Advisory Opinions - Supreme Court Showdowns and October Surprises

Episode Date: October 8, 2024

Live from UNC (we can say that, right? We’re allowed here?), Sarah and David discuss the latest round of Supreme Court cert grants and the case they’re most looking forward to hearing. Oh, and Donald Trump’s immunity comes up. Again. The Agenda: —A Texas nuclear case —DNA test before death row —Mexico sues gun manufacturers —Did a woman lose out on jobs because she's straight? —Needless deadly force? —Elie Honig on Jack Smith's October surprise —David feels bad for eating octopi 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

Take back your free time with PC Express Online Grocery Delivery and Pickup. Get in-store promos, PC Optimum Points, and more free time. And still get groceries. Shop now at pcexpress.ca. Ready? I was born ready. Welcome to Advisory Opinions, I'm Sarah Isger and special guest David French has made it all the way to the University of North Carolina to join me. Welcome!

It's so great to be here and I can't believe that this is my first time ever to North Carolina, not North Carolina, the state Chapel Hill for UNC. And we're hitting two of Kentucky's most hated basketball rivals in one day because growing up in Kentucky, we were always angry at UNC because they were closest to us along with Kansas on most total basketball wins. And then Duke was responsible for the abomination that causes desolation as foretold in the book of Daniel as a sign of the apocalypse when Christian Leitner hit that shot in 1992. And I'm convinced that's when everything started to go bad. Really?

In American politics. For the country. For the country. Yeah. Yeah, exactly. So. Well, you know, husband of the pod gave me lots of trolling things to say at Duke to like just splice into conversation. So I'm not going to do any of those. You're not in none of them? No. Okay.

But today we are going to walk through some of the cert grants from the long conference. We've got six of those to talk about of varying levels of interest. And we're going to do it the way I like doing it, which is, you know, vegetables first dessert at the end. We need to talk about special counsel, Jack Smith's latest filing and the Trump election pace. And finally, the long awaited conversation about tire chocking. Is it a Fourth Amendment

violation? We are ready. We are prepared to finally dive into that. So David, let's start with some of these cert grants. I've just got a few quick ones to get out of the way. One, we had a couple cases on the Hobbs Act. This is about who can bring those administrative law challenges. So if last term was the administrative law term with Chevron being overturned in Loper Bright and when administrative law judges have authority, this case that I found interesting is on, I mean, it's on nuclear power, but it's not. It's really on who gets to seek review of final agency judgment. It has to be someone who participated in the administrative process, is commenting in the

notice and comment period, participating in the administrative process, is asking to intervene and then being denied participating in the administrative process. Just another little interesting ad law case to keep in mind because it will either sort of throw open those doors to a lot more regulatory challenges or it'll keep them pretty tight. In this case, Texas, the state is saying that they commented during the notice and comment period so therefore they should be able to bring this challenge. Okay.

Next up, death penalty case. This is interestingly on sort of a standing issue. The person in this case was part of a three man crew that robbed and killed a woman in her home, stabbing her to death with a screwdriver. He says that he was outside the home for the robbery and never went inside the home and did not know that they were going to kill her. He thought the plan was to lure her outside, you know, hold her down or something and go inside and take

the money. He wants now, he's been sentenced to death, he wants DNA testing on various things that were found in the home. Even though, let's assume the best case scenario that none of the DNA tests come back with his DNA on it, that doesn't really matter. Because even if he never went in the home, if he was part of the crew and knew the plan outside the home, he would still be death penalty eligible. And of course, lack of DNA evidence does it prove that he wasn't in the home. So an interesting death penalty case, interesting that they took it. This is sort of a bit of a Texas specific rule in part about the standing question of whether he has standing to bring a challenge. So keep an eye on that one.

Okay. Next up is another criminal case. I just thought this was a charming fact pattern. This is, you know, the Daly family in Chicago, like mayors, governors all the way down, and like Chicago known for its various families going to jail. So here we have another one. This guy, Patrick Daley Thompson, is the grandson of Richard Daley, that Chicago mayor in the 50s and 60s, and the nephew of the other Richard Daley, mayor in the 90s and 2010s. He was elected to city council in 2015. Thank you to SCOTUSblog for writing this up. In 2011, Thompson borrowed $110,000 from Washington Federal Bank for savings, a small bank in

Chicago's Bridgeport neighborhood where the Daley family made its name. Thompson later took out two additional loans, totaling just under $100,000 for which he did not sign any paperwork. Thompson made only one payment on any of his loans paying $389.58 in 2012. The bank did not ask him to pay anything else. Shockingly, this bank shut down in 2017 in the wake of an embezzlement scheme by the bank's executive.

Thompson was later charged with violating a federal law that makes it a crime to make a false statement to influence financial institutions and federal agencies. Okay, so basically after this bank shuts down, the new ownership comes in and they see this loan on the book. So they call him and they're like, hey, you owe us whatever it is, $289,000. During the recorded phone call, Thompson acted as though he had no recollection of the balance. He stated that, quote, the numbers that you've sent me show that I have a loan for $269,000. I borrowed $100,000.

I signed a promissory note for $100,000. I've never received an invoice. I have no idea where the 269 number comes from because this doesn't match with anything that I have. He was shocked and very perplexed to see an invoice that was significantly, quote, significantly higher and much more than remotely what we were talking about. Quote, I know, I mean,

I borrowed the money, I owe the money, but I borrowed a 110, I think it was $110,000. I want to quickly resolve all of this and what I owe. Then he said, $269,000, $120.58. I dispute that. Okay. So he's claiming he was convicted. He served four months in prison. On appeal, he's saying that his statements were not false. They were just really, really misleading because he did borrow $110,000. So when he said, I borrowed $100,000, I signed a promissory note for $100,000,

he didn't say he didn't also later borrow another $100,000. That would have been false. Now, what's interesting as a Supreme Court case is normally there's not usually a fact dispute on this type of thing, but here there is kind of, because if you note, he also said, I dispute that $269,000, which would seem false. I'm shocked that seems false. Anyway, the difference between false and misleading in federal criminal law, I just think will be fun. And could we see a little Gorsuch-Lenity that misleading actually is like, as long as you sort of pass this very, what one else think is what lawyering actually is,

where you can like walk right up to the line and be super duper, but not technically false. I do wonder about that, because if you listen to his words, he says things like, it's not what I have. Well, he had no documents for some of the loans, so he would have nothing, right? So he's actually correct when he says, it's not what I have. So it's in this category of true but misleading. And is that illegal? And I'm very curious about where Gorsuch comes down on this because, you know, as you were

saying though, however, there are some elements of it that just seem plain false. Yeah. Okay. Can I give you my prediction right now based on very, very little, except for reading some of the stuff? We haven't even had oral argument, obviously. I think it's remanded. Yes, there's a difference between false and misleading, but this may well have been false.

Right. Now, I think that makes sense. Misleading alone will not suffice under the statute. Yeah. So are you onto the dessert yet? Mexico guns? Is that dessert? Yeah, it's getting there. Okay. It's getting there. Yeah.

Like, yeah, you know, they give you the little sorbet or something before the big dessert. This is the palate cleanser. Yeah, okay. A tasty little palate cleanser. So this case has gotten some of the most attention coming out of the long conference, Sir Grants. This is where Mexico sues seven gun manufacturers for their role in guns being used by Mexican drug cartels. Almost all guns are illegal in Mexico. There's only one place to buy guns

legally in Mexico. And I believe they what? Issue like something like 50 permits a year or something like that. So in theory, there should be no guns in Mexico. And obviously that's not true. So Mexico sues these seven drug manufacturers. And you know what, David? They happened to pick Massachusetts as where they brought that lawsuit. Shocking. I know. I was shocked. Okay. So now let's get into some statutory law.

Congress passed the Protection of Lawful Commerce in Arms Act, the PLCAA, in 2005. That protects gun companies from some liability for harm solely caused by the unlawful misuse of guns in the United States, resulting in injury in the United States. But there's exceptions. One of those exceptions, known as the predicate exception, exempts from the PLCAA's clutches an action in which a manufacturer or seller of a qualified product knowingly violated a state or federal statute applicable to the sale or marketing of the

product, and the violation was a proximate cause of the harm for which relief is sought. So we're in front of a bunch of law students and they were able to issue spot all of that in a second, but I'll break it down for the listeners. One, you had to knowingly violate a state or federal statute that deals with sale or marketing. And that violation has to be the proximate cause of the harm. I at this moment still have Paul's graph nightmares about proximate and but for causation. And I'm pretty sure that I still don't know. It was definitely on the exam.

And I mean, David, do you feel like you've got a good proximate versus but for causation? Nobody knows. Nobody knows. Nobody knows. It's like, I don't know if y'all, did you see Saturday Night Live? Yes, the Nate Bargatze.

Nate Bargatze, what's in a hot dog? Nobody knows. Nobody knows. Okay, so that's what this case is really gonna pick apart. Mexico says that by deliberately facilitating the unlawful trafficking of their guns into Mexico, defendants aid and abet violations of various state and federal statutes that prohibit selling guns without a license, exporting guns without a license, and selling to straw

purchasers. The gun manufacturers argue that Mexico has at best alleged defendants knowing indifference to the downstream illegal trafficking of their guns in New Mexico, they argue that because defendants themselves are not alleged to participate in this wrongful conduct at all, much less with any plausible intent of facilitating it, they cannot be deemed accomplices. Now, I just want to read, sorry, oh, this is still from the opinion from the first circuit that held that the case could move forward. Notionally, imagine a dealer, a distributor, and a manufacturer standing abreast one another at the border.

The manufacturer hands the distributor 10 guns, the distributor hands them to the dealer, and the dealer then hands them to a group of 10 customers, among whom there are eight well-known agents of the cartel acting as straw purchasers. Rather than refusing to fill an order for 10 more guns by that dealer, the manufacturer tweaks its advertisements to better appeal to the cartel acting as straw purchasers. Rather than refusing to fill an order for 10 more guns by that dealer, the manufacturer tweaks its advertisements to better appeal to the cartel, supplies them more guns, and so on over and over again. We think it clear that by passing along guns, knowing that the purchasers include unlawful buyers, and making design and marketing decisions

targeted towards those exact individuals, the manufacturer is aiding and abetting illegal sales. This scenario is in substance fairly analogous to what Mexico alleges. Okay, so that's basically the best case for upholding the first circuit decision that the case should be able to move forward. Mexico should be able to sue for billions the gun manufacturers. Here's the cert petition that was granted by the court in its summary of what this case is.

To be clear, Mexico's complaint does not include any ground breaking factual revelations, nor does it uncover any secret dealings between the cartels and America's firearm companies. Instead, Mexico's suit challenges how the American firearms industry has openly operated in broad daylight for years. It faults the defendants for producing common firearms like the AR-15, for allowing their products to hold more than 10 rounds, for failing to restrict the purchase of firearms by regular citizens, and for refusing to go beyond what American law already requires for the safe production and sale of firearms. At bottom, this

case reduces to a clash of national values. Mexico makes no secret that it abhors this country's approach to firearms and that it wants to use the American court system to impose domestic gun controls on the United States that the American people themselves would never accept through the ordinary political process. But even though that grievance is placed under the lettering of a complaint and was filed on a docket, it has no basis in law. Yeah. I think this case is likely to be 9-0 against Mexico, unless you're going to be able to identify some specific ways in which drug, gun sellers have knowingly sold to straw purchasers

in a way that violates the law, violates existing federal law, really criminal law in that circumstance, just simply selling to people who pass background checks and then provide, then they, the person you sell to, breaks the law by providing the guns to somebody else. That's not gonna cut it. cut it. The way I would put it is imagine you have, and we talked about this before, imagine you're suing Ford because Ford is selling large numbers of expeditions or explorers on the border and traffickers like to use expeditions and explorers. Does that mean Ford is then liable for what

happens in the context of trafficking? No, no. Not unless it is actually doing something where it's, say, reaching out to and it's the Medellin cartel still exists. Like, Mr. Medellin, we've got a deal for you. 50 for the price of 49, Explorers. Just selling guns in the regular course of business is not going to be held to be unlawful. But in this case, you know, it's actually the two layers because the manufacturer sells

legally to the distributor, the distributor sells legally to the dealer. The dealer may even then be selling legally to someone who is then illegally moving them across the border, or they may be selling them illegally to a straw purchaser, for instance. But it's pretty attenuated back to the manufacturer. Now, the case that's interesting, and I think it's from the late 40s, maybe early 50s, is a drug case about morphine, where this one pharmacy is selling all sorts of morphine, way more than any pharmacy in the whole area.

And lo and behold, they weren't doing it legally. And so that's the case that this all kind of hangs on. The problem with that is that it was very clear that that was an outlier. They couldn't be doing that legally. In this case where you're dealing with about 2% of the guns moving into illegal hands and that's spread out across the country, it's much different than the single pharmacy with the spike in morphine sales. And I really take the point on just the idea that you can allow foreign countries

to try to change our laws through a lawsuit. So even though, I mean, I've talked about my desire for all sorts of different gun control-esque measures in this country, this ain't the way I'm willing to do it to allow a foreign country to tell us how to do it. And especially when there are examples of like advertising to the drug cartels is like really routine advertisement. It's not like they have, you know, dudes loading crates into the back of a truck and are like, you too can use this gun for your protecting products needs. That's, that It's really basic normal advertising. That yeah, like, you know, it'll show guys running around like playing stupid stuff. Meal Team Six.

Yeah. Yeah, it really is normal gun advertising now for AR-15s and whatnot really does appeal to what's called the tactical lifestyle. Which let's let me put it how can I put the tactical lifestyle? So the tactical lifestyle is you're dressing as close to a seal as you can without like being asked to leave places. So you're you're you're wearing tactical pants, you've got tactical shirts that are specifically designed to carry your you've got I mean you're wearing tactical pants, you've got tactical shirts that are specifically designed to carry, you're literally looking like some version of a member of the military.

And they advertise to that. They advertise to that and they advertise to customize. But that's to lawful customers. That's to lawful, absolutely to lawful customers. And so this is actually part of the issue in the Sandy Hook case was the advertising because the the issue in the Sandy Hook case was the advertising, because the weapons used in the Sandy Hook case were advertised quite specifically for this very aggressive tactical lifestyle. And so the question was, were you actually

encouraging violent use of the weapon through this aggressive advertisement towards aimed at folks who like that tactical look, that tactical lifestyle. But Mexico is not going to be able to get this done under existing precedent, just not happening. Okay. And then we then have, even if you, even if they granted on all of that and were like, maybe the proximate cause problem is real. Is the proximate cause the drug dealers selling to the distributorsimate cause the drug dealers selling to the distributors who sell to the dealers

and then it gets in the hand of illegal dealers who move it across the border? Is that what's causing the drug, gang, and cartel violence in Mexico? Or is it the corruption of the Mexican government and a total inability to crack down on drug cartels and gang violence, which has been the case for a very long time.

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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 election and after the next one. I believe that politics is supposed to serve the well-lived life, not the other way around.

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That is FurthermoreTim 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 get in your email box every week. Okay, next up, ooh, a reverse discrimination case that David Wee talked about

when the circuit decision came out. It's Sixth Circuit with a concurrence by Judge Kathledge. I'll read you the facts and then part of his concurrence. Ames is a heterosexual woman. She has worked at the Ohio Department of Youth Services since 2004, beginning as an executive secretary before earning several promotions and eventually becoming a program administrator. In 2017, she started reporting to Gina Trim, a gay woman. In 2019, Aims applied for promotion to bureau chief. She did not receive that promotion. Instead, the department offered it to a gay woman who, and this is from her cert petition, one, started after Aims, two, did not originally apply for the

promotion, and three, lacked the minimum qualifications for the job, thus requiring the department to circumvent its own internal procedures to hire her. Shortly thereafter, the department removed Ames from her position as program administrator, giving her the choice between a demotion or termination. In her place, the department hired a gay man as the new program administrator, despite that individual, like the woman who had obtained the bureau chief position over Ames, also being neither qualified nor having formally applied for the role. Okay, so this is an employment discrimination case. But in some circuits, if you are in the majority who has been discriminated against, you have an additional burden. So here's Kethledge.

I join the court's opinion in full, but right to express my disagreement with the rule that we must apply here. Title VII of the Civil Rights Act of 1964 bars employment discrimination against any individual. Itself a phrase that is entirely clear, because of such individuals race, color, religion, sex, or national origin.

Thus, to state the obvious, the statute bars discrimination against any individual on the ground specified therein. Yet our court and some others have construed this same provision to impose different burdens on different plaintiffs based on their membership in different demographic groups. Specifically, to establish a prima facie case when,

as in most cases, the plaintiff relies upon indirect evidence of discrimination, members of majority groups must make a showing that other plaintiffs need not make. Namely, they must show, quote, background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority. The fact that they took this case, David, and that you have Judge Kethledge doing a little hailing a cab in a concurrence. Like, hey, over here, we need some circuit precedent reversed. I have to follow it, but this is dumb. We just use the example of racial discrimination cases.

So in a case about whether you were discriminated on the basis of your race, we are going to use a racially discriminatory test depending on the basis of your race. Yeah, I mean, just to put this in the plainest English possible here, if you are straight in a majority straight country or majority straight workplace, et cetera,

and you're alleging that you were discriminated against on the basis of your majority sexual orientation, you have to make more of a showing than if you're gay and you're saying, because I'm a member of the minority. So based on your sexual orientation here in this circumstance, you have to have more of a showing. So similar to you if you- You're discriminated against in your discrimination case.

Exactly. So if you're white and you're alleging you're discriminated against, you have to make more of a showing than if you were black. And that's not going to fly under the court's current jurisprudence. You're not going to say that different races, different groups, all equally protected by the text of Title VII, they're not going to have to make different kinds of showings based on their race. I feel like I'm taking crazy pills that this is actually the existing standard. Well, and this case actually highlights why I can see that courts added that standard because it's

judicial efficiency. They want to knock out a bunch of these cases and not make them go to trial when like prima facie, this is not a case of employment discrimination. And look, I'll tell you having read the briefing in this case, I don't think this is a case of employment discrimination. I don't think she was discriminated on the basis of her sexual orientation, even in the pleading most favorable to her. And so yes, this will be a waste in some sense of judicial resources because she can now

go to trial, lose, and we're all worse off. And the problem is, of course, it then incentivizes employers to have to settle a bunch of these cases so that as long as you file some lawsuit with some allegation, now whether you're in the minority or the majority, everyone can file an employment discrimination lawsuit and maybe get that settlement check. Yeah, that's not great. We don't discriminate against people. If the rule is you want to make it harder to file discrimination cases, you have to make it harder for everybody. You can't make it harder for white people and you can't make it harder for straight people. You have to make it harder for everybody. You can't make it harder for white people and you can't make it harder for straight

people. You have to make it harder for everybody. If you're going to make it easier, you can't decide, well, we're going to make it easier only for some races who are clearly protected by Title VII. So again, this is a case, I feel like two of these cases that we've talked about, the Mexico case and this case, I don't know that this one will be 9-0, but the outcomes seem about as clear as they could be. Not for the next one.

Okay, here's dessert. Here's what you've been waiting for. This is the most advisory opinions case that may be at the Supreme Court this term. We'll still get more cases through the term. I mean, this really only takes us through, December, January probably in terms of arguments. But depending on which circuit you're in, we look at excessive force

claims differently. In some circuits, we look at the moment of the use of force. And in other circuits, we use the totality of circumstances, everything that led up to the moment of the use of force to determine whether a use of force was excessive. So it's going to matter a lot in this case which test is used. Here are the facts. And they're grim. They're awful. Oh boy. Yeah.

At about 2.40 PM, Officer Felix heard a radio broadcast from the Harris County toll road authority giving the license plate number of a vehicle on the highway with outstanding 3 PM, Officer Felix heard a radio broadcast from the Harris County toll road authority, giving the license plate number of a vehicle on the highway with outstanding toll violations. Spotting a Toyota Corolla with the matching plate on the tollway, he initiated a traffic stop by engaging his emergency lights. Barnes, the driver, pulled over to the median on the left side of the tollway out of the immediate traffic zone. Officer Felix parked his car behind the Corolla. Officer Felix approached the driver's side window

and asked Barnes for his driver's license and proof of insurance. Barnes replied that he did not have the documentation and that the car had been rented a week earlier in his girlfriend's name. So to explain this, it's a rental car rented by his girlfriend that he's driving. The toll violations are from some other driver who rented this car.

So not only is it not him, it's not his girlfriend, it's a rental car. That's like dollar rentals problem. During this interaction, Barnes was digging around in the car, looking for his license and anything about this rental car. Officer Felix warned Barnes to stop doing so and claiming that he smelled marijuana, asked Barnes if he had anything in the vehicle. Officer Felix should know about. In response, Barnes turned off

the vehicle, placing his keys near the gear shift and told Officer Felix that he might have the requested document in the trunk of the car. What happened next, I'm going to read from the body cam footage and the timestamp. Because they all happened at the 2 p.m. 45 minute mark, I'm just going to read the seconds. At 28 seconds, Felix orders Barnes to open the trunk of his vehicle. At this time, Barnes' left blinker is still on, indicating that the keys are still in the ignition. 33 seconds. Barnes opened the trunk of the vehicle. And again, he's not going back and opening it like I thought. He's clearly pressing a button. He is still in the driver's seat of the car. 36 seconds. The left blinker turns off.

43 seconds. Felix asks Barnes to get out of the vehicle. 44 seconds. Barnes's driver's side door opens. 47 seconds. The left blinker turns back on. 48 seconds. Felix draws his weapon. 49 seconds. Felix points his weapon at Barnes and begins shouting, don't effing move, as Barnes' vehicle begins moving. At this point, the officer steps onto the ledge of the car, the running boards or whatever, and shoves the gun into Barnes' head, pushing his head hard to the right.

The car starts to move while the car is moving. The officer, without any ability to see into the car just starts shooting. Two shots and the driver's killed. So do we look at the totality of circumstances? This is a whole violation. He knows it's a rental car at this point. We're looking for documentation. There's obviously some confusion, a lot of confusion maybe. Or do you only look at the moment that there's an officer now on a moving vehicle whose life is in danger? Unquestionably, right?

We're in a hallway in a moving vehicle and the driver isn't stopping the car. An officer is clinging to the vehicle. That's right. And so what's he, is he supposed to die because he maybe made some bad choices in the run-up to that or is he allowed to use force at that point? So this is a great point to pause because this case is far more consequential than I think people are tracking. Because if you look at police shootings in this country, and we all know, and we all have seen that police shootings are capable of literally turning this whole country inside out upside down or police killings are capable of

turning this country inside out upside down. So the rules regarding use of force are really really important and if you look at a lot of the most controversial police shootings, what you will find is a pattern where police officers through their own negligence or on their own mistakes, create a crisis, which they then resolve by shooting the citizen. So there's no question that there's a crisis, but the police officer created it and they resolved the crisis by shooting the citizen. I'll give you some examples from real life cases, a case involving a guy named Andrew Scott, I believe,

Fourth Circuit. Police are looking for someone that they suspect to be an armed and dangerous individual. They go to a door at one or two in the morning. It is the wrong door. They are at the wrong place. And they're pounding. They're not identifying themselves as cops. Pound, pound, pound, not identifying as cops, no blue lights on, a young man walks to the door with a gun in his hand as his right, and as soon as he opens the door, the police see the gun in his hand, shoot him and kill him. So the police were at the wrong place. They created the crisis.

There was absolutely a situation where they're confronting an armed man when they think they're looking for an armed and dangerous person and they fire. Another one, this case was a Ninth Circuit case. Go to the wrong place, open, go into the wrong dwelling, and then somebody reaches for a pellet gun because they're not expecting anyone to come barging in. And as soon as the police seem reaching for the pellet gun, they shoot the guy below his arm off. This is something that is not uncommon to occur.

The way I think about this, Sarah, is let's make a difference between criminal and civil. I don't think a cop should go to jail when they believe that they are doing their job and someone is pulling a gun on them. And their mistake of going to the wrong house should not be a death sentence for the cop. That if somebody has pulled a gun, is looking like they're a threat, and they would in ordinary circumstances be able to use force. Again, the Breonna Taylor situation where they're pounding on the door, the testimony was there wasn't the, her boyfriend did not know it was cops.

They come charging into the door, Kentucky's a stand your ground state. He shoots. Police, even though they violated, allegedly violated protocol, they're being shot at, they have a right to return fire in that circumstance. Also, it's worth remembering in all of these cases, they don't know they're at the wrong address yet. They don't know they're wrong. They know that's the bad guy. Or they think they're doing the right things. So in that circumstance, a criminal prosecution strikes me as no, unless their negligence was so great as to constitute recklessness, etc.

However, civil liability, this is what we're dealing with here, civil liability. So if I freak out because a car is moving when I've told it not to move, and I jump on the side of the car, because remember, this is not a guy who's fleeing. It's not like he's trying to track down somebody who's alleged to have just robbed a bank or committing a kidnapping. This is a toll violation. He knows it's a rental car. So the odds that this person committed the toll violation are about nil. And the car moves and it seems like the

cop panics and jumps on the side of the car creating the crisis, which he then resolves by shooting the motorist. In that circumstance, it seems to me that civil liability is entirely appropriate in that circumstance. It would actually surprise me if the court doesn't find civil liability appropriate here, but I'm much less certain of that than I am about the previous cases we've talked about. I don't know that it'll be either of these tests. The Supreme Court has done this plenty of times where the circuits have a split, they

each have their own tests, and the Supreme Court's like, y'all all dumb. Then the question is, do you get sort of the Brightline rule test that some justices would prefer? Do you get the Breyer, there's seven factors here? Any Justice Breyer impression that you've ever heard will involve a seven factor test involving a baguette and a tiger, no doubt. Now imagine that baguette is a tiger. So yeah, I mean, this will be, as of right now, this is the case I am most interested in. Yeah.

This case is absolutely fascinating. The criminal law cases, as we say all the time, tend to impact more people than all of the culture war cases that get an enormous amount of attention, of course, except Dobbs. Dobbs impacts tons and tons and tons. But a lot of the culture war cases that create a lot of controversy impact very small categories of people. This is a case involving, you know, use of deadly force by police. It's not super, this is not a situation that's a daily occurrence, but it's

certainly common enough to be incredibly consequential. Yeah. And look, for my part, I can't imagine a world in which a Supreme occurrence, but it's certainly common enough to be incredibly consequential. Yeah, and look, from my part, I can't imagine a world in which a Supreme Court, let alone this Supreme Court, says that once an officer is on that car, a moving car, that now he can't use force at all because he's the one who chose to jump on the car. Same as you knock on a door, it may be the wrong address.

Of course, you think it's the right address, and someone pulls a gun on you and starts shooting. Well, unfortunately, you just can't shoot back until you double check the address or something like that. That is not going to be the rule. So the defense in the moment is certainly going to survive to some extent. I can imagine a hybrid where you say, look, you look at the totality of circumstances to decide whether in that moment it was reasonable. Did he believe in that moment that the car was likely to speed up? It doesn't matter whether he made the wrong choice to jump on the car. He did, obviously. But once he's on that car, I don't know what else he can do.

I think it's, again, you know, to me, it's the difference between the criminal and the civil. No, I think that's an interesting difference. But is it excessive? I don't know because here's why you're wrong. Because the question, the preliminary question is just, was it excessive force? And I don't see why you're able to say we're going to have different standards for it being excessive force just because the penalty is different. Either it is excessive force or it's not.

Well, so the difference is, no, I think if you're going to talk about a criminal statute often has or typically is going to have some intent requirements attached to it. And so in this circumstance, I think if you had an involuntary manslaughter statute, for example, that was broad enough to encompass that, I think it would fit here. I think it would fit here. You know, if I walk into somebody's house and it's the wrong house and I'm carrying a gun and somebody opens fire and I think I'm where I'm supposed to be and I return fire, there might be some involuntary manslaughter that comes and is applied to me. So I do think that there is a criminal element where if it meets the elements of the crime, then yeah, apply-

So you think it's excessive force in, you think it does meet the bar of excessive force. Yep, you're wrong. That's going to come out differently. We'll find out. We'll find out. That will not be held to be excessive force. I think if it's not, that's a massive problem. Because the idea that we're going to stay to armed officers of the state, that you can panic and you can do remarkably stupid things and kill people in the course of it and be immune from liability, even just liability, I have a hard time with that. I think that if you can trust juries to say

that was this situation created by the officer's own negligence? And if the answer to that is yes, it's an unreasonable. It is unreasonable. We'll see. All right, next up in the special counsel federal case against Donald Trump for election interference in the run-up to January 6th. Remember this is the case that the Supreme Court

had over the summer that they released on July 1st. Summer's over now, it's all a blur. This is the Trump immunity case, right, where they have the three-part test. If it's an unofficial act, a president is not immune. If it's a core official act, think pardon power, it is immune. And if it's an official act, that's not one of those core powers, it's presumptively immune, but the government can overcome that by showing that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority of the functions of the executive branch. And David, we have disagreed about whether this is some egregious decision or in fact pretty much correct. Even if I didn't like like those three buckets, I might have written the buckets differently.

And I would just like to say that so far I feel like I'm winning this fight and I'll tell you why. So you have made an argument that you're a judging that you've won. Correct. Okay. All right. Yeah, for sure. Evidence that I'm winning. Okay. Jack Smith refiled his indictment with the exact same number of charges and the exact same statutory charges, right? So at least that, So at least non-frivolously, Jack Smith thinks this is affected. This has not knocked out any of the charges against Donald Trump, the Supreme Court's decision. Now we have his basically brief backing up that indictment, 180 pages or so. And Jack Smith is having no problem clearing this bar, making the case that the

vast majority of the indicted conduct is unofficial, meaning you just pass go and collect $200 or whatever, that he's acting as a candidate, these aren't presidential acts, and that he says when it comes to the vice president, those are official acts. He was president when he's talking to the vice president, but because the vice president was acting as president of the Senate, and the president has no role in the counting of ballots and the certifying of it, that it certainly would not intrude upon the powers of the executive branch to prosecute him for criminal acts related to an official act of which the executive branch isn't supposed to have any role.

So feels like that Supreme Court decision, not as monumental as everyone having panic attacks the next day. All right. So here's why you're really wrong about this. So the issue here is you have a case, right? So you have a case and you have a rule. All right. So the case, the rule here that the Supreme Court

articulated in Trump, United States is not that consequential to this case. And one of the reasons why it's not as consequential to this case was actually helpfully navigated by Justice Barrett in the oral argument. So Justice Barrett in the oral argument takes Trump's lawyer through elements, some of the most important elements of the criminal case against him and says, isn't this just private? Isn't this just private? And Trump's lawyer's like, yup, it's private.

So from the beginning, the Trump v. United States main consequence for this case was just to delay it, not to dismiss it. The problem with Trump v. United States is not regarding this it. The problem with Trump in the United States is not regarding this case. The problem with Trump in the United States is it contradicts the language of the Constitution. Gorsuch was saying, we're writing a rule for the ages, when no, no, no, the rule for the ages were written by the founders in the Constitution of the United States, and the Supreme Court just defied the language of the Constitution just like it did in the 14th Amendment case.

So yeah, it's not that consequential here on this case. That's funny. I just don't remember all of the headlines from various media outlets saying this isn't consequential, but here's why you should freak out anyway. Instead, they were all like the Supreme Court just let Trump get away with killing his rival using SEAL Team Six, taking bribes and destroying America. Well, it did. You can read the case a thousand times and you will not know at the end of it, for sure, whether or not it covers bribing the freaking president of the United States. And you acknowledge it doesn't actually affect this case and that maybe some of the headlines could have been more clear that Trump will still be prosecuted for the same number of

crimes. Our discussion was, so if your argument was with the headline writers, you win. If the argument is with me and the points that I've been making, that's not the point I was making. Probably less so. Okay. So, fine. Here are some other problems though with the Jack Smith filing. Ellie Honig, former

federal and state prosecutor over at the New York Magazine, she had some problems with this filing. I'm quoting now from him. Jack Smith has failed in his quest to try Donald Trump before the 2024 election. So instead, the special counsel has bent ordinary procedure to get in one last shot just weeks before voters go to the polls. There's two headlines here. The immediate takeaway lies in the revelations contained in Smith's oversized brief. He asked the judge for and received permission to file a brief that was 180 pages long, four times the normal maximum. We now have damning new details on Trump's effort

to pressure Vice President Mike Pence to throw the election his way, Trump's phone use and his Twitter use as the riot unfolded, and his conversations with family members about efforts to contest his electoral loss. The story's structure is the same as we've long known, but the new details lend depth and dimension. The larger, if less obvious headline is that Smith has essentially abandoned any pretense.

He'll bend any rule, switch up on any practice, so long as he gets to chip away at Trump's electoral prospects. At this point, there's simply no defending Smith's conduct on any sort of principled or institutional basis. But we need to know this stuff before we vote is a nice bumper sticker, but it's neither a response to nor an excuse for Smith's unprincipled norm breaking practice. It also overlooks the fact that the Justice Department bears responsibility for taking over two and a half years to indict in the first place. Okay. So walking through some of his problems with this, right, normally, as you all know,

who've taken a criminal law, you get an indictment and then the defense gets to move to dismiss that indictment and then the prosecutor gets to file a brief in response to that motion to dismiss about why the indictment should not be dismissed. But that's not what happened here. There is no motion to dismiss yet. So basically, Smith files his new indictment and then gets permission from the judge who says that this is highly unusual to go ahead and file the brief before any motion to dismiss is filed.

And there really was never a good reason given for that in my view of why we would need to skip up the order. Basically, Smith's response to that was, well, this is already a case of one. And so we're gonna, you know, this is already needs unusual circumstances. And he never really explained why he needed to file this, except, you know, his argument was like, well, this case is already like totally unique.

And so now we just get to do our own thing or something like that. And I liked the way Ellie laid it out, that like number one, yeah, we learned a lot. And I think we learned a lot about the Supreme Court opinion in a lot of ways and how easily they were able to do this. I also think, by the way,

it laid out how negligent in some ways the special counsel and DOJ was to let it get to this point. So first of all, of course, January 6th happens in 2021. They don't bring charges until 2023. They wait until after Donald Trump is running for president to bring charges. Two, of course, they could have done all of this. They could have narrowed it. They could have made it clearly about unofficial acts. It's not like we never knew the distinction between official and unofficial acts and the idea of presidential immunity before the Supreme Court case. Of course we did.

They could have narrowed it that way. And they could have narrowed their arguments to the DC Circuit because the DC Circuit's opinion is so broad. If you remember, I said, of course the Supreme Court has to take this because under the DC Circuit's opinion, if Congress passes a law that says, if the president vetoes a bill that has been passed by two thirds of each house, that's a crime, and the president then goes ahead and vetoes it because it's in the freaking constitution that he has the veto power, according to the DC Circuit's immunity decision, they could still prosecute, try,

and convict a president because Congress passed that law, right? It's, well, he did violate that law. And so of course the Supreme Court had to narrow that. At any point, Jack Smith and the Department of Justice could have narrowed this down. And now that they're filing this because or despite the election being 30 days away and flipping the entire order of operations here, it's pretty disappointing. Yeah, I'm going to agree with you on the timing of this. and flipping the entire order of operations here, it's pretty disappointing. Yeah, I'm gonna agree with you on the timing of this. It's not emotion,

they're not responding to emotion dismissed. They're responding to emotion to dismiss. Fine, good, you know, normal. Don't change the normal course. Just do normal stuff. If they had had their 30 day deadline and it happened to fall on September 26, so be it. Like I have no problem with that.

Just do normal stuff. I mean, so be it. Like, I have no problem with that. Just normal stuff. I mean, I think it's really obvious that the original sin that led to the delay of this case beyond the election was the failure to file this case in 2021. You could have filed this case in 2021, maybe early 2022. The formation of the January 6th commission, I think, actually is what triggered this case being filed ultimately because of the compelling testimony it was elucidated during the January 6th commission. But all of that was available.

All of that was available before. And so I, from the beginning, said, look, the delay here that meant that the odds of this thing being tried before the election were infinitesimal was the delay in the filing, period, end of discussion. It would have been a rocket docket. And we're seeing that, I mean, Georgia, like Georgia's in limbo, Florida's in limbo, all of these things were filed by the standards of white collar criminal cases way too late to be tried within the year. And then the other thing about it that's particularly irritating in a way, Sarah, is when you just

sort of think through it, is that they violated normal procedure truth like for what? For what? So that you could get the so what comment about Mike Pence into the public square or whatever. It's, this is not, this is very, very, very, very well trodden ground at this point. And so it's, now you keep to procedure even if it was an election changing filing. So you keep to procedure no matter what, but they refuse to keep to procedure for something that, you know, to use it in football terms is like a half yard gain in a cloud of dust

and that might be generous. It's probably generous. I think it's like stopped at the line of scrimmage considering how little consequence January 6th is having to swing anybody one way or the other in October of this year. And don't forget that it's not like, let's say Donald Trump wins the election on November 5th, it's not like this case then disappears on November 6th. No.

Inauguration day is when that would start to be relevant. election on November 5th. It's not like this case then disappears on November 6th. No. Inauguration day is when that would start to be relevant. So it's not like we're going to have to work on this brief and never get to file it. I actually do not understand this at all. All right. Well, with that, we've run out of time for chalking, David. We have to save Fourth Amendment searches when they chalk your tires, in which you think not a Fourth Amendment violation. and I think this is egregious. What did our founding fathers fight a war for? If not to require war to chalk my tires. So with that, let's open

it up to a couple questions. And and thank you again, UNC for having us. And thank you again, UNC, for having us. So the question, David, is, is there a case this upcoming term that is one of those great primers to talk with your teenager or smart high school kids or college kids about the rule of law, that there's just good arguments on both sides, it's not culture war and it allows to really grapple with what it is the Supreme Court

does in these cases, like the Wooten storage unit thing where they're going from, you know, they're robbing a bunch of units in the same storage thing. Was it the per unit or was it the storage facility? And that was an interesting case. Well, you threw on that's not culture war. I know, because I actually was gonna say one of the culture war cases, because it's more complicated than people are talking about.

And it's the trans youth case, because everyone's talking about it from the standpoint of, can you ban this medical procedure, 14th amendment in the sense of, okay, are you discriminating against trans individuals? It's really getting locked almost entirely into what is your position on trans youth medicine, is becoming the entire frame of the case. But lurking underneath it is this whole other thing, which is parents' rights, which the Supreme Court

has not really talked much about for some time, actually. And so, if you go and you look at case law around where does the state's authority over the treatment of children end and where does the parents' authority over the treatment of children begin, It's not as clear cut as you might think. And so there's some really interesting underlying questions here that are not, are you for or against gender transition for minors and for permanent health interventions for gender transition for minors, but there's also this whole other layer of where do parents draw the line versus where does the state draw the line? And we're not having much of that discussion.

And it is a really interesting one in that AO way where we're talking about underlying principles and processes that radiate outwards from the culture war issue are related to it, but also different from it. So I think that case actually is more layered than a lot of the commentary around it, even though it is, you know, culture war and it's immediately going to go exactly like all of these cases go to, which is, do you like the outcome or do you not like the outcome on the policy side versus what is... And, you know, I happen to think that where the line is drawn is that states do have that ability. I do think that they have that ability, but at the same time that raises a lot of interesting questions about is the scope of parental authority less than some parents tend to think?

You know, so it's a very much more interesting case, I think, than people are giving it credit for. I think it's this dude who took out the two loans and then played dumb. That's a good one. What's the difference between false and misleading? And is misleading always false? And I think teenagers who try to get away with stuff will really be able to sink their teeth

into various things they've told their parents about, you know, are their parents gonna be home during that party? It's like when I was gone for seven hours in high school and my parents would say, what were you doing David? And I said I went to a movie. True but misleading. Anything else? So the question is about the Maryland challenge on the shall issue, whether that's too burdensome under these now gun tests and text history and tradition under the Second Amendment. And they just filed for review at the Supreme Court.

So it's a pending cert petition. In general, AO does not, we don't ourselves do cert petitions because there's too many and it became too heartbreaking when cases that we got really attached to got denied. So we have- Like all my qualified immunity cases. Gone. Just gone. Yeah. But I mean, they're gonna have to do various second amendment cases. There's quite a bit

piling up here. But yeah, one of them is, okay, we've dealt in Bruin with the may issue versus shall issue and may issue bad. And this is making sense. Whether when you apply for a gun permit, whether the state shall issue you that permit if you meet all the requirements or whether they simply may issue that permit if you meet all the requirements or whether they simply may issue that permit if you meet all the requirements. So that was the Bruin shall versus may. But now, okay, it's a shall issue, but you have to jump on one foot, pat your stomach, chew gum and recite the Pledge of Allegiance backward. And then we shall issue it.

Right, right. Yeah. So there's going to be a regime of shell issue that is just too onerous. I mean, and that's what you're going to see. It's very similar to what we began to see after the initial Heller decision was that DC, for example, would modify as little as humanly possible. And so then it's gun restrictions. And so then you began to see this pattern of gun restrictions struck down. Let's modify as little as possible, which is actually a kind of resistance to the court. But in this circumstance, I have such immense sympathy for federal circuit courts right

now or for federal judges in a second amendment case. After, well, we'll just call it Brahimi. Shout out to David Latt. We always have to give David Latt credit for the Brahimi after Bruin and Brahimi, Brahimi. We've talked about this issue so much. And I would still, if I was talking to a seminar, having just talked and talked and talked through this, and let's say you've got newly appointed federal district court and appellate court judges, and let's say you've got newly appointed federal district court and appellate court judges, and we've been tasked to give a seminar in Brahimi. My seminar would be two words, good luck.

Good luck. Because if you go to the Rahimi part of it, then it just looks like the state's got a lot more discretion. If you go to the Bruin part of this, then the state doesn't have much discretion at all. But it's clear that Rahimi didn't overrule Bruin. So I really am at a loss in almost any gun rights case that does not have an exact historical analog.

I think this is true, that if you have an exact historical analog to the colonial and ratification era regulation, that that's going to probably be upheld. But we just don't have many of those. And so, yeah, the next big cases are going to be magazine size, AR-15s and AR-style weapons, and then these conditions on shell issue permits. This is the next frontier. What else? Do we think that the Trump immunity decision which clearly beefs up some unitary executive it's it's looking pretty sexy on that beach right now.

Lots of muscles rippling. Not Chris Christie-ish on the beach. I'm sorry I'm sorry. That was not kind. I'm sorry is Is that what Gen Z calls a drive by? Is he catching strays? Anyway, the question is whether that will have Americans, you know, if you're upset with that decision, maybe you need to be more careful in who you vote for for president and evaluate their character if they're going to have these broad immunity rights. I think that is a great question. And the answer there is a should answer to that.

This is a shall issue versus may issue. There is a should answer to that. That is absolutely yes. Yes, absolutely. Now that presidents have, it's been articulated they have broad immunity. It's more important than ever that they have high character. Will average voters take this into account?

Absolutely not. Absolutely not. I think you're wrong about that in the same way that partisanship overall has moved to both extremes. I think that most Americans very much feel like they are taking character into account. And that's why when you ask questions of which party or which candidate is a greater threat to democracy, the slight plurality is Kamala Harris and Democrats are a greater threat to democracy than Donald Trump.

They're taking character into account. They just don't see it the same way you do. Right. They also define it differently. That's fine. Yeah, totally. To answer the question, yes, all Americans think they're taking the character of the president into account. They define it differently. They see it differently. That's fine. Yeah. Yeah, totally. So for example. I'd like to answer the question. Like, yes, all Americans think they're taking the character of the president into account. They define it differently.

They see it differently. All of those things. But I think you don't give Americans enough credit if you just say that half the country isn't taking character into account. No, no, no, no, no, no. I, let's see, give them enough credit. I think I'm accurately viewing the way Americans view political contests. And I think I'm accurately viewing the way Americans,

a lot of Americans view character, which is agreeing with me. So this is a very common problem, not just in politics, but in life. It reminds me of a conversation I had with Tim Keller, the late pastor of Redeemer Church. And he was saying, this is like early 06, 07. He said, I'm noticing this big change in the younger people in my church. Previously, they could disagree with each other and remain friends.

And now they cannot disagree with each other and remain friends. And the interesting, you know, digging deeper into that, the disagreement was seen as the character failure. Whereas before, the character failure was, you're mean to me, or you lie to me, or you're rude. That would be the character failure that was the friendship breaker. Then in the present era, the character failure became disagreeing with me.

And that's where I get off the train on that this is what character is. And you see this all over the place. I tweeted when I came back to Twitter for a while before the election, one of the first things I tweeted was like, good folks are gonna support Harris, good folks are gonna support Trump, good folks are gonna vote third party.

We're not defined by the vote, we're defined by how we treat each other. And you would have thought I just desecrated the Bible because the way in which the character assessment was made is no, no, no, voting for Harris means you can't be good folks. Voting for Trump means you can't be good folks. So that's what I mean when I talk about the character

test changing in some ways. It is, do you agree with me? Then you're a good person by default. Now you might have some flaws and with me? Then you're a good person by default. Now you might have some flaws and everything, but overall you're a good person. If you disagree with me, yeah, you might be a good husband and father or spouse or whatever, but you're ultimately horrible.

And that's the character assessment that is being made. And that's a broken assessment. That's a broken assessment. Yeah, it reminds me of some of the emails that we'll get from time to time. I really liked your take on X, Y, A, B, C, but your take on this is simply wrong and I can no longer listen and you're a horrible person. And I'm like, look, one of us is wrong and one of us is right. But what's weird is that you think I'm right about all this stuff and therefore definitely wrong on this other thing because we disagree instead of, huh, this person who I agreed

with on 90% of stuff now disagrees with me on one thing. Well, if I agree with them on all these other things, is it possible that they might be right and I could be wrong? And just like this lack of humility, I'll say it was pretty disappointing to hear Vice President Harris say that she doesn't think humility is an important character trait at all. I know that was weird. Yeah. Boy, if there's one thing that I probably judge people on now that I'm older, it's actually humility more than anything else, probably, which again, there's all sorts of ways to have good character and bad character. And I'm not saying humility should be anyone else, probably, which again, there's all sorts of ways to have good character and bad character.

And I'm not saying humility should be anyone else's like number one test, but just for me right now, I think that's mostly what it is. I think, I mean, to be humility without humility, it's hard to have character. I think it's a necessary, but not sufficient condition for good character. Although it does remind me of the Ben Franklin

autobiography, you know, where he says the 13 virtues and he gets to humility last. And then it says, I achieved humility, It does remind me of the Ben Franklin autobiography, where he says the 13 virtues, and he gets to humility last, and then it says, I achieved humility, but then I was so proud of my perfection that I decided 12 was enough. Yeah, that's right. No, I'm with you, but it is remarkable

that phenomenon you describe, which is, oh, I've been with you for two years, three years, hanging on every word, and then you said something about qualified immunity I didn't like, and you guys are scum, and I'm just glad to know that now. You'd be shocked, we really get these. And it also happens in person all the time. Someone will come up and they'll say,

I read you, thank you for what you do. I don't agree with you on a lot of things. And why do you have to just go ahead and say that? I do not presume that someone who comes up to me, another human being agrees with me on everything, right? So I've kind of gotten this canned response to you because I don't agree with you on everything. I said so you're saying you're wrong a lot, but it's jokingly, but it really is a problem right now in our culture where my 90% agreement, if I only have 90% agreement, then you're 100% my enemy because of that 10%. You just see this constantly. It's a product of our very fundamentalist age, which when I say fundamentalist, I'm referring to a psychology, not a theology,

the psychology of absolute certainty. So if you're completely certain about everything, then when you encounter somebody who disagrees with you, your natural inclination is to view their disagreement as a character defect, because you're totally certain you're right. So you know the question that I really like and that I ask from time to time to people

is what thing that we all take for granted now will they look back on us and say that was the evil thing? And the easy answer, the sort of accepted one is probably something to do with farming, animal-related farming. But I thought of a new one last night, speaking of humility. And this is gonna be so unpopular on this podcast, but it's testing whether Jonah Goldberg

listens to the end of every episode. Oh, okay, Jonah. Okay, here we go. Pet ownership. Oh, you think people will look back on it? That future generations might actually look back and think that keeping dogs and cats in these small houses or apartments

where people are gone all day is deeply cruel. Hmm. Interesting. I thought it was going to be eating octopuses. Oh, I already think that's... I was out to dinner. If they lived for longer than three years, they would be running this planet, not us. Because I've been seeing... This is where we're now, just warning listeners, we're now totally outside of any area of expertise that I have.

And so I'm gonna share a completely ignorant opinion. So I've heard octopuses are smarter than we thought. And now I feel guilty eating them. Okay, I've read so many books on octopuses. Okay, so you're in your area. Yeah, like I'm very much in my comfort zone. Octopuses versus octopodes. Octopi is just wrong.

That one's definitely wrong. Octopi is wrong. Well, what about the plural of Elvis? Is it Elvi? Okay, but so octopuses have two really bad things that aren't going for them. One, longevity, right? They only live for three years, the longest, you know, the gigantic Pacific ones, for instance. But two, they hate each other.

They're deeply misanthropic creatures. And so they're very solitary. They only get together to make more octopuses. And so it actually though teaches you something about humanity, that you can have a high intellect. But if you don't have long to make your impact and you don't work with others to do that, you will have very little impact. And so I think of it as like a warning and a metaphor, our octopus friends. They're all like angry toddlers. Yes, and they're very smart at problem solving. You know, another problem is if you judge IQ, you know, by who can

jump that fence, like the octopus has a low IQ. But generally we think of that as tool using, problem solving, and they're incredibly smart by those attributes. And of course they can do all sorts of things that we can't do and their IQ test for us might be quite different. Like why can't you camouflage to punch that fish when it comes by for no reason? They don't even eat the fish, they just punch the fish. Angry to others. Yeah. As someone who was hit in the head with a Mickey Mouse book last night by a one-year-old, I'm feeling that. Okay.

Well, we've really headed off in any number of directions. Thank you so much to the University of North Carolina for having us. And this has been a real delight. Delight!