| 00:00:39 |
Unidentified Speaker, -
CHIEF JUSTICE, AND MAY IT PLEASE THE COURT -- THIS LAWSUIT SEEKS PERSONAL MONEY DAMAGES AGAINST A FORMER ATTORNEY GENERAL OF THE UNITED STATES FOR DOING...
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| 00:02:13 |
Unidentified Speaker, -
YOUR SECOND REASON DOESN'T BOIL DOWN TO SAYING THAT IT MAKES VERY LITTLE DIFFERENCE WHETHER ASHCROFT IS HELD IMMUNE BY ABSOLUTE IMMUNITY OR BY QUALIFIED...
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| 00:02:37 |
Unidentified Speaker, -
THAT MOTIVE IS NOT INTRODUCIBLE WITH REGARD TO THE QUALIFIED IMMUNITY QUESTION, AND ONCE YOU SAY THAT HE'S USING A WITNESS SUBPOENA, AND YOU CAN'T LOOK...
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| 00:03:13 |
Unidentified Speaker, -
BE A DIFFERENCE. WE THINK THE COURT SHOULD FIRST DECIDE THE ABSOLUTE IMMUNITY QUESTION, WHICH IS THE WAY THAT THIS COURT HAS HISTORICALLY HANDLED QUESTIONS...
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| 00:03:47 |
Unidentified Speaker, -
I THOUGHT THE ARGUMENT, RATHER, WAS THAT THIS IS NOT AS CLOSE TO THE CORE OF THE PROSECUTORIAL FUNCTION AS SOME OF THE OTHER FUNCTIONS TO WHICH WE HAVE...
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| 00:04:13 |
Unidentified Speaker, -
SURE, THEY ARE NOW MAKING THAT ARGUMENT IN THIS COURT, THAT THIS DOESN'T FALL -- THIS ISN'T INTIMATELY ASSOCIATED WITH THE JUDICIAL PROCESS. BELOW,...
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| 00:05:02 |
Unidentified Speaker, -
PROSECUTION ALREADY PENDING WHEN THIS -- WHEN THIS WARRANT WAS ISSUED? >>
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| 00:05:05 |
Unidentified Speaker, -
YES, IT WAS. THE INDICTMENT OF MR. AL- HUSSAYEN WAS IN FEBRUARY 2003. THE PROSECUTORS LEARNED IN MARCH THAT MR. AL-KIDD WAS ABOUT TO BOARD A PLANE...
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| 00:05:34 |
Unidentified Speaker, -
HE RELEASED AFTER -- I UNDERSTAND HE DIDN'T TESTIFY AT THE TRIAL, AND THERE WAS AN ACQUITTAL, AND THEN OTHER CHARGES WERE DROPPED. WAS AL-KIDD STILL...
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| 00:05:58 |
Unidentified Speaker, -
IN -- HE WAS DETAINED FOR ONLY A PERIOD OF 16 DAYS TOTAL IN 2003. >> BUT HE WAS RESTRAINED
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| 00:06:05 |
Unidentified Speaker, -
MUCH LONGER -- FOR 15 MONTHS. >> HE HAD TRAVEL
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| 00:06:09 |
Unidentified Speaker, -
RESTRICTIONS PLACED UPON HIM UNTIL THE TRIAL WAS OVER AND UNTIL THE GOVERNMENT -- BECAUSE AFTER THE RESOLUTION OF MR. AL-HUSSAYEN'S CASE, WHICH WAS...
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| 00:07:50 |
Unidentified Speaker, -
THESE RESTRICTIONS, I WOULD LIKE TO COME BACK TO THE QUESTION THAT I UNDERSTOOD JUSTICE SCALIA TO BE ASKING. IF THE COURT WERE TO HOLD THAT OBTAINING...
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| 00:08:16 |
Unidentified Speaker, -
FOR TWO REASONS. NUMBER ONE IS I THINK THAT'S THE WAY THIS COURT HAS HISTORICALLY GONE ABOUT IT, PROBABLY FOR REASONS OF CONSTITUTIONAL AVOIDANCE, TO...
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| 00:09:34 |
Unidentified Speaker, -
IS PROBABLE CAUSE TO SUSPECT THAT CRIMINAL ACTIVITY HAS OCCURRED. AND THEN YOU -- ONCE YOU HAVE PROBABLE CAUSE, THEY'RE NOT GOING TO LOOK BEHIND PROBABLE...
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| 00:10:06 |
Unidentified Speaker, -
IT'S CERTAINLY DIFFERENT IN -- IN THAT RESPECT, BUT I DO THINK THAT DIFFERENCE DOESN'T MATTER, BECAUSE I THINK WHAT WHREN AND EDMOND AND THE CASES...
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| 00:11:17 |
Unidentified Speaker, -
THAT WOULD MAKE ANY DIFFERENCE TO THE -- AT LEAST TO THE ABSOLUTE IMMUNITY QUESTION. YOU WOULDN'T ASSERT THAT THERE IS ABSOLUTE IMMUNITY IF THERE'S ...
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| 00:11:38 |
Unidentified Speaker, -
JUSTICE SCALIA. I WAS JUST ANSWERING JUSTICE GINSBURG'S QUESTION ABOUT QUALIFIED IMMUNITY. >> OKAY. >> I IMAGINE ONE POINT
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| 00:11:46 |
Unidentified Speaker, -
ABOUT THE STATUTE MIGHT BE THAT THE STATUTES, GOING ALL THE WAY BACK TO 1789, DO REFLECT THAT THIS IS A PROSECUTORIAL FUNCTION TO THE EXTENT THERE...
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| 00:12:03 |
Unidentified Speaker, -
WITH YOU ON ABSOLUTE IMMUNITY, WE WOULD HAVE TO BELIEVE THAT EVEN IF THERE WERE NO SUCH STATUTE AND IF A PROSECUTOR SIMPLY DETAINED SOMEBODY AS A MATERIAL...
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| 00:12:18 |
Unidentified Speaker, -
CORRECT, THAT THAT IS QUINTESSENTIALLY WHAT PROSECUTORS DO IN THE EXERCISE OF TRYING TO GET A TRIAL GOING. NOW -- >> SUPPOSE THAT A
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| 00:12:26 |
Unidentified Speaker, -
PROSECUTOR READS THE STATUTE, THERE MUST BE AN AFFIDAVIT THAT SAYS THIS WITNESS IS MATERIAL. AND THERE IS IRREFUTABLE EVIDENCE THAT THE PROSECUTOR ...
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| 00:12:53 |
Unidentified Speaker, -
SURE I TOTALLY FOLLOW - >> I'M NOT SAYING
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| 00:12:56 |
Unidentified Speaker, -
IT'S THIS CASE. I'M SAYING IT'S A HYPOTHETICAL CASE. >> IF THE EVIDENCE SHOWS
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| 00:13:02 |
Unidentified Speaker, -
THAT THE EVIDENCE IS NOT MATERIAL, THEN THE STATUTE IS VIOLATED. >> AND THE
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| 00:13:06 |
Unidentified Speaker, -
REASON IT IS NOT MATERIAL IS BECAUSE THE PROSECUTOR HAS NO INTENTION WHATSOEVER OF EVER BRINGING THIS PERSON AS A WITNESS IN ANY TRIAL. >> I DO THINK...
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| 00:13:15 |
Unidentified Speaker, -
WOULD GENERALLY MEAN THAT MATERIALITY WOULD BE VIOLATED. I COULD IMAGINE SOME THEORETICAL CONSTRUCT. >> IF MATERIALITY
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| 00:13:21 |
Unidentified Speaker, -
IS VIOLATED, DOES NOT THEN THAT -- THAT PROSECUTOR -- SINCE HE HAD NO INTENTION OF BRINGING HIM TO TRIAL OR OF HAVING HIM AS A WITNESS AT A TRIAL,...
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| 00:13:34 |
Unidentified Speaker, -
JUSTICE BREYER, LET ME -- JUST MAKE SURE THAT I UNDERSTAND THE CONTOURS OF YOUR HYPOTHETICAL. I DON'T THINK THAT SUBJECTIVE MOTIVATIONS OF THE PROSECUTOR...
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| 00:13:48 |
Unidentified Speaker, -
HERE'S HOW I THINK IT WORKS. SO I THINK THAT CONGRESS SET UP THE OBJECTIVE TWO-PART TEST TO DECIDE WHETHER OR NOT AN ARREST WARRANT WOULD TAKE PLACE,...
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| 00:14:49 |
Unidentified Speaker, -
BEHIND THAT, RIGHT? YOU CAN'T LOOK BEHIND THAT? IF THE JUDGE HAS SAID IT'S MATERIAL, THAT'S THE END OF IT. YOU HAVE ABSOLUTE IMMUNITY, RIGHT? >> WELL,...
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| 00:14:59 |
Unidentified Speaker, -
THE DEFENSE CAN LITIGATE THAT AND APPEAL THAT SET OF ISSUES, BUT I DON'T THINK - >> CAN APPEAL THE
|
| 00:15:06 |
Unidentified Speaker, -
JUDGE'S DETERMINATION THAT IT'S MATERIAL? >> ABSOLUTELY. >> WELL, THEN HOW CAN
|
| 00:15:11 |
Unidentified Speaker, -
YOU HAVE ABSOLUTE IMMUNITY? >> WELL,
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| 00:15:13 |
Unidentified Speaker, -
THEY DID, BECAUSE WE'RE TALKING ABOUT - >> OH, YOU MEAN AT THE TIME IT'S ISSUED? >> EXACTLY. >> I SEE. >> AT THE
|
| 00:15:20 |
Unidentified Speaker, -
TIME ITSELF. BUT I THINK THAT'S AN IMPORTANT POINT, JUSTICE SCALIA. WITH RESPECT TO ABSOLUTE IMMUNITY, THIS COURT HAS OFTEN SAID THAT IT IS THE CRUCIBLE...
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| 00:15:31 |
Unidentified Speaker, -
DIDN'T HAVE -- AGAIN, WHAT IF YOU DIDN'T HAVE THIS PRESCRIBED JUDICIAL PROCESS? >> I TAKE IT THAT THE
|
| 00:15:36 |
Unidentified Speaker, -
LOGIC OF THIS COURT'S PRECEDENCE IS THAT ABSOLUTE IMMUNITY WOULD STILL APPLY. AND THE REASON FOR THAT IS THAT ABSOLUTE IMMUNITY ISN'T SOME RULE TO...
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| 00:16:03 |
Unidentified Speaker, -
A DIFFERENCE BETWEEN CALLING A WITNESS AT TRIAL AND ARRESTING A PERSON. HOW IS IT A PART OF THE PROSECUTORIAL OR THE TRIAL FUNCTION TO ARREST SOMEONE?...
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| 00:16:32 |
Unidentified Speaker, -
QUITE A BIT FURTHER THAN THAT. I THINK IT -- AND I THINK BURNS V. REED -- AND THE RELEVANT LANGUAGE IS AT PAGE 492 -- I THINK IS RELEVANT BECAUSE...
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| 00:17:33 |
Unidentified Speaker, -
DON'T THINK THERE'S A REASON TO MAKE PROSECUTORS FLINCH AGAINST WILLY-NILLY -- THAT'S NOT WHAT I'M CLAIMING HAPPENED HERE, BUT IF YOU TAKE THE POINT...
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| 00:17:57 |
Unidentified Speaker, -
FLINCH IS ALWAYS A BAD THING. WHAT I'M REFERRING TO IS THIS COURT'S PRECEDENTS THAT SAY DAMAGES LIABILITY ON PROSECUTORS IS THE WRONG WAY TO GO ABOUT...
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| 00:18:28 |
Unidentified Speaker, -
PROCEDURES SET FORTH IN THE STATUTE, I'D SAY YOU WOULD ADD, WHICH YOU THINK ARE NOT NECESSARY, BUT ARE THERE IN ORDER TO MAKE THEM FLINCH IN A DIFFERENT...
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| 00:18:37 |
Unidentified Speaker, -
THAT IS PRECISELY CORRECT. WE DON'T THINK THOSE ARE CONSTITUTIONALLY COMPELLED, BUT WE DO THINK THEY PROVIDE A VERY IMPORTANT SAFEGUARD. >> WHAT'S YOUR...
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| 00:18:45 |
Unidentified Speaker, -
AUTHORITY THAT AT COMMON LAW OR THE COMMON LAW TRADITION, THERE IS ABSOLUTE IMMUNITY FOR WITNESS -- FOR THE ISSUANCE OF WITNESS WARRANTS? >> I DON'T...
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| 00:18:54 |
Unidentified Speaker, -
COME UP WITH RESPECT TO PUBLIC PROSECUTORS, AND SO OUR ARGUMENT HERE, TO THE EXTENT THE COURT REACHES THAT QUESTION - AND, AGAIN, IT WASN'T -- IT WASN'T...
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| 00:19:27 |
Unidentified Speaker, -
QUESTION, QUITE APART FROM IMMUNITY, JUST ADDRESSING THE SUBSTANTIVE CONSTITUTIONAL ISSUES UNDER THE STATUTE, SUPPOSE THAT THE PROSECUTOR HAS PROBABLE...
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| 00:20:05 |
Unidentified Speaker, -
I DO THINK THAT THE GOVERNMENT -- I'M NOT SURE IF WE HAVE ANY POLICY WITH RESPECT TO THAT, BUT I THINK THAT -- THAT WE -- THAT AT LEAST FOR FOURTH AMENDMENT...
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| 00:20:36 |
Unidentified Speaker, -
THANK YOU, GENERAL. MR. GELERNT. >> MR. CHIEF JUSTICE, AND MAY
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| 00:20:52 |
Unidentified Speaker, -
IT PLEASE THE COURT -- IN DUNAWAY, THIS COURT EMPHATICALLY REAFFIRMED THE BEDROCK FOURTH AMENDMENT PRINCIPLE THAT A CRIMINAL SUSPECT MAY NOT BE ARRESTED,...
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| 00:21:30 |
Unidentified Speaker, -
IT IS THEN CONSTITUTIONAL? YOUR OPENING COMMENTS MAKE ME THINK YOU DON'T EVEN ACKNOWLEDGE THAT IT'S CONSTITUTIONAL THEN? >> JUSTICE SCALIA, WE
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| 00:21:39 |
Unidentified Speaker, -
ARE NOT PRESSING THAT ARGUMENT. I WOULD SAY THAT BASED ON THE LEGAL HISTORIAN'S BRIEF THERE IS A STRONG ARGUMENT TO BE MADE THAT IT IS NOT CONSTITUTIONAL,...
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| 00:23:23 |
Unidentified Speaker, -
A REALISTIC HYPOTHETICAL THAT YOU'VE POSED? NOW, IN ORDER TO DETAIN SOMEONE UNDER THE MATERIAL WITNESS STATUTE, THAT PERSON, POTENTIAL WITNESS, MUST...
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| 00:24:04 |
Unidentified Speaker, -
THINK A FEW POINTS, ONE IS JUST AS AN INITIAL MATTER. THE STATUTE HAS NOT ACTUALLY BEEN INTERPRETED TO GO BEYOND RELEVANCE, IN THE WAY YOU'RE POSING...
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| 00:24:54 |
Unidentified Speaker, -
I THINK, THE PROBLEM THAT I THINK WHREN HIGHLIGHTED IS THAT THE ALLEGATION CAN SO READILY BE MADE IN EVERY CASE UNDER THE MATERIAL WITNESS STATUTE IS...
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| 00:25:14 |
Unidentified Speaker, -
BUT LET ME SAY THAT I THINK I -- I UNDERSTAND WHREN, I OBVIOUSLY DON'T WANT TO TELL THE COURT ABOUT ITS OWN CASES, BUT IS THAT IT WAS DRAWING A CONCEPTUAL...
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| 00:26:51 |
Unidentified Speaker, -
PROSECUTOR ELECTS NOT TO CALL ONE OF THESE WITNESSES FOR A VARIETY OF REASONS, YOU WOULD HAVE A CLAIM THAT THIS WASN'T DESIGNED TO ELICIT TESTIMONY?...
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| 00:27:01 |
Unidentified Speaker, -
THINK SO, MR. CHIEF JUSTICE. I THINK WHAT WE HAVE -- WE HAVE SAID IS THAT CALLING THE WITNESS OR NOT CALLING THE WITNESS CAN'T BE DETERMINATIVE. I THINK...
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| 00:27:57 |
Unidentified Speaker, -
JUST A POINT OF DETAIL. I MAY NOT BE RECALLING CORRECTLY. YOU SAID THIS STATUTE IS RARELY USED. I THOUGHT THERE WERE 4,000 MATERIAL WITNESS HEARINGS...
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| 00:28:10 |
Unidentified Speaker, -
YES, JUSTICE KENNEDY, AND I APOLOGIZE IF I WASN'T CLEAR. THAT WHAT THE -- WHAT THE COURT OF APPEALS SHOWED AND WHAT THE STATISTICS ALSO SHOW IS THAT...
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| 00:28:35 |
Unidentified Speaker, -
FOR THE STATES, HOW MANY STATES HOLD - HOW MANY PEOPLE ARE HELD UNDER STATE MATERIAL WITNESS STATUTES? >> WE HAVE LOOKED FOR
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| 00:28:45 |
Unidentified Speaker, -
THOSE, JUSTICE KENNEDY. WE HAVE NOT BEEN ABLE TO FIND THEM. WHAT WE DO KNOW ABOUT THE STATES, THOUGH IS THAT MORE THAN 30 OF THE STATES HAVE STATUTES...
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| 00:30:01 |
Unidentified Speaker, -
ARGUMENT IS THAT THE CONSTITUTION DOES NOT ALLOW A MATERIAL WITNESS TO BE DETAINED, SO LONG AS THE WITNESS SAYS IN COURT THAT HE OR SHE WILL SHOW UP...
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| 00:30:22 |
Unidentified Speaker, -
THE CONSTITUTION REQUIRES THAT? >> YES. >> I THINK IT PROBABLY
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| 00:30:25 |
Unidentified Speaker, -
DOES, BUT WE ARE NOT TAKING A POSITION ON THAT. I MEAN, WHAT WE ARE BASICALLY SAYING IS THAT IT IS OUT OF WHACK HISTORICALLY. IT WASN'T UNTIL THE MID-1900'S...
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| 00:31:31 |
Unidentified Speaker, -
A LAW REVIEW ARTICLE, YOU MIGHT HAVE DONE THAT. BUT WE'RE TALKING ABOUT AN OFFICER. I THINK THE FIRST THING YOU WOULD DO IS SAY, WELL, LET ME SEE THESE...
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| 00:31:42 |
Unidentified Speaker, -
HE WOULD HAVE FOUND, YOUR HONOR, IS THAT THE COURT HAS NOT SPECIFICALLY -- I GRANT THAT IT HAS NOT SPECIFICALLY RULED ON THE FOURTH AMENDMENT, BUT WHAT...
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| 00:32:11 |
Unidentified Speaker, -
YOU'RE TALKING ABOUT THE OFFICER, HE READS THE STATUTE AND THEN DOESN'T SAY, WELL, BUT MAYBE THE STATUTE'S UNCONSTITUTIONAL, SO I NEED TO DO MORE RESEARCH?...
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| 00:32:18 |
Unidentified Speaker, -
EXACTLY, YOUR HONOR. AND I THINK WHAT THE RESEARCH WOULD HAVE BEEN DONE, THEY WOULD HAVE LOOKED AT BARRY AND ALL THIS COURT'S OTHER CASES AND WOULD HAVE...
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| 00:33:03 |
Unidentified Speaker, -
TAKING THE OPPOSITE POSITION IN THE HEARING EN BANC BELOW WERE JUST BEING UNREASONABLE? IT WOULD HAVE BEEN UNREASONABLE FOR AN OFFICER MAKING THIS DETERMINATION...
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| 00:33:15 |
Unidentified Speaker, -
YOUR HONOR, THE -- MR. CHIEF JUSTICE, THE ONLY WAY I CAN ANSWER THAT IS TO SAY THIS COURT HAS NEVER MADE DETERMINANT OF WHETHER THERE ARE DISSENTS. I...
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| 00:33:31 |
Unidentified Speaker, -
I'M QUOTING, JUDGES -- WHEN JUDGES DISAGREE ON A CONSTITUTIONAL QUESTION, IT IS UNFAIR TO SUBJECT PUBLIC EMPLOYEES TO MONEY DAMAGES FOR PICKING THE...
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| 00:33:44 |
Unidentified Speaker, -
BROGUE GOES THE OTHER WAY. ULTIMATELY, ALL I CAN SAY, MR. CHIEF JUSTICE, IS I THINK THE FACT THAT THERE WERE DISSENTERS CAN'T BE DISPOSITIVE, AND ULTIMATELY...
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| 00:33:53 |
Unidentified Speaker, -
AGREE WITH THAT, OF COURSE, BUT AT THE SAME TIME, IT DOES SEEM THAT YOU'RE IMPOSING A VERY HEAVY BURDEN ON THE OFFICERS IN THIS AREA WHEN DO YOU HAVE...
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| 00:34:27 |
Unidentified Speaker, -
WELL, YOUR HONOR, I THINK - YOU KNOW, OF COURSE, I'M NOT SURE IT WILL ACTUALLY COME OUT OF THEIR POCKET, BUT I GET THE CRUX OF YOUR POINT. I DO THINK...
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| 00:35:52 |
Unidentified Speaker, -
YOU DON'T THINK THAT AN OFFICIAL READING ALL THIS COURT'S CASES SAYING SUBJECTIVE MOTIVATION IS NOT PROPER IN DETERMINING THE APPLICATION OF THE FOURTH...
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| 00:36:13 |
Unidentified Speaker, -
SO, JUSTICE ALITO, RESPECTFULLY. I THINK WHEN YOU PULLED OUT WHREN, WHICH, OF COURSE, IS THIS COURT'S LANDMARK DECISION ON PRETEXT -- WHREN COULD NOT...
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| 00:37:00 |
Unidentified Speaker, -
AMENDMENT DOESN'T SAY YOU NEED PROBABLE CAUSE. THERE ARE SITUATIONS WHERE YOU CAN CONDUCT A SEARCH WITHOUT PROBABLE CAUSE. THERE'S THE TERRY SEARCH....
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| 00:37:13 |
Unidentified Speaker, -
I THINK -- WELL, THE TERRY -- THE TERRY STOPS, I THINK WE PUT TO ONE SIDE, BECAUSE AS THE COURT IN TERRY SAID AND AS THIS COURT HAS INTERPRETED TERRY,...
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| 00:37:23 |
Unidentified Speaker, -
ADMINISTRATIVE SEARCHES, AUTOMOBILE SEARCHES, YOU KNOW. >> ABSOLUTELY,
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| 00:37:26 |
Unidentified Speaker, -
AND THOSE ALL FALL INTO THE SPECIAL NEEDS CATEGORY, AND THOSE WERE CASES YOU, YOUR HONOR, IN WHREN DISTINGUISHED AS CONCEPTUALLY DIFFERENT THAN WHEN...
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| 00:38:40 |
Unidentified Speaker, -
THAT IN -- A DUAL MOTIVE CASE WOULD NOT VIOLATE THE FOURTH AMENDMENT, OR WOULDN'T NECESSARILY VIOLATE THE FOURTH AMENDMENT. ISN'T THAT RIGHT? >> YES,...
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| 00:38:49 |
Unidentified Speaker, -
THINK THAT A REASONABLE OFFICIAL WOULD APPRECIATE, WELL, IT'S OKAY FOR ME TO HAVE A DUAL MOTIVE, BUT I HAVE TO STOP AND THINK -- IS MY INTEREST IN...
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| 00:39:10 |
Unidentified Speaker, -
YOUR HONOR, AND THE REASON IS BECAUSE I THINK IT'S -- I THINK IT ACTUALLY GIVES CUSHION TO THE REASONABLE OFFICIAL, BECAUSE I THINK ONCE YOU ARE SAYING...
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| 00:40:05 |
Unidentified Speaker, -
JUST CAN'T BE RESOLVED UNDER THE ISSUE OF MATERIALITY. THE MAGISTRATE ASKS THE PROSECUTOR WHY HE WANTS TO DO THIS, AND HE INFERS FROM WHAT THE PROSECUTOR...
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| 00:40:25 |
Unidentified Speaker, -
OF, I THINK, WHAT IS GOING ON HERE. WE HAVE SAID THAT BOTH THE FOURTH AMENDMENT AND THE MATERIALITY AS WELL AS OTHER PARTS OF THE STATUTE WOULD DEAL...
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| 00:42:00 |
Unidentified Speaker, -
THAT THE DESIRE TO DETAIN WAS THE SOLE MOTIVE FOR THIS? >> YOUR HONOR, I THINK THAT
|
| 00:42:07 |
Unidentified Speaker, -
THE CLEAREST ALLEGATIONS ARE AT 111 AND 112 AND 154 OF OUR COMPLAINT, IN THE JOINT APPENDIX. WHAT WE SAID IS IT WAS NOT TO SECURE TESTIMONY. AND I THINK...
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| 00:47:07 |
Unidentified Speaker, -
WHAT I THOUGHT YOU WERE ARGUING. YOU'RE SAYING YOU ALWAYS HAVE TO MAKE THAT DETERMINATION OF GOOD FAITH, RIGHT? IN ALL CASES, INCLUDING WHEN THE PROSECUTION...
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| 00:47:23 |
Unidentified Speaker, -
NO, YOUR HONOR. AND I -- JUSTICE SCALIA, I APOLOGIZE IF MY ARGUMENT WAS GOING BEYOND. >> THAT'S WHAT I
|
| 00:47:29 |
Unidentified Speaker, -
THOUGHT YOU WERE SAYING. >> I THINK WHAT'S GOING ON
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| 00:47:32 |
Unidentified Speaker, -
HERE IS THERE'S A UNIQUE SET OF FACTORS WITH RESPECT TO MATERIAL WITNESS, NOT THE LEAST OF WHICH IS THE HISTORY WITH RESPECT TO BOTH MATERIAL WITNESS...
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| 00:47:47 |
Unidentified Speaker, -
WE'RE DEALING HERE WITH A BIVENS ACTION? >> YES, YOUR HONOR. >> UNDER WHAT THEORY IS
|
| 00:47:53 |
Unidentified Speaker, -
THE HISTORY OF IMMUNITY AT SOME POINT IN THE 19TH CENTURY RELEVANT TO THE SCOPE OF THE IMMUNITY THAT SHOULD BE AVAILABLE IN A BIVENS ACTION? WHAT'S...
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| 00:48:06 |
Unidentified Speaker, -
THINK -- I DON'T KNOW THAT I HAVE AN INDEPENDENT FIRST PRINCIPLES THEORY. I THINK THIS COURT HAS SAID REPEATEDLY THAT YOU WILL KEEP THE IMMUNITIES COTERMINOUS...
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| 00:48:20 |
Unidentified Speaker, -
ANY SENSE? CAN UNDERSTAND IT WITH RESPECT TO 1983, ON THE THEORY THAT WHEN CONGRESS PASSED THE PREDECESSOR OF THAT STATUTE IT IMPLICITLY INTENDED TO...
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| 00:48:54 |
Unidentified Speaker, -
OF WHAT THE COURT'S ANSWER IS, IT'S A PRACTICAL CONCERN. THAT IT'S JUST TOO DIFFICULT TO HAVE DIFFERENT IMMUNITIES, AND THE COURT -- SO THE COURT HAS...
|
| 00:50:45 |
Unidentified Speaker, -
THANK YOU, COUNSEL. GENERAL, YOU HAVE 10 MINUTES REMAINING. >>
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| 00:50:50 |
Unidentified Speaker, -
THANK YOU. THIS IS A SIMPLE CASE. IT'S NOT ABOUT GUANTANAMO, IT'S NOT ABOUT SEPARATION OF POWERS, IT'S ABOUT ONE SIMPLE THING -- SHOULD WE ALLOW DAMAGES...
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| 00:52:21 |
Unidentified Speaker, -
ARE SOME ELEMENTS OF THIS PICTURE THAT ARE VERY DISTURBING, AND WE ARE TALKING ABOUT THE ATTORNEY GENERAL AND THE ATTORNEY GENERAL'S IMMUNITY. BUT THERE...
|
| 00:53:01 |
Unidentified Speaker, -
WITH RESPECT TO THAT WHOLE SET OF QUESTIONS, CONDITIONS OF CONFINEMENT, THAT ISN'T BEFORE THE COURT RIGHT NOW. WHAT IS BEFORE THE COURT IS EXCLUSIVELY...
|
| 00:53:35 |
Unidentified Speaker, -
TO GO BACK TO THE STATUTE. IF AN OFFICER FILLS OUT AN AFFIDAVIT FOR A SEARCH AND SAYS THERE WERE DRUGS IN THE HOUSE, SO I WANT TO SEARCH IT, AND IT TURNS...
|
| 00:53:55 |
Unidentified Speaker, -
A DAMAGES AGAINST THE OFFICER, NOT AGAINST THE
|
| 00:53:57 |
Unidentified Speaker, -
PROSECUTOR? >> NO, NO. I'M SAYING THE OFFICER, BECAUSE HE TOLD A LIE. >> YES. >> ALL
|
| 00:54:01 |
Unidentified Speaker, -
RIGHT. NOW HERE IT SAYS THAT THE PERSON FILLING OUT THE AFFIDAVIT HAS TO SAY HE IS A MATERIAL WITNESS. SO SUPPOSE THAT THE PLAINTIFFS WERE TO PROVE...
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| 00:54:46 |
Unidentified Speaker, -
SURE IF YOUR HYPOTHETICAL HAS IT AS THE PROSECUTOR WHO IS FILING THE AFFIDAVIT AND LYING OR THE AGENT. IF IT IS THE AGENT, I DON'T THINK THAT IS SOMETHING...
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| 00:55:18 |
Unidentified Speaker, -
FOR PURPOSES -- I WOULD SAY THERE IS AT LEAST NO ABSOLUTE IMMUNITY PROHIBITION AGAINST THAT. THERE MAY BE -- MAY BE RELEVANT UNDER OTHER LINES OF AUTHORITY....
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| 00:57:12 |
Unidentified Speaker, -
THANK YOU, GENERAL. THE CASE IS SUBMITTED. [CAPTIONING PERFORMED BY NATIONAL CAPTIONING INSTITUTE] [CAPTIONS COPYRIGHT NATIONAL CABLE SATELLITE CORP....
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NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.