On Tuesday, the Supreme Court heard oral arguments Martin v. United States.
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00:00Our argument first this morning in case 24362, Martin v. United States.
00:05Mr. Giacomo?
00:06Mr. Chief Justice, and may it please the court.
00:10Congress amended the Federal Tort Claims Act in 1974 to ensure a legal remedy for the intentional torts of federal police.
00:18The text of the law enforcement proviso is phrased affirmatively as a freestanding rule.
00:23With regard to acts or omissions of investigative or law enforcement officers of the United States government,
00:30the FTCA shall apply to any claim arising out of six intentional torts.
00:35The United States is therefore liable for these intentional torts when committed by FBI agents empowered by law to execute searches, seizures, and arrests.
00:45Petitioners bring the claims Congress expressly permitted, but the 11th Circuit held that sovereign immunity bars them.
00:52As a result, the court asks the parties to address two questions.
00:56First, whether the Supremacy Clause bars FTCA claims.
01:01The answer is no, and the parties agree.
01:04As a federal statute, the FTCA is protected by federal supremacy, not restricted by it.
01:10Second, whether the discretionary function exception is categorically inapplicable to proviso claims.
01:16The answer is yes, for two distinct reasons.
01:19Read in harmony, the provisions cover different categories.
01:22Once a plaintiff satisfies Section 1346B1 by alleging the elements of an intentional tort,
01:29the discretionary function exception does not apply because intentional torts require unlawfulness.
01:34There is no such thing as a discretionary intentional tort.
01:38Read in hostility, assuming interstatutory conflict.
01:41The text, informed by familiar canons of construction in this court's precedent, demonstrates that Congress gave the proviso's waiver of sovereign immunity the last word.
01:51The proviso is the clearest statement of liability in the entire FTCA.
01:55So the government's argument in this case and the 11th Circuit's holding below invite a simple question.
02:00If even proviso claims Congress amended the statute to affirmatively guarantee are barred by sovereign immunity,
02:08what is left of the Federal Tort Claims Act?
02:11I welcome the court's questions.
02:13How broadly does the proviso extend?
02:18Well, if this court reads the proviso in harmony with the discretionary function exception,
02:23it doesn't expand any more broadly than it needs to to make sure that those two don't come into conflict.
02:28But if the court presumes that there is conflict, your honor, then it would extend, supersede the other exceptions.
02:35So in this case, how would it apply?
02:37In this case, it would apply because the court would simply say the discretionary function exception doesn't apply to this category of claims.
02:44The law enforcement proviso does.
02:46And that's the end of the analysis for the second question presented.
02:49So how do we know in statutory interpretation how far a proviso like this applies?
02:55Well, your honor, there are a number of statutory canons of construction.
02:59And I think the answer to this specific question here is we know that it extends beyond simply subsection H
03:06because Congress stated it as an affirmative freestanding rule as opposed to somehow being parasitic to the language before it in subsection H.
03:15Well, wouldn't you expect it to be placed someplace other than in one subsection after a colon?
03:23So I would say as a general rule, your honor, the answer would probably be yes.
03:26But the reason the answer is no here is because when Congress enacted the law enforcement proviso,
03:33it understood that the only barrier to liability for the United States was the intentional torts exception,
03:39meaning Congress's understanding of the discretionary function exception is the same as the one I'm articulating here today.
03:45And you get that from what? The legislative history?
03:50No, your honor, we get it directly from the language of the law enforcement proviso.
03:54But the legislative history, or at least the context in which this amendment was made,
03:58make very clear that our interpretation is the correct one.
04:01But I guess I don't understand why in absolutely every case you say the two are mutually exclusive.
04:09I mean, isn't there a possibility?
04:12I mean, I completely understand your view that on the facts of this case,
04:17given the origins of how the law enforcement proviso came into being,
04:22it was a wrong house raid scenario, just like the one that you are addressing here.
04:28I understand how you say that this should not be a situation in which the claims are barred.
04:37But does reaching that conclusion require us to say that there can never be a situation
04:43in which the discretionary function exception applies in the law enforcement context?
04:50That seems to be what you're saying. Those two are just totally separate.
04:55And I wonder whether the kinds of policy determinations that I thought the discretionary function was about
05:02could arise in some law enforcement circumstances, albeit perhaps not here.
05:08So let me say a few things and then maybe we can have a dialogue about how this would operate.
05:13But to answer your question, no, certainly the petitioners in this case do not need this broader rule
05:19to be articulated for us to win this case.
05:22This is the quintessential proviso case.
05:25This is the type of case that motivated Congress, as we know from all the news coverage
05:29and the language of the statute, to enact the proviso.
05:32But, of course, we're offering this answer in response to the second question that the court granted here,
05:38which is asking categorically how these two things interact.
05:42But to get then to that question, it's simply the case that, as we can see from this court's precedent
05:48addressing the discretionary function exception and the broader intentional torts exception since 1946,
05:55there's been no overlap even between those categories.
05:58And so now we're moving into the space with intentional torts committed by law enforcement officers
06:03where there simply can't be a situation where you're exercising the type of discretionary function
06:08that the exception in 2680a covers, where you're also somehow committing an intentional tort
06:14because those intentional torts will all hinge on some portion of the elements or defenses being
06:20there's a lack of legal justification, there's no probable cause, or something along those lines.
06:26So I don't think it was quite fair to say that everybody agrees on the first question.
06:31Amikai doesn't agree on the first question.
06:35But putting that aside, because Amikai could address Nguyen, and I understand your argument on that first question,
06:43I believe it's that Nguyen, which was the basis of the circuit's decision,
06:50was a case involving state law conflict with federal law.
06:54There's no conflict here because federal law is what makes the officers liable, correct?
06:58That's correct, Your Honor.
06:59So there can't be a sovereign immunity preemption of federal law itself?
07:05That's correct, Your Honor.
07:06All right.
07:06Now, going to the second point, there are 12 exceptions besides the law enforcement exception at issue here.
07:15I don't think you quarrel with the proposition that if a police officer assaults someone in a foreign land,
07:24which is another proviso among those 12, that the intentional tort provision would not control, correct?
07:33That's correct, Your Honor.
07:34What you're asking us to do is to say 11 of the 12 other exceptions are still operative against the law enforcement proviso,
07:45but only this one, the discretionary one, is not.
07:49Is that your position?
07:51Not quite, Your Honor.
07:52Well, but that's what it sounds like to me because if the other 12 are applicable because the text itself of the law enforcement provision says
08:03that the provisions of this chapter, and the chapter includes all 12 of the other exceptions,
08:11shall apply to any claim for a police officer's assault and battery.
08:15Yeah, so if I could clarify what I mean, Your Honor, as we articulate in the briefs,
08:21we have two separate paths and two different interpretive methods for how the court could address QP2.
08:27On the first path, which is the harmony approach, there is not any overlap between provision A and subprovision H,
08:34and so you don't need to get into what to do if there's a conflict.
08:37If the court, as the government asks, assumes that there's a conflict here, even though none was found below in the 11th Circuit,
08:44then our analysis would extend beyond the reach of subsection H.
08:48And to address your specific textual question about the language of chapter 171,
08:54the government actually agrees with us at footnote 3 of its brief,
08:57where it says the appropriate natural reading of that means that the chapter 171 other than section 2680.
09:04And the reason why that's the case is because that same language appears in the preamble of section 2680,
09:10and it also appears in subsection C and subsection H.
09:14And so to take the position that subsection 2680 would cancel itself out
09:18would require the court to read that language differently in the preamble
09:22than how it would read it in subsection C and H.
09:25It does seem to me that what you're asking us to do is to answer the question we didn't grant cert on.
09:31So you're asking us to say that an intentional tort is never discretionary.
09:38As Justice Tanji Jackson mentioned, I'm not quite sure that's true.
09:44The case involving the Secret Service agent who arrested someone who appeared to be threatening a protectee,
09:53under state law, if that person was not engaged in conduct that directly appeared to be threatening,
10:03that might not be an intentional tort, a false arrest.
10:07And yet, I think there's enough measure of discretion of deciding when someone could be a threat
10:14to the president or to some other protectee that would fall within the discretionary.
10:19So let me respond in a few ways, Your Honor.
10:22First was your note about the scope of the second question presented.
10:27So I would say that our arguments here fall squarely within that scope
10:31because, as we explained, to understand whether there's a categorical application of one provision to the other,
10:37of course we need to know what the categories are to see if they overlap at all.
10:41And that's not some sort of word games from us.
10:44If you read the government's bio at pages 21 and 22 where they propose the language for what this court ultimately adopted as QP2,
10:53they follow on with the next sentence explaining that what's wrong with our position
10:57is that it mischaracterizes the scope of the discretionary function exception.
11:01And so that question is not only explicitly in the language of question presented to you.
11:05I'm not sure because there's a huge circuit split in a lot of judges talking about how to define the discretionary exception.
11:15Judge Bebas has a wonderful concurrence in which he says it's been read too broadly.
11:23I might be sympathetic to that argument, okay?
11:26But I don't know whether we should be answering it.
11:28So I agree that the court shouldn't be answering that broader question.
11:33And to clarify, in our cert petition, we relied on Judge Bebas's articulation of there being three separate circuit splits.
11:40We offered a fourth as well.
11:42And the one articulated in Section 2A of our cert petition is the one we're talking about here,
11:47this question of whether the law enforcement proviso and the discretionary function exception interact,
11:52and if so, what happens?
11:53And this court, of course, granted on that narrower question,
11:57which now asks the court only to consider what to do with intentional torts
12:00and torts that are committed by law enforcement officers,
12:03as opposed to the entire sphere of negligent torts that would also potentially come into play.
12:08So why wouldn't a perfectly sensible approach be to say,
12:13you might lose on whether the proviso applies outside of H,
12:18and send it back for further consideration of the discretionary function arguments
12:24that you've made before us that Judge Bebas has raised
12:27and that are the subject of I don't know how many circuit splits.
12:32Wouldn't that be a sensible course?
12:35So the reason I would suggest that the court doesn't take that approach, Your Honor,
12:38is that that would effectively be the court overruling the Nguyen decision,
12:42but leaving in place all the other bad decisions like shivers.
12:45We would leave in place everything as we found it, to be sure.
12:49And I don't doubt that there's an interesting circuit split
12:52that might merit our attention sometime soon.
12:55But this is an awkward vehicle to address it,
12:58given that it really wasn't teed up for us that way,
13:01because of the peculiar nature of circuit law below.
13:04So I would say, Your Honor, as the government argued in its bio
13:07for asking this separately phrased question to be taken,
13:11it said this is actually the threshold question, not for QP2.
13:14I understand that, but I think it thought a different version of it
13:18was the threshold question, and that is, how far does the proviso extend?
13:22Does it extend beyond H?
13:24Well, Your Honor, it-
13:25I think, I can understand how you'd read it, read it differently,
13:28but I think that's what the government was asking us to decide.
13:32Well, Your Honor, I would just point out again,
13:33at the bio at 21 and 22, they articulate this point,
13:36and they say that resolving this question of QP2
13:40is threshold to QP1,
13:42because the 11th Circuit's articulation of the Supremacy Clause bar
13:46is effectively just an importation of what it understands
13:49the discretionary function exception to be.
13:52And so if this court were to only address QP1,
13:55it would essentially be resolving the question only for the 11th Circuit,
13:58but leaving all the other circuits-
14:00I would answer both QPs, I think,
14:02but I'm wondering whether saying the proviso doesn't extend beyond H,
14:08but leaving you to argue below
14:10that the discretionary function exception
14:12doesn't include unconstitutional acts, intentional torts,
14:16and that would be something you could argue below.
14:19Now, if I can just, you can respond to that,
14:21but before I let you go.
14:23Okay.
14:24I'll be up here.
14:25Well, I got a lot of friends who want to have their chance, too.
14:29I'd also like you to address the government's suggestion
14:32that we shouldn't address the Supremacy Clause question
14:35because we don't need to in this case.
14:37Okay, so-
14:38Your thoughts about that?
14:39Sure.
14:39So the first question on why the court shouldn't simply say
14:43the answer is that there isn't a categorical situation for QP2
14:49and send it back
14:50is that then we go back to the 11th Circuit
14:52where the case law is such
14:54that there is no constitutional exception even,
14:56and so you're sending the petitioners back down
14:59into the 11th Circuit
14:59where even the government agrees
15:01that the 11th Circuit precedent,
15:03which will say it doesn't matter
15:04if the Constitution's been violated,
15:06you can still act with discretion,
15:08is wrong,
15:09and we'll be stuck there
15:10with the hope of perhaps getting en banc review
15:12of the 11th Circuit,
15:13and the government will have then short-circuited
15:15the Nguyen decision
15:16without having to confront
15:18the way that the discretionary function exception
15:19actually overlaps
15:21with the law enforcement proviso.
15:24Now, to answer the second question
15:26about why or whether this court should address QP1,
15:29of course it should address QP1,
15:31but the point that the government
15:33is trying to get the court
15:34to decide QP2
15:36on its preferred new text of QP2,
15:39which is whether it extends to the other 12 subcategories,
15:44that just goes to show
15:46that these two things are basically the same.
15:48The supremacy clause bar of the 11th Circuit
15:50is just a dressed-up version
15:52of the discretionary function exception
15:55as the 11th Circuit,
15:56and many of the other circuits
15:57have too broadly understood.
15:59And so this court can simply address
16:01by citing to Gaubert,
16:03here's where we know the line comes
16:05for the edge of the discretionary function exception
16:07without getting into every nook and cranny
16:10to still say,
16:11even with that line,
16:13maybe the further line not fully defined,
16:15we know that intentional torts
16:16committed by law enforcement officers
16:18are not going to touch
16:20that form of discretion
16:22as Congress articulated in subsection A.
16:25So would it be helpful to you
16:28that if we were to send it back
16:30on Justice Gorsuch's suggestion
16:33that we just address
16:34the categorical separation between the two,
16:39would it be helpful
16:39to say something about
16:43whether or not we are speaking
16:46to the scope or extent
16:48of the discretionary function exception?
16:50I mean, I understood your response
16:52to Justice Gorsuch to be
16:53that if you just say
16:55no categorical exclusion
16:58of discretionary function,
17:00it goes back
17:01and the 11th Circuit is going to say,
17:02fine, discretionary function applies, barred.
17:06And that your point is that
17:08even if there's no categorical preclusion,
17:12we still have to have a debate
17:15about the extent to which
17:16the discretionary function
17:18actually covers these situations
17:20or the one that you've presented in this case.
17:23That's correct.
17:24And I would even go a little bit further,
17:25Your Honor, and say
17:26if the ultimate result
17:28is this court takes
17:29the government's selected approach
17:31and just does answer
17:33basically each QP
17:34with a one-word answer
17:35and send the case back down,
17:37then it will also implicitly be saying
17:39that the exact sort of case
17:41that Congress amended this act
17:43to allow
17:43is going to be doomed
17:45by the 11th Circuit's precedent,
17:47which inverts the Galbert standard
17:48and says,
17:49unless something specifically tells you
17:51in federal law
17:52you can't do anything,
17:53you have open discretion to do it.
17:55No, we wouldn't be saying that.
17:57All we would be saying
17:58is that it is,
18:00we're deciding this particular case.
18:02I know you would like us to go quite far,
18:05but all we would be saying
18:06is that the proviso applies only to H.
18:11and the 11th Circuit's
18:14Supremacy Clause cases
18:17appear to be a workaround
18:19based on
18:21and trying to work around
18:23their prior determination
18:24that the proviso applies
18:27across the board.
18:28Now, that may not be good for you.
18:31I understand that.
18:32And that's why you're arguing
18:34what you're arguing.
18:35But as far as the development
18:36of our case law is concerned,
18:37why should we go further than that
18:39and get into this enormously complicated question
18:42about the scope
18:43of the discretionary function exception?
18:45So, Your Honor,
18:46I wouldn't ask the court
18:46to get into the more enormously complicated aspects
18:49of the discretionary function exception.
18:51Again, we're simply saying
18:52there's a line
18:53where it's obviously not going to touch
18:55things like the law enforcement proviso.
18:57And the reason that this court
18:58should get into that question here
19:00is because, as you explained,
19:02the 11th Circuit's workaround
19:03for what to do with this
19:05is its Supremacy Clause bar.
19:07But many of the other circuits
19:08have created workarounds.
19:09They're just messier
19:10and built into a factual analysis
19:12of each case
19:12where, for instance,
19:14all of the other cases
19:15except for Linder have held,
19:17well, of course,
19:18the discretionary function exception
19:19can't reach the sort of
19:21heartland law enforcement things.
19:22But maybe in this case,
19:24because it's an INS arrest
19:26or because it's something outside
19:27of what we perceive
19:28to be normal law enforcement,
19:30things are different.
19:31And so the line is being drawn
19:33right now by all the circuits.
19:34They're just confused
19:35about where to draw it.
19:36And because of that confusion,
19:38the line varies from circuit to circuit.
19:40And so if this court
19:40is going to take this issue up
19:42and provide any clarity,
19:43it should provide clarity
19:44to all of the circuits
19:45instead of just the 11th Circuit.
19:48And I think that's doubly important here
19:50because, again,
19:51Congress went out of its way
19:53in 1974 to go through
19:55all the steps it needed to go through
19:56to specifically amend the FTCA
19:59to say this very affirmative,
20:00freestanding thing.
20:02If you're a federal law enforcement
20:03who commits an intentional tort,
20:05we, the United States,
20:06not you, the officer,
20:07will pay for it
20:08to make sure that there's a remedy
20:09for the innocent victims
20:10of your mistake or wrongdoing.
20:13And so it's more important
20:14than simply just answering
20:15a categorical question.
20:16There needs to be
20:17some guidance on this
20:18so that this statutory provision
20:20actually has effect.
20:22Because going back
20:23to Justice Jackson's discussion with me,
20:26the result in this case
20:27of the Martin family
20:28having no remedy here
20:29is that that provision
20:31has no effect.
20:32It's a complete nullity
20:33if that is the outcome
20:34of this case.
20:37It does seem to me
20:38that we need to address
20:39the supremacy clause question
20:41because if we were to send
20:44this case back
20:45on the narrow grounds
20:46we've been discussing with you
20:47and that you're resisting so well,
20:50it's possible that the 11th Circuit
20:53could wind up agreeing with you
20:55that the discretionary function exception
20:57doesn't reach your case.
20:59Perhaps that requires
21:00the en banc court's intervention,
21:02but it might do so.
21:04And then it would still have
21:05its supremacy clause jurisprudence
21:07that would bar your case.
21:09So at the very least,
21:10it seems to me
21:11that we need to address that.
21:13Do you see it differently?
21:15And what are your thoughts about that?
21:17No, no, Your Honor.
21:18I think the court
21:18should definitely address
21:20the supremacy clause bar
21:21as the 11th Circuit articulated it
21:23because that bar, of course,
21:24as it's phrased as any actions
21:27that are within the nexus
21:28of federal officials' acts
21:29and within the furthest reaches
21:31of the Constitution
21:32are going to be provided
21:34supremacy clause protection
21:36basically takes away most of,
21:38if not all, of the thrust
21:39of the FTCA,
21:40which of course is why
21:41my friend Amikas
21:43on the other side has said,
21:45well, maybe we can just go back
21:46to private bills,
21:47which is, I think,
21:48the main mischief
21:50that Congress was intending
21:52to remedy with the FTCA
21:54in the same way
21:54that the mischief
21:56that they were trying
21:56to remedy with the proviso
21:58are the very sort
21:59of intentional torts
22:00committed by the FBI agents
22:01in this case.
22:06Justice Thomas,
22:07anything further?
22:09Justice Alito?
22:11Justice Kay?
22:14Justice Kavanaugh?
22:16Justice Jackson?
22:17Thank you, Counsel.
22:18Thank you, Your Honor.
22:22Mr. Liu?
22:25Mr. Chief Justice,
22:26and may it please the Court.
22:28This Court granted cert
22:29on two questions,
22:30one about the reach
22:31of the proviso
22:32in subsection H
22:33and the other
22:34about the supremacy clause.
22:36To resolve this case,
22:37this Court need only decide
22:38the question about the proviso,
22:40namely,
22:41whether the proviso
22:42in subsection H
22:43modifies the discretionary
22:45function exception
22:46in subsection A.
22:48The answer is no.
22:50Congress placed the proviso
22:51in subsection H,
22:53and given that choice,
22:54the proviso modifies
22:56only subsection H.
22:58It does not modify
22:59the discretionary function
23:00exception in A.
23:02That exception, therefore,
23:03bars petitioners' claims,
23:05and because it does,
23:06this Court need not reach
23:07the other question presented,
23:09which asks whether
23:10the supremacy clause
23:11bars those claims.
23:12The Eleventh Circuit
23:13resorted to the supremacy clause
23:16only because,
23:17under circuit precedent,
23:18the proviso in H
23:20modifies the discretionary
23:21function exception in A
23:23and renders that exception
23:24inapplicable.
23:25But if this Court
23:26rejects that interpretation
23:27of the proviso,
23:29it should simply affirm
23:30on the ground
23:31that the discretionary function
23:32exception bars petitioners' claims
23:34without reaching
23:36the supremacy clause issue.
23:38Now, petitioners have injected
23:39a third issue into the case
23:41whether their claims
23:43satisfy the discretionary
23:44function exception
23:45in the first place.
23:47In other words,
23:48whether they satisfy
23:49the two-part test
23:50this Court articulated
23:52in United States
23:52v. Gobert.
23:54But that issue
23:55isn't fairly encompassed
23:56by the questions presented,
23:57and it's not
23:58independently cert-worthy.
24:00In any event,
24:01if this Court
24:02does reach the issue,
24:03all they would need to do
24:04is reaffirm Gobert,
24:05because petitioners' claims
24:07clearly satisfy Gobert's test.
24:09I welcome the Court's questions.
24:12Can a proviso
24:13such as this
24:15extend more broadly
24:16than this case?
24:20So the presumption
24:21is a proviso
24:22applies only to the thing
24:24that it's attached to,
24:25but there are cases
24:27where the Court
24:27has found
24:28that presumption
24:29rebutted
24:30and has thus read
24:31a proviso
24:32to state
24:33a general
24:34freestanding rule.
24:35We don't think
24:36there's any indication here,
24:39any basis
24:39for finding
24:40the presumption
24:41that the proviso
24:42applies only to the thing
24:43that's attached
24:44to be rebutted,
24:45and so we think
24:46the general principle
24:47that a proviso
24:48applies only to the thing
24:50that's attached
24:50survives
24:52and applies here.
24:53I mean,
24:55your approach
24:56puts a lot of weight
24:57on strict adherence
25:00by draftsmen
25:01in Congress
25:02to organization
25:04along that line.
25:04it's certainly plausible
25:06that H
25:07was the main thing
25:08that the proviso
25:08was addressed to,
25:09but not necessarily
25:10the only thing.
25:11Yeah, I don't really
25:12think that's plausible.
25:13I mean,
25:13put yourself in the shoes
25:14of the 1974 Congress.
25:17It had before it
25:18all of Section 2680,
25:21the lead-in language,
25:22plus 13 exceptions,
25:24starting with A,
25:25ending with N,
25:26and if Congress
25:28had wanted to create
25:29a universally
25:30applicable proviso,
25:31i.e. one that applied
25:33to all 13 exceptions,
25:35I don't think
25:36they would have put it
25:37in the middle,
25:38in H.
25:39No, that's the most
25:40logical place
25:41to put it,
25:42but it's a heroic
25:44assumption
25:44to think back
25:45to 1974
25:46and put myself
25:47in Congress' shoes,
25:49but it's also,
25:50you know,
25:51they've got a lot
25:51of things going on,
25:52they're very busy,
25:53and if it applies
25:55logically more generally,
25:56I don't know why
25:57we wouldn't at least
25:58entertain that.
25:59Well, I don't think
26:00it applies logically
26:02more generally.
26:04All the textual
26:05and structural indications
26:06indicate that
26:08Congress put it in H
26:09because it wanted
26:10to apply in H,
26:11and so it's not just
26:13that it's in H,
26:14it's also that Congress
26:15used the phrase
26:17provided that,
26:18which is words
26:20Congress uses
26:21when it wants
26:21to introduce a proviso,
26:22which then triggers
26:23this presumption
26:24that it applies
26:25only to the thing
26:26that's attached.
26:26It's the fact
26:27that Congress,
26:28before they provided
26:29that,
26:30used a colon,
26:31which suggests
26:32that a connection
26:33between the proviso
26:34and the thing
26:35that immediately
26:35precedes it.
26:36It's the fact
26:37that Congress
26:37put a period
26:38after the proviso,
26:40which then separates
26:41the proviso
26:42from every other
26:43exception in the statute.
26:45It's the fact
26:45that even my friend
26:47concedes that it
26:47would be implausible
26:48for Congress
26:49to have wanted
26:50the proviso
26:50to apply to certain
26:52exceptions,
26:52especially subsection K,
26:55which is the foreign
26:56country exception.
26:57No one thought
26:58Congress wanted
26:59to open the door
27:00to the application
27:01of substantive
27:02foreign law
27:03in cases involving
27:04police conduct.
27:05It's the idea
27:07that there's
27:08a similar parallel
27:09proviso
27:10or exception
27:11in subsection C,
27:13and no one thinks
27:14that that exception
27:15applies to all
27:16the other exceptions.
27:17I think everyone
27:18agrees that that
27:19exception applies
27:20only to subsection C.
27:23And so I think
27:23you have
27:24all the relevant
27:26text...
27:26So, Counsel,
27:27what was Congress
27:28doing?
27:29It passed
27:30this proviso
27:32because of the
27:33Collinsville raids.
27:36Their officers,
27:38without a warrant,
27:39broke into a home.
27:40They tied up people.
27:42they were as
27:45threatening
27:46as in the
27:47current situation.
27:49Why bother
27:50if
27:51we accept
27:53that they had
27:54the discretion
27:54to think
27:55there was danger
27:56with or without
27:57a warrant,
27:59the emergency
27:59doctrine exception
28:00would let them
28:01break down a door?
28:03So, what was
28:04Congress thinking?
28:06So, I don't
28:06think that the
28:07conduct in the
28:08Collinsville raids
28:09falls within the
28:10discretionary function
28:11exception.
28:12But why?
28:12Only because
28:13there was no
28:13warrant?
28:14Because their
28:15conduct was well
28:17beyond the
28:17discretion conferred
28:18on them because
28:19it violated
28:20clearly established
28:21the amendment
28:22rights.
28:22That's interesting
28:23because in
28:25Garbert we said
28:26if an official
28:27drove an
28:28automobile on
28:29a mission
28:30connected with
28:31his official
28:32duties and
28:33negligently
28:34collided with
28:35another car,
28:37the exception,
28:38discretionary
28:38exception,
28:39would not apply.
28:41That was because,
28:42and I'm quoting,
28:43although driving
28:44requires the
28:45constant exercise
28:46of discretion,
28:48the official's
28:49decision in
28:50exercising that
28:52discretion negligently,
28:54I'm putting in
28:54that word,
28:55can hardly be said
28:57to be grounded
28:57in regulatory
28:58policy.
29:00I mean,
29:01I don't see the
29:01difference between
29:03that and saying
29:04that an officer's
29:06action in using
29:08a GPS to break
29:10into the wrong
29:11house has any
29:14policy related
29:15to it.
29:16It's like driving
29:17negligently.
29:18You got to that
29:19house by mistake.
29:21You drove negligently
29:23and hit someone.
29:24So I don't
29:25understand how
29:27the act of going
29:29into a wrong
29:30house can be
29:32discretionary.
29:33Well, we
29:34understand the
29:35discretion here
29:36to be the
29:36discretion as to
29:37how to identify
29:38the target
29:39of a search
29:40warrant.
29:41Oh, he had it
29:41identified.
29:42He got the
29:43right target.
29:45He just had
29:45the wrong house.
29:46It's not a
29:47question of
29:48did he make
29:49a mistake
29:50in his
29:52warrant application
29:53about this
29:54individual being
29:56a drug dealer.
29:58All right?
29:58There I might
29:59agree with you.
30:00Okay?
30:01I'm talking about
30:02a wrong house
30:03raid.
30:05He has the
30:05right target,
30:06the right house,
30:08but breaks into
30:09the wrong one.
30:10Right.
30:10And it's because,
30:11as the courts
30:12below found,
30:13of a reasonable
30:14mistake that the
30:16officer made.
30:16No, that's the
30:17issue.
30:17Is that
30:18consistent with
30:19Gobbert?
30:20And I'm asking
30:22you to explain
30:23to me how that
30:25formulation is
30:26consistent with
30:27Gobbert.
30:28Well, I would
30:29just run the
30:30conduct here
30:31through Gobbert's
30:32two-part test.
30:33So step one of
30:34the test asks
30:35whether there
30:37is a federal
30:38law or statute
30:40or regulation
30:40that specifically
30:42prescribes a
30:43course of action
30:43that the employee
30:44needs to follow.
30:45There is.
30:45Go get a search
30:47warrant for a
30:48drug dealer's
30:49house.
30:50Now, what policy
30:51says, now go
30:53search a house
30:54that's not the
30:55drug dealer's house?
30:56Well, no policy
30:57says that.
30:58And that is
30:59negligent driving.
31:00No policy says
31:02don't break down
31:03the wrong house,
31:04the door of a house?
31:05No, I, I,
31:06excuse me, of course,
31:08of course it's...
31:08Don't traumatize
31:09its occupants,
31:10really?
31:11Of course it's
31:12the United States
31:13policy to execute
31:14the warrants
31:15at the right house.
31:16I should hope so.
31:17But stating the policy
31:18at that high level
31:19of generality
31:20doesn't foreclose
31:22or prescribe
31:23any particular
31:24course of action
31:25in how an officer
31:26goes about
31:27in identifying
31:28the right house.
31:29And as the district
31:29court found
31:30at 52A,
31:31the sort of discretion
31:32left to the officers
31:34here to determine
31:34the right house
31:35is filled with
31:36policy considerations.
31:38The officers here
31:39were weighing
31:40public safety
31:41considerations,
31:42efficiency
31:42considerations,
31:44operational security,
31:45the idea that they
31:46didn't want to delay
31:47the start of the
31:48execution of the
31:48warrants because
31:49they wanted to
31:50execute all the
31:51warrants simultaneously.
31:52Those are precisely
31:53the sorts of policy
31:54trade-offs
31:55the officer makes
31:56in determining,
31:57well, should I take
31:58one more extra
31:58precaution to make
32:00sure I'm at the
32:00right house?
32:01Here, petitioners
32:02suggest, for example,
32:03that the officer
32:04should have checked
32:04the house number
32:05on the mailbox.
32:05Yeah, you might look
32:06at the address of
32:07the house before
32:08you knock down
32:09the door?
32:10Yes, and as the
32:11district court found
32:12at 52A, that sort
32:13of decision is
32:15filled with policy
32:16trade-offs because
32:17checking the house
32:18number at the end
32:19of the driveway means
32:20exposing the agents
32:21to potential lines
32:22of fire.
32:23How about making
32:23sure you're on
32:24the right street?
32:26Is that, is that?
32:27And how does that
32:28mean?
32:29Just the right
32:29street.
32:30No, I mean, I,
32:31I was just kind of
32:33checking the street
32:33sign, is that, is
32:34that, you know,
32:35asking too much?
32:36It, what I would
32:38say is exactly
32:39what the courts
32:39below found, which
32:40is that the officers
32:41here made a reasonable
32:42mistake as to
32:43where they were.
32:45The allegation
32:46from petitioners'
32:47claims is that
32:47they should have
32:48done more.
32:48They should have
32:49stopped and got
32:50out of the caravan
32:51of vehicles and
32:51checked the streets.
32:52I guess, Mr. Liu,
32:53the question is,
32:54how does that really
32:55differ from Colesville?
32:56I mean, the problem
32:57that I think is,
32:59sort of what is
33:00happening in your
33:01analysis, is that
33:02you say that the
33:04Colesville conduct
33:05does not fall within
33:06the discretionary
33:07function exception,
33:09which seems to me
33:10to be a concession
33:11that even if we
33:13agree with you
33:15that these aren't
33:16in two separate
33:16categories, law
33:18enforcement and
33:19discretionary function,
33:20we still have to
33:21figure out how broad
33:23the discretionary
33:23function exception is,
33:25which is the question
33:26you say we're not
33:27allowed to answer.
33:28The conduct in
33:29Colesville flunks
33:30the first step
33:31of the Gobbert
33:32two-part test.
33:33Is that the
33:33discretionary function
33:34test?
33:35Yes.
33:35All right.
33:36Well, so then we
33:36are having to assess
33:38the scope of the
33:40discretionary function
33:40in this context.
33:43I don't think so.
33:43I don't see how you
33:44can say we have
33:45separated that out
33:46of the question
33:47presented, we can't
33:47look at it, and
33:48you're still answering
33:49these questions in
33:50this way.
33:51No, because I think
33:53this case comes to
33:54the court on the
33:56assumption, as the
33:57courts below found
33:58at 17 to 18A and
34:00at 58A, that the
34:02conduct here did
34:03satisfy Galbert's
34:04two-part test.
34:05Now, the only out
34:06that petitioners have
34:07left then is to say
34:08that the proviso
34:09nevertheless removes
34:11those claims from
34:12the scope of A.
34:13That's what I took
34:14to be the threshold
34:15statutory question
34:16that this court
34:17granted cert to
34:18decide.
34:19If I may just
34:19address one point
34:21that my friend
34:22I'm sorry, counsel.
34:23You're doing exactly
34:24what the other side
34:25is doing.
34:25You are begging
34:27the question, which
34:29is how far is
34:30the discretionary
34:32exception goes.
34:34The other side
34:34wants an absolute
34:35rule that all
34:37intentional torts
34:38are not covered.
34:40You want the
34:41opposite, which
34:42is if there's any
34:43discretion in the
34:46activity, then no
34:48negligences or
34:49intentional actions
34:51are covered.
34:52The two of you are
34:53going into separate
34:54corners.
34:55I'm not asking for
34:56an absolute rule.
34:57I'm asking for the
34:58court to just stick
35:00with it's a testing
35:01gobbler.
35:01Yes, because you've
35:02got a great decision
35:03below, but is that
35:04fair?
35:05Sometimes that test
35:06will result in the
35:08United States being
35:09exposed to liability.
35:11Sometimes it won't.
35:12It's not an absolute
35:13test.
35:14If I may just address
35:15my friend's suggestion
35:16that the proviso did
35:17nothing when Congress
35:19enacted it, we don't
35:20view that to be the
35:21case.
35:22Before the proviso was
35:23enacted, officers like
35:26Guerra had two layers of
35:28protection from
35:29liability.
35:30They had the
35:31discretionary function
35:31exception, and then
35:33they had an extra
35:33special layer of
35:35protection provided by
35:36subsection H, which
35:38gave the United States
35:38blanket immunity for
35:40any claim based on a
35:42particular type of
35:43tort.
35:43What the proviso did was
35:45remove that special layer
35:47of protection, but it
35:49left in place...
35:50That is so ridiculous.
35:52Congress is looking at
35:54the Collinsville raid and
35:57providing a remedy to
36:00people who have been
36:01wrongfully raided, and
36:02you're now saying, no,
36:07they really didn't want to
36:09protect them fully.
36:10They were just going to
36:12take them out of that
36:13exception, but leave in the
36:16discretionary exception.
36:17I gave you discretion in
36:19Collinsville.
36:20The officers are
36:22permitted to break into a
36:24home if they think an
36:25emergency existed.
36:26That's why those officers
36:27did that.
36:28They may have been wrong
36:30about the emergency
36:31existing.
36:33They may have been wrong
36:34about the warrant law,
36:36but under your test, it's
36:39their discretion to arrest
36:42when they think there's an
36:43emergency.
36:43No, what we understand the
36:46proviso to do is to remove
36:48that blanket special layer
36:50protection in H. That
36:52requires the U.S. in these
36:54types of cases to battle it
36:55out under the discretionary
36:57function exception.
36:58And that's quite significant
36:59because there's a large set of
37:01cases that are going to flunk
37:02this court's two-part test in
37:04Galbert, chief among them the
37:06raids in Collinsville.
37:07And so by removing the
37:09proviso...
37:09That's right.
37:11Flunk it.
37:12All right.
37:13So by removing the proviso,
37:15it exposes, it requires the
37:17United States to hash it out
37:20under the discretionary
37:21function exception.
37:22As I say, there are plenty of
37:24cases that are going to fall
37:25outside that discretionary
37:27function exception.
37:28Thank you, counsel.
37:29Is there anything else you
37:30wanted to add to that point?
37:33No.
37:35Justice Thomas?
37:36Justice Salido?
37:37Just so I'm clear, we can say
37:44the supremacy clause is not a
37:45bar.
37:46I know you don't want us to
37:47reach that, but we can say
37:48that.
37:48We can say the proviso does not
37:50apply beyond age, and we can
37:52stop there and leave questions
37:54about how to apply the
37:55discretionary function exception
37:56to the facts of this case for
37:59remand, correct?
38:00That's right.
38:01I would say the courts below
38:03already did that analysis, and
38:05so a remand...
38:06But if so, they can say that.
38:07They can say that again on
38:08remand.
38:09Thanks.
38:10Justice Barrett?
38:11Justice Jackson?
38:12Can I just, before you leave
38:13the podium...
38:14Can I just ask you about your
38:17point that we should not reach
38:19the social supremacy clause
38:21question?
38:22I guess I have a concern about
38:24our jurisdiction in this
38:26particular set of situate, this
38:28particular situation, because I'm
38:30looking at 28 U.S.C.
38:321254, which outlines our
38:34certiorari jurisdiction.
38:35It allows us to hear appeals from
38:37lower courts by writ of certiorari
38:39granted upon the petition of any
38:42party.
38:43And the only question that we're
38:45looking at now that was put to us
38:48by petition is the supremacy
38:50clause question.
38:51The government, in this case,
38:53asked us in the bio to add the third,
38:56what we now call the second
38:57question.
38:59And so I guess I don't understand
39:01that, you know, I appreciate that we
39:03could also hear that question, but I'm
39:06a little worried about suggesting
39:07that we can exercise jurisdiction to
39:11resolve a question that never
39:12appeared, only a question that never
39:15appeared in any cert petition before
39:17us.
39:18Yeah, I don't think that's quite
39:20right.
39:20I understand the granting of the
39:24petition to be necessary for this
39:26court to exercise its power, but that
39:28once it's granted the petition.
39:31Then we can totally change it and add
39:32questions that don't exist?
39:34I do think it's within this court's
39:36discretion at that point to decide,
39:40for reasons of prudence or otherwise,
39:42exactly what questions it wishes to
39:44decide in reviewing the judgment
39:47below, because that's ultimately
39:48what's being reviewed as the
39:50judgment.
39:51Okay.
39:53Thank you, counsel.
39:56Mr. Mills?
40:00Mr. Chief Justice, and may it please the
40:02court.
40:03The FTCA does not make the United States
40:05liable for lawful acts of its agents.
40:09That is true for three reasons.
40:11First, Section 2674 makes the government
40:14liable only to the same extent as a private
40:16person in like circumstances under state
40:19law, and a private person cannot face state
40:22liability that conflicts with federal law.
40:25Second, Section 2674 reserves any other
40:29defenses, including those only available to
40:31government agents.
40:33Government agents are not liable for acts
40:35within their federal duties.
40:37Third, a federal court in an FTCA case
40:40stands in state court shoes, which means it
40:43must consider applicable federal law.
40:45Otherwise, the United States would be liable where a
40:48private person and a government agent would not,
40:51contradicting the statute.
40:53Thus, the United States can have a supremacy
40:55clause defense in FTCA cases.
40:58I welcome the court's questions.
41:02I don't quite understand your argument.
41:07I think you suggest that you can raise a sovereign
41:13immunity as a defense, a private individual?
41:21No, Your Honor.
41:22My argument is that a private individual can raise
41:25the supremacy clause as a defense to state
41:27tort liability.
41:28Okay.
41:30And they have in this court's case law.
41:32So Hunter v. Wood involves the government,
41:35this court giving a supremacy clause defense to a
41:39private railroad ticket agent who was following
41:42federal law.
41:43Do you think that a private individual can enforce
41:46federal law?
41:48Yes, Your Honor.
41:49So I think Hunter is a perfect example of that.
41:52There, the railroad agent was following a federal
41:55court order.
41:56Here, you have something similar with the agents
41:58following the warrant.
41:59You also have that sort of flavor in other cases.
42:03For example, when an airline denies boarding to someone
42:07who, under FAA regulations, doesn't show the proper
42:11ID, that's another example of a federal law duty.
42:14Why do you think the 11th Circuit took this tact of
42:19sovereign immunity?
42:21So I don't dispute the party's contention that there seems to be
42:28a concern based on the 11th Circuit precedent and its
42:33interpretation of the intentional tort proviso.
42:36But more importantly, I think the 11th Circuit was right.
42:39I think their position follows from Section 2674.
42:41But I guess, Mr. Mills, I mean, you're quite right, of course,
42:48that private parties can raise preemption arguments and that
42:52the United States could raise the same sort of preemption
42:55arguments.
42:56But I guess the question that I have is how is that really
42:59relevant to this case?
43:00Because that's not the nature of the immunity defense that the
43:0611th Circuit applied here.
43:08It wasn't a statutory preemption sort of argument.
43:12It was a, you know, basic sovereign immunity kind of argument.
43:16I disagree, Your Honor.
43:18I think it was a standard preemption analysis, just like this
43:22court's decision in Neagle.
43:23And so I think Neagle is a prong of this court's statutory
43:27preemption analysis that obviously comes up more rarely than the
43:32typical preemption cases.
43:33But it involves the exact same conflict between federal law says
43:36you must do this and state law says you can't take this action
43:40reasonably necessary to do that.
43:42So I think that you do have the same implied conflict that you
43:45would in other statutory preemption cases.
43:50And I think the private person, you know, the key there is that
43:53it's in like circumstances.
43:54So, you know, as an example, I would point the court to 28 U.S.C.
43:58530B, which says federal government attorneys are subject to
44:01state rules of professional conduct, quote, to the same extent as
44:05other attorneys in that state.
44:07And the lower courts and the federal government have read that
44:09language.
44:10Look at their bio in 161323 to mean that a preemption defense is
44:14available even though the federal statute references or
44:18incorporates the state rules.
44:20The government says no attorney can be subject to a state rule that
44:24conflicts with federal law.
44:26And because government attorneys are subject to them only to the same
44:30extent, therefore, neither can the government attorneys.
44:33And that's the exact same point I'm making here.
44:35No private person can face state liability that conflicts with and thus
44:39is preempted by federal law.
44:41And so within the scope of 2674, neither can the United States.
44:46But even if you set aside the private individual aspect, you still have the
44:52third paragraph in Section 2674, which provides any other defenses, including
44:57defenses available to government agents.
45:00On the petitioner's theory, Neagle, in the famous case where he protected
45:05Justice Field, escapes liability because he had a federal duty.
45:10But on the petitioner's theory, today he could turn around, Mrs. Terry, the wife of
45:15the assailant, could turn around and sue the United States for damages.
45:18And the United States would be civilly liable, even though Neagle was
45:23performing his federal duties.
45:24Same thing in this case.
45:26If the agents had gone to the right house under their theory and state tort
45:30liability would have applied under whatever the state law happens to be, the
45:34United States would be civilly liable for money damages, for going to the
45:38right house.
45:39So I think that underscores that there has to be a supremacy clause defense
45:43available when the federal agent was acting within their federal duties.
45:47And then the last aspect I would point to is this court's decision in Richards and
45:54Hess, where the court said you have to consider applicable federal law.
45:59Again, the court said that's the only way to make sure that the statute doesn't
46:04extend more liability to the United States than that faced by private
46:07individuals or the government agents.
46:10Here, applicable federal law includes superseding federal duties, and that
46:17follows directly from this court's decision in Neagle and the rest of the
46:20supremacy clause defense cases we cite.
46:23Mr. Mills, to be clear, the 11th Circuit is the only circuit that has adopted this
46:29particular line of thinking with respect to these kinds of cases.
46:32Is that right?
46:33That's right.
46:33No other court has considered it one way or the other.
46:36And how long, do you know how long this has been the precedent in the 11th Circuit, the
46:41application of the supremacy clause in this way?
46:43Since 2009.
46:46And in that 15 years, there have only been three cases before the 11th Circuit.
46:51The supremacy clause defense more broadly, the Cobb article we cite in the brief says that
46:57since 1787, there have only been 59 cases involving a supremacy clause defense.
47:02So, contrary to the petitioner's argument, this is not a defense that would swamp the FTCA.
47:07It simply means that when the federal agents are performing their federal duties, the United
47:11States can't be liable in money damages.
47:18Anything further?
47:20Mr. Salido?
47:22Mr. Salido?
47:22Mr. Salido?
47:25Thank you, counsel.
47:30Rebuttal?
47:30Thank you, Your Honor.
47:32I'd like to respond to a few of the questions that came up when my friend from the government
47:35was discussing things with the court.
47:39The first thing I'd like to point out along the lines of what Justice Sotomayor was asking
47:43is that the government's position in this case and the 11th Circuit's decision below,
47:47their understanding of the discretionary function exception would do two things.
47:51One, it would eat up almost all of the entire FTCA.
47:54But two, more importantly, it would certainly eat up all the claims that the proviso was enacted
47:59to provide liability for.
48:01And here, the language of the proviso itself is very direct.
48:05But the Senate report backs that language up.
48:07And there, the Senate talked about the fact that what they were doing was removing a barrier
48:11to liability, not just a barrier so the rest of the FTCA could then still get in the way,
48:17even though the officers had violated the proviso.
48:19And so to say that subsection A still applies to bar almost all of, unless you take the government's
48:26qualified immunity application, the claims that the proviso raises would mean that Congress
48:31has enacted a completely useless law in 1974.
48:35That simply can't be the case.
48:37Even addressing it to the circumstances of Collinsville, as Justice Jackson asked questions
48:43about, or this case, Gaubert doesn't apply.
48:46The government gets around this by taking the position that the 11th Circuit has taken,
48:50which is to say, unless there is something telling you you can't do this, and there's
48:54something either has to be a statute or clearly established law, you have discretion.
48:59That's not what Gaubert says.
49:01There's a whole step two to the analysis, which none of the courts in the 11th Circuit
49:05or elsewhere that take a broader approach consider.
49:08Of course, there's discretion in the colloquial sense when police are raiding a house.
49:12But that discretion is not legislative or administrative decision-making grounded in social or economic
49:17policy.
49:18It's the same discretion we see with driving a car or flying a plane or seizing horses in
49:23the Hadley case.
49:24And so it simply can't be the case that what Congress did when it enacted the proviso was
49:30to say, even though the officers in this case had a warrant commanding them to go to
49:34one address, there was discretion for them to go to another.
49:37So they should lose on step one.
49:39If we get to step two, there's no question that there was no policy here.
49:43As my friend said, the government's policy is to raid the right house.
49:47They didn't do that.
49:48The preparation is kind of immaterial to the ultimate result here.
49:52If you really, really meant to drop the pizza off at the right address, it doesn't matter.
49:56You still need to give a refund if you drop it off at the wrong address.
50:00Even then, if we look just to the concept of the conflict of the language, we assume that
50:05there's a conflict, which, again, we do not think the court should do and the court does
50:08not need to do.
50:10The decision in Alaska is on point with this case.
50:13We talk about colons and periods and indentations and the preamble.
50:18All of that stuff was available in Alaska.
50:20The government was on the wrong side of that case, and it made the arguments we're now making.
50:25And those arguments prevailed.
50:26And in fact, even the dissenting justices cited things that now support us here.
50:32Unlike in Alaska, where the proviso was limited to such claims, here we have an affirmative
50:37freestanding rule, as Justice Scalia requested.
50:40And unlike in Alaska, here, it doesn't matter that this was in the middle of the set of exceptions,
50:48because Alaska was the same way, the submerged lands provision was M, this other provision was
50:54E.
50:54None of that mattered.
50:55What's very clear here, from the language Congress enacted, and from the fact that it
50:59took the time to add this amendment, was that they wanted the claims, if they satisfied the
51:04proviso, to move forward.
51:06And it's crucial to keep in mind that if petitioners win on this issue, they don't win this case.
51:12We're fighting to get a day in court where then we can duke it out over the elements of
51:15torts and defenses under the Georgia element standard.
51:19So it's not as if this case being decided by this court will even render the government liable.
51:24We still have more steps to take, but we want to be able to take those steps, and through
51:29the law enforcement proviso, Congress said that we should be able to take those steps.
51:33Now, on the question about the second question presented in jurisdiction, I can't say whether
51:40there's a jurisdictional problem, but what I can tell you is that when we wrote RQP and
51:45then saw the government suggested language for narrowing it, we understood that to mean RQP
51:50but narrowed.
51:51If it was a completely separate issue that assumed the scope covered our claims, we would
51:56have objected that that was an inappropriate conditional cross-petition, but we didn't.
52:01And we rightly understood then that when this court did that, it was narrowing our question
52:06to the specifics that the government offered, as the government says at page 22 of its bio.
52:11That narrowing still requires the court to consider, to some extent, the scope of the discretionary
52:16function exception.
52:17And if it doesn't, the government's theory, which has prevailed across most of the circuits,
52:22that anything that has any element of judgment or choice is good enough to get you into that
52:27exception means that the FTCA will become largely a nullity.
52:31This covers cases like the law enforcement proviso cases, but it also covers the more run-of-the-mill
52:36cases like VA malpractice, where obviously a doctor has as much discretion to decide which
52:41artery to close off, than a police officer does which door to go to, or it will cover-
52:46Thank you, counsel.
52:49Mr. Mills, this court appointed you to brief and argue this case as an amicus curiae in
52:55support of the judgment below.
52:57You have ably discharged that responsibility, for which we are grateful.
53:01The case is submitted.