Month: July 2019

A 24-year-old inmate was found unresponsive at a Bexar County, Texas, jail Thursday morning. The prisoner, Leon Julius Casey, had been booked for possessing less than a gram of a controlled substance.

Casey’s death is the most recent in a string of recent fatalities at the Bexar County Jail. Janice Dotson-Stephens, 61, died in December of last year after being held there for 5 months on $300 bond following her arrest for misdemeanor criminal trespassing. She lost 136 pounds while in custody.

Jack Michael Ule, 63, died in April at the same facility. Like Dotson-Stephens, he was booked on a misdemeanor trespassing charge; like Dotson-Stephens, he had been diagnosed with a mental illness. Ule was also homeless, and would have likely been released had he been able to pay a $50 fee toward bond.

“In my opinion, [Ule] should not have been in jail,” Sheriff Javier Salazar told the local ABC affiliate. “The Adult Detention Center should not be used to house the mentally ill or those who simply cannot afford to pay their way out.”

Fatalities in U.S. prisons came to the forefront of mainstream conversation with the death of Sandra Bland, a 28-year-old woman who was stopped by a police officer over a routine traffic violation. She was found dead in a Waller County, Texas jail.

Bland’s end sparked national outrage, particularly around the overincarceration of petty crimes. At least 4,980 prisoners died in 2014, the latest year for which we have data. That was up 3 percent from 2013. The U.S. has experienced a 500 percent increase in its prison and jail population over the last 40 years.

The Bexar County Sheriff’s Office says it will conduct an investigation into Casey’s death.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Short Circuit podcast: We make the stirring, strident claim that the Second Circuit was pretty much on the mark in its recent opinion finding a First Amendment problem with President Trump blocking critics on Twitter. Click here for iTunes.

• In 2018, President Trump issues three executive orders instructing the feds to, among other things, limit the time federal employees can spend working on union business on the taxpayer’s dime. A bevy of federal labor unions challenge the orders, arguing, among other things, that the President has no authority to issue executive orders related to federal labor relations and that the orders violate the First Amendment. D.C. Circuit: The claims must be presented to an administrative review board before they can be heard in court.
• Twelve-year-old at Southborough, Mass. boarding school allegedly suffers from electromagnetic hypersensitivity, meaning that the radio waves generated by common electronics cause him headaches, nausea, and other symptoms. (A school staffer’s internal email: “Blahahahahahahahaha!”) Does the student have any claims for the school’s refusal to turn off the Wi-Fi? First Circuit: He does not. [Fun fact: The scientific consensus is that electromagnetic hypersensitivity doesn’t exist. But that hasn’t stopped dozens of supposed hypersensitives from moving to West Virginia to live in a federally designated radio-quiet zone.]
• Friends, Judge Selya of the First Circuit has seen fit to give us this vocab quiz: encincture, rescript, assay, gainsay, repastinate, algid.
• New York City bans advertising in for-hire vehicles like Ubers because passengers find them deeply, deeply annoying. Yet the city allows similar ads in taxicabs (via Taxi TV, which, depending on one’s perspective, is either a “pleasant diversion” or a nightmare squawkbox). Makers of an advertising app see this as an unconstitutional restriction on commercial speech. Nonetheless, the ban will stand, says the Second Circuit.
• Notorious “pharma bro” hedge fund manager Martin Shkreli is convicted of securities fraud for (among other things) regularly sending false performance reports to investors and using their money to pay his personal debts. Second Circuit: No need to disturb the conviction or $7.3 mil forfeiture order.
• Allegation: Police barge into Camden, N.J. home, beat man unconscious, drag him down stairs. The man serves half of three-year sentence for drug possession, but his case is among 200 criminal cases vacated or dropped after five Camden, N.J. officers admit to planting drugs, filing false reports, lying under oath. Jury: Two officers used excessive force and committed a false arrest, but the man ultimately failed to prove that Camden’s (in)action caused these violations. Third Circuit: He gets another chance to prove that claim (and others), this time with the aid of important evidence the district court wrongly excluded.
• The Affordable Care Act mandates that employers, apart from some religious ones, pay for contraception for female employees with reproductive capacity. In 2017, the Trump administration expanded the exemption to include a wider array of religious employers as well as nonreligious employers with moral objections to the mandate. Third Circuit: The district court did not err in imposing a nationwide preliminary injunction. Among other infirmities, the feds likely violated the Administrative Procedure Act by failing to provide the public notice and a chance to comment on the new exemptions.
• Pennsylvania prohibits billboards within 500 feet of a highway interchange: Third Circuit: And while that’s legal in some respects, an exception for certain kinds of billboards means the state has to produce evidence justifying the general prohibition. Also, PennDOT needs to issue or deny permits for other highway billboards within a reasonable time limit.
• Virginia law lets circuit courts declare someone a “habitual drunkard,” which makes it a crime for that someone to possess alcohol or be drunk in public. Several homeless alcoholics, each prosecuted multiple times after being so declared, sue. Fourth Circuit (en banc, over a dissent): The case should not have been dismissed. The law doesn’t specify what makes someone a “habitual drunkard,” so judges can make up their own subjective standards. And if a “habitual drunkard” is just anyone who suffers from alcoholism, that potentially violates the Eighth Amendment since the law has the effect of punishing people for drinking they cannot control.
• Campaign consultant is criminally prosecuted, convicted of violating Maryland election laws. He obtains a new trial, and a jury acquits. He then seeks to mail a letter criticizing the prosecutor (a political appointee) to Maryland voters. But he’s forbidden access to Maryland’s list of voters because he is a resident of Virginia. Fourth Circuit: Which might violate the First Amendment.
• Baltimore man assaults his wife, self-surrenders to police officer that he knows. But the man’s arrest warrant goes missing under suspicious circumstances, and he is permitted to leave the station. He corresponds with the officer about self-surrendering the following week and in the meantime murders his wife (outside courthouse where she had just gotten a protective order). Fourth Circuit (2013): No qualified immunity for the officer. Fourth Circuit (2019, over a dissent): Discovery didn’t turn up evidence that the officer conspired with the man. Qualified immunity.
• A bevy of Chinese investors put $500k each into a startup electric car company, which later collapses. The investors sue, among others, the company’s former chairman (Terry McAuliffe, who went on to become governor of Virginia), asserting that misstatements he made to the media about the company’s achievements defrauded the investors into putting up the cash. Fourth Circuit: “We decline to whitewash the alleged misstatements here.” But the investors failed to adequately plead they justifiably relied on the misstatements—not least because the misstatements were in English and many of the investors don’t understand English.
• Fifth Circuit (2015): No qualified immunity for Lafayette, La. officer who set dog on (allegedly) compliant suspect and shot the suspect at point-blank range, killing him. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity. Fifth Circuit (2019): No reason to disturb the jury’s verdict.
• This Sixth Circuit decision, on whether a homeowner can sue a lender, turns on the not-insignificant distinction between a loan and a mortgage. (Loan = The money a lender gives a home buyer so they can afford a house. Mortgage = The legal interest the lender acquires in the house that provides assurance, on pain of foreclosure, that the loan will be repaid.)
• Man camping in the Chequamegon-Nicolet National Forest has a gun, which is illegal on account of his multiple felony convictions. Later, the man readily admits to being a white supremacist and proclaims his desire to return to Germany to retrace his Nazi ancestral heritage. Seventh Circuit: And it’s just fine for the judge to have considered those beliefs and imposed a longer sentence than the gov’t requested. Even though he’s never been convicted of a hate crime, such views demonstrate a threat of future dangerousness.
• Allegation: Illinois prison required female inmates to stand naked, remove sanitary products, and undergo body and cavity searches—all in groups and in full view of male officers not conducting the searches. Seventh Circuit (over a dissent): This is a visual inspection of a prisoner, not a physical intrusion, so the Fourth Amendment doesn’t apply. Dissent: Forcing a prisoner to manipulate her own body (as opposed to the guards doing it themselves) doesn’t make a search reasonable.
• St. Peters, Mo. officials threaten homeowners with up to $180k in fines and 20 years in prison if they do not tear out garden (photos here) and replace it with grass on at least 50% of the yard. (Later, officials say just 5% grass will suffice.) An excessive fine? A violation of the substantive due process right to quiet enjoyment of one’s property? The Eighth Circuit dismisses the case on procedural grounds.
• Allegation: Fort Madison, Iowa police enter home of tire-slashing suspect, order him to drop knife. The suspect instead withdraws to a closet. An officer opens the closet door and shoots, kills the suspect (who had not lunged toward or otherwise threatened the officer). Eighth Circuit: Qualified immunity. “It was not clearly established in August 2014 that an officer was forbidden to discharge his firearm when suddenly confronted in close quarters by a noncompliant suspect armed with a knife.”
• The DOJ has a pot of money for local police departments who undertake various initiatives. Los Angeles officials: We didn’t get the $3.125 mil grant we sought because the DOJ favors jurisdictions that assist with the feds’ immigration enforcement efforts, which we decline to do. Ninth Circuit (over a dissent): The DOJ has broad discretion to decide how to allocate funds, and the grant program merely incentivizes, rather than coerces, jurisdictions to provide said assistance. And anyway, lots of jurisdictions that do not provide it were given grants, and lots of jurisdictions that do were not.
• Utah chiropractor is prosecuted for trying to pay $340k in back taxes with checks from closed bank accounts. Usually, courts bring down the hammer when such a defendant—a sovereign citizen—tries to discharge the trial judge “from his emergency war powers jurisdictional duties.” Or says that trial must be rescheduled because the defendant is unavailable. Or signs filings with a thumbprint. But not today! The Tenth Circuit holds that the defendant—or, in his view, “the fiction that the court has named as a defendant”—wasn’t sufficiently warned before he waived his right to counsel. Conviction vacated.
• San Juan County, Utah officials draw up three voting districts such that white residents predominate in two districts and Navajo residents (who make up 52% of the population) mostly all live in one district, all but guaranteeing two whites and one Navajo are elected to the three-member commission that governs the county. Tenth Circuit: Which violates the Equal Protection Clause and the Voting Rights Act.
• And in en banc news, the Fifth Circuit will not reconsider its holding that landlords do not violate the Fair Housing Act when they decline to accept “Section 8 vouchers,” which are used disproportionately by minorities, in neighborhoods that are disproportionately white. Seven judges dissent: Plaintiffs plausibly alleged the defendants are perpetuating segregation.

It’s illegal in Florida to give individualized dietary advice without a license that takes years and costs thousands of dollars to obtain. So when Heather Del Castillo, a military spouse who ran a successful health coaching business in California, relocated to Florida, regulators (tipped off by a local dietitian) ordered her to shut down or face a year in jail—per client. But the First Amendment protects the right to give advice on diet and nutrition, and the U.S. Supreme Court recently ruled that there is no exception for so-called “professional speech.” This week, a federal judge nonetheless relied on now-overruled precedent to uphold Florida’s law—and ignored evidence that there is no good public safety justification for it. On to the Eleventh Circuit! Click here to read more.

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Sen. Bernie Sanders (I–Vt.) is, first and foremost, a politician. As a politician, he is responsible for setting rules that govern how other Americans must live and work.

He’s got lots of ideas about that. One of his ideas—one of the more popular ones, considering that a version of it passed the House of Representatives this week—is that workers should be paid no less than $15 an hour, regardless of what agreement they and their employers might have otherwise reached.

But Sanders is also an employer.

As a presidential candidate, Sanders in charge of a national campaign operation that employs dozens of people (along with many more unpaid volunteers). But despite what Sanders believes other employers should have to do to treat their employees fairly, his campaign does not offer a $15 per hour minimum wage.

Some of his employees aren’t very happy about that cognitive—and fiscal—dissonance. They intend to send a sternly worded letter to campaign manager Faiz Shakir in the coming days, The Washington Post reports. “Many field staffers are barely managing to survive financially, which is severely impacting our team’s productivity and morale,” says a leaked copy of the letter. It goes on to say that field workers “cannot be expected to build the largest grassroots organizing program in American history while making poverty wages.”

Some background: Sanders’ operation announced in March that it would be the first presidential campaign in American history to have all low-level employees represented by a union. The contract that the union signed with the campaign promises $36,000 in salary (and full health care benefits) for the lowest-level field workers. The workers now say they are earning less than $15 an hour when you calculate how much they make while toiling for 60 hours or more each week to help get Sanders elected. But they agreed to be paid a set salary rather than an hourly rate, so the criticism should be taken with more than a few grains of salt. Maybe joining the union didn’t quite go the way they planned.

Still, it’s telling to see how Sanders’ campaign responded to the allegation that the Vermont socialist is not putting his money where his mouth is.

In a statement, Shakir stressed that Sanders’ campaign “offers wages and benefits competitive with other campaigns, as is shown by the latest fundraising reports.”

Exactly! If Sanders’ campaign can find a sufficient number of employees willing to work for $10 an hour or $12 an hour, that’s fine. No one is being coerced to work for him, and he’s paying what the market for field workers allows.

Sanders the politician likes to criticize other employers for doing exactly what he’s doing.

“Americans should not be subsidizing the richest family in America and Walmart workers should not be living in poverty,” Sanders tweeted last month, castigating the big box retailer for not paying all workers $15 per hour. “Walmart’s greed has got to end,” he added.

But Sanders the employer surely knows that paying field workers $12 an hour instead of $15 per hour will allow his campaign to hire more field workers. He’s not employing those people because it makes him feel good to do it, and he’s not paying less than $15 per hour because he’s a skinflint multi-millionaire who is too greedy to care about workers. He’s employing them to help him succeed in a highly competitive arena where small margins can make a big difference.

When the problems with a government mandated minimum wage are so obvious that even a socialist’s campaign can’t help but acknowledge them, it should probably make you wonder if Sanders the politician is being willfully ignorant about one of his centerpiece proposals.

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Presidential candidate Elizabeth Warren wants the federal government to provide free health care for every American, child care for every parent, college for every student who wants it, and housing for low-income families. And she wants to pay for it all with a new tax on the richest of the rich. She calls it the “ultra-millionaire tax.”

Skimming a bit more off the top of the bank accounts of the ultra-wealthy might sound like a good deal for working- and middle-class Americans. But the reality is that wealth taxes have been tried before, and they haven’t worked the way Warren promises. 

Warren wants to levy a 2 percent annual wealth tax on all households with a net worth of over $50 million and a 3 percent annual tax on those households with a net worth of more than $1 billion. Unlike an income tax or a sales tax, both of which tax money when it moves around, a wealth tax draws on the same pot of money every year, making the pile smaller and smaller over time. It’s essentially a tax on large savings—the money that investors and entrepreneurs rely on to start new businesses. 

Unlike Rep. Alexandria Ocasio-Cortez (D–N.Y.), Warren has never said that the very existence of billionaires is immoral, but her plan to tax 2 to 3 percent of their wealth on an annual basis is clearly motivated, at least in part, by a desire to reduce their wealth and what she perceives as a power imbalance in our society. The economists who helped Warren design her plan have said that the idea is to make rich people less wealthy: “If very rich people have to pay a percentage of their wealth in taxes each year, it makes it harder for them to maintain their wealth.” Analyzing her plan, they wrote that one of its “key motivations” is “to curb the growing concentration of wealth.”

So this isn’t really about raising tax revenue. It’s about using government power to make sure rich people have less. Still, Warren often pitches her plan as a way to raise money to pay for more government entitlements. And on that count, it’s likely to fall short. 

Warren says her tax plan will raise $2.75 trillion over a 10-year period. But other countries have tried wealth taxes and found that they raise far less money than expected.

In 1990, there were 12 OECD nations with wealth taxes similar to Warren’s. Today, only four remain. Though politicians like Sen. Bernie Sanders (I–Vt.) praise Denmark and Sweden as paragons of democratic socialism that the U.S. should emulate, both nixed their wealth taxes in the ’90s because too many rich citizens were just pulling their money out of the country. This capital flight resulted in lower rates of entrepreneurship and relative economic stagnation. 

Not only did the wealth tax hurt the economy, but it didn’t even raise the money it was supposed to. When Sweden eliminated its wealth tax, it had virtually no effect on government finances, according to the Financial Times.

France tried a wealth tax for more than a decade, starting in 2000. That helped push an estimated 42,000 millionaires out of the country. They didn’t pay the tax—they just left.

Warren wants to get around the capital flight problem by taxing the money no matter where in the world it’s located and imposing a 40 percent exit tax on anyone in this category who wants to renounce his or her citizenship.

This part of the plan relies on hiring more IRS agents, partly to deal with the complexity of evaluating total individual wealth. But throwing more tax collectors at the problem isn’t going to change the fact that the wealthy are very good at protecting their money by offshoring it or putting into unique, hard-to-value assets like artwork. Austria is another country that used to have a wealth tax. One reason it dropped the tax was because the cost of enforcement was so high.

Given its failure in other countries, and her outlandish and vague proposals for addressing those failures, there is no compelling evidence that Warren’s “ultra-millionaire tax” will raise the revenue she claims.

The wealth tax is best understood not as a targeted revenue raiser, but as a symbolic declaration of opposition to the existence of outsized wealth, regardless of how it was obtained. Warren has described her tax as a tool for addressing inequality, but it’s really just a presidential candidate’s way of saying, “I oppose the existence of very rich people.” She could have just said it.

Watch the full video above. The original article upon which this video was based is available here.

Produced by John Osterhoudt, based on an article by Peter Suderman.

Photo of Sen. Warren; credit: F. Carter Smith/Polaris/Newscom

Photo of Sen. Warren; credit: Richard Ellis/ZUMA Press/Newscom

Photo of Sen. Warren; credit: Kevin Dietsch/UPI/Newscom

Photo of Sen. Warren; credit: Derrick Salters/WENN.com/Newscom

Photo of Sen. Warren; credit: Brian Cahn/ZUMA Wire/Newscom

Photo of Sen.’s Warren and Sanders; credit: Tom Williams/CQ Roll Call/Newscom

Photo of Perry Mansion; credit: CelebrityHomePhotos/Newscom

Photo of IRS Sign; credit: Molly Riley/McClatchy DC/TNS/Newscom

Photo of Fredensborg Palace, Denmark; credit: hbgbild/MEGA/Newscom

Photo of Malmo City Library, Sweden; credit: Armand Tamboly/robertharding/Newscom

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