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tv   Politics and Public Policy Today  CSPAN  November 28, 2016 8:00pm-12:01am EST

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on the issues and something that i think developed the issues with the perspective from the government and from the private sector. so thank you very much for coming. please join me in thanking the panelists. [ applause ] >> and we will have a reception we're asking students to participate in this year's student cam documentary competition by telling us, what is the most urgent issue for our next president, donald trump, and incoming congress to address in 2017? our competition is open to all middle school and high school students, grades 6 through 12. students can work alone or in a group up to three to produce 5 to 7 minute documentary on the issues selected. a grand prize of $5,000 will go to the student or team with the best overall entry. $100,000 in cash prizes will be awarded and shared between 150 students and 53 teachers.
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this year's deadline is january 20, 2017. that's inauguration day. for more information about the competition, go to our website, tonight on c-span 3, former iowa senator tom harkin talks about the way food is marketed to children and how to encourage healthier eating. that's followed bay discussion on the news media and its depiction of domestic terrorist attacks. and later, supreme court oral argument in a case that will decide whether someone has the right to sue police officers for alleged false arrest and detention. former iowa senator tom harkin was the keynote speak eater a recent food law and policy conference in los angeles. he spoke about the rise in childhood obesity and how to encourage healthier eating habits. this is 45 minutes.
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okay. if i could have your attention, please. thank you, everyone. i know that you're enjoying your neighbor's company as we eat our lunch. what i'd like to do now is introduce our keynote speaker for lunch, and when he's done, we'll have a few more minutes for you to converse and introduce yourselves to your neighbors at your tables. we're very honored to have former senator tom harkin with us today as our keynote speaker. i got to know senator harkin when i was on the law faculty in arkansas many, many years ago when i first got involved in food and agricultural law. and have always appreciated his support since then.
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and he served on our board, our outside advisory board for our program. and one of the reasons though that i think drew him to our board and to our program wasn't necessarily our relationship or my good looks, it was because he has grandchildren here in los angeles. and i've learned that that connection usually draws people in. but even though i don't know that his biography needs to be read, it's in your program, i do want it highlight a few things. first of all, senator harkin has a very, very long record of public service from congress in the state of iowa to the senate starting in 19 the 0. he retired from the senate in january of 2015.9 the 0. he retired from the senate in january of 2015.the 0. he retired from the senate in january of 2015.he 0. he retired from the senate in january of 2015.e 0. he retired from the senate in january of 2015. 0. he retired from the senate in january of 2015.0. he retired from the senate in
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january of 2015. his ability, though it is not listed in his biography, but i will state it, his ability to be a bipartisan advocate to cross-party lines is sorely missed in washington these days. senator harkin is well known for his work with the american disabilities act. in addition to his great work in that area, he has also add great track record with respect to health and food and children. following the death of senator ted kennedy, senator harkin in 2009 became chairman of the senate health education labor and pensions committee, and has made a real trailblazer in combatting obesity. having led efforts to require school districts participating the national school lunch program to establish school wellness policies. and other plans and efforts that led to the 2010 child nutrition bill and healthy hunger kids
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act. he also worked very closely over the years with the ftc, which was discussed in our previous panel and has commissioned reports and studies and has pressed the industry to adopt uniform system wide age appropriate guidelines for food marketing to children. there is -- as you can probably tell, senator harkin is a waealh of information and is a walking historian when it comes to these issues. there's no one who knows the politics and that was referenced in both panels. the politics involved in food policy and food law. there's no one who knows the politics of food and health better than senator harkin. and he's, again, very gracious of him to be here with us and to share with us, not only the history but also his vision for moving forward. what i think is really important. and if you know senator harkin,
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he is about walking the talk, not just talking. and he has a wonderful center that houses his library in des moines, iowa, drake university. i was just there a few weeks ago and met with his staff. and i'm very impressed with their vision and what they are trying to accomplish and what it was like it visit with them. and so he is still looking ahead. still moving forward and looking at health and wellness in schools and in the workplace and all of the activities that he is involved in. sew may be retired but he's not really retired. so senator harkin, on behalf of this audience and your grandchildren, we're happy to have you today and would like to welcome you up to the podium. [ applause ] >> thank you very much, michael. let me just reinterpret what he said. he said that i'm a walking historian.
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what that really means is he's an old guy. he's been around a long time. but thank you, michael, for the kind introduction. thank you for your friendship for so many, many years. and for your leadership here of the of the resnick program here in l.a. and thank you to mr. and mrs. resnick for establishing the program here at ucla and what i know of you personally, linda, your support for health and wellness in all of its capacity and of all of its different venues around the country. so stewart resnick, thank you very much for your generosity. [ applause ] an honor to be here with so many people that i do admire like stewart and michael and kelly, whom i've followed forsome
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years. his leadership back when we were always trying to do things and calling upon him for his expertise and of course michael jacobson with center for science in the public interest. again, always on the cutting edge. always giving us good guidance and direction on how to go. jacob with harvard and marlene schwartz. just so many people that i've admired for so long and still do for all the great work that you do. and thanks for asking me to be a part of this program today. so i'll try to talk for just a few minutes. but like an historian, i tend to get side tracked and get off on to little stories and things like this. let me just start by saying this, america is in the grips of
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a massive child abuse scandal. america is in the grips of a massive child abuse scandal. threatening the future of millions of unsuspecting kids. everyday. these perpetrators come into our homes and schools. as we now know they are on our iphones. on social media. internet. talking directly to children and tempting them into risky behavior. threatening their future. and parents are all but helpless to stop it. child abuse, well, what else do you call it? when the junk food industry spends $12 billion bombarding kids with tens of thousands of ads each year, for everything from monster thick burgers with
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1420 calories he and 107 grams of fat, to 20-ounce koeks and pepsis, 12 to 15 teaspoons of sugar, feeding an epidemic of child obesity. what else do you call it? when obese children as young as 10 are diagnosed with type 2 diabetes which previously had an onset age of about 40. well, that's what i call it, child abuse. it's estimated that children ages 6 to 11 -- well you know these figures, halfage of 28 hours a week watching tv. exposed to 20,000 ads a year. and as many as 21 fast-food ads everyday. centers for disease control and prevention, by the way, used to be called the center for disease
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control, and in 19 the 0 i added the word prevention so now it is the center for control and prevention. [ applause ] oh, just an aside. anyway, cdcp in 2015 said that in -- in 2015, obese children are twice what it was 30 years ago. and we know the same is happening in other places according to world health organization. less than 1% of kids meals combinations at restaurants meet nutritional standards. less than 1%. and just 3% meet the industries own, and you heard about this earlier, the children's food and beverage advertising initiative, just 3% meets their own standards and they're touted
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kids live well nutrition standards. 3% in restaurants. now you can get all this from the rudd center. here earlier with marlene schwartz who's here, founded by dr. brownel. you can get a lot of good information from the rudd center. fast-food marketing, via social media and mobile devices are growing expo tnentially. aimed at hispanic youth. i will have a little bit more to say about that. a lot has been sbaid about self-regulation. we have to go to the industry and get self-regulation. well, the children's food and beverage advertising initiative of 2007, get this, just one aspect of it, four large candy companies, mar mars, hershey,
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kraft and nestle pledged they would not advertise candy product to children. however, there was a 65% increase in candy-related ads in 2011 compared to 2007 before this went into effect. before it was adopted. so how was that? many children are exposed to candy ads during programs. we've seen that earlier. that go to a general audience but that kids watch. what do they do? sure, they agreed not to aim their ads at kids candy but they increased, not quite double, but close to double, the. a ads running on candy on programs they know kids were watching. along with their families. so again, when people talk to me about self regulation, there's another called karu, it's been a
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dismal failure. no teeth, nothing they can do. just failure. other countries, usaustralia, european union, canada. they tried to regulate through voluntary efforts also. and quite frankly, most of them have failed miserableably. interesting enough in my research, two most extreme controls on advertising to children regarding food is in norway and quebec, the two. i thought, hmmm, how do they do that? they don't have a constitution to worry about like we do in the united states. so they can do that. what they've done is they remove the legal right to advertise to all children under age 12. there's just no legal right to do that in those countries. and we know. american psychological association, we know that young
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children, and you can cut and dice the different ages whether it's 10 or 12 or 14 or whatever. but basically young children are more prone to accept ads as truthful accurate and unbiassed and as we know, the younger they are, the more difficulty they have separating commercials from regular program. and again, we have very few to zero regulations right now basically in the united states. i'll cover a couple of those. i mentioned karu, children's advertising review unit of the council of better business bur roys established in 1974. we tried do stuff with them all the time i was in the house. 70s, 80s, 90s pb nothing p. get nothing done with whatsoever. now again i know we're here talking about food but i also think of it in terms of the broader health policy. and i have made this statement many times in the past that in
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america it is easy to be unhealthy and hard to be healthy. easy to be unhealthy, hard to be healthy. that should be changed around. it should be easy to be healthy and harder to be unhealthy. well that comes down to all kind of things. we're building subdivisions without sidewalks so kids can't go out and walk to school. elementary schools being built without a playground. bike and pedestrian lanes. i tried to get this one on a highway bill years ago to say that if you got any federal money, for streets and road, things like that, bridges, you today incorporate, i didn't say you had to do it, i just said you had to incorporate in the design a bike and walking path lane alongside that road. i lost. we still don't have it. but in europe, they do. you build a bridge in europe, it has to have a bike path lane or
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new roads. but not yet in america. just the things that again go to providing for exercise and people po be outo be out. we just don't do that in america. and we need to have this as part of our planning process. so people can actually get out, walk, bike, without being afraid of being run over and hit and killed. now one little history thing that i did want to go over because it's been brought up here, aeb that is tnd that is t trade commission. and wai was there when all this happened. that's history. in the 1970s, there were tree entities. action for children's television. michael jacobson's group, center for science in the public interest. and consumers union. all petitioned the federal trade
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commission to act on behalf of children aadvertising. to do something about children's advertising. advertising. to do something about children's advertising.advertising. to do something about children's advertising. the commissioner of the fda also weighed in on this and encouraged the ftc to do something about it. michael perchuck was head of the ftc at the time. you should read his book about the revolt against regulation that he public later on. but here's what happened. the federal trade commission put out a notice, i don't have the exact date here, but right around 1977, maybe '76, maybe michael knows. around 1976, '77. >> '78. >> okay. a notice of proposed regulations on regulating advertising to children.
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and it would ban all tv ads for any product directed to or seen by ann an audience with significant pro portions of children. banning ads for food causing serious dental health and to be balanced by nutritional or health disclosures. i remember this very well. and boy, congress went nuts. and the industry went nuts. that's the first time i had ever heard the phrase nanny estate. oh, all these speeches on the floor of the house and senators and governments going to take away parental rights. and take the rights away from parents. and give it to this nanny state. and all kinds of ridiculous things like that came out. in fact in 1978 it became a big
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issue in the 19778 will campaign. i know, i was running for reelection. and almost got my head handed to me. because i had come out in favor of it. and doing something about advertising to kids. well, i won the election obviously, but i remember being labelled as being in support of the nanny state at that time. so it became a big issue. a lot of people lost election in 1978 because of that. well, for a lot of reasons, but that played a big role in it. people got so scared that when the new congress came in, in 1979, they began to work and have hearings on these proposed regulations. hearings wrought in all the industry and stuff and it just became overwhelming and finally the congress in 1980 passed a law.
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passed a law. the ftc improvements act of 1980, congress totally caved. here when a it said in essence, the ftc shall not have any authority to promulgate any rule in this proceedings or any subsequent proceedings dealing with children on the basis of a determination by the commission that such advertising constitutes and unfair act or practice in or effecting congress. now i know some people talked about this earlier. there's basically two prongs that the ftc uses in their regulation of advertising. one prong is deceptive. one prong is unfair. okay. since 1980, the ftc has had more
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authority to regulate advertising to you than to your kids and grand kids. let me repeat that. the ftc has more authority to regulate advertising to adults than to kids. now you tell me if that makes sense. but they stripped it. and so, the only problem they can use is deceptive. they can use deceptive or unfair and unfair has different prongs on it too. but they can use deceptive or unfair on adults but only deceptive on kids. as people have pointed out many times, that an ad can be truthful when it's aplayplied t kids but grossly unfair because kids can't understand the difference. so it's just unfair to be able to do this kind of advertising to kids. but we've today live with that ever since. in fact it got to bad that
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congress defunded the ftc for some time. took away its authority for 10 or 12 years before it came back. before we were able to get the rea reauthorization and funding back for the ftc. now, why did i tell you all this? because i have in my hearings in the past and if i still have a lot of staff i could have had my show and tell slides and stuff here. but if you look, if you graph, if you graph beginning around 1980, '81, the increase in obesity in children, and you also look at what's happened in our schools because the industry took this as a green light, and it started at that time, there was a little bit before, not much, but right starting about 1980, '81, you started seeing
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vending machines and all of our schools up and down hallways. you saw more and more companies making exclusive rights with schools. coke and pepsi and things like that. they made exclusive contracts with them. i remember once, oh, 25, 30 years ago, i viceded an elementary school and it was kids a in kinder garden, first grade, sitting on coke chairs. coca-cola chairs. little chairs. red and white with coca-cola on them. this is what the kids sat on everyday. so you chart that and you will see that huge, this increase in junk food in schools and you see the increase for advertisements going to kids in the '80s and you see, you graph the increase in obesity and they just track.
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it's erie how they track growing up in the 1980s. well, in the 1990s, some of us tried get soft drinks taken out of schools. we tried several times. but came to nothing. on farm bills and different things like this. and we just -- we just couldn't get it done. so i thought well, maybe there's something else we do. i had a brief, two brief shiny moments, i add brief moment in 2001 and 2 where i became chairman of the senate ag committee. well tim jeffers left to become a democrat just when they were
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doing the farm bill. so i thought maybe i can try something here. so you make your deals, right? a lot in the farm bill i didn't like. i todhad to swallow it. i add republican house counterpart and we only had one vote in the senate. democratic vote. so i thought well, i'll try something. maybe can i get something. so i started something called the fresh fruit and vegetable program. fresh fruit and vegetable snack program. and i just took there are$5 mil we started a pilot program with four states. iowa, michigan, ohio and indiana. with 100 schools. 25 schools in a state. and with $5 million to see what would happen if you gave free fresh fruits and vegetables to kids. what would happen. i've been fed up before about, you know, we have vending
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machines in schools and kids can get an apple there. kid's got put a buck in the vending machine to buy an apple and they can buy candy? no, of course not. but what would happen if you gave them free fresh fruits and vegetables. so i got that in. this is in 2002 first year was 2003, then 4. a few schools in '03, then 4 and 5. finally got it up. and i have to tell you the administration, i lost my chairmanship in 2002. now i'm back in the minority. and they kept coming after it, trying to destroy this program but i had my appropriations committee and i made my deals that kind of thing and we kept it going. here is what we found. of the hundred schools that came into the program, not one wanted to drop out. they loved it. so thad cochran, senator from mississippi, heard about this and said how do you get it for
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mississippi? i said, we can get it for mississippi. and arlen specter wanted it for pennsylvania. by 2006, we brought some more schools in. nor spot. got some more money. found out it was working really well. so then as fate would have it, by 2008, i became chairman again of the ag committee. when it came back again, and now i had a democratic house as well as senate to work with. and so we took the fresh fruit and vegetable program and expanded it and expanded it nationally so today it's in all 50 states and our territory answers at about $175 million year. we changed it somewhat. we learned in the past that high schools weren't that good.
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so we limited it to elementary schools and a preference for schools that have a high proportion of free and reduced priced meals in those schools. and so that's going pretty well. and it's kind of now been sort of absorbed and in our schools. of course i'm going to keep pushing for more funding of it. but again, at least it's out there and kids are getting fresh fruit and vegetables. now i will have more to say about that in a second in terms of some problems np in 2004, i was able to put into the wic program, in school nutrition and wic program, called school wellness policies. someone mentioned that. here eat other thing. we should sit every school that gets federal money for school lunch program has to develop a school wellness program. we didn't say what it had to be. just do it. go out and start getting these policies. you had to have it done by 2006.
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two years to develop a wellness policy. and do it on the local level. well, some are hit or miss. some are better than others, obviously. but at least they had to start thinking about it. then in 2010 when we had the healthy and hunger kids act passed, i was able to put new pro strigss in there on the wellness policies and in 2014 there was a proposed rule and in 2016 just this june, the final rule went into effect. all local education agencies must comply with this rule by june 30th of next year. and what's good about it is there must be an evaluation done every three years. how they're doing compared to the model. the model wellness policy that's bchb developed. how are they doing compared to that. so i say to all of you, if you're thinking about what we need to do in the future we need
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to keep our pressure on these local school district to comply with the law. and every three years to continue to evaluate this. and i just wrote down here, i said, another reason why we need hillary for our next president. anyway -- [ applause ] i mentioned the assault on the fresh fruit and vegetable program. god, drives me nuts. after all this time, fresh fruits and vegetables. and i've been to the schools and see the kids eat these -- i've been to schools where third, fourth, fifth graders have never eaten a fresh pear. didn't even know what the hell it was. i remember one time i i went to a school in ohio and elementary school, grade school, and they were having kiwi fruit. now i don't know much about kiwi
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fruit. i tried once. i bought some kiwi fruit and god they were terrible to peel. this is awful to peel. this is ridiculous. not worth it. i'm standing there and grade school kids were at their desk and they all have a kiwi fruit. and a third grader taught me how to eat kiwi fruit. she addshe add plad /* plast --e had a plastic spoon, smashed it down and ate out the middle. i said oh, my god that's the way you're supposed to do it. i've been trying to peel these things. but i know even in rural areas of iowa, first strawberry season before they get out of school in the spring.
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they bring straw berry ares in. there isn't a strawberry left by 10:00 a.m. in the morning. kids love it. and schools have dawn great thing. what am i frustrated about? ever since i started this darn program, the dried fruit and canned fruit people have wanted to get in the program. i have been successful in stopping them except until the last time. in 2014, i was -- no work 2012. well, 2012-2013. i saw i was going to lose this. i was going to lose it. so i maneuvered a pilot program. so michael, there's a pilot program now that just finished and we're waiting for evaluations and i'm sure secretary will do a good job on this.
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i trust that he will. so we allowed some school districts to allow canned, frozen, dried fruit. as a pilot program. 2014 and 2015. some of these cans of fruit are just loaded with sugar. people say, i won't mention names, happened to be a congressman from california, by the way, said if they can eat grapes, they can eat raisins. i said, wait a minute, no, no, no. that's not right. if a kid eats 8 or 10 or 12 grapes, that's okay. does a kid eat 10 or 12 raisins? no, they eat a box. 30 or 40 at a time and it's just concentrated sugar in those raisins. anyway, all i can tell you is they've been trying to get in on this program for a long time. i hope we can keep them out and keep it fresh fruits and vegetables.
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but that's how they try to get in on some of these things. then we started the farm to school program. great secretary of agriculture. in 2013 and '14 school districts nationwide purchased over $800 million from local food from farmers and fisherman. this is 105% over what they've done before. more and more skills. let me mention a couple of other things and i'll close, that both good and bad. good, soda taxes. by god, maybe we're finally going to get some soda taxes. i know berkeley, california had done this before, if i'm not mistaken. but now this year it is on the ballot in several places and in june of this year, philadelphia city council passed a big soda tax, 15 cents per ounce on their sodas. goes into effect on the 1st of january ppt wouldn't you know it
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they filed suit just last month. filed suit against them in philadelphia. but this is now picking up a lost steam in different parts of the kcountry. so i know very soon we will see this big thing turn and more and more jurisdictions will soda taxes and i hope that it passes. i think is on the ballot in san francisco they tell me and oakland. this year, right? i keep my fingers crossed. worrisome things. national parks. do you knee there's an effort under way right now in the national park service because they are so hurting for money that they are now, there's a proposal of the national park service to go out and get corporate money. to come into national parks. and there is a, you as you know pb right now there is a rier
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requirement that parks must remain free of commercialization. they want give parks naming rights. i just went to yosemite for the first time in my life this summer. i can just see it there. brought to you by mcdonald's. on yosemite falls or -- this is just a bizarre things. that's what they are doing. that's what they are trying to do. so you have to be cautious about this too. because they are hurting for money. other thing, you saw an ad here from teacher night. mcdonald's right now in various places around the country are going and getting teachers and school administrators to put on their -- put on their branded things for mcdonald's. they go behind the counter on an evening. advertise this aep kids and their families can come and have a mcdonald's and a certain portion of that money goes to the local school. this is happening right now in america.
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teacher nights. this is, again, schools are strapped for money. so so wh so what can they do? teachers of l.a. denounced the policy. you tried it out here and teachers are opposed to it. ways in japan about three weeks ago on another issue. this is what came up. pokemon. pokemon. yeah. pokemon stores over there. anyway -- pokemon. now there's this pokemon go, you know, that you play on your games. and kids follow around and they get a hot spot and then they get to go to the next level. well, now they have pokemon hot spots in japan that are mcdonald's. in order to get to the next level you have to go to mcdonald's. and if you buy a happy meal, you get a higher score. it's coming here too.
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be prepared. someone mentioned that they tried, mcdonald's tried in florida, to do a thing where if you get a good report card you get a sticker and then you get free happy meal or a reduced priced happy meal or something like that at mcdonald's. these are are the kind of thing that we just have to be careful and just keep our eyes open on this. let me close on this. successes. healthy and free hunger kids act. i tried all during the '90s to get soft drichks out of schools. by god, there are no more soft drinks in school today. we are making progress. all foods in schools must meet nutrition standards. i mentioned farm to school. school guard yengs aardens are
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all over america. i mentioned the fresh fruit and vegetable program. that's great. but they are trying to water it down or sugar it down. school wellness policies, these are going to be good. we just got keep on them. just got to keep on the local school districts on their three-year evaluations. so the problems that i see are cash-strapped schools. schools will want to raise money for mcdonald's and corporate interests and thing like that. other thing i worry about is social meeta. one thing i thought a lot about is, you know, when you see an ad on television for junk food, we can't go out and buy an ad countering that. we don't have enough money. we can't do that. but if kids are moving things around and social media, for kids as you saw here earlier, well, you can get involved in that. i'm proposing that we start to organize a lot of youth in
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america with some music stars. and others. that they look up to. and when social media starts promoting different junk foods and things like that, we get right in the center of that and we have a counter group of youth doing the same thing. connecting with other youth and get involved in that whole scheme. doesn't cost anything. so we aught to be starting to organize young people along the social media lines too. and so, again, there are some things looming on the horizon. i think there will continue to be problems but i think we've come a long way and i think that we can really continue to push the frontiers on the advertising end and also on the type of food, kind of food, that our kid are eating in the school breakfast and school lunch programs in america. i remain hopeful.
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thank you very much. [ applause ] now, michael, did you want me to respond to anything? >> yes. let's take five to seven minutes, if you don't mind, senator, and have questions from the audience. make sure you speak into the microphone when you ask the question. i'm a little hard of hearing where i sit. i was covering for you. >> thank you. >> and then that way we can hear the question properly. we've got microphones coming around. wait until you have the microphone, then can you ask your question. do we have the microphones? >> yeah, just no questions. >> there we go. thank you. rudy, can you -- i think there's a second microphone. come on up. there's a couple of hands that were up. there we go.
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up here to the second table. >> good afternoon, senator. you are proposing or proposed a soda tax. >> mm-hm. >> where will the proceeds of the soda tax go? will it fund some kind of a behavioral kind of thing with schools or allowed back to the state government which uses it for something else? >> well, yes. i mean, the fact is the places that are doing the soda tax like philadelphia it is a general revenue type tax. it doesn't go into school health or anything like that. just a general revenue type of thing. but hey, i'll take what i can get. if it increases the cost and price and that tends to reduce some of the purchasing of it,
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that's okay with me. that's fine. obviously, i would prefer to see it be a dedicated source of revenue for children's health. for better food policy in our schools, but that's not where it's going. oh, excuse me, city council or someone could decide that. >> right. that's what is happening in berkeley. it is a general revenue tax in berkeley but there is a committee that was appointed to say where those funds are going. it's raised so far in the first six months i think it raised $1.5 million. for school gardens and other programs dedicated to children's health. >> that's good. yeah. that's good. well, don't want it tato take a more time. one more? >> what would you think about or is it a viable strategy to try
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to remove some of the subsidies of commodity crops, sugar et cetera, is there any viable path there or are we just -- shall we just move on to taxing on the other end? >> the answer's yes. well, again, maybe i'm a -- obviously i represented for years corn and beans and hogs and cattle, so i had to be careful about that. understand, i can be brave but not a fool. anyway, so what i did in the 2008 farm bill, i told you i took that fresh fruit and vegetable, and the other thing i did was made eligible for farm support programs for the first time ever, fruit, nut crops,
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vegetables for the first time ever. so they are eligible for a lot of programs. like conservation programs and things like that they they had not been eligible for before. there is no support price mechanisms in there. and there's no national kind of a -- what am i trying to think of. support for corn and beans and rice, sugar, that type of thing. but at least now they are part of the program and i'm hopeful and i've been hopeful ever since that the fruit and vegetable and tree nut people would begin to really organize and organize more strongly to be a part, a bigger part, of what we might call production agriculture in america. we need fresh fruit farmers in
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america and more greenhouses in places around the country. and that type of thing. and but now, least now they've got their foot in the door. but can you reduce some of the other things? yeah. maybe. it's not as much as it used to be, i'll tell you that. not as much support as there used to be. for peanuts, cotton, rice. of course, tobacco went out some years ago. corn, beans, that kind of thing. so it's not so much direct payments and stuff as it is just support mechanisms out there. >> thank you, senator. >> okay. c-span's washington journal. live everyday. with news and policy issues that
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impact you. coming up tuesday morning, subcommittee on health ranking member and budget committee member congressman jim mcdermott on the future of affordable care act under president-elect trump as well as opinions on trump administration apointments so far. then president for americans tax reform norquist talks about president-elect trump's fiscal and economic proposals and discuss fiscal policy in the upcoming gop-controlled congress. watch c-span's journal live tuesday morning. join the discussion. the u.s. capitol is getting ready for the holiday season. today the capitol christmas tree arrived after traveling more than 3700 miles from national fornest idaho. this year's tree is an 80-foot ing elman spruce decorated with over 18,000 handmade ornaments and displayed on the west lawn
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of the u.s. capitol. the tree-lighting ceremony will take place on december 6th. sunday, on book tv's in-depth, we're hosting a discussion on the december 1941 attack on pearl harbor on the eve of the 75th anniversary. on the program, steve toomey, author of countdown 12 days to the atake. eri hotta and craig nelson. followed by an interview with donald stratton, pearl harbor survivor and author. we're taking your phone calls, tweets and e-mail questions live from noon to 3:00 p.m. eastern. go to book for the complete weekend schedule.
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next, national security experts discuss how the news media is shaping public reaction to terrorist attacks. they use of social media and its role during the boston marathon bombing and the orlando nightclub shooting. hosted by new america, this is two hours. welcome. i'm pleased to introduce this event on terrorism in america in the digital age. my name is tom glaisyer. i'm a program director at
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democracy fund voice, and two organizations hosted by ebay founder to ensure that the public comes first in our democracy. democracy fund voice is a new, nonpartisan organization dedicated to helping america build a stronger, healthier democracy. like our sister organization, the democracy fund, we are working to ensure that our political system is responsive to the public and able to meet the challenges facing our nation. basically, we seek to do things that make democracy work better. i focus on work around strengthening media with priorities on reducing misinformation, sustaining local news, and exploring innovative engagement practices. however, as the political fear amongering and demagoguery in this election cycle heated up this past winter, we found ourselves asking not what role we could play to respond to try to make things a little bit better but also what dangerous scenarios could take place that could actually make things even worse. quite frankly, we were concerned
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that the unprecedented attention in the current election cycle on recurring incidents could speed the democratic institutions and while emergency managers spent significant time thinking about public responses to major disasters, little attention is focused on how major shocks and disruptions can damage our political institutions and processes. the paper launched today on the event provided tremendous opportunity to explore strategies for developing greater civic resiliency in the face of events. it is our hope that expert reports like this one on this topic will prompt conversations among journalists, technology companies, and others about the practices that are employed to respond to the unthinkable and how these responses can strengthen rather than threaten the health of our democracy. i'm very much looking forward to the discussions this afternoon, and so without further comment, on behalf of my colleagues at democracy fund voice, i would like to pass the mike to sharon.
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thank you. >> great, thank you very much, tom, and welcome to everyone joining us. i'm sharon burke, a senior adviser at new america where i run a program on resource security and i'm an adviser to the international security program and the future of war and a co-author of this report which is war and tweets, terrorism in the -- in america in the digital age. i'm going to introduce my colleague peter singer in just a moment but i want to thank tom glaisyer and democracy fund voice. when we started this project some time ago i thought their vision was great. it was about revitalizing democracy and strengthening civil society. what he talked about in terms of erosion and those long-term concerns and i was with him on that but i didn't think it was an urgent immediate problem and now, of course, i -- mea culpa, you were right, this is for right now. not a concern about what happens next year or ten years from now. so i'm glad to be a part, to be
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a part, supporting their mission and supported by them. i want to thank the people who worked on this project, lisa sims was the project coordinator, david stuhrman was a co-author on the report and peter burgin advised us sh eped us all throughout. peter is in iraq and can't be with us today. but we very much appreciate his work and all of the communities here in new america that put on these events. so i'll start by summarizing our report briefly and get into a conversation with dr. singer because he came out with a new article in the "the atlantic" that i commend everyone here about war going viral and war in the age of social media and we're going to talk a little bit about our report and his work and what are some of the similarities and differences there. then we'll have a wonderful panel come up and i will introduce you at that time and we will have a discussion and have audience q&a and i want to preset with you, with the
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audience and the audience we have online, including the university of central florida is joining us online today, i just want to warn you that i may look nice and friendly but please keep your questions to a question or, as peter says, something with a question mark at the end. if you monologue i will probably cut you off so i'm not that friendly. so first, peter singer is here at new america, he's a strategist and senior fellow and i'm looking at his bio to make sure i get the key points but i don't need it. he's one of the top national security experts in this country and he has an interesting focus on technologists. he's a trend spotter, he's always ahead of the game and he's operating in just about every sector you can. he's advising governments, hollywood, technologists. so i'm delighted you could join me to open this up and have a conversation. first, our report. when we started this report, we wanted to look at terrorism in america and how people react to terrorism.
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of course, in the middle of our study the attack in orlando at pulse nightclub happened and that changed what we were looking at a little bit but to put it in a broader context, peter burgin and his team have done work on what happened in america since 9/11 and there have been 147 americans killed in terrorist attacks, 94 at the hand of jihadists. so more recently the places that will ring a bell are san bernardino, orlando, of course, which is a case study in this report, minnesota, the stabbing in minnesota, new york city, new jersey, and maybe even north carolina recently, too soon to tell what the details of that attack were but it's possible that was also a terrorist attack. political violence in this country, we had a history of it for a long time, it's not all jihadi violence, of course. this is everything from the weather underground to possibly this new attack in north carolina as i said, hard to say at this time. it's not possible to stop all
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attacks for all time no matter how good our intelligence operations are, no matter how good our military is and they're very good, we know that. we've had a couple army officers here which is terrific. we can't stop everything for all time. so what do terrorists want? more than 30 years ago prime minister margaret thatcher said that publicity is the oxygen of terrorism. what they want is to affect how you feel, how you act, howe your government acts and they have their own goals and that is the definition of terrorism is a group that uses violence for a political or ideological cause. so that's what they want. so in other words, how you act is part of their strategy. and resilience to such an attack should be and is part of any nation's counterterrorism strategy and it's certainly part of this nation's counterterrorism strategy.
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so when you look back at the recent attacks that have happened in places like san bernardino, i think when you look at polling, a lot of americans feel like they're at personal risk of a terrorist attack. now the risk of any individual american being attacked isn't that high. but, you know, why was san bernardino a target? because the perpetrators lived there. so, in other words, even though any given individual is not at high risk of attack, any city could get attacked at any time. so every city in this country needs to be prepared for this kind of crisis and what they would do, this is what our report is looking at. so dhs, the department of homeland security defines resilience as "the ability to resist, absorb, recover from or successfully adapt to a change -- to adversity or a change in conditions." we looked at what determines resilience, what shapes resilience. and a a big part of resilience is who tells the story and what kind of story they tell. how did they choose to shape the
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narrative? this is something that's changing dramatically in the air -- era of social media. so that's what we looked at. how is the way the story's told changing? we have a historical section in our report that starts with the world trade center bombing in 1993. and the reason we started with that bombing is that's when you start to see live television coverage coming into play in a big way. it's also when cell phones started making an appearance. they're so ubiquitous today that it's hard to believe there was a time so recently when they weren't but that's the first time you started to have people with cell phones calling news organizations, calling government and first responders with information. so we started and tracked how media and this personal ability to communicate from eyewitnesses, victims and perpetrators starts to shape the story. we went from there and we looked at also the oklahoma city bombing and you know pretty much every attack that's happened
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since then. starting in '93 and, of course, before that, news media was largely the gatekeeper. they were the narrator and the ones that told you what the story was but how they covered it, what images they showed you and what they told you. that starts to change in the 2000s when camera phones arrive, which happens in the early 2000s, again, i know it's hard to believe. probably everyone in here has a camera phone on them right now, but that was just starting in the 2000s and you saw that particularly in the 2005 london metro bombing that phones, pictures people took from their phones were making it on the nightly news and making it into newspapers for the first time. 2009, ft. hood, that was one of the first jihadist attacks in the united states that was really using social media, where social media picked up the story and began to shape it. the boston bombing -- and we will hear from one of our panelists later firsthand about what that felt like. we also saw big changes with
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social media coverage and in two ways -- officials were using it, sometimes to really good effect and sometimes to spread misinformation such as there was a story that there had been a bomb at the jfk library and the boston police repeated the story. and then it becomes an article of faith. also a social media platform red -- reddit, the users really kind of ran away with the story and start started speculating on who the perpetrators might be, and when a -- when law enforcement tried to get ahead of the story by putting out some early photos, and the reddit users really tried to guess who they might be, they guessed wrong, and they identified a picture and matched it with a student who was missing. was not the perpetrator but the pain and suffering it caused his family was awful so this is when we first saw social media playing that kind of role for better and worse. in 2013 the west gate mall shooting in kenya, you had for the first time terrorist group
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al shabab live tweeting their own attack. again, this is a big change, right, from when news media decides what the story is is to the perpetrator decides, directly communicating with the public what the story is and all the way to today where not only do you have that you have live streaming. as i said, we spent a lot of time on orlando in our study because it was the case study we looked at, it happened in the middle of our research. i'm not going to go into too much detail about what we saw and what we found because we're fortunate enough to have the mayor of orlando here today and i think he can best tell you what that looked like. but what i do want to say is as we're firmly in this era now, where news media is not the only gate keeper and public officials don't necessarily control the story, what did we learn from orlando and all the other cases we looked at in a time when
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eye-witnesses and victims and perpetrators and even observers thousands of miles away are going to shape the story and decide how the public reacts. what did we find? we found leadership matters. even though you have so many people telling the story, first responders and public officials still have an authoritative voice in telling the story. so how they shape it, what they say, when they say it, to whom they say it really matters. and what you'll hear from dyer is that he thought very carefully about that and what he wanted his city to feel and think and that matters, also a part of that is that leadership matters, you also have to be prepared. not only prepared exercised for a crisis but prepared for the communications aspect and the pace of it. in the case of orlando, this happened at 2:00 in the morning and the city had time to think about how it was going to respond. if it happened in 2:00 in the afternoon, they would have had to know right away and the fact
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that they were prepared and knew how to use social media for this crisis would have made a huge difference. it did even though they had time to craft their response so social media and the pace of information has to be built into exercises. second, i think we found it's important to give the public a constructive role. to give them agency. so one of the things we found that was very interesting is after the paris attacks, the recent paris attacks, there was a police operation in brussels where they were hunting for some of the suspects and the brussels police communicated to the city, "please do not post pictures or tweet where we're conducting operations. you'll tip off the people we'll looking for." and the city and the wider twitter community responded and began tweeting cat pictures. i don't know if people remember this, to the hashtag brussels
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lockdown. what that did is effectively buried anything people were posting that might have helped find where they were doing these operations and then the brussels police posted after that a picture of cat food and said, thank you, help yourself. so, again, i think not just by being sophisticated with social media but by also giving the victims a way to not feel like victims, it helps with resilience. include communications in social media use and exercises in planning and real life. you do as public officials and first responders need to know, need to have practiced and incorporated social media into your operations even for a small city. finally, what we found is it's important to empower your local press. of all the press that tells the story, they're part of your community so they have a vested interest in the community being resilient because they live there, their families live there but they also have the most local knowledge so local press, even though they're around lot
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of pressure from all kinds of competition still has an important role to play and as they change and become a different kind of press that will continue to be true and finally social media companies, we think, need to embrace their responsibility. they are the mass media of choice for many, many people now, whether they see themselves in that light or not, it's the truth and some companies such as facebook have been forward leaning trying to understand what that means. they have community rules, they're experimenting with how to improve them, they're experimenting with how transparent to be and collaboration with government but facebook is by far the most used media -- social media company and they've tried to embrace this rule, they have people who look at counterterrorism on their staff so that's a good thing but there's a lot of companies that will say things -- like twitter has in its community rules "we speak truth to power." that's great, but that tension between dangerous speech and
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free speech is very real and it's not something you can easily dismiss, a place like reddit where they can say we don't get into that but that really rings hollow when something like what happened with the boston bombing happens where you ruin somebody's life. so social media companies, we think, need to embrace their role and the fact that they are mass media companies at this point. so with that i'd like to turn to peter. peter's article in the "atlantic" is called "war goes viral." and he focused on another side of the same equation which is partly how this is a weapon and how isis and others use it. i have my notes about the things i want to talk to you about but the first thing i want to ask you is can you define homophily for us? >> dig down into the details. homophily is one of the things we're seeing play out on the internet, and it should be
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familiar to you. it's the definition of "love of self." and what it's -- what's happening is the idea, there's a seeming kind of contradiction where this technology is supposed to be bringing us together, but it's -- we're searching out and finding validation in people who think like us already. so -- and you can see this in everything from sports. you connect to people who like the same team or hate the same team, to the election where, you know, look, all the information is online, but if you watch the facebook feed of a trump supporter versus a hillary supporter, they're fundamentally different worlds and so you create these kind of echo chambers and it's the same thing happening on the violence side as well. and that's really what the -- to pull back on all this, what we were wrestling with in the project, this is with emerson
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brooke, is how the internet itself is changing and how that affects all of us. so the internet has gone from being used merely to transfer information back and forth, me e-mailing you, to also collecting information about the world around us. so, it's your -- your average smartphone has over 20 sensors on it. the camera to geolocation, you name it. so, actually, when you crunch the numbers, you know, we have roughly 6 billion things online right now. we're with the internet of things as you get smart cars, et cetera, you get up to 50 billion. actually, that leads to a trillion sensors out there, things collecting information. and the other shift is what you're talking about, the rise of social media. where we're not just collecting information, we're sharing it. we become distributors of information and the way that media used to be, and so the result is that every single
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actor in violence is online, be it isis, be it the u.s. military, be it the russian military, and every single act of violence is being talked about online, usually in realtime now, often first. again, that's true whether you're looking at the case of the attack in orlando where, you know, it's the -- literally the clubs, if i recall correctly, the club's facebook account, seven minutes, and it's telling people inside the club to run. and yet you and i can track it from afar to right now, you can track the battle of mosul via, you know, everything from a youtube channel to instagram. this is something new. this is something different. >> that makes it different,
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right? so people are deciding which pieces of that they want to hear. >> and yeah. the way i frame it is, there's arguably no more secrets, but the truth is being buried beneath a sea of lies. and again, we can see that playing out in everything from electoral politics today and then how that links to russian information warfare campaigns, to the discourse over terrorism, you name it. and the homophily side comes in because one of the things that's sort of strange, it's the way we think, and we're more likely to believe information that connects and links to the way we already view the world, so when they did a study of what goes viral, it's not the truth -- what you are most likely to share online, what you are most likely to share online is not defined by its truth, whether it's true or not. it's by whether it validated what you thought before and how
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many of your friends already shared it. so, there's a little bit of a peer pressure side. one of the other things that's disturbing is when you confront someone with a counterargument, even if it's true, they're actually more likely to dig in and hold to their old belief rather than change their mind. so, if i say you're wrong, and i present facts to show you're wrong, you're actually less likely to be persuaded. that's kind of scary. >> you don't mean me, personally. >> yeah, but again, we call kind of feel that playing out in the election right now. >> so in your article, you talked about isis and that's the sort of general backdrop against which they're operating. a lot of people call them social media geniuses. i think you called them talented
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plagiarists. >> strategic plagiarists. >> we talked about that a little bit, how they're using it as a weapon. >> so, they are, in some ways, new. there is -- they're the first group to own digital territory. you see what they're doing to the classical story of terrorism itself. as you put it, terror doesn't take place in alleyways. you go back to the attacks in judea back when the zealots are attacking roman soldiers or sympathizers. they're making sure to do it in the square where everyone can see it. to more recently, terrorism was defined as the theater of violence. so they're trying to do it in public, per said, itsuade, it'st the emotion, the publicity. on the one hand, they're an advancement, it's amazing to
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compare all al qaeda communicated back in using vcrs and cable tv to now the social media side, but much of what they're doing, you can see parallels in what are just simply best practices online. so, you know, they were going, oh my goodness, they haunched their mosul offensive with a hashtag, which is what any video game or movie would do. they're highly visual. again, they try and work the system to their advantage. so, to go back to that mosul operation, they created an app for it that then spun out 40,000 retweets so that then, their message started to trend. they had twitter's algorithm sort of work for them, the same way, again, you know, a political campaign would do it. they try and hijack conversations. so they jump into conversations on everything from the world cup to interviews with minor youtube
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celebrities so that they can get attention. another example would be the buzz feed style. they don't just have one message. they push out multiple messages and then, you know, sort of like throwing -- you know, buzz feed puts out roughly 200 stories a day. one of them takes off and the others don't. same thing in isis messaging. the other part, which is a tactic used by, you know, everything from the real strategists of social media, katy perry, and taylor swift, is it's the combination of being very strategic and tailored but also simultaneously authentic. so, you know, katy perry has, you know, arguably has the most twitter followers. she mixes promotion with very personal kind of messages that are dashed off quickly in a style that's sort of connects to her followers. the same things if you look at what isis is doing. it's a mix of messaging and then very kind of personal, so you
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see everything from battle footage to, you know, a guy complaining about everything from having potato peeling duty to putting up instagrams of his cats to musing on the death of robin williams and what the isis fighter thought about jumanji. and then what's happening is, they're connecting to people who are, again, like-minded, and then they're taking the message into kind of a different space where the cultivation begins, the same thing that happens in online dating. you meet someone who sounds like you, and then you take the message to the side and you connect further. that's where we're seeing kind of the recruiting. it's partly in the open, but then it's also moving to a more personal level. >> so it's not just a nonstate group that's trying to look bigger than it is that's using this technique to great advantage. it's also the russians, both with rt, their news media source
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that's online, and their use of social media, their hacks, all of that. but it's also you talked about, in your article, the cyber nationalists of china. and you talked about rt's role in the book. a quote that really caught me was you said it's a world without facts. so my question bundling all of that together is, so, what do we do in this world? how do you counter or how do you fight or how do you deal with the fact that you've got everything from isis to rt to cyber nationalists who are trying to influence your public and tell the story? what are -- have you seen good strategies? what do you think a good strategy is? >> actually, i love the message that you have in your report in discussions of everything from terrorism to cyber security. we are constantly using the two
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d's, defense and deterrence. keep the bad guys out and/or scare the bad guys away. and in terrorism and cyber security, and in this information warfare side, that is a losing game. as you put it, it's never -- it's never going to give you a hundred percent security because it's, one, there's some actors that aren't deterrable. there's other actors that are already on the inside, so you can do whatever you want on the immigration, on the wall side, but there's inside, the same thing in cyber security. instead, the magic word should be, resilience. how do i power through the attack? how do i, to go back to use the taylor swift reference, shake it off? how do i recover quickly when i've been knocked down? and it's the same thing when you're thinking about information warfare. the best way to respond is to be resilient. the best way to keep from being
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manipulated is to know that someone's trying to manipulate you. and again, shrug it off, power through it, push out alternative messages that are just as adept, bury the lie in a sea of truths. that -- the challenge, and i think your next panel is going to get to this -- is the same thing, again, in all of these spaces, cyber security, terrorism, this information warfare side is, is our current political system and media one that incentivizes resilience or rewards hysteria? is it one where the, you know, gate keepers, so to speak, whether it's a gate keeper who is an editor on a cable tv show, a gate keeper in terms of a media company, a social media company, a gate keeper in terms
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of a politician, are they incentivized to ramp up the anger, ramp up the fear factor, ramp up the uncertainty, or are they incentivized to say, no, we're going to power through this? i worry about that right now. and then of course you get the kind of the partisanship side where, again to, go back to where we were before, is it even worse where they're existing in two different worlds. so it's hard to be resilient if you and i have a different set of facts of what happened. to me, that's one of the major challenges of our democracy right now is how does it become more resilient to these forces? . >> that's great. it's a terrific opening conversation for us to bring up the next panel, but tell us before you go, and peter's going to stick around for the q&a as well. you have a book that you're working on. >> there's a next pronject thats
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going to try to and pull back and look at this and what's going on overall in terms of politics. >> that's great. we'll look forward to that book. can't wait. get busy. and if i could invite the panel to come up right now, and as they are taking their places, i will introduce them to you and i'm going to use my notes to make sure because there is a very distinguished panel and we want to make sure we get them all absolutely correct. so, at the far end here, we have katie wheelbarger who acts as senator mccain's staff lead. previously, ms. wheelbarger served as the deputy director on the house committee. before coming to capitol hill, katie was a council to vice president deck cheney and also a counselor to the department of homeland security in its very early days. she's a graduate of ucla and
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harvard law school. next to her we have juliet juliette kayyem, having served as a state official in massachusetts and also in the department of homeland security. as if that were not enough, she's also, today, an entrepreneur who's running her own company that gives strategic advice and risk management planning. it's called kayyem solutions. she's an on-air security analyst for cnn, so she may look familiar. she should look familiar if you watch tv. she's also a podcaster and author of a new booked called security mom, an unclassified guide to protecting our homeland and your home, which came out in april 2016. and then immediately to my left is mayor buddy dyer. he has served as orlando's mayor since 2003. he's a really important leader for central florida, and you think about orlando, orlando is not -- not your average city of its size. it is one of the most visited cities in the world, certainly
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in this country, something like 49 million visitors a year. >> 66. >> i'm off by a lot. 66 million visitors a year for a city that's, i think, 250,000 in the city proper and 1.4 million in the area. so, when you're mayor of that city, you have a really interesting set of challenges. i think i have a list of his accomplishments. he opened three community venues, the amway center, the dr. phillips center for the performing arts, the camping world stadium, forbes has named orlando the number two nationally best place to buy real estate and anybody who's looking for an investment. number three in job growth and this is my favorite. number four in the happiest place to work. so, that has a familiar ring to work. happiest place to work. before he became mayor, he served in the florida senate, including as the senate leader, so he's a very experienced politician and, again, i come back to, he's been mayor since 2003, and i remember right, in 2004, he started his tenure off
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with three hurricanes and a tropical storm all in a row. >> right-. >> so he got trial by fire with what it means to have crisis communications. as i was going through your background, i was also very intrigued to see that you have a degree in civil engineering from brown university and a jd from the university of florida in some other florida city and he started off as an environmental engineer, which is a topic that's near and dear to my heart. so, delighted that you could all join us today. so, katie, i would like to start with you, because the question i have for you, you look a lot at the threat. so, tell us about the threat. is terrorism something americans still need to worry about? and specifically at home. is this a threat that's growing, that's getting worse, give us a sense of the state of play. >> first, appreciate you having me here today. i think peter explained in your discussion with him, sort of gave a little bit of a backdrop of what we worry about on capitol hill, the morphing and changing behavior of the terrorist organizations, the
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extent to which they are harnessing new media and new communications techniques to really, you know, bring new members into their fold and also inspire others around the world to, even if they're not directly members. i will say, though, in some ways, looking at the threat now, and partaking in the public dialogue, the post-isil era, if there's a silver lining to it, it's that i believe people are paying the attention -- attention to it as they deserve to pay attention to it, whereas those of us that were advocating to continue to worry about the terrorist threat and sort of the metastasizing threat around the world as different barrages of al qaeda were opening and we were continuing to partake in different military actions in more and more countries, that there was a sense in america that it was sort of not something we wanted to think about anymore. or it was something that we thought we had sort soft solved, we could deal with it overseas by military action, but we had defended ourselves and, you know, made ourselves so secure in our homeland defense that it
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wasn't as much of a problem here. i think the events, not only the rise of isil, but also the attacks in europe and america over the course of the last couple years, have actually brought the attention to it that it deserves. i think the numbers that we cite and are little sometimes, don't necessarily reflect the true extent of the threat. yes, you're unlikely, statistically, to be a victim of terrorism, but in many ways, the number of terrorist attacks we have or have not had is somewhat a sign of the success of our post-9/11 counterterrorism efforts. also, we've been lucky a couple of times. and so, i think the numbers are not necessarily what we should be looking at, but we should be looking at the fact that there are growing organizations metastasizing organizations that right now continue to have, you know, people that are completely absorbed every day in doing external plotting against the united states, whether they be -- i just came back from afghanistan. i was there two days ago.
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met with general nicholson for a long time and he likes to remind visitors that 20 of 90 foreign terrorist organizations designated foreign terrorist organizations operate within the af-pac area, many of them attempting to attack the u.s. personnel in those countries. it's a hot bed. goes back to where we were pre-9/11, so these are issues that we are still confronting. i think the organizations are resilient. i think they are emboldened. i think they can absorb a lot of our military efforts, the coalition against isil is doing great things. i think some of us on capitol hill wish they could go a little bit faster. the slower the military efforts overseas take, i think the easier it is for the organizations to absorb the efforts and to adapt to them. these are very resilient, adaptable organizations.
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but i'll end with one thought, which is i'm really heartened to see the report because we do spend so much time, when we're looking at the threat, focused on how is the enemy using social media for their advantage, and i think it's really important for us to get a better sense of how we can better use it to avoid the fear and the terror that the terrorists actually want us to absorb. >> one more question for katie. which is, so, what do you think -- if you had to characterize the view from congress and how congress is looking at terrorism and specifically at counterterrorism in the united states, is there a -- you know, how would you describe the level of interest and what members of congress want right now. >> i think, obviously, they want us to be secure. if i was being perfectly honest, i'd say the perspective i have is a little schizophrenic at times. right after an attack or even a thwarted attack, the talk for the first few weeks after it is, you know, how can we, again, harden our defenses, how could the fbi have let this happen,
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what could we be collecting more of, how could we not have known what that person was thinking and that's something else i want to kind of boost on what you said earlier. we can't expect ourselves to be perfect, especially in defense. we're an open civil society. i believe we need to do everything we can overseas to stop the organizations from existing to avoid, you know, them inspiring others to do so, to do acts in the united states, but we can't expect a level of perfection from our intelligence and defense agencies -- they can't read people's minds and in some ways, you would be expecting -- perfection would require that. so, skits africanchizophrenic i that immediately after an attack or a thwarted attack, they want to know what happened and how we could do everything to stop it. then there might be civil liberties issues that come up at a later time, why are these agencies doing xyz or collecting xyz information, so they're trying to find the balance that the american constituency is
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trying to find and to get back to something i think peter said is sometimes we can find ourselves in the media loop of, we get more attention if we're hysterical, whichever direction it goes, whether it's the hyper-libertarian side or the hyper-security side so we do see that a little bit of capitol hill. a little bit of the loudest voices sometimes get the attention. i think most folks up there are pretty strong on security and balanced in how to achieve it but we do see the same things you're trying to address in your report, we see up on capitol hill. >> so take that view, juliette, and you have a really interesting perspective on this. not just because you're you but as a federal official, a state official and then at the time that the boston marathon bombing happened, you were a cnn analyst and pretty fresh off of government service, i believe, and not only that, it was your town and what a mile from your house. so, all of a sudden, you're living a terrorist attack as a journalist, a public official, a
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parent, a resident, a victim, you know, it was your city, you were right there, so can you give us your perspective, your multilayered perspective. >> and i write about it in the book. i mean, the reference. first of all, thank you all for coming and thank you and mayor, it's an honor to meet you and katie was a -- my husband's student, so i'm sure she did well, it looks like. i'll tell him you did good in one regard. but it's a -- the boston marathon bombing both because it sort of, i think, in some ways set the stage for what worked and what didn't work for what happened in orlando, but also just my various roles, i've had, i say, my life, i've had one career but many jobs, and in state and federal government as a state homeland security adviser in massachusetts, i actually was in charge of the planning for the boston marathon many, many years before the attack, so it was very intimate with a lot of the preparedness and planning that had gone on. but as some people in the
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audience know, the brothers went to my kids' school. they lived two blocks away from us. the father's office was -- or mechanical auto shop was on one of the kids' school's corners so that was cordoned off when he went back to school a week later and yet, i had this media role in which i was trying to describe things and you talk about the local and national -- here i am on cnn and all the anchors are saying well, in newtown and i was saying, it's newton. and trying to give a sense of what was going so part of my role was just describing how the apparatus worked. why does it look like the cops are just standing there? what are they doing? and also, it was an interesting use of social media, both good and bad. i think there was the reddit example. obviously, cnn had a major reporting error on wednesday when one of the reporters announced that there had been an
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arrest when there wasn't. but also think about thursday -- thursday night, yes, when, for the first time, the fbi and those of you who work with the fbi know how historic this was, essentially crowd sourcing identification. we did not have any record of who the brothers were, so there were all these pictures out there and you saw over the course of the week, the fbi and the boston police becoming much more comfortable saying to the public, look, there are millions of cameras at the finish line of the boston marathon. the irony was, given all those cameras, right, there was not good positioning of public cameras to figure out who they were, public safety cameras. and so you saw the good and bad of sort of this crowd sourcing social media over the course of a week. for me, personally, sort of confirmed what i had been thinking about since i left dhs and there was a number of dhs people in the office and back to your point, you know, we can tend to try to rationalize away
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the threat of terrorism, particularly in the homeland by saying, oh, the statistics are so low, whatever. and what i remind people, as a mother of three, having been in this space, you know, yeah, you can say that, but if my kid is that 0.0001%, your statistics be damned, right? so we have to accept as public officials the intimacy that people feel and fear that they feel and so that does get to what i thought was so interesting about the report, if i could just comment on a few things that, in homeland security, we actually don't talk about the department as being homeland security any more than you would say the education department is education. we talk -- another pivot, essentially, after 2005, hurricane katrina, department of homeland security came out of 2001 and the terror attacks,
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2005 was what i call a course correction after hurricane ka trith tree that which we -- katrina, those try to invest the communities with a sense of trying to minimize all risks to the community so you train, you're training your public officials for all sorts of hazards, you try to maximize a national defenses, not just federal, because the department is very small, people here from fema, less than 3,000 people that work in fema. the muscle of public safety is on the state and local level, but you also try to maintain our openness as a society, and so those shifts really do complement what's going on in social media, and i -- so i want to just talk about the -- after the boom side of this and something to think about in response to the report. it is true that i think that social media has a capacity to engage communities after any
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disaster, but we can talk about terrorism specifically. in my field, you know, in 2001, we had a tendency to talk about -- to the public in a way that either made them tune out or freak out. we probably still do that, right? so that you're, oh god, the world is going to hell in a hand basket, i can't pay attention or, you know, i can't go outside my house and my kids have to wear helmets in the basement. those are how we talk to people. and trying to use social media to engage people to actually do something rather than read about it, be scared about it or whatever, and so that's where i think social media actually has this power to engage people in, you know, what we call the enterprise, which is the public, state and local first responders, ngos, the churches and the faith-based community. and certainly the network, right? and so, one thing that is worth noting is the extent to which we have become very reliant on -- on social media -- and i sort of
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put crowd sourcing and shared economy, i put all those things sort of together, so using, you know, the web or whatever to engage people who aren't physically in the same room. a lot of you are familiar with facebook's sort of disaster ping, so if something happens in paris, i advise airbnb to give them full credit, airbnb, after orlando, but certainly after paris and then in the build-up to the hurricane, you know, airbnb renters or -- they're not even called renters. i just exposed the fact that i don't use them. airbnb people who put up their homes, you know, we notify them and say, look, there's going to be people who may need homes. it's an incredible community that that's something you can do, whether it's a hurricane or it's a terrorist attack, you can actually engage and use the platform. uber, a lot of you have noticed, uber is helping out with flu
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shots because public health is part of homeland security in the sense that you want a strong, resilient nation so uber is starting to do a lot with trying to get people to get their flu shots so there are really creative ways in which we can use people's enthusiasm but also the way that people communicate now, which is no longer, i pick up a phone and call you, but we're in, you know, we follow the same people, so we may get to know each other. so those are some really optimistic and hopeful ways given, as we will all agree, that you're just not going to get the vulnerabilities to zero. not in this nation. >> that's a terrific overview and i'm going to come back to you because i have some other questions i want to ask you and i'll just put you on notice that -- so you can think about it. but one of the things that's happened too in the way that disasters and attacks are being communicated right now is it's immediate and the echo is profound. and again, sometimes how that story gets told and spread,
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there -- it's not always right information and it's not always helpful information. and one of the things that's been a ongoing concern, and we'll talk to you about that in just a second, mayor, is communities that get targeted for secondary violence, and in particular, arab-americans and muslim americans. your family is originally from lebanon, and i wonder -- that's the other layer of juliette kayyem kayyem is you've got the official, the journalist, the parent, you know, but also an arab. >> arab-american. and i wonder, especially right now, because political rhetoric is part of this picture too. you know, how do you feel about that, and do people look to you to -- as i am, right now, to be an expert on that as well, and how do you think that community reacts relative to any other community to what's happening the way information is moving. >> you want me to answer that?
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or go to the mayor? >> think about it. >> okay. >> let's go to the mayor. >> you looked at me. the mayor's like, it's not that easy. >> the mayor did think about it. so, when we looked at the case study and we spoke to you and a number of other people, reporters, your police wouldn't talk to us but we did a lot of research about them and all the police reports during the shooting. we spoke to people on your staff. you know, people who live in orlando about what happened and how they felt about it. and we're down there looking around. we came away with the conclusion that orlando was pretty resilient in how it dealt with the aftermath of this attack, and what we heard, and you don't have to agree with this, but we heard from a lot of people in the city that they saw you as the hero of the story. and that they looked to you to tell them how to feel.
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and you did. so, what i think would be great, rather than me walking through the case study, is to have you talk about that day and tell us the sort of chain of events and when you made decisions about -- specifically about how to communicate with people and what to communicate, and so, i mean, just starting with, how did you first find out that this had happened? >> can i tell you two things just to start out so i can set the stage just a little bit. everybody knows orlando, right? there's not anybody, i don't think, in the whole world that doesn't know orlando, but what they know is disney is there, and universal is there, and actually, 66 million visitors came to orlando last year, not 49. which is the most visited place, at least in america. not the world. so, everybody knows orlando, but they don't really know orlando and its residents, and you saw orlando and its residents during the course of pulse and the aftermath of pulse, but we are
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very young city. we're a very open city. you don't have to be third generation to do whatever you want to do there. people come for opportunity, but we embrace diversity, equality, fairness. we are very multicultural city, and that's who we were on that day. it wasn't something that we needed to form and tell people. it's who we were. so we had that advantage going in that day, and then the second thing is, after 9/11, and then the three hurricanes that you referenced, and we had an -- a workplace shooting that -- in downtown that had one fatality and three injured, we do a lot of emergency training and a lot of it's -- a lot of it is weather-related, as you might speculate, but we also do a lot of active shooter training, and we do it not just as the city of orlando but we do it on a regional basis.
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so, all our law enforcement people know each other. so, when they showed up that night, it's not like they're meeting each other for the first time. they're all together. they know how they talk. they know how they act. they know what to expect. and then interestingly, we had been following the national trends, like everybody else, and we usually do hurricanes, we do active shooter, but we actually did a tabletop on civil disobedience after ferguson, after baltimore, and it was a wild scenario that i don't think ever could happen, but it was an african-american being shot by a police officer in one of our troubled neighborhoods with the naacp convention convened in town and then a rapper that was going to perform that night. so you can imagine -- >> that's your scenario. >> that was an interesting scenario to deal with. but through that, we understood how important communication was all throughout this, and we
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actually now had a esf function that was simply social media. we actually had that broken up. esf. >> emergency support. >> i usually don't bust into acronyms. >> i spent a lot of my life in the pentagon so i'm going to call you out on acronyms. >> but anyway, we had plans on how to communicate. for instance, in a civil disobedience, it would be through police twitter. through hurricane, it would be through our twitter. so, we have some stuff in place. >> the roles and missions were defined. >> right. but you can never anticipate. we never anticipated what was going to occur, and it would be hard to ever imagine that that could occur. so, the first shots were fired at 2:02 or 2:03, somewhere in that range, and i got a call at home. i was asleep, about 3:00 in the morning. and the call was, mayor, this is deputy chief bobby enzuedo.
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i have to inform you there has been a shooting at the pulse nightclub. there's an active shooter. there's multiple casualties, and it's now an active -- or it's now a hostage situation. the command center will be set up at a certain location on orange avenue, which i guess you saw at some point. so my first thought, i'm a dad, i immediately -- the next thing i did was call my 26-year-old son, trey, to see where he was, and i don't know that he's ever been to pulse or whether he frequents there or not, but i just wanted to make sure because it makes your job a little bit easier to do what you need to do if you know that your family members are all safe. my wife is in bed. he was, turns out, in bed as well. my next call was to my deputy chief, heather phafagan, who's communications guru or queen. >> everyone we talked to said, make sure you tell heather that we talked to you and that we were helpful, so obviously,
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heather has a lot of sway over these situations. >> so, my police liaison was already on the way to pick me up and we agreed that we'd pick heather up second so she'd have an extra five seconds to do her hair or brush her teeth. >> probably the last time she did for three days. >> and we went on down to the command center, got to the command center, and it's a big giant rv trailer type of thing with basically two rooms, a command room, and then one that has a lot of technical equipment that's being manned by the others. we come in and it's the chief, two or three of the deputy chiefs, the fbi, the fdle, and three sheriffs from either orange or surrounding counties. and we had discussed on the way there, what's my role? when i get there, and we'd done all these types of scenarios and everything, but i never envisioned being in the middle of the night in that type of tich situation. and we -- heather and i determined that i, number one, needed to stay out of the way of the law enforcement. and let them do their jobs
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because they're trained to do that. number two, we needed to make sure that i supported and did not undermine the chief's authority, even though i'm his boss. and make sure that everybody saw that i understood the chief was going to make the final call on any decisions that were made. and the fbi and the fdle and the sheriffs were acting in that same fashion, which i just took as very professional. and then, third was to gather as much possible information as we could, because we knew we were going to have to communicate in some fashion at some point. >> and you told me that that was really important to you, that you mean toed to -- that you wad to be able to communicate as much information as you possibly could as early as you possibly did, and why did you think that was so important? >> even back to charlie, and i've seen this time and time again, if you don't provide as much information in a concise, accurate way, then somebody else is going to fill in those gaps and probably with not accurate
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information. so the more information we could get out in an accurate manner and not in a manner that people stopped listening but they want that information, i think it helps you serve the purpose that you're going to serve. so, when we got there, the chief updated us on what had occurred, and i could go through that if you would like or move on to communication. >> well, what -- at what point, then, were you ready -- was it not until about 7:30 in the morning that you -- that you had your first press conference, right? >> so i'll shorten the five-hour time period or three-hour time period. so, the incident occurred, the opd and the s.w.a.t. team had the shooter confined to a bathroom. all of the living victims were evacuated. they evacuated a couple dressing rooms that had not gotten out early on. so, really, early on, everybody that was in the main part were
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on the way to the hospital and then by 4:30, everybody else except those that were in the two bathrooms where the shooter was. >> we know that some of these people were sending texts and phone calls and videos. what we found was -- and i'm wondering if you can confirm this -- that it was mostly point to point. meaning they were calling or sending videos to family members or to first responders. they were not broadcasting. they were spending it to someone. >> no, they were not broadcasting. they were either texting or in some cases actually calling family members who were then calling 911 or directly to 911 in some cases, and some of those calls have been released. and they gave us a depiction. that's actually how we found the people in the dressing rooms and were able to get them out. we knew roughly how many people were in one of the bathrooms and we knew where the shooter was, in which bathroom and how many people were roughly in there. the -- what happened, though, from those, you also got some
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inaccurate information. >> right. >> so, the shooter was in contact with 911 and then hostage negotiators three different times, and indicated that he had explosive vest and that he was going to detonate had explosives in his vehicle that was parked outside. that was confirmed by some of the people in the bathroom, so they must have overheard him tell the hostage negotiators that, and then they confirmed it to 911, the guy has an explosive vest on. so we have to assume at this point since it's been verified that that's the case. and that he is getting ready to act. the chief gave an indication that at that time it was time to breach the building. s.w.a.t. had gotten into place, placed explosives between two bathrooms. they were hoping to break into the bathroom where the shooter was not so they could get them out. they put explosive charges and it did not break through the wall. we had a piece of equipment
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called a bearcat that was then employed. just as a side, i took a lot of heat when we bought that because we were having discussion about the militarization of the police forces. >> a little satisfaction. >> i was very happy we had that bearcat. and they breached the wall in several different place, and we evacuated 15 people out of the bathroom that did not have the shooter. oh, and he had thrown diversionary devices in there. so he was probably a little disoriented. our guys returned fire and killed him. and that was 5:15ish at some point. >> so at this point you have -- and by the way, all throughout this, the shooter -- and you've never named him. you've told me that, that you've never said his name and you just don't consider him a relevant person. >> once he was dead, i didn't need to think about him. i didn't need to act upon him.
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that was somebody else's job. that was the fbi's job. and certainly everybody else could commentate about who he was, why he did it. i'm not sure today why he did it. there is a lot of speculation about that. by the way, the instant he was dead, the fbi said we're in charge. it's a terrorist event. it went from opd being in charge to the fbi being in charge, so we needed to follow their direction because it was an active investigation, but they had even then determined it was a lone shooter at that point. so we had that knowledge. they had a lot of information already about who he was and where he'd come from. >> all throughout the attack, by the way, he was using facebook and he was posting to facebook. he was googling himself and seeing if he was trending. now facebook was taking them down. i don't know how fast, but they were taking his posts down so they didn't necessarily get wide play but he was all throughout
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the attack broadcasting and trying to shape his own story. >> so we didn't know that at the time. fbi assumes control of the investigation. we start the discussion about how do we inform the public. >> that's about 5:30, 6:00 in the morning. >> 5:30, 6:00 in the morning. and we actually had a little discussion about whether the fbi or police were going to leave lead out, and we pushed back and said no, i have to lead out because i'm the person that they know. ron hopper is the best fbi agent i know. but when he goes out there, that's going to scare people. nobody is going to know who he is, whether to trust him or not. if opd leads out, that sends a whole different tone than if your elected mayor comes out. we got them to agree to that. i'm going to tell you quite honestly we were fortunate in that regard because the fbi's federal spokespeople weren't there yet until the next day.
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and we might not have been able to convince them, but we were able to convince the local agent in charge. that that's the way it ought to be. >> so note to any fbi headquarters officials that are listening, it's really good to have your local official be known by the community in charge of setting the tone in the communications. >> so we were able to i don't want to say dictate, but kind of lead throughout the course of the first day in setting the tone. heather and i had a substantial discussion about what do we want to do when we go out to that first press conference. let me divert just for a second. we delayed a couple of hours until 7:15, 7:30 in that range because there was still the possibility that there was some explosives in either the building or the vehicle. >> i remember you telling me you thought this was going to end with an explosion, a suicide. >> i did think that because we believed he had those explosive vests and i was prepared for the building blowing up with everybody in it.
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fortunately that was not the outcome, but we still thought that there might be explosives in the vehicle and we did not think that we would instill confidence in the public if we came out and had a press conference and his car blew up in the background while we were having a press conference. so we delayed having the press conference. and what we wanted to do was convey accurate information. we wanted to -- and we talked specifically about this. we wanted to calm everybody down and instill confidence that we had this. we were in control. and we wanted everybody to know we were safe. so those were the words and types of things that we crafted, but i also from the very start and i guess this might intuitive. i don't even know why we said this, but we came out and what became our guiding principle was we're not going to be defined by the hate-filled act of a
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commented killer. we're going to be defined by response, which is going to be love, compassion, and unity. and that kind of rallied, i think, our community behind that. >> and then there was another press conference a few hours later, and you added some players to the stage for that one directly germain to what you just said. so tell us a little bit about that. because you also were thinking about the potential for secondary violence. >> while we didn't mention the killer or know for sure what his rationale was, we did know who he was and his religious or ethnic background. >> and you see what he said on the calls, that he had claimed allegiance. >> yes. >> to isis. so he was a little vague on the details and he used some arabic phrases. you knew that from the very beginning. >> we have certainly seen in the past there can be hostility toward muslims and americans in
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a circumstance like that. and we wanted to do everything that we could to diffuse that. i had an imam who i know and i trust and i knew what he would say come to the very second press conference that we had. a obviously it would have been hard to get in there for the first one. he was right there for the second one and he set the right tone by saying this isn't what the religion is all about. this is an isolated person. we do not support anything like that, so that message was out there straightaway. >> so you didn't have to guess on who you could call on. these were relationships you had? >> i do have the benefit of having represented orlando in the senate for ten years and as mayor for roughly 14 years, so i've been pretty much everywhere. if this would have happened in the hispanic community -- well, it did more or less. or let's say the african-american community, it would have been the same in terms of having connections, and we work really hard at doing
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that, which is another part of the making sure we don't have the civil unrest that other cities have experienced, making everybody feel like they have a seat at the table and then knowing people. >> you thought about all this and you called upon the community to be part of the response, and you gave them a role. then there were open mikes. talk to us about the danger of an open mike. >> so were you there the very first day? so the way we had this set up -- usually, you have your press area a little more controlled than we did. once all the main press got set up, we did, but the press area got set up on a side road and it wasn't monitored that well. we came out and did our first press conference. we went back into the command center to figure out what we were going, second press conference, get more news. every politician in central florida that could reach the area had reached the area and it was open mike.
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a people were taking to the microphone, and most if all of them didn't actually have any information other than what had been shared by cnn or the news stations, which may or may not have been accurate at that point as well. and then we were -- one of the more difficult things is trying to follow the fbi's suggestions. they were generally a little more than suggestions on what information that we could convey. they didn't want us, even though they knew who the shooter was, they didn't want to us to verify who they was. of cnn and msnbc and everybody else is doing a profile on the guy. and we're going out and they're asking do you know who the shooter -- no, we don't know. we have not verified who the shooter is. that's after the first press conference. the hardest part of anything i did that whole time at the end of the first press conference one of the reporters asked the
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chief in q&a, we understand there are 20 dead. is that right? and the chief said yes, but it there are 20 dead or at least 20 dead. we're not sure. we already knew there were more than that. we turned to walk away and i said, chief, we've got to get an accurate count the next time we come out here. we have to be able to tell them exactly what has happened. and heather was walking towards us with this -- i don't even know how to describe the expression, but let us know there were 50 people deceased, not 20. so the second press conference i had to come back out and that was the very first thing. and to your other point, one of our congressman -- i come walking out. he's got the mike, giving a lot of disinformation and a lot of heated political rhetoric. it is like remove him from there so we can get down to business. >> i want to point out voters removed him recently. i'm not saying there's causality
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there, but how he chose to talk about the attack didn't help him in his re-election bid. just an observation. >> it wasn't helpful to us. or anybody else. >> right. >> so i had to come out and tell everybody that it wasn't 20. it was 50. at that point, i knew that i had to keep my calm and keep my cool because if i broke down that was not going to be good for anybody, so that was one of those really deep breathing exercises where you take a really deep breath and say everything you have to say before you take the second breath. i can tell you looking out at -- say this was the press corps. there was a lot of seasoned people there. there was an audible reaction. >> we heard that from a number of reporters who were in the
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room, that they were shocked and that there was a gasp around the room. >> it was shocking. >> let me ask you, you know, one thing we heard from everyone we talked to was this feeling of being overwhelmed. just overwhelmed by what had happened, but also overwhelmed by the amount of information that was coming in, especially once the rest of the country woke up and woke up to the news and the social media spiral began, that the amount of questions, the amount of speculation, all of it was overwhelming. we heard this from everyone. we heard this from orlando sentinel reporters, from everyone we spoke to. it would be interesting to hear you talk about that, but also we were very impressed with how the police in the city used social media to sort of manage that onslaught and influx, but also how much worse this would have been if it had happened in the middle of the day.
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that feeling of being overwhelmed would have happened immediately. >> there's no doubt we were able to handle the communication aspect of it far easier -- i don't know if easier is the right word, but in a more effective manner, let's say, because we had three or four hours to get prepared before the onslaught came. we totally activated our emergency operations center. we had our communications people there. we had our social media people there. so we were able to -- we had somebody monitoring all the social media coming out of any of our different areas, and we had a protocol in terms of press, in terms of press requests. oh, my gosh. i have no idea how many of those there actually were, but we had a team that everything filtered through. and that was on the city side. the police side of stuff came through my staff, the communications staff.
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then i told you we had the protocol in place that since it was this type of incident the outgoing feed would be through the opd twitter feed and everybody else would take from that feed as well as our regional partners. everybody else, whether it was orange county or osceola county were also letting opd disseminate the message and then retweeting or reemphasizing that message. >> so if reporters called, they got a message that said go to our twitter and our facebook? >> right. >> and that's how they got information. >> and we tried not to have press conferences just to have press conferences. we only had three main press conferences that first day. the second one was to convey the numbers. but also to start taking care of the victims and their families. so we had established a hotline for anybody that had information about anybody that might be a victim where they could call and then we set up a website that was going to have names of
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victims on there. that became a very tough thing to manage as well because we set up a victims' assistance center where the families could go to people asked me mistakes we made. that open mike was one. second was not having a secure location that the press could not get to the family and victims because they were there tracking people from the car to the building and back. so day two we went over to camping world stadium where we could park people in a secure place and they could walk in without the press being able to get at them. but late in the day, we were able to evacuate the victims from pulse to the medical examiner's office. that's a county position. the guy had been on the job a week, i think, at most. he had not even been confirmed
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by county commission at that point. but we emphasized to him how important his job was because if we went a day or two without identifying who the victims were, we'd have a different narrative going. he identified 48 of the 49 victims overnight. i came back in at 7:00 and that was the next press conference we did was letting everybody know that we had identifications. he was able to identify the last one, i think, by about noon, but that was critically important. he also had the presence of mind to take the killer into a different building and do the examination totally away from where the victims were. >> i think, juliette, to turn to you now, what you're hearing is that the mayor focused on victims. he focused on telling his city to show the world that they were -- this didn't define them and specifically they were lgbtq
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friendly, but also he focused on the imam and the message that this was not the community's fault. it was not the islamic community's fault that this happened. this gunman did not speak for them. now, i think in orlando you saw the city respond to all of this. however, in ft. pierce, there was an arson event at the mosque that the shooter used to worship at. also a mosque in tampa was attacked. so i think this generates a lot of fear in the muslim american and arab american community in a lot of different communities. i wonder if you could talk a little about that. also, there's been a lot of rhetoric in this campaign that's given people -- that set the stage for this to be an echo chamber. and i wonder if you can talk a little bit about that. >> i can and i talk about it not
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just because i'm arab-american or christian, my family. but i actually want to talk about it as a homeland security policy and some of the challenges or how we think about it in terms of homeland security and counterterrorism. i do want to thank the mayor. as you're sitting there, i think gosh, i hope you memorialized this because i know it's hard to do. you don't know for generations people will want to hear your story to learn from it, including the mistakes. >> i have these little handwritten notes from each press conferences and i kept a journal the first four weeks. >> to peter's point, when he said what makes a resilient society, i teach on resiliency. one attribute is that rigorous lessons learned. i know you will look back and know did you things right and wrong and there are questions about the police waiting and whether that was right or wrong. just thinking about the obligation to unfortunately the next mayor.
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and i had been -- this idea of orlando, i had actually been in orlando two months before doing a speech to your police department on counterterrorism and how to think about it, because they are so serious about it. was the first time i got a flavor for the non-disney orlando. i have three kids. the disney orlando. there's better than the disney orlando if you have three kids. it's an amazing city. if you just go in, fly, go to disney and back, that vibrancy was really captured. i think that's what really helped the city in terms of that sort of sense of sort of we're in this together, we're all victims, we're all unified in the response. in some ways in this lessons learned, your immediate reaction in terms of who you're reaching out to in the community so they could be not the first spokesperson but the second, third or fourth spokesperson,
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i think the challenge for mayors that might not be as sophisticated as you are who are those spokespeople. you will find people on the other side. we certainly know that. a lot of times it's not the imam. the muslim community is as diverse as any other. you ask me who represents the jewish community. it's not necessarily the rabbi. figuring out who is the leading muslim doctor in the community who can come out, who is the leading big business owner and stuff, having multiple voices as well that aren't just through the religious lane. because in some ways the muslim community is as diverse as the christian and the jewish and other communities. i will say, and we were talking about this before, to the extent this islamophobia and this muslim bashing in this campaign is so outside the mainstream of a bipartisan sense of what is homeland security cannot be underestimated or underscored enough. i mean, there is -- for good or
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for bad, there is an established national homeland security community. it has from the moment george bush went to a mosque a few days after 9/11 to a very rigorous outreach by your former boss and predecessor to my boss, department of homeland security to what mayors have learned, which is community outreach through your diverse community is important. mayors have taken on the department because they don't like what we do with immigration, some of our immigration policies because they know that outreach and getting communities to come out is the most important thing rather than enforcement. so it's just a complete outlier. what i want to remind people it's an outlier not because we're a diverse nation and we need to be respectful of other religions. if you ask people in homeland security what makes america safer. i never say safe, i always say
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safer because we try to minimize risks. our oceans really help. let me tell you. you cannot drive from door chester to damascus. so what is going on in europe is very, very different. but the other attribute is our capacity to integrate the other. so you look at los angeles with the mexican community and you look at my city, boston, the irish, who basically -- and they'll be proud i'm saying this. they run the city, or dearborn with the muslim community, that that capacity to create generations of immigrants that are invested in america's safety and security is really probably our most successful and in some ways accidental homeland security strategy that has reduced the risks. if we do things to alienate those communities or radicalize
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those who are not or, as you were saying, the complicated nature of some of these cases, it looks like a couple of them have behind the isis some sexual orientation aspects to it, they are questioning their sexual orientation. certainly that's the case in orlando. just thinking about our outreach to communities as being an important part of our efforts and the extent to which this bashing of certainty communities or profiling you're hearing from i'm just going to say it, from giuliani who certainly should know better is really so outside of a bipartisan acceptance of how we go forward after a crisis like this. >> katie, do you agree with that? >> i actually do. i was going to say one of the unique things i have in my role being in congress is when i do
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international travel the embassy can allow me to speak to foreign officials with a partisan voice. the embassy doesn't like to do that themselves. they try very hard not to. over the course of the last year i go to the middle east probably every month or so, meeting with foreign officials. they want to talk to me most of all about the rise of donald trump and what that means for america, what that means for them, the likelihood of his success, what his sort of anti-muslim rhetoric means. i take that opportunity to actually dispel some myths that it is somehow either a majority of america or the majority of republican party that believe the extreme views, the interpretation of what he is saying, to put a nuance on it. some people i know can be very conservative on the immigration front and therefore even out there in america aligned with trump don't necessarily agree with his rhetoric of anti-muslim rhetoric. i definitely agree it's not
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helpful from a security standpoint to be so divisive with that world, with the arab world in particular. we thought about that a lot on the hill, at least among the staff that it's made it harder. i would agree the national security, i think, general view of the last year has not been particularly helpful to our safety. >> does it hurt resilience, too, is the question, here at home? >> i study a little bit less. there's a community of resiliency. i would to assume so. if the voices are divisive and you're putting neighbor against neighbor, that's not going to be helpful to a community rising up out of potentially bad situations. >> how much do you think -- one thing going back to the nature of the threat, a lot of the recent attacks have been self-radicalizing american citizens. it's not necessarily a foreign
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threat in that sense. it's a self-radicalizing group of americans. >> absolutely, and i think that's one of the most -- >> is that what we are going to see in the future? >> hopefully not. hopefully we can figure out a way to solve the problem before it gets to a point where we can't stop the threats out there. i think that is -- anybody that is particularly disillusioned or doesn't feel a strong community, you don't have to be an american citizen or not an american citizen. i think you're susceptible to the kind of messages that these violent organizations can put out. and i think the difference with the terrorist organizations we have right now is they're just exceptionally good at it, and particularly with isil have taken their media campaign to a whole new level. anybody susceptible -- when we are getting briefed and that's one of the benefits we have on the hill is the agencies come and will explain to us what they are seeing, it is self-radicalization.
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it knows no citizenship. >> juliette, now that you've sort of changed sides here, at least in terms of whether you're a public official or press, how much responsibility should the press have to people like mayor dyer when something happens? is it their job to calm the public? do they have a civic responsibility? do they take it seriously? are there guidelines? >> i can only speak from where i work which had mistakes. certainly people -- they're election focused right now and that's cnn. i used to write columns for my local paper, the "boston globe." so i know sort of both extremes. i'm surprised how they do want to get it right. in other words, the reporters -- they want to get it fast, but also want to get it right. part of the obligation, and i think you heard in the mayor,
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you need to get -- you can't get your numbers wrong. that's what i see killed -- i was on the government end during the bp oil spill. we got our numbers wrong, how much oil was spilling. we never recovered from that. get your numbers right. take the time to figure out the bad news about 50. i probably see it less. it was the first time i had been down to an event. cnn asked me to go down. you do see the vulture aspects of it. i'm more an analyst. i'm essentially watching tv and then going on air, which i think just has to be managed by a real -- something i saw orlando do which is a helpful lesson learned. there are so many rumors going around. i will tell you there was a rumor that the body might have been a second shooter. remember, they couldn't identify the body. that was one rumor. the other one was whether the s.w.a.t. team had taken too long to go in. and that started to be a little
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bit of a narrative. what you guys did on twitter was really important, which is you acknowledged that you understood that there was that rumor mill so you didn't look like you were stupid and didn't know everyone else is talking about this. like the paint you made. we are aware there is one more body to be identified or we're investigating this. in some ways by acknowledging it you sort of protect yourself even though you're not buying into that narrative. i think that's something because public safety tends to be slower than social media, and twitter trends is something public safety has to get better about, which is you see it coming. you can't act like it's not happening. right? and so just acknowledging it even i think is key. >> were you watching the twitter trends? were you keeping track of what was popping up? >> yeah. he wasn't, but she was. >> somebody was. they would not say i'm on the social media guru of the city of
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orlando. can i respond to one thing on the press though? >> sure, yes. >> we as the city wanted to get out a lot more information than we ultimately did in the early time frame because the fbi had an active investigation. their thought process was if we're trying to figure out if there are other people that are involved here, if they know intimate details of what happened in the club during the night and we can interview them and they have information that has not been yet conveyed to the public, that's part of our case. so the fact that they went in and we had most of the victims cleared by 2:30 or what was going on in bathrooms and all of that type of stuff we would have loved to have put more of that information out there, but our hands were kind of tied by the fbi. and even the explosive devices part of that, they didn't want us to do that, and i ended up at a press conference by myself a
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couple days later and just told that to get it out there. because without that part of the narrative, if you don't know that we think there's explosives in there, again, you're left to speculate why did you wait so long. >> and in the way things move today that story could be set before you have a chance to set it straight. >> exactly right. at this point, i'd like to invite the audience to have ask questions. peter, if you come back up, i'll give you my chair and i'll come over to the podium so i can field questions. so if you have a question or comment, if you would please identify yourself, what you do or who you're with and pose your question. again if you're going on a monologue, i may cut you off. lisa, please. lisa simms? >> hi, i'm lisa simms. i'm actually here with new america. >> and the co-author of this
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report. >> thank you. i'm going to ask a question on behalf of dr. vazquez at ucf, actually. he says i wonder to what degree the approach of mayor dyer and his staff in managing information might have been under different challenges. for example, had a recent terrorist attack in orlando more closely resembled the dynamics of the boston marathon bombing where there were spchts on the run for three or four days before they were caught, it would have made it hard to stress the community was safe and we have this under control in the first press conference. >> we had the same situation the gateway shooting which was a shooting in an engineering company by a disgruntled former employee who came back, killed one person, shot three, and then escaped. and we had no idea where he was, that there was lockdowns. i-4 was shut down so there was no way to come out and tell the community they were safe. fortunately we apprehended the guy within probably a couple
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hours and were able to come back out and actually the interesting thing about that is i was walking out to do the first press conference and they ran up and said we got the guy in his apartment. so the first press conference i was able to go out and say that we had the guy versus having to go out and say we think it's one person but we don't know that for sure. but it would have made it much more difficult for sure and i think in your study there's talk about the shootings that occurred over a period of time in this general area. >> in this city, which the beltway sniper case was not actually considered a terrorist attack because there was not a political or ideological motive involved. however, it is instructive as to how something that takes place over a long time with a lot of uncertainties, there's been a lot of studies, social science studies that say it's much more traumatizing for the affected population when you have something that takes place that
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has so many unknowns where people don't know who the shooter is, why the victims are being chosen. so i think something like 50% of the people in one study were showing signs of ptsd, even if they didn't live in the immediate affected areas so it's a much more difficult challenge i think. juliette, did you have something to add to that? >> no, i think that is absolutely true because i think the fact that they didn't find the brothers, the tsarnaev brothers for four days added to the stress. but just back to the point that you were going to, i wrote down your great line "defined by the response" that resiliency and i i think that was true also for boston. i mean the story, we say boston strong, which i really don't like because it makes it think it was a good mood, a strong irish stock that got us through it. really what it was, there were three people that died in the boston marathon. close to 300 people were sent to area hospitals. no one died. so for a city looking at those numbers, that's -- i mean in my
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world those are incredible numbers and you can't say it's good news. but when you look at the alternatives, it was incredible news. so in many ways thinking about the response writes the narrative. the rest of it can be stressful but i think the narrative of boston was also written by the response. >> i would add one thing on the challenge of those incidents that drag out is you can't do what we talked about earlier which is put out truth to control the narrative. instead, what you have we could see this moving out of the realm of terrorism, when the malaysian airliner crashed. instead the narrative becomes the hunt for the narrative. it becomes speculation, competing theories, and that's the feeding frenzy, and then in turn, that's what boasts social media, to be blunt, what cable news specializes in. they bring on the different
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competing narratives and try to have the contention around it, and we're going to have to -- i think we see from the orlando case, a case study in many ways, in best practices on how to respond to a particular kind of terrorism. we don't have the best practices i believe in these other kinds. >> that's true. we'll take the next question, please. >> thank you. i'm jeff stein from "newsweek" magazine. this has been a fabulous panel. i want to salute the mayor for telling his very instructive and poignant story. i found it very moving myself, but i'd like to go back to something peter said earlier in the subject of info wars, particularly with russia. i think you said, peter, that the answer is to bury the lie in a sea of truth. did you say that?
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>> well, actually -- well, yes. that's also a tactic that we may be seeing arguably with some of the massive data dumps, too. >> and yet someone else cited a study or observations that when you're confronting someone in an argument, and the more facts you lay out, the more they dig in, and resist, so how can -- can you, peter, or anyone, untangle this sort of contradiction here in terms of dealing with let's say the russian info war? and it applies to china as well. >> i think that what we're getting at is not just a sea of truths but a sea of voices, what you were speaking about in the orlando case was there was multiple different challenges. channels. i don't mean tv channels, but channels of information coming
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from the government and yet they were fairly consistent in their messaging. what is both the skill of the russian information warfare campaign targeting elections. and look, it feels new to americans right now, but it's happened. it's a playbook that has been used in ukraine and hungary, arguably targeting brexit. by the very nature of these elections, there isn't unity. there is sides. so this may be something to hear from the others about. i've been disappointed but in some ways maybe not surprised by the reaction, which is instead of looking at this operation and the hacks that accompany it as sort of an attack on america as a whole. it quickly was moved into a partisan lens, even down to the fact of whether you think the
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russians did it or not, we've got, you know, on one side a political candidate. on the other side we've got basically the entire cybersecurity community, the fbi, the intelligence community, but still it's flown into partisanship. that makes this i think tougher if you don't have that to be, if you're already divided. it's just very hard to be resilient. just goes back to the success of that toolset. >> i'll just add from the perspective this feeds back into something we were talking about earlier in the extent to which something became partisan and was not seen as a problem for america and something we should push back against as an american security threat. you sort of lost a lot of the security officials on the republican side i would say from that argument. i know a lot of people that that was sort of the moment when we can't stand for this anymore. i will add to it from my perspective we have a particular problem with the russians. they obviously are perfectly willing to deal in falsities and
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america doesn't want to. that's not how we behave. and yet we have multiple problem sets on the ioc. you have the russian and the nation state propaganda machines that are very complex and have been around for 50 to 100 years and they know what they're doing. >> americans, we find it sort of distasteful to think of american government doing something to counter that, and the other side of that is the way isil and other terrorist groups can use propaganda through sort of their network and delegate that ability to tweet and send out messages to the field level whereas we still have this knee-jerk reaction. because every tweet, every tactical tweet, can be a strategic problem for decision makers in america. we have to pull up the counter messaging to the highest levels of governance. you have a white house decision on how to counter the message of an isil tweet. we're never going to get inside their decision cycle. and they're always going to be inside of ours.
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that is something from the congressional side we're trying to think of what do we do to help the executive branch sort of deal with these various information operation problems. >> just not on the substance of the podesta, if you're russia this is the time you manipulate the data, right? because everyone is sort of lulled into these aren't that interesting. they like the gossip. but this is the moment where you might manipulate it. i want to remind people there's a second wave which i find real rigging which is the attacks on the state and local apparatuses that do the voting. i think the story line is getting lost in the sexiness of the politics. as a structural aspect of the u.s. governance, we have about 9,000 electoral systems in america between local, county, state. they're not, you know, what your locals -- how much money you're investing in your local cio and those apparatuses, and that to
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me is just this vulnerability that -- no reason to believe it's happening now, but just that manipulation is happening now, but even the sense that we can't control the networks, that we are dependent on for voting, you know talk about the narrative, that's a bad narrative to be out there. >> is this also as far as how we as a country defend ourselves something of a jurisdictional problem? >> i always say homeland security is not a technological problem. it's a governance problem. if you wanted to set up a nation that from the beginning -- you have divided government. you have state, local, you have counties. you have a tenth amendment reserves public safety to the states. you have federal immigration laws. you're not going to solve it. you can try to make it work better, but you're never going get the result. but on elections, it's true of
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almost everything in homeland security, having been on the stateside. the governance tends to be the largest challenge. you sort of alluded to it a little bit. you can't tell a senator who is running or a congressman running for senate to get off the stage. it's a hard thing to do. >> you can only tell them if you're coming up to do a press conference that you need the stage. no, it's hard to tell them they can't command the mike. even after press conferences, how people come stand behind you, then it appears that they're part of the press conference, and they step up to the mike, even if you walked away. so that's exactly right. >> and i think that just on the voting thing, the problem is on the local and state side. there's really no federal authority over it. we just -- we don't have a system like that, so the feds, the dhs, can provide best practices, give money to support it, but you're not completely
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completely dependent on miami-dade county investing in some cybersecurity effort, which we -- >> in florida we never have a problem with counting our votes, you can be sure of that. >> sorry, i forgot who i was sitting next to. let me choose another example. >> so we may have to reconvene in a week or a couple of weeks and talk about this in light of the election. do we have another comment or a question? sure. >> thank you so much for this panel. it's really very engaging. my question is about counter narratives, which was alluded to i think just now by katie. given that those who carry out these types of attacks appear to be desiring to become heroes of their own story, how do we help promote counter narratives in which they could become heroes of a better story? >> at least the counter narrative that i've seen talked about don't necessarily have them try to be heroes of a different story but make them not heroes of their own story,
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so at least when you're looking at sort of the way the counter -- the terrorist groups -- you're right. they try to always show themselves as being successful. right now, we're -- we have operations in mosul. they're spending their time for other attacks in other places to make them, the mosul problem, seem like less of a big deal to them. the extent to which we can counter that narrative showing their failure, showing they're not ten feet tall, that they have some governing structure, but it's not nice to live under them, that's mostly what i've seen us trying to do. the challenge is getting it out i think at the speed and volume that thus far they've been able to and to be able to reach all the voices that you need to be able to reach. >> peter? >> this idea of narrative to use the term hero part of a good narrative there's elements to it
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and one is strong characters. and the counter narrative that we do sometimes -- and it goes to what you were raising of being very official -- lacks that. so if you're thinking about the success here, it would be both on the hero side. so the alternative heroes, and hitting some of the aims. if the goal is to create unity, to keep a certain community from being demonized. getting to this there is this sort of narrative out there. why don't muslims -- why don't they point out terrorism or why don't they speak out against terrorism. and instead it's a counter narrative of both identifying, for example, heros in the stories that might be from that community. and so we've seen that, for example, in the paris attacks where it was a muslim who hid jews from the attacker in his store to i believe if i'm
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remembering this correctly, it was one of the s.w.a.t. team members was muslim american. in turn, the counter narrative against an isis is to point out oh, by the way, the group has killed more muslims than anyone else. and that's true whether you're looking as a whole, the story in mosul to the victims of these bombings have consistently included or attacks have consistently included muslim americans. so when we're telling the stories of victims, to make sure that what defines these, what makes this group so anathema. it's not just boston strong. they're going against all of us together. so trying to find the key elements of narrative in our pushback as opposed to data dumps. numbers are important. correct facts are important. but also having a narrative that is thought out in your counter is key too. >> juliette i know you want to
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say something. you focused on what kind of city you wanted to be. . and that was the story, the alternate story that you gave. >> and actually, in reading your report, your paper, i think we were doing something that was intuitive to us without knowing it was in the confines of the type of response that you suggest we made. >> right. i know you weren't thinking of it in that mechanical terms. the fact is that's what you did. you gave a different narrative that was a powerful one. >> in hindsight i would say that as yes but i don't know that i was thinking that exactly at the time. >> juliette? >> i want to add something to what peter said. i think what that means is you think the best counter narrative is that life as a man, life in isis, you're going to die, essentially or be killed. and as a woman, it's not roses. and there is this -- they were very much promoting women coming, jihadi chic, sort of having women come. one of the more interesting
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things that's happening is to figure out ways in which we sort of forgive the former jihadist. you're starting to see some courts. as long as the person wasn't successful or killed a bunch of americans, get court sort of gives some leeways so you can get these conversations out there, both in europe and here in the united states. there is an interesting case which the judge essentially said, you know, for lesser time we want to hear your story. because that story is going to be the best narrative. so this sort of lock 'em up attitude may not be the best long-term strategy for counter narrative. >> i think too, one of the signature aspects of social media, and peter, you mentioned it, is this hunger for authenticity and also for humor, for making light of things. how many times in a day do you get something on social media that's funny or a joke that also seems to me is as someone who is trying to help build a narrative how do you unlock that collective thirst for
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authenticity and humor, and sort of skepticism is part of the challenge, too. you can't manipulate it and make it happen but when you show they say they're this but show people that's not what they are, seems a lot of times the collective will takes it from there, sometimes not always in the right direction but there is that. lisa, you had another? >> i actually have another question from the university of central florida audience and this is from a student. mayor dyer, are you comfortable with current plans for a scalability twitter public relations response should the pulse attack occurred in a work day rather than at night? >> it would have been a far different experience and communication challenge if it happened during the workday. heather and i were talking about it earlier today that not only would we have had the communication aspect but we'd
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have had thousands of employees and businesses instead of being in the middle of the night with nobody around except the people that were inside the pulse nightclub and the first responders, so it would have been a totally different reaction and although i don't think if it would have been at 11:00 the bar would have been open. so that aspect at least would have been different. it would have been a lot more challenges. i think our protocol is still right in terms of how we would do that, but certainly the other organizations that are gathering information and conveying information, the amount of social media that would have been out there retweeting or tweeting to begin with would have been far more difficult experience for us. >> is that sort of social media and communications exercise part of national level exercises, juliette, when we practice at a national level for incidents, are they exercising that aspect of it? >> yes, it is but i think look
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you can't put lipstick on a pig. if your response is not good and you're not going to make it look pretty by a really strong communications choice, you essentially need both. but, you know, it's taking longer than i think most people like to get the social media viewed as probably -- i don't want to say it's more significant than local news, but it's as significant. so that chain is just taking longer of sort of what does it mean to be out there with tweets? who are the people doing it? do they know how to do it? are you live tweeting? do you know how to do it? that's going to be i don't want to say generational shift but as police chiefs get younger as others, that's going to be, they're going to have grown up with facebook and twitter and feel more comfortable than it being an alien thing. it's still taking too long. i would say.
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>> katie? >> i just wanted to add on the federal level we sort of have the challenge that we recognize with the fbi which is that is not closest to the people. it doesn't have the authenticity. if you have whether it's a big state or out of fbi to talk about an incident or dhs. it's one of the challenges on the national security side we were talking about counter counter narratives. it's really hard to think about the u.s. government sending out a whole bunch of tweets about how great it is in the west and how awful it is under the caliphate. it doesn't necessarily -- it's not the voice that should necessarily be doing it. we're constantly thinking about who should be the sort of step above that should be sending that message. but even that then who is the clearance of the content. it gets very complicated very fast. and then you get back to the problem of how do you make it as fast as you need to it counter messages that the enemy can put out very fast. >> there are no more questions. okay, one more. i'll pull us back to the hero point again.
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just to say that when we looked at what happened in pulse, remember, we have a shooter who was actively trying to make himself the hero of his own story or what he thought heroic was, and the reason that didn't get out in realtime was because facebook took it down. some of it was probably community rules that were automated and some of it was probably done with a human touch. so i would just point out that the social media companies again do have a responsibility and a role here, and one that's going to be constantly evolving as the threat and the perpetrators change and also as the technology changes. again, live streaming launched two days before this attack on facebook, so this is not going to be static. it's going to be changing, but they have a role to play in not letting someone who is advocating for this kind of criminal violence make himself the hero. so lisa, you had another question from our audience, our remote audience?
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>> yes. this is from dr. vazquez again. and it's for peter singer. he says that i've heard presenters talk about the use of cell phone cameras and other devices by u.s. troops have complicated u.s. and allied military operations in the field. are you familiar with similar stories that you can share and if this is a problem, is it an issue that the u.s. military is doing a better job at dealing with? >> sure, so it's definitely an issue, and i think it's a great illustration on this idea there's no more secrets or at least the secrets have a shorter half-life. the bin laden raid. the bin laden raid was supposed to be the most secretive military operation of the last generation. we all know the famous image of the president watching in the situation room live but simultaneous to it you had a pakistani i.t. consultant living
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in abbottabad live tweeting the operation. and so if that's happening -- this is several years back. we're moving forward. you were mentioning facebook live and we see that. again to go to the election you have this why can't we keep our operations in mosul secret? part of why we can't keep it secret is not only that there's massive desert in between, but also everyone from isis fighters to our allies are tweeting to their -- and there's a youtube channel. they created a hashtag for the operation. this presents, i wanted to circle back to what you raised, media companies sort of need to regulate this, need to control, but this is a new question for them in what they let out so
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there are acts of violence that some we would say, should not be up. others we would say are newsworthy and we can have an argument around that. this became an issue in the police shooting in minnesota that was, you know, the images of it were put online by one argument violated terms of service. because they were violence. it was a killing online. other people said no, this needs to be shown because it needs to be part of this national debate on police violence and race relations. the challenge is, these companies are the ones asked to determine this. one, are they well equipped to do it? two, do we want them to do it? three, do they want to do it? they didn't set out to regulate this world. they set out to create a cool tech and they feel uncomfortable about it, too. >> one of the officials we spoke to at one of these companies pointed out you have some very
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big companies that have capacity and the interest in figuring out that horrible gray area. what's free in speech and what's dangerous speech and what do you want to allow on your site and what don't you. he pointed out, there are a lot of social media companies that are more than a guy in the garage with a server who neither has the capacity nor the interest to regulate what is being posted. so, it's not -- may not even be the case that you can regulate or control. because not everything that is being seen by all of us has someone moderating it that wants to control it. so that's an element here too. >> the scenario that the mayor laid out of, we had this one case of it being at night, a group that we all clearly disagree with, but you get another scenario of, you know, a killing in daytime, you know, how that might be different including the video of it gets out.
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you know, how the reaction, the politics of it might be different. >> well, we are just about out of time. katie, juliette, mayor dyer, any last comments for the audience? >> i just want to thank you for allowing me to participate in this forum and the work you have done related to the pulse event. >> thank you all for coming. it was wonderful to get in this conversation with you. let's give the panel a good round of applause. [ applause ] for those of you here in person, for our audience that joined us remotely, thank you for tuning in and sending us questions. for those of you here in person, please join us. we have a reception outside. civil rights advocates are holding a news conference tuesday to denounce recent displays of racism and bigotry
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in the u.s., and urge president-elect trump and every american to denounce all acts of hate. that's hosted by the southern poverty law center. watch live at 9:30 a.m. eastern here on later in the day, a loo how congress might try to govern under a trump administration. senators chris coons, amy clobuchar and senator lank ford sit down for that discussion on c-span3 at 6:00 p.m. eastern. president-elect trump and his advisers remain busy this week trying to fill several cabinet positions. mike pence spoke briefly to the media about the ongoing process. we also saw a visit from retired general david petraeus who is reportedly being considered for secretary of state. >> good morning. >> good morning, how are you. >> good, good.
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going to be a busy week. get ready. >> do you believe millions of people voted illegally? >> sir, how's the transition going? >> general petraeus -- >> is that right there? right here? no, right here. >> that would be great. >> thank you. >> how'd the meeting go, sir? >> meeting went very well. was with him for about an hour. he basically walked us around the world, showed a great grasp of a variety of the challenges that are out there and some of the opportunities as well. so, very good conversation and we'll see where it goes from here. >> did he offer you the secretary of state position? we'll see where it goes from here. i've got to teach this afternoon, so that's all i can do. >> do you have any advice for him?
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follow the transition of government on c-span as donald trump becomes the 45th president of the united states and republicans maintain control of the u.s. house and senate. we'll take you to key events as they happen without interruption. watch live on c-span. watch on demand at or listen on our free c-span radio app. >> thank you all very much. welcome to congress. next, supreme court oral argument in a case that will decide whether someone has the right to sue police officers for alleged false arrest and detention. the case centers on elijah manuel and his younger brother, who were pulled over by law enforcement in illinois and then arrested for possession of a controlled substance that later
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tested negative. the court is considering if the fourth amendment's ban against unwarnlted searches and seizures extends beyond arrest and can serve as a basis for a malicious prosecution claim. this is an hour. >> we'll hear argument next in case 149496, manuel vs. the city of joliet. mr. eisenhammer. >> mr. chief justice, and may it please the court, i would like to make three initial points. first, what this case is about is whether the petitioner may bring a fourth amendment claim for unlawful detention pursuant to legal process. second this case is not about whether the decision to prosecute is governed by due process, the fourth amendment or any other amendment. and third this case is not about whether there's some constitutional tort named malicious prosecution.
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all we ask the court to do is to affirm your numerous suggestions made in albright that the fourth amendment supports this cause of action. and bring the seventh circuit in line with all other -- with the tenth circuit -- >> but you need to get past the statute of limitations problem and to do that you need to characterize it, as i understand it, as a malicious prosecution claim. otherwise, it's time barred. >> what we need to do is determine the -- not the statute of limitations, which is two years set by state -- by the state. but the accrual period. in "wallace" the court said you normally look to not the state law but it's a federal question, that you normally look in reference to the common law. and in "wallace" they did say that that would be malicious prosecution that does have as an accrual period favorable termination. >> but favorable termination has
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nothing to do with the fourth amendment claim. right? whether your prosecution is favorably terminated or not the fourth amendment claim -- and it seems to me the accrual -- begin when your fourth amendment rights are violated with, say, an illegal search. whether you are eventually convicted or acquitted, it really -- you have a claim for an illegal search if there's been an illegal search without regard to favorable termination. >> our claim technically here is it is detention without probable cause. not the search that occurred when -- >> right, but regardless, whatever the fourth amendment claim is. >> right. and that detention went through for 48 days after he became subject to legal process. >> was he subject to proper legal process? if legal process is corrupted because there isn't -- i always
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understood legal process as used in "wallace" and other of our cases is an independent intermediary generally a judge or a grand jury or someone who looks at the facts as they exit and independently makes a determination whether probable cause has happened. if you have a corrupted legal process where what the independent adjudicator is looking at is not true because it's based on false information, have you received legal process? proper legal process? >> you haven't received proper legal process. you're correct. it's been corrupted. >> i thought if you've never received it then doesn't your time to accrue for the improper
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detention accrue when you're no longer detained? here it was the not guilty, correct? >> correct. >> so it's not a question of when it starts, the question is when does the illegal detention finish. >> correct. correct. >> and there's been no intermediate force, no intermediary stepping in and breaking the chain of causation. correct? >> right. >> am i understanding your argument correctly? >> yes, you are, perfectly. i wish i could take credit for that. [ laughter ] >> but i'm -- the only way i can think of it was thinking of it this way because you're not claiming malicious prosecution or not. >> right, right. "wallace" talked about malicious prosecution but this is a larger issue of 1983 jurisdiction which is, you know, what is the proper
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accrual period for a constitutional -- a constitutional violation? we don't -- we're not -- >> detention without -- >> proximate cause. right. and it's -- you don't -- you're not straitjacketed into a particular common law provision. you have the right to fashion one that does justice, and this is the one who does justice. >> i was confused. i thought there was a malicious prosecution claim here. mostly because the question presented says whether an individual's fourth amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the fourth amendment. >> yes, but that's just the label and that's what the court at least in wallace has used in a label for talking about these type of claims. and in gerstein too. it's just a label to, in a sense, distinguish this case
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from detention without legal process. >> let me give you a hypothetical. that's actually close to this case. officer fabricates evidence in order to arrest and book the defendant. then there's a gerstein hearing within 48 hours. evidence is still fabricated, same fabricated evidence is introduced. he's held for three months. then there's a pretrial suppression hearing. the evidence is still fabricated and he's still held for two more months. then there's a trial, evidence is still fabricated and he's convicted and held for six more months. then there's an appeal field and then suddenly they find out the evidence is fabricated and the charges are dismissed. fourth amendment violation for the entire detention? >> no, we would say the fourth amendment at least based on your case is the fourth amendment claim ends at conviction and then there can be a due process claim or whatever. >> why is the trial and conviction any different than
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the gerstein hearing? they're both the legal process. there's an inquiry. why is it that the fourth amendment applies after the gerstein hearing but not after the conviction. >> one reason is that the gerstein hearing is a non-adversarial hearing so it would be a grand jury proceeding while a conviction in a sense presumes that you're -- you were held with probable cause and then you have a due process claim after that. >> under malicious prosecution law in the states generally, just as a general principle, would there be a malicious prosecution claim for the fabricated evidence in the gerstein case or in the pre-trial suppression? >> i believe so. >> so then they would be -- so at least there's a legal
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recognition that there can be a malicious prosecution claim in the gerstein hearing? >> no, it's -- it's a fourth amendment claim. we're not raising -- >> i'm asking if under state law, tort law generally, you can bring a malicious prosecution claim if there's fabricated evidence produced at the gerstein hearing that results in your -- >> in the release? >> result in your detention. >> well, yes -- >> that's why there's damage and you're suing. >> right, but you have to be -- there has to be a favorable termination in order for you -- it's an element of state court malicious prosecution, so you need to be -- >> okay, it's terminated six weeks later. >> that would be a malicious prosecution claim under state law. >> why do you make the cutoff conviction if it turns out even on habeas that the police have
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lied all along and there was never any basis for holding this person. why don't you have your fourth amendment claim until the point where you're released from this unlawful custody? >> you could if you rule that way. generally this court has ruled that after conviction there's due process. your trial rights have been violated so that has been a different amendment that you've gone under. in this case -- >> it's not just -- it's the same right that you had from the very beginning. >> it could be more than a fourth amendment right. there could be more than one amendment cover the same set of facts. >> but there's a different consequence to whether you terminate a fourth amendment right or due process right under
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parrot against taylor. >> well, we're claiming it's a fourth amendment right. >> i know but you just answered in response to the question that it could be both. >> it could be both. usually -- or at least reading justice kennedy's concurrence, it appeared the due process provision, the due process claim dealt with the issue of whether to prosecute, as opposed to this issue, which is the decision to hold somebody, detain somebody, pending a decision to prosecute or trial. so it's the fourth amendment that covers this rather than due process. >> what happens to the person who's let out on bail? are they out of luck under your theory? >> no. no. >> are you defining detention as broadly as justice ginsburg was? >> yes and in gerstein the court did make recognition that
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detention could go beyond being released depending on the conditions of the release. so it's not just -- i would say it's not justice ginsburg's concurrence that was this court's opinion in gerstein that that was a possibility. >> can you explain why even if we accept your theory that the unlawful detention continues until he's released, why should -- shouldn't the statute of limitations trigger the -- when he was initially arrested? why -- whiesy should the trigge for the statute of limitations be different just because we
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label this fourth amendment? >> i think there's some good reasons for that. they were expressed in heck, which applies in this particular case, too. you don't want to have parallel litigation, you don't want to have conflicting decisions between the state and criminal court and you don't want to have a collateral attack. that collateral attack works to the detriment of the prosecution and the defense in the case. i think justice kagan's opinion in cali illustrates the harm that could happen to the prosecution if you allow someone to collaterally attack, use a sophisticated attorney to collaterally attack the decision on probable cause while the criminal case is pending. it works to the detriment of the prosecution. >> mr. eisenhammer, why should we even get to these questions? as i understand this case, the seventh circuit says something that no other circuit does which is to say that they say there's no fourth amendment claim under
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section 1983 at all, full stop. if we think that that's wrong, oughtn't we to just send everything else back to the seventh circuit to decide what they think the fourth amendment claim looks like? in other words what elements it has, what accrual date it has, anything they think about this fourth amendment claim, send it back to them, having told them that they're wrong about whether this fourth amendment claim exists. why isn't that -- i mean, all this other stuff, the seventh circuit hasn't told us what they think about it, circuits are split on it. it hasn't been briefed because the principal question has been whether there is a fourth amendment claim. why shouldn't we send it back to them to decide. >> i would be in agreement with that. >> you would be in agreement with that? >> i would be in agreement with that. >> i wasn't sure. i thought you were arguing. >> only response to the questions. i think the question we've raised is solely the issue of
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does the fourth amendment cover detentions pursuant to legal process. >> but don't we have to know -- i'm sorry. >> without legal process. >> with -- >> you're saying it's improper legal process? >> yes, it's still a legal process. it was corrupted but it was still started with that. >> don't we have to know what kind of a claim it is before we can say whether it exists? >> yes. and the starting point is the fourth amendment. if you answer the question on the fourth amendment -- because the initial question -- >> so you want us to say there's some kind of fourth amendment claim but we don't know what it is but there's some kind of claim, you go back and tell us what kind of a claim it is? >> no. i'm saying the court can say that this is a fourth amendment claim. >> it's a claim for unconstitutional detention. >> just as if they brought it up in albright. >> what the statute of limitations is on that claim or the accrual period is on that claim is something we don't have to decide in order to say yes,
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you have a claim under the constitution for improper detention. >> correct. >> well, but, i mean, the alternative that is argued is that it's a due process claim and whether or not they co-exist or whether or not the particular period that you're complaining about is properly characterized as detention without due process as opposed to a claim under the fourth amendment would certainly be pertinent in deciding whether or not to say there is a fourth amendment claim. >> i think you can say it's a fourth amendment claim or due process without referencing the statute of limitations. that is before you. you can't answer it. we're not talking about -- as i said before, we're not claiming the decision to prosecute which might be a due process claim has been violated. all we're talking about is the
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detention subject to legal or corrupt process. that's the only claim we're asking for. the court has indicated -- >> is the detention -- you've described this in various ways. is it a detention without constitutional probable cause? is it a detention with no proper legal process? where exactly is the fourth amendment violation? because on false arrest and false imprisonment claims according to "wallace," as soon as you get legal process there's been an intervening end to the false imprisonment because someone else has imprisoned you. so what remains in this case? how do we define the constitutional violation? >> we can reserve time after there's more questions.
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i think this is a fourth amendment claim that you can describe as being corrupted by a gerstein hearing. you could claim it prolonged detention beginning at legal process the way county of river side or rodriguez where it was extended just for -- the traffic stop was extended just for seven minutes to do a dog search and this court found that it was a seizure, an improper seizure. this is exactly what happened here. the seizure was extended improperly because of the fabrication by the police. >> thank you, counsel. >> ms. eisenstein? >> mr. chief justice, we think the court should locate the
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constitutional right at issue in the fourth amendment. for the reason that the fourth amendment does apply to pre-trial detentions as this court has long held. the fourth amendment requires any prolonged period of detention to be supported by one valid determination of probable cause at the outset of that period of detention. the seventh circuit error here was to find the fourth amendment stops operation once criminal charges are filed and this court has long recognized as well that there's a variety of ways to make that proximate cause determination, including by the same procedure used to bring the criminal charge itself. >> suppose it's a close question about probable cause. no fabricated evidence, just was the information available to the police sufficient to make the arrest. and the court wrongly determines that there was proximate cause and he's held for six weeks. fourth amendment violation? >> your honor, it may be a fourth amendment violation but there may be no one to sue under
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those circumstances under section 1983. >> but is it a fourth amendment violation? if it was close, then the decision was reasonable. >> of course, your honor. i think i took justice kennedy's hypothetical to presume it was wrong in the sense of wrong and unreasonable. i think a wrong -- >> no, it's wrong but reasonable. >> then, your honor, no, i don't think it would be a fourth amendment violation at all. >> why? he's being detained. >> well, because, your honor -- >> violation of the fourth amendment. >> well, your honor because -- >> and that's why it seems to me there's a good argument that we should be talking about malicious prosecution, not the fourth amendment. >> well, your honor, i think the fourth amendment does afford reasonable mistakes of fact and law for that matter in allowing someone to be detained so it's not that. in fact, the probable cause standard itself allows for factual errors in the determination. but here the allegation that mr. manuel claims is that he was detained on drug charges that relied entirely on fabricated evidence and we think that that claim is a claim of detention without probable cause under the fourth amendment.
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>> what if it's unreasonable and the defendant would haven't -- wouldn't have qualified immunity, but it's not corrupt. there's nothing malicious about it. would there be a claim? >> your honor, i think it depends on what the causation would be in terms of the officer role in bringing the charge. so if the officer puts forth and has -- is the one pressing to bring a charge that is not reasonable, objectively unreasonable under the fourth amendment, subject to qualified immunity and other bars to suit, he may be liable. but to the extent to which the error falls with the imagination tra -- magistrate or prosecutor -- would be foreclosed by absolute immunity. >> and what if it's an fbi agent? >> your honor, i think the bivens liability follows the same immunity and rules. >> i thought you said the standard for state and local law enforcement officers might be different from the standard federal law enforcement officers.
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>> if i did i don't believe we were referring to -- if you could clarify which standard, the standard for qualified immunity or -- >> page 30 to 31 of your brief. >> well, your honor, i think that in those particular instances that piece of our brief related to special factors that could potentially cancel hesitation in a bivens claim that don't necessarily apply to section 19 -- >> that's what i'm saying. so you think there would be a remedy for violations by state and local police officers but not under site kal circumstances possibly if it's a federal officer. >> we wouldn't draw that distinction. >> well, then what were you saying in your brief? i don't understand it. >> i think there may be other circumstances not presented by this case or a case of fabricated evidence or
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unreasonable pursuit of a wrongful criminal charge that may lead to a different result under 1983 under bivens, but we -- i don't think we have to -- we just wanted to make sure that the court understood that the bivens claim may have different ramifications. >> i may be missing something, i thought this was a simple case. a policeman makes an unreasonable stop and an unreasonable search thereby violating the fourth amendment. now you can sue him, assuming you overcome other hurdles. now he takes you off and puts you in prison either with a magistrate or without a magistrate and you are therefore being unreasonably detained, it's an unreasonable seizure pursuant to the fourth amendment therefore it's a violation. then you have a trial. and using the same rotten evidence you're convicted. there you don't -- though you could -- but the reason that you
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don't is because you are viewed as, by the law so far, being in jail now as a result of your conviction. and the reason, i guess, is practical. we don't want to look into all those convictions and their different standards. now, that's what the framework in my mind. is it right? >> absolutely, your honor. that is exactly the framework that the government puts forward, that it's not just the mere fact of being held in jail but that the constitutional right depends on what process was infringed. >> all right. so, let's stop and i understand you so far. the question presented was, i thi think -- i don't have it -- i do have it here. so, whether an individual's fourth amendment rights to be free from unreasonable seizure continues beyond legal process. so, as to allow a malicious prosecution claim based upon the
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fourth amendment. the chief justice was right. the question presented is, does the fourth amendment house a malicious prosecution claim, which is something very different than what you're describing as a fourth amendment seizure and detention without legal process. >> that's correct, your honor, because in our view, the constitutional inquiry is step one, but step two is to determine the elements and accrual date and other prerequisites to suit under a section 1981 tort and in that instance, the accrual may be governed by the closest common law analogy. when the challenge at its core is arguing that the wrongful led to the detention without proximate cause, in our view, the closest analogy is a malicious prosecution claim and do we have -- >> are you suggesting we have to take every element of whatever
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the elements are, because from what i understand, from the briefing, malicious prosecution is defined differently from state to state. so if that's the case, what are the elements that you see for a 1983 claim? does it include malice? >> your honor, we do not think that a constitutional tort under 1983 simply adopts common law or state tort elements of malicious prosecution. only the accrual rule is based on this court's decision in he can and wallace are taken up by the common law analogy. in terms of malice, no, your honor, we don't think malice, as it's known in common law or in most state courts, is an element of this kind of claim. we do advocate that this court treat a probable cause determination underlying a criminal cause the same way it treats it under a search warrant. we don't think of that as a malice standard of common law but rather an extension of the
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franks doctrine. >> i know we said inspired examples we take to flesh this out but it does seem to be pretty result-oriented cherry picking. here's a claim, now wooetd like the statute of limitation part, we don't want to have to show malice. i don't know if we're still holding true to the approach in "wallace" if you just start picking things in and out depending on the demands of the particular case. >> well, your honor, i think that "wallace" did say that federal accrual rules, in particular, were governed by the common law analogy. we think that's as far as it goes in terms of choosing for the common law. the statute of limitations, for example, is borrowed from state law. but here, the seventh circuit's view of accrual flowed from its error as to the scope of the fourth amendment so to justice kagan's proposal this that's this go back, in many ways, we think that's appropriate. the seventh circuit erred, it thought you can't have a
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malicious prosecution analogous claim because there is no such fourth amendment claim. if you peel that error away, we think that even under seventh circuit jurisprudence, they would agree that a favorable termination requirement would apply in such circumstances. >> when does the fourth amendment claim stop? i think i -- i think co-counsel said if you're convicted, it stops. in response to my question, suppose none of this comes out until habeas and then we find out the police have lied from day one. >> so, your honor, we do see those as distinct phases and that when you are held -- an individual is held pursuant, before trial, pursuant to a finding of probable cause bay magistrate or a grand jury that that is a fourth amendment claim but once the person is held pursuant to a finding beyond a reasonable doubt, at trial, that due process and other constitutional protections take over. >> suppose there's a pre-trial
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suppression hearing in which both parties are represented. and the court reaches a wrong result with reference to the admission of the evidence. does the fourth amendment violation still continue? >> may i answer, your honor? your honor, i think that it may be a fourth amendment violation, but whether a plaintiff could bring those kinds of claims would be governored by preclusion principles and other similar bars, once that issue had been actually litigated in the state court. >> in a state court proceeding, the state analog, what would be the rule of accrual ending? you get convicted, you don't find out about the false testimony until habeas, state or federal. when, in that situation, would accrual occur? >> in our view, when the case was dismissed or overturned, your honor. >> thank you, counsel.
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mr. scudro. >> mr. chief justice and may it please the court, i think it's very important to frame what is before the court this afternoon, and to begin, i think it's essential to note, we are not disputing, at any point, in this litigation, that misstatements made that result in a finding of probable cause at a gerstein hearing is a fourth amendment violation. nor does the seventh circuit disagree. the reason this came up to the seventh circuit as it did, and this may be important in understanding the context, this is on a motion to dismiss for violation of the statute of limitations. all of the claims were dismissed but one, the one that was appealed and that one survived momentarily in the district court because petitioner claimed that that one claim has a favorable termination element pause it is malicious prosecution. he reiterated that claim before the seventh circuit, and the seventh circuit reached two
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conclusions. one, you have a fourth amendment claim, which they discuss, and the only claim before them was based on the lie at the gerstein hearing. you have a fourth amendment claim but it is already accrued. it accrued too early. it is untimely. now you're asking us to recognize a different breed of fourth amendment claim, namely a malicious prosecution fourth amendment claim because you'd like to overcome the time bar. we do not recognize that fourth amendment malicious prosecution. >> mr. scodro, i just have to say i read this differently so you can tell me why i'm wrong, but in the last column of the seventh circuit's opinion, there are twice where the seventh circuit says what it thinks. the first time, it says, "when after the arrest a person is not let go when he should be" so it's after the initial seizure and then the person is not let go, "the fourth amendment gives way to the due process clause as a basis for challenging his detention" and then in the last
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paragraph, it says, "once detention by reason of arrest turns into detention by reason of arraignment, the fourth amendment falls out of the picture." so it seems to me that twice the seventh circuit says very clearly that you have this fourth amendment claim until arraignment or legal process, and after that, the fourth amendment falls out of picture. and at the very basic level, before you get into these questions of, what's the accrual date or anything else, it seems that that's the thing that the petitioner is saying is wrong. that the fourth amendment claim continues after arraignment or after legal process. now, when it accrues, when it doesn't accrue is a different question but it's still a fourth amendment claim, and that's what the seventh circuit rejected. >> your honor, i think what -- and i would direct the court to the top of ja 103 as well where the court also noticed -- notes the fact that they have found fourth amendment claims even in terms of false information in an
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instant report, even at a preliminary hearing, which comes long after the initiation of process. what the court in context has read -- and by the way, this is consistent with past statements by the seventh circuit -- the fundamental statement the court has made, and this comes from newsom, the 2001 decision from when this jurisprudence has blossomed in the seventh circuit, relabeling a fourth amendment claim as malicious prosecution would not extend the statute of limitations. this has been the nature of the battle, and on page 21 of the petition in this case, petitioner makes clear why the question presented doesn't end halfway through. it doesn't ask merely whether there's a fourth amendment right that survives the initiation of process. if by process they mean gerstein hearing, we agree, and i think the seventh circuit would agree as well, but it goes on to say, so as to allow for a malicious prosecution claim, and on page 21 of their petition, they explain to the court what they mean by that when they say that
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the fate of this appeal to this court turns on whether the court does or does not adopt favorable termination element and that that's why this makes an ideal vehicle to answer justice alito's earlier question, which is what are the elements of this claim. >> i didn't think that was a difficult question. i thought that everyone agrees that if a policeman wrongly arrests you, you know, maliciously arrests you, et cetera, and there you are in his custody, and he brings you over to the jail, puts you into the jail, up until the point you see the magistrate, you have a claim for false arrest. >> correct. >> and we said that that claim for false arrest is a constitutional claim. >> yes, sir. >> violates the fourth amendment. what time limit applies? the false arrest time limit because that's the most analogous. >> yes, your honor. >> then we get into the next stage. now we're in front of a magistrate. and the magistrate says, stay in jail for two more months. does that violate the fourth
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amendment? not malicious prosecution. does it violate the fourth amendment? the reason that we tend to think it does is because all the circuits have said it does. that is, judge higgen botheren said that in the fifth circuit. a lot of circuits picked that up. i'm not saying every one, but they said that too violates the fourth amendment. now we have a problem. well, what statute of limitations do we use for that one? and there, the circuits seem to have picked malicious prosecution, not because they're going to follow every element, but because it's the state law that provides the closest analogy and that seems to me where we are in this case. we don't have to go much further than that. am i right so far? >> you are correct. the issue before the court is, which accrual date for limitations periods should the courts be applied. >> so you accept -- or will you accept, for purposes of this argument, that once this individual is brought by the policeman to jail, and they go before a magistrate, and the
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magistrate, using the same bad evidence, says, stay here in jail for several -- for a while, for a week, anyway, until we get to trial. that that period is a violation of the fourth amendment? assuming they were all lying, et cetera. >> your honor, yes. insofar -- >> okay. then the question is, do we use the malicious prosecution --- >> right. >> as an analogy. so now the question, great, this is fabulous, i get to the narrow question that i have. why isn't it a good analogy? >> your honor, let me answer why it's not a good analogy and i'll answer, and i think flesh out just slightly, whether or not this remains the moment in time when the police officers tllie submit an affidavit with falsehoods, to a magistrate at a gerstein hearing, and the magistrate finds probable cause, what we do not dispute and what we do not think the seventh circuit would dispute is that
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that is a violation of the fourth amendment. now the question of whether or not malicious prosecution is the proper analogy, the answer is, absolutely not, and "wallace" tells us why not. "wallace" tells us -- the petitioner has shifted just slightly from a reliance on common law favorable termination, which is what most of the circuits on their side of the split have done, this also goes, i think, to your honor's question and to your point. most of the circuits on the other side of the split have used favorable termination, but they've done so by adopting it as part of the underlying four element common law tort and they think if that's what we're calling it, then it's going to have favorable termination. a smaller number have relied on a drastic extension of this court's decision in heck and that's the request made by the petitioner. but wallace was very clear. heck only applies -- the delayed accrual principle and the favorable termination element that comes with it, apply only where you have an extant
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conviction. and that doesn't exist here. the court went through a mental exercise. they said, look, if you can realize that you have a fourth amendment claim before you're convicted, if the elements can be in mind, you know you've been wronged in a fourth amendment way before you're convicted, then that is not a claim that is entitled to the delayed accrual principle of heck and the reason was very simple. because as this court said in gerstein, fourth amendment contemplates that you can have bad arrests and good convictions. and nevertheless, the fourth amendment protects the innocent as well as the guilty and expanding heck to apply in a circumstance where all you have is an ex parte requirement or finding, rather, of probable cause, requiring that civil plaintiff to then prove vindication at the end of the day, would close the door on a potential universe of fourth
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amendment claims and instances. >> why? why? you can have discrete claims, one wrong is you never should have been arrested. so you have a fourth amendment claim for that. another wrong is they kept you in detention. they extended that arrest. so, i don't see why -- you have one wrong, which ends on arrest, but then if you are continuing to be held, based on trumped up false information, why isn't that like a continuing tort? and it continues until it ends. >> well, your honor, just to make sure that i'm -- i've been clear, again, we do agree that the lie -- the second lie your honor has described, the lie before the magistrate, is actionable under the fourth
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amendment. if the question is, why, then, doesn't the accrual period run from when one is ultimately released, i would make a couple of points in response to your honor's question. first, petitioner has been very careful not to make that argument. indeed, the continuing seizure idea would be inconsistent, facially, with the petition which claimed they need the benefit of favorable termination to prevail. they, of course, wouldn't need it if they were, instead, arguing for a period of a -- a continuing seizure. lower courts have rejected the notion of a continuing seizure and they're not raising it here, and i think the reason may be twofold. the first is that it runs into -- it runs in the face of traditional accrual principles that this court has said cases like ricks and others, that it's not the period of harm that matters for accrual purposes.
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it's when one first experiences the harm and thereby has all the elements needed to proceed. and a case like morgan, which was a hostile work environment case, is really the exception that proves the rule in many ways. it tells us why or how narrowly the court has construed the exceptions to this typical accrual principle. hostile work environment does require precisely what your honor describes because it's impossible to know precisely when a hostile work environment begins. is it the second comment or the fifth or the tenth that someone has to endure in the workplace, and therefore the court is willing to consider it as a monolithic whole and treat it that way for a accrual purposes. but again, that's the exception that proves the rule. as wallace itself concluded, there can be a cutoff which wallace imposed between the initial arrest and the post-process arrest, and wallace itself, in that regard, i think, breaks through the notion of a continuing seizure. the final point i would make, and i think this comes out in one of their amicus briefs,
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namely the brief by professor al shuler, taken to its logical conclusion, the logic of continuing seizure may lead one to conclude that the seizure doesn't end until the ultimate period of incarceration concludes, and what that means is now you have potential civil plaintiffs bringing claims 10, 15, 20 years down the road without any prior notice to the would be defendants, no ability to maintain evidence and so forth. >> i don't know why you need to give evidence to somebody who's fabricated the reasons why you're in jail. and i don't know why you would think that it's important to cut off recovery against a police officer who bases an arrest solely on fabrication. there's -- it doesn't seem so horrible to me. years later or immediately, if you've done something as untoward as that, as unconstitutional as that, why
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should it matter? >> your honor, two points. the first is -- and this is a point of clarification. we're not suggesting that damages arising from lies at a gerstein hearing, for lack of a better term for it, would not run subject to traditional common law proximate causation principles through all or part of the pre-trial period. there may well be interrupting events but that, i just want to make clear, we're not suggesting that those damages may not be available. in this case, had the claim been brought timely for the full 48 days, depending on how those principles would shake out. the other point, and this is one that the states made if their amicus brief in wallace, they've made it again, as have the municipalities, they've made the point that early notice to the state as employer of agents who are engaged in bad acts is extraordinarily important. government is intent upon learning sooner rather than later that they have individuals
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in their ranks that are violating the constitution. and this court in wallace, in turning aside basically the same extension of heck that is recommended for the court or the court's invited to take in this very case, when they turned it away, they said one of the reasons is we need notice to the would be defendants in those cases. they can preserve evidence to ensure that -- >> you know, counselor, it's not as if most states don't receive that kind of notice in these situations. the defendants are just not believed in most until some independent evidence is discovered long after the conviction. in my experience and you can point to one that's different, i've never come across any of these cases where any defendant falsely accused of a crime hasn't vigorously announced his or her innocence and vigorously
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tried to tell the authorities, this police officer is corrupt. so, i'm not -- i don't know what extra notice you need other than that. the situation is unique. we're talking about -- >> mr. chief justice, and may it please the court, i would like to make -- >> so many liability. qualified immunity, franks, there are so many other protectio protections against the state and other officers for errors but why should we worry about not receiving notice? >> the reason, your honor, is that, in this case, the later accrual principle that petitioner requests under heck or, as a matter of a common law element, is purchased not only at the price of delayed notice
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to the would be defendant, it's purchased at the price of closing the courthouse door on a number of potential fourth amendment claimants, those who are subject to unlawful arrest but are later validly convicted. this court's -- >> mr. scodro, could i ask, i might be misunderstanding this, so you'll tell me if i am. but it seems as though the position that you're taking now is diametrically opposed to the position that you took in the seventh circuit. so, i'll just read you something, and this is from oral argument, but my clerk tells me that this is what happened -- i think that there's not a transcript, but maybe there is. but at least this is what my clerk tells me happened at oral argument. judge r o ovner says, there are ten other sishlcircuits that haw recognized this type of claim, this fourth amendment claim, she said, let's just assume we do what those ten other circuits have done, which of course they
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didn't do, but she says, let's just assume it. at what point would you think the statute of limitations would begin to run? and then you or maybe not you, but you -- you say, well, if you were to recognize such a claim, the accrual is the time at which the proceedings are terminated in favor of that individual. so, in this case, it would be, i think, the date would have been may 4, 2011. and then chief judge woods says, so you're assuming that the constitutional tort would follow the same pattern that state law does and require the favorable termination, because if there's no favorable termination for all the policy reasons the states have considered, there's no injury. and again, whoever the lawyer was said, that's correct. so, am i misunderstanding this or are you saying that's not correct, that's wrong? >> i think that that is correct
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insofar as what the lawyer was being asked, as i understand it, having also listened to the argument, your honor, is that -- >> is there no transcript for this? >> i'm not aware of a transcript. the seventh circuit makes -- actually, part of that quote appeared in the reply brief in support of the petition and what that quote makes clear, it seems to me what the lawyer is being asked is, if we are to follow suit, what -- again, taking it back to what was -- this was on a motion to dismiss on limitations grounds. the -- if they're not able to establish that they have an accrued claim or a claim with a delayed accrual sufficient to satisfy the limitations period under a traditional fourth amendment theory, can we overcome this limitations period by virtue of these common law elements and what the attorney was being asked, as i heard that argument, what the attorney was being asked is, isn't -- do you agree that what they're trying
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to do here is join what every other circuit has done, and if we join what every other circuit has done, they would have a favorable termination element. >> other, i don't think that's a -- i mean, maybe. i guess. i mean, it seems to me that the much more natural way of understanding this is to say, look, if we do what every other circuit has done in the sense that we acknowledge that there is a fourth amendment claim here, post-legal process, something which you yourself have now acknowledged today, that if we acknowledge that, what would the accrual date be, and then the lawyer says the accrual date would be the date of termination, and -- and now you're saying it wouldn't be. and i actually don't know whether it should be or it shouldn't be. i don't think the seventh circuit for a moment considered that question. and i guess it's another reason why i think we should just send the whole thing back. the seventh circuit can figure out whether you forfeited this claim.
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the seventh circuit can figure out if you didn't forfeit this claim. what the right answer is. but to me, this language -- and i have not listened to the tape myself, so i have to admit that, but to me, this language suggests that you forfeited this. >> yeah, your honor, as i, again, in context, i think what the lawyer was being asked is, if they get the benefit -- and i believe the quote in the reply in support of the part of the quote that appears in the reply in support of the petition includes a reference to, well, if -- along with the common law elements, the lawyer is saying, yes, if they were to get the benefit -- this is what they're trying to do -- i mean, no one denied it. what they were saying in their briefs was, we want the benefit of the four element tort recognized in other circuits, most because they're just adopting wholesale the tort, a few because they seem to -- they cite heck in lieu of the common law element, and the question was, if we give them what
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they're asking for, that is, if this court follows those other courts, would they have a may 4 accrual date and the answer is yes because that's what they've been seeking all along. >> look, the person is being held because the magistrate, listening to the policeman, detained him and the magistrate and everybody was very unreasonable, da, da, da. okay. now he's there. day one. can he bring a case? yes. why not? he's being -- day two. yes. and he's being held for 90 days and i can say the same thing, i won't, up to each of the 90 days. 90th day, he's released. it's now the 91st day. can he bring it? yes. but now we only have two years. why only two years? because we're looking for an analogous statute under the state to give us a limit. and the analogous one, though not perfectly fitting, is malicious prosecution. and that had two years. and that's why. two years after the release date
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is the longest -- you had better bring it before then, because that's two years since you were unlawfully held. now, what's wrong with what i just said? >> well, your honor, two points in response to that. the first would be, wallace says or holds that if you have the claim on day one, then that -- it is accruing on day one. we're not going to give you -- there's no extant conviction. >> but it's a different claim. one claim is for arrest, and the other is for prolonged detention. there are two different claims. that's why i took issue with you when you said, if you hold for this petitioner, then people who are falsely arrested but properly convicted will have no claim. i don't see that. they have a false arrest claim. they don't have a prolonged detention claim. >> well, your honor, i think what would happen, they wouldn't
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have a claim based on misstatements at the gerstein hearing if, in order to make out that claim, as petitioner contend, they would have to show that ultimately, their criminal litigation terminated in their favor. that's the request. if heck is extended or the common law element is extended, and this is why it's not the best analog, your honor. and if it would be helpful to have a common law point of guidance on this, in footnote 12 of our brief, we provide a list of common law case, an example of common law cases in which the court addressed a question like this. we have an ex parte proceeding in which a magistrate has issued a warrant. i'll take the steward case, which is the third of the three cited. the person serves six months in jail on the warrant, but there's never a prosecution. it never blossoms, he's released and he sues for malicious prosecution. and the defendant in the
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malicious prosecution contends that they're not -- that they're unable to show successful outcome. >> so what's your view? what's the best one? what's the best analogy? >> it's this form of malicious prosecution where you didn't have to prove favorable termination because all that was against you at that point was an ex parte determination. >> the state law like that? >> this was -- i'm saying, what is your opinion? what is the state law that does apply the best analogy? >> i think the closest analogy is false arrest. >> false arrest. okay. so, now, what is this -- what is the -- what is the statute of limitations for false arrest? >> the state law, it's still the personal injury limitations period of two years. >> okay, fine. so he was being detained for up to, let's say, the 90th day. he's still being detained. so now, we'll count the 90th day as the beginning of the two-year running and so now we run it for two years and it's still may 12 or whatever. >> but your honor, a false arrest claim under wallace accrues once process begins.
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so it's not running for that 90 days. >> why not? isn't he being held unlawfully on the 41st day and after all, we're not -- we're not copying the state law. all we're doing is trying to find an analogous period of time. >> but your honor, by imposing the favorable termination element of the common law claim, it would run head long into the fourth amendment aims, what the fourth amendment is geared to vindicate. the fourth amendment, this court has held, is there for the guilty and innocent alike, and in this case, what -- the cost of borrowing that favorable termination element and importing it into a claim based solely on lies at an ex parte proceeding, which is what we're talking about with the gerstein hearing, doing so would mean that if you're the victim of lies at a gerstein hearing and you're detained but ultimately you are constitutionally convicted as evidence amasses
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against you, the need to show favorable termination, it will be impossible for that plaintiff. and so the fourth amendment right will not be something that that plaintiff can vindicate. that's the reason that wallace didn't allow heck to expand to instances like this where you're not challenging the wrongful conviction itself. and what they have asked, their claim is narrow, and the way to resolve this claim is now equally narrow. the way to resolve the case is to conclude that whenever this -- your fourth amendment claim could run through the arraignment after indictment in this case, which was still out of the two-year limitations period. but it doesn't -- it is not entitled to that favorable termination element which would have the effect of closing off the courthouse doors to a universe of claims in order to buy extra time in this case. and that is what we urge the court not to do. and that is the simplest way. >> if you're falsely arrested,
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you have a good claim for false arrest, it doesn't matter that you were properly convicted. but if you were not only falsely arrested but if your detention continues, then you have a claim for the continued detention. >> for violation of the gerstein hearing, your honor, and i do, for lies at the gerstein, and i do want to be clear in saying that the closest analogous tort is false arrest. that is treating it the way i think the seventh circuit has, which is that it runs up until what we call the first appearance where you have the initiation of adversarial process. by no means does the limitation period or is there a tolling that runs from the period of the lie at the gerstein hearing through the pre-trial period. as i said at the outset, that is subject to traditional tort common law principles of
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proximate cause and there may well be damages recoverable for that period. but it's based on the law at the gerstein hearing, and as wallace held, heck cannot be extended to apply to a claim that exists before you have an extant conviction. >> just one more time. suppose you have arrest, gerstein hearing, filing of formal charges, either information or indictment, pre-trial suppression hearing at which both parties are represented. >> yes. >> and the false evidence is not -- its falsity has not been known and so you're detained and then trial. when does the fourth amendment violation end? >> sure. you would have a -- this returns to justice ginsburg's point. you would have a fourth amendment claim for the initial warrantless arrest. you would have a fourth amendment claim for misstatements at a gerstein hearing that then led to ongoing
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pre-trial seizure. and the damages from that claim may run throughout the period of pre-trial seizure, but with regard to the nature of the constitutional violation that occurs at subsequent processes, be they grand jury, bail hearings, preliminary hearings, those are traditional due process claims, consistent with this court's holding in moony, frankly n brady, which is applied due process to prosecutorial duties and police duties during that period so i hope that answers your honor's question. whether or not those damages run throughout that period or whether they're reduced by virtue of an intervening cause would be an application of traditional proximate cause. >> are defendant's counsel ever present at a gerstein hearing? >> generally, in this case, yes. often, they are, because the gerstein determination is frequently made as part of the
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first appearance, which is to say -- which is the moment in time which this court has held you have a sixth amendment -- your sixth amendment right attaches. may i complete the answer, your honor? >> you have more? go ahead. >> thank you. so, i want to return to the point i was making, which is now -- i apologize. i don't know if i've answered your honor's -- >> i think you -- >> you were talking about that the gerstein hearing is often combined. >> it's often combined with the first appearance and the reason, actually, this court has contemplated that in roth, gary, and gerstein itself, it's often a matter of convenience that at that point, it's when the individual is informed of the charges their sixth amendment right attaches and bail is set as well. >> thank you, counsel. >> thank you. >> mr. eisenhammer, you have three minutes remaining. >> thank you. just to answer justice kennedy's question about reasonable error on a detention, in that
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situation, the officer would have the qualified immunity defense that would, assuming it was objectively reasonable, he would -- he would be protected in that situation. with respect to the seventh circuit's decision -- >> but there still is a fourth amendment violation. >> there's still a fourth amendment violation, but he would have qualified immunity if he acted with objective reasonableness. because that's -- the fourth amendment doesn't have any intent. you either violate it or not violate it. there's either probable cause or not. and then you could super impose qualified immunity. the seventh circuit would have said that there is -- there is no fourth amendment right, whether or not the petitioner filed his claim, three years, four years, a million years ago or the day after he was released.
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that's -- that's their position. so, that's why we're here on the question, whether this is a fourth amendment violation. we reject the seventh circuit's view that it's a due process. >> so you -- you don't care that we don't reach the statute of limitations. >> correct. but i do want to note that the seventh circuit, with respect to the statute of limitations or the accrual point uses favorable termination in their due process cases. >> what happens in this situation? the person is initially arrested and held for a period of time based on fabricated ef, but then before trial, shortly before trial, other valid evidence is gathered and the person is convicted at the trial. now, does that person have the kind of claim that you are asserting, and if so, when would the claim accrue? would the favorable termination defeat the claim? >> the favorable -- he would --
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at that point, if you use heck as the case that covers this particular issue, he would not -- since he was convicted, under heck, he would not be able to bring the claim. if that claim attacks the conviction. if it doesn't attack the conviction, as the court sort of pointed out in, i think it was footnote seven on suppression hearings or on evidence -- >> i'll say the tax -- the unlawful detention. >> but not the conviction. >> not the conviction. it would not be -- >> then i would say under heck, the heck exception, they could bring -- they could bring suit. >> but when would the claim accrue? >> i think it would accrue at that point. at the -- at the conviction. as i read heck. because i think it would be -- it would be -- in this particular case, it would be unfair to the -- to the
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individual to speculate on whether what evidence comes out at the trial to determine whether or not that really -- that probable cause determination may or may not attack the -- >> well, if the outcome of the trial is irrelevant to the fourth amendment claim, as it would seem to be in the case of an unlawful detention, then why should the claim not -- why should the accrual of the claim be tied to the termination of the prosecution? >> because at the -- at the time it has occurred -- has occurred, you don't -- well, two reasons. you don't know if, at that time, whether or not it does attack the conviction. and second, you don't -- you don't want -- because you don't know whether that evidence heard at the gerstein hearing may or may not -- some of it may come in, some of it may not, and then the other issue -- the other
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issue is that you don't want parallel litigation going on or collateral attacks for many of the reasons that was -- was stated in cali. >> thank you, counsel. case is submitted. we have a special web page at to help you follow the supreme court. go to and select supreme court near the right-hand top of the page. once on our supreme court page, you'll see four of the most recent oral arguments heard by the court this term. and click on the view all link to see all the oral arguments covered by c-span. in addition, you can find recent appearances by many of the supreme court justices or watch justices in their own words, including one-on-one interviews in the past few months with justices kagan,thomas, and ginsburg. you can see all their appearances only c-span as well
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