September 30, 2025 • 52 mins
Gabriel Olivier is an evangelical Christian who often shares his faith in public. In May 2021, when sharing his faith near an amphitheater in a public park in Brandon, Mississippi, the city’s chief of police confronted Olivier with a recently amended city ordinance requiring “protests” to occur in a designated area. Olivier repositioned himself but soon returned when the designated area proved remote and isolating. The city charged Olivier for violating the ordinance, and he pled nolo contendere and agreed to pay a fine. Olivier then challenged the ordinance under the First and Fourteenth Amendments, seeking an injunction prohibiting future enforcement of the law against his expressive activity.
The district court barred Olivier’s request for injunctive relief, applying the preclusion doctrine from Heck v. Humphrey, 512 U.S. 477 (1994). As a result, Olivier cannot challenge the ordinance, even though he alleges that it continues to restrict his speech and risks future penalties. On appeal, the Fifth Circuit affirmed, splitting from the Ninth and Tenth Circuits and deepening a circuit split on whether Heck applies to noncustodial plaintiffs who cannot access habeas relief. The Fifth Circuit denied rehearing en banc by one vote, over dissents arguing Olivier’s plea should not bar future constitutional protection. In July, the Supreme Court granted certiorari.
Featuring:
Nathan Kellum, Senior Counsel, First Liberty Institute
(Moderator) Tobias S. Loss-Eaton, Partner, Sidley Austin LLP
The district court barred Olivier’s request for injunctive relief, applying the preclusion doctrine from Heck v. Humphrey, 512 U.S. 477 (1994). As a result, Olivier cannot challenge the ordinance, even though he alleges that it continues to restrict his speech and risks future penalties. On appeal, the Fifth Circuit affirmed, splitting from the Ninth and Tenth Circuits and deepening a circuit split on whether Heck applies to noncustodial plaintiffs who cannot access habeas relief. The Fifth Circuit denied rehearing en banc by one vote, over dissents arguing Olivier’s plea should not bar future constitutional protection. In July, the Supreme Court granted certiorari.
Featuring:
Nathan Kellum, Senior Counsel, First Liberty Institute
(Moderator) Tobias S. Loss-Eaton, Partner, Sidley Austin LLP
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm Nate kas Merik, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society a virtual event.
Speaker 3 (00:23):
My name is Marco J.
Speaker 2 (00:24):
Lloyd, and I'm Assistant director of Networks with the Federalist Society.
Speaker 3 (00:28):
Today we're excited to host a Courthouse.
Speaker 2 (00:30):
Steps preview webinar an Olivier b City of Brandon featuring
Nate Kellum. Nate is Senior Council for First Liberty Institute.
Prior to coming to First Liberty, Nate was the founder
and chief council of the Center for Religious Expression. For
over three decades, Nate has defended religious liberty and courtrooms
across the country. He has handled more than five hundred
(00:53):
litigated cases and fifty appeals before a various federal appellate courts,
winning numerous landmark decisions. Our moderator today is Tobias loss Eaton.
Tobias is partner at Sidney Austin LLP, where he is
an appellate and regulatory litigator, helping clients naviate complex, novel
(01:14):
or high stakes legal issues. Tobias has written or co
authored over one hundred and eighty five briefs in state
and federal appellate courts, including over ninety briefs in the
Supreme Court. He has presented oral argument in the second, fourth, sixth, seventh,
and DC circuits and in state appellate in Supreme courts,
(01:36):
producing successful results for his clients and seventy percent of
the appeals, he argued. If you'd like to learn more
about today's speakers, their full bios can be viewed on
our website fedsoft dot org. If you have a question
at any point today's program, please enter into the Q
and A function at the bottom of your zoom window,
and we'll do our best to answer as many as
(01:56):
we can. Finally, I'll note it as always, the FRET
Society takes no position on particular legal or public policy issues.
In all experson's opinion are those of the speakers. With that,
thank you both for joining us today, and the floor
is yours.
Speaker 4 (02:13):
Thank you Marco, and thank you also, yeah for reading
the advertising boilerplate from my attorney Bio. Your check is
in the mail for that. Good afternoon, everybody. I'm excited
to be here with you and with Nate. I think
this is a fascinating case and one that actually I've
been interested in in quite a while. Nate and I
first connected about this case probably two fully years ago.
(02:35):
At this point, I was wearing my hat as the
co director of the Northwestern Supreme Court Clinic, and as
soon as the panel decision in this case came down,
we identified it as a candidate for Supreme Court review.
I got in touch with Nate. We didn't end up
working together directly on it, but I was pleased to
be able to write a Meekas brief supporting Nate's position
both at the cert stage and then the merit stage
(02:56):
in this case. So I'm really looking forward to talking
to you, Nate about this case and the winding road
of it. It took you to get here.
Speaker 5 (03:04):
It has been a winding road. But I'm excited to
be at this point. And yeah, I remember well our
first conversation.
Speaker 4 (03:11):
Well, and so before we dive in, I'll just say,
of course, everybody should please feel free to ask questions
as you go I've got the Q and a panel
open here, and you'll just have to bear with me
as I figure out how to work it. But if
you do have anything that you want to ask as
we're going along, just toss it in there and we'll
work it in. So, Nate, can you just start by
telling us about the facts of this case? How did
(03:32):
it arise?
Speaker 3 (03:33):
Sure?
Speaker 5 (03:35):
Gentlemen who I've gotten to know pretty well now, Gabe Olivier,
he lives in Brandon, Mississippi, and there's a local park.
And what would Gabe likes to do is he likes
to share his faith, is Christian faith, and he goes
to public places. And this park is particularly well suited
(03:56):
for this purpose because a lot of people attend to park,
especially we win. There are concerts and events going on
in a nearby amphitheater. So he ran the problems on
May twenty one when he.
Speaker 3 (04:09):
Goes out there for this purpose.
Speaker 5 (04:11):
But Brandon had passed a new ordnance and his ordinance
would require him to move some three hundred feet away
from pedestrian foot traffic, and that would be the folks
walking in and out of the amphitheater. And so he
checked it out. But he's quickly surmised that it was
just completely unworkable for what he wanted to do because
(04:32):
it separated his message from his intended audience, and that
seemed to be the whole idea behind the law in
the first place.
Speaker 3 (04:40):
And so he goes back to a place where we
can actually reach people.
Speaker 5 (04:43):
But he was promptly arrested, and then he plied no
contest and he paid a fine.
Speaker 3 (04:51):
But the thing is, he wanted to go back.
Speaker 5 (04:54):
He wanted to go back and be able to share
his faith, and he felt certain that he could be
able to chat challenge this law in court. And so
we talked about that, and I agreed this law seemed
patently unconstitutional, and so we found a lawsuit attempting to
enjoin this law from being applying against.
Speaker 3 (05:13):
Him in the future.
Speaker 4 (05:16):
And how did you first get connected with mister Olivier.
Speaker 3 (05:20):
He gave me a call. I'm not sure how he
knew about me, but we at the time.
Speaker 5 (05:26):
And then what I want to do now is work
for nonprofit Christian nonprofit then was centered for religious expression,
and now we're with First Liberty Institute and we provide
services free of charge for individuals who believe that their
constitutional rights have been violated, particularly as it would regard
religious liberty, and certainly that's what mister Olivier believed, and
(05:50):
that's how we ended up helping him.
Speaker 4 (05:52):
Got it well, and I think it's maybe not sort
of strictly relevant to the legal merits, but it sounds
like this ordinance was passed maybe in response to mister
Olivier's activities. Does it seemed like it was aimed at
him and maybe the group that he was preaching with.
Speaker 3 (06:07):
It certainly seems that way.
Speaker 5 (06:09):
It is very conspicuous in a sense that it seemed
to be geared toward his type of speech, although they
labeled it as protests and demonstrations in the ordinance itself,
but that did happen to link to what police officers
and how they referenced his speech in the past is
as a protest.
Speaker 3 (06:27):
That's not what he's there to do. He's there to evangelize.
Speaker 5 (06:31):
Nevertheless, that label stuck in the ordinance and that's how
they interpret as far as applying it to him. Really
seemed to be geared to doing something about his speech
because I believe they thought it was unseemly to be.
Speaker 3 (06:45):
In the park.
Speaker 4 (06:46):
Got it well, So then what happened in the District
court and in the Fifth Circuit Once you brought that suit.
Speaker 3 (06:52):
Well, that's when I started to learn about this hegbe.
Humphrey case.
Speaker 5 (06:56):
Wasn't really familiar with it before, but have certainly become
familiar with it since the court dismissed the case without
even considering the merits of it based on this Heck
doctrine that came from the nineteen ninety four.
Speaker 3 (07:10):
Case of Hag v.
Speaker 5 (07:10):
Humphrey, a case that really dealt with a prisoner, and
what the court was deciding there is whether a prisoner
can make a claim that really related to criminal process
that the planet if there had concerns about how the
prosecutors had handled the case. They believe that they introduced
(07:32):
some inappropriate evidence, that they destroyed some evidence that would
have been helpful to him, and so he saw monetary
damages in the Supreme Court hound that that's not nineteen
eighty three is really not a vehicle for him to
be able to bring this claim that they're really a
federal habeas corpus statue would be be more suitable.
Speaker 3 (07:53):
And so this Heg v. Humphrey case was applied here.
Speaker 5 (07:57):
Even though mister Olivier was seeking perspective really if that is,
relief for an injunction to enjoin this particular ordinance. So
that's what happened that the District Court and then and
then it went to the Fifth Circuit panel, and there's
a decision Clark b. Stadler that the Court cited that
(08:17):
seemed to indicate pretty strongly that that Heck doctrine actually
does apply to injunctive relief. From there, and it may
have been around this time that we had our discussion
device we found a petition for on Bock, which I
thought had a very good chance of being accepted, but
(08:41):
it was denied by a nine to eight count, which was.
Speaker 3 (08:45):
As we discussed before, was frustrating.
Speaker 5 (08:48):
It was just chantalizing, and it was really a difficult
thing to see. But by one vote we were not
able to get the full Fifth Circuit to consider, and
so that's when we turned to the Supreme Court.
Speaker 4 (09:01):
Well, and I assume a lot of our listeners probably
know about Section nineteen eighty three, but let's back up
a little bit there, just to make sure people know
the lay of the land. So I assume when you
brought your suit in the District Court on behalf of
mister Olivier. It was under section nineteen eighty three, which
is the federal Civil Rights Statute that allows people to
bring civil actions against state or municipal actors who have
(09:22):
violated or are going to violate their federal statutory constitutional rights.
Is that fair?
Speaker 3 (09:27):
Yeah, that's exactly right.
Speaker 5 (09:29):
It goes back to Civil Rights Act of eighteen seventy
one through forty two USC.
Speaker 3 (09:34):
Nineteen eighty three.
Speaker 5 (09:35):
What it allows is allows for citizens, if they feel
like they have constitutional rights Violet, they can seek relief,
they can see compensation should they have a right to
an in federal court through this federal statute.
Speaker 4 (09:50):
And the key thing that you were asking for was
the prospective injunction that would bar the ordinance from applying
to him, so that he could then go back out
and share his faith without fear of being arrested again.
Speaker 5 (10:02):
That's exactly right, Just very practical relief of being able
to go out there again without.
Speaker 3 (10:07):
Fear of rest.
Speaker 4 (10:08):
Got it well. And so obviously having rehearing on bank denied,
you know, by a single vote, is extremely frustrating. But
you did get what at least we Supreme Court practitioners
considered a pretty big silver lining, which is that you
got some fantastic opinions in the descents from the denial
we're hearing on bank.
Speaker 3 (10:27):
Yes, it's sort of like the second best thing, right.
Speaker 5 (10:31):
We did an excellent descent from from Judge Hoe, Judge Owen,
and Judge.
Speaker 3 (10:39):
I believe as well.
Speaker 5 (10:40):
And so yeah, we had three separate descents, and then
that was very helpful when we petitioned the Supreme Court
to consider.
Speaker 4 (10:49):
Yeah. Well, so then that brings us to the certain petition.
Why don't you tell us a little bit about the
two issues that you asked the court to design them
that they've now agreed to hear.
Speaker 5 (10:59):
Yeah, it is two distinct issues, though they both concern
just a basic right to having your your day in court,
because that's what we believe that mister Olivier was deprived
of here. Uh one is is the applicability of the
HEG bar to perspective relief? Should it apply to perspective relief?
(11:20):
Heck itself dealt with monetary damages. It seems to be
far more appropriate to apply in that scenario than to
someone who's seeking relief in the future.
Speaker 3 (11:30):
That's the first issue.
Speaker 5 (11:31):
In the second issue is whether the HEG bar can
apply to someone who had no access to federal habeas corpus.
And so with all this discussion about that being the
proper way for individuals like these prisoners who are seeking
relief that's that's what they need to pursue, it doesn't
(11:52):
seem to be applicable to someone who never had access
to that statue.
Speaker 4 (11:57):
Got it? And so I'm going to try to put
on the heat of your opponent now briefly, and I
think articulate the argument that the Fifth Circuit, at least
it seemed to have adopted on those points. And please
tell me if I get any of this wrong. I
think the theory is behind the Fifth Circuits rule that
(12:17):
if you could bring in a civil rights action under
Section nineteen eighty three to get an injunction against the
enforcement of a law that you had previously been convicted
of violating and you succeed, that sort of necessarily implies
that actually your conviction wasn't valid in the first place.
And that's ostensibly where the concern that animate Tech versus
(12:41):
Humphrey comes in, Although, of course, if you were never
in custody, then you know whether you had access to
federal hapeas is a separate question. Does that sort of
encapsulate the retrospective versus prospective piece of it?
Speaker 5 (12:55):
That's exactly right, And that certainly was a concern that
was uh uh that's the court uh really emphasized and
heck was was this idea that of respecting comedy between
federal and state courts and that uh, this would allow
uh what really a second bite at the apple if
(13:16):
if you're allowed to go in the federal court after going.
Speaker 3 (13:18):
To state court?
Speaker 4 (13:21):
Got it? And so what then you know what kinds
of you know, legal issues are these? Really is this
ultimately a sort of statutory interpretation case? There?
Speaker 5 (13:32):
There are some I think it's more of a statutory
understanding and interpretation as much to biasp cons Really, what
what's a play here? Is a court made doctrine and
that's this heck doctrine? Uh and really what is the
scope of it? How? What's the breadth of it? Uh? Well,
while you can see how it can apply to a
(13:54):
prisoner who has access to federal hapias and seeking monetary damages,
can it really applied to someone like mister Olivier who
was not a prisoner and is really focusing on relief?
That would not necessarily have any effect on the underlying conviction.
Speaker 4 (14:13):
So I think you mentioned you know this. The Heck
bar first came in in Heck versus Humphrey in nineteen
ninety four. Obviously, the Supreme Court is a lot more
textualist now in terms of how it thinks about interpreting statutes.
Do you have a sense of how that shift in
interpretive method might come into play here?
Speaker 3 (14:33):
I'm not really sure.
Speaker 5 (14:34):
I think that's a great question to bias, and I
don't know if I have an answer to it. I
agree with your premise that the Court is more textualist
now than it was in nineteen ninety four, but I'm
not sure that it would necessarily make a difference, because really,
I think what you're talking about, how does this Heck
doctrine apply, which really doesn't, is really not linked to
(14:55):
the verbiage of either the two statutes that were referencing here,
the Civil Rights and the Federal Habeas Corpus.
Speaker 4 (15:04):
Statute, got it, And so I think, and speaking of
the passage of time here, am I right that aside
from one of the so called shadow docket rulings earlier
this year, the last time the Supreme Court's rarely considered.
The scope of the backbar was Skinner versus Switzer, which
was twenty eleven.
Speaker 3 (15:24):
I think that's true.
Speaker 5 (15:27):
Yeah, it's it's been a while and there's there have
been some changes in the court since there. Again, I'm
not sure how much that will could change a possible
outcome here. Skinner itself an interesting case really, dealing with
someone bringing a nineteen eighty three claim as a prisoner,
was a post conviction claim and it was for DNA
(15:50):
testing that they wanted to have DNA testing. And the
question before the court was dealing with these two things
we've talked about is should this be brought under nineteen
eighty three or should this be brought under a federal
habeas corpus and the majority felt that issued is very
appropriate to be brought under nineteen eighty three. The dissent,
(16:13):
which was Kennedy, Ledo and Thomas, they disagreed. They thought
that it all be brought under federal habeas. I'm not
sure that that really has any impact here. What I
would like to think to bias, I don't know if
this will end up being the result, but I'd like
to think that this is a case where both the
(16:33):
majority and the dissenters in that case would see things
the same way because that matter did not deal with
perspective relief. Neither did it deal with this access to
a federal habeas Yeah.
Speaker 4 (16:46):
Well, so you mentioned the lineup in Skinner, so that
means the majority was the Chief Justice and then Justices Ginsberg, Scalia, Bryer, Soda, Mayor,
and Kagan. So obviously a little bit of a sort
of ideological scramble, at least compared to the you know,
the stereotypical lines that people focus on. Maybe the answer
is who knows, But do you have any sense of
(17:07):
sort of how this plays with, you know, the four
justices who joined the court since then, and whether it
breaks down on ideological grounds at all or are we kind
of looking at a free for all here?
Speaker 3 (17:19):
You know, you raised a great question to bus Uh.
Speaker 5 (17:22):
I tend to think that this case could be more
in line with what they refer to the high percentage
of cases where the justices actually do find agreement. We
tend to hear about the ones which when they don't,
those are the ones that are highly politicized. Those are
the ones we're here here about. The conservatives said this,
but the liberals said this, I'm not sure that that's
(17:43):
going to be the situation here, although there there I
think there could be some some of that in in
in their reasoning, but I think becall's uh, we're dealing
with a fundamental issue as far as having your your
day in court. I think this is something where we
can find.
Speaker 4 (18:04):
Broad appeal absolutely well. And I will pause for a second.
I see you've got a question in the Q and
A here, so I think this goes maybe a little
bit more to the underlying merits. But of course I
know this is very relevant to your day to day
practice as well. And the question here is whether the
Mississippi Religious Freedom Restoration Act might provide any help to
mister Olivier as to the merits of his claims related
(18:27):
to his preaching.
Speaker 5 (18:30):
Well, that's a great question, uh, And that's a question
that we would love to get to at some point.
To bias with this case is, as you know, what
we're looking for is really the ability to get to
the merits of that type of claim as well as
his free speech claim, is free exercise of religion claim.
I think I think all those would have considerable merit
(18:52):
and should be considered here and so that's what we're
trying to get to, is just to the point where
a federal judge will consider, hey, does this claim.
Speaker 3 (19:00):
Have a merit or not?
Speaker 4 (19:02):
Got it well? And actually, and this is one that
just cursed me off the top of my head. So
I don't actually know the answer to this, But if
you tried to bring the same set of claims in
the Mississippi State court, would you face the same kind
of obstacles.
Speaker 3 (19:18):
It would.
Speaker 5 (19:21):
With a Mississippi state court or are you referring to
like a civil court or in the criminal matter.
Speaker 4 (19:26):
Yeah, well, so if you if you saw an injunctive
relief in sort of the same kind of way that
you had in the district court, but in the Mississippi
state court, yeah.
Speaker 5 (19:34):
I think that would be we would have to have
some state claims, and so perhaps there could be something
that could be cobbled together where if conceivably, if you
brought a false arrest claim or something of that nature,
and then also you brought with it some constitutional claims,
that would be something that could be pursued. I believe
(19:56):
that for the most this isn't always the case, but
I do think that there are good reasons for bringing
federal claims. In federal courts, they're the ones that they're
more accustomed to dealing with these types of constitutional issues,
are more accustomed to nineteen eighty three claims, and so
it's something that is much better served, I believe, in
(20:19):
federal court if you're pursuing these types of claims well.
Speaker 4 (20:23):
And speaking of which, so that that brings us to
a precedent that features at least prominently in your opening
merits brief, and that certainly jumped out of me when
I first heard about your case, which is Wooly versus Maynard.
Can you tell us a little bit about what the
court decided there and how it plays in here.
Speaker 5 (20:41):
It's one of those fun cases Tobias, you know that
you read in law school where this was the license
plate case in New Hampshire where individuals took took issue
to the to the state motto being put on the
license plate of live free and data that actually they
wanted another option there and so uh and so, and
(21:05):
because of that, they did not want to be what
in essence would be a mouthpiece for the state. They
did not want to communicate that through their vehicle. So
that was that was at the heart of their claim,
but they had they had been uh convicted of violating
(21:27):
this law actually several times when when they when they
brought a claim an additional time in order to challenge it,
in order to enjoy it. And so it is really
the scenario is almost nearly identical to what we have here,
where you have someone who was convicted under what they
(21:49):
claim to be an unconstitutional law they want to try
to challenge it to enjoy it from being applied to
them in the future. In the same scenario in Woolley, uh,
they're younger abstention was was brought up uh and and
but the court really quickly discarded this this whole idea
that there could be any type of hurdle to these
(22:11):
these plaintiffs because they should have the right to have
the court consider the merits of their claims as it
would apply to their future activity.
Speaker 4 (22:23):
And so that case, I think supports the prospective retrospective
distinction that you're talking about, because while the heck bar
and younger abstention are different, the underlying question is still,
you know, are you essentially interfering with state proceedings? And
then woollie, the Supreme Court said, bringing a claim purely
for prospective injunction doesn't interfere with past or even necessarily
(22:48):
ongoing state proceedings as long as all you're asking for
is an injunction against future enforcement.
Speaker 5 (22:53):
Yeah, that's exactly right, and for that reason, that's that's
why we did sign Wolly. We think that it would
is really directly in line with that particular issue that's
before the court.
Speaker 4 (23:05):
And what answer, if any, did you get about Woolly's
application from the Fifth Circuit judges who were not persuaded
by your position or did it even come.
Speaker 5 (23:15):
Up and they didn't address it, so so I don't
really know, but they really did focus on the things
that you talked about, and also, certainly in fairness to
the panel, they relied heavily on the Card case and
they felt really constrained as to what they could do,
that they couldn't really go beyond what was precedent in
(23:35):
that court.
Speaker 4 (23:37):
Well that you know that that brings up an interesting
question which I've dealt with a couple of times myself.
I think people tend to assume that by the time
a merits case reaches the Supreme Court, the arguments have
been you know, sort of perfectly ventilated and articulated by
either side in the lower courts, but here the district
(23:57):
Court and the panel both felt that they were strained
by the Circuit President and Clark. Then you actually didn't
get rehearing on bonks by that narrow one vote denial.
And then the search stage briefing, you know, as it
naturally is, is just focused on really should the court
here the questions at all, and less so than merits.
And I think your your opponent's brief is still about
(24:18):
what three weeks away, do you feel like you've actually
seen the best arguments on the other side of this case?
Speaker 3 (24:23):
Yet, I think two guys and.
Speaker 5 (24:29):
There are arguments were certainly different, and I trust that
there's probably will be be a little bit as well
at the at the petition stage, because what we're trying
to point out there is that there there's a service
flit service slitch is really undeniable on QP two, and
that is dealing with this issue of access to federal
(24:53):
Habeus corp. I mean, it's like very deep divided like
six to five. And then with the first where point
to a Ninth Circuit decision that will completely different from
the Fifth Circuit on this issue, And then also there
was some strong dictum in the tenth Circuit as well,
so we found only we could demonstrate the split. Certainly
(25:15):
a substantial part of their briefing at the cur petition
stage was no, there actually isn't a split. So so
you did have that that disagreement. But they did get
into the merits, and I'm not sure that there there
is anything left substantively. Perhaps they can can argue it
a little bit different, maybe they can find a different
(25:36):
way of of taking the same tact, but but what
I would expect is essentially the.
Speaker 4 (25:42):
Same got it well. And so what you know, at
the risk of making you played devil's advocate, what do
you think is that the capital summary for the city's
position on the merits? Why should heck bar prospective claims?
Speaker 3 (25:56):
Yeah, I think it does get get back to.
Speaker 5 (26:02):
Some of the some of the the the things are
brought up and hack and that was and that was
that goat by the Fifth Circuit about uh, respecting state
courts and and that that certainly we need to have,
Uh we don't. We're not really being being helpful with
(26:24):
federal courts if we're if we're constantly overturning things that
the state courts are doing, and so there has to
be respect there for those parallel jurisdictions, and and respect
for for what's going on with the state criminal court UH,
and and be concerned, I believe about UH actions that
seem to be an in run where you didn't like
(26:45):
what happened in state criminal court, and so what you
so I'll just filing in federal court and see if
I can get.
Speaker 3 (26:51):
My way there with a different judge.
Speaker 5 (26:53):
And so I think that's the kind of thing that
they want to avoid, and so I think that's probably
their their best argument. I just don't think it really
fits particularly well with the way it's being set up
here because of our focus on perspective relief. While if
the claim was about damages, where this was about false arrest,
which really goes to the heart of whether or not
(27:14):
that conviction was correct or not, then that could be
a different issue. But when the focus is more on
the constitutionality of the ornates itself and not really what happened,
we're not trying to revisit what happened, I don't think
as much got it.
Speaker 4 (27:33):
Well, it looks like we've got another quick question in
the chat here. This is another one that I think
is a little bit maybe geared towards the First Amendment merits.
But the question is whether Snyder versus Phelps gives you
any support I think on the sort of underlying merits
question of whether mister Olivier has a right to share
his faith in this public way.
Speaker 5 (27:52):
Well, I think that that issue has certainly come up,
and in fact, that's something that they brought up or
something similar to that. As far as I'm sorry, I'm
back up a little bit with Sneyner versus Phelps really
talking about protection afforded offensive speech, that that just becomee
speech is offensive, doesn't mean it lacks protection. And so
(28:16):
that's something that that was uh dealt with there with
Sneinner versus Phelps dealing with these remarks at at funerals
where where it seemed to be uh distasteful, disdained, but
nevertheless constitutionally protected.
Speaker 3 (28:32):
And and so there I think that in the briefing.
Speaker 5 (28:36):
From the other side, they have taken some some I
think some cheap shots at at mister Olivier, uh and
and really is mischaracterized his speech in a lot of ways.
But but but the tenor of it seems to be
that Uh, yeah, he's saying things that really should not
be protected. He's saying things that that are offensive that
people don't like, and it really shouldn't be protected in
(28:57):
the first place. And so although I don't believe it
goes anywhere near to like a Snyders versus Phelps level,
certainly I would say if he's talking about sin, he's
talking about people committing sin and the need for God,
that plenty of people find that offensive, and so there's
(29:20):
no question that offense is a reality there. And so
in that same way, even though we have different facts,
the principle would apply understood well.
Speaker 4 (29:33):
So some of the arguments here, in particular on the
prospective versus retrospective point, I think, touch on whether mister
Olivier's claims are more like a common law and malicious
prosecution suit, which the Supreme Court has said requires a
favorable termination of the underlying prosecution before you can sue
over it, or if his claims are more like an
(29:55):
anti suit injunction, which doesn't have the same kind of requirement.
And when I was reading that portion of the briefing
to me, it suddenly sort of snapped my mind into
the motive analysis that we do in Second Amendment cases. Now, right,
we're sort of looking for historical analogs. But as we
talked about before, this is ultimately sort of a statutory case,
at least at the top level. So how does that
(30:16):
sort of exercise of looking for analogies fit in here
and thinking about what claim is or is not allowed.
Speaker 5 (30:23):
Well, that was something that the court dealt with in
depth in Heck itself, where the court found malicious prosecution
to be a tort analog. Really with the idea of
trying to determine, Okay, if this constitution claim is viable,
we have to look at what the elements would be.
And so to figure out what the elements would be,
(30:45):
then we have to look at the tort analogy. And
there was a malicious prosecution which made a whole lot
of sense because his claim centered on the actions of
county prosecutors, what they did, what they didn't do, and
so that was at the heart of that particular case,
and that's why I think the malicious prosecution.
Speaker 3 (31:03):
Was certainly appropriate analogy there.
Speaker 5 (31:06):
And then getting to that element, well, you have to
have a favorable termination in statecore before you can bring
a malicious prosecution claim or they're a constitutional claim. Well,
so I guess a couple of things Tobias is. One
is it is not all constitutional claims necessarily require a
(31:26):
toward analog. And so while I think it can be helpful,
I think it was certainly helpful in Heck itself, I
don't know if this is particularly helpful here because particularly
when you focus in on the injunctive relief, when you're
talking about claim a free speech, free exercise of religion,
there really isn't a tort analog. So I don't know
if that's even a road that the court needs to
(31:48):
take here. I don't know if they really need to
go down that path, but they did. Yes, anti suite
injunction would seem to be far more analogous here, and
that doesn't have the same favorable termination requirement.
Speaker 4 (32:02):
Yeah, so that was going to be one of my
questions is you know, I think I think a lot
of us are familiar, you know, either in our practice
or for those of us who aren't lawyers, you know,
just seeing in the press cases that involve people litigating
to protect their First Amendment rights, and normally the thing
that you have to wash there is just that what
the government is doing is restricting your speech or would
restrict your speech or your exercise of your religion, and
(32:25):
not that you also have to check any sort of
additional boxes along the way to establish the merits of
your claims.
Speaker 3 (32:31):
Yeah, and I think that's what makes.
Speaker 5 (32:35):
Different from from this case, and something that we try
to harp on in the marriage brief device is that
there it centered on monetary damages, getting compensation for the
actions of prosecutions, and so when you have a damages claim,
I think that's when a toward analogo is far more appropriate.
As here, if there would be was a false arrest
(32:58):
type component to this that if we said his constitutional
rights were violated because he was falsely arrested, well with
then that would make more sense to have a toward
analog and to analyze, okay, what was it require than
to establish a false arrest twart. But here, when it
is purely really a constitutional claims, it is just not
(33:20):
as relevant understood.
Speaker 4 (33:24):
And I know that some of the other arguments here
have at least touched on the fact that another plaintiff,
someone other than mister Olivier, who hasn't been convicted of
violating the lawn in question, could still get an injunction
against its enforcement, and at least until recently, if I
were the city's lawyer, I would have said, well, that
cuts against mister Olivier's position, because even if he can't
(33:44):
get an injunction, somebody else can get one, and that
injunction might help him anyway. But of course, as I'm
sure a lot of our audience knows, the Supreme Court
recently held in Trump versus Cassa that's so called universal
injunctions are not proper, meaning federal courts can't issue injunctions
that benefit non parties. So does that point now for
the tip in your direction, because everybody needs to be
(34:05):
able to get their own injunction.
Speaker 3 (34:07):
I think so.
Speaker 5 (34:08):
I think I think that's very helpful because and that
has been an argument that we have seen from the
other side where where they have pointed out the existence
of this this other person who is pursuing constitutional claims,
because what we have, what we have argued, is that
is really spoke to the inequity about the situation where
(34:30):
you have a person who is charged and convicted under
what we believe is an unconstitutional ordinance, and yet he
is forever barred from challenging it. Ever, no matter to
the context, he can never challenge even though he wants
to continue to go out and he's subject to arrest
under that same unconstitutional ordinance. And so as as way
(34:53):
of rebuttal, what we've heard from the other side is well,
that's not necessarily the case. He may not be forever
barred because other people challenging. In fact, there is this
one person who's challenging. So if that person obtains a relief,
that relief could could also be attributed to mister Olivier.
There are some questions about that because their claims aren't
exactly the same. They really come at it from from
(35:15):
from different different ways, different different types of speech. But nevertheless,
I think your point is well taken to bus is
that that I think that argument is largely gutted now
because of the Trump versus cost of case in a
sense that in order for mister Olivier to get relief
for mister Olivier, he has to be able to bring
(35:36):
his own claim.
Speaker 4 (35:38):
Well there, and even before Come versus Cossa narrowed the
scope of available injunctions, there was still something of an
irony in that response from your opponents, because I can't
remember Now, whether it was Judge Hoe or Judge Oldham
who pointed it out in the Fifth Circuit that somebody
who's been convicted of violating and apparently unconstitutional law is
maybe the ideal plaintiff to actually challenge because of course
(36:01):
they clearly have standing to do so it affects them concretely.
Speaker 3 (36:05):
Right.
Speaker 5 (36:05):
Well, yeah, I think they both touched on it, and
Judge Ho really really referred to it as a catch
twenty two where because and that is something that that
civil rights plants face a lot of you, as you
well noted to bise, is really the ability to establish standing.
(36:26):
You can't just challenge a law out of the blue
because you think it's unconstitutional. You have to demonstrate that
this law would have been applied to you. And what
better way to show that than it actually has. And
I think that was Judge Hoe's point. There is a
very good one, is that in requiring these planets to
(36:48):
establish standing, it's just it just doesn't seem right or
constitutional to be able to take that away under some
other doctrine.
Speaker 4 (36:58):
Well, so, pivoting a little bit from the sort of
legal nuts and bolts, what do you see as the
potential practical implications of the Supreme Court's decision here and
in particular, you know, how much does it matter whether
they design one question or the other question, or or
both of them.
Speaker 3 (37:16):
Uh, The implications are huge.
Speaker 5 (37:19):
I believe devis UH and I think it goes far
beyond like folks like us who would like to sit
around and talk about leaqual issues. I think it has
some very practical implications for civil rights plans where if
you're denied your your day in court, you're in essence
denied your constitutional freedoms. It's a critical core lary. If
(37:42):
you don't have a right to be able to assert
those freedoms, you might as well not have them. And
that that's that's been I think proved out here with
with mister Olivier.
Speaker 3 (37:52):
So that's really what's at stake with with both of
these issues.
Speaker 5 (37:56):
Where we were really does come down to, uh, does
and civil rights planets deserve their day in court to
have their their claims hurt? Now, as far as the
two different issues, yeah, I think the first is first
for for good reason that that's that's the one that
that we felt was the the more prominent of the two,
although we think both have considerable merit.
Speaker 3 (38:18):
Uh. But but we listened to.
Speaker 5 (38:19):
The the perspective relief first because that that's that's the
one that just seems seemed to stick out more. Even
though there wasn't as much of a circuit split as
there as there was with with the second one, we
just felt that it.
Speaker 3 (38:32):
Was just much more egregious. And so UH.
Speaker 5 (38:36):
The United States has has filed in a Mikus brief,
which we're very excited to receive, and and they took
the position there that the court should rule it in
our favor on QP one uh, but but not on.
Speaker 3 (38:53):
Q P two. Uh.
Speaker 5 (38:56):
But in in framing it, UH, the U S stated
that really shouldn't even consider QP two and just ruling
our favorite on QP one. And of course that would
be an excellent result. And if that's the case, we'd
be very happy with it.
Speaker 4 (39:10):
And just as in case it may not be obvious
to some of our audience, that is a possible outcome here.
That would still be a win for mister Olivier, because
these are independent rounds for the heck bar not to
apply to him. Right, So if you're right about either
the first or the second, his suit can go forward.
But the city has to win both in order to
stop it.
Speaker 5 (39:30):
Yeah, thank you so much to my ask for that clarity.
That's exactly right, and that's the way that these two
things work. So if we win on either one of them,
mister Olivier works wins here and and that and that
that he'd be able to pursue his.
Speaker 3 (39:44):
Day in court.
Speaker 4 (39:46):
Well, and you're your mention of the United States as amgas.
It was a nice segue into my next question. You know,
you're scrolling on the docket on this case. It's just
a megas reef after amcus reef after a megas reef.
On your side of the case, your position a man
merits brief are both supported by an impressive and pretty
diverse array of amiki. Can you tell us just a
(40:07):
little bit about one, just the process of finding folks
to weigh in here to lend their support, and then
also thinking about different angles for them to cover, which,
of course, the more amiki you have in some ways,
the more challenging that is.
Speaker 5 (40:20):
Yeah, we're very excited, uh for the Mika support at
both the cert stage and and the Meriage stage. We
received I believe is thirteen at the at the cerch
stage and sixteen plus the US at the marriage stage.
And that's that's just outstanding macas support and so we're
(40:43):
we're so glad and grateful for it. And not just
the not just the quality, but also the quality, I
mean really some some excellent analysis that that's set forth
uh in the the the AMIICAS briefs able to touch
on some things that really to our page limitation sometimes
we can't do. We do actually have an excellent staff
(41:06):
at First Liberty that that try to help coordinate AMCA's support,
and I definitely do not want to belittle their efforts
because they have worked very very hard on it. But
I believe that the most compelling thing has been the
issue itself. We present it, we say, hey, we've gone
to organizations uh and attorneys who do AMIICAS briefs, and
(41:31):
we've just received very positive feedback.
Speaker 3 (41:34):
It just seems to resonate that that.
Speaker 5 (41:38):
Is almost a guttural type feeling that visceral is like, yes, uh,
there's something wrong here and we want to be part
of it. And so that's that's the type of support
we've received here.
Speaker 4 (41:48):
And in that process, you know, how much of it
is your team suggesting potential angles or subjects to you, Ormiki,
how much of it is them saying, hey, we've got
something we want to say about this, or how much
of it maybe is sort of happened between A lot.
Speaker 5 (42:04):
Of that is is really we're interested in receiving whatever
type of support that uh mickey are willing to lend,
and so were It's not as though we've tried to
look for particular angles or to particular support on an issue,
or or as as much as we've asked them what
(42:26):
they're interested in doing. If someone says, hey, we want
to be part of this, we want to participate, but
but we're not. We're unsure how to have what's the
best way we can We can certainly and we have
made suggestions in that regard, but but for the most part,
it's it's were they all. These are different organizations, these
(42:46):
are different individuals who come at it from their own perspective,
and so I think what they have done is they've
been truated in their perspective of how it could affect them,
just as a United States asks just how it can
affect them what they're interested in, and that's what they've
spoken into. And I think it's just really worked out
very very well because it's addressed both issues, and really
(43:08):
I believe that between our merits brief and the amicus
briefs that we've been very thorough in dealing with their arguments.
Speaker 4 (43:17):
And speaking of the United States's interests here, I was
mildly surprised to see one of the grounds that the
government identified for weighing in here is that the court
decision in this case could potentially affect suits against federal
officials and agencies. And that surprised me just because Section
nineteen eighty three is available for suits against state and
(43:38):
municipal actors, but not against federal officials. Do you have
any sense of what was sort of motivating their concern there.
Speaker 5 (43:46):
I'm not sure, As you know, to mass part of
the United States, just like any other amikas, as an
introductory part, they need to demonstrate what was your interest
in this case? Why are you interested in it? So
they set forth this paragraph, and that's the reasons that
they mentioned. I can only assume that they're referring to
like Vivin's actions, which are or corresponding actions where you
(44:09):
can bring constitutional claims against federal officials. And so because
there is possible constitutional claims against federal officials. They'd be
concerned about something like this and they want to weigh
in on it.
Speaker 4 (44:23):
Understood well, and some of our audience may know that
when you reach the merit stage at the Supreme Court,
if it's private party versus private party, or it's private
party versus state, everybody wants the federal government as an
amycus on their side if they can swing in true
and the so Listener General's Office often holds what it
is sort of almost like a little mini audition or
(44:43):
moot process where each party goes in separately and essentially
pitches the government on joining their side. I assume you
had to do that song and dance here.
Speaker 3 (44:54):
We did.
Speaker 5 (44:54):
We did, and it's a very interesting process and it's
just as you described it, uh de bis where we
were told that they met with the other side right
before us and and and they were they were friendly,
but it was more like a panel.
Speaker 3 (45:14):
I mean, they.
Speaker 5 (45:14):
The they're they're there are very difficult, hard questions, uh
that that that they posed. But but we're still very
heartened by it because there are a lot of attorneys
there from their Civil Rights division, and we thought that
signaled a strong interest in the uh uh uh civil
rights and religious liberty freedoms that they were bringing in
(45:35):
the case.
Speaker 4 (45:36):
And I assume then that they followed their usual habits
so that you didn't actually know if they were going
to support you until you actually saw the brief come in.
Speaker 3 (45:44):
So sure, that's exactly right.
Speaker 5 (45:47):
So you don't know until yeah, you don't know that
they're going to uh appear at all. Uh, and if
they do appear, you don't know if it's going to
be for you or against you until you actually see
uh the brief itself. And so that that was our
first indication, And so it was it was both a
cyber relief and in elation when we.
Speaker 4 (46:06):
Saw it absolutely well. And you mentioned, of course, you know,
one of the reasons that this case seems to resonate
with so many people, including of course with the government,
is that the facts clearly implicate important religious liberty issues.
But you know, those questions don't technically have anything to
do with the legal doctrine, with the questions percented about
(46:27):
the scope of the heck bar. So how do you
think that the religious liberty concerns, if at all, play
into the court's decision to hear the case? And then
the merits.
Speaker 5 (46:39):
It's interesting and it probably harkens back to something I've
already mentioned in our discussion to us.
Speaker 3 (46:45):
Is really how.
Speaker 5 (46:48):
Vital it is that we have a right to assert
our constitutional rights as something that that I think we
tend to take for granted that that, of course we have.
But but if we don't have a right to assert
those constitutional rights, we truly do not have them. And
so I think that I think that that makes it
(47:08):
a very critical component of the right free speech, the
right to free exercise of religion, and and and and
I believe that's that's part of what resonates is that, uh,
there could be some arguments from the other side, uh uh,
perhaps dealing with with the speech, perhaps dealing with the
(47:30):
legitimacy or lack thereof of the ordnance in place, whether
or not there's a reasonable restriction. All those things can
be uh hashed out in court. But this cuts off
the discussion. There is there is no discussion, there is
no analysis.
Speaker 3 (47:48):
Uh you lose, go home.
Speaker 5 (47:50):
And and so I think that resonates with a lot
of people, including the Supreme Court.
Speaker 4 (47:55):
Absolutely on a more practical note, do you have an
oral argument? Yet?
Speaker 5 (48:01):
We do not what we're anticipating is first second week
in December. It could possibly be pushed off to January,
but what we believe.
Speaker 3 (48:12):
Is first or second week in December.
Speaker 5 (48:14):
And of course, as you know, is you don't really
the best you can get from the clerk is that, well,
you might want to keep December free, but but you
don't really get more insight than that.
Speaker 4 (48:27):
Yeah. I do actually feel for the folks in the
clerk's office at the court who have to line up
or a arguments. It does feel like they're playing a
little game of tetris over there with everybody's schedules, and
then they have to accommodate the justices who want to
line up this case with that case.
Speaker 3 (48:40):
And it's a lot no question, Yeah, it is.
Speaker 4 (48:45):
Another question just came in. Let me take a look
at this one. This one also is a relatively complex
one about sort of under ing First Amendment merits. So
I think we're going to with apologies to that questionner,
we'll leave that one to the side for now. I
(49:05):
think some of the questions here, I think speak to
one of the things that we've just been talking about,
which of course is even though this case on its
surface is about the sort of technical question of the
heck bar, when can you get your day in court?
What's the scope of that doctrine? Really, it does bring
up a lot of people's quite passionate feelings about issues
of free speech, about religious expression, and of course that's
(49:26):
one of the things that sort of captivates people about it, and.
Speaker 5 (49:29):
We actually receive several Amiicas briefs regarding those type of
interest interest in being able to engage in a religious speech.
Speaker 3 (49:41):
Even though the.
Speaker 5 (49:42):
Question is is more of a forerunner, it's more of
a technical question, that is, do you have the ability
to get to the merits of that issue. I think
people see that those rights are so important that we
have to protect the right to assert them.
Speaker 4 (49:59):
And in that vein we have another question here who's
asking I think basically, how was mister Olivier's evangelizing sort
of equated with or treated as protesting in the first place?
Is that just a label that the city's leapt on him.
Speaker 3 (50:14):
That's that's exactly right. Uh.
Speaker 5 (50:17):
They saw they saw someone who he was handing out literature. Uh,
and he was talking to people and in that one
pointing it had a sign. And so even though it
had nothing to do with the event itself, So there's
no it's not like they were protesting what was going
(50:39):
on in the amphitheater or any particular political issue per se.
Speaker 4 (50:45):
Uh.
Speaker 5 (50:46):
That's that's how they labeled it, because that's how they
saw it. And so once they once and once they
labeled it as a protest, that's how they decided to
treat it as a protest.
Speaker 4 (50:58):
Got it all? Right? Well? I think that is all
the questions from me, and I'll encourage our audience. If
any of you have any further questions, please do put
them in the chat and we'll try to get to them.
But in the meantime, Nate, is there anything else that
you'd like everybody to know about the case? Anything that
we should have talked about that we haven't touched on yet.
Speaker 3 (51:17):
I think you're pretty thorough Tobiz.
Speaker 5 (51:19):
I can't really think of any legal issue, but I
do greatly appreciate the interest.
Speaker 3 (51:26):
I think sometimes.
Speaker 5 (51:31):
Maybe others who are not a Pellet or Supreme Court
litigator start talking about something like the heg bar, we
tend that tends to be something that could put us
to sleep, and we sort of doze off.
Speaker 3 (51:44):
But this is an extremely important case.
Speaker 5 (51:46):
It is extremely important because it deals something well, very
fundamental for all of us, and that is the ability
to have our day in court.
Speaker 4 (51:55):
Absolutely all right, well, I think we can leave it
there then, so I will turn it back over to Marco.
Thank you so much, Nate, Thank you everybody for taking
the time to hear from us today.
Speaker 3 (52:06):
Thank you well.
Speaker 2 (52:08):
I want to second that thanks to both of you
for that fantastic discussion and the benefit of your time
expertise today. On behalf of the Federal Society, I'd also
like to thank you our audience for joining us. We
greatly appreciate your participation. For information on more upcoming events,
please visit our website or all major social media platforms
(52:28):
at FEDSOC.
Speaker 3 (52:29):
On that note, we are adjourned.
Speaker 1 (52:32):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm Nate kas Merik, Vice President and Director
of Practice Groups at the Federal Society. For exclusive access
to live recordings of fedsock Forum programs, become a Federal
Society member today at fedsoc dot org.
Speaker 2 (00:18):
Hello everyone, and welcome to this Federalist Society a virtual event.
Speaker 3 (00:23):
My name is Marco J.
Speaker 2 (00:24):
Lloyd, and I'm Assistant director of Networks with the Federalist Society.
Speaker 3 (00:28):
Today we're excited to host a Courthouse.
Speaker 2 (00:30):
Steps preview webinar an Olivier b City of Brandon featuring
Nate Kellum. Nate is Senior Council for First Liberty Institute.
Prior to coming to First Liberty, Nate was the founder
and chief council of the Center for Religious Expression. For
over three decades, Nate has defended religious liberty and courtrooms
across the country. He has handled more than five hundred
(00:53):
litigated cases and fifty appeals before a various federal appellate courts,
winning numerous landmark decisions. Our moderator today is Tobias loss Eaton.
Tobias is partner at Sidney Austin LLP, where he is
an appellate and regulatory litigator, helping clients naviate complex, novel
(01:14):
or high stakes legal issues. Tobias has written or co
authored over one hundred and eighty five briefs in state
and federal appellate courts, including over ninety briefs in the
Supreme Court. He has presented oral argument in the second, fourth, sixth, seventh,
and DC circuits and in state appellate in Supreme courts,
(01:36):
producing successful results for his clients and seventy percent of
the appeals, he argued. If you'd like to learn more
about today's speakers, their full bios can be viewed on
our website fedsoft dot org. If you have a question
at any point today's program, please enter into the Q
and A function at the bottom of your zoom window,
and we'll do our best to answer as many as
(01:56):
we can. Finally, I'll note it as always, the FRET
Society takes no position on particular legal or public policy issues.
In all experson's opinion are those of the speakers. With that,
thank you both for joining us today, and the floor
is yours.
Speaker 4 (02:13):
Thank you Marco, and thank you also, yeah for reading
the advertising boilerplate from my attorney Bio. Your check is
in the mail for that. Good afternoon, everybody. I'm excited
to be here with you and with Nate. I think
this is a fascinating case and one that actually I've
been interested in in quite a while. Nate and I
first connected about this case probably two fully years ago.
(02:35):
At this point, I was wearing my hat as the
co director of the Northwestern Supreme Court Clinic, and as
soon as the panel decision in this case came down,
we identified it as a candidate for Supreme Court review.
I got in touch with Nate. We didn't end up
working together directly on it, but I was pleased to
be able to write a Meekas brief supporting Nate's position
both at the cert stage and then the merit stage
(02:56):
in this case. So I'm really looking forward to talking
to you, Nate about this case and the winding road
of it. It took you to get here.
Speaker 5 (03:04):
It has been a winding road. But I'm excited to
be at this point. And yeah, I remember well our
first conversation.
Speaker 4 (03:11):
Well, and so before we dive in, I'll just say,
of course, everybody should please feel free to ask questions
as you go I've got the Q and a panel
open here, and you'll just have to bear with me
as I figure out how to work it. But if
you do have anything that you want to ask as
we're going along, just toss it in there and we'll
work it in. So, Nate, can you just start by
telling us about the facts of this case? How did
(03:32):
it arise?
Speaker 3 (03:33):
Sure?
Speaker 5 (03:35):
Gentlemen who I've gotten to know pretty well now, Gabe Olivier,
he lives in Brandon, Mississippi, and there's a local park.
And what would Gabe likes to do is he likes
to share his faith, is Christian faith, and he goes
to public places. And this park is particularly well suited
(03:56):
for this purpose because a lot of people attend to park,
especially we win. There are concerts and events going on
in a nearby amphitheater. So he ran the problems on
May twenty one when he.
Speaker 3 (04:09):
Goes out there for this purpose.
Speaker 5 (04:11):
But Brandon had passed a new ordnance and his ordinance
would require him to move some three hundred feet away
from pedestrian foot traffic, and that would be the folks
walking in and out of the amphitheater. And so he
checked it out. But he's quickly surmised that it was
just completely unworkable for what he wanted to do because
(04:32):
it separated his message from his intended audience, and that
seemed to be the whole idea behind the law in
the first place.
Speaker 3 (04:40):
And so he goes back to a place where we
can actually reach people.
Speaker 5 (04:43):
But he was promptly arrested, and then he plied no
contest and he paid a fine.
Speaker 3 (04:51):
But the thing is, he wanted to go back.
Speaker 5 (04:54):
He wanted to go back and be able to share
his faith, and he felt certain that he could be
able to chat challenge this law in court. And so
we talked about that, and I agreed this law seemed
patently unconstitutional, and so we found a lawsuit attempting to
enjoin this law from being applying against.
Speaker 3 (05:13):
Him in the future.
Speaker 4 (05:16):
And how did you first get connected with mister Olivier.
Speaker 3 (05:20):
He gave me a call. I'm not sure how he
knew about me, but we at the time.
Speaker 5 (05:26):
And then what I want to do now is work
for nonprofit Christian nonprofit then was centered for religious expression,
and now we're with First Liberty Institute and we provide
services free of charge for individuals who believe that their
constitutional rights have been violated, particularly as it would regard
religious liberty, and certainly that's what mister Olivier believed, and
(05:50):
that's how we ended up helping him.
Speaker 4 (05:52):
Got it well, and I think it's maybe not sort
of strictly relevant to the legal merits, but it sounds
like this ordinance was passed maybe in response to mister
Olivier's activities. Does it seemed like it was aimed at
him and maybe the group that he was preaching with.
Speaker 3 (06:07):
It certainly seems that way.
Speaker 5 (06:09):
It is very conspicuous in a sense that it seemed
to be geared toward his type of speech, although they
labeled it as protests and demonstrations in the ordinance itself,
but that did happen to link to what police officers
and how they referenced his speech in the past is
as a protest.
Speaker 3 (06:27):
That's not what he's there to do. He's there to evangelize.
Speaker 5 (06:31):
Nevertheless, that label stuck in the ordinance and that's how
they interpret as far as applying it to him. Really
seemed to be geared to doing something about his speech
because I believe they thought it was unseemly to be.
Speaker 3 (06:45):
In the park.
Speaker 4 (06:46):
Got it well, So then what happened in the District
court and in the Fifth Circuit Once you brought that suit.
Speaker 3 (06:52):
Well, that's when I started to learn about this hegbe.
Humphrey case.
Speaker 5 (06:56):
Wasn't really familiar with it before, but have certainly become
familiar with it since the court dismissed the case without
even considering the merits of it based on this Heck
doctrine that came from the nineteen ninety four.
Speaker 3 (07:10):
Case of Hag v.
Speaker 5 (07:10):
Humphrey, a case that really dealt with a prisoner, and
what the court was deciding there is whether a prisoner
can make a claim that really related to criminal process
that the planet if there had concerns about how the
prosecutors had handled the case. They believe that they introduced
(07:32):
some inappropriate evidence, that they destroyed some evidence that would
have been helpful to him, and so he saw monetary
damages in the Supreme Court hound that that's not nineteen
eighty three is really not a vehicle for him to
be able to bring this claim that they're really a
federal habeas corpus statue would be be more suitable.
Speaker 3 (07:53):
And so this Heg v. Humphrey case was applied here.
Speaker 5 (07:57):
Even though mister Olivier was seeking perspective really if that is,
relief for an injunction to enjoin this particular ordinance. So
that's what happened that the District Court and then and
then it went to the Fifth Circuit panel, and there's
a decision Clark b. Stadler that the Court cited that
(08:17):
seemed to indicate pretty strongly that that Heck doctrine actually
does apply to injunctive relief. From there, and it may
have been around this time that we had our discussion
device we found a petition for on Bock, which I
thought had a very good chance of being accepted, but
(08:41):
it was denied by a nine to eight count, which was.
Speaker 3 (08:45):
As we discussed before, was frustrating.
Speaker 5 (08:48):
It was just chantalizing, and it was really a difficult
thing to see. But by one vote we were not
able to get the full Fifth Circuit to consider, and
so that's when we turned to the Supreme Court.
Speaker 4 (09:01):
Well, and I assume a lot of our listeners probably
know about Section nineteen eighty three, but let's back up
a little bit there, just to make sure people know
the lay of the land. So I assume when you
brought your suit in the District Court on behalf of
mister Olivier. It was under section nineteen eighty three, which
is the federal Civil Rights Statute that allows people to
bring civil actions against state or municipal actors who have
(09:22):
violated or are going to violate their federal statutory constitutional rights.
Is that fair?
Speaker 3 (09:27):
Yeah, that's exactly right.
Speaker 5 (09:29):
It goes back to Civil Rights Act of eighteen seventy
one through forty two USC.
Speaker 3 (09:34):
Nineteen eighty three.
Speaker 5 (09:35):
What it allows is allows for citizens, if they feel
like they have constitutional rights Violet, they can seek relief,
they can see compensation should they have a right to
an in federal court through this federal statute.
Speaker 4 (09:50):
And the key thing that you were asking for was
the prospective injunction that would bar the ordinance from applying
to him, so that he could then go back out
and share his faith without fear of being arrested again.
Speaker 5 (10:02):
That's exactly right, Just very practical relief of being able
to go out there again without.
Speaker 3 (10:07):
Fear of rest.
Speaker 4 (10:08):
Got it well. And so obviously having rehearing on bank denied,
you know, by a single vote, is extremely frustrating. But
you did get what at least we Supreme Court practitioners
considered a pretty big silver lining, which is that you
got some fantastic opinions in the descents from the denial
we're hearing on bank.
Speaker 3 (10:27):
Yes, it's sort of like the second best thing, right.
Speaker 5 (10:31):
We did an excellent descent from from Judge Hoe, Judge Owen,
and Judge.
Speaker 3 (10:39):
I believe as well.
Speaker 5 (10:40):
And so yeah, we had three separate descents, and then
that was very helpful when we petitioned the Supreme Court
to consider.
Speaker 4 (10:49):
Yeah. Well, so then that brings us to the certain petition.
Why don't you tell us a little bit about the
two issues that you asked the court to design them
that they've now agreed to hear.
Speaker 5 (10:59):
Yeah, it is two distinct issues, though they both concern
just a basic right to having your your day in court,
because that's what we believe that mister Olivier was deprived
of here. Uh one is is the applicability of the
HEG bar to perspective relief? Should it apply to perspective relief?
(11:20):
Heck itself dealt with monetary damages. It seems to be
far more appropriate to apply in that scenario than to
someone who's seeking relief in the future.
Speaker 3 (11:30):
That's the first issue.
Speaker 5 (11:31):
In the second issue is whether the HEG bar can
apply to someone who had no access to federal habeas corpus.
And so with all this discussion about that being the
proper way for individuals like these prisoners who are seeking
relief that's that's what they need to pursue, it doesn't
(11:52):
seem to be applicable to someone who never had access
to that statue.
Speaker 4 (11:57):
Got it? And so I'm going to try to put
on the heat of your opponent now briefly, and I
think articulate the argument that the Fifth Circuit, at least
it seemed to have adopted on those points. And please
tell me if I get any of this wrong. I
think the theory is behind the Fifth Circuits rule that
(12:17):
if you could bring in a civil rights action under
Section nineteen eighty three to get an injunction against the
enforcement of a law that you had previously been convicted
of violating and you succeed, that sort of necessarily implies
that actually your conviction wasn't valid in the first place.
And that's ostensibly where the concern that animate Tech versus
(12:41):
Humphrey comes in, Although, of course, if you were never
in custody, then you know whether you had access to
federal hapeas is a separate question. Does that sort of
encapsulate the retrospective versus prospective piece of it?
Speaker 5 (12:55):
That's exactly right, And that certainly was a concern that
was uh uh that's the court uh really emphasized and
heck was was this idea that of respecting comedy between
federal and state courts and that uh, this would allow
uh what really a second bite at the apple if
(13:16):
if you're allowed to go in the federal court after going.
Speaker 3 (13:18):
To state court?
Speaker 4 (13:21):
Got it? And so what then you know what kinds
of you know, legal issues are these? Really is this
ultimately a sort of statutory interpretation case? There?
Speaker 5 (13:32):
There are some I think it's more of a statutory
understanding and interpretation as much to biasp cons Really, what
what's a play here? Is a court made doctrine and
that's this heck doctrine? Uh and really what is the
scope of it? How? What's the breadth of it? Uh? Well,
while you can see how it can apply to a
(13:54):
prisoner who has access to federal hapias and seeking monetary damages,
can it really applied to someone like mister Olivier who
was not a prisoner and is really focusing on relief?
That would not necessarily have any effect on the underlying conviction.
Speaker 4 (14:13):
So I think you mentioned you know this. The Heck
bar first came in in Heck versus Humphrey in nineteen
ninety four. Obviously, the Supreme Court is a lot more
textualist now in terms of how it thinks about interpreting statutes.
Do you have a sense of how that shift in
interpretive method might come into play here?
Speaker 3 (14:33):
I'm not really sure.
Speaker 5 (14:34):
I think that's a great question to bias, and I
don't know if I have an answer to it. I
agree with your premise that the Court is more textualist
now than it was in nineteen ninety four, but I'm
not sure that it would necessarily make a difference, because really,
I think what you're talking about, how does this Heck
doctrine apply, which really doesn't, is really not linked to
(14:55):
the verbiage of either the two statutes that were referencing here,
the Civil Rights and the Federal Habeas Corpus.
Speaker 4 (15:04):
Statute, got it, And so I think, and speaking of
the passage of time here, am I right that aside
from one of the so called shadow docket rulings earlier
this year, the last time the Supreme Court's rarely considered.
The scope of the backbar was Skinner versus Switzer, which
was twenty eleven.
Speaker 3 (15:24):
I think that's true.
Speaker 5 (15:27):
Yeah, it's it's been a while and there's there have
been some changes in the court since there. Again, I'm
not sure how much that will could change a possible
outcome here. Skinner itself an interesting case really, dealing with
someone bringing a nineteen eighty three claim as a prisoner,
was a post conviction claim and it was for DNA
(15:50):
testing that they wanted to have DNA testing. And the
question before the court was dealing with these two things
we've talked about is should this be brought under nineteen
eighty three or should this be brought under a federal
habeas corpus and the majority felt that issued is very
appropriate to be brought under nineteen eighty three. The dissent,
(16:13):
which was Kennedy, Ledo and Thomas, they disagreed. They thought
that it all be brought under federal habeas. I'm not
sure that that really has any impact here. What I
would like to think to bias, I don't know if
this will end up being the result, but I'd like
to think that this is a case where both the
(16:33):
majority and the dissenters in that case would see things
the same way because that matter did not deal with
perspective relief. Neither did it deal with this access to
a federal habeas Yeah.
Speaker 4 (16:46):
Well, so you mentioned the lineup in Skinner, so that
means the majority was the Chief Justice and then Justices Ginsberg, Scalia, Bryer, Soda, Mayor,
and Kagan. So obviously a little bit of a sort
of ideological scramble, at least compared to the you know,
the stereotypical lines that people focus on. Maybe the answer
is who knows, But do you have any sense of
(17:07):
sort of how this plays with, you know, the four
justices who joined the court since then, and whether it
breaks down on ideological grounds at all or are we kind
of looking at a free for all here?
Speaker 3 (17:19):
You know, you raised a great question to bus Uh.
Speaker 5 (17:22):
I tend to think that this case could be more
in line with what they refer to the high percentage
of cases where the justices actually do find agreement. We
tend to hear about the ones which when they don't,
those are the ones that are highly politicized. Those are
the ones we're here here about. The conservatives said this,
but the liberals said this, I'm not sure that that's
(17:43):
going to be the situation here, although there there I
think there could be some some of that in in
in their reasoning, but I think becall's uh, we're dealing
with a fundamental issue as far as having your your
day in court. I think this is something where we
can find.
Speaker 4 (18:04):
Broad appeal absolutely well. And I will pause for a second.
I see you've got a question in the Q and
A here, so I think this goes maybe a little
bit more to the underlying merits. But of course I
know this is very relevant to your day to day
practice as well. And the question here is whether the
Mississippi Religious Freedom Restoration Act might provide any help to
mister Olivier as to the merits of his claims related
(18:27):
to his preaching.
Speaker 5 (18:30):
Well, that's a great question, uh, And that's a question
that we would love to get to at some point.
To bias with this case is, as you know, what
we're looking for is really the ability to get to
the merits of that type of claim as well as
his free speech claim, is free exercise of religion claim.
I think I think all those would have considerable merit
(18:52):
and should be considered here and so that's what we're
trying to get to, is just to the point where
a federal judge will consider, hey, does this claim.
Speaker 3 (19:00):
Have a merit or not?
Speaker 4 (19:02):
Got it well? And actually, and this is one that
just cursed me off the top of my head. So
I don't actually know the answer to this, But if
you tried to bring the same set of claims in
the Mississippi State court, would you face the same kind
of obstacles.
Speaker 3 (19:18):
It would.
Speaker 5 (19:21):
With a Mississippi state court or are you referring to
like a civil court or in the criminal matter.
Speaker 4 (19:26):
Yeah, well, so if you if you saw an injunctive
relief in sort of the same kind of way that
you had in the district court, but in the Mississippi
state court, yeah.
Speaker 5 (19:34):
I think that would be we would have to have
some state claims, and so perhaps there could be something
that could be cobbled together where if conceivably, if you
brought a false arrest claim or something of that nature,
and then also you brought with it some constitutional claims,
that would be something that could be pursued. I believe
(19:56):
that for the most this isn't always the case, but
I do think that there are good reasons for bringing
federal claims. In federal courts, they're the ones that they're
more accustomed to dealing with these types of constitutional issues,
are more accustomed to nineteen eighty three claims, and so
it's something that is much better served, I believe, in
(20:19):
federal court if you're pursuing these types of claims well.
Speaker 4 (20:23):
And speaking of which, so that that brings us to
a precedent that features at least prominently in your opening
merits brief, and that certainly jumped out of me when
I first heard about your case, which is Wooly versus Maynard.
Can you tell us a little bit about what the
court decided there and how it plays in here.
Speaker 5 (20:41):
It's one of those fun cases Tobias, you know that
you read in law school where this was the license
plate case in New Hampshire where individuals took took issue
to the to the state motto being put on the
license plate of live free and data that actually they
wanted another option there and so uh and so, and
(21:05):
because of that, they did not want to be what
in essence would be a mouthpiece for the state. They
did not want to communicate that through their vehicle. So
that was that was at the heart of their claim,
but they had they had been uh convicted of violating
(21:27):
this law actually several times when when they when they
brought a claim an additional time in order to challenge it,
in order to enjoy it. And so it is really
the scenario is almost nearly identical to what we have here,
where you have someone who was convicted under what they
(21:49):
claim to be an unconstitutional law they want to try
to challenge it to enjoy it from being applied to
them in the future. In the same scenario in Woolley, uh,
they're younger abstention was was brought up uh and and
but the court really quickly discarded this this whole idea
that there could be any type of hurdle to these
(22:11):
these plaintiffs because they should have the right to have
the court consider the merits of their claims as it
would apply to their future activity.
Speaker 4 (22:23):
And so that case, I think supports the prospective retrospective
distinction that you're talking about, because while the heck bar
and younger abstention are different, the underlying question is still,
you know, are you essentially interfering with state proceedings? And
then woollie, the Supreme Court said, bringing a claim purely
for prospective injunction doesn't interfere with past or even necessarily
(22:48):
ongoing state proceedings as long as all you're asking for
is an injunction against future enforcement.
Speaker 5 (22:53):
Yeah, that's exactly right, and for that reason, that's that's
why we did sign Wolly. We think that it would
is really directly in line with that particular issue that's
before the court.
Speaker 4 (23:05):
And what answer, if any, did you get about Woolly's
application from the Fifth Circuit judges who were not persuaded
by your position or did it even come.
Speaker 5 (23:15):
Up and they didn't address it, so so I don't
really know, but they really did focus on the things
that you talked about, and also, certainly in fairness to
the panel, they relied heavily on the Card case and
they felt really constrained as to what they could do,
that they couldn't really go beyond what was precedent in
(23:35):
that court.
Speaker 4 (23:37):
Well that you know that that brings up an interesting
question which I've dealt with a couple of times myself.
I think people tend to assume that by the time
a merits case reaches the Supreme Court, the arguments have
been you know, sort of perfectly ventilated and articulated by
either side in the lower courts, but here the district
(23:57):
Court and the panel both felt that they were strained
by the Circuit President and Clark. Then you actually didn't
get rehearing on bonks by that narrow one vote denial.
And then the search stage briefing, you know, as it
naturally is, is just focused on really should the court
here the questions at all, and less so than merits.
And I think your your opponent's brief is still about
(24:18):
what three weeks away, do you feel like you've actually
seen the best arguments on the other side of this case?
Speaker 3 (24:23):
Yet, I think two guys and.
Speaker 5 (24:29):
There are arguments were certainly different, and I trust that
there's probably will be be a little bit as well
at the at the petition stage, because what we're trying
to point out there is that there there's a service
flit service slitch is really undeniable on QP two, and
that is dealing with this issue of access to federal
(24:53):
Habeus corp. I mean, it's like very deep divided like
six to five. And then with the first where point
to a Ninth Circuit decision that will completely different from
the Fifth Circuit on this issue, And then also there
was some strong dictum in the tenth Circuit as well,
so we found only we could demonstrate the split. Certainly
(25:15):
a substantial part of their briefing at the cur petition
stage was no, there actually isn't a split. So so
you did have that that disagreement. But they did get
into the merits, and I'm not sure that there there
is anything left substantively. Perhaps they can can argue it
a little bit different, maybe they can find a different
(25:36):
way of of taking the same tact, but but what
I would expect is essentially the.
Speaker 4 (25:42):
Same got it well. And so what you know, at
the risk of making you played devil's advocate, what do
you think is that the capital summary for the city's
position on the merits? Why should heck bar prospective claims?
Speaker 3 (25:56):
Yeah, I think it does get get back to.
Speaker 5 (26:02):
Some of the some of the the the things are
brought up and hack and that was and that was
that goat by the Fifth Circuit about uh, respecting state
courts and and that that certainly we need to have,
Uh we don't. We're not really being being helpful with
(26:24):
federal courts if we're if we're constantly overturning things that
the state courts are doing, and so there has to
be respect there for those parallel jurisdictions, and and respect
for for what's going on with the state criminal court UH,
and and be concerned, I believe about UH actions that
seem to be an in run where you didn't like
(26:45):
what happened in state criminal court, and so what you
so I'll just filing in federal court and see if
I can get.
Speaker 3 (26:51):
My way there with a different judge.
Speaker 5 (26:53):
And so I think that's the kind of thing that
they want to avoid, and so I think that's probably
their their best argument. I just don't think it really
fits particularly well with the way it's being set up
here because of our focus on perspective relief. While if
the claim was about damages, where this was about false arrest,
which really goes to the heart of whether or not
(27:14):
that conviction was correct or not, then that could be
a different issue. But when the focus is more on
the constitutionality of the ornates itself and not really what happened,
we're not trying to revisit what happened, I don't think
as much got it.
Speaker 4 (27:33):
Well, it looks like we've got another quick question in
the chat here. This is another one that I think
is a little bit maybe geared towards the First Amendment merits.
But the question is whether Snyder versus Phelps gives you
any support I think on the sort of underlying merits
question of whether mister Olivier has a right to share
his faith in this public way.
Speaker 5 (27:52):
Well, I think that that issue has certainly come up,
and in fact, that's something that they brought up or
something similar to that. As far as I'm sorry, I'm
back up a little bit with Sneyner versus Phelps really
talking about protection afforded offensive speech, that that just becomee
speech is offensive, doesn't mean it lacks protection. And so
(28:16):
that's something that that was uh dealt with there with
Sneinner versus Phelps dealing with these remarks at at funerals
where where it seemed to be uh distasteful, disdained, but
nevertheless constitutionally protected.
Speaker 3 (28:32):
And and so there I think that in the briefing.
Speaker 5 (28:36):
From the other side, they have taken some some I
think some cheap shots at at mister Olivier, uh and
and really is mischaracterized his speech in a lot of ways.
But but but the tenor of it seems to be
that Uh, yeah, he's saying things that really should not
be protected. He's saying things that that are offensive that
people don't like, and it really shouldn't be protected in
(28:57):
the first place. And so although I don't believe it
goes anywhere near to like a Snyders versus Phelps level,
certainly I would say if he's talking about sin, he's
talking about people committing sin and the need for God,
that plenty of people find that offensive, and so there's
(29:20):
no question that offense is a reality there. And so
in that same way, even though we have different facts,
the principle would apply understood well.
Speaker 4 (29:33):
So some of the arguments here, in particular on the
prospective versus retrospective point, I think, touch on whether mister
Olivier's claims are more like a common law and malicious
prosecution suit, which the Supreme Court has said requires a
favorable termination of the underlying prosecution before you can sue
over it, or if his claims are more like an
(29:55):
anti suit injunction, which doesn't have the same kind of requirement.
And when I was reading that portion of the briefing
to me, it suddenly sort of snapped my mind into
the motive analysis that we do in Second Amendment cases. Now, right,
we're sort of looking for historical analogs. But as we
talked about before, this is ultimately sort of a statutory case,
at least at the top level. So how does that
(30:16):
sort of exercise of looking for analogies fit in here
and thinking about what claim is or is not allowed.
Speaker 5 (30:23):
Well, that was something that the court dealt with in
depth in Heck itself, where the court found malicious prosecution
to be a tort analog. Really with the idea of
trying to determine, Okay, if this constitution claim is viable,
we have to look at what the elements would be.
And so to figure out what the elements would be,
(30:45):
then we have to look at the tort analogy. And
there was a malicious prosecution which made a whole lot
of sense because his claim centered on the actions of
county prosecutors, what they did, what they didn't do, and
so that was at the heart of that particular case,
and that's why I think the malicious prosecution.
Speaker 3 (31:03):
Was certainly appropriate analogy there.
Speaker 5 (31:06):
And then getting to that element, well, you have to
have a favorable termination in statecore before you can bring
a malicious prosecution claim or they're a constitutional claim. Well,
so I guess a couple of things Tobias is. One
is it is not all constitutional claims necessarily require a
(31:26):
toward analog. And so while I think it can be helpful,
I think it was certainly helpful in Heck itself, I
don't know if this is particularly helpful here because particularly
when you focus in on the injunctive relief, when you're
talking about claim a free speech, free exercise of religion,
there really isn't a tort analog. So I don't know
if that's even a road that the court needs to
(31:48):
take here. I don't know if they really need to
go down that path, but they did. Yes, anti suite
injunction would seem to be far more analogous here, and
that doesn't have the same favorable termination requirement.
Speaker 4 (32:02):
Yeah, so that was going to be one of my
questions is you know, I think I think a lot
of us are familiar, you know, either in our practice
or for those of us who aren't lawyers, you know,
just seeing in the press cases that involve people litigating
to protect their First Amendment rights, and normally the thing
that you have to wash there is just that what
the government is doing is restricting your speech or would
restrict your speech or your exercise of your religion, and
(32:25):
not that you also have to check any sort of
additional boxes along the way to establish the merits of
your claims.
Speaker 3 (32:31):
Yeah, and I think that's what makes.
Speaker 5 (32:35):
Different from from this case, and something that we try
to harp on in the marriage brief device is that
there it centered on monetary damages, getting compensation for the
actions of prosecutions, and so when you have a damages claim,
I think that's when a toward analogo is far more appropriate.
As here, if there would be was a false arrest
(32:58):
type component to this that if we said his constitutional
rights were violated because he was falsely arrested, well with
then that would make more sense to have a toward
analog and to analyze, okay, what was it require than
to establish a false arrest twart. But here, when it
is purely really a constitutional claims, it is just not
(33:20):
as relevant understood.
Speaker 4 (33:24):
And I know that some of the other arguments here
have at least touched on the fact that another plaintiff,
someone other than mister Olivier, who hasn't been convicted of
violating the lawn in question, could still get an injunction
against its enforcement, and at least until recently, if I
were the city's lawyer, I would have said, well, that
cuts against mister Olivier's position, because even if he can't
(33:44):
get an injunction, somebody else can get one, and that
injunction might help him anyway. But of course, as I'm
sure a lot of our audience knows, the Supreme Court
recently held in Trump versus Cassa that's so called universal
injunctions are not proper, meaning federal courts can't issue injunctions
that benefit non parties. So does that point now for
the tip in your direction, because everybody needs to be
(34:05):
able to get their own injunction.
Speaker 3 (34:07):
I think so.
Speaker 5 (34:08):
I think I think that's very helpful because and that
has been an argument that we have seen from the
other side where where they have pointed out the existence
of this this other person who is pursuing constitutional claims,
because what we have, what we have argued, is that
is really spoke to the inequity about the situation where
(34:30):
you have a person who is charged and convicted under
what we believe is an unconstitutional ordinance, and yet he
is forever barred from challenging it. Ever, no matter to
the context, he can never challenge even though he wants
to continue to go out and he's subject to arrest
under that same unconstitutional ordinance. And so as as way
(34:53):
of rebuttal, what we've heard from the other side is well,
that's not necessarily the case. He may not be forever
barred because other people challenging. In fact, there is this
one person who's challenging. So if that person obtains a relief,
that relief could could also be attributed to mister Olivier.
There are some questions about that because their claims aren't
exactly the same. They really come at it from from
(35:15):
from different different ways, different different types of speech. But nevertheless,
I think your point is well taken to bus is
that that I think that argument is largely gutted now
because of the Trump versus cost of case in a
sense that in order for mister Olivier to get relief
for mister Olivier, he has to be able to bring
(35:36):
his own claim.
Speaker 4 (35:38):
Well there, and even before Come versus Cossa narrowed the
scope of available injunctions, there was still something of an
irony in that response from your opponents, because I can't
remember Now, whether it was Judge Hoe or Judge Oldham
who pointed it out in the Fifth Circuit that somebody
who's been convicted of violating and apparently unconstitutional law is
maybe the ideal plaintiff to actually challenge because of course
(36:01):
they clearly have standing to do so it affects them concretely.
Speaker 3 (36:05):
Right.
Speaker 5 (36:05):
Well, yeah, I think they both touched on it, and
Judge Ho really really referred to it as a catch
twenty two where because and that is something that that
civil rights plants face a lot of you, as you
well noted to bise, is really the ability to establish standing.
(36:26):
You can't just challenge a law out of the blue
because you think it's unconstitutional. You have to demonstrate that
this law would have been applied to you. And what
better way to show that than it actually has. And
I think that was Judge Hoe's point. There is a
very good one, is that in requiring these planets to
(36:48):
establish standing, it's just it just doesn't seem right or
constitutional to be able to take that away under some
other doctrine.
Speaker 4 (36:58):
Well, so, pivoting a little bit from the sort of
legal nuts and bolts, what do you see as the
potential practical implications of the Supreme Court's decision here and
in particular, you know, how much does it matter whether
they design one question or the other question, or or
both of them.
Speaker 3 (37:16):
Uh, The implications are huge.
Speaker 5 (37:19):
I believe devis UH and I think it goes far
beyond like folks like us who would like to sit
around and talk about leaqual issues. I think it has
some very practical implications for civil rights plans where if
you're denied your your day in court, you're in essence
denied your constitutional freedoms. It's a critical core lary. If
(37:42):
you don't have a right to be able to assert
those freedoms, you might as well not have them. And
that that's that's been I think proved out here with
with mister Olivier.
Speaker 3 (37:52):
So that's really what's at stake with with both of
these issues.
Speaker 5 (37:56):
Where we were really does come down to, uh, does
and civil rights planets deserve their day in court to
have their their claims hurt? Now, as far as the
two different issues, yeah, I think the first is first
for for good reason that that's that's the one that
that we felt was the the more prominent of the two,
although we think both have considerable merit.
Speaker 3 (38:18):
Uh. But but we listened to.
Speaker 5 (38:19):
The the perspective relief first because that that's that's the
one that just seems seemed to stick out more. Even
though there wasn't as much of a circuit split as
there as there was with with the second one, we
just felt that it.
Speaker 3 (38:32):
Was just much more egregious. And so UH.
Speaker 5 (38:36):
The United States has has filed in a Mikus brief,
which we're very excited to receive, and and they took
the position there that the court should rule it in
our favor on QP one uh, but but not on.
Speaker 3 (38:53):
Q P two. Uh.
Speaker 5 (38:56):
But in in framing it, UH, the U S stated
that really shouldn't even consider QP two and just ruling
our favorite on QP one. And of course that would
be an excellent result. And if that's the case, we'd
be very happy with it.
Speaker 4 (39:10):
And just as in case it may not be obvious
to some of our audience, that is a possible outcome here.
That would still be a win for mister Olivier, because
these are independent rounds for the heck bar not to
apply to him. Right, So if you're right about either
the first or the second, his suit can go forward.
But the city has to win both in order to
stop it.
Speaker 5 (39:30):
Yeah, thank you so much to my ask for that clarity.
That's exactly right, and that's the way that these two
things work. So if we win on either one of them,
mister Olivier works wins here and and that and that
that he'd be able to pursue his.
Speaker 3 (39:44):
Day in court.
Speaker 4 (39:46):
Well, and you're your mention of the United States as amgas.
It was a nice segue into my next question. You know,
you're scrolling on the docket on this case. It's just
a megas reef after amcus reef after a megas reef.
On your side of the case, your position a man
merits brief are both supported by an impressive and pretty
diverse array of amiki. Can you tell us just a
(40:07):
little bit about one, just the process of finding folks
to weigh in here to lend their support, and then
also thinking about different angles for them to cover, which,
of course, the more amiki you have in some ways,
the more challenging that is.
Speaker 5 (40:20):
Yeah, we're very excited, uh for the Mika support at
both the cert stage and and the Meriage stage. We
received I believe is thirteen at the at the cerch
stage and sixteen plus the US at the marriage stage.
And that's that's just outstanding macas support and so we're
(40:43):
we're so glad and grateful for it. And not just
the not just the quality, but also the quality, I
mean really some some excellent analysis that that's set forth
uh in the the the AMIICAS briefs able to touch
on some things that really to our page limitation sometimes
we can't do. We do actually have an excellent staff
(41:06):
at First Liberty that that try to help coordinate AMCA's support,
and I definitely do not want to belittle their efforts
because they have worked very very hard on it. But
I believe that the most compelling thing has been the
issue itself. We present it, we say, hey, we've gone
to organizations uh and attorneys who do AMIICAS briefs, and
(41:31):
we've just received very positive feedback.
Speaker 3 (41:34):
It just seems to resonate that that.
Speaker 5 (41:38):
Is almost a guttural type feeling that visceral is like, yes, uh,
there's something wrong here and we want to be part
of it. And so that's that's the type of support
we've received here.
Speaker 4 (41:48):
And in that process, you know, how much of it
is your team suggesting potential angles or subjects to you, Ormiki,
how much of it is them saying, hey, we've got
something we want to say about this, or how much
of it maybe is sort of happened between A lot.
Speaker 5 (42:04):
Of that is is really we're interested in receiving whatever
type of support that uh mickey are willing to lend,
and so were It's not as though we've tried to
look for particular angles or to particular support on an issue,
or or as as much as we've asked them what
(42:26):
they're interested in doing. If someone says, hey, we want
to be part of this, we want to participate, but
but we're not. We're unsure how to have what's the
best way we can We can certainly and we have
made suggestions in that regard, but but for the most part,
it's it's were they all. These are different organizations, these
(42:46):
are different individuals who come at it from their own perspective,
and so I think what they have done is they've
been truated in their perspective of how it could affect them,
just as a United States asks just how it can
affect them what they're interested in, and that's what they've
spoken into. And I think it's just really worked out
very very well because it's addressed both issues, and really
(43:08):
I believe that between our merits brief and the amicus
briefs that we've been very thorough in dealing with their arguments.
Speaker 4 (43:17):
And speaking of the United States's interests here, I was
mildly surprised to see one of the grounds that the
government identified for weighing in here is that the court
decision in this case could potentially affect suits against federal
officials and agencies. And that surprised me just because Section
nineteen eighty three is available for suits against state and
(43:38):
municipal actors, but not against federal officials. Do you have
any sense of what was sort of motivating their concern there.
Speaker 5 (43:46):
I'm not sure, As you know, to mass part of
the United States, just like any other amikas, as an
introductory part, they need to demonstrate what was your interest
in this case? Why are you interested in it? So
they set forth this paragraph, and that's the reasons that
they mentioned. I can only assume that they're referring to
like Vivin's actions, which are or corresponding actions where you
(44:09):
can bring constitutional claims against federal officials. And so because
there is possible constitutional claims against federal officials. They'd be
concerned about something like this and they want to weigh
in on it.
Speaker 4 (44:23):
Understood well, and some of our audience may know that
when you reach the merit stage at the Supreme Court,
if it's private party versus private party, or it's private
party versus state, everybody wants the federal government as an
amycus on their side if they can swing in true
and the so Listener General's Office often holds what it
is sort of almost like a little mini audition or
(44:43):
moot process where each party goes in separately and essentially
pitches the government on joining their side. I assume you
had to do that song and dance here.
Speaker 3 (44:54):
We did.
Speaker 5 (44:54):
We did, and it's a very interesting process and it's
just as you described it, uh de bis where we
were told that they met with the other side right
before us and and and they were they were friendly,
but it was more like a panel.
Speaker 3 (45:14):
I mean, they.
Speaker 5 (45:14):
The they're they're there are very difficult, hard questions, uh
that that that they posed. But but we're still very
heartened by it because there are a lot of attorneys
there from their Civil Rights division, and we thought that
signaled a strong interest in the uh uh uh civil
rights and religious liberty freedoms that they were bringing in
(45:35):
the case.
Speaker 4 (45:36):
And I assume then that they followed their usual habits
so that you didn't actually know if they were going
to support you until you actually saw the brief come in.
Speaker 3 (45:44):
So sure, that's exactly right.
Speaker 5 (45:47):
So you don't know until yeah, you don't know that
they're going to uh appear at all. Uh, and if
they do appear, you don't know if it's going to
be for you or against you until you actually see
uh the brief itself. And so that that was our
first indication, And so it was it was both a
cyber relief and in elation when we.
Speaker 4 (46:06):
Saw it absolutely well. And you mentioned, of course, you know,
one of the reasons that this case seems to resonate
with so many people, including of course with the government,
is that the facts clearly implicate important religious liberty issues.
But you know, those questions don't technically have anything to
do with the legal doctrine, with the questions percented about
(46:27):
the scope of the heck bar. So how do you
think that the religious liberty concerns, if at all, play
into the court's decision to hear the case? And then
the merits.
Speaker 5 (46:39):
It's interesting and it probably harkens back to something I've
already mentioned in our discussion to us.
Speaker 3 (46:45):
Is really how.
Speaker 5 (46:48):
Vital it is that we have a right to assert
our constitutional rights as something that that I think we
tend to take for granted that that, of course we have.
But but if we don't have a right to assert
those constitutional rights, we truly do not have them. And
so I think that I think that that makes it
(47:08):
a very critical component of the right free speech, the
right to free exercise of religion, and and and and
I believe that's that's part of what resonates is that, uh,
there could be some arguments from the other side, uh uh,
perhaps dealing with with the speech, perhaps dealing with the
(47:30):
legitimacy or lack thereof of the ordnance in place, whether
or not there's a reasonable restriction. All those things can
be uh hashed out in court. But this cuts off
the discussion. There is there is no discussion, there is
no analysis.
Speaker 3 (47:48):
Uh you lose, go home.
Speaker 5 (47:50):
And and so I think that resonates with a lot
of people, including the Supreme Court.
Speaker 4 (47:55):
Absolutely on a more practical note, do you have an
oral argument? Yet?
Speaker 5 (48:01):
We do not what we're anticipating is first second week
in December. It could possibly be pushed off to January,
but what we believe.
Speaker 3 (48:12):
Is first or second week in December.
Speaker 5 (48:14):
And of course, as you know, is you don't really
the best you can get from the clerk is that, well,
you might want to keep December free, but but you
don't really get more insight than that.
Speaker 4 (48:27):
Yeah. I do actually feel for the folks in the
clerk's office at the court who have to line up
or a arguments. It does feel like they're playing a
little game of tetris over there with everybody's schedules, and
then they have to accommodate the justices who want to
line up this case with that case.
Speaker 3 (48:40):
And it's a lot no question, Yeah, it is.
Speaker 4 (48:45):
Another question just came in. Let me take a look
at this one. This one also is a relatively complex
one about sort of under ing First Amendment merits. So
I think we're going to with apologies to that questionner,
we'll leave that one to the side for now. I
(49:05):
think some of the questions here, I think speak to
one of the things that we've just been talking about,
which of course is even though this case on its
surface is about the sort of technical question of the
heck bar, when can you get your day in court?
What's the scope of that doctrine? Really, it does bring
up a lot of people's quite passionate feelings about issues
of free speech, about religious expression, and of course that's
(49:26):
one of the things that sort of captivates people about it, and.
Speaker 5 (49:29):
We actually receive several Amiicas briefs regarding those type of
interest interest in being able to engage in a religious speech.
Speaker 3 (49:41):
Even though the.
Speaker 5 (49:42):
Question is is more of a forerunner, it's more of
a technical question, that is, do you have the ability
to get to the merits of that issue. I think
people see that those rights are so important that we
have to protect the right to assert them.
Speaker 4 (49:59):
And in that vein we have another question here who's
asking I think basically, how was mister Olivier's evangelizing sort
of equated with or treated as protesting in the first place?
Is that just a label that the city's leapt on him.
Speaker 3 (50:14):
That's that's exactly right. Uh.
Speaker 5 (50:17):
They saw they saw someone who he was handing out literature. Uh,
and he was talking to people and in that one
pointing it had a sign. And so even though it
had nothing to do with the event itself, So there's
no it's not like they were protesting what was going
(50:39):
on in the amphitheater or any particular political issue per se.
Speaker 4 (50:45):
Uh.
Speaker 5 (50:46):
That's that's how they labeled it, because that's how they
saw it. And so once they once and once they
labeled it as a protest, that's how they decided to
treat it as a protest.
Speaker 4 (50:58):
Got it all? Right? Well? I think that is all
the questions from me, and I'll encourage our audience. If
any of you have any further questions, please do put
them in the chat and we'll try to get to them.
But in the meantime, Nate, is there anything else that
you'd like everybody to know about the case? Anything that
we should have talked about that we haven't touched on yet.
Speaker 3 (51:17):
I think you're pretty thorough Tobiz.
Speaker 5 (51:19):
I can't really think of any legal issue, but I
do greatly appreciate the interest.
Speaker 3 (51:26):
I think sometimes.
Speaker 5 (51:31):
Maybe others who are not a Pellet or Supreme Court
litigator start talking about something like the heg bar, we
tend that tends to be something that could put us
to sleep, and we sort of doze off.
Speaker 3 (51:44):
But this is an extremely important case.
Speaker 5 (51:46):
It is extremely important because it deals something well, very
fundamental for all of us, and that is the ability
to have our day in court.
Speaker 4 (51:55):
Absolutely all right, well, I think we can leave it
there then, so I will turn it back over to Marco.
Thank you so much, Nate, Thank you everybody for taking
the time to hear from us today.
Speaker 3 (52:06):
Thank you well.
Speaker 2 (52:08):
I want to second that thanks to both of you
for that fantastic discussion and the benefit of your time
expertise today. On behalf of the Federal Society, I'd also
like to thank you our audience for joining us. We
greatly appreciate your participation. For information on more upcoming events,
please visit our website or all major social media platforms
(52:28):
at FEDSOC.
Speaker 3 (52:29):
On that note, we are adjourned.
Speaker 1 (52:32):
Thank you for listening to this episode of FEDSOC Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the practice groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.
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