John G. Roberts, Jr.: We will hear argument first this morning in Case 12-895, Rosemond v. United States. Mr. Elwood.
John P. Elwood: Mr. Chief Justice, and may it please the Court: It has long been a bedrock principle of American law that aiding and abetting liability requires proof that an accomplice acted with purposeful intent to facilitate or encourage the crime of conviction and that mere knowing assistance is insufficient.
Anthony M. Kennedy: Do you agree that the jury could find the defendant guilty of the firearms charge under a proper instruction? In other words, was there sufficient evidence so that if a proper instruction were given, there could have been a conviction?
John P. Elwood: Even if the -- I think in this particular case, even if the jury had been given a proper instruction, it would have been a difficult charge to make out because the government never really argued facilitation after getting knowledge of the firearm. There was never evidence of foreknowledge; the government never asserted evidence of foreknowledge.
Anthony M. Kennedy: Well, I guess we can get into later to whether or not if you know a firearm is being carried and if you then facilitate the commission of the underlying felony by driving the car, participating in the transaction, whether that's sufficient. But let me ask you this: Would the instruction that was given, which was at JA 196, would it be okay if Paragraph 1, "The defendant knew his cohort used a firearm. " I think there is a real problem with that, because it's retrospective. Would the instruction have been sufficient if the defendant knew his cohort would use or was carrying? Would that change it?
John P. Elwood: Well, I think at least that would have required foreknowledge. But I think it would still have been problematic because it would only have required knowing facilitation. And courts, traditionally, have required intentional facilitation, that is, they intend to further the crime.
Antonin Scalia: You do not agree, then, that if you know that there's -- that there's a bank robbery afoot and you're cooperating in that, you're -- you're the wheelman, and you also know that the -- you know that the people who are conducting the bank robbery are carrying firearms, you say that there's no criminal liability for the firearms unless you intended them to use the firearms; is that your position?
John P. Elwood: It's our position that you could infer from the fact that you're assisting the transaction involving--
Antonin Scalia: No, no.
John P. Elwood: --Knowledge is not itself intent.
Anthony M. Kennedy: Justice Scalia can -- his own question. But the question is: What -- what does the jury have to find? I know they can -- I know what they can infer, but the question from Justice Scalia is, you're the -- you drive -- you drive the car, you know firearms are there and might be used, is that sufficient? And that's his question.
John P. Elwood: I -- I think that that would be -- that would support a verdict. That would support a verdict. The only question--
Antonin Scalia: Now, wait. It would support a verdict -- you're saying it would support a finding of -- of intent.
John P. Elwood: --That's correct. But the question is whether you don't even have to instruct a jury--
Antonin Scalia: Let's assume there's a lot of evidence that he didn't really want them to use firearms, that there's no way you can say he intended them to use, but he knew that they had firearms.
John P. Elwood: --And I think that you can conclude from that that his purpose in assuming that he's driving--
Antonin Scalia: No. No, no, you can't. It's my hypothetical. And you cannot conclude from that. There is so much other evidence. This -- this man hates firearms. He does not like firearms. There is no way he could have intended them to use firearms. But he knew they had firearms.
John P. Elwood: --You know, I hate to be accused of resisting the hypothetical, because in that -- in that case, I don't think it matters whether you have the subjective desire, like you think, boy, I sure wish those firearms weren't involved. But because at that point, your goal is to facilitate and make sure that this bank robbery--
Antonin Scalia: Facilitate the crime.
John P. Elwood: --with the gun succeeds. The whole thing with the gun.
Antonin Scalia: So you don't have to -- you don't have to--
John P. Elwood: But that is your -- we would say that that is the purpose in facilitating. And the question is not just that. The question is whether you--
Antonin Scalia: --Okay. So if you intend a crime -- if you intend a crime and you know that the crime is being conducted with firearms, that's enough.
John P. Elwood: --I don't think that that -- I think that you have to have the fore -- the foreknowledge. And I think that there are certainly hypothesize--
Antonin Scalia: Beforehand. Before -- you know beforehand that the crime is going to be perpetrated with firearms. That's all you do. You know beforehand, and you facilitate the crime.
John P. Elwood: --I think that you -- the question is whether -- you can't even conceive of the circumstance where knowing -- that is, participation -- knowing that a firearm would be used or carried.
Samuel A. Alito, Jr.: Well, give me an example of that. Give us--
John P. Elwood: For example, if you agree to drive your neighbor to pick up drugs at some place in Philadelphia or -- let's make it Pittsburgh. And then you drive him to West Virginia to spend the weekend dealing. On the way there he tells you, the guy who distributed these to me, you know, he always carries a Derringer in his boot. And at that point, you don't facilitate his use or carriage of the gun with respect to the drug distribution offense. It has no role in -- in the crime. And so I think you can conceive of enough circumstances--
Samuel A. Alito, Jr.: --And I don't -- I don't understand the example. The -- the alleged aider and abetter learns about this after it's happened? That's the idea?
John P. Elwood: --Yes, but he's still facilitating the drug distribution offense at a time he knows that a gun is, you know, being carried in relation to it.
Samuel A. Alito, Jr.: Well, let me change -- let me -- maybe this is the same as Justice Scalia's hypothetical, but let me try it. Suppose that two guys have a meeting and it's -- it's in a place that's -- where there's an electronic eavesdropping device. In fact, there's a camera. So it's all recorded. So we know exactly what was said. And the principal says, here's the deal, I'm going to rob a convenience store and I'm going to carry a gun. And the aider and abetter says, well, all right. I'm in on the -- you know, I'm in on robbing the convenience store, but I don't want anything having to do with the gun. I think you should carry a baseball bat. The principal says, no, that's the deal. I'm robbing the store. I'm carrying a gun. Take it or leave it. Are you going to drive me there? And -- and the other guy says, I hate guns, I don't want to have anything to do with guns. I -- I hate this idea about the guns. They go back and forth. And the -- the principal says finally, look, this is it. This is the deal. I'm using a gun. Are you going to help me or not? And the guy says, well, all right. I'm going to drive you, but I want it noted for the record that I'm opposed -- I'm opposed to the use of a gun. [Laughter]
John P. Elwood: And at that point, it's his purpose to facilitate a transaction and to, you know, help it succeed and it's at a time when he knows that a gun will be used and that -- I think you can conclude that that is his purpose.
Samuel A. Alito, Jr.: See -- so I don't really see -- I can't -- I can't think of a situation where a person facilitates the crime, knows what the crime is going to be, knows that a gun is going to be used but doesn't intend for the gun to be used.
John P. Elwood: The question is--
Samuel A. Alito, Jr.: In those two situations, knowledge and intent, seem to me to be -- to be the same thing.
John P. Elwood: --The question is whether there are -- because there are just no instances that are more like my hypothetical than like your hypothetical. So you don't even have to bother troubling the jury about whether they had the intent.
Samuel A. Alito, Jr.: Well, I don't understand your hypotheticals. If you could give it to us again.
John P. Elwood: Well, the point of it is that at a time when you are -- when you are still participating in the underlying offense, the drug trafficking offense, you know that a gun is being carried in relation to it. But you don't have any intent to facilitate it. You don't care one way or the other if it gets used. You don't intend to facilitate it, and you don't facilitate it. And the question is whether you--
Samuel A. Alito, Jr.: But you facilitate--
Anthony M. Kennedy: Well, that's -- that's a conclusion. The jury, it seems to me, could say you do facilitate it if in these hypotheticals you drive the car--
John P. Elwood: --But the thing is--
Anthony M. Kennedy: --with knowledge that the gun might be used.
John P. Elwood: --No, but the gun is not going to be used in your act of facilitation. It may be used over in Philadelphia, and you aren't doing--
Anthony M. Kennedy: Well, the submission is the jury can find otherwise.
John P. Elwood: --And the question--
Anthony M. Kennedy: The -- the gun would never have been used if you didn't drive the -- or carried if you didn't drive the car.
John P. Elwood: --But I think the jury could equally well conclude that you did not intend to facilitate the use of the gun and you did not facilitate the use of the gun. And the question is whether you even need to trouble the jury with it. Because the government's instruction conclusively presumes both knowledge -- or conclusively presumes intent from knowledge alone and it conclusively presumes facilitation of the gun from facilitation of the underlying offense.
Samuel A. Alito, Jr.: --Or in my -- in my hypothetical, could a rational jury say he knew about it, but he didn't intend it?
John P. Elwood: I think that in your case with the foreknowledge and where he, you know, facilitates, he carries the gun and he carries the person to the offense, I think that that would be a tough slog. In a case -- but ours is a case where there isn't foreknowledge and the government never argued that he knew before the gun -- before the gun was fired that it was his associate who was the shooter.
Samuel A. Alito, Jr.: Well, in my case -- and I'll finish. I want to ask another question about this. But in my case, if the judge had given the instruction, it's enough that he knew about it. He facilitated the crime when he knew there was a gun. Would that be error?
John P. Elwood: I think it would be error because you're instructing them on the wrong elements. It might be harmless error. But the point -- both sides agree here that you have to facilitate the crime of conviction and you have to intend that the gun be used.
Antonin Scalia: I don't think it's ever harmless error to not instruct the jury -- or to instruct the jury not to find one of the elements of the crime. If, indeed, intent is necessary, it seems to me he has to instruct the jury to find intent. It's not up to the court to say, well, there surely was intent anyway so it's harmless error. The jury has to find intent.
John P. Elwood: I think -- you know what, I'm fine with it being a harmful error, too. But my point was merely to note that I think that it is something that you have to instruct the jury on as a proper element--
Sonia Sotomayor: Excuse me. But what are we instructing--
John P. Elwood: --even if it winds up not making a difference.
Sonia Sotomayor: --I think what we're driving at here, and I think this is the moment you're resisting, but to me, and as you can tell from my colleague's questions, if you know that someone's carrying a gun, and whether you want them to use it or not is irrelevant, if they take it out and use it and you have gone along with them in the crime, you're guilty. Okay? That -- that's what we're driving at. Assume that I believe that. Assume that I believe that if you have knowledge of the gun, and that I am participating in the crime with your knowledge of that gun, whether the knowledge is secured before the crime starts or during the crime, if I continue to participate in the crime knowing that you have a gun, then that's knowledge of the gun and intent to facilitate. I thought the example that you were relying on here or the issue that got confused in the briefs was whether or not, from the sequence of facts in this case, you can actually discern that intent to facilitate the crime because the alleged shooter, which your client said was someone else, jumped into the car and the car took off before anybody could abandon the crime. That's what I actually thought this case was about: At what juncture do you instruct the jury to say that you have to be a participant with knowledge of the crime? But you're saying something different right now. You're almost suggesting that there has to be a pre-knowledge that the gun will be used.
John P. Elwood: No, I don't think -- I don't think that there has to be pre-knowledge. My point is this: That there are circumstances I think where you can know of a gun and be participating in the underlying -- underlying predicate offense and not facilitate the use of the gun. And I--
Sonia Sotomayor: I'm hard to imagine that. Give me an example.
John P. Elwood: --For example, if you -- your job, you're the lowest level guy in a drug organization. You stand on a street corner every night and you hand out drugs to anybody who comes up. You don't carry a gun. Nobody has ever carried a gun at that street corner. One night you're doing it and you see that the guy is -- that the guy who you work for, his enforcer is coming by and you know he always carries a gun. He walks behind you and, you know, he's present and around you for about 90 seconds, but during that time, you do exactly what you always did. I think a jury could conclude -- and I'm not saying that they couldn't conclude otherwise, but they could conclude that he didn't facilitate the use or carriage of the gun. He was just--
Sonia Sotomayor: What would the instruction look like?
John P. Elwood: --It would just--
Sonia Sotomayor: To -- to -- what would it look like to capture the difference you're trying to convey?
John P. Elwood: --It would just say that the -- that the jury has to find that the defendant facilitated the use or carriage of a gun during and in relation to a crime of violence or a drug trafficking offense--
Sonia Sotomayor: Well, then you come--
John P. Elwood: --and that they intended to do so.
Sonia Sotomayor: --you come up against the government's argument that you don't have to facilitate every element.
John P. Elwood: Right. But that's the thing. Those are what we think would be the proper instruction, that they just have to be instructed on the facilitation and on the intent.
Antonin Scalia: I'm surprised to hear you say that you don't need prior knowledge. I think you need prior knowledge.
John P. Elwood: I think you have to have prior knowledge before you facilitate it. I think that--
Antonin Scalia: Yes.
John P. Elwood: --Right. Exactly.
Antonin Scalia: So what did you mean by -- by you don't need prior knowledge?
John P. Elwood: You don't need prior knowledge before the whole transaction happens. If you continue to -- if there's an act of facilitation after you learn of it--
Antonin Scalia: After you know.
John P. Elwood: --Right. Exactly. That's all I mean by the absence of prior knowledge. But I mean, everyone here agrees that you need to have knowledgeable or facilitation.
Ruth Bader Ginsburg: Mr. Elwood, you're dealing with all kinds of hypotheticals. But in this case we had a jury determination that Rosemond was the person -- he was convicted of carrying ammunition, right? There were two counts of carrying -- possession of the ammunition. And couldn't one infer from that that he -- he possessed the ammunition, he was the gun carrier?
John P. Elwood: Two things, Justice Ginsburg. First, the government never raised this below and it wasn't pressed or passed on below, and so I think under Glover v. United States this Court wouldn't ordinarily consider that in the first instance, would leave it for remand. But secondly, I think that it's not clear enough. I mean, you can't say beyond a reasonable doubt that the error didn't infect that, too, because the jury was instructed four times that you can possess something through constructive possession, through a confederate. And I think when the jury concludes that he is guilty of a possession offense, which is 924(c) as a possession offense, as an aider and abetter, and they marked on the judge's instruction that he used the gun, he carried the gun, that the jury could have believed that they were -- that he constructively possessed the gun and thereby constructively possessed the ammunition.
Ruth Bader Ginsburg: What was the evidence that the jury had on whether he possessed the ammunition?
John P. Elwood: I think the only evidence of possession was that it was inside the gun that was fired. And I think the jury rejected the idea that he was the shooter because the two eyewitnesss said that the shooter was someone else, that the shooter was the guy in the backseat, who was Ronald Joseph.
Anthony M. Kennedy: I just didn't -- you said the only evidence was that it was inside the gun?
John P. Elwood: The ammunition was inside the gun. And the only evidence of his--
Anthony M. Kennedy: And what was the evidence? I thought there was evidence that he possessed cartridges.
John P. Elwood: --No. The only evidence was that the evidence was inside the gun -- or I'm sorry, the evidence -- that the ammunition was inside the gun.
Anthony M. Kennedy: And was there any evidence that he had the gun?
John P. Elwood: The evidence that he had the gun was the -- the guy who was the other shooter--
Anthony M. Kennedy: I mean, was the evidence that he had the gun and the evidence of the cartridges are exactly the same?
John P. Elwood: --They are exactly the same. The only evidence was that the cartridges were inside the gun. And the evidence -- the two eyewitnesss who were at the scene said that the person got out of the driver's side, and the evidence suggests that Mr. Rosemond was on the passenger side, and that he got out of the backseat, and he was in the front seat. So the -- the evidence, I think, is that he was -- he was merely in the car, not that he was a shooter. And the jury, remember, asked: Do we have to answer question 3, which was the -- all the different ways you can use the gun -- if we find him guilty on an aiding and abetting theory? Which certainly suggests they did not believe he was the shooter.
Antonin Scalia: Did -- did he facilitate the crime after the shots were fired?
John P. Elwood: The government did not ever argue facilitation after the shots were fired, I suspect because -- they only argued that he -- that what happened afterwards was evidence he was the shooter. I suspect because they appreciated that the offense was over with. He was only charged with possession of marijuana with intent to distribute. When Mr. Gonzales took off with the marijuana and they lost control, you know, they went around afterwards looking for him, which, you know, there's not even very much evidence of that.
Anthony M. Kennedy: But do we have cases that say that assisting flight immediately after the crime is not aiding and abetting the crime? The crime is over? So everybody says the crime's over. Let's -- let's walk home.
John P. Elwood: I -- I am not aware and the government hasn't cited any. I mean, there's -- there's -- for different crimes, you know, there's -- there's different law about whether flight is part of the offense. But in any event, the question is whether that would be aiding and abetting that crime, the possession offense or some distinct crime, or whether that would be being an accessory after the fact. And that was never charged.
John G. Roberts, Jr.: Is it -- is it just flight? I thought there was evidence that they were chasing the people who robbed them.
John P. Elwood: There was no evidence that that intent to chase them was ever communicated to Mr. Rosemond.
John G. Roberts, Jr.: Well, he jumps in the car and, you know, they're going after them.
John P. Elwood: That itself was disputed. But the question is, even if they're chasing him, that might be attempt to possess the marijuana to get it back. It might be conspiracy to possess the marijuana, but that wasn't -- wasn't charged. The only thing was possession.
John G. Roberts, Jr.: Well, it might be -- it might be an effort to continue the crime of -- in other words, it might make a difference whether the people who are being chased look and see two guys in the car or three guys in the car. If somebody says -- and I realize you dispute these facts -- let's go get them and the guy jumps in the car, it seems to me that that's aiding and abetting the underlying illegal activity with knowledge, of course, that guns were used.
John P. Elwood: I agree. But first, that's not a theory that the government ever espoused. They never argued that facilitation. And secondly, I don't know that that would be facilitation of possession of marijuana with intent to distribute it. That ended under the court's instructions when they lost control of the marijuana when Mr. Gonzales disappeared.
Samuel A. Alito, Jr.: I understand your argument about intent, but are you also arguing that the -- that the actus reus instruction was insufficient? The instruction about what your client did?
John P. Elwood: Yes.
Samuel A. Alito, Jr.: Do you think it's necessary for an aider and abetter to facilitate every element of a criminal offense?
John P. Elwood: We're not saying that. We are saying that when you -- you have to instruct them did he facilitate the actual crime of conviction. Because what the government is doing here, what their instruction does is it conclusively presumes that he facilitated the distinct offense, which this Court has said, the entirely new crime of 924(c), from the fact that they did the underlying offense. Their favorite example in the brief is a mail fraud example. But under the government's theory, because you engage in an act of mail fraud, you could be convicted of racketeering without any additional actus reus because that is a predicate crime to RICO. And that's the thing is we're just saying you can't presume the full offense -- facilitation of the full offense from the fact that you just facilitated one element.
Samuel A. Alito, Jr.: So if there were not -- if the -- the drug offense were not illegal, there -- there wasn't a drug offense and then the -- the additional firearm element, it wouldn't be necessary for him -- for the defendant to facilitate every element of that offense. It's dependent on the fact that there's this other criminal conduct.
John P. Elwood: We're just saying that they have to be -- the jury just has to be instructed to ask, did he facilitate the crime of conviction? And they're asking a different -- they're asking a different question, essentially. And it wouldn't present the same risk that you would convict someone twice and they'd serve two consecutive sentences under the hypothetical you suggest, but we still say they should be asked whether they facilitated the right crime.
Antonin Scalia: Well, but the crime of conviction was -- was a drug offense with the use of a firearm, right?
John P. Elwood: It was 924(c), a crime with the long name.
Antonin Scalia: And so I thought -- I thought that the law is pretty clear that if you -- if you facilitate an offense, you do not have to facilitate each element of that offense, so long as you have knowledge that that element existed.
John P. Elwood: And our submission is just that the jury still has to be asked, did he facilitate the crime. This is -- both sides agree that you have to ask -- that one of the elements is whether they facilitated the crime.
Antonin Scalia: But -- but more precisely, they could be asked did he facilitate the drug deal knowing that a firearm was going to be used in the drug deal. Would that satisfy you?
John P. Elwood: No. We think they're asking both the wrong questions then. But -- is there--
Antonin Scalia: I don't understand what your position is. He has to use the gun himself?
John P. Elwood: --No. His -- our only position is that they have to ask the jury, did he facilitate the 924(c) offense.
Anthony M. Kennedy: No. I think it would help if you told us what the definition of the crime is. We'll talk about the jury instructions later. Justice Scalia is asking whether or not if you facilitate the drug crime knowing that a weapon is being carried, if that is sufficient for aiding and abetting as a legal matter? Forget the jury instructions.
John P. Elwood: And it's our submission that you have to both facilitate the 924(c) offense and that you have to have the intent that the gun be used or carried during and in relation to the crime.
Ruth Bader Ginsburg: Does that -- does that have to do with the additional 120 months? The underlying crime is 48 months and then the -- the gun makes it 120 months more consecutive?
John P. Elwood: That's right. But it's -- I think our -- the reason why we think it makes a difference is because it's a different crime. And the government is trying to get the jury to conclusively presume from the fact that you did the one crime, that you must also have facilitated the other. And we just don't think that that is something that you can say with 100 percent certainty so you can remove it from jury determination.
Elena Kagan: Isn't criminal law -- isn't criminal law replete with crimes which have lesser included offenses as part of them? So wouldn't your rule be a very difficult one to apply because it would suggest that the person had to facilitate some part of the crime that was not a part of a lesser included offense?
John P. Elwood: There are some courts that apply this, our rationale to lesser included's as well. But lesser included crimes are the same crime for Blockburger purposes. You can't be sentenced to both the greater and the lesser. And I think most courts require that you show the intent that the gun be used. They don't as often require that you facilitate the discreet use of or carriage of a gun.
Samuel A. Alito, Jr.: Well, let me go back to my earlier hypothetical about the taped conversation. Suppose that the alleged aider and abetter there says, I intend for you to use the gun. I have that intent. However, I'm not going to do one thing to help you get the gun or use the gun. I don't want to -- I'm not going to. There's an actus reus problem there because he doesn't facilitate the use of the gun?
John P. Elwood: Well, he may say that he is not going to facilitate it, but, depending on what his actions are, he may -- very well may facilitate it. If he drives the gun and the person to the -- the crime, you know, that is an act of facilitation. And so, you know, it doesn't depend on what the person says. It depends on what the person does.
Anthony M. Kennedy: I just want to make clear, and we'll get back to the bank robbery hypothetical. Driving the car, knowing a gun is being carried and might be used, is or is not sufficient facilitation to make you an aider and abetter in the drug -- in the gun aspect of the crime?
John P. Elwood: I think that that would be enough, because you are carrying the gun as well as the person. If I could reserve--
Anthony M. Kennedy: But you are not carrying. Your -- your cohort is carrying the gun.
John P. Elwood: --Oh. Yes, you're carrying -- you're -- by carrying -- the gun is in your car.
Anthony M. Kennedy: You are driving the car, the cohort has the gun, the cohort is going to rob the bank. Are you or are you not aiding and abetting because you're facilitating it by driving the car, yes or no?
John P. Elwood: We would say that, yes, that is certainly enough to go to the jury and that -- I think that that would be enough to show that, because you're carrying both the gun on your cohort and you're carrying the cohort, that that would be enough to facilitate that. I would like--
Antonin Scalia: But only -- you say it's enough to go to the jury and what you would ask the jury to find is intent, right?
John P. Elwood: --That's correct. You would still have--
Antonin Scalia: Not just to find those facts that were stated by Justice Kennedy.
John P. Elwood: --That's correct. Intent and facilitation.
Antonin Scalia: In addition, the jury would have to find intent.
John P. Elwood: That is correct.
Antonin Scalia: Okay.
John P. Elwood: I'd like to reserve the remainder of my time for rebuttal.
John G. Roberts, Jr.: Thank you, counsel. Mr. Bash.
John F. Bash: Mr. Chief Justice, and may it please the Court: I'd like to start by defining exactly what the government contends the mens rea requirement is for aiding and abetting, and then give the Court an example -- two examples to show how it differs both from what Mr. Elwood is saying and how it differs from a knowledge standard. Aiding and abetting requires an intent to facilitate or encourage the commission of an offense. And I think that breaks down into two constituent parts: One, an intent to make some action easier or to encourage some action by the principal; two, the knowledge that the principal intends to commit a crime of which that action is a constituent part. What Mr. Elwood is saying is something quite different. It's that you have to intend that the crime succeed. If that's true, all paid accomplices are out if they don't intend that the crime succeed. If the -- if the bank robbers say, hey, can you look the other way, security guard, while we go into the bank, we'll give you a thousand dollars if you do it, that's not aiding and abetting under his theory if the security guard says, well, I only wanted a thousand dollars; I didn't care whether you ultimately succeeded in the bank. We give an example in our brief: If the person actually gives the gun so it meets the actus reus requirement that Mr. Elwood has proposed, he actually gives the gun to somebody, not because he cares if that person commits the crime, which he knows he intends to commit, but as a favor for his friend--
John G. Roberts, Jr.: That's a very fanciful hypothetical, because the one thing the guard is going to know, that if the robber gets caught, he's in great jeopardy of -- of being caught himself and convicted. Of course he wants the crime to succeed because he doesn't want the people to be there and being pressured by investigators or whatever to say, okay, you know, who was in on -- who was in on this with you? So if you're -- if you're being paid for a crime, to assist in the commission of the crime, you want it to succeed.
John F. Bash: --Well, if your payment is not coming from the loot, I don't think that's really true. But let's take that as true as given. I mean, go back to my example about the guy that's just doing a favor for somebody. Sure, you can use my gun to commit a robbery. I don't have any stake in it. If you decide tomorrow that you don't want to commit the robbery, that's fine with me.
John G. Roberts, Jr.: He has a stake in it. If the guy is caught, the police are going to say, where did you get the gun? He may turn him in or not, but it's certainly a danger, a danger that wouldn't be there if the crime succeeded.
John F. Bash: I don't -- I don't think that's the sort of intent requirement that Mr. Elwood is talking about. I mean, I think he's talking about an intent that's abstracted from the idea that if you get caught, everybody might go to jail. I mean, that sort of seems to beg the question of whether you're actually going to be liable for the gun.
Ruth Bader Ginsburg: Well, why don't we just take it that we have a crime, the underlying crime, it's a 48-month crime, and then if you have a gun in connection with that crime, it becomes 120 months consecutive. And your position seems to be that all you have to prove is facilitation of the underlying drug offense. And it seems to me to -- to get 10 years of your life for the government proving no more than the 48-month charge is a bit much.
John F. Bash: It's not proving no more than the 48-month charge. And I'll just -- as a footnote, it's 10 years only if the gun is fired. It's 5 years if it's carried or used, and which obviously creates a much greater danger to people's lives and property if it's fired. But it's not only proving that you facilitated the drug offense. It's facilitating the drug offense with the foreknowledge that a gun was going to be involved in it.
Anthony M. Kennedy: But this instruction at J196 says that the defendant "knew his cohort used a firearm. " It really should say that "knew his cohort would carry a firearm. "
John F. Bash: Justice Kennedy, two points.
Anthony M. Kennedy: Because as I -- when I read this, I thought, well, given these confusing facts, a jury might think that there's liability if he knew that a firearm was used, which is a very odd interpretation, but that's -- the instruction lends itself to that interpretation.
John F. Bash: Justice Kennedy, that is an odd interpretation and it's wrong and we do not contend that liability could be imposed if you learned of the gun only after your participation ended. A couple points on that.
Anthony M. Kennedy: But do you agree that, taken by itself, that one could be read that way?
John F. Bash: Well, I don't think read in the context of the full instruction. If you look at--
Anthony M. Kennedy: I said taken by itself.
John F. Bash: --Oh, so not the instruction taken by itself, but one phrase in the instruction taken by itself?
Anthony M. Kennedy: Yes.
John F. Bash: I think it's possible, but I think if you read it in the context of the full charge and what reasonable jurors would think, you have the formulation right above that on page 196 that mirrors exactly the Peoni standard. And I don't think reasonable jurors reading that in conjunction with the more specific instruction on count 2 could think that he could be liable if his participation ended only after the firearm was used. And, Justice Kennedy, nobody below thought that, because Petitioner never objected on the grounds that the particular wording of this instruction allowed conviction if you gained knowledge only after your participation. So at minimum--
John G. Roberts, Jr.: Well, he proposed -- he proposed a different instruction that departed from the instruction that was given on that point.
John F. Bash: --Mr. Chief Justice, first of all, under Rule 30 it is not enough to propose an alternative instruction that does not contain the defect. You have to lay out the specific grounds for your objection. He did not do that here, so it should be plain error review. That is doubly true here where his instruction had its own error. His instruction would have required intentional facilitation of the gun, which is the question on this Court granted certiorari. His instruction had--
John G. Roberts, Jr.: Two -- two wrongs don't make a right.
John F. Bash: --Two wrongs don't make a right, but he certainly did not comply with the Rule 30 standard for raising the objection with respect to foreknowledge that he -- that he's proposing now. So, at minimum, that should be reviewed for plain error. In addition, even if the Court believes that we waived the harmless error argument by not raising it below with respect to his primary argument, the Court should certainly hear our plain error -- or harmless error argument with respect to the ammunition counts, with respect to the instructional error that he did not raise below. We should have the opportunity--
Anthony M. Kennedy: Look at his -- look at his instruction and think about the bank robbery hypothetical with the driver of the car. His number 2 is that they intentionally took some action to facilitate or encourage the use of the firearm. I think that would be an okay instruction in the bank robbery hypothetical.
John F. Bash: --It would be--
Anthony M. Kennedy: He drove the car. Principal object was to rob the bank, not to use the firearm, but he facilitated the use of a firearm. I can see that a judge could give that instruction.
John F. Bash: --I think the only way Petitioner fits that instruction into his view of the law is because the driver started out driving the people to the bank, so he says, oh, well, you are satisfying my actus reus requirement because you actually transported the guns to the bank. But tweak the hypothetical a little bit. Suppose the getaway driver is paid only to show up at the end and to, you know, ferry the bank robbers away. He knows all along that it's going to be a firearm offense. I'm pretty sure Mr. Elwood would say: Because you took no act facilitating the gun in that case, you only sort of showed up at the end, even though you knew a gun would be used, that that's not facilitation. So I take your point, Justice Kennedy, that in a wide swath of cases it may not matter, but I think in some cases it is going to matter. And -- take his intent requirement. I mean, the person that lends the gun just to be a good guy, not because he cares about the offense, I'm pretty sure he is out. And if the jury is convinced, hey, I knew he was going to commit a robbery or assault but I just did not care, if the jury is convinced by that, he is acquitted, and that can't possibly be right. He would not be guilty of any 924(c) offense at all. I mean not only the ten-year--
Sonia Sotomayor: Could you talk practically about what the difficulties are for the government in this scenario? It's nice to put hypotheticals in where you know, where you say someone knew X, Y and Z. The reality is in most cases you don't. Occasionally you get a co-conspirator that will tell you, but in most cases you have just the actor. A defendant is present during a crime, a gun is pulled, and he leaves with his cohorts. You don't know if he had advance knowledge that the gun would be used because he wasn't carrying it and he may have done nothing but be present during the crime, left, and got a split of the money later, correct?
John F. Bash: --If he continued participating after he learned of the gun, yes.
Sonia Sotomayor: That's your point, right?
John F. Bash: Yes.
Sonia Sotomayor: That's your--
John F. Bash: If he learned of the gun and said, hey, I'm out of this, he's not guilty.
Sonia Sotomayor: --So isn't this really an argument about how you define facilitation? You are not arguing that -- that some form of participation in the crime with knowledge that the gun is being used is required. You are really arguing about how far the proof has to go.
John F. Bash: Well, I--
Sonia Sotomayor: Because your adversary keeps saying mere knowledge of the gun's being used is not enough.
John F. Bash: --I think it's more qualitative than that and the question suggests it's purely quantitative. It's qualitative in the sense that the facilitation can relate to either element. So it can relate to the gun in particular or -- and this could be the guy that set up the drug deal knowing that a gun would be involved, or set up the robbery knowing that a gun would be involved. I think you see in the courts of appeals cases here the practical difficulties that come in because, although most court of appeals, I think eight, have technically adopted the position that you have to facilitate the gun in a direct way, if you look a the actual holdings of the cases it doesn't differ in practical application from our approach. It's -- there is one case, I think it's Price out of the Third Circuit, where the guy may have learned of the gun -- I may have the case name wrong, but the guy learned of the gun only as the robbery was -- was taking place, but he continued to participate in the robbery while his confederate brandished the gun, he collected the money and so forth. And as far as your question about the practical problems, I think explaining to a jury what does it mean to facilitate the gun in a specific way during a crime like that is incredibly difficult. I mean, we say in the brief: What if you are exchanging the money while the other person is brandishing the firearm? Maybe that person--
Sonia Sotomayor: What is so hard about saying, did you have knowledge that the gun would be used, either -- and you facilitate -- but you continue to facilitate the crime?
John F. Bash: --We--
Sonia Sotomayor: --the underlying crime.
John F. Bash: --We agree that that is law.
Elena Kagan: Well, Mr. Bash, what about this case? Suppose that there are two guys and they are talking about committing a crime, and they have the same kind of conversation that Justice Alito was referencing, you know, one guy says I want to bring a gun, the other says, no, I think that's a really bad idea. But this time, the guy says: Okay, you've convinced me, it's a bad idea to bring a gun, I won't bring a gun. And so then they go out and they rob whatever they are robbing, and in the middle of it, you know -- or they do a drug transaction, and in the middle of that drug transaction the guy who said don't bring a gun looks over and he realizes that, notwithstanding the promise, his confederate did bring a gun. But there they are, they are in the middle of their drug transaction. So the guy, you know, they're right -- they are handing the money to each other and the guy keeps on doing it, all right? Is -- is that enough, even though, you know, there's foreknowledge, there's acts after he -- he realizes that the guy has a gun? Is that sufficient?
John F. Bash: If the gun is drawn and the person continues to facilitate the drug crime or the violent crime, that is enough.
Elena Kagan: Well, what exactly would you want him to do at that point to not be convicted of this, of this offense? Would you want him to just say, you know, sort of like drop everything, I'm out of there? Is that the idea?
John F. Bash: Yeah. Take this case. This is an $800 marijuana deal. It's a small-scale drug deal that happens all the time without firearms. As Mr. Elwood says, usually this kind of deal is not done with a firearm; only 5 percent of marijuana offenses have a firearm. Yes, if you are on that kind of small-scale deal and all of a sudden it becomes an armed offense, you do have an obligation to withdraw. Now, of course, I think you might have a duress defense if you felt like if I withdraw I'm going to get shot, or something like that.
Elena Kagan: Right. I mean, I guess that's the question: Is there always a reasonable opportunity to withdraw after you see that there's a gun in the offense that you didn't expect to be there? And do you think that there has to be a reasonable opportunity to withdraw, or would you say, no, everybody has a reasonable opportunity to withdraw all the time; you can just leave?
John F. Bash: Two points on that. First, I think a lot of that would come in through the duress defense. I mean, if you really feel like, oh, my God, this guy has a gun and he might shoot me if I withdraw, it can give a pretty solid duress defense. The other point I would say which is maybe a little tangential to the hypothetical, is there's a traditional doctrine of aiding and abetting law. This is at 2.06 of the Model Penal Code. It's in the LaFave Treatise and the Wharton Treatise, that if you countermand your assistance after you have assisted but before the crime is accomplished or completed -- for example, if your assistance was only encouraging and you start discouraging, or if you take all actions possible to prevent the crime -- for example, you assisted, you have a change of heart, you call the police to prevent the crime, you are not liable for aiding and abetting. And I think that reflects a broader point, which is that the traditional common law contours of aiding and abetting work pretty well with the contemporary purposes and problems that this statute was designed to solve. I mean, this is a statute about the mix of guns and drugs or guns and violence. And I don't see why Mr. Elwood contends that if you assist one side of that equation or the other it is a different result. I think if you assist either side of that equation, knowing that the equation is going to happen, by the principle, that is aiding and abetting. It's aiding and abetting under the historical test, I think it's aiding and abetting under this Court's cases, and I don't see why it would be a different result here.
Ruth Bader Ginsburg: Mr. Bash, would you explain why in this situation the guy abetted a drug deal when there was no drug deal? It had been thwarted. The drugs were stolen. They were not engaged in any attempt to sell the drugs. That was a failed attempt. So how is this done, abetting a drug deal, when the deal failed?
John F. Bash: Well, of course, the prosecution's principal theory was that he was the gunman; he brought it along to facilitate his drug deal. But assuming the theory of the facts that the gun was fired after Gonzales absconded with the drugs, I mean, I think one way to think about it is like this: Suppose that what had happened is that Gonzales had gotten ten paces, and Petitioner or Joseph had tackled him and immediately snatched the drugs back. I don't think this Court or courts generally would expect the government to charge two counts of possession with intent to distribute for that brief period in which someone snatches possession away and you get it. That wasn't certainly what the prosecutor thought here, and it's obviously not the issue in this case. The only way that question comes into this case is that Mr. Elwood is trying to say that the prosecutor understood that -- that you didn't need foreknowledge of the gun. And that's not what the prosecutor understood. The prosecutor understood that this offense could continue for at least some period after in which the Confederates gave chase to -- to reclaim the drugs. And that may have been a wrong theory, but no one below ever understood that you could be convicted if you didn't know of the gun until your participation ended. That's why Petitioner never objected on that ground, and that's why, of course, we submit that it should be reviewed for plain error.
Anthony M. Kennedy: And -- and you agree that for aiding and abetting, you must -- the gun offense, you must have knowledge that the gun is being carried by the cohort.
John F. Bash: Yes.
Anthony M. Kennedy: You agree with that.
John F. Bash: Carried or used, yes.
Samuel A. Alito, Jr.: Could the defendant here have -- could the defendant here have been convicted of possession of the ammunition on the theory that -- under the instructions -- would the instructions have allowed that conviction on the theory that the defendant aided and abetted somebody else's possession of the ammunition?
John F. Bash: I don't think so, because the judge never instructed that if you aid and abet, that's is the equivalent of constructive possession of -- of the bullets. And, in fact, I mean, what constructive possession means is that you have the ability to exercise control over this -- over the ammunition. So it doesn't gel with his theory that, oh, I didn't know about the gun until after the shots were fired. I mean, I don't think anyone thought that you could get a conviction because the shells were on the ground or something and you could pick them up after they were fired. The obvious view was that he was -- the person who shot the gun -- and at minimum, I think those convictions, because there were no aiding and abetting instructions on them, show that he must have known about the gun ahead of time if he could exercise, at minimum, constructive possession over the ammunition fired from--
John G. Roberts, Jr.: What -- what's the point of charging him with possession of the gun and possession of the bullets in the gun? It would seem to me that the proof would be pretty much the same.
John F. Bash: --The proof -- the proof was the same in this case. They didn't charge him with possession of the gun. They charged him with use or carrying during and in relation to the drug trafficking offense. And then there were two counts of possession of the ammunition, which were linked to his felony status and his alien -- unlawful alien status.
John G. Roberts, Jr.: Well, I guess, then, the question is: What's the point of charging him with possession of the bullets if you're not charging him with possession of the gun?
John F. Bash: It -- we could have charged him with possession as a felon. We didn't. It's not totally clear to me why we didn't. But we certainly could have charged him with being a felon in possession of a firearm in this case.
Elena Kagan: Mr. Bash, you know, what sticks in my craw a little bit about your position is this: Usually, we want punishments to -- two people and they do very different things and they have very different intents, we want them actually to be punished differently. And what you're suggesting is that there is -- let's say a crime, two people are involved in it. One person does almost everything. You know, he does 90 percent of the stuff. And the other person does just a little thing, but something, you know, that goes to the offense that helps facilitate the offense. But it's really pretty small compared to the overall crime. And then in addition to that, that person does not have really full-fledged intent, just has a kind of knowledge that this other person with real purpose of intent is going to bring a gun. So -- so, you have a lesser act and a lesser intent, and notwithstanding that, you're saying that the person ought to be punished in the exact same way as his confederate.
John F. Bash: We are saying that. I think that -- that -- that gels with the historic law of aiding and abetting, which, as Judge Friendly said in a case we cite in our brief, Garguilo, assistance of even slight moment counts. And--
Elena Kagan: But I just add, what I would have thought was that the actus reus can be very small, but almost to compensate for that, you have to have full-fledged intent. You have to have a really kind of purpose of -- a -- a purpose that the crime succeed as opposed to just knowledge of -- of what will happen.
John F. Bash: --Justice Kagan, I don't think that can be right for the examples I gave, paid accomplices that don't have a stake or the person who lends the gun to be a good guy. And let me contrast that -- I never got to this example -- with what a pure knowledge standard would look like. Suppose there was looting, and the defendant breaks into the -- a store to facilitate his own entry in the store to steal goods. But he knows there's 20 people coming behind him, and he has now facilitated their entry into the store, too. That is not aiding and abetting under our theory because he did not even bear the intent to facilitate, by which we mean the intent to make some step in another person's crime easier. He knew it would do that, but that was incidental to an intent to facilitate his own crime. So I do think the mens rea is significantly ratcheted up from what a pure knowledge standard would look like.
Anthony M. Kennedy: Would you agree that in order to show aiding and abetting -- and I'll just quote from a California case here -- that, "The aider and abetter has to have knowledge of the criminal purpose of the perpetrator and the intent to facilitate it? "
John F. Bash: Yes. I think what that formulation masks is exactly what intent to facilitate means, and I think that might be part of the disagreement among the parties. And what we say is that it means an intent to make some step in what you know is a crime that he intend -- the principal intends to do easier. And we think it's got to be that. That's also the formulation in the historical sources we cite at page 47 at Footnote 10 of our brief. It's either the intent to commit the crime yourself or knowledge that the other person has that intent. And I don't see how it can be anything else. I mean, if -- if you assist someone in a -- just to be a good person, not because you care if the crime succeeds, and if you ask them in -- with the truth serum, do you want the crime to succeed, you say, well, I'm totally indifferent to the crime.
Anthony M. Kennedy: Would you -- would you agree that the statement -- that the first part of the instruction that the district court gave, "defendant knew his cohort used a firearm. " is inaccurate? Is incomplete?
John F. Bash: Not--
Anthony M. Kennedy: Potentially misleading?
John F. Bash: --In isolation, potentially misleading. I think in context, how reasonable jurors would understand this and how the parties understood it, because nobody raised an objection to this below, I think they understood that your knowledge had to arise before your completion--
John G. Roberts, Jr.: You would--
John F. Bash: --of your participation in the offense.
John G. Roberts, Jr.: --You would never -- if you got a call from the U.S. -- assistant U.S. attorney in the field said, this is the instruction I'm going to use, you would tell him, no, don't do that.
John F. Bash: We -- we wouldn't. But the reason this Court has -- or the reason courts generally have objection rules is when questions about particular verb tenses and phrasings arise, the defendant or one of the parties is supposed to actually object to that in the district court. That didn't happen here.
John G. Roberts, Jr.: No, I know you have arguments about failure to object and harmless error. But on the substance of it, you think the instruction -- you would never counsel someone to give that instruction.
John F. Bash: Well, I think as we said in the brief, it would have been clearer to say “ would use ” or something that -- that makes absolutely clear that you required foreknowledge. I think if the Court has questions about this sort of case-specific issue along with the forfeiture and waiver and harmless error and plain error issues, it could do this, and this would be a sensible result, it could clarify, one, facilitation with respect to either conduct element is enough as far as actus reus. Two, the intent to facilitate means an intent to make some step in that crime easier combined with knowledge that the principal bears the intent to complete the crime. And then it could remand to the court of appeals to say, sort out whether this instruction was wrong, whether that objection was forfeited, whether harmless error or plain error concepts come in here.
Antonin Scalia: Why -- why do you say -- you say in context, it was okay. What -- what context?
John F. Bash: The -- Justice Scalia, the instruction -- or part of the same instruction, the paragraph immediately before just mirrored--
Antonin Scalia: That's it? Just that? "In order to aid or abet another to commit a crime, it is necessary that the defendant willfully and knowingly associated himself in some way with the crime. "
John F. Bash: --Well, to help make the crime succeed. And I think a reasonable person reading that would not think I helped make -- helped make the 924(c) crime succeed if I didn't even know about the gun until I was after doing -- I was done doing whatever I was going to do. And I also point the Court to page 194, which makes clear that “ knowingly ”, in that second part of the instruction, is defined as voluntarily and intentionally. So you certainly had to intentionally participate in the drug trafficking crime. And that -- part of the context, as this Court has said, is also just--
Sonia Sotomayor: Knowing that a gun would be used. You had to intentionally participate knowing that a gun would be used.
John F. Bash: --Basically a slight tweak, which is knowing that the principal bore the intent to use a gun. Obviously, you can't know the future. It's that you know that the principal bore that intent, which is a little bit different, but I think we're saying the same thing.
John G. Roberts, Jr.: I -- I don't see how “ make the crime succeed ” helps you because you would say the crime that he has to help make succeed is the underlying drug offense, not the use of the firearm.
John F. Bash: No, Mr. Chief Justice, we wouldn't say that. This umbrella instruction applied to Count 1 and 2. The crime you're help making succeed is 924(c). What I was saying earlier was that, what does it mean to help make a crime succeed? It makes -- it means intent to make one -- at least one step in that crime easier, knowing the other person bore the intent to do the crime. And I think that's how we normally think about it. If there's an armed robbery, and you say, well, I'll drive the getaway car, I think you would naturally say in ordinary English you intended to help make that crime succeed even if you didn't bear a specific intent with respect to the gun. I certainly think on -- you know, if this had been objected to below, it might be a different matter with Mr. Elwood, but he did not object to this below. He didn't -- he didn't raise this -- this wording issue even in the court of appeals. He raised a sufficiency challenge with respect to foreknowledge. But he -- even in his court of appeals brief, he didn't say that the instructions in this case were wrong because it said “ used ” versus “ would use ”. So I don't think the issue is properly here, but I think it would be a sensible resolution if the Court were to remand these case-specific issues after clarifying the basic standard of aiding and abetting to the court of appeals to work through the forfeiture and waiver of harmless error and so forth. If there are no further questions.
John G. Roberts, Jr.: Thank you, counsel. Mr. Elwood, you have four minutes remaining.
John P. Elwood: Thank you, Mr. Chief Justice. One point that I want to emphasize is a point made by Justice Kagan, which is that traditionally because the actus reus is relatively small for aiding and abetting cases, that is exactly why courts have adopted a standard of purposeful intent. And they have said that because the act of an accomplice tends to be less harmful and tends to be more equivocal than that of the principal, that they ordinarily require purposeful intent. And as Professor Wayne LaFave said, who obviously doesn't have a stake in the case: "Liability has seldom been imposed on the basis of knowing assistance. " "The background rule is that it has to be purposeful intent. "
Stephen G. Breyer: What cases should I look up for that?
John P. Elwood: I think--
Stephen G. Breyer: That is to say, I thought generally in the criminal law a person who commits an illegal act is liable for the known consequences of that act. That is the general rule. I can't think -- I mean, people use all kinds of terminology, different kinds of terminology, but I thought that's the basic principle.
John P. Elwood: --The standard for accomplice liability requires purposeful intent. It's generally--
Stephen G. Breyer: When you say “ purposeful intent ”, He didn't want it, but he knew it would happen.
John P. Elwood: --It was his purpose--
Stephen G. Breyer: And moreover, he helped to produce the occasion on which it would happen.
John P. Elwood: --It was his purpose for doing it. And the cases you can look at are Nye & Nissen--
Stephen G. Breyer: Would you just tell me where in the brief they are, or whatever's easier.
John P. Elwood: --I mean, Nye & Nissen, the -- Nye & Nissen, which is a case of this Court from 1949, where the Court adopted the standard from the Learned Hand Peoni, that adopted the purposeful intent standard. And Peoni is obviously a very important case as well. But Hicks. In Hicks, in 1893 this Court reversed a conviction because the jury instruction did not require proof of intent to encourage the crime.
Stephen G. Breyer: You use the word “ intent ”. Some people used it in order to encompass the situation--
John P. Elwood: Right.
Stephen G. Breyer: --of the known but undesired consequence.
John P. Elwood: Right. But the Court went on to say that action for any other purpose, even if with the -- even if it had the effect of encouraging--
Stephen G. Breyer: It's language. I am sure you will find language. I want really an instance where the holding of the case is that a person who commits an unlawful action with knowledge that the other unlawful action will occur is not liable for it.
John P. Elwood: --I would--
Stephen G. Breyer: You know, blowing up the carriage and you kill the maid, who you didn't want to kill. You are liable.
John P. Elwood: --I would point you--
Stephen G. Breyer: Which one is it?
John P. Elwood: --I'm sorry to LaFave -- I'm sorry, I don't have a case off the top of my head. I know that they state the principal. But LaFave in Chapter 13.2 collects cases and he makes the point there that liability has seldom been imposed on the basis of knowing assistance for aiders and abetters. You have to have purposeful intent--
Stephen G. Breyer: LaFave.
John P. Elwood: --LaFave, Wayne LaFave.
Stephen G. Breyer: LaFave.
John G. Roberts, Jr.: Counsel, do you have anything for us on Rule 30?
John P. Elwood: You know, on Rule 30, I won't pretend that it was a model of clarity in preserving the error about after-arising intent. But I will say that there is no contrast. I mean, that is to us just a sign of how messed up the jury instructions are. But we did preserve, we say, our objection both with respect to the absence of facilitating the right offense, and the intent to commit the crime as opposed to knowledge that the gun would be used. And so--
John G. Roberts, Jr.: How did you preserve that objection?
John P. Elwood: --With respect to intent, by objecting to their instruction on the basis that it didn't include intentional facilitation of the 924(c) offense. And if there are no further questions, we will rely on our submission.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


William H. Rehnquist: submitted We'll hear argument next in Number oh oh twelve forty-nine, Caren Cronk Thomas and Windy City Hemp Development Board versus the Chicago Park District. Mr. Wilson. [Inaudible]
Richard L. Wilson: Mr. Chief Justice, and may it please the Court, in the unanimous opinion in Freedman versus Maryland this court stated that when the government imposes a permit requirement on the exercise of free speech, that permit scheme must include certain procedural safeguards which are there, quite obviously, to prevent the unwarranted and perhaps unlawful delay or suppression of speech that might occur without them. [Inaudible]
William H. Rehnquist: Well, Freedman was q- a quite different case from the present one. D-, You agree with that, don't you? I mean, there you're talking about some form of censorship. Here you're prob- talking about a permit to use a park that one-, a lot of other people want to use.
Richard L. Wilson: While I agree that there's a difference between the two cases, this case begs for more protection than the speech involved in Freedman. Because after all, the Freedman case was specifically specifically arose from a censorship scheme which was aimed at sexually explicit speech. This is a case involving core political speech. And although...
Richard L. Wilson: the... Well...
Sandra Day O'Connor: is this...
Sandra Day O'Connor: content neutral...
Speaker: in your...
Sandra Day O'Connor: in your view, the regulation?
Richard L. Wilson: I I believe that the regulation in this case is content...
Speaker: neutral.
Richard L. Wilson: It is rife with the opportunity to make viewpoint based decisions, but not on its face.
Anthony M. Kennedy: Well I I I I h- h- h- have to say that I, in thinking about the case, I suppose analytically this is a prior restraint.
Richard L. Wilson: Justice Kennedy, with respect, I could not disagree with you more, and I think we can look at a few cases to show that this is surely a prior restraint case, and the one that comes to mind most readily is where that exact same question was presented to this Court when, in FW PBS versus The City of Dallas, the Fifth Circuit had held that the Dallas licensing scheme, which was content-neutral, period, in all regards, which a content-neutral licensing scheme licensing sexually oriented business in Dallas, was a time, place, and manner restriction, and this Court rejected that approach and said, first we find that it is an unlawful prior restraint, and therefore...
Speaker: it is...
Sandra Day O'Connor: I think your premise may be one that w- we're going to have trouble adopting.
Richard L. Wilson: Justice O'Connor, there's no indication in this record or in any...
Speaker: situation that I'm aware of...
Sandra Day O'Connor: answer whether that is possible, under First Amendment time, place, and manner doctrine.
Speaker: Is that not possible?
Richard L. Wilson: Certainly, Justice O'Connor, that's possible.
Speaker: But aren't you...
Ruth Bader Ginsburg: the standards there was a list of thirteen, and they seem to be reasonable, fairly cle- clear standards, and you are coming to us with a facial challenge, and are we to project that those standards will not work properly? You're not coming to us with any concrete case.
Richard L. Wilson: Justice Ginsburg, the record in this instance is a solid, concrete case.
Ruth Bader Ginsburg: And then he was granted it, as I understand it.
Richard L. Wilson: Mr. McDonald never received a permit.
Speaker: for permit...
Ruth Bader Ginsburg: conduct his expression.
Speaker: He was allowed...
Richard L. Wilson: to conduct a spontaneous rally on a very limited basis.
Speaker: no structures.
Ruth Bader Ginsburg: in the list that we have are functions that were being held at the park.
Richard L. Wilson: One of the events in the lodging material?
Ruth Bader Ginsburg: Yes.
Richard L. Wilson: Yes, that is true.
Speaker: to go some place else.
Speaker: In any...
Anthony M. Kennedy: point remains that I I I just think you overstate the case when you tell us this is a Freedman case.
Speaker: Now...
Richard L. Wilson: I think clearly it's a prior restraint.
Speaker: I mean, there are two...
William H. Rehnquist: disagree with Justice Kennedy's suggestion.
Richard L. Wilson: Mr. Chief Justice, from Neer versus Minnesota forward, the Court has said that when speech is prohibited in advance, that is a...
Speaker: prior restraint.
William H. Rehnquist: Neer was the shutting down of an, a padlocking of...
Speaker: a newspaper of a private...
William H. Rehnquist: y- the the the shoe is on the other foot here.
Richard L. Wilson: My problem with that, Mr. Chief Justice, is not that you have to get in line with other people and and share the use of the park, which was Justice O'Connor's concern when she posed the time, place, and manner re- question.
Speaker: line will be silent...
Sandra Day O'Connor: language of, may grant, is something that allows too much discretion? Is that your complaint?
Richard L. Wilson: It is one of our...
Speaker: complaints, and s- even that...
Sandra Day O'Connor: read may as shall grant, if these conditions are met?
Speaker: Well, it says, it says may deny is what it says.
Sandra Day O'Connor: but maybe it mean means that the permit must be granted if the categories are met.
Richard L. Wilson: But that's not what it says, Justice O'Connor.
Speaker: creates the potential...
Antonin Scalia: You agree it must be granted if the conditions are met.
Richard L. Wilson: Correct.
Antonin Scalia: You you you agree that if the conditions are met, your, if your client meets all the conditions, he gets in.
Richard L. Wilson: I agree with that, Justice Scalia.
Speaker: What I...
Antonin Scalia: client doesn't meet some of the conditions, he may not be allowed in, whereas somebody that the park district likes more will be allowed in.
Speaker: That's what your complaint,
David H. Souter: That same thing was true, wasn't it, in Poulos? I mean, the language in Poulos was even more protean than the language in in in in the may phrase.
Richard L. Wilson: I think Poulos w- would have been decided differently by this Court...
Speaker: had the...
David H. Souter: got to overrule it to...
Speaker: to hold...
David H. Souter: your way.
Richard L. Wilson: Had had the had the had your had your court, the supreme court of New Hampshire, not construed that statute in such a limiting way to say that if you apply for a permit under Poulos and under Cox you get the permit, there was no discretion to deny, and in the opinion that this Court wrote in Poulos, it pointed that out, that that cured the problem in that case, and I think realistically this Court has recognized...
Speaker: the...
David H. Souter: wasn't the discretion left the same discretion, in effect, to evaluate facts, and to act based upon that evaluation which the Chicago scheme allowed Chicago?
Richard L. Wilson: My understanding of that case is that after the construction of the Hamp- the New Hampshire Supreme court placed on it, that became part and parcel of the statute, and even though the statute retained the discretion, it had authoritively[:authoritatively] been limited by the New Hampshire Supreme Court, so the discretion was gone by judicial act and not by legislative change.
Antonin Scalia: The discretion was gone to deny somebody who met the conditions?
Richard L. Wilson: Yes, sir.
Antonin Scalia: But there, was there no discretion to grant someone who did not meet the conditions? Did the s- New Hampshire supreme court speak to that?
Speaker: Well, the interesting...
Antonin Scalia: the latter that you're complaining about, not...
Speaker: the former.
Richard L. Wilson: By the way, Justice Scalia, there's another aspect of your inquiry, a- and we both agree, obviously, that if you meet the qualifications, you're entitled to the permit.
Speaker: But that didn't...
Ruth Bader Ginsburg: but that didn't happen, and you you say you give us this one instance.
Richard L. Wilson: First, in direct answer to Justice O'Connor's inquiry, a scheme that says you may not obtain a permit for an event at a day and time for which another permit has already been issued, no question.
Anthony M. Kennedy: W- well but of course that s- that assumes that you're going to have a permit scheme.
Richard L. Wilson: I'm sorry, Justice Kennedy.
Anthony M. Kennedy: That that that assumes that you can have a permit scheme.
Richard L. Wilson: Surely you can have a permit scheme.
Speaker: can have a...
Anthony M. Kennedy: the what what what the requisites are for the permit scheme.
Richard L. Wilson: i- i- The question may well be, when can you lawfully deny a permit for free speech under this under a permit scheme in what is the traditional public forum, a public park, and what is the most precious of speech, core political speech.
William H. Rehnquist: Well, you're saying the most precious speech.
Speaker: No.
Richard L. Wilson: No, Mr. Chief Justice.
Speaker: or at another location.
Antonin Scalia: before the board.
Speaker: It would seem...
Antonin Scalia: positing a situation in which somebody has already been granted a permit for the time.
Richard L. Wilson: A first come, first serve rule would certainly help the situation and, of course, these permit applications are dated, time-dated and time-stamped when they are submitted, but there is no requirement that it be first come, first serve.
David H. Souter: Okay.
Richard L. Wilson: Well, obviously it's a very difficult question on facts which might never, ever occur, and I'm not claiming that when the park district is making a decision on whether to issue a permit, for space A on day A, it has to look at these permits and say, oops, political speech, first in line,
Speaker: and that's the diff-
David H. Souter: If it doesn't say that, doesn't it retain exactly the discretion that you're complaining about?
Richard L. Wilson: No, sir.
Speaker: hypothetical  assumes...
David H. Souter: we've got the collision at the door.
Richard L. Wilson: Well, I would certainly think that this case need not turn on on that somewhat...
Speaker: unlikely occurrence.
David H. Souter: I'd like to know what the principle is that you want us to apply, and I think the principle that you want to us to apply means that when they, that when they bump each other's foreheads at the door, political speech has got to win, or there's an unconstitutional discretion left, amounting to the possibility of a prior restraint.
Richard L. Wilson: I believe that's wrong because well, first of all, a- again, we're not going to find that situation, but let's assume we did, and they bump their heads on the way in.
Speaker: Yes, but you just keep...
David H. Souter: changing the hypothetical.
Richard L. Wilson: When first come, first serve does not work?
David H. Souter: Yeah, the hypo.
Richard L. Wilson: It would seem that as long as the event is suitable for that particular park, first come, first serve should always work.
William H. Rehnquist: But by hypothesis, Justice Souter's question is that you can't apply it here because they both came at the same time.
Richard L. Wilson: Well ju-
Antonin Scalia: You don't have an answer for that, right?
Speaker: Y- You don't have an answer for that situation. Okay. Yeah,
Antonin Scalia: yeah, but you think first come, first serve is a is a thoroughly reasonable rule.
Richard L. Wilson: I do.
Speaker: But you're going to tell us that, your brief tell us that...
Antonin Scalia: When when when when Pope Paul visited John Paul visited Chicago there there was a rally, or a gathering in the Chicago parks.
Richard L. Wilson: Justice Scalia...
Antonin Scalia: So that it it finds, gee, you know, the Pope is only going to be here one day, and y- you know, ma- may- maybe maybe we can have this this...
William H. Rehnquist: Hemp concert...
Antonin Scalia: Hemp concert later, yeah.
Richard L. Wilson: One one would assume that...
Speaker: the holder...
Richard L. Wilson: the holder of the permit would be reasonable in accommodating...
Speaker: such as an extraordinary event as this, and if...
Antonin Scalia: No, no, no this is an unreasonable...
Richard L. Wilson: I've met them.
Antonin Scalia: Well, it's it's not Pope John Paul, it's the Beatles, and the Beatles are only going to be there for one day.
Richard L. Wilson: No, sir, and that's why I believe that a first come, first serve rule is going to be reasonable in almost all...
Speaker: situations.
Anthony M. Kennedy: your your brief, you say that even under the first come, first serve rule the Government has the obligation to go to court to validate the permit, under Freedman, and I I just don't get that out of our c-, that's a sure, that's what Freedman said, but Freedman was a very special case, and a time, place, and manner regulation for a park is not.
Richard L. Wilson: Well, of course, Freedman ha-, I mean, that they analysis from Freedman has been used in non censorship cases, but in that case the Government needs to bear that burden.
Speaker: It's a...
Ruth Bader Ginsburg: Where? You say, the Government goes to court.
Richard L. Wilson: No question, of course, the Supremacy Clause makes Freedman applicable to that State court, but the likelihood that an individual is going to insist on going forward with judicial review when his permit was denied because another permit had already been issued is slight.
Speaker: No, but I'm asking you...
Ruth Bader Ginsburg: I asked you before, what is the scheme that you said would be constitutional, and one part of it surprised me.
Richard L. Wilson: The problem with that, we have brought a facial challenge in this case because of the difficulty, every single time one is refused a permit, in going to State court or Federal court and litigating whether that particular denial was appropriate, and the medicine here is to get rid of the bad ordinance which allows inappropriate and content-based, or viewpoint-based decisions behind closed doors, even if they are not authorized on the face of the scheme.
Speaker: Do you know any park district...
Ruth Bader Ginsburg: that does it that way?
Richard L. Wilson: Well, some have to now.
Speaker: The govern-
Ruth Bader Ginsburg: a business, a permit to operate a business, not to hold an event in a public park.
Speaker: Well, I would...
Richard L. Wilson: suggest, Justice Ginsburg, that a permit to hold a core political speech rally in a public park deserves at least as much protection as the permit to operate an adult...
Speaker: bookstore.
Speaker: for content neutral...
Speaker: cases there. I say you're, I think...
William H. Rehnquist: you're wrong under our cases there.
Richard L. Wilson: But this Court has said that in cases of public parks, the power of the Government to restrict free speech activity is as, at its most circumscribed.
William H. Rehnquist: And where did we say that?
Richard L. Wilson: We said that in Hague versus you said that in Hague...
Speaker: versus CIO...
Richard L. Wilson: But no one has ever suggested, Mr. Chief Justice, that that is not the law today, and indeed, that one quotation from Hague appears in core political speeches through this day, and it is one of the most oft-repeated...
Speaker: statements from the cases.
William H. Rehnquist: valid today.
David H. Souter: But isn't isn't your argument for applying it this.
Richard L. Wilson: No, it is not, s- Justice Souter.
Stephen G. Breyer: That's that's why I the there's no need to retreat from Hague, I wouldn't think.
Richard L. Wilson: Justice Breyer, i- in order to do that it would seem that this Court would have to retreat from what it said in Forsyth, in which it stated that when a prior restraint in the form of a permit to conduct a political event in a public forum is involved, a facial challenge is appropriate,
Speaker: and the court...
Stephen G. Breyer: nobody denies you can make the challenge.
Richard L. Wilson: My answer is that this is a particular situation where facial challenges are appropriate.
Speaker: stand I...
John Paul Stevens: one question about your rule about priorities, the, and it's the basic rule.
Richard L. Wilson: Content of the speech.
John Paul Stevens: One is a one is a baseball game, another is a concert, another is is a lecture on on dinosaurs, and another is political speech.
Richard L. Wilson: If there are competing applications and one of them is a free speech event and one of them is a softball game, and the decision is made based on what the free speech event is urging, what the message is, that is entirely inappropriate.
John Paul Stevens: It, if you....
Speaker: I agree completely.
John Paul Stevens: But just supposing all you know about it is, they want to make s- it's a political rally of some kind on the one hand, baseball, music, all those can the content, without any hostility to the particular message, be one of the criteria that can can break ties?
Richard L. Wilson: If your question assumes that each of those events would be appropriate for that specific...
Speaker: location...
Richard L. Wilson: then no.
Speaker: I'd like to reserve the remainder of my time.
William H. Rehnquist: Mr. Strauss, we'll hear from you.
David A. Strauss: Thank you, Mr. Chief Justice, and may it please the Court.
Speaker: has been...
John Paul Stevens: the earlier application to be accepted,
Speaker: at least not as I read it.
David A. Strauss: Well, first come, first serve if the application is is valid, yes.
John Paul Stevens: It is required to be accepted? W- Which one of those says that.
David A. Strauss: Well, it- i- the a valid applica-, a fully executed prior application for a permit has been received, and a...
Speaker: permit has been granted...
David A. Strauss: That's a reason for denial,
Speaker: right.
John Paul Stevens: doesn't say the converse, that it must be accepted if it's earlier.
David A. Strauss: Well, the a the , the only ground for denial there are other ground- possible grounds for denial, but one ground for denial is someone was there first.
Antonin Scalia: Well, it it works out that way because of the provision that says applications shall be processed...
Speaker: in the order of receipt.
Speaker: So will effectively be...
John Paul Stevens: I don't see I really don't see it, and I'm not sure it's commanded, either, but...
Speaker: I guess...
John Paul Stevens: Do you think that that's constitutionally required that it be a first come, first serve rule?
David A. Strauss: Well, it is our system, Justice Stevens.
Antonin Scalia: Can you ask for the park three years in advance?
David A. Strauss: My understanding, Justice Scalia, is that we have a practice, although I don't know if it's in, if it's written down anywhere, of not accepting applications for more than some period of time in advance,
Speaker: I think six months.
Speaker: There's some some provision...
Sandra Day O'Connor: whole scheme is written on the basis that the permit may be denied, and there are a set of criteria, but it doesn't appear to be any affirmative requirement that anything be granted if it meets all the requirements.
David A. Strauss: Oh, Justice O'Connor, we we we do have to grant it if it meets those requirements.
Sandra Day O'Connor: May deny.
David A. Strauss: may deny is an authorization to the park district to deny in these circumstances.
Speaker: And not otherwise.
Sandra Day O'Connor: And and it doesn't do anything to govern how you grant competing applications, other than the fact that you say there is some kind of built in first come, first serve basis.
David A. Strauss: The way the competing applications are handled is on a first come, first serve basis.
Anthony M. Kennedy: One one of the objections made by the petitioner was that either in this case or, reading the regulations, you don't have to give written reasons.
Speaker: respond to that.
David A. Strauss: Justice Kennedy, we do provide reasons.
Speaker: That was my and you did in this case?
David A. Strauss: Yes, we did, in this case.
Speaker: This is...
Anthony M. Kennedy: based on on previous damage and material misrepresentations in the earlier...
David A. Strauss: That's right.
Speaker: application.
Anthony M. Kennedy: regulations require that you give the reasons?
David A. Strauss: Yes, they do.
Anthony M. Kennedy: Thank you.
David A. Strauss: It then goes on to say that where feasible, thif- if there is a com- if there is a competing use the park district will propose a way to accommodate the accomodate the use.
David H. Souter: Could you explain the the degree of discretion to grant, in the event that the conditions are not satisfied?
David A. Strauss: Yes, Justice Souter.
Speaker: And the park district's -- Late.
David A. Strauss: A late application, application that's not submitted.
David H. Souter: Would there have been discretion in this case? Regar- Let's assume the only prior violation had been the the the fact that if that earlier gathering people were still hanging around at eleven o'clock, after the park or after eleven when the park closed.
David A. Strauss: Yes, there would have been, if we had concluded that if if if the applicant said to us something that gave us reason to believe it wouldn't happen again, or if the nature of the event were such that if was scheduled earlier in the day, or something like that, that it wouldn't happen again, or if it happened again it wouldn't be so much of a problem, but we don't assert, and I don't think you can assert, consistent with the ordinance, a kind of free floating discretion to overlook violations for people we like and not for people we don't like.
Sandra Day O'Connor: Does the record tell us how many permits are granted and how many denied each year...
Speaker: by the park?
David A. Strauss: Justice O'Connor, on the grants, the record, the the most precise number we have in the record is there are thousands of applications and thousands of grants a year.
Speaker: How about denials?
David A. Strauss: Denials, Justice O'Connor, is a hard number to come up with, and this bears on the Freedman versus Maryland point, because what often happens is that the denial takes the form of saying, well we can't accommodate you at this space at this time, but if you're willing to move your event a week later, or willing to move it to this alternative site, then we can accommodate you.
Speaker: not involving speech.
Sandra Day O'Connor: a permit was denied to Mr. McDonald based on some prior event where people stayed after eleven o'clock.
David A. Strauss: Justice O'Connor, it was denied for multiple reasons.
Speaker: There was also...
Sandra Day O'Connor: administrative mechanisms in place for someone who wants to challenge the basis for the denial...
Speaker: Yup-
Sandra Day O'Connor: administratively?
David A. Strauss: Yes, there is, Justice O'Connor.
David H. Souter: I take it that's the second distinction from Freedman.
David A. Strauss: Well, the second distinction Freedman while that that is a distinction, Justice Souter, but the second distinction really is that a a a key premise of Freedman is that the decision in question was one that the courts had superior competence to make, and that the agency was to be distrusted in making.
Speaker: participation...
David H. Souter: Does the same problem get injected by the exception clause in the ordinance, that in fact they can waive conditions if there would be a First Amendment violation?
David A. Strauss: Justice Souter, that that clause, t- two two things about that clause are are salient, I think.
Speaker: and the second thing...
David A. Strauss: Which happened here.
David H. Souter: And the third distinction that you want to rely on?
David A. Strauss: The third distinction, Justice Souter, is that in the Freedman context the Court had indicated a strong preference for after the fact regulation, that if the co- if a community is concerned about obscenity, the way to regulate that is by after the fact criminal prohibitions.
Ruth Bader Ginsburg: Mr. Strauss, you've ably distinguished Freedman, but do you think that none of the procedural safeguards that were involved in Freedman are applicable here, from here starting with the basic, the the administrator has to have some time limit to act on these petitions to hold events?
David A. Strauss: Justice Ginsburg, I would put that part of Freedman in a different category.
Anthony M. Kennedy: I I think there's considerable merit, what you have just said, although at the end of your brief you you make the final argument that this is really not a speech statute anyway.
David A. Strauss: Yes.
Speaker: which, of course...
David A. Strauss: Or a zoning permit, variance of some kind, which, of course, apply to expressive activities, but to a lot of other activities, too.
Speaker: I suppose the easy way to answer...
Anthony M. Kennedy: that argument is to say we've never done this with reference to parks.
David A. Strauss: Well, that's right, Justice Kennedy, but as some of the questions from the Court suggested during my colleague's argument, because these are parks, perhaps the Government has more leeway than it would have in telling people what they can do on their own property.
Ruth Bader Ginsburg: But you did say that you you feel some impulsion from the First Amendment to have a, have to make a decision within a set time to guard against abuse of discretion.
David A. Strauss: Justice Ginsburg, I think well, for anyone claiming a violation of a constitutional right, there should be an avenue for prompt judicial review, and I , further, I think that part of Freedman is intended to deal the situation like that present in some of this Court's cases, in FW PBS and in Shuttlesworth in particular, a situation where the applicant can't be quite sure when the permit's been denied, so so so the applicant doesn't quite know when it's okay to go to court.
Speaker: ways. It can also be challenged...
John Paul Stevens: you have those provisions in means it's a little different from the ordinary zoning ordinance or business license, because those are all motivated by c- First Amendment concerns, I assume.
Speaker: prior restraint? Or are you just ducking the issue?
David A. Strauss: No, Justice Stevens, I don't I don't I wouldn't I wouldn't want to duck the issue.
Sandra Day O'Connor: So if s- if something like this is to be considered valid, what are the limits to make it reasonable as a regulation? We've already mentioned prompt action should be required, perhaps, by the park.
David A. Strauss: If the Court does not accept our argument that this is more like a business license,
Speaker: [Inaudible]
David A. Strauss: then yes, prompt action or a specified time for action by...
Speaker: the administrator.
David A. Strauss: And an opportunity for prompt judicial review, that's right.
Speaker: Otherwise, just, I'm sorry...
Ruth Bader Ginsburg: adequacy of judicial review? I take it one objection was that you don't get any actual hearing in court.
David A. Strauss: Justice Ginsburg, my reading of the Illinois cases is that that's not true even in State court and, of course, the pet- the applicant has the option of going to the Federal court.
William H. Rehnquist: Thank you, Mr. Strauss.
James A. Feldman: Mr. Chief Justice, and may it please the Court.
Sandra Day O'Connor: Well do you think we should view it as Mr. Strauss urges, as a zoning ordinance, or a business license, or as some kind of content-neutral time, place, and manner restriction?
James A. Feldman: I I think more the latter.
Antonin Scalia: It would make it a lot fairer, wouldn't it? I mean, if if, you either meet the criteria, or you don't.
Speaker: The a- the the problem would be exactly the...
James A. Feldman: kind of thing that Mr. Strauss described, is that if there is a minor if if you put in your permit application slightly too late, or there was a stray mark on your application, requiring total strictness on any of these criteria would just mean that people who really should be entitled to have the opportunity to speak...
Antonin Scalia: Well, they didn't foll- follow the rules.
James A. Feldman: But I think...
Speaker: Why don't you just say, these are the rules,
Antonin Scalia: if you come in late, you haven't complied with the rules, period.
James A. Feldman: I think as I think as Mr. Strauss I think it was Mr. Strauss said, the the the the that is whatever the flexibility or discretion that remains in a system like this would be exe- has to be exercised in accordance with those grounds for denial.
Speaker: you can...
Antonin Scalia: How do you say it doesn't frustrate the purpose of of the provision which says, you know, the the thing has to be in, you know, two weeks beforehand, if you get it in one week beforehand? How can you possibly say that doesn't frustrate the the purpose of the provision? The purpose is to give you two weeks to consider it.
James A. Feldman: Right, but I I think well, you could, it could well be that the purpose is to make sure that the park district can guarantee it can consider it, but if they if it comes in on a day, one day late but there's nothing else on top of it that they're waiting to consider, if it's in the wintertime when they have very few permit applications, they can get to it anyhow, and there's no reason for them not to permit that use of the park.
Speaker: In any event, that's...
David H. Souter: from that, I assume there's no way to write a regulation that is not going to require some some judgment, some discretion.
James A. Feldman: I I think that's right, and I think a crucial feature of this requirement is that, if, of the ordinance here is that the parks are used for multiple uses by multiple people.
Speaker: Would it be...
James A. Feldman: That should be addressed on a on a on an as applied basis, and and I think it could be in the State court proceedings, or in a nineteen eighty-three proceeding.
Anthony M. Kennedy: Along the lines of Justice Scalia's question, would it be proper for a city council or municipality to draft an ordinance just like this one and then, then at the end saying, the commissioner of parks, in his sole discretion, may waive any or all of the foregoing requirements?
James A. Feldman: I think the the only difficul- it would depend on what that meant.
Anthony M. Kennedy: Well, we've said in in a case like Forsyth that the s- discretion has to has to have s- h- have some definition and some control to it, and if you have at the end an an absolute waiver provision, s- it seems to me that would contradict that.
James A. Feldman: Oh, I I think well, I think that's right.
Speaker: guided...
Antonin Scalia: How do, where where does it say that that the may, the may grant anyway is limited to those applications that generally meet the purposes of the st-, where does it say that? Do we just take your word for it?
James A. Feldman: Well...
Speaker: Or or the park district's word for it?
James A. Feldman: I think that that would at least be the most reasonable construction of an ordinance like this, where there's a- a- attempt to detail these thirteen specific criteria quite specifically, and there's no suggestion that there's any other basis on which the park district can act, and it it, I I think that that's just the most reasonable interpretation of this kind of ordinance.
Speaker: to all.
Ruth Bader Ginsburg: Federal regulations for the use of Federal parks, the use of the Mall, do they differ with respect to the may deny?
James A. Feldman: No.
Speaker: But there is the...
Ruth Bader Ginsburg: the may deny, implying that there are cases where, although you could, you don't have to deny?
James A. Feldman: That's correct.
Antonin Scalia: And and no criteria for the waiver in the Federal s-
Speaker: in the Federal scheme either?
James A. Feldman: way those are, have consistently been applied is, those are the grounds that are suppose, to be considered i- in determining whether you can grant a permit, and there aren't other grounds on which a permit would be denied.
Antonin Scalia: And and i- is there a first come, first serve rule?
James A. Feldman: Basically, yes.
William H. Rehnquist: Thank you, Mr. Feldman.
Richard L. Wilson: Justice O'Connor, I'd like to address quickly two points that you raised.
Speaker: prompt judicial review...
Ruth Bader Ginsburg: does that mean if you pick the Fede- Federal court, that Illinois is going to write a statute that says, and if you choose to come to the Federal court rather than the State court, the Federal court is going to have X number of days to decide it?
Richard L. Wilson: Justice Ginsburg, that would be the choice of the park district of the City of Chicago, because the park district is the is the party that has to go to court to seek...
Speaker: Oh, if if...
Ruth Bader Ginsburg: you're but that's not what Justice O'Connor said in in her case.
Speaker: take that last part of Freedman.
Richard L. Wilson: But there's certainly a distinction between those businesses that Justice O'Connor was writing about in FW PBS and a...
Speaker: core political speech.
Ruth Bader Ginsburg: your notion that the scheme is invalid unless the park goes to court, and the court has a tight time line?
Speaker: We...
Richard L. Wilson: I would then say, Justice Ginsburg, that this Court has elevated the kind of sexually explicit speech in that case above the core political speech in this case, based on the content of the speech, which would fly in the...
Speaker: face of...
Ruth Bader Ginsburg: follow that at all.
William H. Rehnquist: Thank you, Mr. Wilson.
The Marshal: The honorable court is now adjourned until tomorrow at ten o'clock.