This is Bloomberg Law with June Brusso from Bloomberg Radio.
I'm going to make sure that every single justice up in that court knows we are here, we are watching, and we demand that they put our lives over the interests of the gun lobby.
Hundreds of protesters were outside the Supreme Court on Tuesday to support the federal ban on domestic abusers having guns, and inside, the justices seem to agree, suggesting during oral arguments that they'll preserve the ban and it didn't even seem like a hard issue. Both liberals and conservatives sounded persuaded that the ban is in line with the long standing practice of disarming dangerous people, and the defendant undoubtedly
fit in that category. Here's Chief Justice John Roberts questioning his attorney.
You don't have any doubt that your client's a dangerous person.
Do you.
I would want to know what dangerous person means.
That's not being someone who's shooting at people.
That's a good start.
My guest is Second Amendment expert Adam Winkler, a professor at UCLA Law School. Let's start with the big question. Did it seem like justices across the board were inclined to uphold this federal gun ban.
It did.
It felt very one sided in the Supreme Court, and it felt like almost all the justices, if not all, the justices, were inclined to uphold the federal ban in this case.
This is the first test of last year's ruling in Brewin that established a constitutional right to carry a handgun in public.
So in order to.
Understand it, I think we have to take a look at the historical analysis test established in Bruin that's caused so much confusion in the lower courts and led to them striking down gun control laws that have been on the books for decades.
So tell us about that test.
In the Bruin case, Justice Thomas's majority opinion said that for gun laws to be constitutionally permissible today, they must have historical analogs in the seventeen and eighteen hundreds, when the Second Amendment was adopted and the Fourteenth Amendment was adopted,
incorporating the Second Amendment to apply to the states. As a result, courts have really struggled over the last year or so trying to find gun laws back in those days that are sufficiently analogous to many common sense, mainstream gun laws that we have today. Truth be told, many of our gun laws are kind of twentieth century inventions. Bans on felons possessing firearms, bans on the mentally ill possessing firearms, and the issue into this case, ban on
domestic abusers possessing firearms. These are laws that don't have any obvious analog in the seventeen and eighteen hundreds, and so this law was struck down by the Fifth Circuit, just like courts around the country have been striking down gun laws for lack of a clear historical precedent.
So then how did the justices get around that lack of a clear historical precedent and all end up seemingly in favor of this bank.
First of all, I think it's important to note what Elizabeth Proligar, the Flicitor General, began her oral argument with by noting the statistics that show that domestic abusers with firearms are an incredibly deadly mix, and that forty eight states and the federal government have prohibited domestic abusers from possessing firearms, showing that what she intended to do was not just rely on the history and tradition, but on the common sense idea that some people are too dangerous
to have firearms. But the court seemed to be inclined to do is allow the government to frame their gun
laws at a higher level of generality. You don't have to show that there's a history and tradition of domestic abusers being prohibited from possessing firearms, and of course there isn't a long history and tradition of that, but maybe you could show that there's a history and tradition of prohibiting dangerous people from possessing firearms, and domestic abusers are just a modern day understanding of people who are just too dangerous to.
Have come Did the liberal justices seem like they wanted to use this case to revisit that history based test. Here's Justice Katanji Brown Jackson.
What's the point of going to the founding era? I mean, I thought it was doing some work, but if we're still applying modern sensibilities, I don't really understand the historical framing.
That did seem like she was pressing that it's very hard to defend this domestic violence abuser ban when people are subject to a restraining order in light of the history and tradition of which that the Bruin Court offered. Although Bruin said that you should look for analogous laws, I think that at the end of the day, the government is hard pressed to draw a very close analogy. Instead, the analogies are very general and didn't exactly apply.
On point, did a majority of the Conservative justices seem to want to limit any decision to the facts here? Justice Neil Gorsitch said at one point, do we need to get into any of that?
It did seem like several of the justices, including Justices Gorsch, Thomas, and Alito, we're looking for ways to narrow the consequence of ruling against Rahemi in this case and in favor of upholding the law, talking about whether there might be different as applied challenges that someone could bring, or whether there might be some common law defenses that one could bring to a charge that one was possessing a firearm illegally in violation of the domestic violence restraining order, and
several of the justices leased Justice Alito expressed some discomfort with the idea that these domestic violence restraining orders could be very long lasting and yet don't have very serious procedural requirements that correspond with broad notions of due process.
Perhaps, the Solicitor General said, the Court use the present case to give more guidance to the lower courts and to correct lower courts quote profound misreading of the bruined decision.
Do you think we'll get any major statements out of this ruling.
I think that's going to be one of the big questions. Is this a really narrow ruling that just cobbles together a majority, or is it an opinion that will provide more guidance to the lower courts. Justice Kagan specifically asked about that and about the necessity, and the Solicitor General had a very clear and precise answer that there were three errors being committed by the lower courts. They were only looking to regulation and not looking to other historical sources.
They were looking at regulation, but we're really looking for twins rather than for historical analogs. And also that the absence of regulation should not always be read against the government, especially when a problem like domestic violence was not really thought of as a problem back then.
So I admit that I find this historical analysis test with Second Amendment cases just bordering on ridiculous. Were there any clues as to whether the Conservatives remained behind the historical analysis that Thomas put in place.
Well, I think that the Solicitor General made a very strategic choice not to challenge the history and tradition test of Bruin, but instead seek to, if anything, recapture its fluidity, its ability to be useful to uphold laws, not just to strike down laws. And so she was not asking
the court to abandon the history and tradition test. Rather, she was saying that the lower courts have been misapplying that test, and that to capture the true essence of that test means that you should approach the issue the way she did, at a slightly higher level of generality, focusing on dangerousness rather than looking for historical precedence of domestic abusers being prohibited access to firearms.
If you had to guess, would you guess that it's going to be a limited opinion or a broader opinion.
If you were to guess, I would say this is likely to be a nine to nothing, maybe eight to one or seven to two opinion. And I think because of that, the larger the majority, the less likely it is to be very far reaching. That it may be one of these cases that gets assigned to Justice gorsicch to just do as little damage as possible to the bruined test. But I do think that it's no matter how big the majority is to uphold the federal law here.
If indeed the court does uphold the federal law here, it will be very good news for gun safety reform advocates. They've been struggling to defend gun laws in courts, bands on guns without serial numbers, bands on assault weapons. Even last week a court struck down the restriction on felons
possessing firearms. So if the court does move to this higher level of generality it says that government can prohibit people who are dangerous from having firearms, it would provide a basis for defending a lot of core gun laws that we really rely on in modern twenty first century.
America and adam.
Last week, so Supreme Court agreed to decide the fate of the federal criminal ban on bump stocks, the attachments that let a semi automatic rifle fire much like a machine gun.
What do you make of that? Do you make anything of it?
No?
I don't make much of it. I think that is really an administrative law case. And it's about whether the administrative agency went too far in interpreting its powers under the Gun Control Act and other federal statutes that regulate firearms. And so I think that although they both deal with firearms regulation, both these cases, they're very different ones. A Second Amendment case that's going to be decided on Second Amendment grounds and how huge impact on how other Second
Amendment cases are handled. Whatever the court does on the bump stocks will be much more important for administrative law and the scope of administrative agency authority under the Constitution.
A lot of administrative law cases this term. Thanks so much, Adam Best, Professor Adam Winkler of UCLI Law School.
A note.
Michael Bloomberg, the founder majority owner of Bloomberg LP, the parent of Bloomberg Radio, is a donor to groups that support gun control, including Every Town for Gun Safety. Coming up next, the battle over abortion rights. This is Bloomberg Ohio.
We did it.
We did it.
It was a huge win for abortion rights in Ohio, a Republican state where voters approved a ballot measure to enshrine the right to an abortion in the state constitution that gives abortion rights a seven out of seven winning streak in state ballot initiative fights since the Supreme Court overturned Roe v. Wade last year, and while abortion rights may not have been on the ballot in other states, it was the driving issue in races in Kentucky and Virginia,
where it trounced the opposition, beating back an attempt to reframe the issue by Republicans. Thank you. Kentucky Democratic Governor Andy Basher resoundingly won reelection in the red state of Kentucky by putting abortion rights front and center in his campaign against the Trump backed Republican Attorney general who supported the states near total ban on abortion. Joining me is an expert in reproductive rights, Mary Ziegler, a professor at
UC Davis Law School. Mary in Ohio, fifty six percent voted for the constitutional right to abortion, despite a host of obstacles put in the way by Republicans, including purging the voter rolls and changing language in the ballot measure to call a fetus and unborn child.
There have been a lot of obstacles. Republicans began by trying to lift the threshold for passage of a ballot initiative, and that proposal was defeated by Ohio voters in August. There's been information published on official government websites in Ohio giving a misleading account of what issue on the ballot initiative would have meant. There's been the language anti worshion
language used to describe what voters were choosing. And yet, you know, despite all of that, pulling on the valid initiative actually been pretty remarkably consistent for some time now, So voters had made up their minds and all of these various strategies by Republicans didn't work.
Yeah, and also making it a no vote in August but a yes vote in November. It seems like the Republicans were just trying to sow confusion rather than waning on the issue.
Yeah, I mean, I think that's one of the things that's striking. There hasn't really been an effort in Ohio to convince voters that abortion rights were a bad idea on the merits. Instead, there have been efforts to stop voters either from understanding the issue or deciding it. And that obviously tells you Ohio Republicans were in trouble. Right, If you yourself conceived that your position is that unpopular,
you're not starting from a position of strength. I think, by the same token, if you've lost seven of seven valid initiative races in the space of a year, the problem is not you know, just packaging or funding that the problem is substance, and I think that's becoming increasingly clear.
You mentioned the seven to zero winning street.
What have the abortion rights advocates been doing to be so effective?
I mean, I think, first of all, they have the advantage of what Republicans are doing in a lot of states. Right So Republicans in Virginia, for example, tried to say, oh, hey, you know, the Democrats are extreme because they don't want there to be any restrictions on abortion. And it's been easy for Democrats to carry that attack by pointing to the bands that are actually on the books and large spots of the country that are not, you know, moderate
compromises at all. I think the other thing that abortion rights supporters have done relatively well is to realize that ballot initiatives are very much the politics of the local. So a message that will work in Ohio will not necessarily work in California or Kansas. That you have to tailor what you're saying how you write your valid initiative, what arguments you make for it to the audience in that state. And I think that's been pretty successfully done too so far.
So in Virginia, along with the fear mongering, it seemed like abortion opponents were trying out some new tactics, sort of rebranding. Republicans, like the Governor Glenn Youngkin didn't talk about abortion bans, but rather limits on abortion.
I really feel that this is a moment for us to come together around reasonable limits.
Actually it seemed to backfire. Republicans lost control of both chambers of the state legislature.
Governor Youngkin was on the record as saying that he was piloting what he saw as a potential way forward for Republicans on abortion in every state, and that was to go on the offense and essentially accuse Democrats of being the real extremists on abortion and using, like you said, a limit, as Youngkin would have framed it, to rally
Republicans around. And that obviously didn't work, And if anything, it seemed that the abortion issue helped Democrats, I think, achieve a surprisingly good result in Virginia and taking control of both houses of the Virginia legislature. And I think, you know, the reason it didn't work is because Youngin
was using an old playbook before Roe was gone. Republicans would hold up, you know, regulations that were popular in isolation, like a fifteen week ban or a ban on so called partial birth abortion, and say, you know, aren't you for this voters and a lot of voters would say, sure, you know, that sounds reasonable. But now when Democrats say that isn't really where Glenn Youngkin wants to stop. That's as much as he thinks he can get today. But tomorrow he's going to come back and ask for a
six week ban or a ban at fertilization. That argument has a lot more credibility with voters because, of course, you know, anti abortion activists are admitting as much, anti abortion politicians are admitting as much. There's many state bans that already go that far. So when young Kin claims to be the voice of moderation and reason, it doesn't have the same force it would have before Dobbs. So I think that's one of the reasons that strategy didn't actually play out as Youngkin had planned.
Kentucky Governor Andy Basheer seemed to pull out all the stops against his Republican opponent, Daniel Cameron. For example, he ran a very stark attack ad that featured a young woman who'd been raped by her stepfather when she was twelve.
Here's part of that ad.
This is to you, Daniel Cameron, to tell a twelve year old girl she must have the baby of her stepfather who raped her is unthinkable. I'm speaking out because women and girls need to have options. Daniel Cameron would give us none.
Mary, what's your take on Basher's campaign.
Well, I think what you're seeing in the fight between Cameron and Bashir is sort of the mirror image of what happens when you try to do the opposite of what Glenn Youngkin did. So, at least at the beginning of his campaign, Daniel Cameron said, I'm not going to run away from my position on abortion. I'm going to make it part of my campaign. I'm going to emphasize that I've been in court, I've been the one fighting for Kentucky's abortion band like I'm mister anti abortion right.
And I was happy to have him do that because then Basher could say, you know, I am the voice of reason right and not even really have to get into questions about abortion that would be tricky in Kentucky. He could focus on things like victims of sexual assault and accuse Cameron of being heartless toward those patients and leave any of the trickier questions in a red state
like Kentucky off the table. So I think the lesson is that whether you're trying to strike a kind of faux moderate tone like Youngkin, or you're trying to, you know, run to energize the base, which I think is what Cameron was doing, that there are perils either way.
Constitutional amendments to protect abortion access are already on the ballot in twenty twenty four in Maryland and New York. In what other states do you see momentum to put abortion rights on the ballot in twenty twenty four?
Probably the most consequential is Florida. New York, and Maryland are not in any real jeopardy of changing their abortion policy significantly absent the constitutional amendment. Florida has a very conservative state Supreme Court that is likely to overturn a nineteen eighty nine precedent recognizing state of wors rights, So absent intervention by voters, you're likely to see Florida's six weekman go into effect in the not too distant future.
Florida is more complicated. Florida has a sixty percent threshold for passing ballid initiatives. And second, there's already a challenge before the Florida Supreme Court, which as I mentioned, is very conservative, by the Attorney General, Ashley Moody that's attempting to get that issue off the ballot by essentially arguing
it's confusing to voters. So this is another kind of parallel to what we saw in Ohio, where Republicans are trying to keep voters from weighing in, but this time they're relying on a very conservative state Supreme Court, which may be a more successful strategy.
Well, the Supreme Court's Dobbs decision left us with this state by state fight over abortion rights. Thanks so much, Mary Best, Professor Mary Ziegler of u C. Davis Law School coming up next. Donald Trump shouts at the judge in a wild day on the witness stand. I'm June Grosso and you're listening to Bloomberg.
It's a case that be dismissed. Immediately the fraud was on the air from the court the court.
Was the fraud sturing this case.
They made references to assets that were very valued well, and they.
Said they had no idea, they had no idea what the numbers were.
Yes, you heard that correctly. Donald Trump said it was the judge who committed fraud. It was a wild day in the courtroom as the former president took the witness stand on Monday in the New York Attorney General's two hundred and fifty million dollars civil fraud trial over asset valuations at the Trump organization. Less than an hour into Trump's testimony, Judge Arthur and Goren, who will decide the case, threaten to remove him from the stand for giving law
rambling answers to yes or no questions. New York agey Letitia James said she wasn't surprised.
He rambled, he hurled insults, but we expected that. At the end of the day, the documentary evidence demonstrated that, in fact, he falsely inflated his assets to basically enrich himself and his family. He continued to persistently engage in fraud.
The numbers don't lie.
Joining me is Bloomberg Legal reporter Patricia Hurtado, who was in the courtroom. So, pat what was it like in the courtroom, because reading about the testimony, it seemed so contentious and just off the rails at some point.
Basically, you know, those of us who are trial reporters are used to the controlled environment where the lawyer asked questions and the witnesses under oath and they're supposed to answer truthfully to the best of their ability. Trump used it as an opportunity, as a soapbox, to take the stand and give the answer and make the statement and give the spin that he wanted to give and how he felt about this lawsuit. So he called it a which hunt. He would give ad hoc answers that were
not to the exact question. He would just go off on a diatribe or a long long comment that the judge said, are we having to listen to an essay? You know? I mean, at some point the judge was trying to rein him in because the trial was veering off the rails. He was talking about, you know, motives and applying all kinds of nefarious machinations behind the seat for wives. The lawsuit got brought, he called it fraud. He said, the judge sitting right next to him was
biased and said the case was crazy. And then the attorney for the state said done, and then Trump said done. But then he continued on and used every other question as you know, a forum to air his grievances about the feelings about the lawsuit, how great his company was, how he has a beautiful company with beautiful numbers and these are amazing, and he's so wealthy he could do whatever he wanted.
Well, the judge at one point said, you can attack me, but just answer the question. Did he lose his temper?
Well, the judge several times stopped and said, can you please control your client? And he turned to Kaist Christopher Kais, who is a lawyer for Trump, and he asked him, could you please control your client. And he was basically suggesting that he would dismiss Trump from the witness stand and he is allowed in the civil lawsuit to draw.
It was called an adverse inference. You know, basically, all bets are off, and I'm going to vote against mister Trump because he didn't think he was being honest.
So did Kays at one point argue that Trump had a right to speak as a presidential candidate on the witness stand yes.
He called him the former and soon to be chief executive of the United States who understands the rules, and the judge says, but he doesn't abide by them. And Kys was basically arguing he has a right to do whatever he wants because he's running for president and his pre speech rights as a presidential candidate were being impaired.
So what did he say about the financial statements? Did he make any admissions?
He did acknowledge that he had signed. There were many times where they showed him guarantees they gave banks like Deutsche Bank for loans or loan guarantees for the Durrell Golf Club in Florida as well as for Trump Tower in Chicago, that he would guarantee that he had a certain amount of net worth. So basically he guaranteed it. So he was having to admit on the stand that he had indeed signed and endorsed and affirmed the accuracy
of the financial documents. They're called statements of financial conditions that Trump org had submitted attesting to the value of their properties and how much money they had on hand. For example, attesting that he had twenty billion dollars in net worth in the end, he could not distance himself from something that he had affirmed and signed and sworn
was accurate. He attested that Joetscha Bank, for example, he said, was not defraudst They got great loans and there were worth a lot of money, and the bank was not a victim. And so for the lawsuit that the attorney generalist brought was basically nonsense and quote unquote crazy. But you know, Deutsche Bank has said have they known the true value, They may have not agreed to certain terms that they let Trump have. So this is now going
to be up to the judge. And at one point the judge interrupted Trump and asked the state lawyer, are you okay with this because it seems like he's going off again, And the state lawyer, Kevin Wallace, said, he thinks it's great. It sounds like what the state is happy about is. Trump did not distance himself. He acknowledged those were his signatures. He acknowledged he did sign those
documents which eventually did go to the banks. He said it was up to the banks to do their own due diligence, and that there's this clause at the very bottom that basically plausible deniability. You know, it's like an escape clause that Trump claimed the onus was on the bank to do their own due diligence and not rely on the accuracy of the numbers the Trump board gave them. So you know, he's saying it's the fall to the banks and the insurers for not doing better due diligence.
But the documents are what they say, so I can see why the Attorney General may feel that they've actually gotten a lot out of Trumps, just what they needed.
And also, is he claiming that Mara a Lago is worth like a billion dollars?
Yes, he said it was worth a billion. And this is a strange answer that's been given by the Trump sons, Don Junior as well as Eric, that mar A Lago supposedly had a National Register of Historic Places preventing it from being developed as anything but this historic property it's when it was built by Merriweather Posts. You know, it's this beautiful nineteen twenty mansion and it's on the water, and Trump bought it and then claims that he could develop it. And he did this also for a Scottish
golf club that he wanted to develop. So he claims these properties he could do whatever he wanted, so if it was okay for them to overvalue properties like Mara a Lago. It's a club, but it could also be a residence, but it cannot be both. But Trump and his sons have said it's a club and a home, so he can do whatever he wants, and sometime later it could be changed, totally ignoring the fact that the National Register of much of our places says you can't change the construction of the building.
Far, far, far more restrained was the testimony of Ivanka Trump on Wednesday. She'd been an executive vice president at the Trump Organization. My main question is did Ivanka throw her father under the bus in any way?
Now, she was a very measured witness. She did not throw her father under the bus, even in the tiniest way. She was a very measured, controlled witness who did not have a very strong memory. And her tact to me seemed to be that she would answer questions posed to her by the New York Attorney General saying, do you remember that you find this document or do you remember
that you were involved in this transaction? And her answer was a repetitive I don't remember it happened, but I remember you showed it to me last year when you interviewed me. So the totality of her memory was limited to I only saw this once before when you showed it to me, but I have absolutely no memory of the actual transaction.
She was a point person in establishing a lending relationship with Deutsche Bank Private Wealth Management arm.
She was testifying about how did it come about this relationship with Deutsche Bank, and she testifies that her husband, her father, and the Trump Org had a prior relationship with Deutsche Bank in the real estate section, but her husband, Jared Kushner, introduced her to the private wealth management group in Deutsche Bank, which gave her what the Attorney general claims are more favorable terms based on financial documents and
statements of financial condition that were submitted that were fraudulent. So the New York Attorney General alleges that with the Trump Or gave Deutsche Bank to get these more favorable terms were fraudulent because they were inflated values and inflated statements.
So she was the point person they renegotiated. But yet she said she wasn't involved and had no knowledge of his personal financial statements.
It was more like she said she was not involved. She never saw them, per say. She assumed they were accurate, but she distanced herself from the whole scenario.
How did these.
Documents get created? It was not up to her with her father's business, with his people.
So the defense case starts on Monday with more test stimony from Donald Trump Junior. Thanks Pat, that's Bloomberg legal reporter Patricia Hurtado coming up. A celebrity choreographer wins against Fortnite. I'm Jim Grosso and you're listening to Bloomberg. Kyle Hanagami's choreography has been used by celebrities like Justin Bieber, Britney Spears, and BTS. He says it's also been used by Fortnite,
but without his permission. Hanagami has a federal copyright registration covering a full five minute dance routine from his video to Charlie Booth's song how Long, and he's claiming that Epic Games Fortnite infringed on that copyright by using his choreography as an emote in the video game that's a viable dance for a player's avatar. Other choreographers have not fared well with suits against Fortnite, But the Ninth Circuit Court of Appeals has put a new spin on the moves.
Joining me is intellectual property attorney Ryan Meyer of Dorsey and Whitney. So Ryan, As the Ninth Circuit said, copyright protections for choreography remain a largely undefined area of law. But can you describe what might make a dance copyrightable?
There aren't any bright line rules. There's a series of non determinative elements. Whether there is rhythmic movement in a defined space, the compositional arrangement, musical architectual accompaniment, dramatic content, presentation before an audience, and execution by skilled performers. The length doesn't necessarily matter, although the longer and more complex, the more likely it is to be protectable.
So Hanagami was able to get a copyright for his choreography. Here tell us about the dance itself.
The dance contains about four hundred and eighty counts of chography, with ninety six repeated counts, But what was actually allegedly misappropriated are just four counts of the choreographer's work, which the District Court described as a two second combination of eight bodily movements set to four beats of music. Now Fortnite.
In that game, you have an avatar, and one of the ways that they make money is in a marketplace they sell what are called emotes, which are dance movements or other kinds of movements that you can buy and have your avatar perform them. And so here the emote is called it's complicated, and it's this small portion of Kyle Hanagami's copyrighted five minute work.
He sued and tell us what happened at the district court level.
Well, the district court level, he didn't make it very far. He filed his complaint and in response, Epic Games filed what is called a motion to dismissed, claiming that the choreographer had not sufficiently alleged that there was substantial similarity between what was copied, and the district court agreed and found that when the dance that was copied is divided up into a series of poses, those poses are not
copyright protectable. Moreover, the part that was actually copied, it was just a short, relatively simple part of the overall work, which is not protectable by copyright.
So the district court judge dismissed Hanagami's complaint, and he appealed to the Ninth Circuit. How did the Ninth Circuit rule?
So, the Ninth Circuit decided that the District court judge had essentially applied the long standard for determining substantial similarity a copyrighted work like choreography, when parsed into individual movements, each individual movement might not be protectable, which is essentially what the District Cork judge found and stopped there. But the combination of them, the selection and the arrangement to
other elements, the pathways between each movement. When all that is combined, the Ninth Circuit found that it could be a copyrightable work. And the Ninth Circuit also said it was an air for the court to find that this particular sequence was too simple and short to be copyright protectable, because, as the court pointed out, even a very short sequence
can still be relatively complex. The court actually compared it to dividing a choreographic work into just its individual poses would be like dividing a musical work just into its individual notes.
And so the case will now go back to the District Court for further proceedings. As they say, Thanks Ryan that's Ryan Meyer of Dorsey and Whitney. This is Bloomberg Law on Bloomberg Radio. I'm June Grosso.
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