides. And so one of the things that we were shown in the MAG room in Israel was footage of drone operators or F-35 pilots over Kamaas targets and you see them with their Kalashnikovs, you see them firing the rockets either from a

mosque or a hospital or a school, very common in Gaza, also in southern Lebanon, less so in southern Lebanon than in Gaza, but also prevalent in Gaza, excuse me, in southern Lebanon. And then the pilot would say, I'm ready to strike. And then something amazing happens. One of you guys, a lawyer, comes over the radio and says, hey, what's that on the top right part of the screen? And the person would say, you know, scroll to the right of the screen, it would be two

kids playing soccer 50 meters away or three women holding a loaf of bread or whatever it is. And they would say, strike canceled, strike canceled, strike canceled. And we would be watched over and over again strikes like that that were canceled. And that that of course was an eye opening experience. One of the things we saw this trip was Israel does something that as the high-level military groups brief to the ICC made clear just last month, the high-level military group is a collection of some of the top generals and officers of almost every Western

army in the world has filed a kind of amicus brief. It's not technically an amicus brief, but it functions as a kind of amicus brief in the ICC proceeding. And they've reviewed, they've gone to Israel many times, they've met with the military, they've reviewed all of their protocols and procedures. And in particular, they've reviewed their procedure for giving warning. Remember that Israel is being accused of genocide. That's a definition that was created after the Holocaust in order To give a name to what was done to the intentional attempt to exterminate the Jewish people from the face of the earth six million murder The definition of genocide is the intent the intent to wipe off

an entire a people or nation either in whole or in part. Difficult to prove genocide, where the army that's allegedly committing genocide has sent over 20 million text messages, over 19 million leaflets and flyers and over 15 million calls and social media posts to the civilians in the combat zone telling them exactly where the fighting will take place in the next 24 hours. The maps were shown to us they're very easy to understand even if you don't speak Arabic but they are in Arabic. Red denotes as as you might have guessed, don't be there in the next 24 hours or so.

Yellow means probably a pretty dangerous place to be. Green means that you're safe. And the high-level military group has said that not only does no army in the world endanger its own military by putting them in harm's way by alerting the enemy forces of exactly where they're going to be fighting before they go in and fight, but they made clear in their brief that their own countries, and this is India, Japan, Spain, the United States, most of the Europeans, generals from those

countries who submitted this brief, are not even equipped, they said, to be able to implement protocols the way Israel has done in Gaza and now in Southern Lebanon. And that, I think, was quite eye-opening for us. We could talk more about the trip, but I know you have other questions. Yeah. So just as a bit of background to contrast with the American system, just to confirm what you were saying, Judge, in the United States system, a JAG officer is much like a lawyer is, say, to a corporate client.

The CEO hires the lawyer and the CEO listens to the lawyer, but the CEO makes the decision. So in my experience, and I did exactly what you're describing when I was in Iraq, I was advising the command on, shoot, don't shoot, bomb, don't bomb, preparing strike packages, all of this. And in my experience, if a JAG said no, I never saw a commander contradict the no. But if a JAG said yes, I saw commanders contradict the yes.

And the reason is pretty obvious that if you contradict the JAG on the no, you're exposed. You're in trouble if something really goes wrong. If you contradict the JAG on the yes, it's, it's, that's a tactical decision. You know, you might say, Hey, well, it's legally clear to bomb, but we think bombing would create these following additional dangers or following knock-on effects. And then the other thing that is very different is I'm not going to say we've never warned. That's not our practice.

Our practice is not to warn. But there are other distinctions between the American and Israeli practices. And so let me just sort of walk through some critiques of Israel's conduct and see based on your experience there, based on talking to the MAG, how they would respond to this. I would say number one critique is around proportionality. The top critique that I hear is proportionality. Now let's define that properly. Proportionality for those who are not familiar with the laws of war is not if someone shoots you at you with an AK-47, you have to shoot back at them with an M4.

I don't think the Israelis use M4s, but Americans will use an M4. No, no, no, no. That's not it. It is not that you respond with the same force used against you. It's that you respond with no more force than is necessary to achieve the military objective or that the cost to civilians with of achieving the military objective is not out of proportion to the objective. So let's say you're dropping a bomb and in the house is Osama bin Laden. That's an enormously important military objective.

Or Hassan Nasrallah. Right, or Hassan Nasrallah. That's an extraordinarily important military objective. And so the proportionality analysis might be, well, there's a greater number of civilian casualties that we would permit to achieve a very, very significant military objective. Versus if it's just a foot soldier in, say, a school,, well bombing the foot soldier in theory would be appropriate under the laws of war, but if it also blows up a large number of people who are innocents just to kill that foot soldier, that would not meet proportionality. You can already, you issue spotting law students can already see the problem.

It's not precise. It's a prudential judgment. And so people can and will disagree over whether or not proportionality was satisfied. So let me ask you this. How would, you're sitting in the shoes right now, you're the mag, you're sitting here and I'm asking the mag, I'm seeing an awful lot of civilian casualties coming out of in particular Gaza. What is Israel's practice on making... How does Israel make the proportionality decision? How does it make that decision of

how many civilian casualties are too many? What is the analysis that they undertake to do that? How would they answer the critique that says, look, totally agree you had a right to respond October 7th, it's just too many civilian casualties, it's too much civilian damage? Thank you for that David, because it's a very important question. So let's start from the beginning. There are three main rules under the laws of armed conflict that we need to be cognizant of.

Those are distinction, proportionality, and mitigation. Okay? Let's talk a little bit about proportionality because that's what David wanted to mention. I just wanted to define the other two so that we can get back to them. The law of distinction is the law that says something completely counterintuitive.

When I was a quarterback on a football team at practice, I got to wear this little pink jersey. Okay. It was wonderful because you know what it meant? It meant no one got to hit me during practice and that made my mother very happy. Uh, but the law of distinction is precisely the opposite. The law of distinction requires that people in an armed conflict wear uniforms precisely to say, shoot me. I'm a combatant and not him or her, she's not.

Hamas violates the law of distinction. There's no dispute about that. At the beginning of the war, many of you may remember in the November hostage exchange, we saw on TV almost as a joke that when the Hamas terrorists would show up to the Red Cross to deliver the hostages, they were wearing these like fatigue uniforms. And they were doing that. Of course, we've now found communications and letters. And in fact, hostages who were released have been interviewed and have said that the terrorists

purposefully talk to each other about getting out of their civilian clothing and into military uniforms when the cameras would be rolling in order to try to convince the world that they too are wearing uniforms and practicing the law of distinction. But we know that they are not now. It's no longer disputed. So that's the law of distinction. We'll get to it.

There's very little dispute that Israel, among people who are observing this closely, that Israel follows the law of distinction and Hamas does not. Israel is warning civilians to get out of harm's way. Israel is using precision bombs to try to avoid civilian casualties. Israel as I told you already is canceling strikes where civilians are sometimes too close to the area. That's not to say by the, that mistakes aren't made.

We have to understand from the soldiers that have come out of Gaza that on an almost daily basis you have people dressed as women waving white flags or people dressed as fake Jewish hostages coming out of holes, wearing white flags and yelling in Hebrew, you've rescued me, you've rescued me, only to pull a machine gun out and start shooting at the soldiers. Obviously, gross violations of the law of distinction and the Israeli soldiers who were in Gaza are obviously in the middle of a fog of war that results in mistakes. One example, Israel kills its own soldiers sometimes. So did we. Have you ever heard of Pat Tillman? A horrible tragedy.

We killed Pat Tillman. That happens in every war that has ever been fought. It's not because we're trying to commit genocide on our own people. It's because in the fog of war mistakes are made. Okay? The second thing I want to define is mitigation. Mitigation means that you do what you can in order to limit the harm to the civilian population. Let me give you one example Okay

The question of whether there is a famine in Gaza a lot has been written on this point, too over 3000 count of the HLMG the high high level military group has also written on this question. They've analyzed UN data, Hamas data, Israeli data, and Western sources, and concluded that since the beginning of the war in Gaza, more than 3000 calories per person has been imported by the Israelis in order to feed the civilian population in Gaza. But when I do projects, logic games with my kids for school, we play this game, what is not like the other? Okay? Think about true genocides in history. Were the Nazis providing

3,000 calories a day to the people in Auschwitz the question answers itself Were the Hamas people terrorists who are truly committing a genocide were they warning civilians? Practicing the law of distinction when they entered Farazah and the arrows which I hope we'll talk about in a moment. Of course not So we get to the question of proportionality the question question of proportionality, as David has said, is Is the collateral consequences to civilians? Is it proportional to the legitimate military target? Okay, here's an example which we were talking about because it's relevant to something happened. I think a week or two ago Imagine that you have

Hezbollah paying essentially a leasehold to civilians in southern Lebanon to store these humongous rockets. Many of you have seen this now in the news. The rockets are enormous. They're like the width of this room and they hide them in garages and in basements and things like that and they pay. They sometimes pay the the civilians sometimes threaten the civilians to have those in their homes you're destroying if you're the Air Force pilot a munition you're not striking to use David's example Hassan Nasrallah all right so in that scenario it's not appropriate and Israel does not do this to just bomb the home without providing notice to the civilians

that you're gonna bomb the home. Which is why while we were in Israel, the IDF provided notice to all of the homes in southern Lebanon that they had intelligence on, substantial number, that were housing or were being paid leaseholds in order to store Hezbollah munitions, including rockets and machine guns and everything else.

And so they provide this notice and then when the civilians have gone, they destroy the homes. Okay? Now, what happens when there's terrorists inside? One of the things that we see oftentimes is you see that the idea of strikes a school or a mosque or a hospital complex in Gaza and instantly you get the Gaza Health Ministry, which is really Hamas. Remember, you can't get a job in Gaza unless you're with Hamas.

It's a totalitarian terrorist regime. And so the Hamas ministry, by the way we've never met the minister because of Yahya Sinwar hiding underground, the Hamas ministry instantly says we've got 37 casualties. Mind you, in Mosul in 2012 Americans fought for 35, to destroy 3500 ISIS fighters in Mosul. I think there were 30 or 35,000 civilians in the city. It took nine months, not a significant tunnel network like there is under Gaza. Most of the 3500 terrorists were killed. A huge number of civilians were also killed.

We still don't know exactly how many civilians were killed in Mosul, and that's what, 12 – I'm not great at math, that's why I went to law school – but 12 years later. But instantly, we get a tally of civilians from the Hamas Gaza Health Ministry. Well, then Israel provides the names, ranks, and serial numbers from the Hamas Gaza Health Ministry. Well, then Israel provides the names, ranks, and serial numbers of the Hamas terrorists who were in that compound. And of the 37, 16 will be terrorists, or 21 will be terrorists. The question is, is it proportional? And as David said, reasonable minds can disagree about the extent to which each strike in any given situation is proportional. But the point is that these are difficult subjective questions that people

of good faith, lawyers, your age, who care about following the laws of war are making in real time on a daily basis against a genocidal terror regime that purposefully embeds itself among its own people in order to increase rather than decrease the number of civilian casualties. And there can be no dispute whether you think that it was too much to kill 10 civilians versus 11 versus 9 and each one is a tragedy. Let me be clear. Every Jewish and Christian and Muslim life that's lost, that's innocent, is a tragedy. But Israel is also fighting an existential war of survival. We have to remember that these

terrorists that are shooting rockets from northern Israel and from Gaza, these are not 8,000 miles away in Afghanistan or Iraq, and not to minimize the importance of our wars in those places. They're less than 300 meters from Kfar Aza, from Neroz, from Metula. If those terrorists are not eliminated, Israel will cease to exist. Their charter pledges genocide against the Jews of Israel. And so yes, we can have reasonable disputes on any given strike, but what there can be no dispute about, given the undisputed evidence of Israel's warning systems and the amount of legalistic norms that go into every decision, is that they are intentionally and deliberately

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That's shop B-E-A-M dot com slash advisory and use code advisory for up to 40% off. This episode is brought to you by Coca-Cola Creations. Use code ADVISORY for up to 40% off. the new Coca-Cola Zero Sugar Oreo Limited Edition. Besties for a limited time. Taste it while it lasts. Copyright 2024. The Coca-Cola Company. Copyright 2024. Mondelez International Group. Hi, this is Kevin Williamson. I'm the national correspondent for The Dispatch and author of the Wanderland newsletter. We cover a little bit of politics in Wanderland, but mainly we try to get beyond the candidate and horse race stuff into the issues that we think we'll

still be talking about after this selection and after the next one. I believe that politics is supposed to serve the well-lived life, not the other way around. We do a little bit of language, a little bit of current affairs, a little bit of culture. It's a chance also for me to interact with readers whose questions, suggestions, and shared insights make up a big part of our package every week. So check it out. I think you'll enjoy it. For a limited time, you can get an extra 10% off if you use the promo code Furthermore10. That is Furthermore10 for an extra 10% off. If you're already a Dispatch member, make sure you go to thedispatch.com, click on newsletters,

and see to it that you're signed up for Wonderland so you can get in your email box every week. So here's one of my concerns when I look at the situation and I think a lot of people have, a lot of the international attention has been focused on any given individual strike and things like that, but truth be told if you're sitting here in the United States or in Geneva or wherever and you don't have the information to adjudicate any given strike. So you can offer your opinion or whatever, you just don't have the information

to adjudicate the strikes. But here's my concern, and it's not related to the individual strikes. So one of the responsibilities, if I'm, and this is something that we faced in Iraq that we fumbled on initially and had to get right. And that was we went into major urban built up areas, fought a lot of urban battles, and then did not stay. We pulled back out again, having cleaned out

the area of terrorists and they infiltrated back in. And then we'd go back in and then they'd infiltrate back in again. And where this touches on the law of war is that if I am an occupying power, I have some responsibilities for the safety and the security of the citizens in the area in which I'm occupying. And my concern is that obviously Israel does not want to occupy Gaza. I think it's pretty clear that there's no national imperative to occupy Gaza. But at what point does Israel have a legal imperative as opposed to a strategic... I understand the strategic aversion to occupation, but isn't there a legal obligation of securing the safety of the civilians in the areas in

which you control? And that has been my concern when I see that Israel is fighting over some of the same neighborhoods again and again. That is not... You can fight over the same neighborhood in a way that complies with the laws of war in each fight, but in a global sense, because you have not occupied the ground and secured the civilian population, you've committed a separate violation. And so that's my concern.

Do you have any perception of what is Israel doing to secure the civilian population in Gaza when it enters into a city? Or is it not? Is it just entering and leaving again? Well, I think that's a great point. It brings, again, this rock in a hard place that Israel constantly finds itself in, because if David were an Israeli politician and he said what he just said, he'd be skewered endlessly in the very New York Times that pays David a part of his salary, a small part of his salary, for suggesting that Israel should reoccupy Gaza, which by the way,

to be clear, the Israeli government has made clear they do not want to do. Okay. So what David said is true of us in Afghanistan and Iraq, it's true of Israel and Gaza, but it actually has been tremendously effective in Gaza militarily. And then I'll get to the separate question. What Israel has done in Gaza is it has evacuated the civilians in large measure from the combat zone. So it has tried to defeat Hamas's strategy. Remember, Hamas's strategy, as Khaled Mashal has made clear over and over again on Arab TV, including in Lebanese TV, is to have as many Palestinian civilians die as possible.

If you don't know who Khaled Mashal is, he's now basically in charge of the international Hamas. Yaya Sinwar is in charge of overall Hamas. And so what Israel has done is it evacuates the citizens of, for example, Gaza City South. It attacks the terror targets in Gaza City, eliminates thousands of terrorists, their tunnels, their munitions, their political compounds, because remember, Hamas was both military and the dominating political force in Gaza. The goals of the war were, of course, to bring home the hostages, but also to end Hamas as both a political and military governing organization

in Gaza. I submit to you that the political part of it has long been accomplished. Hamas no longer governs Gaza. There's no Hamas police officers running around Gaza. There's no Hamas prime minister ruling over Gaza and passing laws in Gaza. And the military structure has been, the Israelis and I think the Americans agree, effectively dismantled. More than 50% of the fighters have been killed. 95% of the rockets have been destroyed. In fact, when Hattiz Malhani was killed in Iran, the chatter was that Hamas wanted to retaliate against Israel by firing rockets into civilian areas. They just couldn't find the rockets. So the military intervention,

that part of it has been tremendously successful. Now what happens is that Israel moves south. They go into Shabalia, they go into Hanunis, and they move the populations. Again, the civilian populations are moved out of those areas. They end up as you might recall in Rafa, the very southern part of Gaza. And there was a great deal of dispute about whether Israel should or should not go into Gaza. Israel ultimately made the decision to enter Gaza by removing the civilian population from

Gaza. By removing the civilian population from Gaza about 1.1 to 1.4 millions civilians were not sure Exactly. The numbers were moved out of Rafa by Israel within 10 days an Unbelievable humanitarian effort and there's one thing to remember about it. The Israelis told The Palestinian civilians to leave through text messages, calls, social media. What does it tell you? The Palestinian people trust the Israelis. They left when told to leave and they went to Al Mawasi, the refugee camp that Israel had paid for and built along the coast with field hospitals, food purveyors, and residential facilities for over 1 million people. And they went.

And Israel spent the better part of two months dismantling Hamas' terror tunnels, the smuggling tunnels into Egypt, and of course the population of Rafah. Now it turns out that some of those terrorists who fled from Rafah during the fighting pop up through tunnels in Khan Yunus, to David's's point or they pop up now as we're hearing in Shabalia in the last few days and Israel evacuates the civilian population again and goes in and attacks The Hamas terror networks. It has done two things without doing a third and this is why I don't think it's a violation of any law of war a third and this is why I don't think it's a violation of any law of war. The two things it's done is it's been tremendously successful as I said at destroying the political and military capacity of Hamas. They no longer

function either as a political organization or as a military. Their battalions, all 24 of them, have been dismantled. Their leadership has been decimated and almost all of their battalion commanders have been killed or captured. It also has preserved countless Palestinian civilian lives who otherwise would have been in harm's way. And the thing it hasn't done is it hasn't created a scenario where Israel is forcing itself to occupy the Palestinian people in Gaza, something neither it nor its population nor its Western allies want it to be doing.

One last thing on that subject. Part of the hostage deal that you've heard so much about, and let's be clear, Israel has put on the table more than 16 hostage deals now. Hamas has refused every single one of them. Okay? One of the things that the hostage deal is turning on is this question that David is raising. Will Israel remain in Netzerim, which is the corridor that bisects Gaza in half to allow security mobilization both to the northern and southern side of Gaza and in the Philadelphia corridor which is the lifeblood of Hamas where Hamas got all of its concrete all of its rockets all of its Kalashnikovs all of its munitions and of course all of its fuel to keep the lights on and the air

conditioning going in the tunnels there's no air conditioning that was kind of a joke but but the fuel that it needs for the generators that run the underground tunnel system so they can breathe down there. Philadelphia has now been choked off, which is why you see Hamas being over time precipitously dismantled. I hope I answered your question. Yeah, absolutely. So if we're going to do more time on chalking, we got- I'm riveted by chalking. Okay, okay. So let's transition by chalking. Okay, okay.

So let's transition to chalking. So we're gonna do a microphone swap. All right, that was incredible. And now we will move on to an even more riveting topic. Chalking on your tires. Wait, don't leave, don't leave. Okay, so I wanna start with the listener who sent this in. I work for a small city government,

population less than 10,000, and the Sixth Circuit has had a big impact on us from Taylor versus City of Saginaw. There's two different cases involved in that, but we'll get to that. The gist is that a panel ruled that chalking tires for parking enforcement constitutes an illegal search and violates the Fourth Amendment. To my knowledge, no other circuit has followed suit, so only four states are prohibited from chocking tires for this purpose. We'll get to the 9th Circuit case in a minute. I can go into all the boring reasons why city planners say it's important to keep on-street parking in a downtown turning over, but I'll skip that unless you're curious. I will say that the opinion saying that the purpose of chocking is to raise revenue is not accurate. We are losing,

what is for us, relatively large amounts of money trying to enforce the parking limits without chalking. In our case, the initial impact of the case is that we've spent hundreds, if not thousands of man hours finding, reviewing, and testing methods to enforce without chalking. We used to pay a couple of college students part-time probably a total of around $20,000 a year to walk around town, chalk tires, and write tickets. Now we're paying probably $75,000 a year for a company to use video cameras with license plate reading technologies. Plus some of our employees spend time helping to manage the system. That's great. This is why I love your podcast.

And this is a pilot program that covers only around half of our parking spaces. So full coverage is going to be around $150,000 if we expand and if the company trying this can make enough revenue to continue. If this doesn't work, we're most likely going to pay even more to install meters. I get this email and I'm like, this is an amazing question from someone who really deeply cares about the answer. And his point on the revenue is that if this were just to make revenue for the city, they wouldn't spend so much to continue being able to enforce the parking because they're now

revenue neutral or revenue negative that it's actually about the parking. So if you know me and you listen to this podcast, the number one thing in that email that I needed to follow up on was the idea that he thought I wouldn't be curious about the importance of downtown parking in a town of 10,000 people. So I, of course, did follow up. So here's his answer. When people drive into a downtown area with the intention of going into a shop or restaurant, they usually want to park

within a block of their destination. If there's not a space that close, research shows us that they will keep circling the block and after a while, they will just go somewhere else. The planner's rule of thumb is that about one on-street space in six or seven needs to be open for people to feel like there is adequate parking in a downtown area. If there's less available parking than that, the downtown business climate will suffer. If you've got a downtown that is relatively busy for its size, that

circling of the block becomes a traffic problem and that makes it less walkable. It even reduces the lifespan of asphalt and street striping, especially in areas where there is frequent turning. And then you almost always have parking garages or surface lots in the area which are expensive to build and or maintain. You want to encourage people to park in those if they're going to be in the area for more than an hour or two, but people tend to park as close as possible if they don't have to pay for parking or they don't have a time limit subject to a fine. There is a saying among planners that goes something like this, someone is paying for parking so everyone should pay

for parking. Okay. So I teased this subject a few weeks ago and you will not be surprised to hear that I heard from one Jonah Charles Uhlendorf, who wrote a 2023 law review article about this subject. God bless him. We will put it in the show notes, but I will just note for our text history and tradition fans out there, a quote, one of the oldest tools of these parking enforcers is tire chocking, a practice employed since at least the 1920s. Tire chocking involves an officer placing chalk

on the tire of a parked car and returning after a set amount of time. If the chalk remains where the officer left it, the car has evidently not moved and the driver is issued a fine for violating the city's parking ordinances. This is an exciting setup, I know. So let's go through some case law

and some warrant exceptions, and then the cases we're talking about. And I'm so excited to hear you agree with me. Adam Foss Just so you know, I was only told that this would be a subject for the podcast about an hour ago. And I haven't had a chance to look the subject up, but I, of course, have strong feelings on it. Kasey Pan It's a good thing. I'm going to run you through all the relevant cases, warrant exceptions. Okay. So first off, we have strong feelings on it. It's a good thing. I'm going to run you through all the relevant cases. Very exciting. More than exceptions. Okay. So first off, we have Kilo. Kylo, never Kilo. There's the

one about eminent domain. Kylo, I think is what we normally call this one. 2001. In this one, the Supreme Court says that heat seeking technology used to determine whether there's humans in a building is a Fourth Amendment search. Okay, now let's move on to Jones in 2012, a GPS tracking device put on the back of a car, also a Fourth Amendment search. Then we have Florida versus Jardines in 2013, bringing a drug sniffing dog to someone's front door.

Yep, that's a search. So you'll see how these are relevant. Now, all of this is warrantless, right? It's the idea that you're coming up with sort of cute ways to do this stuff without getting a warrant. Of course, generally you need a warrant to conduct any search, but there are exceptions. So let's walk through those real quick. Exigent circumstances. We all know that, right? We like hear it, you know, we're investigating a kidnapping and we're hearing a child's voice behind a door.

You don't need a warrant, go get the kid. Plain view. We're investigating a kidnapping and we see the child through the window. Go get the kid. Search incident to arrest. I arrest you, I can pat you down and or search your car at that point. Once

I've already had probable cause for something else, consent. I'm investigating that kidnapping and I'm like, Hey, can I go in your house and look for the kid? And they're like, yeah, come on in. That happens more than you would expect. It's stunning. It's stunning how often you get consent. Because sometimes I think they think, you know, either there's catharsis and being honest or or if you just look like totally non plus the officer might just go away. Or they haven't listened to enough Jay Z.

Okay. Neither David nor I understood that one. There's entire criminal law classes that will just break down the lyrics to the song. But the punchline is don't give them consent to search your car. It's a little snappier than that. Okay, now we're getting to the exceptions that are interesting for our purposes, the chalking purpose.

Automobile exceptions. The motor vehicle exception normally permits law enforcement officers to search a motor vehicle without a warrant if they have probable cause to believe that the vehicle contains evidence of a crime. The community caretaker exception. When law enforcement officers act more as caretakers of the community, upholding order and preventing hazards, than as traditional law enforcement officers. In order for this exception to apply, public safety must be at risk and the officer's

caretaking function must be totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. And lastly, the administrative search or special needs exception. They are both used interchangeably and separately, but we're gonna combine them. This is a search regime where no warrant is ever required and it may be reasonable where quote special needs make the warrant and probable cause requirement impracticable and where the primary purpose of the search is distinguishable from the general interest in crime control. I have and still have no idea what that means, but it is used in a bunch of these Supreme Court cases, which,

for instance, have given a thumbs up to highway checkpoints near the border to check for illegal immigrants being smuggled in cars, for instance, sobriety checkpoints where they just have everyone pull over and give them a sobriety test. They'll do license checkpoints. There's like checkpoints. There's like checkpoints. A lot of it applies when, am I supposed to interrupt or? Okay. A lot of it applies when, for example, a business is given a particular kind of license. So think a strip club or a bar or night. Okay, don't think a strip club.

Think a bar or restaurant or nightclub where they're either given an alcohol license or a food and beverage license. Obviously, the relevant food or alcohol or safety inspectors can go in, in order to make sure that you're in compliance, even if those are arms of the police department, without a search warrant to check that you're complying with the food and beverage license that you have or not trafficking in children, for example, things like that. Okay. So with that, the case that our city manager was talking about is called Taylor versus City of Saginaw. Interesting, it was a 1983 case for damages for a Fourth Amendment violation, which is kind of fun. And basically, the Sixth Circuit said, this is a search for Fourth Amendment

purposes. We don't need to go any further than Jones, that GPS tracking case. And no exceptions apply. In the first case, which was 2019, they look at the car exception and the caretaker exception and basically say, at the time you chalked it, the car, there was no even suspicion that the car may have violated the parking statute. That's the whole point. You're just chalking all the cars to see who violates it. So it's clearly not that exception. And community caretaker, no, there's no particular hazard to these cars that are parking legally at the time that you chuck them. Okay, so then the case comes back up in 2021 to look at that administrative exception.

Now this is where things are gonna get spicy between the sixth and ninth circuit because the sixth circuit says, no, the administrative special needs exception, that one about drunk driving checkpoints, border checkpoints also doesn't apply. So that was 2021. Fast forward to 2023 and we get Verdun versus City of San Diego and the battle of two of my favorite judges, Judge Bress says that chalking is A-OK and the administrative exception applies.

And Judge Boumete is in dissent saying are you f***ing kidding me? By the way in case they're listening I do love both of those guys. Says the district judge who could be reviewed at any point. Not by them and by the way I couldn't care less either. Okay so here's a press for the majority that shocking is a okay. Chalking is intended to enhance public safety, improve traffic control and promote commerce. Insufficient parking impacts public safety, cruising, double parking and illegal parking all lead to increased traffic congestion that makes it more difficult for public buses and emergency vehicles to navigate city streets.

Illegally parked vehicles may block access to fire hydrants or bus lanes. Greater traffic volume poses greater safety risk to pedestrians, bicyclists, and drivers, and drivers searching for spots are also distracted and more likely to cause collisions. Stop and go traffic and idling vehicles associated with congestion and parking shortages

also result in increased localized vehicle emissions. I think our city manager might be Judge Breast. He goes on, chalking is its most cost-effective method and it is more efficient and accurate than other methods including photography and that license plate system that our city manager was talking about. Warless administrative searches must bear a sufficient connection to the governmental interests they serve and cannot advance as their primary purpose, quote unquote, uncovering evidence of ordinary criminal wrongdoing. But here, the primary purpose of tire-chalking is not a general interest in crime control,

but to assist the city in its overall management of vehicular traffic and the use of city parking spots. Okay? Descent by Bumate. No matter how well-meaning, modest, or long-standing the intrusion into personal effects, the Fourth Amendment commands that all government searches, with some narrow exceptions, be supported by a warrant and individualized suspicion of wrongdoing. That government officials must have reason to suspect law breaking before initiating a search stems directly from our founding generation's aversion to the Crown's officials' abuses of investigative tools to search and seize at will and without explanation. Those encounters helped spark the American Revolution and led to the Fourth Amendment

and its protection from unreasonable searches and seizures, which was meant to forever bar such baseless intrusion into lives and property of others. Undaunted by the constitutional design, the city of San Diego argues its interests in improving traffic congestion, justify dispensing with individualized suspicion. But neither the original understanding of the Fourth Amendment nor Supreme Court precedent permit a policy of indiscriminate searches for such an ordinary government enterprise. While chocking tires may not constitute the greatest affront to personal liberty, our duty is to safeguard against even, quote, stealthy encroachments on the Fourth Amendment." Judge Bress at one point answers this and says, hyperbole doesn't

protect the Fourth Amendment either. And the idea that this is the same reason we fought a revolution against the British is really silly. And they're friends, obviously, and this is sort of a fight among... I thought we fought so that we wouldn't have to spell honor with a U. But I may be wrong. So the point is our very republic hangs in the balance as the Sixth Circuit and the Ninth Circuit fight this out. This Ninth Circuit case did have a cert grant to the Supreme Court and it was denied without any comment. Those cowards at the Supreme Court refusing to answer our society's most pressing questions. Judge, is this a Fourth Amendment search and two, does it fit into the administrative special

needs exception? Who is right? Pick your favorite child at the circuit level. This is unbelievable. You know, when she told me about this an hour ago, she did not tell me that two of my friends were on opposing sides. And now I have... Judge Cathledge is one of the Sixth Circuit judges and I won't even tell you where he was. You know, this is just, this is torture and it's live. So now I have to decide. But you know what's good about this? It's like being a district court judge in real life.

Some of you may be interested in clerking for district court judges. This is serious now. And one of the things that makes district court judge life particularly exciting is that we don't have the time like Pat and Dan to go back into their lofty chambers with their brilliant law clerks, although I do love my law clerks and they are brilliant, to go back and spend weeks and months deciding whether or not this way or that way would be the right answer. Oftentimes, in particular during trial, when the jurors are there and the victim's family is there and the defendant's family is there, we decide the questions right now in front of everyone

and we do the best that we can. So it's, I think, an important lesson in how trial judging works every day in the country. I will say one more thing before I stall to answer the question. I actually argued the Davis case in the 11th Circuit when I was a lawyer, and that was a separate Fourth Amendment doctrine about the extent to which, but related, the extent to which cell site data, which is in the possession of the cell phone companies and is compiled pursuant to what was called a 2703 order by the government, but without a warrant, required a warrant in order to take that data and to then geo-locate where the defendant was on a particular day.

The way that works is, guy commits five robberies, allegedly, and the government gets a cell phone from a cooperator and they go to the cell phone company with this order. The cell phone company forks up all of the towers that that particular cell phone registered with over the course of each of those relevant days. And would you believe it? Every time there's a robbery, John Smith's cell phone happens to be

hitting off the nearest tower to the bank that was robbed. Now, it just so happens that he likes Jimmy John's and he was just eating sandwiches across the street, or he's the bank robber. That's how that works. And the question was whether that was a Fourth Amendment violation. Ultimately, the Supreme Court in Carpenter held that it was a violation using Jones as the standard, which brings us to the story I wanted to tell you, which is that my wife is from San Diego. We go to San Diego every summer, as Sarah knows, and every summer we park our cars. And every summer in La Hoya, I get a ticket because I get my tire chocked and I come back. And sure enough, I've been there

too long. Now, San Diego, they know how to get around. They set their time, their timer, wherever they are, 55 minutes, they go to their car, and they then move the wheel like a half a turn in one direction so that the chalk is buried at the bottom of the wheel, obscured by the street. And I think it works. So I don't know how effective all this is as a practical matter. But when I see it every time after having argued Davis, I say to my wife, sweetie, this is a Fourth Amendment violation. I'm taking this all the way to the Supreme Court. And she says it's not a Fourth Amendment violation. They've been doing this since I was a little girl growing up in San

Diego. And I'm like, which one of us is the federal judge? Well, of course, then to my horror, a few years later, in comes Dan Bress, essentially ruining my marriage, and rules in favor of my wife, which is why if you went into my phone and you looked for Rachel Altman, you wouldn't find her,

because she has changed her name in my phone to the Supreme Court, showing me who's truly boss. Anyway, my take on it is this. If you had asked me before Jones this question, which is the tracker on the car, I would have said that it's not a violation of the fourth amendment because the relevant test at the time Under Katz which you may remember was the phone booth wiretapping case is the reasonable expectation of privacy test and Nobody has I would have said a reasonable expectation of privacy and like what their tire looks like or the location of their car On a given street at a particular day. Why? Because anybody walking by can see the location of the car at any given time. And

nobody subjectively or really objectively would consider that to be private information because they've exposed that particular piece of information to the world and they've done so voluntarily. Obviously, the world changed after Scalia's opinion, Justice Scalia's opinion in Jones. And Justice Scalia, I think, rightfully reminded us of something we, I think, mostly hadn't considered in the jurisprudence, which is that when you went back to the founding and before the 1960s, Katz era decisions, there really wasn't a reasonable expectation of privacy tests. The test was a civil trespass test. Was the government, and it's two elements,

was the government trespassing onto private property? First element, and that's easily met by the tracker. They have placed their property, their hands, and this item, this foreign item, onto your chattel, your car. And second element, did they do it for the purpose of gathering information that would then be used against you in a governmental proceeding? And of course, the answer to that was yes.

The purpose of putting the tracker under your car was to follow your movements all around town so that they could show that you were in fact, not at Jimmy John's, but robbing the bank. And so, um, so I think after Jones, to choose between two of my very favorites, and by the way, Pat Bumate came to Israel with us in March. I love him dearly. No, no, you see, because I'm a fair and even-handed judge.

But Dan, I think, will come to Israel with us, hopefully, next March. And in any event, my initial take on it, Dan, I think, will come to Israel with us hopefully next March. In any event, my initial take on it without having looked at the cases specifically or, and this is important, relied on my law clerks, is that it is a Fourth Amendment violation after Jones. The question of whether it meets the administrative search exception is, of course, I think, a close wrinkle.

It is a very narrow exception, okay? And it's usually an exception, as we talked about earlier, that applies where licenses have been given out by the government and the government through the administrative system wants to check that you are administratively following along with those licenses. There is the sobriety checkpoint example, which is different than maybe more like this one. But I still think it's a limited exception and on the whole, it's a search under the fourth amendment. I don't buy the argument that was made earlier about amendment, I don't buy the argument that was made earlier about it being an automobile search for the very reason I think Sarah pointed out, which is that unlike an automobile search

where you have probable cause to believe that a crime has been committed, at the moment that you chucked Roy Altman's car as he went into the yoga studio with the Supreme Court herself. I had committed no violation and you would have had no information on which to believe that I was going to commit that violation. So I love you Dan Bress and if I had been on your court maybe you could have persuaded me but for now I'm siding with Pat. So I think I join your opinion in full. Adam Senguist That's the first time she's ever said that to me. Lauren Henry I think the big problem or the interesting

distinction is that in the Sixth Circuit, they argued that this is a revenue generating system for the city. And that's why it doesn't meet that narrow exception. And the Ninth Circuit, the whole thing is premised on, well, actually, it's a public safety issue. And that's what makes it way more like a sobriety checkpoint, you know, because more pedestrians will die as we have people circling. Nat, That seems preposterous. Jennifer, It's a little more attenuated than drunk driving, I'll give you that. But I find some of those, like I find the sobriety checkpoint cases to be a little bit concerned. Nat, Very close call in my view.

Yeah. So let's hand a mic to David and David. Is he still here? Oh, hey. Did he convince you? French dissenting. No. So, okay.

The idea that chalking a tire is a trespass blows my mind. I just want to point out that David walked in here holding a Union Jack tote bag. So he is already part of the traitors and he has picked his side. King George and he are in cahoots to violate our American rights. I'm just going to say this is the Union Jack of my ancestral people. And so I are your people now, David. I said ancestral. I thought we respected heritage in this country.

So don't erase my identity, Sarah. So the idea that this is a trespass, that if I take a chalk, I'm not even reaching my arm into the body of the car to place the GPS tracker. I'm taking a piece of chalk and I'm marking on a piece of rubber and I'm moving on that I've just trespassed. What definition of trespass is that? The American one. No, no, no. I'm like looking at a general common law definition of trespass.

Trespass is knowingly entering another owner's property or land without, what am I entering? Yeah, you can trespass on chattel, but I'm not entering anything here. I'm marking under this. Let me ask you a question. Let me imagine that, imagine that someone came to your home, let's say my home as a Jew, and drew a swastika on the door.

Didn't enter the house. Vandalism. Vandalism. Right. Trespass. Well, so if you are drawing something on my door, you're standing on my property. You know what I'm doing when I'm standing in a parking spot? I'm standing on the government's property.

Right. But when you... Let's assume that there's a rule in this particular city that everything from the sidewalk to the front of the home is city land. In Coral Gables, we've got 25 feet. Let's say that the rule extends all the way to the front door of the property. So in fact, I am standing on city land. And maybe this is true in some places in New York, for example, with buildings. And I still standing on the on the public property, I draw onto your door. Have I trespassed onto your property? You vandalize my property.

There's no question. You have not trespassed. I you and I disagree. You've you've definitely trespassed onto the property just You vandalized my property. There's no question. You have not trespassed. I, you and I disagree. You've definitely trespassed onto the property just as you would, well, are you rejecting the premise of Jones? Same thing. Yeah, let's say you took the tracker

and you put it exactly where I chucked. So it wouldn't be a very good tracker because it would be crushed. Right, so it's a- But in my hypothetical I have placed the tracker a magical tracker made by the Mossad perhaps that I've placed right on the back of the wheel right where I have chalked and let's say it's gonna survive because it's made of rubber or something

same scenario. I just that the trespass. Well, Jones says that would be a trespass. I know. You just don't like Justice Scalia. I take a backseat to no one in my respect for Justice Scalia, but as we all know from Employment Division V Smith, Justice Scalia can get a few things wrong every now and then. What about Chevron? Justice Scalia had Chevron wrong for a while until later on in his life he said, you know, but the concept of this of this

is trespass is where I'm getting hung up then that that that's where this hangs me up this isn't even a permanent marking you know I could understand if someone took a piece of took yellow spray paint then I've you vandalized the car actually wait but does the permanence of it make it more of a trespass permanence makes it vandalism so I can sue the government for actually- Ignore vandalism. Does the permanence of the mark, the spray paint, make it more of a trespass? Definitely not, right?

No, no, no. Trespass is in the act itself. It's like theft. Yeah. It happens at a particular moment. The idea that I'm standing on public land, writing a temporary, putting a mark on an object that is on public land, and I am a public servant doing that at the same time, that that is trespass? I'm having difficulty. Where's the common law comparator? Where's a situation where I can file an action against you, Sarah, for trespass if you chalk my tire?

Yeah, I think when I leave literature at your door, you could file an action if I stuck it in your door. I think that would be trespass. But if you're on my property, you've come on- I don't know come on his rules like it's the door is your property but the thing right in front of the door is city property I think that's trespass I don't think you have much in damages but that that's common law just person to person trespass but with that we're gonna leave David in his wrongness look I think my ringing dissent my ringing

dissent will stand the test of time. To be clear, every judge is against you on this one because everyone has said that it is trespassing a Fourth Amendment violation. So the cheese stands alone, David, but I respect your independence. What's the feeling of fall? It's finally catching the sunrise. And not because you woke up early. No, you woke up nice and late.

And you know what? The sun waited. Then you went and got what you loved from Starbucks. The new pecan crunch oat latte and new baked apple croissant. And enjoyed that warm apple filling and those nutty flavors with rich brown buttery notes while the sun rose. Just for you. That's the feeling of fall and it's only at Starbucks.

Growth is essential for every entrepreneur. At BDC, we get that. And the businesses we support grow at double the average rate, accelerating the pace. We're on it. BDC, financing, advising, know-how. All right, let's turn to questions from you guys, and I'll repeat your questions after you say it.

Okay, so the question is, yeah, but what about Alito's concurrence? And he's gotten at something because unfortunately, it turns out that Duke just did some symposium on Verdun versus San Diego, and we've walked into the wrong room to sound like the experts on this. And he's right, Scalia in his majority

opinion in Jones is talking about the physical trespass of the tracker, but Alito in his concurrence is making a very different point about the expectation of privacy and that yes one expects the vehicle location and you know the not putting stuff on my car is far more of that sort of originalist view of privacy. And so then that distinction that didn't really matter too much in Jones gets a lot more meaningful as you move on to some of these other cases as the distinction between the physical trespass and the privacy perhaps diverge. So does it matter that Alito is still on the court in Scalia 8 when we're applying Jones?

Adam I suppose it does, except that just wasn't the holding of the majority opinion in Jones. His view, as you correctly have noted, is if we were going to go back to like an 18th century equivalent, you'd have the constable, as he I think calls it in his opinion, sitting in the back of your carriage, which was a thing. And imagine like the constable is sitting there secreting himself in the undercarriage and he's watching everywhere that you go. But that's not realistic for a 30-day period because he'd have to like eat and sleep and you know, presumably take his kids to school. So, his view is the real violation here is the permanence of the surveillance that is

such an infringement on the privacy of where you choose to go on a daily basis. But obviously the holding in Jones, which is binding law for lowly federal judges like me is the trespass question, which as I take it, none of the judges who reviewed it disagree that it was a trespass. But David being the John Marshall Harlan of this podcast will be vindicated. I'll take that characterization. Will be vindicated in due course. You just paid me a highest compliment, Judge. I'll take that.

I hope that answered your question. You are allowed to ask questions that are not about talking, though I'll be disappointed. And actually, can I ask a quick question of you? Since multiple clerkships are all the rage despite my raging against them, what order do you think is best for potential multiple clerks? Circuit district or district circuit? Again, something I feel very passionately about. Well, we have done it both ways. Clerks have gone from my court to the circuit court and vice versa. I think that the circuit court clerkship first makes more sense, and here's why.

The circuit court clerkship, of course, is wonderful and prestigious, and the judges are much, much smarter than I am. But the thing is, it's a lot more like law school. So I clerked on the 11th Circuit. So you get the briefs from the appellant, the appellee, the reply brief, you review them, you look at the record below, you go onto Westlaw, never LexisNexis. I'm going to be sued for defamation. And then you write a bench memo if your judge wants that, which functions a lot like things you would write in law school. And then you prepare your judge with questions,

maybe. And at the end, if your judge is writing in that case, the majority or the dissenting opinion, you would basically transform the bench memo that you originally composed into a kind of opinion. Okay? So you're all nodding because that sounds like a lot like what you do all the time here at Duke Law School. The district court clerkship is very different than that. Of course, that's one component of the District Court clerkship is very different than that. Of course, that's one component of the District Court clerkship. All of the legal questions, obviously, that are going to

be heard at the appellate level are mostly decided in the first instance by us. Otherwise, they're forfeited and can't be raised again. So that part of the job does happen in the District Court. But there are two other components of the job that you get in the district court that you don't really prepare for all that well in law school and that you kind of have to see for a year to believe. And those two are, first of all, the fact-finding of the court, which is a huge part of our responsibility. We have bench trials, we have suppression hearings, we have sentencing, we have injunction hearings, we have receivership proceedings and bankruptcy, for example. And I'm just scratching the surface, right?

All the time on an almost daily basis, we are in court watching witnesses testify, reading documentary evidence and making factual findings that the law clerks are intimately involved with. Oh, judge, there was a deposition from six years ago where somebody said such and such and doesn't that contradict what was said in court today, et cetera. Okay. A sort of, I think, very detail oriented view of the actual way in which cases and controversies are resolved at the trial court level. And law clerks play a big, big role in that.

Obviously, the judge is the only one who ultimately says, I believed him or I didn't believe him. There is going to be irreparable harm for an injunction or there really isn't, and a variety of other things. But ultimately, when we're making factual findings, that's a different skill set that you're not really using when you're on the appellate court. The last part is there's a whole admin, there's a whole administrative component to the job in the district court that's really, really important. Look, I have 200 cases, let's say, at any given time.

There's three or four law clerks, depending on how the court splits it. So each law clerk has 50 to 60 cases on his or her docket. Now those cases each are at a different point in their lifespan. They're at the complaint stage or the mission motion to dismiss stage, or they're at motion for judgment on the pleadings, or in the discovery world,

or they're an expert discovery, or summary judgment, or getting ready for trial. They're in daubart, they're in post trial motions. At each phase, there are deadlines that need to be applied to the lawyers. And those deadlines need to be strictly followed. Why? Because if we ignore those deadlines, then our caseload would balloon to a thousand cases and nobody would get any justice. Okay?

So the law clerks have to create very meticulous spreadsheets for themselves. How do you keep track of 30 different deadlines for 60 different cases at once? You do it by being very, very organized and meticulous about your spreadsheets, having a tickler alert system, for example. Today the defendant in Jones versus Smith had to file his response to the whatever it was, the motion for default judgment and he hasn't. So we either issue an order to show cause or we start default judgment proceedings.

All of these things require, I think, a great deal of maturity, autonomy, and accountability from the law clerk. Not to suggest that that's not true at the appellate level, but I do think it's very, very helpful for those two components to be at the appellate level. But I do think it's very, very helpful for those two components to be at the appellate court for a year to see how the district court record looks on appeal. What does the fact-finding function look like before you dive into it and do it, if that makes sense? So this is a question from a non-law student who runs the Third Amendment Appreciation

Club here in the research triangle. But he's asking a really great question, which is part of that distinction, that law of distinction we already make here in our US Constitution under the Third Amendment, which allows citizens to refuse to have soldiers putting munitions in their house, something that the civilians in Gaza do not have. Would it help to have advocated for a Third Amendment type requirement to like the Hague conventions, etc., or some part of civilian protection and that being part of it? Obviously, I have a good Third Amendment joke, first of all, which I'd like to share with

you now. Wait, obviously you have a good Third Amendment. What's obvious about that? If you knew me, you would know that I have a good Third Amendment joke. Here's what happened. When I first became an AUSA, there was a great criminal defense lawyer named Jason Gray. I hope he's listening. Wonderful lawyer.

And his response to one of his clients' 2255s, which is a habeas petition for ineffective assistance of counsel, was circulated among lawyers in the Southern District of Florida. The motion by the former client had alleged that Jason had violated his third, fifth, and sixth amendment rights. And so Jason wrote a 20-page brief to the court about how he had not violated his right to effective counsel, how his rights to, you know, under Miranda were not violated, and his rights to effective counsel to the Sixth Amendment were not violated. And in a footnote at the very end, you know, under Miranda were not violated and his rights to effective counsel under the Sixth Amendment were not violated. And in a footnote at the very end, he wrote, and as to the claim under the Third Amendment,

I certainly never quartered British soldiers in his home. It's a great question. And I think the law of war, David can correct me if I'm wrong, already incorporates that. I mean, it's not called the Third Amendment, but the law of distinction obviously means, I don't think there's really much dispute about this among law of war lawyers. The law of distinction obviously means that if you are a militant, you cannot take refuge in a civilian structure, whether that be a home, an apartment building, a mosque, a hospital, or a school. And there's very little dispute, unless I guess you're trolling TikTok or at

Columbia University, that Hamas is constantly, purposefully, and repeatedly violating the law of distinction by engaging in precisely that kind of content. Yeah. The only modification I would say to that is if it's peacetime and you have soldiers staying at somebody's house, things like that, that what we're talking about when we're talking about distinction is applying in an active time of armed conflict. And the law is about, the international law of armed conflict is about as crystal clear on this as it could be on about anything. And this is one thing that I think a lot of people

who are looking at the war from a distance forget. And there's this interesting argument that comes up when you, that I encountered when I was in Iraq and I was responding to say critics who believe it or not, you would get emails from critics of the war in Iraq while you're serving there. And occasionally when I would have time, I would get emails from critics of the war in Iraq while you're serving there. And occasionally when I would have time, I would answer. And one of the interesting critics we got was, wait a minute, how could you possibly expect these militants to dress in uniforms

to mark their vehicles? They would have no chance against us. Yes, that's correct. That is correct. But one of the reasons why the laws of war are drafted and crafted the way they are crafted is to prevent futile war. Okay, so for example, this idea of not surrendering when resistance is hopeless. There are many people would argue that is a law of war violation, because essentially what you're doing is you're inflicting futile pain and suffering on people if there's no military advantage to be gained.

And so what's happening is the Hamas, Hezbollah, when I was in Iraq, al-Qaeda in Iraq, tried to take this sort of underdog argument that said, we can't possibly stand against the American military if we wear uniforms. So we're going to blend in with the civilian population. This is what we get to do. No, no, no, no, no. It's one of the ways in which the laws of war are designed to prevent armed conflict, is to prevent futile killing, futile attacks. And so you don't get a mulligan on the laws of arm conflict

when you're the weaker combatant. All that that does, if you take that mindset, the mindset that a lot of people have when they protest, that when they're protesting the Israeli actions and sympathetic to Hamas, what you're doing when you take a mindset sympathetic to that is you are just incentivizing the use of civilians as human shields. Yeah, I've got a follow up on that one.

Are you telling me that William Travis, James Bowie, Davy Crockett, and the other heroes of the Texas Revolution violated the laws of war by not surrendering at the Alamo? The issue is military advantage. They knew they were going to die there. No, no, no. So the question is that you can do a delaying action, for example, that is designed to, we're going to sacrifice our lives in a delaying action that is designed to give an opposing... Okay, it has to be the overall war, not a single...

Right, exactly. Okay, we can remain friends and we remember it. A lot of folks would argue that the delaying action at the Alamo allowed Sam Houston the time that he needed to gather his forces for the battle of, now am I gonna pronounce it, San Jacinto? Oh my God, no. Oh. San Jacinto. Jacinto?

Yeah. And it's, I mean, I used to go there every year and pick up litter to honor those who fought for our Texas independence for 10 years before we joined the union, left the union. But this is why I find it really funny. I don't think most people understand what Six Flags theme park is actually named after. It's the Six Flags that have flown over the Republic of Texas, including the

Republic of Texas flag. So that's your fun fact for today for my non Texans. You didn't know that? No. So Six Flags was initially just a Texas theme park, but what I find sort of interesting is one of those Six Flags is the Confederate flag. So Six Flags can't fly the Six Flags anywhere. That would be kind of a cultural no-no.

But yeah, that's how it started. First of all, I think what David said is very important. And I really haven't heard it said that way. So although I blasphemed you for your dissent in the chalking case, I really think that was very well put. I'll add one thing about moral hazards and incentives. We deal with this in the law all the time. We never say that if you are bad, you get punished. But if you

are doubly, triply bad, you get away with it. Right? That doesn't seem to make any sense. So I'll give you an example that happens in the law all the time. You will see this when you go get fancy clerkships. A plaintiff has his money stolen by a fraudster, alleged fraudster. He hires a plaintiff's lawyer. He sues the defendant in civil court. And one day, he'll get redressed. He gets discovery. He'll have his day in court. He'll get a trial or maybe he'll settle. He'll get some money back, right? Now imagine a plaintiff who is defrauded by someone who's doubly bad. He doesn't just steal from the one plaintiff, he steals from hundreds of plaintiffs. Now that guy's not just gonna get sued by one plaintiff's lawyer, that guy's gonna get

indicted by the US Attorney's Office. And now, little old plaintiff's lawyer's gonna come with his request for admission and his request for a deposition and his trial date, and the criminal defense lawyers are gonna come in to a federal judge like me and they're gonna say, no, no, no, no, no, no. We can't have civil discovery. He's got a fifth amendment right against self-incrimination now. He can't be deposed. He can't answer requests for admission or interrogators. He can't have a trial date. Let's continue this whole thing for five years until all the appeals are done. This is real.

You guys are laughing, but this happens all the time. Let's continue it for five years until he's convicted, he's sentenced, the appeals are all done, and then we'll bring everybody back and figure out the civil case. What happens? Witnesses die, documents are lost. People move to like Vietnam. Right? Justice delayed. Is justice denied? Right? We never say

in the law, judges like me we're very sensitive to that. We don't say if you're bad you get punished. But if you're doubly bad, you get away with it. But that's precisely what the question implies we should be doing with Hamas Hamas knows that if they kill as they did on October

7 1,200 innocent civilians in Israel then they will be killed you will be pushed so Hamas says let me be doubly bad. I'll kill Israeli civilians, and then I will embed myself within my own civilian population, a double war crime, and then I get away with it. Then it will be Israel's fault, not my fault. We shouldn't say in the law or in the law of war that if you're bad, you get punished, But if you're doubly bad, you get away with it. Lauren Henry The question is, sentencing discretion. What you think? Mike A. Johnson Honestly, I'm sorry for the podcast listeners,

because it was a very, very astute question. But the question has to do with Booker and a very astute question. But the question has to do with Booker and the Supreme Court's decision to find that when a district court judge applies mandatory guideline regimes and then enhances those guideline regimes according to factors that are not proven to a jury beyond a reasonable doubt, but instead are found by the district court judge at sentencing by a preponderance of the evidence that that marginal increase, sometimes marginal, sometimes not in the mandatory sentencing guidelines you get based on, for example, let's make it real. It's a bank, okay?

And your guidelines are 17, 18, 17 months. And now you find the firearm. The firearm was never charged, was never proven to the jury, was never found beyond a reasonable doubt. Now the judge, I at sentencing, find with hearsay, because I let hearsay in at sentencing, and without a jury, and by a preponderance of the evidence that a firearm was used in connection with the robbery, and it goes from 70 to 87 months, let's say it goes up to, I don't know, 97 to 121, which is another guideline range.

That increase, if it's mandatory, violates the Sixth Amendment's right to a jury trial. That's basically the holding. And the question is, how do judges feel about that change in added discretion and sentencing. And it's a very good question because sentencing is a very complicated thing, okay? We talk about where is it that consequences, we get asked this at our Senate hearings, where do consequences matter to a district court judge? And we like to say, okay, well, equity and consequences, they shouldn't matter. You should be applying the law to the facts. But there really are two places where consequences matter a great deal. One is when we sit in equity in civil

cases, sometimes that's an admiralty, for example, that's very common in Florida. And then secondly, at sentencing, because at sentencing, we really are sentencing the whole person for the things he has done here and over the course of his entire life, and for some predictive model of what he will be like and do in his future life. And that second question also factors in a third, which is, do we need to protect the community from future crimes of this person? And I, for one, feel very comfortable with this regime, which is a regime of a great deal of discretion.

Just to understand the history a little bit, it used to be the case that the guidelines were passed and made mandatory, just like mandatory minimums, for example, because there was a fear that similarly situated defendants were being treated very differently under the old regime. So the old regime, let's say a bank robbery, the statute says the penalty is zero to 20 years. And the fear was you might get some judges who would sentence, for example, a black bank robber on similar facts to 20 years and a white bank robber on similar facts to 10 years. And I'm not saying that that did or didn't happen in particular situations. I'm saying that was a real concern

that was animating a lot of the movement behind the sentencing guidelines, which ultimately get passed in the 1980s to remove a lot of that discretion and to ensure that similarly situated defendants are being treated equally and fairly. Obviously, after 2005, part of the concern became, well, the sentences are too high and district court judges don't have the discretion in individual cases to say, you know what, the guidelines put you at 97, but you have done these amazing things. You were tricked by your boyfriend. You were, you know, all these other factors that maybe are mitigating factors that should be considered and we were not allowed to consider

them. And so, I think if you went around the country and you asked district court judges, and I wouldn't purport to speak for all of them, but I think a lot of them would say to you, we like the discretion to be able to fashion an appropriate individualized sentence that punishes this person for the things he has done and for the potential cause he might do in the future. But that is a complicated thing to say because where do we put, this is what gets really complicated, where do we put a healthcare fraudster,

a nurse in a healthcare facility, versus a bank robber, versus a Ponzi schemer, versus someone who watches child pornography in his mother's basement. You see, these are all different crimes. They're subject to different levels of moral and sentencing opprobrium. How do we treat them? And if you don't have a system where we have a baseline for everyone, then you can easily

fall into a system, not just where Judge French and Judge Altman are sentencing the exact same person down the hall from each other to grossly incongruent sentences, which by the way happens. And if we're talking about unfairness in the criminal justice system, that is one of the grossest unfairnesses in the criminal justice system that you could just by the luck of the draw of getting Judge Smith versus Judge Altman versus Judge Jones, you could get a totally different sentence. But it's more egregious than that. Because if we don't have an adequate baseline, then how does a judge, fortunately, I've only

been around for five years, but imagine that I'd been around for 30 years. How do I say to myself, unless I have a good record keeping system, but imagine that I'd been around for 30 years. How do I say to myself, unless I have a good record-keeping system and actually I really want to commend the judiciary for having started to compile these statistics and the Sentencing Commission is doing a wonderful job with it? Before that though, how do we say for Judge Altman that the sentence I'm going to impose on this fraudster who stole 10 million dollars and had a criminal history category of two is fair if it's totally different than a sentence I imposed five years ago on a fraudster, Medicare fraudster who stole 10 million dollars and had a criminal history category of two simply by virtue of the fact that I just felt differently today

than I did a few years ago. That's unfair too, isn't it? So these are very complicated questions. I haven't answered them at all for you and I apologize for that, but these are the equities that lie on both sides of that issue. And with that, thank you all so much for having us here today.

It's been really fun. Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh, oh,