explain from a constitutional officer's position the focus on challenging the act. but i think ours really lends itself to this question of federalism, whether the precedent will now be set that the irs can regulate our states under a taxing authority that's hither to unknown. this tax penalty is not the same as a regular tax. so if you read what i would consider a somewhat gra conian tax penalty, is that you count up how many employees you have. the state of indiana has 28,000 employees. and you multiply $2,000 times your work force, and that is your tax penalty. even if you were just to miss a few employees being covered under the affordable care act. so, again, this is that same

type of threatening coercion that doesn't really fit in the relationship between sovereigns. this 39 school corporations who have joined, i was talking to a few people in the hall. they are usually not standing next to me during my election process. let's leave it at that. but they were very concerned about the way we educate our children and the way our school corporations as a part of our sovereign government has been structured. we have a school board. they elect the people who run the school and they use part-time workers. so it's bus drivers, the teacher's aid, people that work in the cafeteria. under indiana's law, 30 hours -- or 37 1/2 hours, anything less than that is part-time. >> we're going to have our last keynote address and then we will

break for lunch, which will be held upstairs on the second floor. our final speaker of the day is the attorney general of oklahoma, scott pruitt. he holds the merit of -- he holds the distinction of seeing the merit in this litigation before any other attorney general. he was the first to challenge the irs disputed taxes and spending way back in september 2012. last month, fairly slowly it seems, a federal district court in oklahoma rules for general pruitt's case and against the federal government, the obama administration not surprisingly has appealed that to the 10th circuit, which will hear oral arguments in january. scott was elected attorney general of oklahoma in 2010. his official biography says that as attorney general, he is dedicated to fighting corruption, which i assume would include illegal taxes, mandates and subsidies imposed by the federal government. he established oklahoma's first federalism unit in the office of

solicitor general to combat unwarranted regulation and overreach by the federal government and has led efforts to bring attorneys general together to advance policies and legal strategies that protect the interests of their states from an overly intrusive federal government, including a multi-state lawsuit challenging the con sstitutionality of the dodd frank law. most importantly, for seven years he was the managing general partner of the aaa baseball team in oklahoma city, some honest work. welcome to the podium. >> thank you. it's good to see you. [ applause ] >> it was honest work. i enjoyed my time as a owner of aaa baseball. i'm disappointed about last night's outcome of game seven of the world series. we were rooting for the kansas city royals. but it was a great series, a

great time for baseball. sometimes the mistake is made -- david is from kentucky. he will understand this. sometimes the mistake is made when i'm introduced that i played basketball. i played baseball and then i will step out from behind the podium and i'm 5'9" and people say you didn't play basketball. that is true. they recruit people taller than i at that university. i want to say thanks to david for the invitation and to michael as well. it's a joy to be here. general zoeller presented this morning. it's good to see you. it's good to have partners and teammates in the room. i do want to offer, if i might -- i know you have had many discussion points today on policy, the legal components. if i could offer something to you to generally before i get into the specifics of oklahoma's case. a couple of policy statements that i think are relevant. one, i think we need to remind our friends on the left that health insurance does not equate

to healthcare. sometimes, policy makers both at the federal and state level believe that they can simply expand eligibility and coverage and somehow that magically will fix all of our healthcare outcomes in this country. that's not the case. at the end of the day, you still need a physician in a treatment room providing care to a patient. unless a doctor is willing to take the reimbursement rates that are being paid to him or her, that means that will affect care. in the state of oklahoma, to give an example, 14 or 15 years ago when i was in the legislature, the state of oklahoma expanded eligibility. and it increased federal poverty up i think at least 200%. it may have been beyond 200%. so politicians all over the state were able to go out and stay, look what we have done. we have provided more health insurance to those that needed it as if that was going to fix all of these healthcare outcomes. there were two doctors, two,

pediatricians, in all of the city of tulsa, that were willing to take the reimbursement rate. as such, all you had was long lines, delayed treatment for those that needed it there in the city of tulsa. one, i think we need to remind those in this policy debate that health insurance and healthcare are two different concepts. also, this, as you expand the role of government, particularly the federal government, but government generally as a payor, then medical inflation will continue to rise in a substantial way. we talk about using these programs that are talked about at the affordable care act state level. we need to curtail outflow and cost of medical care and what ends up happening is a continued expansion of the role of government. which is working opposite of controlling cost. that's not why i'm here. it's not what i do day to day. but it's relevant to my comments

today. here is why. because when the lawsuits were initially initiated by attorne s s general and by states, the original challenge to the unconstitutionality of the law of the affordable care act in march of 2010, you remember the criticism levelled against states attorney general. it was a political case. it was to make the administration look bad. it was an election year. attorneys general being used as a puppet to go out and challenge the administration to do what? bring disrepute to the affordable care act. it was political, they said. they also said that it was about policy, the fact that attorneys general didn't like the content of the law. now i will be the first to tell you that if i were in congress at the time that the law was pa passed would have argued against it and tried to defeat it. i will say to you, my

colleagues, when these lawsuits have been initiated, fundamentally they are not about politics and not about policy. they are about something more transecen transcendent. it's rule of law. the cases that michael and general zoeller and the state of oklahoma are involved in is about something more important than simply one piece of legislation. we see this in other fields. david mentioned dodd-frank. we see it in the energy sector. we see it in the finance sector as i indicated. we see it -- an attitude that permeates washington, d.c. agencies believing they possess the authority to improve upon a statute. to change a statute, to repeal a statute, so long as the results are what we think need to occur, they say. so long as we think it's what congress intended. i will get to that in a second.

we have the authority to change the reading of the statute, to achieve outcomes that we think are most appropriate. well, last time i checked, that's not how our system works. last time i checked, fifth grade civics teaches us that the executive branch exists to enforce the law as passed by the legislative branch. when the legislative branch passes and adopts a piece of legislation that establishes boundaries for an agency, you don't get to legislative intent. that's what's remarkable about the arguments being offered. they go into the cases as they did in oklahoma and they say clearly congress the wouldn't have intended this type of result. we were trying to expand access to healthcare, they say. so we can't read the statute that way. really? then why does the statute say what it says? that really is the tug and pull that we have experienced in oklahoma and i'm sure michael has experienced and general

zoeller as well. these issues about policy and politics have not driven, in my estimation, the lawsuits that have been filed, fundamentally, it's about rule of law and making sure agencies are accountable to the laws as passed by the legislative body. history about our lawsuit in oklahoma. we actually -- i filed our lawsuit in january of 2011. i was elected november of 2010, was sworn in in january of '11. i joined 27 other states at that time. filed a separate litigation in oklahoma. oklahoma passed a constitutional amendment in november of 2010 saying that no government, the federal government, could compel the purchase of health insurance. it was an anti-individual mandate provision. it was in the constitution. so i defended our constitutional provision against the aca in federal court in oklahoma. started litigating in january of '11. shortly thereafter, the judge

stayed the case. it sat until june of 2012. after the decision in june of 2012, we did what most states across the country started doing, evaluating the implementation of the law. as you know -- this is something that has to be said. because those on left and the media say we have litigated this so much. why are we continuing to see litigation? the litigation in 2012 that made it to the supreme court was about one thing and one thing only, did congress have the authority to pass the law? not whether agency were implementing the law with what? ?h adherence to the language but whether they had the authority under the commerce clause. medicaid expansion was a bill part as well. the states won on that giving each state the option, the discretion on whether to set up medica medicaid. that was thestistutionalitycons.

micha michael's lawsuit is about something different. it's about whether the agencies are adhering to the language in the statute. we started evaluating that in august of 2012. i know this will shock you. but we learned these agencies in fact were not, particularly the irs. so when we evaluated this healthcare exchange issue, every state in the country had a decision to make under the law on whether to set up an exchange. it was a policy decision. it was legislative on whether to set up a change. congress incentivized, as you heard, the creation of exchanges. why did they do that? because they couldn't require it or mandate it. that would violate the constitution. so congress did what they always do whether they want the states to act a particular way.

they offered money to the states. they appropriated billions of dollars, one in the creation of exchanges but two they tied the subsidies to the creation of a state exchange. i will say to you that there was policy and political reasons why congress did that. the policy reason is there were some senators, particularly senator from nebraska at the time, believed that the federal exchange was a precursor to the single payer system and was concerned about that and wanted states to have a vibrant role in the setting up of exchanges but secondly, there was a political calculation bit administration. they wanted to share the responsibility of the rollout of the affordable care act with all the states across the country. we now know why. because they're not very good at it. they knew it then and they didn't appropriate the money. they wanted all the states with the federal government working toward this implementation. when 36 states said no, there was a problem. unfortunately, rather than go

back to congress, which is what the president and those that pass the aca should do to fix whatever portions of the law that created this dynamic of 36 states saying no, they took this attitude that i talked about at the beginning. we're going to improve the statute or change the statute. and disregard section 1311 and say that the subsidies can be issued in all 50 states irrespective of the decision -- the policy decision that was reserved to the states. now, that should offend everyone in this room, whether you are for or against the healthcare law, the affordable care act, we should all care about an agency after the fact saying that they have the authority and the power because of a certain circumstance to change the law. that's, in fact, what the irs did. we sued. i amended. we had the only live case in the country from a state perspective at that time, august of 2012, our case was dormant. it was the only case in the country. we went to the court, amended

our complaint and brought the lawsuit against the agencies in question, with respect to the rule that was adopted in may of 2012 by the irs. that's what we have been doing since that time. now, david made the comment that things are moving slow in oklahoma. i'm just glad that we got a good outcome the last two to three weeks. it has been a period of time that we have been litigating this. obviously, i'm encouraged about what judge white said. i want to call to your attention some comments that judge white made. in his opinion, he addresses this political policy aspect. because there are many -- if you read the briefs in oklahoma that were filed by the justice department, there's in my estimation there's more policy discussion than there is legal analysis. it was more trying to shame the court and shame the state for trying to fulfill the statute as

passed by congress. here is what judge white said in response to some of the not intere interest magss made in arguments as well as in the briefs. an agency rule making power is not to make law. these are direct quotes from the order. an agency's rule making power is not to make law. it's only the power to adopt regulations to carry into affect the will of congress as expressed by the statute. he goes on, the court is aware that the stakes are higher in the case than they might be in another case. the issue of consequences has been touched upon in the previous decisions discussed. he is speaking -- speaking of his decision to vacate the irs rule, the majority stated, we reached this conclusion frankly with reluctance. he goes on, this is a case of statutory interpretation. the text is what it is, no matter which side benefits. such a case, even if affirmed on the inevitable appeal, does not

gut or destroy anything. on the contrary, the court is upholding the act as written. congress is free to amend the aca to provide for tax credits in the staid ate and federal exchanges if that's the legislative will. that think matter. it's great to hear a court in this country, a federal judge say what he said. and i'm hopeful that tomorrow we are on the eve of perhaps a decision by the u.s. supreme court to take up the case to settle this and provide the clarity needed across this country. 36 states have said no to an exchange. 36 states collectively have made that decision based upon statutory language and policy considerations. and right now, we have uncertainty about the decisions that they have made and citizens across the country, including employers. because we know the consequence

of not setting up an exchange is more than just simply subsidies not being issued to citizens in your state. we know had a it affects the employer mandate. i would also submit to you something that is not talked about as much is the individual mandate is affected as well. because under the affordable care act, there are exemptions provided to individuals if your healthcare cost eclipse 8% of your annual income. the administration knew that as this law was passed that the healthcare costs would rise dramatically and they wanted to use the subsidies to avoid the eclipsing of the 8% flesh hold. if $800 billion are not issued in 36 states, not only is the employer mandate going to be crippled, but many individuals

across those states are not going to have to comply with the individual mandate. so this is a critical, critical lawsuit. because it goes to the heart of whether this administration, these agencies at the federal level can in fact enforce the law as was set up at the beginning. it is desperately needed for the supreme court to deal with this issue sooner rather than later. i'm hopeful that we receive good news about the petition. it has been filed by michael. we support that. i know general zoeller does as well. we will be there to support that in inany way we can. this is an issue that needs to be resolved. i want to address this argument that was made about -- i mentioned the policy on the political side of the decision to bring a lawsuit and that that was not the consideration and

not the focus. as we got into the litigation, the response by the justice department was that our argument was absolutely fanciful. it was absurd is the word that was used. because of the what? impact that it would have and they took this position that was almost a very arrogant issue as it relates to -- i can't believe that a state or plaintiff would bring this lawsuit against the federal government in this way. and then we found out about what? a video. you have talked about the video, obviously, that was found. and the audio -- i don't flow if you listened to the audio as well. we had the at built in oklahoma to do something that was pretty important. after the video came out and the audio came out, clearly jonathan gruber said initially it was a

mistake, that he didn't intend what he said. it's always interesting that people say that. i know you heard me. i know i said those words, disregard the content and meaning of those words. i didn't mean that at all. then the audio was found later and maybe subsequent videos as well. we filed a notice of supplemental authority in our case. our case was still pending. after the videos came down. those video and that audio, they were not part of any record in any case in the country. so we had the luxury and the latitude when those videos were produced to file a notice of supplemental authority. the judge actually made reference to it. in his order. here is what he said. i thought you might find this interesting. the court permitted the plaintiff, the state of oklahoma, to supplement the record with statements made by professor jonathan gruber was involved in the aca's drafting. it's undisputed that in january of 2012, he made the statement, if you are a state and you don't

set up an exchange, that means your citizens don't get their tax credits. what's disputed is whether it was off the cuff, which you have addressed earlier today. he goes on to say, the statements cut against any argument, this is what's important. the statements cut against any argument that the statutory language might support a reading of incentivizing states to set up exchanges as nonsense made up out of whole cloth. those videos and that audio, that capturing of him saying that, the court in oklahoma said, this absurdity that the justice department said is the result of the state's lawsuit can't approach that, you can't say they are making it up out of hole cloth. one of the consultants, the individuals that walked with the administration to set up the law at a time when the irs was passing their rule made a

statement, states you are going to be penalized if you don't set up exchanges. your citizens will be penalize and not have access to subsidies. with respect to where where he in our lawsuit, we are, as david indicated, in an expedited stature with the 10th circuit. briefs will be filed as of december 22 of this year. the case will be argued in likely the third week of january. so i'm hopeful that we will see a decision soon thereafter. i hope that's also something that follows the grant by the court with respect to michael's lawsuit here in the d.c. circuit. -- the fourth circuit in richmond. it has been a pleasure to be with you today. i'm glad to be talking about these matters. about important matters, matters of rule of law. and i know that i began there.

but i want to end there. because this issue of rule of law is something that i would never have guessed -- i mean this sincerely. i would never would have anticipated three or four years ago dealing with the number of cases that we deal with in the state level of agencies literally having an attitude unapologetically saying they are going to act because they can. i understand that and every attorney understands that, and that is something that congress must deal with. this delegation -- they need to be prescriptive. that's a story for another day. on this matter and other matters what we have is something different than discretion. we have an agency engaging in a results oriented approach, ignoring the statutory language and doing so at the expense of checks and balances in our

system. it's creating extraordinary uncertainty in the marketplace. it must be dealt with by the courts to send a message to the executive branch that they are not able to engage in that kind of practice, not only around the affordable care act but in other areas as well. i really appreciate kato's leadership in putting together the conversation today. i appreciate the opportunity to be with you. i hope the next time we get together that we are celebrating victory in this important fight for rule of law. i'm thankful for the opportunity to talk today. thank you, david. >> thank you. [ applause ] >> we have a couple of minutes for questions. i guess i better call on michael cannon first. wait for the microphone. >> thank you for speaking here today and for your leadership on this issue. point of clarification. i have done a lot of research and reading and speaking and writing about the lawsuits. none of these are my lawsuits.

i'm not actually involved in any of the litigation. i just comment on it. credit is due to plaintiffs in those cases and to the attorneys brought them, including in king versus burwell where it's before the supreme court right now. thank you. >> back there. >> i was wondering if the supreme court does decide on king, what does that mean for your lawsuit? is it going to be completely pre-empted by king. >> i didn't hear -- what does it mean to whom? >> to your lawsuit. to the oklahoma lawsuit. is it going to be completely pre-empted by the king lawsuit, or is there -- is it still going

to proceed? what's going to happen with the lawsuit -- >> very likely, what would happen is if it was granted, the 10th circuit would obviously pause until the supreme court makes their decision. so it would cause our lawsuit to probably go into neutral, unless we try to use some mechanism to join the king grant, which is possible. that's extraordinary, but it's a possibility. >> would your lawsuit have a way to proceed? >> well, if the supreme court takes case up and issues a determination that oklahoma's perspective, king versus burwell, and indiana's

perspective right it would preserve not to set up an exchange. i mean, we would adhere to the supreme court's determination. is that your question? >> get him a mike. >> is there any way that

there's going to be this sudden afford built vacuum because of the loss of the subsidies. would you think that a state could mitigate that damage by under its authority to regulate insurance by making available affordable, non-aca qualified insurance contracts? >> well, i take issue, number one with this argument that there would be substantial disruption in the marketplace. michael and i were actually on a conference call earlier this week. i think this is perhaps the most unsettled law in the history -- when you think about it, here we are four years post this law

being adopted and signed. i think most citizens across this country want to see it repealed but it's because the initial challenge bit stay the . we have uncertainty in the marketplace because agencies are engaging in regulatory over reach. i spent time with hospital administrators in my state. one of whom i asked, how are you making decisions about deploying capital, planning five years in the future staas far as how you business? he said, i cannot. because the president and hhs change ed statute routinely. they can't plan. i would take issue, number one, with this argument that somehow this litigation is going to be a disrupting force in the marketplace as it relates to healthcare. there's enough disruption already unattributable to the

lawsuits. it's about regulatory uncertainty. this would provide clarity. i think it would do something else. you mentioned the state level. i think it will precipitate congress doing what they should have done already, which is fix the law. i know that there are many in congress that have talked about that. this litigation will cause congress to have to go back and address the affordable care act in its totality. because it goes to at buithe ab to enforce the law. i think it will cause congress to have to start over. then the states can make decisions from there. but in the interim, i think -- i think states are going to be in a very difficult position until there's resolution on the litigation and seeing how congress responds. say what again? >> do you think a state would have that authority under their regulatory provisions to make

available non-aca qualified insurance, contracts for their citizens? under the aca, when the aca is in place, that would not preclude paying the tax. you would still have to pay the tax for being in non-compliance. could a state, do you think, have the authority to make those options available to its citizens? >> i think the better question is, would that suffice and satisfy the requirement in the affordable care act for qualifying health insurance. what we're doing here is not that, obviously. so you would still have provisions in the law that requires employers to do what? adopt qualifying health insurance as defined by hhs. what would be missing is the variability of the federal government to enforce that. so perhaps states could fill the void with some sort of tax that they get assessed at the local level to provide more access to

care for the citizens. but i don't think it's tied to the responsibilities in the affordable care act. we can talk about it offline. that's off the top of my head. i think that that's what i would say to it at this point. >> we will take one last question up there. >> i think what he is getting at is something like this. if king and your challenges are upheld and all this component of the aca is no longer enforceable in states without a state exchange and the premium, the unsubsidized premium goes above 8% for a lot of people, then a state could authorize the sale of non-aca compliant insurance like they had before the aca, then people could buy insurance and it would be affordable with a lower case a, they could buy

whatever insurance they wants, wouldn't wore roy about try abo mandates and wouldn't pay the penalty unless their income were so high that a compliant policy were available for less than 8% of their income. >> i love the hypothetical. i guess what i'm saying is, yes, they could. but it's untethered to -- it's irrelevant to the aca. >> that's the whole point. >> yeah. they could do that. >> thank you, general pruitt. thank you to all of our speakers today. [ applause ] there's more information on this at our website, kato.org. lunch is upstairs on the second floor. follow the yellow wall. thank you.

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with live coverage of the u.s. house on c-span and the senate on c-span2, here on c-span3 be show you public affairs events. on weekends, we are the home to american history tv with programs that tell our nation's story, including six unique series, the civil war's 150th anniversary, american artifacts,

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>> mr. chief justice and may it please the court, in a country dedicated to the rule of law, officers should be presumed to know the law. that being so, when questions about individualized suspicion arise under the 4th amendment, they should be addressed against the backdrop of the correct interpretation of the law, not simply any plausible reading an officer might have. >> suppose that this state, north carolina, did have a good faith exception to the exclusion ari rule. what would you be arguing today? >> we would still be arguing, if that were the case, that not only the 4th amendment was violated but that the good faith exception didn't apply. but you wouldn't have to reach that question in this case -- i would concede to you, that would be a debatable argument? >> why more than the argument you are making here?

i anticipated your answer. i think that has -- i think you have to tell us even if the good faith exclusion -- >> the court has held that reasonableness of mistakes of law can be taken into account at the remedy stage. >> why isn't -- we know there can be. >> there's a difference between rights and remedies. when you asked about what is reasonable as to whether or not the 4th amendment was violated, both in the 4th amendment in criminal cases and in immunity cases, you do that against the correct interpretation of the law. >> we are talking about whether as a matter, we can have this dichotomy known as a reasonable mistake of law, a difficult and interesting question. but it seems to me that you have

to make the same argument here, in the case where they have a good faith exception, as you are making here and you have a problem -- if you have a problem with davis, then that undermines your argument. >> i really don't think so, justice kennedy. i think the best expo decision of this problem is actually in the anderson against kraiton case where the court wrestles with how can something be reasonable in one sense and unreasonable in another. the answer they gave is whether we ask whether the 4th amendment was violated, we don't take mistakes of law into account. the reasonableness can go to the remedy question. this is the premise from which l leon -- >> mr. fisher, i have a preliminary question. even you are right about mistake

of law, isn't it a moot question in this case? because as i understand it, the traffic stop ended with a warning citation. so the traffic stop is over. and at that point, the police officer asks if he can inspect the car. and the answer is yes. why isn't the consent to the search the end of this case? >> because it would be the fruit of the poisonous tree, justice ginsburg, if the stop was illegal. there would have never been an opportunity to ask for consent. i think that's why the state and the solicitor general haven't made an argument that it wipes away the 4th amendment question. >> suppose the officer said i'm giving you a warning, you are free to leave now, but by the way, may i search your car? >> i think that's more or less what the officer did say here,

justice. >> you would say even in that situation that would be the fruit of the poisonous tree? >> yes. because the stop wouldn't have taken place. the court's cases say that a traffic stop is a seizure. so upon pulling mr. heien over, the officer needed to have reasonable suspicion to do so. the only argument for reasonable suspicion is the mistake of north carolina law as to the brake light in this case. >> i understood you to say earlier that you don't take distinguishing the exclusion rule -- you don't take reasonable into account when it takes to a mistake of law. >> i'm sorry. what i think i said is that you don't take the reasonableness of mistake of law into account when you ask whether the 4th ame amendment was violated. do you sometimes when you ask about the remedy. >> the 4th amendment protects only against unreasonable search and seizure. i don't understand -- it would

seem there's a stronger argument for taking the reasonableness of the officer's actions into account when you are talking about a mistake of law, because that's what the 4th amendment says, as opposed to remedies and qualified immunity. >> the court rejected that precise argument in anderson, that argument that the word reasonableness means that the 4th amendment incorporates mistakes of law. because of a deep common law rule, which is that when we ask -- >> if i could just pause. i thought we said exactly that in hairing, where we said that even though we look at it in terms of remedy, that was no to say that it the reasonableness didn't go to whether there was a violation of the 4th amendment. >> my understanding of that would be, that would be a mistake of fact case, whether there was a warrant outstanding for his arrest would have been a factual question. not necessarily a legal question. in anderson and krull and leon, the court said the officer acted

as a reasonable officer could and should have acted. time and again in the courts cases, they have said the officer acted reasonably because the reasonableness state you can take into account whether the officer reasonably misunderstood the law. >> i was going to say, putting our aside our discussion, why does it make sense to say you don't take reasonableness into account when the 4th amendment only protects against unreasonable searches and seizures? >> for three reasons. there's a practical reason, a the theoretical reason -- i will start with the theory, because that's where i was just describing. the deep common law heritage in this country that we have always followed in the best expo decision of that is in the chief case is that the criminal law is presumed to be definite and knowable. in all kinds of settings, whether punishing somebody for violating the law or any other actions, citizens or the government engages in, we always assume a correct understanding

of the law, even if it's later construed by a court in a way that wasn't -- >> isn't it strange that you are citing -- didn't the hold that under the -- in that circumstances there, ignorance >> because of a special statutory exception that congress had written. the beginning of part two of cheek is what i'm relying on justice alito, where there's a paragraph or two that sets out with numerous citations this principle justice holmes described and many others that the criminal law is presumed to be definite and knowable. once you take that presumption and put it into the police officer's mind in this case or any other actor who acts on a mistake of law, then there is -- no reasonable suspicion because we presumed them to have known the law when they acted. >> suppose the officer stopped the driver here and said, you know, i've been going to night law school and we don't know about this one light, two light thing. there's an intermediate court of appeals hearing the case, saying only one light is necessary. i don't know what the law is.

you better get this fixed. >> i think there's two questions there. >> and then he sees the contraband. >> pardon me? >> and in the course of this conversation, he sees the contraband. >> well, i think there's two questions embedded in there. one is whether the officer can look to court decisions or other third party sources to help him do his job. now, again, that is what the court has said in the kroll and davis cases that you take into account things like policeman -- police manuals it, court decisions, the rest. the court has embraced that in its remedy jurisprudence but many in wren has said that is off limits. there is also an element of your question asking if all the officer was worried about was the safety on the roadway. that would be a very different case. again, i'm going to turn the court to wren where the court said if there's a stop done for reasons aside from probable cause, then the purpose of that stop such as the community care taking function might kick in. but of course the state hasn't

made any argument in that respect in this case because the record is quite clear the officer was performing a criminal investigation. >> mr. fisher, we don't review opinions. we review judgments. we review results. what you're complaining about here is the admission of what was discovered in the search of the car. right? now, what difference does it make whether that was lawfully admitted because it was a constitutional search or it was lawfully admitted because the remedy of excluding it would not be applied if there was a mistake of law, a reasonable mistake of law. i mean, the constitutional problem is the admission of this evidence. and it seems to me whether it's properly admitted because the fourth amendment wasn't violated

or whether it's properly admitted because the remedy for that violation is not exclusion of the evidence, you lose either way, don't you? >> well, justice scalia, nobody has addressed the question of remedy in this case because nobody needs to address -- >> we need to if we find as you were just to find that it violates the fourth amendment to make the search. we would then have to -- in order to decide whether this judgment is lawful we would have to decide whether the remedy of excluding that evidence has to be applied. >> forgive me. with respect, justice scalia, i'm not sure the court needs to do that. of course, i think the court can vacate and remand the judgment just as it does innumerable other times it finds a problem with the lower court decision and therefore, sends it back. even if this were purely a federal case, justice scalia, i think i'd be saying the same

thing, which is nobody has briefed or argued the good faith exception in this case. >> well, you have. you have. and you acknowledge that it applies to remedies. >> no, no, no. here's what i've acknowledged justice scalia. i guess this is important. we've acknowledged that the question of whether the mistake was reasonable would be relevant if at all at the remedy stage. so what you would do is you'd ask the question if this were a federal case where you had to reach the question, you'd ask whether the officer's mistake of law in this case renders suppression inappropriate. now, i would add that holding that it did render suppression inappropriate would be an extension of the court's current good faith jurupa which thus far has held that good faith doctrine applies only when an officer relies on binding law from a legislature or a court. >> so the most we can get from us is a remand. >> that's right. but i do think it's -- >> just let the north carolina court decide whether the remedy of exclusion should have been --

>> that's right. i'm not sure it's any different if i said there's a constitutional violation that i may or may not be entitled to a remedy under chapman because the error was harmless or not. those are the kinds of situations where the court would always resolve the constitutional question that the lower court addressed and then send it back down for the question of remedy. >> i don't know why -- following up on what justice scalia is saying. he's saying we don't give you a remedy unless we believe that one is warranted under the fourth amendment. and since we apply, doesn't matter whether north carolina applies good faith or not. what we apply in terms of determining whether a federal violation, constitutional violation is subject to any type of remedy for you is the good faith exception. so why do we have to remand? i think that's justice scalia's question. i'm not quite sure you've answered it. >> the reason to remand is because the lower court hasn't

addressed any question of remedy. so in the first instance, you should send it back to the lower court for a full adversarial briefing. >> but north carolina has a rule, i thought, that if you violate the fourth amendment, that's it. we don't have a good faith exception. >> that will be our position on remand, justice ginsburg. the state may try to persuade the court of something else. >> isn't that what the north carolina law is now? so it would be futile to send it back for them to answer the good faith exception since they have none. >> it wouldn't be futile, justice ginsburg. i think the analogy that i gave earlier about chapman is more or less on point. the court has held if the constitution is violated that the defendant in criminal case doesn't get a remedy unless he satisfies that test. now, all the time in criminal cases you would decide the constitutional issue and then send it back for remedy analysis if the lower court hadn't addressed it -- >> that's because they would be applying federal law.

they would be answering the question that you want us to leave unanswered. namely whether the constitution requires that this evidence be stricken from the case. >> well, let me -- >> but if, indeed, they're not going to ask that question when we send it back, it seems to me we have to answer that question here. before we are able to reverse or affirm that the north carolina court, it's a federal question. they are not going to get to that. but you're asking us to invalidate this conviction on the basis of federal law. and it seems to me we cannot do that even if there has been a violation of the fourth amendment, the remedy must be exclusion of the evidence. that's a federal question. i think we're going to have to decide it. if we send it back to north carolina, they're not going to decide it. >> no, i don't believe they

would or should. but i -- but just if a state had adopted a rule saying we're going to have a more favorable jurisprudence of constitutional error and give automatic new trials, the court wouldn't be prohibited from deciding a constitutional issue and sending it back to the state. in the retroactivity sphere, dan forde says states can choose for themselves. >> there's no question if north carolina applied a state constitutional analog to the fourth amendment, they could have a more extensive remedy than is recognized under our fourth amendment cases. but your argument is they can adopt a state law rule for fourth amendment violations that is more protective of defendants than federal case law provides. that would be your argument, right? >> i don't need to make that argument. i think that would be an interesting question and i think the state may be able to do

that, but what the carter decision in north carolina says is violations of the state constitution cannot be overlooked on good faith doctrine. >> was this decision based on the state constitution? >> no, it was based on the federal constitution. so we would send it back down and we preserved an argument that under state law the violation of fourth amendment also violates the north carolina constitution. >> but you're asking us to reverse it on the basis of federal law. and you're asking us to send it back to a state court which is not going to inquire any further inter-federal law. even though federal law arguably, you will concede, says that even if there is a fourth amendment violation, if there is a good faith reasonable belief that the law was violated, the remedy of exclusion will not be imposed. that's what the constitution requires. and you're asking us to say, oh,

no. there's been a violation of the constitution and we're going to reverse this judgment. even though we haven't inquired into whether the remedy that you want is required. it seems to me, i don't sees how we can do that. >> i don't want to keep saying the same thing. i'll try to say one more time, i think it's fully customary for this court to have a case from state courts where a state court issues a ruling on federal law. there may be many other issues in the case. federal, state, whatever. but if the question of federal law the state court decided is incorrect, this court can reverse that judgment, say you got federal law wrong. we're going to send it back down. >> but it chooses to decide based on only half of the federal law or orders of the federal law. north carolina more or less set us up this way. that this is -- >> there isn't -- forgive me. >> which is a follow-up on justice scalia's question.

>> they didn't get federal law wrong. their opinion got federal law wrong. but their judgment did not get federal law wrong. if indeed a good faith mistake of law does not require the exclusion of the evidence from the trial. the judgment did not get federal law wrong. if that's the case. >> well, i think that their analysis got federal law wrong for the reasons we've described. we don't review analyses. we review judgments. you're urging that this conviction has to be set aside. that's what we're reviewing. the conviction, not the opinion. >> well, justice scalia, if you want to decide the good faith question that has not been briefed by any party, i suggest you might want to tread carefully. now, we've given you -- maybe what i need to do is explain to you why even if you did feel like you needed to get to that question which i don't think you need to, but if you did need to get to that question, why you

should say that the good faith doctrine doesn't apply. >> i don't want to take up your rebuttal time, but your argument has confused me on something i thought i understood. i thought the reason you've argued this case the way you have, trying to convince us to draw a sharp distinction between right and remedy is because you believe north carolina has the right under state law to device its own version of the exclusionary rule. if that's not your argument, then i'm really puzzled by what you're doing. >> functionally, that's the way things work in north carolina, justice alito. i think the only thing that maybe i need to make more clear is that the reason why it works that way in north carolina is because the state has held that violations of our state constitution cannot be subject to a good faith exception. >> the state constitution is irrelevant because you're arguing about whether there can be mistake of law in determining whether a search is reasonable under the fourth amendment to the constitution of the united states.

whatever we hold on that, north carolina can do whatever it wants on the same question with respect to the state constitution. >> that's the next thing i was going to say. in theory you're right, justice alito, but what north carolina has said is we construe to be pro terp news with the fourth amendment. so that's not the way the court goes about its business. functionally in the state of north carolina where you are is that fourth amendment questions run parallel to state substantive constitutional law questions and if there's a violation, you suppress. >> mr. fisher, suppose this were a federal case and we had available to us and had all been briefed two alternative holdings in order to support the conviction and one holding was this is not a violation of fourth amendment law in the first instance and the other holding was this is a violation of fourth amendment law but the exclusionary rule operates and so the good faith exception to

the excluesry rule operations and so the evidence comes in. is there any difference between those two holdings? >> i think the difference between those two holdings if the court remanded may well play out differently in north carolina. >> no, no, no. i mean if it were a federal case -- >> i'm sorry, i missed that. if it were a federal case, it would be functionally the same holding as to the outcome of that case. >> yes, please. >> but there would be important reasons nonetheless. even though that would be a functionally identical holding, for the parties in the case. there would be very important reasons nonetheless to make sure that you rendered that holding as to remedy jurupa not as to the remedy itself. in one reason i've opened with and have tried to say a couple times is that the government should be presumed to know the law. it would undercut public confidence in law enforcement and the common law rule upon which the criminal law is built to say that government doesn't have to be -- presumed to know the law when it acted. >> you say that, but some people say the existence of a rule remedy gap undermines public confidence in the law.

so why should we take that argument any more seriously than the rule remedy gap problem? >> because people have argued that you shouldn't suspend remedy and the court has rejected and said, no, as judge wilkinson wrote in the law review piece that i cite in the brief, there's an important reason to announce the right even if you're not going to give a remedy. now, there are practical reasons for this as well. even in the court's good faith jurisprudence, the court has given leeway to officers only to the extend the officer are relying on a clear directive by a third party like a legislature or a court. this is very different. this is like the johnson case from 1982 where the court held if the officer acts on his own view of a, quote, unruled law, unsettled rule of law, we not only find a fourth amendment violation, we have to suppress. even if i have to argue this case -- >> do you dispute that this is a

reasonable interception of state law? >> i would dispute if you were asking in the chevron sense that the statute was ambiguous that it could be read this way. but i don't think it should be viewed as a reasonable mistake under the good faith doctrine. because the good faith doctrine deals with directives from third parties. and officers relying on third parties. johnson that i was just citing to you says that unsettled questions of law -- >> i don't need to ask this in the context of any other body of the court's case law. just in the common sense understanding of the term. was it reasonable if even an attorney sat down and read the relevant north carolina statutes, do you think it would be reasonable for that attorney to conclude that you have to have two functioning brake lights and not just one? >> i think in the common sense way i could concede that that would be reasonable but there's a legal way of asking what a reasonable and what is not, justice alito. let me say two things about that. one is the court has never taken into account ambiguity or the

possibility for error in asking whether or not a governmental officer gets the law right. and secondly, you have to define the concept of can reasonable. even if you look at the facts of this case and think this mistake was reasonable, the other side hasn't given a definition of a -- of what it would say would be a reasonable mistake of law. there's a reference in the state's brief and solicitor general describes, uses language to say a foothold in the statutory text. i'm not sure what definition would apply here, but one thing i do know from the court's qualified immunity and jurisprudence you have to define that concept. the definitions that exist in the law right now are very, very broad. i think that goes to the practical reason that i was going to describe to the court why you shouldn't hold that the fourth amendment is satisfied here. because if you say that anything that's reasonable as the court has defineded in other cases is susceptible to debate, you vastly expand police

officer to direct traffic stops. officers have enormous discretion by the nature of the traffic laws and -- >> mr. fisher, let me try my problem one last time before your time. you assert that we should not decide the remedy question because it hasn't been argued. but wasn't it your responsibility to argue it? you're asking us to set aside a judgment of the north carolina court. that judgment can be set aside only if number one, the fourth amendment was not violated. or number two, it was violated, but the remedy does not have to be remedy of exclusions. it seems to me it's your burden to establish not just that the fourth amendment was violated but also that exclusion was necessary under the constitution. and it is no answer to say well, that hasn't been argued. you haven't argued >> if i need to argue it, i

would refer you to the part three arguments in our opening brief which explain why even if you move good faith into the right -- and those would be my arguments, justice scalia. the only other case that comes to mind is the court's iolta case several years ago where the -- there was a taking question brought to the court and the court divided that federal law question into two pieces. when the lower court had only addressed the first piece of the case, the court reversed on that first piece of the case and sent it back down. so i think what i'm asking you for isn't terribly different. >> send it back down for that court to decide the other piece. but this court will not decide the other piece. as you acknowledge. >> if a state makes that choice that it's going to give a more favorable remedy, then federalism should respect that choice, justice scalia. i'd like to reserve the rest of my time. >> thank you, mr. fisher. mr. montgomery. >> mr. chief justice and may it please the court, the fourth amendment prohibits unreasonable searches and seizures but it

does not require that police officers be perfect. because the touchstone of the fourth amendment is reasonableness, all that is required is that a police officer have a reasonable view of the facts and apply those facts to a reasonable understanding of the law. >> will we ever get an understanding, the right understanding of the law? meaning as i read the north carolina supreme court decision, it still hasn't told me whether it's one or two brake lights. and the next police officer who wants to stop someone won't know that either. now, he may be bound by the appellate court decision, but that won't help clarify the state of the law. isn't what you're doing going to leave criminal law unclear? it's one thing to say you don't

want to subject officers to civil liability. it's another to say you want to leave the law unclear in a criminal prosecution. >> well, your honor, in north carolina controlling precedent does come from the intermediate court of appeals. that's not to say our supreme court might not reach a different decision some day. but for now police officers would be bound by what the north carolina court of appeals decided. so the law has been decided. an officer who goes out and makes a stop tomorrow because one brake light is out would be acting unreasonably under that decision. so it doesn't leave criminal law uncertain. >> well, it will for the appellate division if it's now taking your view that it can just find out whether the reading, the officer's reading of the law is reasonable. it basically means any open question police officers will

rule in favor of their right to search. >> it depends on whether the question is an open question and whether that interpretation by the officer is reasonable. it certainly may be an unreasonable interpretation. >> define what would make it unreasonable. >> well, it would be unreasonable if there was plain language of the statute that no one could reach a different interpretation about at all if it was plain or if there was a definite decision by an appellate court, it would be unreasonable for the officer to interpret it in his own way. and the whole standard would be a reasonable person standard. would a reasonable person be able to take this view of the statute? >> that's a very broad definition of reasonable. i understand the idea that when 99 people out of a hundred think you have to have two brake lights like you do everywhere else in the country that it's reasonable for the police officer to think that. but it sounds to me like you're

adopting the same standard that we apply in qualified immunity which gives the officers quite broad scope. and that's troubling. >> it's not the same as qualified immunity. qualified immunity protects the plainly incompetent. we're not saying that is the standard here. >> no, i think it doesn't protect the -- >> i'm sorry. it doesn't protect the -- >> i think the chief justice is asking you to describe a case for us where the officer would receive qualified immunity but it would not count as reasonable for these purposes. >> one of the things that this court has said in wilson v. lane is that this court and courts can look beyond just the officer's interpretation. like this it could look to other matters. there could be an officer ho had an unreasonable interpretation of the statute and yet, he may

still have qualified immunity. for instance, because he was told by a judge or by the attorney general or by someone that this was correct. and that was a complete misunderstanding of the statute. it may be that that officer would still be protected by qualified immunity but for fourth amendment purposes, that would not be a reasonable interpretation of the statute. >> you would not give a pass. let's say the case is flipped here and the most reasonable reading of the statute is that you only need one brake light. and so someone's driving around with one brake light, you pull him over, he's going to say i reasonably thought i only needed one. and the court comes out and says i needed two. in that case, his ignorance of the law would not save him, would it? >> no, it would not. but the flip side of that is an officer's belief that you needed all of your brake lights and that is not actually the law does not mean that that person is guilty. in other words, in this

instance, this driver -- excuse me. the defendant here or the driver actually could not be held liable it's not the fact that an officer thinks reasonably that the law is something. that doesn't make it the law. just like if a citizen does not think that's the law. that does not mean he can escape liability. >> there is a problem, however -- i'm sorry. the police officer wasn't stopping him because of a brake light. the police officer was involved in criminal interdictions and admitted that this was a pretext. a lawful pretext he thought. so he wasn't there just to tell him. if he had just stopped them and said fix your brake light and drove away. there'd never be a lawsuit, correct? >> that's correct. >> so how many citizens have been stopped for one brake light who are asked to have their car searched?

and is that something that we as a society should be encouraging? >> well, wholly innocent people are stopped quite often because of states of fact, for instance. that's part of the whole -- how terri works and those type of brief stops. there turns out times that citizens have not committed any kind of offense and yet they are stopped. this is just another example of that in which an officer acted reasonably just as with a reasonable mistake of fact. and it turned out that this was not actually a violation. >> i'd like to focus again on your definition of reasonableness. let's say you have two court of appeals decisions. one says you need two brake lights. the other says you need one. is it reasonable for the officer to pull somebody over when one of their two brake lights is burned out? >> if you have conflicting

rulings from the court of appeals, it would be reasonable then for the officer to decide which he thought was the better rule, if there were two different decisions from the court of appeals which is not supposed to happen in our system. but if that did happen, then it would be reasonable for the officer to rely on either one of those. >> mr. montgomery, i take it that one of mr. fisher's arguments, maybe his primary argument is that this just looks like a remedies question. it does not look like a rights question. it focuses on the culpability of the officer in the way we do when we think about immunity or when we think about the exclusionary rule. so why isn't that exactly right? to the extent that this conviction ought to be upheld, it ought to be upheld on remedies reasons rather than rights reasons to fit in with our basic understanding of what remedies and rights do and do

differently in our law. >> certainly this court looks at different things when it looks at the right versus the remedy. reasonableness is important in the right stage that may be considered and also the culpability of the officer, whether he was dibrately disregarding the law, those types of things. this court has addressed mistakes of law both in the rights and the remedy stage. and so it would be important to address it in the rights stage. here in this particular case. because then we don't get into the sorts of things that wouldn't be necessary in the remedy stage, if that answers. >> what about the dissenter in the north carolina court of appeals who said north carolina has no good faith exception. and so all that this decision does is it allows the police to get around the absence of a good

faith exception. wasn't that position of the dissenter the support of law. is the functional equivalent of a good faith exception. >> that was the position of the dissenting justices at the north carolina supreme court, one of the things that they said. but again, this gets back to reasonableness as the standard for the fourth amendment. that is what this court has said is important at that is taken is whether an officer is acting reasonably. there are other considerations that take place at the remedy stage. so the state was asking for nothing more than simply whether this violated the fourth amendment. and not about remedy. >> counsel, maybe you have all

the answer to the questions i was asking of mr. fisher. and i guess the answer is you haven't argued that point. you did not assert in your brief and you haven't asserted it in your oral argument thus far anyway that even if it did constitute a violation of the fourth amendment, the remedy did not have to be exclusion of the evidence. and that remedy is indeed subject to reasonable mistake of law. and therefore the decision has to be affirmed. but you didn't make that argument. you want to put all your eggs in the basket of whether it's a violation of fourth amendment. am i right about that? >> that's correct, your honor. >> i'm sorry. it wastes so much of our time. >> well, we did not make that argument below the north carolina supreme court.

and mr. fisher is correct in that it is our state constitution that says that there's no good faith exception. if a defendant had only raised a fourth amendment question in our courts, the good faith exception would still be available if that defendant did not make a claim under the state constitution. >> well, i'm not too sure it makes good credential sense to allow the north carolina supreme court to put to us which is basically an abstract question. >> the question of -- >> to give an answer without reference to the fact that, as justice scalia indicates, part of the fourth amendment is the good faith exception. it bears unreasonableness. >> that's correct. and this court has in cases like rodriguez dealt with mistakable law just in the rights stage rather than the remedy stage.

and that's all that has been briefed in this instance. that's correct. and one of the things that is different about this that is different from kroll and davis is that we're not talking about -- >> excuse me. that just doesn't wash. yeah, in other cases we just decide they're right and don't have to decide the remedy, but this is a case in which unless the remedy is exclusion, there's no basis for us to set aside the judgment of the north carolina supreme court. unless the remedy is exclusion. it seems to me that's part of the case to reverse. if we can't say that, we have no business reversing it. if it hasn't been argued, i guess we can do that, i guess. >> that has not been argued here or below, that's correct. a difference between this case and krul and davis is that this case -- this involves a mistake of law as to a substantive statute rather than a mistake of

law as to the fourth amendment itself. the difference in that is that a reasonable violation of the fourth amendment is still a violation of the fourth amendment is still a violation of the fourth amendment. if there's a statute that gives an officer the opportunity to make a seizure on less than what is required by the constitution, less than probable cause or less than reasonable suspicion, even if the officer is reasonable, that is still a fourth amendment violation, which is why there court would have to go to the remedy portion to decide whether the exclusionary rule applied. in this instance, this case it was a mistake as to a substantive statute that was used by the officer as part of the facts and circumstances of this case. as part of the totality of the circumstances of this case, the officer considered what he thought was the correct law. >> why should you draw the line between if he gets the fourth

amendment wrong, the fourth amendment is violated. but if he gets the statute wrong, then the fourth amendment is not violated. >> because the -- because the officer only needs to act reasonably. and the fact he gets the statute wrong does not mean he acted necessarily unreasonably. >> well, fact that he made a mistake about what the fourth amendment requires could also be reasonable. >> it could be and that would be proper to consider as this court has in the remedy is taken rather than in the right stage. in the de filippo case the court decided there was a situation in which a statute, a substantive statute was found unconstitutional and void for vagueness, and yet this court found that there was probable cause in that case for the officer to make an arrest paced upon than statute. so that was one case in which

this court looked at it at the right stage as a mistake of law rather than at the remedy stage. >> do you think if de filippo came up again today with all the cases that have been decided since then that we would decide it the same way? or do you think we would conceptualize it now as a remedies question? >> i think the court would decide it the same way. and this court in arizona v. evans said that if the case is decided even before the good faith exception are still viable in terms of the fourth amendment. >> what kind of mistake of law did the police officer make in de filippo? the law said exactly what he thought it said. >> that's correct. >> why do you classify this as a mistake of law question? >> i believe -- >> we said it was presumptively valid and he acted according to the statute. you don't ask police officers to

ignore the law. >> that is correct that it's different from this case -- >> no, no. this was a mistake of law. he wasn't following the law, presumably, according to the appellate division. >> that's right. the de filippo case is important because you had someone who was acting wholly innocently. he was not committing an offense at all. as in this case you had someone who was acting wholly innocently and was not committing a violation of the law. and so even though the court said the conduct was wholly innocent, there still was probable cause despite the mistake of law. and that's all that we're saying. >> isn't there another difference between de filippo and this case? the court in de filippo talks a lot about how there's a presumption of functionality for any statute and we don't want officers to go around

questioning the constitutionality of statutes. but here that's not the case. here there's a statute and an officer is not supposed to read it as broadly as possible. an officer is supposed to read it fairly. so there's no presumption that goes into effect and there's no way in which we could say the same thing bandage de filippo is we don't want officers to inquire into this area. >> it is different, but we do want officers to enforce the law. we don't want them to just sit back and not enforce it. >> we want them to enforce the law fairly and as written and not to push every statute to its, you know, the furthest it could go without being found utterly unreasonable. >> that's correct, your honor. but we do want them to act reasonably and still enforce the law, not turn a blind eye to what may be a violation. >> how does the statute read here? what are the exact words of the statute?

>> the statute has two parts. it has a subsection "d." >> where do we find it? >> this would be in the appendix to the respondent's brief. appendix pages one through five has all of the relevant portions of the statute. subsection "d" involves rear lamps. and says every motor vehicle shall have all originally equipped rear or the equivalent in good working order. that's the relevant portion of subsection "d." subsection "g" which is on page three of the appendix says no person shall sell or operate on the highways of the state any motor vehicle manufactured after december 31st, 1955, unless it shall be equipped with a stop lamp on the rear of the vehicle.

that is the language that the north carolina court of appeals said when it said a stop lamp, that meant that only one was required. >> that seems to be what it says. >> the confusion comes in, justice scalia, in the last sentence of subsection "g" which says the stop lamp may be incorporated into a unit with one or more other rear lamps. where the confusion comes in is that sentence would seem to imply that the stop lamp is a rear lamp. that it can be incorporated into a unit with one or more other rear lamps. and if you go back to subsection "d," that's the section that says that all originally equipped rear lamps must be in good working order. so there's some conflict in -- >> that applies to all real rear lamps, a stop lamp and all the other lamps. >> that's correct. >> so it has to be plural. if it's going to apply to the

stop lamp and all the other lamps. of course,ed you say lamps. >> my time is up. >> thank you. >> thank you, counsel. >> mr. chief justice and may it please the court, since the founding, the probable cause standard has allowed police officers to make stops when there are reasonable grounds to believe that a person committed a crime even if the officer later turns out to have been mistaken about either the facts or the law. and as justice kennedy observed at the start of this argument, given this court's case organized there can be a reasonable mistake of law, an officer who makes a reasonable mistake of law may have a reasonable grounds to believe that a person committed a crime. if i can go to a question that justice kagan asked about why

this question is more appropriately addressed at the right stage than the remedy is taken, we think there are three main reasons. the first has to do with history. since the founding, this court has treated the probable cause standard as allowing for reasonable mistakes of law. >> are all the cases you cite including riddle all in the context of a customs statute that didn't permit customs officers to suffer damages? >> yes, your honor. >> for purposes of an error of law, correct? >> that's correct. the reason -- >> none of those cases involved a violation of a fourth amendment. >> that's correct. the reason those cases are relevant here is because those cases are interpretations of the probable cause standard. >> how is that different in terms of its analysis, those cases, from what we've ultimately applied as a qualified immunity standard with respect to civil damages today?

don't they follow exactly the same reasoning? >> i don't think so, your honor. those cases, the probable cause reasoning that the court has followed in those cases is what the court has done at the merit stage of the court amendment analysis. so this court has routinely cited under those customs statutes as illuminating the meaning of the probable cause standard and is there ever illuminating -- >> so you disagree with the justice when he looked at those and made the point i just made. you think he was wrong. >> no. there's no doubt in the case the the question the court was ultimately answering is are those customs officers liable. the way to determine that is whether they had probable cause. and probable cause is the constitutional standard. that's why this court has relied on those cases in illuminating -- >> can i ask you a question i'd like just like you to address for a minute. assume for the sake of argument that i agree with you that a reasonable mistake of law is an excuse. but what is is a reasonable

mistake? now, that's what i'd like to you address. and it has to be exceedingly rare, two, objective, three, it has to be that the reasonable lawyer would think that the policeman was right on the law and only if after quote your brief, a careful scrutiny and serious difficulty in construing the law, does it turn out that he's wrong. now, what do you think about that or some other standard? >> i think we agree with each of those descriptions of a reasonable. >> if you agree with those, then what about this case? because after all, it does say a stoplight. what's the difficulty of construing that to mean a stoplight? >> so we think that the north carolina supreme court and the court of appeals were right that an officer could reasonably interpret the statute to require -- >> only after a careful jute

juteny and serious difficulty in construing the law does it turn out that the officer is wrong. what's the difficulty? a stoplight? >> here the difficulty is in the other provision which requires all originally equipped rear lamps to be working. >> that includes the stoplight and any other lights, okay? the stoplight, the turn lights, the backup lights. so you had to use the plural for those other provisions. >> agreed it's not the plural. it's the fact that all originally equipped rear lamps need to be working which means if a car was orally equipped with multiple stop lamps as cars now are, then when one of them is broken, one of the originally equipped rear lamps is not work. that's the difficulty. that's why none of the courts that considered this question thought this was anything other than a very hard question of statutory interpretation. >> where do you come out in my the hypothetical two court of appeals decisions? is it reasonable for the officer to say i'm going to pick this

and follow that? >> if the officer is in a jurisdiction whose court of appeals has decided the question, we think the officer is bound by that interpretation even if other courts of appeals come out differently. if the officer is in a jurisdiction where the question is undecided and different courts have come out differently in other jurisdictions, we don't think the fact that one court has decided it in one way is dispositive. then the court looks to this question, is it a really difficult. >> i forgot one thing which may be obvious to me. we're not talking about a difficulty in con stug the fourth amendment itself. we're talking only about a difficulty in construing a criminal statute where in fact, the reason for the stop or seizure is based on a violation of criminal law. >> that's right. we think the probable cause standard allows for an officer to act when he has reasonable grounds. >> how is your standard different from the qualified immunity standard of reasonableness? >> we think that an officer in order to have reasonable grounds

for a stop needs to be able to point to something in the statute that supports his view. the qualified immunity seems to require there's a precedent that forecloses what the officer does in order to protect only those hose are acting -- protect everybody those except those who are clearly incompetent? >> one argument in your brief i didn't follow is the importance of holding the way you recommend is so that you can get this question solved. tee up the question what is the rule, one light or two lights? but yet in this case, it was consent. the evidence that came in, had nothing at all to do with a traffic violation, so we wouldn't need to -- the court wouldn't need to decide that traffic violations, there was consent. i think the north carolina intermediate appellate court said it was a legitimate consent. there was consent and this evidence comes in and we never

have to deal with what the traffic regulation was. >> that's correct, your honor. and this question comes up in two contexts, sometimes it will be litigated in the suppression context and sometimes it will be litigated because the officer actually issue acitation. and our concern expressed in that portion of the brief is if the court takes the position that whenever an officer is wrong about the law, he's violated a fourth amendment, it's going to deter officers from making stops where there are argument onds both sides. >> do you agree that if there is an illegal stop, that this consent is the fruit of the poison tree? >> we think that will be a difficult question, we don't necessarily agree with that, this court has said, it's not simply a but for test, but even if the stop was a but for clause, it doesn't necessarily mean that the evidence was fruit of the poisonous tree but the question wasn't argued below by the state and it hasn't been briefed here. so we've addressed simply the

question that the parties -- >> you started your argument by saying you were going to give us three reasons why this should be a rights question rather than a remedies question. you said history, which frankly, i think your history probably doesn't say as much as you think it says. so i want to know what number two and number three are. >> the second is an administrate tblt reason. you ask courts to decide whether an officer can reasonably think that a person had committed a crime. and you don't separate whether it's a question of law or a question of fact and one in the rights section and one in the remedies section. the third is, we don't think there's a reason to treat mistakes of law and facts differently. when an officer makes a stop in this situation, he can just as reasonably be confused as to what the law is under these statutes as confused as to what the facts are. if we're going to treat mistakes of fact as parts of the rights analysis it, makes sense to treat reasonable mistakes of law in the same way. the court has no further

questions. thank you. >> thank you, counsel. mr. fisher, you have three minutes left. >> thank you, i would like to make four points if i could. to start with the administerability of the question, what would reasonableness mean, i think it your hypothetical of two differing court of appeals opinions in a state, i think under tunder the analysis that just described, that it would violate the fourth amendment in half the state, and not until other half of the state, because each would be binding in it's own component of the state. and that shows why in rand and many other cases the court has rejected that analysis and kept and cabined it only to the remedy stage. >> in this case, didn't the centers in the north carolina supreme court say that the interpretation adopted by the court of appeals was surprising. so all we would have to say on reasonableness is that if it's surprising, if the correct interpretation is surprising, then the contrary interpretation is reasonable. would we have to go further than that?

>> i think you do, because you have to give a little more teeth to it. what the solicitor general says it you would have to have foot hold in the statute. there's a recent d.c. court of appeals opinion that holds that a police officer could argue from a foothold in a statute that all license plates are illegal. they rejected that under their code but 80s just one of innumerable arguments that a law enforcement officer could make. >> it would be one way, one court one way, one court the other way, the officer loses because it has to be unusual, it has to be -- you heard what -- >> i think the problem with that is that it's the core presumption that the officer needs to understand the law as it existed as it was later construed. and mr. chief justice, you asked i think about the ignorance canon and the state's response was well, if somebody is reasonably mistaken about the

law, we would convict him. and the reason why is because we would assume he knew the law. he would assume that somebody at if the court of appeals split and there court divided 5-4, the person is still convicted because we assume they knew the law when they acted. and all we're asking for is the you exact same assumption to be apply to the officer. and with respect to the inspector general, the cases they describe don't help them, they're only remedy cases, and even when the court has cited those cases, they're all in the context where the court didn't distinguish rights from remedies. if you want to look at the founding, the controlling rule would be the common law rule. and as we said in our brief with, no disagreement from the other side, the common law rule dating back centuries was that ignorance of the law on the police officer's part even if it was perfectly reasonable didn't juify account stop. >> if i could say one last thing about the colloquies we were having before, with all due

respect, i really do think there's nothing unusual about a party litigating a case up through the courts. it may arises in state or federal court but they can choose to raise the arguments they choose to raise. and when we got a judgment in our favor from the north carolina court of appeals, it was up to the state at that point, to choose what arguments it wanted to pursue further in this case. so just like a state may -- a party may ride the first amendment instead of the second, or a rights question instead of remedy, we think that's all that's happened here. >> thank you, council. the case is submitted. >> tonight tonight on c-span3, "washington journal's" interview with purdue university president mitch daniels. the former indiana governor and white house budget director spoke with viewers as part of our special series on universities in the big ten conference. that's followed by a debate ob genetically modified foods. a senate hearing on school lunch nutrition and a look at how bees are being used today for more than just making honey and pollinating plants. it all begins at 8:00 p.m.

eastern here on c-span3. >> with the 2014 midterm election next week, our campaign debate coverage continues. tonight, at 8:00 eastern, the illinois governor's debate between governor pat quinn and bruce rounder. at 9:00, the new york governor's debate with the andrew cuomo, rob astor rin know, howie hawkins and michael mcdermott. at 10:00, the new hampshire senate debate between senator jeanne shaheen and scott brown. at 8:00 p.m. eastern on c-span2, the new hampshire governors debate between the governor and walt haven stein. at 9:00, the oregon governor's debate with the governor john kits hauber and dennis richardson. and the south dakota senate debate between mike rounds, rick we land, larry pressler and gordon howie. c-span campaign 2014, more than 100 debates for the control of

congress. >> the national league of cities recently released its annual report tracking fiscal conditions in cities across the u.s. at a forum to discuss the findings, white house counsel of economic advisors chair jason furman offered a federal perspective. he was joined by local leader who are their own fiscal outlooks. this is an hour and ten minutes. cities are the economic engine of america. with over 80% of americans living in cities, it is clear that the economy of cities drives the economy of our nation of america. again, cities are the economic engine of america. so if cities are prospering, are

so does america prosper. like new york, los angeles, respectively represent the second and sixth largest growth domestic product in america, economy represents jobs, it represents opportunities, it represents talent, and it represents tourism and it represents america. that is why the national league of cities which represents 19 thought cities and towns in america knows that the economy is one of the most important elements of a community. good morning. i'm cleanser anthony, chief executive officer and executive director of the national league of cities. i'm excited to welcome you to the launch event for the city fiscal conditions 2014. it's now our 29th edition that

the national league of cities has produced the annual report that serves as a critical resource to cities, shedding light on national trends and local revenues, city budgets, municipal workforce, and what we should expect in the years to come as americans who live in cities. since the economic downturn in 2008, the impact of the great recession has been the unavoidable under lined theme in our yearly look at fiscal conditions. as city leaders know well, wider economic conditions are the fuel of local government. providing the resources that cities use to shape personnel decisions, infrastructure investments, and key services that communities rely on day in and day out. but we also know that the decisions made at the local

level can kick start that very important economic activity in the nation. the investments cities make in roads and transitity systems, the services cities provide to keep communities safe, the work cities do to ensure the availability of affordable housing all provide a strong foundation for economic vitality for america. today's event will help us better understand this relationship between city fiscal health and the economic health of communities. we'll hear insights from local and national leaders on the state of cities' fiscal conditions and what levers will further power the innovation and leadership we are seeing across the nation that's occurring in cities daily. this report by the national league of cities will provide an in-depth look at the report findings, our president mayor chris coleman will bring in the

local perspective, followed by a panel discussion. but first, i'm produced to introduce a special guest and a special friend, jason furman, chairman chairman of the white house council of economic advisors. prior to his role as the chairman of economic advisors, he served as assistant to the president for economic policy and the principal deputy director of the national council. from 2007 top 2008, furman was a senior fellow in economic studies and director of the hamilton project at the brookings institute. furman was the economic policy advisor for obama for america. furman who earned his ph.d. in economics and ma from government from howard university in economics as well as an ms in economics from the london school of economics. i'm so honored today to invite

mr. furman here, and he's conducted a wide range of research. so he is the person who can set the stage for this dialogue today. good morning, welcome. >> thank you so much. >> thank you so much for that introduction. and thank you for really putting cities at the heart of our discussion about the u.s. economy, its economic recovery, and its economic future. we're at a moment right now where the united states' economy is the envy of many around the world. while you see troubles in many countries around the world -- in the united states, we've had 55 straight months of job growth. the pace of job growth is picking up. the unemployment rate is the falling at nearly the fastest

rate it's fallen in 30 years. and our growth rate is picking up. at the same time, we're seeing some of the the first signs the wages for typical workers that is just above inflation and not enough to make up for the past losses. if you ask yourself why the recession had such a long lasting impact on the economy and why it is our growth has just started to pick up and strengthen, an important part of that answer is our nation's cities. there is a lot of economists who analyzed the question as to why this recovery from the great recession was different from others.

it is growing out of a financial crisis is more difficult than growing out of an ordinary reception. because households leverage up and businesses overinvest and in the process of recovery there is a long and painful process. surely that's part of it, but in our analysis, perhaps the single biggest factor that differentiates the current economic recovery from the ones that came before it is what's happened at the state and local level. this is the first economic recovery we have seen where states and localities rather than expanding employment and the output were hit so hard by the decline in property values and the reduction in taxes and other aspects of the recession, that they contracted rather than helping us in the national stages get out of the recession.

their own difficulties were contributing to deepening. if you took the normal economic recovery for states and localities, if we had that, we would have had a growth rate that was a half point higher per year over the course of the economic recovery. there is good news here. sms something you see documented in the fiscal conditions report. this is something we heard about and hopefully will hear a lot more about. states and localities, our economy as a whole added 10.3 million jobs in the private sector since we started adding jobs. it only added 9.8 million in total. the same issue i was talking about. states and localities subtracted 400,000 jobs.

that's now reversed. in the last 12 months, states and localities added 80,000 jobs. the contribution that they made to grow and for the economy as a whole and that made the largest contribution in five years. that's a contribution that has been positive in five years so this turn around in local fiscal conditions has led to a turn around in local investment. it led to a turn around in employment of teachers and of firefighters and police officers. all of that has made this

important contribution to the overall strengthening of our national economy. we are of course not all the way there yet in terms of our national economy. they are not all the way there yet in terms of our city's contributions to it. they are investing more in the infrastructure. it puts people to work today and increases productivity over the medium and long run and at the meetings that just concluded, the international monetary fund, they endorsed what every mayor in this country knew.

that's no less true for the united states. a second issue is continuing to strengthen the fiscal position of our cities. one way it has been eroded is by not collecting the taxes that are generally oh,ed and having an unlevel playing field between the small businesses and their competitors over the internet. the president strongly supports the act because it's not just good for our cities, but small businesses and good for jobs. we are pleased to see it was passed on a strong basis in the senate and we would like to see the house act on it. beyond the two specific issues which get very much to the relationship with cities, the president's entire broader economic agenda will create the

virtuous circle that will help strengthen the national economy. that includes investing in education, raising the minimum wage and making the efforts on housing and overall agenda to strengthen the economic growth and make sure that that growth is shared. we are very pleased to have the nation's mayors working together with us. >> good morning and thank you for joining us here today. i am the director of city solutions and applied research. we very much appreciate the time you took to answer the questions and i know you don't have a lot

of time. i will get right into it. 248,000 private sector gaining for the last 55 month. i hope you can provide with thoughts of how they fared with local government and what it means for economic recovery. it's 600,000 below where it was at the peak. that 600,000, the single largest shortfall is in teachers. the student population has only sgroen that means teachers to pupils has moved in the wrong direction. this is not just about our jobs today, it's about the future of our children. the single most important factor is how the economy is doing and

what the finances are. that's why it's so important that we strengthen the economy and take steps like infrastructure and market place fairness to put localities in a better position to be, for example, hiring teachers which is just about as win-win of an idea that we should be able to agree on as i can think of. >> despite gapes in employment, recovery has been slow. this uncertainty in the economy has direct implications for miskal health. can you give us perspective on the outlook? >> i feel good about the economic outlook right now. you have to see both sides of the ledger. there is a set of concerns and certainly the situation and the rest of the world as i alluded to before is a concern for the united states and our economy. we have a lot of strength with

the american consumer. we are in a difficult position a couple of years ago having borrowed a lot with the recession and a lot of that has been worked off. interest rates remain low. with that deleveraging process having worked through the system, consumers are in a better position. the housing sector is about 3% of our economy that make makes a disproportionate contribution when the economy is going down and going up. we are building the steady state sustainable level is more like a million and a half a year.

the fast growth of low wage jobs puts a downward on them. how might this impact them going forward? >> i absolutely think that to strengthen our economy you can strengthen the workers and raise wages. the beginning of 2013. we are gratified that since that date, states and cities around the country have raised the minimum wage. as a result the minimum wage has been raised to 8 million works. there is more than and there workers that have the entire