>> i will agree with both adam and randall. i think we should let the law evolve when they arise. one, taking adam's example a step further would be what happens if you are in a level three automated vehicle and you collide with a level four, how do you start then sort of breaking that out and a signing liability to various parties. it will be interesting. something i think the courts hopefully will be well-prepared to deal with. that's the best option we have as opposed to preemptive prescription delegation. you can do more harm doing that. i forget the second question.

my name is gabriel wolf. thank you for a very interesting presentation. i understand that every self-driving car has to know where it is at any time. is it necessary for others? my question is, do self driving cars have to be tracked? that is what i think i

understood him to say. >> they have to be tracked and be connected and there ways they will be tracked in that sense. maybe mark or randall, do you have an answer to that? >> publicly the way the current manufacturers envision this, they want to focus on sensor technology so there will be a gps receiver so the car will know where it is relative to other things. the sensors are there doing. you will be able to pull up a screen and see where they are. i don't think they will know where another self-driving car is. i don't think that's necessary. >> tracking is not a part of the technology that is being developed by any of the

companies that i know about. >> question at the back? >> my name is kathleen shannon from the university of virginia law school. i had a question about the accident avoidance algo rhythms and if there is an indication from any of the companies about the approach to this. is it going to be every car for itself for accident avoidance and you protect just that car or is it going to try to reduce injury to both cars if they are communicating or i don't know if there is any concerns with that. >> that's a great question. as someone who studied philosophy in the old days, they have a trolley problem that comes up in the philosophy about two trolleys heading at each other and unavoidable collision. all sorts of scenarios being

debated with regards to driverless technology and how to create more ethical algo rhythms. do you have to have them hit each other? one can go off a bridge and other the hits a pack of kids. these are hard questions. nobody wants to debate them, but they will have to. through experiment eighth, we come up with better and better answers. here's what i would say. no matter how thorny the dilemmas are, i am fairly confident the technologies will help us avoid more deaths than when the humans are behind the wheel doing it, we will make the worst of all and maybe like hit the other car or the kits ads ao over the bridge at the same time. i am fairly bullish, but i can you this resulted in some very heated debates if you look at recent debates in washington.

patrick lynn, evan cellinger and others engaged in this. they are legitimate questions. robotic ethics where the questions are to be. >> i agree that the main problem is we have people driving cars. and they are the ones who are causing the accidents. this technology that they are all engineering it, these will be very, very cautious. they would have pulled over and stopped by the time they get to that point. they are trying to avoid getting to these questions, the ethical dilemmas. as you said, it is a really interesting question in the future that is something developers will be working on.

>> we have a question from the gentlemen on the left. a little bit different here. i use this bike share here and we realize the advantage of cycling is the nature and most of us don't know about traffic lights and signs and stuff like that. my question is a motorcycle, any rules that you can get places a lot quicker to drive between cars. i am trying to take this thing ten years beyond.

and there is no vehicle with the president with all the flashing lights that can go anywhere in less than a half hour. and when it comes to a motorcycle, it is taking the fun out of it all. that's an interesting question. what you can do, maybe if some want that, you can talk about lane splitting.

traffic lights and speed limits will be redid you not ant. the car will see what kind of road it's on and what's a safe travel speed for itself. the need to have a law you touched on it a second ago, but if i wanted to drive faster and i'm in a hurry. are the companies making options where i can drive faster or slower? the implication for city municipal revenue. a lot of them get revenue from

tickets. there is a charp reduction or no mechanism with the speeding tickets. if they are driving with dogs, then what happens? we worried about the policemen? >> there cities that do depend on revenue. they will have to figure out the revenue. somebody recently about 90%. 70% of oregon transplants come from auto accidents. we ban driverless cars and we have organs for transplanting. we can't have this conversation in terms of talking about

vehicles, but think of other technologies that can satisfy a lot of demands that we have that we use vehicles for. i spent a lot of time talking about commercial drone technologies. that might in and of itself undermine the need to have more time in a car whether autonomous vehicle or not. they may take them around via smart phones. they can have them dropped off. we don't know how to butterfly effects one fold because of this technology and other technologies that can satisfy demands we have. thank you.

>> my question is with drone technology and commercial drones, it sends in a void technology. i feel like it would be able to develop with autonomous vehicles as well. i was curious if you have seen collaboration between the auto industry and the aviation industry to develop the technology. >> it was with the protocols and technologies with regards to drones and vehicle technology. the faa has a strangle hold on any commercial innovation to get the precautionary based approach. the name of the game with the ariel innovation. i think luckily we are seeing a somewhat more flexible approach with regards to vehicle technologies. i hope the faa comes to mimic that and does better in the

future. as far as i know, there is not a lot of that happening. >> i have spoken to a gentlemen who was working for a part supplier and designing some of the sensor technologies and interested in both the automotive and aviation markets. there always some companies considering that, but i worry that it makes it look like this permissionless innovation that adam is talking about. the right of way rules and scene avoidance. basically right now, give the faa the authority to shut down anything they want. until those are resolved, that's a big problem. >> ariel drones is a headline grabber and the reality is once autonomous vehicles are out there and able to deliver goods to people, i think the desire to use the drones will decline since the weight problems will

be significant. it will be easier to use a ground vehicle. >> that brings the q&a session to a close. what remains is lunch and you are all invited. if you could make your way to the left up the spiral staircase into the george jaeger conference center, lunch will be served. the conference centers are to your right on that corridor. keep a look out for the yellow wall. we thank our panelists. please join me in thanking them. >> on the eve of veteran's day, the department announced to make it easier for veterans to gain access to department services and its many websites. va secretary said it will include firings and restructuring with customer services for 22 million

veterans. we want to know what you think. let us know on our facebook page. do you think the changes are enough? brenda weighs in and said i think he sounded sincere. at least he has a military background. they are long overdue that doesn't get axed by congress. >> c-span veterans day coverage begins with an interview with verna jones. at 10:00, the annual uso gala with general martin dempsey. we are live at 11:00 from arlington national cemetery for the wreath laying ceremony at the tomb of the unknowns. a discussion on veterans mental health issues and later selections from this year's medal of honor ceremonies. >> the 2015 c-span student cam

video competition is under way. open to all middle and high school students to create a documentary on the theme, the three branches and you. showing how a law or action by the executive or judicial branch of the federal government affected you or your community. 200 cash prizes totalling $100,000. for the list of rules and how to get started, go to studentcam.org. >> white house economic advisers chair jason furman is concerned about economic inequality and the growth rate. he spoke at the annual meeting. the group is a global trade association consisting of institutions from around the world. this is about a half hour. >> no one in this room has more respect for this gentlemen than do i. wie worked kroo says from each

other on several campaigns. we won more than i did. the quality of the work took a quantum leap and run circles around us. i am going to get it. i got you here today and we are going to talk about given all the doom and gloom that dominated the conversation the last couple of days, it looks good. we will start with the positive. you have energy prices that are attractive and the fiscal outlook is better. we had a government shut down and there so many positive things about the u.s. we will give you two minutes to take a minute and talk about what's going on good in the united states. >> a year ago i was on stage and we had our government shut down that was not the best time to be talking about it, but part of why we have seen growth pick up is because we have more fiscal stability and less uncertainty

now. friskal drag is considerably smaller and they are able to do what they do best which is to generate economic growth. an under appreciated factor is the slow growth of health costs a decade ago. they were double digit growth. it was 3% in employer premiums and combined with the fact that the technology and innovation continues to be strong and lead the world. all of that helped speed our economic recoveries. a lot of challenges that i'm sure will have a chance to talk about those. we can for a moment safer the fact that the unemployment rate has fallen below 6%, two to four years ahead of what most of the expectations were as recently as a year ago. >> the focus was on the labor markets and lots of interesting

discussions. one of the most interesting was about the role of technology. we have been talking about technology. is it true that it is a complimentary relationship. >> it's the experience with the question. 200 years of new innovation for placing what humans can do and creating new tasks for humans and complimenting them. and the robots are going to take the jobs. i am worried for some people the reason that the robots won't take their jobs is that the wage will go down and they will be willing to work for less and the market will clear with a greater degree of inequality. it will create a challenge for those who don't have the skills to take advantage of the technology and use it to raise

the wages. and it will be worse off. it's the higher quality education and that may not be enough. we may need steps like minimum wage and tax credit to make sure that everyone is sharing in this bounty. >> they have written substantially and the best years of technology impacting productivity is well behind us. and just the lag effect with something else going on. >> in terms of preparing the budget and other topics. it's very hard to predict what new ideas someone hasn't thought of today. they will think of years from

now or years from now. it doesn't mean someone else won't be able to. some of the most pessimistic were out of ideas, but they probably make again defy what we have seen over the course of history. there is a lot of uncertainty around us. the optimistic case is a lot of innovation we have seen that is innovation and technology that can help us innovate more. better computers and lower storage costs and increasingly cheap ability to reproduce. all of these easy to innovate and ideas. i tend to place more weight on the optimistic side of the ledger. >> martin wolf and a host of other people, a lot of discussion about inequality. there was a break point starting

about 1979, 1980. we saw inequality begin to increase. there were variousations over that period. what do you think is at work. what happened in 1979 and 1980. why do we see labor share of national income at a 50-year low. why are they not getting a greater share of productivity and the corporate share? >> i think the biggest problem we face as an economy in terms of several decades long is family incomes have not been rising and haven't been because two things hit it at the same time. productivity slowed around 1973. inequality started rising around 1979 and the combination of slower growth shared less equally has been a double blow for middle class families. for a while we were papering over that blow as more women were coming into the workforce.

that entry falls back down. a lot of things are behind it. the decline of unions and the fall of the minimum wage or the fall of the story as well. but the causes of it are not the same as the solutions. because it's technology, doesn't mean we want to solve it. globalization doesn't mean that. it means figure out better ways to manage these very large trends which have been causing it. >> the statistics are sobering. i was in government. the top 10% received 98% of all income gains. they did a nice job. they exceeded 100%. both of us are struggling to

prove our worth. what is the solution. we have this problem and what do we do about it. the short-term solutions and the long-term solutions and what is politically viable. part of the superior. facing the problem, short steps like minimum wage. the president's proposed taking the earned income tax credit, a wage supplement for low income workers and expanding it. the republican adopted the president's exact proposal and the short run steps. the longer run steps are education from preschool to

college. and acting on things that work quickly and phase in and perhaps even in a larger way overtime. >> the earned income tax is always a favorite both from the democrats and republicans, when i was a treasury and looking at the data, there was a high error rate and one of the best single devices we have that can get done in the first quarter of next year. the feds policy has been very supportive and created an equity mark for the top 10% which owned 80 or 90% of equities that benefitted. the fed policy exacerbated inequality. >> i don't think so. i think the primary thing that the fed does is affect the unemployment and inflation rate. when it comes down, that's one of the most important tools in

terms of dealing with the incomes of the bottom 90% of americans. more broadly, i don't think a distributional lens is useful for monetary policy. i think they are concerned with the macro economy and distribution is the fiscal policy and a debate we obviously have been engaged in. >> the pickety book was the bestseller of the year and i owned a copy and read about 30 pages. it will be interesting to see how many of you own a copy and read it. do you think he is right? the returns on capital kpaser baying these trends? if that's the case, why don't we put capital in the hands of households so they can benefit from the returns? >> i think i agree with both of those. number one, he is good at assembling data and it is largely correct. it might be more correct for the united states than he appreciates. the different increase in

equality that we have seen has been driven by differences in capital accumulation and not labor accumulation. the answer to that is not less capital accumulation at the top although in a state tax, been right, he is part of the solution. it's primarily more accumulation in the middle. one of the important steps that your administration signed into law made it easier and more automatic to save in the 401(k) plan and now the majority default people into safetyings and into auto escalation in the savings policies. the next step is to take nearly half the population that doesn't have savings accounts at work and give them access to an automatic ira that came out of the heritage foundation. there is a lot we can do to focus on the positive and how to create well.

. >> this bipartisan creation for houses. it went too far. how do we go back to the housing unless a more reasonable way. it's an important asset and how do we go back and rejuvenate without creating the same sense that we had before. >> we should be reforming and phasing fannie and freddie out. the role for the government as a back stop after you have gone through a cushion of private capital. in so far as goals, those should be explicit. you can levy a fee and see where the money goes to. you are not making it some contingent liability. there was bipartisan enthusiasm

in the senate banking committee following up on a proposal from corcoran warner. there was a lack of enthusiasm. you had a good start there and it would still be the basis for where we will go in the future. getting there sooner would create a lot more certainty. >> do you think we can get fannie and freddie reformed in 2015? >> i have a hard enough time predicting the economy. i am not the congress. that would be good too. there is a core proposal with a lot of challenges and a lot of that is because you are taking costs that are implicit and making them explicit. the cost for people who are bearing the cost start to object. the people are bearing the cost today are the taxpayers and all americans. they are not quite as aware of

the linlts thabilities they hav. >> the president deputized and the authority. is the white house fully behind these policies and is there a boost if you can get the trade deals done? >> we are behind them. i think there is probably short-term macro boost. it's more of a medium and long-term structural adding to the growth rate. i am confident that that is something that gets through congress. they have gotten it. right now we have an open question. they wrote about this a few days ago about the japanese commitment to the types of

structural reforms that made them enter and they were so enthusiastic about. and we will need to conclude a deal. the one thing we don't want to do is lower our standard and narrow the range just to get something done. we negotiated and can't think of a better place to do it. >> is it the challenges of wages? is that getting trade deals done that was central to u.s. policy and the postwar era? has that diminished because of the trends we have been talking about? >> i think it has, but it hasn't diminished to the point of getting something done. i talked to senators who consider themselves lifelong free traders and are getting

skeptical. the leading academic researchers -- and the reduction and manufacturing of jobs since the year 2000. we have to be frank about that. i also think and this is something i explained to my friends, this is a phenomenon from a particular agreement. the particular agreements we are trying to do have high labor standards and high environmental standards. they are a race to the top and in that way they help deal with the challenges people face and not hurt. that can be confusing. that's a difficult message. >> some of his academic work and the work he did about ten years ago, the financial globalization has been a positive trend or is it -- we are doing work of our

own. it is caught up and globalization is bad. it's a negative force. how do you think of globalization and the prices yet to return to the precrisis levels? >> i think the right question is how do you take advantage of those financial globalization in the flows? in many ways it has been a good thing. they were replaced by the foreign direct investment that produces the growth. it has been a period the last several decades of turbulence and a period of whenever you take the crisis, the average growth rates have been high. if you were the east asian countries, you would like the growth rate from 1960 and have taken a lower rate and not had

the east asian prisz. the question is what to do with the growth without the crisis. in some ways you look at a place like that where the thinking evolved from completely free capital movement to understanding that in some krks the constraints on that can be stabilizing. >> that's taken on sort of a perjorative term. in the 1980s, debt to gdp was 50%. up to precrisis, this is as high as 350%. we had a long era in the united states of good solid growth, but it came at the expense of higher leverage. we have a bit of arashing up. will the economy allow us to grow at 2%, 2 1/2% in a

non-lynched environment? >> we have seen deleveraging. we have fallen from that high and it is above what it was 15, 20 years ago. my guess is it's going to continue to rise. you would like to see it rise at a slower pace and matched by the balance sheet. it can create a combination of risks that made this crisis so much worse than the situation. the country face in 2001. and it resulted in lower growth spread across the board and lower investment growth. the reception can be much more toxic. that's why we are trying to deal

with it at the corporate level. one thing, for example, is the tax code here in the united states. we have a tax rate on an integrated basis. it's minus 5%. that disparity is the largest of any country in the world on the tax policy. they move closer to equalizing those so at least we don't have the fax-fuelled pressure. it's another positive aspect. they are flushed with cash and why don't we see more domestic investment. >> it's the case that investment has not been the signing bright spot. if t has been fast than the eight quarters. it's hart part of what sped up

the growth. the model explains a lot of it. your investment does not depend on the capital. it's the demand you are facing and the demand depends on overall growth. the biggest factor is consumer spending. businesses will see more reason to invest and see more investment. >> we will turn to the audience for questions and the external environment. lots of focus over the last 48 hours. there is the issue of a third recession in this cycle. is it something you worry about on the west wing? >> any time they say there is a 40% chance of a recession in the major economic area on the you'ro zone, you have to pay

attention to that. that's an unacceptably high risk for a critical part of the world to face. there is tools. they can be part of that equation. is it are and are and bring it down and be creative about it. it's diskal policy. good news on fiscal policy. next year and the year after. the bad news is the countries are contracting. next year and the year after. they are beyond what the european commission worries about in terms of current account surpluses and imbalances. >> any of those countries have

names? >> i would observe that germany has the largest beings in the world. it has an economy that has had a string of weaker data. certainly would benefit enormously from fiscal investment in areas like infrastructure that will benefit germany and partners. >> i think they heard that from a variety of voices. >> a couple of questions. >> they call it the topic of education and i have seen a lot of innovation and things that seem to be starting to get figured out on a college readiness piece. about 75% of the population will not go to college. i'm wonder figure there innovative pieces that you have been thinking about as the broader population works towards

the help there. >> we have the higher fraction of that into college now, but that's not the answer for everyone. that's not the university solution. community college is a place where we put some of the first federal investments and a lot of those were designed to have partnerships of local businesses and local community colleges and nonprofits to train people that could more directly link thome jobs. the training system as a whole is critical. it will convey the right impression. we will spend $10 billion a year. business is spent at $500 billion a year. it's a tiny piece of the equation. it's a share of gdp and most of it or any other country. we can improve our federal training, but a lot of what we

need to do is figure out how to use the resources we have to help leverage catalyzed and convene more, for example, demand-driven training by the private sector and community colleges. >> you had a plummer or electrician at your house, those are good high paying jobs. >> the media on the date in the u.s. on the future of the u.s. i don't know if you have a policy take on that or in india and many other countries that are when wie listen to the debate in the u.s., other parts

of the world. anything you anything you would like to share. they play an important goal in the economy. what do you think? >> it's shockg that there is a large faction that would like to advocate and a very cost-effective way to promote american exports as well as help and it turned into quite a big debate and we were able to temporarily extend it. that's going to prevail on the issue. >> we will come back over here.

is there work to spend the money or to catalyze the infrastructure? >> we can't spent money on what authorizes us to spend that money. to sweet up the permitting process and a number of demonstrations and taking the lessons we learned from that and applying it more globally. we are trying to attract that and they had a conference with a lot of high level investors there to talk about the barriers. we set something up at the department of transportation and to try to create different types of model contracts and others to help with public-private

partnerships and to help both educate states and localities about many of the benefits of them, but also investors and facilitate some of that. we are trying to do what we can and we have to be realistic that the most efficient thing they can do is borrow at 2.throw% and invest and we need permission of congress to do that. the second best thing we can do is a lot is at the state and local level in terms of whether or not you can have these p 3s. >> it makes me think of last month. because the changes about the energy sector and the production. we see in canada, enormous reserves and having a challenge of getting it out. going west or east because it can't come south. why can't we have an integrated network or infrastructure in

north america. i know we have been saying that there is the capacity given unconventional oil and gas this this country. to have an energy-independent north america. >> we are getting a lot closer. we were importing 12 million barrels a day. people thought that would rise. it has fallen to 7 million barrels a day and we are producing more and partly that we are consuming less. we have free trade in energy with mexico and canada. we have quite a lot of energy integration. mexico's reforms and the opening up with the energy sector are i think an important reason why. they downgraded the growth rate of pretty much every major economy in the world. they have the lucky distinction

that they projected. they see more integration. you didn't mention any pipelines for certain things. we have to question what it does for carbon emissions. >> fistus gas and for usl and g. buying from the australians and where is the west wing with respect to energy exports? >> when it comes to gas and oil under different statutes. it is a case by case process and what it means for our economy and the national security you have seen us approve permit after permit after permit. it's equal to like 30% of the world's l and g to be exported from the united states. we expedited the process.

we have basically collapsed down to one. and as i said, it's a pardon part of that process. they are different now than they were a year ago. oil falls under a different statute. it's something that we have taken a look at and will continue to look at. >> more questions from the audience? i know you are not in the political part of the west wing, but if you look at the polling, despite a recovery, despite a falling rate, the president is not getting much credit. why isn't a better economy showing up with respect with the attitude views. >> and i think the typical

household hassa an income lower today than 15 years ago. the unemployment rate is lower than it was in 2009 and come down faster than anyone expects. the united states had more job growth from the rest of the rich world combined and all of that is terrific and at the end of the day, it's a severe challenge in terms of incomes. i understand the frustration and why we need more growth and better shared growth. and where one generation believes the next will have live cells. those numbers have flipped. the president calls you and said what can we do in a concrete fashion. the policy issues and is there

more we will do? >> if we raise the minimum wage, everyone who makes $8 an hour will make $10.10 an hour and will know who to change for it. the highest rates in the world. we have a narrow tax base and an international system that is deeply broken. they impose substantial distortio distortions. that's an area with a real opportunity to work together. what i do know is we have a stronger economy. people will be more satisfied. i think you need to do the types of things that people see and know about and help the economy that do the types of things that people don't see and know about and help the economy.

>> i will ask the last question. it's simple. what worries you most. what keeps you up at night? >> i'd say the potential growth rate for the united states and for the world. we talked about a little bit with robert and the united states. i tend to be on the more optimistic side of the spectrum, but i'm not certain. an awful lot follows as to whether we can grow at 2.8% or 1.8% a year. those compound to large differences in standards of living and large differences in the fiscal outlook and differences in the amount we can a record is to invest and innovate as a country. i look around the world and i think that's even more acute. if you look and compare them from four years ago in october 2010 to now for the advanced economies, they down groided medium term growth by a tenth.

for the emerging markets and developed economies, they downgraded by a point and a half. some of that is china which everyone talks about, but it's virtually every other country with again, of mexico. so i think what we can do as a world to increase innovation and increase total factor productivity growth, the types of reforms we need to fuel that innovation are the best way to deal with that. this isn't a crisis, this isn't tomorrow, this isn't an implosion, this is just sort of slow and steady are things going up or are they going more sideways? >> great, jason, thank you so much. ladies and gentlemen, please give him a round of applause [ applause ] president obama says internet providers should not be allowed to cut deals with online services with netflix, amazon or youtube to move their content faster. in a statement released by the white house, the president called for an explicit ban on

such deals. in response, texas senator ted cruz tweeted "net neutrality is obamacare for the internet. the internet should not operate at the speed of government." congresswoman an know eshoo, ranking member on the house subcommittee of commerce and technology tweeted "i strongly urge the fcc to adopt the president's approach." >> book tv goes on the road and this weekend we partnered with charter communications for a visit to madison, wisconsin. >> there is work for everyone. the field is large. it is a glorious service. this service for the country, the call comes to every citizen. it is an unending struggle to make and keep government representatives. >> bob la fall is probably the

most important political figure in wisconsin history and one of the most important in the history of the 20th century of the united states. he was a reforming governor. he defined what progressivism is. he was one of the first to use the term "progressive" to self-identify. he was a united states senator who was recognized by his peers in the 1950s as one of the five greatest senators in american history. he was an opponent of world war i. stood his ground advocating for free speech. above all, bob la follett was about the people. in the era after the civil war, america changed radically from a nation of small farmers and small producers and small manufacturers and by the late 1870s, 1880s, 1890s we had

concentrations of wealth, growing inequality and we had concern about the influence of money in government. so he spent the later part of the 1890s giving speeches all over wisconsin. if you wanted a speaker for your club or your group, bob la follett would give a speech. he went to county fairs. he went to every kind of event that you could imagine and built a reputation for himself. by 1900, he s ready to run for governor advocating on behalf of the people. and he had two issues. one, the direct primary. no more selecting candidates at convention. two, stop the interests. specifically the railroads. >> watch all of our events from madison saturday at noon on eastern on c-span 2's book tv and sunday afternoon on american history tv on c-span 3.

>> the u.s. supreme court started a new term last month and they began with a case on whether police officers misunderstanding of the law can justify the stop and search of a vehicle. this case will decide if the fourth amendment dealing with unreasonable search and seizure allows a reasonable mistake of law. this is about an hour. >> our first case this morning is "heine v. north carolina." mr. fisher? >> mr. chief justice, may it please the court. in a country dedicated to the rule of law, governmental officers should be presumed to know the law at least as well as the citizens are. that being so, when questions about individualized suspicion arise under the fourth amendment, they should be addressed against the backdrop of the correct interpretation of the law, not simply any plausible reading an officer might have. >> so suppose that this state, north carolina, did have a

good-faith exception to the exclusionary rule? what would you be arguing today? >> we would still be arguing if that were the case that not only the fourth amendment was violated but that the good faith exception didn't apply. but you would haven't to reach that question in this case. and i would concrete so you, justice kennedy, that would be a debatable argument. >> why would it be any more debatable than the argument you're making here? i more or less anticipated your answer. i think that has to be your answer. i think you have to tell us even if the good faith exclusionary rule applies, mistake of law just doesn't count. >> well, that's not what this jurisprudence holds, of course. the court has held that reasonableness of mistakes of law can be taken into account at the remedy stage and i think that would be -- >> but then that question is why isn't that a problem for you when you say there cannot be a reasonable mistake of law? we flow can be. >> well, there's a difference, justice kennedy, between rights

and remedies in the court's jurisprudence. when you the question about what is reasonable as to whether or not the fourth amendment was violated, both in its fourth amendment jurisprudence in criminal cases and qualified immunity cases you do that assessment against the correct interpretation of the law. >> we're talking about whether as a categorical matter, as a injuries prudential matter we can have this dichotomy known as a reasonable mistake of law. a difficult -- an interesting question. but it seems to me you have to make the same argument here or in the case where they have a good-faith exception as you're making here and that off problem with davis and kroell and if you have a problem with davis than that undermines your categorical argument. >> i don't think so, justice kennedy. i think the best exposition is the anderson against creighton case, the qualified immunity case where the court wrestled with this notion that how can something be reasonable in one sense and unreasonable in

another? the answer the court gave is that when we ask whether the fourth amendment was violated, we do not take mistakes of law into account. but the reasonableness of a mistake of law can go to the remedy question. this is the premise from which "leon," "kroell" and "davis" all arrive. >> mr. fisher, i have a preliminary question. even if you're right about mistakes 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. 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 and i think that's why the state and the attorney general haven't made any argument that the consent wipes away the fourth amendment in question here. >> suppose the officer had said all right, i'm giving you a warning, you're free to leave but by the way may i search your car? >> i think that's more or less what the officer did say here, justice alito? >> and you would say then even in that situation that that would be the fruit of the poisonous tree? >> yes. because the stop wouldn't have taken place. the court's cases, prus and all the rest, say a traffic stop is a seizure. so upon pulling mr. heine 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 understand you to say earlier you don't take reasonableness into account when it comes to a mistake of law? >> i'm sorry, mr. chief justice, what i think i said is that you don't take the reasonableness of mistake of law into account when you ask whether the fourth amendment was violated. you do sometimes -- >> sorry, go ahead. >> forgive me. you do sometimes when you ask about the remedy. >> but the fourth amendment itself protects only against unreasonable searches and seizures by its term. i don't understand -- it would seem to me there's a stronger argument for taking the reasonableness of the officer's actions into account when you're talking about a mistake of law because that's what the fourth amendment says as opposed to the remedies in qualified immunity. >> mr. chief justice, the court rejected that precise argument in "anderson," that textual argument that the word "reasonableness" means that the fourth amendment incorporates mistakes of law. and because of a deep common law rule which is that when we ask -- >> well, if i could just pause. i thought we said exactly that

in "herring," though, where we said that even though we're going to look at it in terms of remedy, that was not to say that the reasonableness didn't go to whether there was a substantive violation of the fourth amendment. >> my understanding of "herring" would be that would be a mistake of fact case. whether or not there was a warrant outstanding for mr. herring's arrest would have been a factual question, not a legal question. in anderson, kroell, and leon -- and leon, mr. chief justice, the court said the officer in that case acted exactly as a reasonable officer could have and should have acted. and time and again in the court's exclusionary rule cases they've said the officer acted reasonably because at the reasonableness stage you can take into account whether the officer reasonably misunderstood the law. but -- forgive me. >> i was going to say putting aside our discussion of herring, why does it make sense to say you don't take reasonableness into account when the fourth amendment only protects against unreasonable searches and seizures. >> i think for three reasons,

mr. chief justice. there's a practical reason, a theoretical reason and a juris prudential reason. the deep common law heritage in this country that we have always followed and the best exposition of that is in the court's cheat case that the criminal law is presumed to be definite and knowable. so whether it be 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 exactly predictable -- >> isn't predictable you're citing cheek far? didn't the court hold that ignorance of the law would be a defense? >> because of a special statutory exception 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 -- then there is no reasonable suspicion because we've presumed them know the law. >> suppose the officer stopped the driver and said "i've been going to night law school and we don't know about this one light two light things." there's an aimmediate court of appeal but i don't know what the law is, you better get this fixe fixed. >> and i think there's two questions. >> then he tses in the course of this conversation he sees the contraband. >> i think there's two 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 kroell and davis cases that you take into account things like police

manuals, court decisions. the court has embraced in its remedy jurisprudence but has said it's off limits to the fourth amendment. i think's an element of your question asking about what if all of the officer was worried about was the safety on the roadway. ? that would be a very different case. again, i'll turn the court to wren where the court fed is 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 kiss in. but the state hand made any argument in that respect 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 as a 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's addressed the question of remedy in this case because nobody needs to address it. >> well, we need to if we find as you urge us 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 it would have decide whether the remedy of executing that evidence has to be applied. >> well, respect w respect, justice scalia, i'm not sure the court needs to do that. i think the court can vacate and remand the judgment just as it does immunicipal rabble other times where 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 would be saying the same thing. nobody has brief or argued the good faith exception in this case. >> well, you have. you have. and you acknowledge that it applies to remedies. >> 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 jurisprudence which thus has has held that good faith relies when an officer relies on legislature or court. >> so the most you can get from us is a remantd? >> that's right. >> just like the north carolina -- just let the north carolina court decide whether the remedy of exclusion should asupply. >> that's right. for example, justice scalia, i'm not sure if it's different if i said there's a constitutional violation i may or may not be entitled to a remedy for under chapman because the air 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 send it back down to 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 what the north carolina applies, good faith or not. what we apply in terms of determining whether a federal violation, a 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 and i'm not quite sure you've answered it. >> the reason to remand is because the lower court hasn't addressed any question of recommend ski to in the first instance you should send it back to 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 exzblepgs that would be our position on remand. >> is 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 because they have known. >> it wouldn't be pew tile, justice ginsburg. i think analogy i gave earlier about chapman is more or less on point. the court has held if the constitution is violated that the defendant in a criminal case doesn't get a remedy unless hea cases you would decide the constitutional issue and send it back for remedy analysis if the lower krt hadn't addressed. >> 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 striken from the case but if, indeed, they're not going ask this 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 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 can not do that unless there has even -- 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. are they? >> no, i don't believe they would or should. but i -- just f the state adopted a rule saying we're going to have a more favorable jurisprudence of constitutional error and give automatic new trial, the court wouldn't be prohibited from decide ago constitutional issue and sending it back down to the state. the retroactivity sphere, "dan forth v. minnesota" the court has said that courts can simply deal with the federal question. >> there's no question that 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. your argument is they can adopt a state law rule for fourth amendment violations that is more protective of defendants than the 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. but what the decision in north carolina says is that violations of the state constitution cannot be overlooked on good faith doctrine. >> was this decision base tonight state constitution? >> no, it was based on the federal constitution so we would send it back down and we've preserved an argument that under state through that violation of the fourth amendment also violates the north carolina constitution. >> what you're asking is 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 into federal law. even though federal law arguably, you will concede, says that even if there is a fourth amendment violation, if there's 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 see how we can do that. >> well, i don't want to keep saying the same thing. i'll try and say it 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 and we'll send it back down. >> but it chooses to decide based on only half of the federal law or three quarters of the federal law north carolina's more or less set us up this way. >> there is a federalism -- >> which is a follow 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? >> don't review analyses, we review judgments.

you're urging this conviction has sob 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 at this point before i sit down and reserve my time for rebuttal 1 explain 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 argued this case the way you have, trying to convince us to draw a sharp distinction between right and remedy is because you believe that north carolina has the right under state law to devise its own version of the exclusionary rule. if that's not your argument i'm

puzzled. >> functionally that's where things work in north carolina, justice alito. i think the only thing i need to make more clear is 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 north carolina has said we con street article i section xx tobacco terminus with the fourth amendment. so that's not the way the court goes about its business. so in the state of north carolina is that fourth amendment questions run parallel

to state law questions and if there's a violation you suppress. >> mr. fisher, suppose this were a federal case and we had available to us had it all been briefed to 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 so the good faith exsense to the exclusionary rule operates 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 play out differently in north carolina. >> no, no, no. if it were a federal case. >> sorry, i missed that. if it were a federal case it would be functionedly same holding to the outcome of that case but i think -- >> please? >> but there would be important reasons nonetheless even hope the that would be a functionally identical holding for the parties in the case.

the very important reasons nonetheless to make sure you render that holding as to remedy jurisprudence. not as the fourth amendment itself. one reason is what i opened with and have tried to say a couple times that the government should be presumed to know the laws it would undercut the common law rule upon which the criminal law is built to say the golt doesn't have to be -- >> well, you say that, but some people say that the existence of a rule remedy gap undermines public confidence in the law. so why should we take that argument more seriously than the rule remedy gap problem? >> because that argument comes from academic literature and my argument comes from the court's jurisprudence where the court has argued you shouldn't suspend remedy and the court has rejected and said no as judge wilkin son wrote in the law review piece that i cited, there is an importantron announce the right even if you're not going to give a remedy. there are practical reasons for this as well.

the court has given leeway to officers only to the extent the officer are relying on a clear directive from a thirty party like a legislature or 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 "unsettled rule of law" that we not only find the fourth amendment violation, we suppress so even if i have to argument this case. >> it is a reasonable interpretation of state law? >> i would dispute if you were asking in the chevron sense that this statute was sufficiently ambiguous that it could have been 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 directive from thirty parties and officers relying on third parties. johnson that i was just citing to you says that -- >> well, 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 a -- 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 is legal and what is not, justice alito. someone to remind you the court has never taken into account ambiguity of the point of error in asking whether a governmental officer gets the law right. secondly, you have to define the concept of reasonable. so even if you look at the facts of this case and think well, this mistake was reasonable, the other side hasn't give an definition of what it would say would be a reasonable mistake of law. there's a reference to qualified immunity jurisprudence in the state's brief and the 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 1 you have to benign concept. and 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 is defined in other cases susceptible to debate, you vastly expand police officer discretion to conduct traffic stops. as the court has noted already, officers have enormous discretion by the nature of the traffic laws and in the wren decision. >> mr. fisher, let me try my problem just one last time before you -- 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 exclusion of the evidence. 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 it. that's the problem. >> well, 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 in into the right -- those would be my arguments, justice scalia. the only other case that comes to mine is the court's case several years ago where there was a taking questions brought to court and the court divided that federal law question into two pieces and when the lower court 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 when i'm asking for isn't terribly different. >> send it back down for that court to decide the other piece. this court will not decide the other piece. >> if the state makes that choice that it's going 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. >> when will we ever get an understanding, the right understanding of the law? meaning as i read the north carolina skorlt decision, it

still hasn't told me whether it's one 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 that you want to not 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 that our supreme court might not reach a different decision someday, but for now police officers would be bound by what the north carolina court of appeals decided.

so the law has been decided and 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 officer's reading of the law is reasonable. it basically means that any open question police officers will rule in favor of their right to search. >> it depends on whether the question is an open questioning 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 forthere was a definite decision by an appellate court it would be unreasonable for the officer to interpret in the 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? >> but that's a very broad definition of reasonable. i understand the idea that when 88 people out of 100 think you have to have two brake lights like everywhere else in the country that it's reasonable for the police officer to think that. but it sounds to me you're adopting the same standard we apply in qualified immunity which gives the officers quite broad scope. that's troubling. >> it's not the same as qualified immunity. qualified immunity looks also -- it protects the plainly incompetent. we're not saying that is the standard here. >> i think it doesn't protect -- >> i'm sorry, it doesn't protect. >> i think what the chief justice is asking you 1 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 officers interpretation. like this tkds look to other matters. there could be an officer who had an unreasonable interpretation on the statute and yet he may still have qualified immunity. for instance, he was told by a judge or by the attorney general 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 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 to. is n that case his ignorance of the law would not save him, would it? >> no, it would not. but the flip side of that is that an officer's belief that you needed all of your brake lights, and that is not actually law, does not mean that that person is guilty. the defendant here or driver actually could not held liable for the brake light violations. so 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 they 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 a criminal interdiction and admitted that this was a pretext. a lawful protection, he thought. so he wasn't there just to tell him if he had just stopped him 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 the states of fact, for instance. that's part of the whole -- how terry works and those types of brief stops. they turns out times that citizens have not committed any kind of offense 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 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 appeal, it would be reasonable then for the officer to decide which he thought was the better rule. if there are two different decisions from the court of appeal which is is not supposed to happen in our system. but if that did happen, it would be reasonable for the officer to rely on either one of those. >> mr. montgomery, i take that one of mr. fisher's arguments, maybe his primary argument, is

this just looks like a remedies question, it does not look like a rites 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 extend 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 remedies. reasonableness is important in the right stage and the remedy stage may be considered but also the culpability of the officer, whether he was deliberately disregarding the law, those types of things. this court has addressed mistakes of law both in the rights and the remedies stage so

it would be important to address in the the right stage here in this particular case and then there would be a source of things that would be necessary in the remedy stage. >> what about the discenter in the north korea 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. isn't that a thesis -- what 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 from the standard

of the fourth amendment and that is what this court has said is important at that stage 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 to answer to the -- all the questions i was asking of mr. fisher. and i guess the answer is you haven't argued that point, right? you did not assert in your brief and you haven't asserted it in 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 decision. you want to put all your eggs in the basket whether or not it's a violation of the fourth amendment. >> 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 direct that n that it is our state constitution that says 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 prudential sense to allow this north carolina supreme court to put to us what

is basically an abstract question. 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. this court has in cases like rodriguez dealt with mistake of law just in the rights stage rather than the remedies stage. and that's all that has been briefed in this instance. that's correct. one of the things that is different about this from kroell and zaifs that we're not talking about -- >> excuse me. that just doesn't wash. in other cases we just decide the right and don't have to decide the remedy but this is a case in which unless the recommend city exclusion there's no basis for us to set aside the judgment of the north carolina

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. but 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 kroell and davis is that this case does not -- 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. if there's a statute that gives an officer the opportunity to make a seizure on less than what is required by the prosecution, 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 this 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 to, 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 officer only needs to act reasonably and the fact that he gets the statute wrong does not mean that he acted necessarily unreasonably. >> the fact 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 stage rather than the rights stage. in the di filippo case this court decided that was situation in which a substantive statute was found unconstitutional and void for vagueness and yet this court found there was probable cause in that case for the officer to make an arrest based upon that statute. so that was one case in which this court looked at it as a mistake of law rather than at the remedy stage. >> but do you think if di 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 con sell which you willize it now as a rep dis question? >> i think the court would decide it the same way.

and this court in "arizona v. evans" said the cases even decided 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 "di filippo?" the law said exactly what he thought it said. >> that's correct. >> why do you classify this as a mistake of law question? we said it was presumptively valid and he acted according to the statute. we don't ask police officers to ignore the law. >> that is correct that it's different in case -- >> no, no, this is a mistake of law. he wasn't following the law, presumably, according to the appellate court. >> that's right. the di 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. so in di filippo this court said even though contact was wholly innocent, there still was probable cause, despite the mistake of law and that's all that we're saying in this case. >> isn't there another difference between di filippo and this case? the court in di filippo talks a lot about how there's a presumption of constitutionality 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. there's no presemgs that goes into effect and there's no way in which we could say the same thing about di filippo is that we don't want officers to question -- to inquire into this area. >> it is different but we do want officers to enforce the

law. we don't want them just sit back and not -- >> we want them to enforce the law fairly and as written and not to push every statute to its -- the furthest, furthest, furthest it could go without being found utterly unreasonable. >> that's correct, your honor. but we want them act reasonably and still enforce the law. not to turn a blind eye to what may be a violation. >> how does this 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 1 through -- actually through 5 has all of the relevant portions of the statute. subsection d involves rear lamps

and says that every motor vehicle shall have all originally equipped rear lamps or the equivalent in good working order. that's the relevant portion of subsection d subsection g, on page three of the appendix, says no persons shall sell or operate on the highways any motor vehicle manufactured after december 31, 1955 unless it had been 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 only one was required? >> that seems to be what it says. >> the confusion comes in -- [ laughter ] >> the confusion comes in, justice scalia, in the last sentence of subsection g on appendix page three 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 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 rear lamps, a stop lamp and all the other lamps. >> that's correct. all the other lamps we know -- >> so it has to be pleural if it's going apply to the stop lamp and all the other lamps, of course we would 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 had allowed

police officers to make stops when there are reasonable grounds to believe 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 that this court's cases recognize that there can be a reasonable mistake of law, an officer who makes a reasonable mistake of law may have a reasonable grounds to believe 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 rights stage than the remedies stage, 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 that 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 is correct. >> none of those cases involved a violation of the 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 case s? from what we've ultimately applied as a qualified immunity standard with respect to civil damages snowed don't they follow exactly same reasoning? >> i don't think so, your honor. those cases, the probable cause reasoning is followed in those cases is what the court has done at the merit stage of the fourth amendment analysis. so this court has routinely cited cases under those customs statutes as illuminating the meaning of the probable cause standard and is therefore illuminating -- >> so you disagree with justice storey when he looked at those cases and made the point i just made? you think he was wrong? >> there's no doubt in those

cases the question the court was ultimately answering is are those customs officers liable? but the way it was answering that question was by determining whether those officers had probable cause. and probable cause is the constitutional standard. that's why they -- >> can i ask you a question i'd like you to address for a money. assume for the sake of argument i agree with you that a reasonable mistake of law is an excuse but what is a reasonable mistake. that's what i would like you to address and in particular would you have objection to, it has to be, one, 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 your brief a careful scrutiny and serious difficulty in construing the law does it turn out that he's wrong.

what do you think about that? >> i think we agree with each of those descriptions of a reasonable -- >> all right, if you agree with those, then what about this case? after all, it does say "a stoplight." what's the difficulty of construing that to mean "a stoplight?" >> we think the north carolina supreme court court and court of appeals was right that they could interpret the statue to require -- >> only after a careful scrutiny and serious difficulty in construing the law does it turn out the officer was wrong. what's the difficulty? there's 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 pleural for those other provisions. >> agreed. it's not the pleural, it's the fact that all originally

equipped rear lamps need to be working which means if a car was originally equipped with multiple stop lamping as cars now are then when one of them is broken one of the originally equipped rear lamps is not broken. 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 hypothetical with the two court of appeals decisions? is that reasonable for the officer to say "i'm going to pick this one 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. but 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. we think the court looks to this question of is it a difficult question. >> i forgot one thing which may be obvious to me.

we're not talking about a difficulty in construing the fourth amendment itself. >> that's right. >> we're talking only about a difficulty in construe ago criminal statute where, in fact, the reason for the stop of seizure is based on a violation of criminal law. >> that's right. we think 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 affirmatively supports his view. whereas the qualified immunity standard seems to require essentially the opposite. it seems to require there's a precedent that foreclose what is the officer does in order to protect only those who are acting to protect everybody except for those who are clearly incompetent. >> one argument that is in your brief that i didn't follow is that the importance of holding the way you recommend is so that you get this question solved.

you 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 the traffic violation so we wouldn't need to -- the court wouldn't need to decide the traffic violation. 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. >> 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 issues a citation and we are -- our concern expressed in that portion of the brief is that if the court takes the position that whenever an officer is wrong about the law he's violated the fourth amendment it's going deter officers from making stops where there are arguments on both sides. >> do you agree that this

consent is the fruit of the poison tree if there is an illegal stop. >> we think that would be a difficult question. we don't necessarily agree with that. this court has said it's not a but-for test so even if the stop was a but-for clause, that 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 this question. >> 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 three are. >> sure, the second is an administratability reason. we they is the simplest standard. you ask officers to decide -- ask courts to decide whether an officer could reasonably think a person had committed a crime and you don't need to separate was

this a question of law or fact and treat one in the rights section and one in the remedies section. the third is that we don't think there's a normativetron treat mistakes of law and mistakes of fact of fact reasonably. he could just be reasonably confused as to what the facts are. if we're going to treats in takes of facts as part of the rights analysis, we could treat the reasonableness of law in the same way. >> thank you, counsel. mr. fisher, you have three minutes left. >> i'd like to make four points if i could. to start with the administerability question of what would reasonableness mean. i think your hypothetical of two differing court of appeals opinions in a state, i think it would mean it would violate the fourth amendment and half the states conduct the stops and the other half doesn't. that shows why in wren and many

other cases this court has rejected that kind of analysis at the right stage, and only for the remedy stage. >> in this case, didn't the dissenters in the north carolina supreme court say 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. do we have to go further than that? >> i think you do. because you have to get a little more teeth to it. what the solicitor general said, it would have to have foothold 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 the statute that all license plate frames are illegal. they rejected that under their code. but it's one of innumerable arguments that an officer might make and the reasonableness test -- >> no, one court one way,

another court another way, the officer loses. it has to be unusual. it has to be -- you heard what -- >> well, i think justice breyer, the problem with that is the core presumption that the officer needs to understand the law as it existed. as was later construed. chief justice, you talked about the ignorance canon. the state's response was, if somebody is reasonably mistaken about the law, we would convict him. the reason why is, because we would assume he knew the law. we would assume that somebody -- that the court of appeals split, this court sgided 5-4, the person is still convicted because we assume they know the law when they acted. and all we ask is the same to apply to police officers. the found iing case doesn't hel them. they reinforce our point. even when the court has cited those cases, they're all in the

conduct that the courts distinguish rights from remedies. if you want to look a the controlling rule would be the common law rule. and what we said is no disagreement from the other side, the common law rule dating back centuries is the ignorance of the law, even if it was perfectly reasonable, didn't justify the stop. if i could say one last thing, to justice scalia about the colloquy we were having before. with all due respect, i think there's nothing unusual about a party litigating a case up through the courts. may it rise in state or federal court. they can choose the arguments they choose to raise. 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 which arguments they wanted to pursue further in this case. just like a state, a party may ride the first amendment or second, we think that's all that's happened here. >> thank you, counsel. the case is submitted.

president obama's in china today. and announced that the u.s. and china would begin granting visas to each other's citizens. they will be valid for up to ten years. also pursuing a long-delayed trade pact with other countries that was excluding china. he'll meet wednesday with chinese president xi jinping. thursday and friday he will be in myanmar for more economic meetings. and saturday and suds fnday for g-8 summit. tonight on "the communicators," christopher yu at the university of pennsylvania law school and director at center for technology, innovation and competition. >> the people who oppose it should look at the i.t. guts.

that's the one thing that everyone sees. there's the type of service. different service classes for high bandwidth services, different forms of prioritization designed for the internet from the beginning. people say, that's an old artifact. when we designed the internet when they were running out of internet access, they had label fuel to do another form of prioritization. if you look at the engineering design that suggests that this would never was intended to be allowed, i think a little engineering knowledge goes a long ways. it's a design feature of the network from the beginning. if you talk to the way people are actually using it, they're using it today to deliver, for example, voice service. the true completely ip based voice phone, voiceover lte, all

use this. a lot of video and other things. >> tonight at 8:00 eastern, on "the communicators" on c-span2. congressman henry waxman is retiring at the end of this current term having served 20 terms in congress. he spoke at georgetown university law school about health care, looking back at the major legislation he helped pass, including pharmaceutical drugs and the tobacco industry. congressman waxman is currently the ranking democrat on health and environment from 1979 to 1994. this is about an hour. >> good afternoon. i'm a professor here, and the faculty director for the institute. i want to welcome you all and

just to say how deeply privileged we are at the o'neill institute and at georgetown law to have one of the great living americans with us. congressman henry waxman. if one thinks about the modern history of health, and health law as i have, all of my career, the congressman has been a leading force to really shape that law in the united states in so many different areas, from clean water, to tobacco, to the affordable care act. and he is a legend to us in the field. so congressman, thank you very much. >> thank you. >> we owe much to our relationship with the congressman to our wonderful faculty colleague, timothy

westmoreland. tim is a professor here at the law center. his teaching in his classes are legendary. particularly, he actually can explain to students what a budget looks like, and what goes into it. and he's also been a very effective, loyal staff person for congressman waxman over the years. and has just been great leader to all of us at the law center in problems of health, budget in congress per se. so thank you both for joining us. it's just a great honor. by tradition, what we will do is that tim will be asking the congressman a number of questions.

they'll have a conversation. once that's over, i will probably ask the first one or two questions. and then i'll go to the audience, allowing students to speak first, and then the general audience. so thank you all. you're in for a treat. >> thank you, larry. you're at the institute of health law. you've been doing health law since before there was a field of health law, when people really thought the only thing there was was medical malpractice liability litigation. how did you know it was going to be the field it was? how did you decide to start doing health? >> i've been in congress for 40 years. this was my last year in congress. i'm not running for reelection. but before that, i was also in the state legislature for six. and when i got elected to the state legislature, i made a decision that i wanted to specialize in a particular policy, so i could make the maximum difference in that

policy. and i thought about the different areas that were at the state legislative level. and i came to the conclusion that health was an area where government undoubtedly had to be involved in so many different ways. and that to my constituency, which was an elderly constituency then, medicare was already in effect after i got elected. medicaid was fairly new, because the state had to implement it. and we were going through a lot of growing pains in california with the medicare program. that health care was where i wanted to focus my attention. when i came to congress, i wanted to come on the committee that had the most jurisdiction over health policy. that turned out to be the energy and commerce committee. now, this was 1975, in the middle of the energy crisis. and everybody wanted to go on the committeeec