[00:00:04] Speaker 04:
Morning, Your Honors.

[00:00:05] Speaker 04:
May it please the court, Brett Shoemate, on behalf of the United States.

[00:00:08] Speaker 04:
If I may, I'd like to reserve five minutes for rebuttal today.

[00:00:11] Speaker 02:
All right.

[00:00:11] Speaker 02:
I'll try to help you out, but please keep your eye on the clock as well.

[00:00:14] Speaker 04:
Thank you.

[00:00:15] Speaker 04:
Your Honors, the California law at issue here directly regulates the federal government by expressly requiring federal agents to identify themselves when performing their law enforcement duties subject to criminal penalties.

[00:00:29] Speaker 04:
The question presented in this case is who decides how federal officers perform their duties.

[00:00:34] Speaker 04:
And for centuries, the answer has been clear.

[00:00:36] Speaker 04:
The federal government decides how federal officers perform federal duties.

[00:00:41] Speaker 04:
California's attempt to directly regulate the federal government's enforcement activities violates the Supremacy Clause, because this Court and the Supreme Court have been crystal clear that the states have no power to directly regulate the federal government's activities, regardless of the degree of the burden that the state law might impose on the federal government.

[00:01:00] Speaker 02:
Council, one of the arguments you raised in your brief, and I want to make sure that I understand that argument, is that because this is a direct regulation on federal employees, we never consider or look to the extent of the burden that's imposed on the federal government, but isn't assessing whether the impact is merely incidental,

[00:01:21] Speaker 02:
or whether it's burdensome really goes to the heart of figuring out whether this is direct control of federal operations versus just an incidental burden.

[00:01:31] Speaker 02:
Isn't that just a methodology for answering that question?

[00:01:35] Speaker 04:
No, Your Honor, I think that you recognize this point in the GEO Group opinion where the state is directly regulating the federal government.

[00:01:41] Speaker 04:
The state cannot do that.

[00:01:43] Speaker 04:
You don't assess the burden.

[00:01:44] Speaker 04:
Where the state is regulating contractors or those who do business with the government, that's when the state does have greater authority and you assess the burden and you weigh the competing sovereign interests.

[00:01:54] Speaker 04:
But the Supreme Court and this court have been very clear when a state is directly regulating or discriminating against the federal government, you don't weigh the burden.

[00:02:02] Speaker 05:
Some direct regulation is

[00:02:05] Speaker 05:
authorized in the sense that you have federal agents who are out driving vehicles and, you know, the Supreme Court said that the state law rule about turning the corner, they are bound by that.

[00:02:16] Speaker 05:
So how do you draw the line between the kinds of regulations, even of federal officers carrying out federal activities that are permissible and those that are not?

[00:02:25] Speaker 05:
How do you draw that line?

[00:02:26] Speaker 04:
I think Johnson draws the line, and that was a generally applicable state licensing law.

[00:02:31] Speaker 04:
And the court held that that licensing law could not be applied to the postal worker in that case because it interfered with the performance of his duties.

[00:02:39] Speaker 04:
And the court recognized and dictated, yeah, there might be some innocuous state laws that apply to everyone that don't interfere with the carrying out of any federal duties like turning square corn.

[00:02:50] Speaker 05:
Is it interference?

[00:02:51] Speaker 05:
Is it burden?

[00:02:53] Speaker 05:
Now you're sounding like the district court's test.

[00:02:55] Speaker 04:
Well, no, I think it's simply recognizing that there may be certain generally applicable state laws that don't have any impact on federal operations whatsoever that are totally innocuous, like a speed limit, for example.

[00:03:09] Speaker 02:
Right, and I think that goes to the- Well, counsel, that was- I'm sorry, Judge Bennett, go ahead.

[00:03:14] Speaker 00:
I mean, that was exactly what my hypothetical

[00:03:16] Speaker 00:
was going to be a speed limit that is applicable to everyone.

[00:03:23] Speaker 00:
But I don't see how it can be said that that has zero impact on federal operations.

[00:03:32] Speaker 00:
I mean, it obviously has some impact.

[00:03:34] Speaker 00:
And that gets me back to Judge Collins's question is,

[00:03:41] Speaker 00:
Maybe I understand your argument that section 10 here doesn't fall remotely in that category, but how do we in framing the appropriate test, how do we sort the speeding regulation, which by its terms applies to the car being driven by the FBI agent, just the same as it applies to you or me.

[00:04:07] Speaker 00:
or the CHIPS officer from this statute, what tests do we apply, which would not impact the speeding regulation, but would deal with Supreme Court cases that both say

[00:04:24] Speaker 00:
You can't directly regulate the federal government, but some laws, like the speeding law, aren't void.

[00:04:33] Speaker 00:
So what is the language the United States says we should use to sort the speeding example from Section 10?

[00:04:41] Speaker 04:
So the speeding example is an example of a truly generally applicable law that applies to everyone.

[00:04:47] Speaker 04:
That's, I think, a different type of case and a harder case for us than a law that specifically and expressly targets the federal government like the law here.

[00:04:55] Speaker 04:
Even Johnson, a state licensing law, was a generally applicable law, and the court recognized there might be hard cases.

[00:05:01] Speaker 04:
But this is not a hard case because this is a case where the state has expressly

[00:05:05] Speaker 04:
identified an activity that is inherently governmental and specifically targeted the federal government and expressly swept in the federal government.

[00:05:13] Speaker 04:
So, certainly they're going to be... Right.

[00:05:15] Speaker 02:
And I think this discussion goes to the heart of my question as well.

[00:05:19] Speaker 02:
So, I think we're all dancing around the same area because sometimes it's easy to figure out whether it's direct regulation or not.

[00:05:28] Speaker 02:
And sometimes it's not so easy to figure that out, maybe easier in your mind than maybe it is in mine.

[00:05:34] Speaker 02:
And that's why we have different ways of articulating where the line really should be drawn.

[00:05:40] Speaker 02:
This is a regular statute that applies to all law enforcement officers requiring not only state officers, but federal officers to do what federal officers and state officers have always done, which is to wear a badge with some identifying information.

[00:05:59] Speaker 02:
In answering the question of where the line is drawn, don't we still need to look at whether there's an incidental burden or whether this really, in fact, goes to the core of federal operations?

[00:06:11] Speaker 04:
No, I don't think you need to assess the burden or weigh the burdens when we're talking about direct regulation and discrimination against the federal government.

[00:06:18] Speaker 04:
And I disagree that this is a generally applicable law, like a speed limit, like a licensing regime that applies to everyone in the state.

[00:06:25] Speaker 04:
This only applies to an inherently governmental function, law enforcement,

[00:06:29] Speaker 04:
And the law by itself expressly sweeps in federal law enforcement officers.

[00:06:34] Speaker 04:
So this is an easy case.

[00:06:36] Speaker 04:
There may be harder cases involving generally applicable laws.

[00:06:38] Speaker 04:
And in those situations, I think even in the speed limit example, Judge Bennett, if the FBI were racing down the highway to arrest an offender, I don't think the state could enforce their speed limit laws against the FBI or a federal agent who's actively involved in carrying out federal responsibilities in that situation.

[00:06:56] Speaker 05:
But that would be a case-specific judgment under Nagel.

[00:06:59] Speaker 05:
That wouldn't be sort of a facial challenge of the sort you're bringing here, right?

[00:07:02] Speaker 05:
Right, right.

[00:07:03] Speaker 04:
This is an easier case because the statute on its face directly regulates the federal government.

[00:07:09] Speaker 04:
Maybe harder cases involving generally applicable laws, like murder laws,

[00:07:13] Speaker 04:
or like speed limits where a federal officer may raise a supremacy clause defense to a prosecution.

[00:07:19] Speaker 04:
But here, where the statute is directly on its face regulating the federal government, it's like Johnson, it's like city of Arcata.

[00:07:27] Speaker 04:
In those cases, you don't assess the burden on the federal government.

[00:07:30] Speaker 04:
So in Johnson, for example, the court didn't

[00:07:32] Speaker 04:
assess, well, how burdensome would it be for the state or for the post office to get the licenses?

[00:07:37] Speaker 04:
In the city of Arcata, the court didn't assess, well, how burdensome is this local ban on military recruiting actually going to be on the Pentagon?

[00:07:45] Speaker 04:
Those weren't factors in the analysis at all.

[00:07:49] Speaker 04:
It's a strict prohibition when we're talking about a state directly regulating the federal government or discriminating against the federal government.

[00:07:57] Speaker 02:
Getting past that issue for a moment, with regard to the statute itself requiring officers to visibly identify their agency as well as a batch number or a name, is it true that having a batch number alone will not permit, let's say, a would-be doxer to find out the identity of the officer, assuming that the officer's also masked?

[00:08:21] Speaker 02:
Is that publicly available anywhere?

[00:08:24] Speaker 04:
I don't know the answer to your specific question, but I think the law requires both identification of the agency and a badge number.

[00:08:31] Speaker 04:
So that essentially prohibits plainclothes policing.

[00:08:34] Speaker 04:
Like an officer would have to identify himself or herself as an ICE officer.

[00:08:39] Speaker 02:
Assuming that one of the many broad exceptions don't apply.

[00:08:42] Speaker 04:
Right.

[00:08:42] Speaker 04:
But certainly the state intends for the law to apply.

[00:08:44] Speaker 04:
Otherwise they would have passed a meaningless law.

[00:08:47] Speaker 04:
But the exceptions, I think, just put our officers at risk.

[00:08:51] Speaker 04:
If they guess wrong,

[00:08:52] Speaker 04:
they're going to be brought up on criminal charges by the state.

[00:08:54] Speaker 04:
That is an impermissible burden to put on our officers.

[00:08:58] Speaker 04:
But even if there's not a risk of doxing because the agent, people can't identify the officer's name, they can still know that an officer

[00:09:08] Speaker 04:
is engaged in some type of surveillance, it may be an impact on the operations, even if there's no risk of doxing to the officer.

[00:09:16] Speaker 04:
But I don't think we need to get into a policy debate about what is the best type of policing in the state of California, because the state of California has no role to play in regulating how the federal government engages in federal law enforcement operations within the state.

[00:09:30] Speaker 04:
That's something for the federal government to decide.

[00:09:34] Speaker 04:
When we're talking about direct regulation, there may be good policy reasons for the state

[00:09:38] Speaker 04:
an act of regulation that prohibits certain types of law enforcement activities.

[00:09:42] Speaker 04:
But where do we go next?

[00:09:44] Speaker 04:
If you uphold this law, the next law might be California is going to say, well, we don't like the federal government carrying certain types of weapons, or we're going to require the federal government to wear certain colors on their uniforms so they can be even more easily identified.

[00:09:56] Speaker 04:
Those are just impermissible regulations by the state because they directly regulate.

[00:10:01] Speaker 04:
If I can go back to the point about, I think Your Honors were raising about

[00:10:06] Speaker 04:
Are we asserting some type of general immunity?

[00:10:09] Speaker 04:
That's not what we're asserting here.

[00:10:12] Speaker 04:
What we are asserting is that the federal government is immune from state regulations that directly regulate or discriminate against them.

[00:10:19] Speaker 04:
But this doesn't mean that all federal agents are immune from all state laws.

[00:10:24] Speaker 04:
Federal officers are subject to those state laws that are generally applicable so long as they don't interfere with how officers carry out their duties and if they have only some type of incidental impact on the federal government.

[00:10:35] Speaker 00:
But federal officers... And you had mentioned, for example, in a prior discussion, you used the word murder.

[00:10:43] Speaker 00:
And so, I mean, there are rules in place where the state could charge a federal agent with a crime.

[00:10:49] Speaker 00:
And if the United States thinks there's a problem there, they can remove it to federal court for the prosecution.

[00:10:56] Speaker 00:
And it would get dealt with on a case-by-case basis.

[00:11:00] Speaker 04:
That may be the case when we're talking about a generally applicable law, like a murder law.

[00:11:04] Speaker 04:
But again, I come back to the point, this is not a generally applicable law.

[00:11:07] Speaker 04:
It applies specifically to an inherently governmental function, and it expressly sweeps in federal law enforcement officers.

[00:11:14] Speaker 04:
So we know on its face that this law directly regulates the federal government.

[00:11:19] Speaker 04:
With the murder law, the state murder law, yes, it may be generally applicable, but it would be difficult to argue in a facial challenge like we're arguing here that that state law is invalid in all of its applications to the federal government.

[00:11:30] Speaker 04:
That's not an argument we're raising here, and it's not an argument you need to bite off

[00:11:34] Speaker 04:
to resolve this case.

[00:11:35] Speaker 04:
This is an easier case where the federal government is being directly regulated by the state.

[00:11:39] Speaker 04:
And if you don't stop this law, there's no telling where it will stop.

[00:11:46] Speaker 04:
I'm happy to answer any further questions, but also I'd like to reserve some time for rebuttal.

[00:11:50] Speaker 02:
All right.

[00:11:51] Speaker 02:
The state has expressed, I think, understandably a concern about officer anonymity.

[00:11:56] Speaker 02:
If there's an incident of excessive force, let's say a bad shooting,

[00:12:00] Speaker 02:
and they need to find out the identity of the officers.

[00:12:03] Speaker 02:
I take it your response would be file a lawsuit and through the discovery find out what you can.

[00:12:07] Speaker 04:
Well, I think a lot of these issues are worked out at the local level.

[00:12:11] Speaker 04:
There doesn't need to be confrontations.

[00:12:13] Speaker 04:
I think a lot of times the federal government will assent.

[00:12:16] Speaker 04:
Like the Postal Service, they're directed to follow state speed limits and for good reason.

[00:12:22] Speaker 04:
So with respect to your specific example, I don't know how that would work out in a specific case.

[00:12:26] Speaker 04:
Um, certainly the state can request the federal government, um, provide certain information that might assist their investigations.

[00:12:32] Speaker 04:
But, um, I think that's certainly there may be practical concerns down the road, but those policy debates are not something that the court needs to get into because when we're talking about a state law that directly regulates the federal government, the seat has no power, whether it has a good policy reason or not.

[00:12:51] Speaker 01:
All right.

[00:12:51] Speaker 01:
Any additional questions?

[00:12:53] Speaker 01:
Thank you.

[00:13:07] Speaker 03:
Good morning, Micah Moore for the State of California.

[00:13:09] Speaker 03:
SB 805 requires officers at every level of government to identify their agency and provide a name or a badge number when they take certain enforcement activities without wearing uniforms.

[00:13:20] Speaker 03:
It was enacted to address the severe and predictable harms that arise when officers, when members of the public can't distinguish between criminal activity and legitimate law enforcement operations.

[00:13:31] Speaker 03:
In recent months, that exact scenario has played out across the country and on the streets of California.

[00:13:37] Speaker 03:
to the point where even the FBI has warned of the public safety risks.

[00:13:40] Speaker 05:
What's your best case for the proposition, or do you have any case that has upheld a state statute that on its face regulates the conduct of an inherently sovereign activity conducted by the federal government?

[00:13:54] Speaker 05:
Is there any case that has upheld such a regulation?

[00:13:58] Speaker 03:
I think United States v. California is one example.

[00:14:01] Speaker 03:
There, the court held

[00:14:02] Speaker 03:
an attempt to apply inspection standards for immigrant detention facilities to detention facilities.

[00:14:08] Speaker 05:
There were local county and private.

[00:14:12] Speaker 05:
It did not apply or purport to apply to a facility that was operated by the federal government itself.

[00:14:18] Speaker 05:
So it was a contractor case.

[00:14:20] Speaker 03:
It was a contractor case and we acknowledge that the state has greater flexibility when a law applies to contractors as opposed to offices directly.

[00:14:28] Speaker 03:
But I don't think that that distinction can.

[00:14:31] Speaker 05:
So then my question is, do you see, that's a contractor.

[00:14:33] Speaker 05:
Do you have a case in which any court has ever upheld a state law that directly regulates a sovereign activity conducted by the federal government?

[00:14:44] Speaker 03:
No, I don't have precisely that case, but I think one.

[00:14:47] Speaker 00:
So, so, so, so counsel.

[00:14:50] Speaker 00:
Following up on Judge Collins's question, and I suspect there are many cases that I could quote from, but I'll, as a start, just quote from Mayo versus United States.

[00:15:02] Speaker 00:
The Supremacy Clause of the Constitution states the essential principle that it described above, and then it quotes Article 6.

[00:15:14] Speaker 00:
It cites Article 6, the Supremacy Clause.

[00:15:17] Speaker 00:
A corollary to this principle

[00:15:20] Speaker 00:
is that the activities of the federal government are free from regulation by any state.

[00:15:27] Speaker 00:
No other adjustment of competing enactments or legal principles is possible.

[00:15:34] Speaker 00:
I, like my colleagues, our judges,

[00:15:37] Speaker 00:
of what the Constitution describes as an inferior court.

[00:15:41] Speaker 00:
I have quoted language from the Supreme Court.

[00:15:44] Speaker 00:
How is it possible that with the language in Mayo, we could do anything but enjoin Section 10 of this statute as directly violative of the language which I just cited?

[00:15:57] Speaker 03:
Because I think that this court and the Supreme Court have acknowledged that states can apply at least

[00:16:02] Speaker 03:
some generally applicable regulations to the federal government, consistent with the Supremacy Clause.

[00:16:08] Speaker 03:
We know that there's no general immunity of federal officers from state criminal law.

[00:16:12] Speaker 05:
We know that states have historically applied tort claims to federal officers without... Those laws regulate conduct that can be performed equally by private citizens.

[00:16:23] Speaker 05:
It's kind of like the international law concept of jury imperia and jury gestionis.

[00:16:28] Speaker 05:
If it's conduct that can be performed by anyone,

[00:16:32] Speaker 05:
then the state regulates it, and it's a question of whether the incidental effect of that general regulation on the federal government is sufficiently burdensome.

[00:16:40] Speaker 05:
But here you are directly regulating the sovereign activity, not activity that ordinary citizens can do, but just governmental activity of the federal government, and you're setting the standards for it.

[00:16:53] Speaker 05:
And that's where I don't see any precedent for that.

[00:16:58] Speaker 05:
And if you have some, I'm all ears, but I don't see any.

[00:17:01] Speaker 03:
I think other than United States versus California, I think GEO Group versus Inslee.

[00:17:05] Speaker 03:
And I take the point that states have greater flexibility with respect to contractors.

[00:17:09] Speaker 03:
But this court has also acknowledged... What we said in GEO Group.

[00:17:12] Speaker 03:
Yes.

[00:17:13] Speaker 03:
But at the same time, the court has acknowledged that the state, the federal government does quite a lot of important business through contracting.

[00:17:20] Speaker 03:
And it has found the government unlikely to succeed on intergovernmental immunity challenges, even where contractors are carrying out core federal functions like immigration detention.

[00:17:29] Speaker 02:
I think the state has always had... Understandably, I think the state leans very heavily on the cases that analyze incidental benefits and saying, well, this is a generally applicable law, at least insofar as it applies to only law enforcement and the burden is not on core.

[00:17:49] Speaker 02:
operations of arrest, detention, investigations, and the like.

[00:17:54] Speaker 02:
But here, I think California has done something that we just haven't seen before.

[00:18:01] Speaker 02:
It's telling federal officers, law enforcement officers, how to wear their uniform, visibly display a badge.

[00:18:08] Speaker 02:
So let's say New Hampshire likes California's statute.

[00:18:13] Speaker 02:
We were to upheld it and say, well,

[00:18:15] Speaker 02:
you know, visible means that it has to be a certain size, and it has to be displayed in a certain manner so we can see it.

[00:18:21] Speaker 02:
I mean, the officers have these little gold badges when they flash it.

[00:18:25] Speaker 02:
I mean, unless you're putting it really close to my face, I'm not going to be able to see what the badge ID is, so somebody's unhappy with that and say, well, it's got to be bigger than that.

[00:18:33] Speaker 02:
It's got to be at least, you know, X inches along, you know, X length, and it has to be displayed visibly, you know, say in the back next to the agency name,

[00:18:45] Speaker 02:
So what do we do with that?

[00:18:46] Speaker 02:
What's the analytical distinction between those sort of statutes and what California is trying to do here?

[00:18:52] Speaker 03:
So I think that intergovernmental immunity is not the only place where supremacy clause issues get addressed in a circumstance in which states really are developing conflicting requirements or imposing burdens on the federal government.

[00:19:05] Speaker 03:
I think Congress could step in that circumstance and establish a uniform policy, but this isn't a preemption case.

[00:19:11] Speaker 03:
The federal government isn't arguing that there is

[00:19:14] Speaker 03:
some sort of federal practice that ousts the states of its regulatory authority, they're relying exclusively on intergovernmental immunity.

[00:19:22] Speaker 03:
And I think given the fact that states do retain some authority to apply generally applicable laws, that inquiry needs to consider at least the degree of interference that's being posed on federal operations and the strength of that.

[00:19:35] Speaker 00:
But, counsel, you mentioned, well, Congress could stop this.

[00:19:41] Speaker 00:
But as I read the Supreme Court cases, the Supreme Court says that, well, you can have state regulation.

[00:19:53] Speaker 00:
when Congress affirmatively allows it.

[00:19:56] Speaker 00:
So as I understand the law, it's not because Congress can affirmatively stop it, we can do it.

[00:20:02] Speaker 00:
As I understand the law in many circumstances, it's if Congress allows you to do it, you can do it.

[00:20:08] Speaker 00:
And that's the only circumstance in which you can do it.

[00:20:11] Speaker 00:
So I don't really see the relevance of the fact

[00:20:14] Speaker 00:
that Congress could, if it wanted, pass a law that affirmatively prevents this when the Supreme Court has said, as I read it, the Supremacy Clause already affirmatively prevents it.

[00:20:24] Speaker 03:
Well, I think Congress certainly can bless a regulation that would otherwise violate intergovernmental immunity.

[00:20:31] Speaker 03:
But in North Dakota, the Supreme Court advised that this has to be a functional assessment.

[00:20:37] Speaker 03:
And it has to be mindful of the fact that Congress always has the ultimate say

[00:20:41] Speaker 03:
of whether or not to oust the states of their regulatory authority.

[00:20:44] Speaker 03:
And so in a case like this one, where the federal government hasn't made a showing that the compliance with SB 805 is going to compromise immigration enforcement in any way, it's our position that it is a question that's best left for Congress, but that means that you should deny the request for emergency relief in this case.

[00:21:02] Speaker 00:
But so what you're saying also, though, is to take a different version of Judge Nguyen's hypothetical.

[00:21:11] Speaker 00:
We have five or six different laws dealing with this from California to New Hampshire to Alabama.

[00:21:18] Speaker 00:
And in all of those states, the determination of whether the

[00:21:25] Speaker 00:
the states can regulate federal law enforcement in the way they choose is a hearing with evidence and witnesses and expert witnesses in front of the United States District Courts who would then make a factual determination of the degree of interference with federal activities and that would

[00:21:45] Speaker 00:
have that would decide whether or not the states in that instance could do it or not after a preliminary injunction hearing or a trial on the merits in the district court.

[00:21:57] Speaker 03:
I'm sorry, could you repeat the last part of your question?

[00:22:00] Speaker 00:
So the determination of the nature of the burden would be determined by individual district court judges after a preliminary hearing, hearing evidence experts are after a trial on the merits.

[00:22:16] Speaker 00:
And that would determine their view of the amount of the burden would determine whether the law violated the supremacy clause or not.

[00:22:25] Speaker 03:
I don't think that it has to be a question that receives a trial on the merits.

[00:22:29] Speaker 03:
And I want to be clear too, we're not saying that the federal government isn't entitled to some degree of deference in how they structure their law enforcement operations, but the federal government has come into this court asking for emergency pre-enforcement facial relief.

[00:22:44] Speaker 03:
It seems as if both sides agree that some line drawing is necessary because federal officers have never been categorically immune at state law.

[00:22:52] Speaker 03:
And so at minimum, I think they need to come to this court with a factual record that shows that there will be interference with immigration enforcement in California.

[00:23:00] Speaker 03:
And we respectfully think that they haven't done that.

[00:23:03] Speaker 03:
And I want to take a moment to address the arguments that the federal government is making in support of their interference argument.

[00:23:10] Speaker 03:
I heard my friend on the other side suggest that this statute forecloses plainclothes operations.

[00:23:15] Speaker 03:
That's not a correct reading of the law.

[00:23:17] Speaker 03:
It only applies in circumstances where

[00:23:20] Speaker 03:
officers are engaging in arrest or detention operations or they're being deployed for crowd control purposes.

[00:23:27] Speaker 03:
The declarants multiple times in the record expressed concern that law enforcement officers won't be able to meet with confidential informants in secrecy or conduct surveillance operations.

[00:23:37] Speaker 03:
Those are all categories of activities that are exempted from the statute.

[00:23:41] Speaker 03:
The federal government is also relying on the suggestion that SB 805 would

[00:23:45] Speaker 03:
increase the possibility of third party harassment and doxing of officers.

[00:23:50] Speaker 03:
I would encourage the court to look closely at their declarations because many of the practices that the federal government expressed concern with aren't going to conflict with SB 805 in any way.

[00:24:00] Speaker 03:
And so to give one example at pages 38 to 39 of their addendum, they describe a phenomenon where people will surveil hotels and photograph license plates in an attempt to identify officers.

[00:24:12] Speaker 03:
None of that would be, they don't explain how the risk of that would be increased with SB 805, but it is only applying a narrow identification requirement to arrest and detention operations.

[00:24:22] Speaker 02:
It doesn't.

[00:24:23] Speaker 02:
You said that the government has to come forward with a factual record.

[00:24:27] Speaker 02:
And, you know, I agree with you that the exemptions certainly read very broadly if this statute is determined to be constitutional.

[00:24:35] Speaker 02:
But do you agree that if we find that this is a direct regulation on federal government employees, then the factual record is really irrelevant?

[00:24:46] Speaker 02:
We don't need to engage with that factual record.

[00:24:48] Speaker 03:
Yeah, I agree that I think engagement with a factual record is required to determine whether or not this is a direct regulation because we don't read that language in the literal manner that the federal government does.

[00:25:00] Speaker 03:
It does require some assessment in our view of whether or not the application of the regulation is going to interfere with federal operations.

[00:25:09] Speaker 03:
And the only way to answer that question is to look at the arguments that the federal government is presenting to the court.

[00:25:15] Speaker 02:
Well, in interfering with federal operations, we don't look at just, you know, whether they can carry out the rest.

[00:25:21] Speaker 02:
And we also look at who gets to make the policy choices in determining when to identify themselves, under what circumstances to display a badge and under what circumstances to wear a jacket that displays their agency name.

[00:25:35] Speaker 02:
Those are policy consideration and choices that the federal sovereign gets to make for itself.

[00:25:41] Speaker 03:
They are.

[00:25:42] Speaker 03:
And again, we think the federal government should get some degree of deference in that determination, but I don't, I think it's inescapable that some line drawing is going to need to happen.

[00:25:52] Speaker 03:
And that I think the fact that the federal government hasn't shown a theory for how SB 805 would interfere with immigration enforcement should have a role to play in that analysis.

[00:26:03] Speaker 02:
I know in response to Judge Collins' question that you acknowledge that there's no case directly on point that squarely helps us answer this question.

[00:26:10] Speaker 02:
What case do you think is your best case?

[00:26:13] Speaker 03:
I think United States versus California.

[00:26:15] Speaker 03:
I think there you dealt with a generally applicable state law that swept in detention facilities.

[00:26:23] Speaker 03:
There, the court seemed to be concerned about the fact that the federal government hadn't made a showing of burden on federal operations.

[00:26:30] Speaker 03:
It noted that the federal government was relying only on general pronouncements of Supremacy Clause harms and unsubstantiated assertions and declarations.

[00:26:38] Speaker 03:
And I think that that's very much on parallel with the government submission here.

[00:26:42] Speaker 03:
And I'll just note, to the extent that the law is unclear, I think that that cuts against the federal government.

[00:26:47] Speaker 03:
We're not even at the preliminary injunction appeal.

[00:26:50] Speaker 03:
We haven't had the opportunity to brief all of these issues on the merits.

[00:26:53] Speaker 03:
It's the federal government's burden to make a strong showing that they're likely to succeed.

[00:26:58] Speaker 03:
In their brief, they rely heavily on a theory that any state law that applies to federal officers in any way is constitutionally invalid.

[00:27:06] Speaker 03:
That can't just be squared with precedent acknowledging that states have flexibility to apply at least some generally applicable laws.

[00:27:17] Speaker 03:
If there are no further questions on the merits, I'd like to turn briefly to the equities.

[00:27:21] Speaker 03:
As I mentioned, the federal government has to make a strong showing on the merits.

[00:27:24] Speaker 03:
If they haven't done that, they need to compensate with a greater showing on the equitable factors.

[00:27:29] Speaker 03:
I think the equities here provide an independent reason to deny the federal government's motion.

[00:27:33] Speaker 03:
The declarants for the federal government are most concerned about identification in circumstances where the statute simply doesn't require it.

[00:27:40] Speaker 03:
As to doxing, the record doesn't substantiate their concern that a narrow identification requirement that only applies to arrest and detention and crowd call operations

[00:27:49] Speaker 03:
is going to significantly increase the risk of third-party harassment.

[00:27:53] Speaker 03:
And the equities on the other side are – I'm sorry.

[00:27:55] Speaker 05:
Do you agree that – just hypothetically, if we were to conclude that the statute facially attempts in violation of the Constitution to regulate the governmental activities of the federal government, would that automatically

[00:28:15] Speaker 05:
provide the kind of irreparable harm and public interest that weighs in favor of a preliminary injunction, wouldn't that follow from that kind of a holding?

[00:28:25] Speaker 05:
I understand you don't agree with the holding, but if it did, wouldn't those follow?

[00:28:29] Speaker 03:
I think this Court has said likelihood of success on a constitutional claim does demonstrate irreparable harm, but I don't think it would relieve the Court of the responsibility to balance those harms against the equities that the state has presented.

[00:28:40] Speaker 03:
And here, the public safety concerns... Could still allow

[00:28:45] Speaker 05:
patently unconstitutional statute to go in effect because we think it might be a good idea in the meantime to give the state a shot anyway.

[00:28:53] Speaker 05:
I don't understand that.

[00:28:54] Speaker 03:
I think you still have to balance the equities even in the circumstance that you think that a constitutional claim might have merit.

[00:29:00] Speaker 03:
It's just not the case that any time a plaintiff shows likelihood of success in a constitutional theory, that that entitles them to an injunction pending appeal.

[00:29:08] Speaker 00:
Although it sounds to me like you counsel, it sounds to me like you essentially just conceded because including because of recent pronouncements by the United States Supreme Court that whether it is the state of California that is barred from enforcing a clearly constitutional law.

[00:29:29] Speaker 00:
or whether it is the United States that is barred by a clearly unconstitutional law, there is significant public interest and balance of equities from either stopping a government entity from doing something that they're legally entitled to do or prohibiting a government entity from doing something that they shouldn't be prohibited from doing.

[00:29:55] Speaker 00:
California has made that argument, right?

[00:29:58] Speaker 00:
That stopping California from doing something it should be able to do is by itself a long way towards satisfying winner factors.

[00:30:05] Speaker 03:
We agree that enjoining a democratically enacted law constitutes irreparable harm.

[00:30:10] Speaker 03:
Where I think I part ways is that that still doesn't relieve the court of its responsibility to engage in a balancing of the equities.

[00:30:17] Speaker 03:
And on the equities, the public safety concerns that are present in this case are not

[00:30:22] Speaker 03:
theoretical.

[00:30:23] Speaker 03:
They're not even supported exclusively by the state submissions.

[00:30:26] Speaker 05:
The FBI has issued a public safety report that catalogs some of the impersonation incidents that have happened because of the district court said if California's laws violate the supremacy clause, they cannot be in the public interest.

[00:30:41] Speaker 05:
Do you think that the court was wrong in saying that?

[00:30:45] Speaker 03:
No, but I don't.

[00:30:45] Speaker 03:
I don't think that that speaks to the reparable harm.

[00:30:49] Speaker 05:
It's your laws.

[00:30:51] Speaker 05:
not in the public interest to allow to go forward, what's left in the balancing?

[00:30:56] Speaker 03:
I want to make clear, I don't agree that the law is unconstitutional.

[00:30:59] Speaker 03:
Again, I'm very clear.

[00:31:02] Speaker 03:
But I still think that some consideration of the substantial public safety concerns that the law is addressing factor into the analysis.

[00:31:11] Speaker 03:
Because of what I said earlier, it's just not the case that every time that you establish likelihood of success in a constitutional claim,

[00:31:18] Speaker 03:
that entitles you to equitable relief before any court has had an opportunity to render a decision on the merits.

[00:31:24] Speaker 03:
And here, the record is replete with examples of people who thought they were being kidnapped when actually they were the target of legitimate law enforcement operations, people who saw something on the street that they perceived to be criminal activity and contacted their state and local law enforcement when actually it was a legitimate federal enforcement operation.

[00:31:43] Speaker 03:
And as I mentioned, that FBI report in the record

[00:31:46] Speaker 03:
makes clear that there has been a significant rise in incidents of impersonation because of the confusion that has been created on the ground by the federal government's current practices.

[00:31:55] Speaker 03:
This court is entitled to consider all of those factors in doing the balancing, and here we think it shows that the federal government isn't entitled to extraordinary relief at this stage of the case.

[00:32:09] Speaker 05:
If there are no further questions, I ask a technical question about how the statute works because there's an additional provision that requires the adoption of a policy and the district court said the government didn't have standing on.

[00:32:23] Speaker 05:
with respect to that because it couldn't be enforced as a practical matter against it.

[00:32:29] Speaker 05:
Is that something that the state can enforce against local law enforcement agencies so that, for example, it could bring an injunctive action or some other action to enforce that if a local jurisdiction failed to obey the command to issue such a policy?

[00:32:46] Speaker 03:
No.

[00:32:47] Speaker 03:
I think the policy is just a safe harbor that applies.

[00:32:50] Speaker 03:
And I'll note the federal government hasn't shot

[00:32:52] Speaker 03:
It hasn't sought an injunction pending appeal as to the policy provisions.

[00:32:56] Speaker 03:
And so they're not an issue at this time.

[00:32:59] Speaker 05:
It's not framed as a safe harbor.

[00:33:01] Speaker 05:
It's not, if you do this, you get out of it.

[00:33:05] Speaker 05:
It's phrased in the statute as an independent command.

[00:33:10] Speaker 05:
So it says, by January 1st, 2026, a law enforcement agency operating in California shall maintain and publicly post a written policy

[00:33:21] Speaker 05:
on the visible identification of sworn personnel.

[00:33:24] Speaker 05:
So it's an independent command.

[00:33:25] Speaker 05:
A side benefit is you get an exemption from the criminal provision, but it's phrased as a command.

[00:33:31] Speaker 05:
So I assume you can join this.

[00:33:34] Speaker 05:
You can enforce that by injunction against a disobedient local government.

[00:33:40] Speaker 03:
Standing here, I can only say I'm unaware of any attempt to enjoin the federal government on that theory.

[00:33:46] Speaker 05:
We've represented in the district court and before this court... I urge you with sovereign immunity, you know, independent of intergovernmental, you wouldn't have sovereign immunity, you'd have a sovereign immunity problem to try and bring a suit against the United States government under this provision.

[00:34:00] Speaker 03:
And the federal government, again, they haven't sought an injunction as to the policy provisions, but just as to the conduct provision.

[00:34:07] Speaker 05:
No, I understand, but I'm trying to understand how the language of the statute works and how that might be, you know, whether there's a difference in that respect between the two.

[00:34:16] Speaker 03:
And we've represented since the outset, it's just a safe harbor.

[00:34:19] Speaker 03:
I think it shows that, if anything, the legislature was trying to craft a policy that would be sensitive to federal interests.

[00:34:26] Speaker 03:
There are no state criminal penalties out of the statute if the federal government makes use of that provision, but that isn't an issue at this time.

[00:34:37] Speaker 01:
All right.

[00:34:37] Speaker 03:
All right.

[00:34:37] Speaker 03:
If there are no further questions, we would just send it.

[00:34:39] Speaker 03:
Any additional questions?

[00:34:41] Speaker 00:
No, thank you.

[00:34:42] Speaker 00:
Thank you for asking Judge Schoen.

[00:34:43] Speaker 03:
We would ask the court to deny the federal government's motion for an injunction pending appeal.

[00:34:47] Speaker 03:
Thank you.

[00:34:53] Speaker 04:
Your honor, the state of California has conceded that there is no case that upholds a state regulation of an inherently sovereign function of the federal government.

[00:35:02] Speaker 04:
That should be enough for a state pending appeal at this stage of the case.

[00:35:06] Speaker 04:
My friend relies on contractor cases, cases involving generally applicable laws.

[00:35:11] Speaker 04:
Those are harder cases to be sure, but those aren't issues that you need to solve at this stage of the case.

[00:35:17] Speaker 04:
And with respect to the burden, your honor, I'd like to point to some language in the United States versus California.

[00:35:23] Speaker 04:
This is the 2019 iteration of that case, 921 F3rd at 883 and 884.

[00:35:29] Speaker 04:
This is the case my friend relied on as her best case.

[00:35:34] Speaker 04:
This is the case where the court rejected a de minimis exception to the intergovernmental immunity doctrine.

[00:35:39] Speaker 04:
California was making the same argument in that case that they're making here that, oh, well, that law is not going to have significant impacts on the federal government's

[00:35:49] Speaker 04:
immigration enforcement activities, or in that case, detention operations.

[00:35:53] Speaker 04:
Well, the court rejected that and says there is no de minimis exception to the doctrine of intergovernmental immunity.

[00:35:59] Speaker 04:
And again, there are two prongs to that doctrine.

[00:36:01] Speaker 04:
It's direct regulation and discrimination.

[00:36:03] Speaker 04:
We are here under the direct regulation prong.

[00:36:06] Speaker 04:
That should be enough to reject the argument that you consider the burdens at this stage of the case.

[00:36:13] Speaker 04:
If there are no further questions, we ask the court to grant a stay pending appeal of Section 10 of the No Vigilantes Act.

[00:36:19] Speaker 04:
Judge Bennett?

[00:36:20] Speaker 00:
I have no further questions.

[00:36:21] Speaker 00:
Thank you, Judge Nguyen, for asking.

[00:36:23] Speaker 02:
Thank you very much, counsel, to both sides for your very helpful arguments this morning.

[00:36:28] Speaker 02:
The matter is submitted and we'll issue our decision in due course.

[00:36:32] Speaker 02:
Court is adjourned.