Short Circuit: A Roundup of Recent Federal Court Decisions

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

Ever wondered what it’s like to argue before the Supreme Court? Four IJers who have been in the hot seat talk shop on the latest episode of the Short Circuit podcast. And over at NPR, IJ Senior Attorney Robert McNamara (who we really, really hope will be on the hot seat next term) tells it like it is on qualified immunity. Click here to listen. 

  • After White House correspondent for Playboy gets into a shouting match with a former aide to President Trump at a press event, the correspondent’s hard-pass credentials (which allow ondemand access to the White House) are suspended for 30 days—the first time in over 50 years of issuing such credentials that anyone’s have ever been suspended or terminated. D.C. Circuit: The White House can certainly punish “rogue, mooning journalists,” but first it must give them some notion of the rules they must abide by, which it hasn’t. So the correspondent’s suspension likely violated due process.
  • Sexagenarian accidentally activates his medical-alert system early one morning, and White Plains, N.Y. police are dispatched. Upon arrival, police demand to be let in, but the man repeatedly and emphatically says he’s not in need of assistance. Instead of leaving, they call in a dozen “tactical reinforcements,” triggering the man to (allegedly) have hallucinations and flashbacks to his military service. An hour-long standoff ensues, at the end of which police shoot, kill him. Second Circuit: Sure sounds like unlawful entry—that claim should not have been dismissed. (Police did not face criminal charges.)
  • To guard against corruption or the appearance of it, Pennsylvania bans casino and racetrack owners from making contributions to political candidates. A First Amendment violation? State officials: We don’t want well-documented corruption in those industries taking root here. The ban is just common sense. Third Circuit: That won’t do. Nineteen other states that allow commercial, nontribal gambling do not impose such a ban. You needed to actually present some evidence from those states.
  • “Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems,” last month a district court ordered that any Texas voter wishing to vote by mail to avoid COVID-19 may do so. Fifth Circuit: ”The Virus’s emergence has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail.” Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis. The district court’s order is stayed.
  • In which Judge Jones of the Fifth Circuit, in a decision reviving a takings claim about groundwater, issues a rarely seen partial dissent from her own majority opinion.
  • Special deputy sheriff for Henry County, Ohio participates in a shooting class at a public range, accidentally fires his handgun and grievously injures another participant. And while that incident may well give rise to a state-law tort claim, holds the Sixth Circuit, federal constitutional claims are off the table. Nothing about the accident turned on the shooter’s status as a gov’t official.
  • Confronting a tangle of discovery disputes arising out of the Flint Water Crisis, the Sixth Circuit concludes that the district court did everything right. Former Michigan Gov. Rick Snyder (and former State Treasurer Andy Dillon) are off the hook for discovery as parties while their qualified immunity defenses wind through the courts. But the rest of the litigation is still moving forward. And as to that other litigation, Snyder and Dillon can be treated as non-party witnesses and made to sit for depositions.
  • Kentucky outlaws “bodily dismemberment, crushing, or human vivisection of the unborn child” unless the mother first undergoes a procedure to induce fetal demise. Sixth Circuit: The latter procedures are not feasible options, ​which means the law effectively bans second-trimester abortions​. And that is unconstitutional. Dissent: We should hold this case until the Supreme Court decides whether abortion providers have standing to invoke the constitutional rights of their patients, given that the only plaintiffs here are abortion providers.
  • Indiana man believes that his father was a victim of murder and that local law enforcement destroyed the evidence that would have proved it, depriving him of access to the courts. Seventh Circuit: It was error to say he lacked standing to bring this extremely legally bogus claim.
  • St. Louis woman is robbed at gunpoint of phone, cash. One week later, another woman is killed in an armed robbery three blocks away. Police discover a man matching the first woman’s description of her robber, and he’s convicted. But wait! Detectives also interviewed a third woman who said her boyfriend stole the ​first woman’s phone, a charge he denied while admitting to the murder ​of the second woman—information the jury should’ve heard, so conviction reversed. Prosecutors decline to pursue a second trial and dismiss charges. The man sues police for suppressing, destroying, and fabricating evidence and otherwise violating his rights. Eighth Circuit: Nope.
  • Georgia’s ballot-access rules for third-party candidates are much more onerous for non-statewide candidates than for statewide candidates. Simplifying, a third-party candidate for governor can get on the ballot upon collecting signatures from 1% of registered voters; a third-party candidate for the U.S. House of Representatives needs 5%. Eleventh Circuit: The district court incorrectly short-circuited the Libertarian Party’s First Amendment challenge by declining to apply the Anderson v. Celebreeze test. (No comment from the ghost of Anthony J. Celebrezze Jr., whose surname had noticeably more zs and fewer es than the Eleventh Circuit gave him credit for.)

Joshua and Emily Killeen will soon operate a desert retreat and wedding event space on their 10-acre property in rural Yavapai County, Arizona. They initially opened the business without going through the county’s extensive permitting process and have now shut down until their paperwork is in order. But in the meantime, county officials are punishing the couple by banning them from advertising online that their business is “coming soon” and forcing them to cease hosting free weekly events where friends and neighbors were invited to attend free yoga and vegetarian dinners. Which is unconstitutional, and last month the Killeens joined with IJ to file a lawsuit in federal court. Click here to learn more. 

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Hydroxychloroquine ‘Is Not a Treatment for COVID-19. It Doesn’t Work.’

A British research team has concluded that hydroxychloroquine is not an effective treatment for COVID-19 and has halted its use in the United Kingdom’s RECOVERY trial. That trial was established in March to evaluate the efficacy of various medicines for the treatment of COVID-19.

The Independent Data Monitoring Committee for the trials conducted an unblinded review of the hydroxychloroquine data. Based on that review, the researchers have concluded that “there is no beneficial effect of hydroxychloroquine in patients hospitalised with COVID-19.” Martin Landray, one of the principal investigators, told reporters: “This is not a treatment for COVID-19. It doesn’t work.”

According to the statement from the RECOVERY trial investigators,

A total of 1542 patients were randomised to hydroxychloroquine and compared with 3132 patients randomised to usual care alone. There was no significant difference in the primary endpoint of 28-day mortality….There was also no evidence of beneficial effects on hospital stay duration or other outcomes.

These data convincingly rule out any meaningful mortality benefit of hydroxychloroquine in patients hospitalised with COVID-19.

“The RECOVERY Trial has shown that hydroxychloroquine is not an effective treatment in patients hospitalised with COVID-19,” said Peter Horby, the chief investigator for the trial, in the statement. “Although it is disappointing that this treatment has been shown to be ineffective, it does allow us to focus care and research on more promising drugs.”

While the RECOVERY researchers was looking into hydroxychloroquine’s effects on hospitalized patients, an American-Canadian team of researchers was concluding that the drug also does not work as preventive treatment.

Based on some observational studies, some proponents of hydroxychloroquine remain enthusiastic about the possibility that adding zinc will boost the drug’s efficacy. Forthcoming results from ongoing trials will eventually corroborate or refute that lingering hope.

In the wake of the now scandalously discredited observational hydroxychloroquine study published on May 22 in The Lancet, these results should help clinicians, patients, the public and policymakers make better decisions about how best to treat COVID-19.

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3 Supreme Court Cases to Watch This Month

The U.S. Supreme Court’s 2019–2020 term is rapidly reaching its conclusion. By the end of June, the Court is expected to decide several high-profile cases that involve some of the most contested issues in American law, from abortion to school choice to federal anti-discrimination rules. Here are three cases to watch in the coming weeks.

June Medical Services v. Russo

The state of Louisiana requires doctors who perform abortions to have admitting privileges at local hospitals. That restriction sparked a constitutional challenge from abortion providers, who argue that the law serves no valid health or safety purpose and violates the Court’s own precedents forbidding regulations that place an “undue burden” on abortion rights.

If that sounds familiar, it’s because the Court decided a nearly identical dispute in Whole Woman’s Health v. Hellerstedt (2016), striking down a Texas law that required abortion providers to have admitting privileges at local hospitals. Among other things, June Medical Services will show whether a majority of the Court is interested in following Whole Woman’s Health or in crafting a new jurisprudence that is more deferential towards state restrictions on abortion.

Espinoza v. Montana Department of Revenue

In 2015 the Montana legislature created a scholarship program “to provide parental and student choice in education.” It operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify may use the money to help send their children to a “qualified education provider,” a category which includes religiously affiliated K–12 private schools.

But the Montana Supreme Court killed the program off three years later, holding that it violated a provision of the Montana Constitution which bans the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

The question for the U.S. Supreme Court is whether the state may prohibit the sort of school choice initiatives that the Court itself has previously upheld under the First Amendment. In Zelman v. Simmons-Harris (2002), for example, the Supreme Court ruled in favor of a school choice program in Cleveland, Ohio. The program’s opponents claimed it was unconstitutional to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. But the Court said such a system passes constitutional muster as long as it is “neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”

Bostock v. Clayton County, Georgia

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against a job applicant or employee “because of such individual’s race, color, religion, sex, or national origin.” Gerald Lynn Bostock argues that Clayton County, Georgia, violated this provision when it fired him from his job as a child welfare services coordinator solely because of his sexual orientation. The far-reaching question before the Supreme Court is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex” under Title VII.

As I’ve previously noted, Bostock and his lawyers have enlisted the support of a surprising legal ally in the case:

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice [Antonin] Scalia’s unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII’s prohibition on discrimination “because…of sex.” Scalia held that it did.

“Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia acknowledged. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The protections of Title VII, Scalia concluded, “must extend to sexual harassment of any kind that meets the statutory requirements.”

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute’s authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

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Hydroxychloroquine ‘Is Not a Treatment for COVID-19. It Doesn’t Work.’

A British research team has concluded that hydroxychloroquine is not an effective treatment for COVID-19 and has halted its use in the United Kingdom’s RECOVERY trial. That trial was established in March to evaluate the efficacy of various medicines for the treatment of COVID-19.

The Independent Data Monitoring Committee for the trials conducted an unblinded review of the hydroxychloroquine data. Based on that review, the researchers have concluded that “there is no beneficial effect of hydroxychloroquine in patients hospitalised with COVID-19.” Martin Landray, one of the principal investigators, told reporters: “This is not a treatment for COVID-19. It doesn’t work.”

According to the statement from the RECOVERY trial investigators,

A total of 1542 patients were randomised to hydroxychloroquine and compared with 3132 patients randomised to usual care alone. There was no significant difference in the primary endpoint of 28-day mortality….There was also no evidence of beneficial effects on hospital stay duration or other outcomes.

These data convincingly rule out any meaningful mortality benefit of hydroxychloroquine in patients hospitalised with COVID-19.

“The RECOVERY Trial has shown that hydroxychloroquine is not an effective treatment in patients hospitalised with COVID-19,” said Peter Horby, the chief investigator for the trial, in the statement. “Although it is disappointing that this treatment has been shown to be ineffective, it does allow us to focus care and research on more promising drugs.”

While the RECOVERY researchers was looking into hydroxychloroquine’s effects on hospitalized patients, an American-Canadian team of researchers was concluding that the drug also does not work as preventive treatment.

Based on some observational studies, some proponents of hydroxychloroquine remain enthusiastic about the possibility that adding zinc will boost the drug’s efficacy. Forthcoming results from ongoing trials will eventually corroborate or refute that lingering hope.

In the wake of the now scandalously discredited observational hydroxychloroquine study published on May 22 in The Lancet, these results should help clinicians, patients, the public and policymakers make better decisions about how best to treat COVID-19.

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3 Supreme Court Cases to Watch This Month

The U.S. Supreme Court’s 2019–2020 term is rapidly reaching its conclusion. By the end of June, the Court is expected to decide several high-profile cases that involve some of the most contested issues in American law, from abortion to school choice to federal anti-discrimination rules. Here are three cases to watch in the coming weeks.

June Medical Services v. Russo

The state of Louisiana requires doctors who perform abortions to have admitting privileges at local hospitals. That restriction sparked a constitutional challenge from abortion providers, who argue that the law serves no valid health or safety purpose and violates the Court’s own precedents forbidding regulations that place an “undue burden” on abortion rights.

If that sounds familiar, it’s because the Court decided a nearly identical dispute in Whole Woman’s Health v. Hellerstedt (2016), striking down a Texas law that required abortion providers to have admitting privileges at local hospitals. Among other things, June Medical Services will show whether a majority of the Court is interested in following Whole Woman’s Health or in crafting a new jurisprudence that is more deferential towards state restrictions on abortion.

Espinoza v. Montana Department of Revenue

In 2015 the Montana legislature created a scholarship program “to provide parental and student choice in education.” It operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify may use the money to help send their children to a “qualified education provider,” a category which includes religiously affiliated K–12 private schools.

But the Montana Supreme Court killed the program off three years later, holding that it violated a provision of the Montana Constitution which bans the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

The question for the U.S. Supreme Court is whether the state may prohibit the sort of school choice initiatives that the Court itself has previously upheld under the First Amendment. In Zelman v. Simmons-Harris (2002), for example, the Supreme Court ruled in favor of a school choice program in Cleveland, Ohio. The program’s opponents claimed it was unconstitutional to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. But the Court said such a system passes constitutional muster as long as it is “neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”

Bostock v. Clayton County, Georgia

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against a job applicant or employee “because of such individual’s race, color, religion, sex, or national origin.” Gerald Lynn Bostock argues that Clayton County, Georgia, violated this provision when it fired him from his job as a child welfare services coordinator solely because of his sexual orientation. The far-reaching question before the Supreme Court is whether employment discrimination because of sexual orientation qualifies as employment discrimination “because of…sex” under Title VII.

As I’ve previously noted, Bostock and his lawyers have enlisted the support of a surprising legal ally in the case:

In their principal brief to the Supreme Court, Bostock and his lawyers rely in part on Justice [Antonin] Scalia’s unanimous 1998 ruling in Oncale v. Sundowner Offshore Services, Inc. At issue was whether same-sex workplace harassment violated Title VII’s prohibition on discrimination “because…of sex.” Scalia held that it did.

“Male on male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” Scalia acknowledged. “But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” The protections of Title VII, Scalia concluded, “must extend to sexual harassment of any kind that meets the statutory requirements.”

Scalia, a self-described textualist, often argued that the plain meaning of a statute should trump the ostensible intentions, purposes, or expectations of the statute’s authors and supporters. That was one of the reasons why Scalia famously rejected the use of legislative history in such statutory cases.

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5 Ways to Curtail Police Violence and Prevent More Deaths Like George Floyd’s

According to the initial police account of George Floyd’s deadly May 25 encounter with Minneapolis cops, he “physically resisted officers,” who called an ambulance because he “appeared to be suffering medical distress.” The contradictory information that later emerged, which culminated in criminal charges against all four officers, came largely from cellphone, security, and body camera footage.

Without that evidence, the case might have become a swearing match between the cops, who were arresting Floyd for using a counterfeit $20 bill, and the bystanders who watched in horror as Officer Derek Chauvin kneeled on Floyd’s neck for nearly nine minutes, ignoring his complaints that he could not breathe, past the point where he stopped moving and had no detectable pulse. The prompt dismissal of Chauvin and his colleagues, and the charges that prosecutors began to file four days after the incident, once again show how ubiquitous cameras can help hold police accountable when they abuse their powers.

Yet that knowledge was little comfort to Floyd’s family and friends, who were wondering how such a thing could have happened in the first place rather than marveling at the police-correcting value of cameras worn by officers, carried by pedestrians, and mounted on storefronts. For all their potential to reveal and publicize police misconduct, the evidence that cameras make it less likely is so far equivocal, and they manifestly did not save Floyd’s life. But there are some reforms that could prevent other people from meeting a similar fate.

1. Ban Chokeholds

The most obvious problem highlighted by Floyd’s death is police restraint techniques that can fatally obstruct breathing. Floyd was not only pinned by Chauvin’s knee; he was lying on his stomach with his hands cuffed behind him as two other officers applied pressure to his back and legs.

The autopsy report issued by the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.” An independent autopsy commissioned by Floyd’s family, by contrast, said he died from “mechanical asphyxiation.” But both reports agreed that the manner of death was homicide.

Law enforcement experts who watched cellphone video of the incident immediately condemned the officers’ conduct, especially Chauvin’s application of his knee to Floyd’s neck. “The maneuver, billed as a means to gain control of a thrashing suspect, requires pressure on the side of an individual’s neck,” the Minneapolis Star Tribune reported. “At Hennepin Technical College, which trains about half of Minnesota’s police officers, students were taught to use a form of the technique until at least 2016.”

Mylan Masson, a veteran Minneapolis police officer who used to direct the college’s law enforcement and criminal justice education center, said it was clear that Chauvin used the technique inappropriately. “Once the [officer] is in control, then you release,” Masson told the Star Tribune. “That’s what use of force is: You use it till the threat has stopped.” George Kirkham, professor emeritus at Florida State University’s College of Criminology and Criminal Justice, called the prolonged compression of Floyd’s neck “outrageous, excessive, unreasonable force under the circumstances,” since the officers were dealing with suspected property criminal who was “prone on the ground” and “no threat to anyone.”

The possibility that such techniques will be misused with deadly effect has led some police departments to eschew them. A 2016 review of 91 major police departments’  policies by the Police Use of Force Project found that 21 of them explicitly prohibited “chokeholds and strangleholds.”

The issue received renewed attention in 2014, when Eric Garner died following a struggle with New York City officers who were trying to arrest him for selling untaxed cigarettes. Like Floyd, Garner complained that he could not breathe. As with Floyd, this did not deter the cops from using what turned out to be deadly violence against an unarmed man accused of a petty crime.

Video showed Officer Daniel Pantaleo using what looked like a chokehold, a maneuver the New York Police Department had banned. Pantaleo and his supporters denied that, saying his arms slipped while he was trying to use a department-approved takedown technique. The medical examiner concluded that Garner died from “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.” Despite the official department policy against chokeholds, a police review board had received more than 1,000 complaints about the technique during the previous five years.

As that suggests, official policy goes only so far, although it presumably has some restraining effect. After Floyd’s death, the San Diego Police Department announced that it would ban the carotid restraint, a “sleeper hold” that aims to induce unconsciousness by applying pressure to the carotid arteries on the sides of the neck, thereby cutting off the flow of blood to the brain. New York Mayor Bill de Blasio this week reversed his position on a bill that would criminalize chokeholds, saying he would support it as long as there was an exception for “life or death” situations.

2. Restrict Other Kinds of Force

In addition to chokeholds, the Police Use of Force Project considered seven other policies in its 2016 report. It found that 34 of 91 departments required officers to use de-escalation techniques, when feasible, before resorting to force; 77 had policies describing the types of force that are appropriate to use in response to different kinds of resistance; 56 required verbal warnings, when feasible, before the use of deadly force; 19 prohibited officers from shooting at moving vehicles that do not pose a deadly threat; 31 required officers to exhaust all reasonable alternatives before using deadly force; 30 required officers to intervene when their colleagues use excessive force, as three officers failed to do in Floyd’s case; and 15 required officers to report all uses and threats of force—as the Minneapolis Police Department already does.

State lawmakers also can impose restrictions on police use of force. A California law enacted last year says the use of lethal force is justified only when “the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended.” That standard replaced a looser one allowing police to use lethal force whenever a “reasonable officer” in the same circumstances would have done the same.

3. Make It Easier to Fire Bad Cops

While the officers who arrested Floyd were fired immediately, that is by no means typical in excessive-force cases. Pantaleo was not fired until five years after Eric Garner’s death, after a New York grand jury declined to indict him and the U.S. Justice Department decided not to charge him.

An administrative judge concluded, and Police Commissioner James O’Neill agreed, that Pantaleo recklessly used a prohibited chokehold, applying pressure to Garner’s neck in a way that inflicted injury and helped trigger an asthma attack. But the New York City Patrolmen’s Benevolent Association backed Pantaleo until the end and condemned his dismissal.

Police unions don’t just reflexively defend officers who injure or kill people, even in situations where the facts are damning. They insist on contracts that make it very difficult to fire bad cops.

“Consider the binding arbitration that has become a standard feature of virtually all police contracts, which are often negotiated in secrecy,” Reason‘s Shikha Dalmia writes. “Binding arbitration allows cops to appeal any disciplinary action taken by their superiors to outside arbitrators such as retired judges. In theory, these folks are supposed to be neutral third parties. In reality, they are usually in the pockets of unions and dismiss or roll back a striking two-thirds of all actions, even against cops with a history of abuse and excessive violence. The upshot is that police chiefs are powerless to clean house, even as community complaints pile up.”

As Reason‘s Peter Suderman notes, Sgt. Brian Miller, a Broward County sheriff’s deputy who conspicuously failed to intervene in the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, was fired for “neglect of duty.” But Miller challenged his dismissal with support from his police union, and last month he “was not only reinstated but given full back pay.”

During a reckless middle-of-the-night raid last March, police in Louisville, Kentucky, killed the unarmed Breonna Taylor after her boyfriend mistook the invaders for criminals and fired a shot at them. “Taylor’s death resulted in calls for the officers involved to be fired,” Suderman notes, “but Louisville Mayor Greg Fischer warned that the process would be slow. A significant part of why he expected it to take so long, he said, was the city’s collective bargaining agreement with the police union. Fischer lamented the process, saying he recognizes ‘the system is not a best practice for our community.'”

4. Increase Police Transparency

Dalmia notes several other “special protections that police enjoy.” They include rules “allowing police departments to destroy civilian complaint records against officers,” “giving cops involved in shootings several days before filing their statements,” and “barring citizens from filing complaints anonymously and revealing their names to the offending officer.”

In Pantaleo’s case, Commissioner O’Neill publicly released the findings of the department’s internal investigation, deviating from the usual policy, favored by police unions, of keeping such information secret. “New York state law shields police discipline records from public view,” Reason‘s Scott Shackford notes, concealing both the inconsistency of penalties and the histories of officers who are accused of wrongdoing.

As C.J. Ciaramella reported here this week, “New York civil liberties groups are again trying to roll back the state’s expansive police secrecy laws” in the wake of Floyd’s death. California already has made some progress on that front, Steven Greenhut notes, with a 2019 law requiring that “police agencies release reports or findings related to police officers’ discharge of a firearm or serious use of force, as well as sustained incidents by officers of sexual assault or dishonesty.”

The lack of transparency can mean that even when one law enforcement agency manages to fire a bad cop, and even when he is decertified for police work, another one hires him. “There is no nationwide mechanism allowing every police department in the country to access an applicant’s work history with out-of-state departments,” Anthony Fisher pointed out in Reason several years ago. “This information gap allows officers banned from working as police in one state to secure law enforcement employment in another state.”

5. Abolish Qualified Immunity

Under 18 USC 1983, people can sue police officers for violating their constitutional rights under color of law. But since 1982, the Supreme Court has said such lawsuits are allowed only when police violate a “clearly established” right, which in practice often means that victims of police abuse have no recourse if they cannot cite precedents with nearly identical facts. And since 2009, when the justices said courts can dismiss lawsuits against cops without even deciding whether they violated the plaintiff’s rights, it has become increasingly difficult to find the precedents necessary to overcome such “qualified immunity.”

The upshot, as 5th Circuit Judge Don Willett has observed, is that “important constitutional questions go unanswered precisely because those questions are yet unanswered.” He added that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Supreme Court Justices Clarence Thomas, Sonia Sotomayor, and Ruth Bader Ginsburg—who don’t agree about much else—likewise have expressed concern about the qualified immunity doctrine.

This term the Supreme Court is considering a bunch of petitions that provide an opportunity to revisit that doctrine, which has become a license for outrageous police conduct. The defendants in those cases include police officers who shot a 10-year-old boy while trying to kill his dog; wrecked a woman’s home by bombarding it with tear gas grenades after she agreed to let the cops inside so they could arrest her former boyfriend; knocked out a woman and broke her collarbone by lifting her up and throwing her to the ground while responding to an erroneous report that she had been the victim of a domestic assault; and sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up.

“Ending qualified immunity wouldn’t end police brutality,” C.J. Ciaramella notes, “but it would put departments and individual officers on notice that they can no longer brazenly harm and kill people without consequences.” In case the Supreme Court decides not to step in, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.), plans to introduce a bill that would put an end to qualified immunity. Three senators—Ed Markey (D–Mass.), Cory Booker (D–N.J.), and Kamala Harris (D–Calif.)—are working on similar legislation.

“Qualified immunity is the cornerstone of America’s near-zero accountability policy for law enforcement,” says Clark Neily, vice president for criminal justice at the Cato Institute. “It is an illegitimate, judge-made legal doctrine that has systematically undermined our right to be free from the illegitimate use of force by government agents and that helped set the stage for the brutalization of George Floyd and countless others, particularly in communities of color. We applaud the legislative efforts of the numerous members of Congress—in both the House and the Senate— who have stepped forward to right this historical wrong and create a culture of genuine accountability for police, prosecutors, and other public officials.”

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Were the Lockdowns a Mistake? A Soho Forum Debate

The lockdown has saved hundreds of thousands, if not millions, of lives and spared American hospitals the horrors of rationing care.

That was the resolution of a public debate hosted via Zoom by the Soho Forum on Monday, June 1, 2020. It featured Marty Makary, a surgical oncologist at Johns Hopkins, and Knut Wittkowski, former head of the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University.

The Soho Forum typically hosts Oxford-style debates, in which a live audience votes before and after the event, and the debater who swayed the most people wins the contest. Because this debate took place over Zoom, we did things a little differently. The online audience was asked to vote before the debate. If you voted before the debate, please go to sohovote.com after you listen to the podcast and cast your final vote. But if you didn’t register your initial vote before the debate started on Monday evening, your final vote won’t be counted.

Arguing for the affirmative was Marty Makary, a surgical oncologist at Johns Hopkins and the author of the 2019 book The Price We Pay: What Broke American Health Care—and How to Fix It.

Knut Wittkowski argued for the negative. Wittkowski is the CEO of ASDERA LLC, a company discovering novel treatments for complex diseases from data of genome-wide association studies. Wittkowski also served for 20 years as head of the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University in New York City.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Monday, June 8, 2020, at noon EST.

Audio production by John Osterhoudt.
Photo: Maria Khrenova/ZUMA Press/Newscom

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Amidst Calls for Abolishing the Police, Universities Cut Ties With City Police Departments

Following George Floyd’s death at the hands of Minneapolis police, a grassroots movement has emerged urging university officials to cut ties with local police departments.

The epicenter of this push has been the University of Minnesota (UM), which has announced that it would cease a huge portion of its collaboration with the Minneapolis Police Department (MPD). The university’s move was sparked by the student body president, Jael Kerandi, who demanded a full termination of the university’s police contracts in a May 26 letter that gave the administration 24 hours to respond.

The following day, the university announced that it will no longer work with MPD at large events such as football games, limiting its involvement with the department to cooperation with the University of Minnesota’s Department of Public Safety.

Meanwhile, in Worcester, Massachusetts, the local cops’ abusive treatment of protesters has prompted Clark University to discontinue its partnership with the police department. Student petitions demanding that universities end police cooperation have garnered thousands of signatures at New York University, Georgetown University, and the University of California, among others.

Georgetown Student Association President Nicolo Feretti says the movement’s primary goal on his campus is to reduce the presence of Metropolitan Police Department (MPD) officers in student life. Armed MPD officers often accompany the university’s unarmed public safety officers responding to mere noise complaints, he says. Although the campaign is still in its “information-gathering stage,” Feretti adds that a meeting with Georgetown University Police Department Chief Jay Gruber to discuss student concerns is in the works.

Although Feretti doubts that Georgetown will “completely get rid of MPD contracts,” he hopes the administration will at least “limit the extent of the contract to only use them in ways that would not be present in students’ lives.”

Such shifts could curb police power on campus without long legislative battles over institutional reforms. It would certainly send a potent message to police departments that they have overstepped their authority, and it would serve as an experiment in the effects of less invasive policing in collegiate communities.

The University of Minnesota’s move has prompted Minneapolis Public Schools and the Minneapolis Parks and Recreation Board, along with many smaller venues and organizations, to likewise end their contracts with city police. Feretti thinks a successful campaign at Georgetown could have similar chain effects throughout the neighborhood and the city. As more universities heed the demands of their student bodies, similar community challenges to police legitimacy may arise, increasing the impetus for wider reforms.

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5 Ways to Curtail Police Violence and Prevent More Deaths Like George Floyd’s

According to the initial police account of George Floyd’s deadly May 25 encounter with Minneapolis cops, he “physically resisted officers,” who called an ambulance because he “appeared to be suffering medical distress.” The contradictory information that later emerged, which culminated in criminal charges against all four officers, came largely from cellphone, security, and body camera footage.

Without that evidence, the case might have become a swearing match between the cops, who were arresting Floyd for using a counterfeit $20 bill, and the bystanders who watched in horror as Officer Derek Chauvin kneeled on Floyd’s neck for nearly nine minutes, ignoring his complaints that he could not breathe, past the point where he stopped moving and had no detectable pulse. The prompt dismissal of Chauvin and his colleagues, and the charges that prosecutors began to file four days after the incident, once again show how ubiquitous cameras can help hold police accountable when they abuse their powers.

Yet that knowledge was little comfort to Floyd’s family and friends, who were wondering how such a thing could have happened in the first place rather than marveling at the police-correcting value of cameras worn by officers, carried by pedestrians, and mounted on storefronts. For all their potential to reveal and publicize police misconduct, the evidence that cameras make it less likely is so far equivocal, and they manifestly did not save Floyd’s life. But there are some reforms that could prevent other people from meeting a similar fate.

1. Ban Chokeholds

The most obvious problem highlighted by Floyd’s death is police restraint techniques that can fatally obstruct breathing. Floyd was not only pinned by Chauvin’s knee; he was lying on his stomach with his hands cuffed behind him as two other officers applied pressure to his back and legs.

The autopsy report issued by the Hennepin County Medical Examiner’s Office describes the cause of death as “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.” An independent autopsy commissioned by Floyd’s family, by contrast, said he died from “mechanical asphyxiation.” But both reports agreed that the manner of death was homicide.

Law enforcement experts who watched cellphone video of the incident immediately condemned the officers’ conduct, especially Chauvin’s application of his knee to Floyd’s neck. “The maneuver, billed as a means to gain control of a thrashing suspect, requires pressure on the side of an individual’s neck,” the Minneapolis Star Tribune reported. “At Hennepin Technical College, which trains about half of Minnesota’s police officers, students were taught to use a form of the technique until at least 2016.”

Mylan Masson, a veteran Minneapolis police officer who used to direct the college’s law enforcement and criminal justice education center, said it was clear that Chauvin used the technique inappropriately. “Once the [officer] is in control, then you release,” Masson told the Star Tribune. “That’s what use of force is: You use it till the threat has stopped.” George Kirkham, professor emeritus at Florida State University’s College of Criminology and Criminal Justice, called the prolonged compression of Floyd’s neck “outrageous, excessive, unreasonable force under the circumstances,” since the officers were dealing with suspected property criminal who was “prone on the ground” and “no threat to anyone.”

The possibility that such techniques will be misused with deadly effect has led some police departments to eschew them. A 2016 review of 91 major police departments’  policies by the Police Use of Force Project found that 21 of them explicitly prohibited “chokeholds and strangleholds.”

The issue received renewed attention in 2014, when Eric Garner died following a struggle with New York City officers who were trying to arrest him for selling untaxed cigarettes. Like Floyd, Garner complained that he could not breathe. As with Floyd, this did not deter the cops from using what turned out to be deadly violence against an unarmed man accused of a petty crime.

Video showed Officer Daniel Pantaleo using what looked like a chokehold, a maneuver the New York Police Department had banned. Pantaleo and his supporters denied that, saying his arms slipped while he was trying to use a department-approved takedown technique. The medical examiner concluded that Garner died from “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police.” Despite the official department policy against chokeholds, a police review board had received more than 1,000 complaints about the technique during the previous five years.

As that suggests, official policy goes only so far, although it presumably has some restraining effect. After Floyd’s death, the San Diego Police Department announced that it would ban the carotid restraint, a “sleeper hold” that aims to induce unconsciousness by applying pressure to the carotid arteries on the sides of the neck, thereby cutting off the flow of blood to the brain. New York Mayor Bill de Blasio this week reversed his position on a bill that would criminalize chokeholds, saying he would support it as long as there was an exception for “life or death” situations.

2. Restrict Other Kinds of Force

In addition to chokeholds, the Police Use of Force Project considered seven other policies in its 2016 report. It found that 34 of 91 departments required officers to use de-escalation techniques, when feasible, before resorting to force; 77 had policies describing the types of force that are appropriate to use in response to different kinds of resistance; 56 required verbal warnings, when feasible, before the use of deadly force; 19 prohibited officers from shooting at moving vehicles that do not pose a deadly threat; 31 required officers to exhaust all reasonable alternatives before using deadly force; 30 required officers to intervene when their colleagues use excessive force, as three officers failed to do in Floyd’s case; and 15 required officers to report all uses and threats of force—as the Minneapolis Police Department already does.

State lawmakers also can impose restrictions on police use of force. A California law enacted last year says the use of lethal force is justified only when “the officer reasonably believes, based on the totality of the circumstances, that deadly force is necessary to defend against an imminent threat of death or serious bodily injury to the officer or to another person, or to apprehend a fleeing person for a felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless the person is immediately apprehended.” That standard replaced a looser one allowing police to use lethal force whenever a “reasonable officer” in the same circumstances would have done the same.

3. Make It Easier to Fire Bad Cops

While the officers who arrested Floyd were fired immediately, that is by no means typical in excessive-force cases. Pantaleo was not fired until five years after Eric Garner’s death, after a New York grand jury declined to indict him and the U.S. Justice Department decided not to charge him.

An administrative judge concluded, and Police Commissioner James O’Neill agreed, that Pantaleo recklessly used a prohibited chokehold, applying pressure to Garner’s neck in a way that inflicted injury and helped trigger an asthma attack. But the New York City Patrolmen’s Benevolent Association backed Pantaleo until the end and condemned his dismissal.

Police unions don’t just reflexively defend officers who injure or kill people, even in situations where the facts are damning. They insist on contracts that make it very difficult to fire bad cops.

“Consider the binding arbitration that has become a standard feature of virtually all police contracts, which are often negotiated in secrecy,” Reason‘s Shikha Dalmia writes. “Binding arbitration allows cops to appeal any disciplinary action taken by their superiors to outside arbitrators such as retired judges. In theory, these folks are supposed to be neutral third parties. In reality, they are usually in the pockets of unions and dismiss or roll back a striking two-thirds of all actions, even against cops with a history of abuse and excessive violence. The upshot is that police chiefs are powerless to clean house, even as community complaints pile up.”

As Reason‘s Peter Suderman notes, Sgt. Brian Miller, a Broward County sheriff’s deputy who conspicuously failed to intervene in the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, was fired for “neglect of duty.” But Miller challenged his dismissal with support from his police union, and last month he “was not only reinstated but given full back pay.”

During a reckless middle-of-the-night raid last March, police in Louisville, Kentucky, killed the unarmed Breonna Taylor after her boyfriend mistook the invaders for criminals and fired a shot at them. “Taylor’s death resulted in calls for the officers involved to be fired,” Suderman notes, “but Louisville Mayor Greg Fischer warned that the process would be slow. A significant part of why he expected it to take so long, he said, was the city’s collective bargaining agreement with the police union. Fischer lamented the process, saying he recognizes ‘the system is not a best practice for our community.'”

4. Increase Police Transparency

Dalmia notes several other “special protections that police enjoy.” They include rules “allowing police departments to destroy civilian complaint records against officers,” “giving cops involved in shootings several days before filing their statements,” and “barring citizens from filing complaints anonymously and revealing their names to the offending officer.”

In Pantaleo’s case, Commissioner O’Neill publicly released the findings of the department’s internal investigation, deviating from the usual policy, favored by police unions, of keeping such information secret. “New York state law shields police discipline records from public view,” Reason‘s Scott Shackford notes, concealing both the inconsistency of penalties and the histories of officers who are accused of wrongdoing.

As C.J. Ciaramella reported here this week, “New York civil liberties groups are again trying to roll back the state’s expansive police secrecy laws” in the wake of Floyd’s death. California already has made some progress on that front, Steven Greenhut notes, with a 2019 law requiring that “police agencies release reports or findings related to police officers’ discharge of a firearm or serious use of force, as well as sustained incidents by officers of sexual assault or dishonesty.”

The lack of transparency can mean that even when one law enforcement agency manages to fire a bad cop, and even when he is decertified for police work, another one hires him. “There is no nationwide mechanism allowing every police department in the country to access an applicant’s work history with out-of-state departments,” Anthony Fisher pointed out in Reason several years ago. “This information gap allows officers banned from working as police in one state to secure law enforcement employment in another state.”

5. Abolish Qualified Immunity

Under 18 USC 1983, people can sue police officers for violating their constitutional rights under color of law. But since 1982, the Supreme Court has said such lawsuits are allowed only when police violate a “clearly established” right, which in practice often means that victims of police abuse have no recourse if they cannot cite precedents with nearly identical facts. And since 2009, when the justices said courts can dismiss lawsuits against cops without even deciding whether they violated the plaintiff’s rights, it has become increasingly difficult to find the precedents necessary to overcome such “qualified immunity.”

The upshot, as 5th Circuit Judge Don Willett has observed, is that “important constitutional questions go unanswered precisely because those questions are yet unanswered.” He added that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Supreme Court Justices Clarence Thomas, Sonia Sotomayor, and Ruth Bader Ginsburg—who don’t agree about much else—likewise have expressed concern about the qualified immunity doctrine.

This term the Supreme Court is considering a bunch of petitions that provide an opportunity to revisit that doctrine, which has become a license for outrageous police conduct. The defendants in those cases include police officers who shot a 10-year-old boy while trying to kill his dog; wrecked a woman’s home by bombarding it with tear gas grenades after she agreed to let the cops inside so they could arrest her former boyfriend; knocked out a woman and broke her collarbone by lifting her up and throwing her to the ground while responding to an erroneous report that she had been the victim of a domestic assault; and sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up.

“Ending qualified immunity wouldn’t end police brutality,” Reason‘s C.J. Ciaramella notes, “but it would put departments and individual officers on notice that they can no longer brazenly harm and kill people without consequences.” In case the Supreme Court decides not to step in, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.), plans to introduce a bill that would put an end to qualified immunity. Three senators—Ed Markey (D–Mass.), Cory Booker (D–N.J.), and Kamala Harris (D–Calif.)—are working on similar legislation.

“Qualified immunity is the cornerstone of America’s near-zero accountability policy for law enforcement,” says Clark Neily, vice president for criminal justice at the Cato Institute. “It is an illegitimate, judge-made legal doctrine that has systematically undermined our right to be free from the illegitimate use of force by government agents and that helped set the stage for the brutalization of George Floyd and countless others, particularly in communities of color. We applaud the legislative efforts of the numerous members of Congress—in both the House and the Senate— who have stepped forward to right this historical wrong and create a culture of genuine accountability for police, prosecutors, and other public officials.”

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Were the Lockdowns a Mistake? A Soho Forum Debate

The lockdown has saved hundreds of thousands, if not millions, of lives and spared American hospitals the horrors of rationing care.

That was the resolution of a public debate hosted via Zoom by the Soho Forum on Monday, June 1, 2020. It featured Marty Makary, a surgical oncologist at Johns Hopkins, and Knut Wittkowski, former head of the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University.

The Soho Forum typically hosts Oxford-style debates, in which a live audience votes before and after the event, and the debater who swayed the most people wins the contest. Because this debate took place over Zoom, we did things a little differently. The online audience was asked to vote before the debate. If you voted before the debate, please go to sohovote.com after you listen to the podcast and cast your final vote. But if you didn’t register your initial vote before the debate started on Monday evening, your final vote won’t be counted.

Arguing for the affirmative was Marty Makary, a surgical oncologist at Johns Hopkins and the author of the 2019 book The Price We Pay: What Broke American Health Care—and How to Fix It.

Knut Wittkowski argued for the negative. Wittkowski is the CEO of ASDERA LLC, a company discovering novel treatments for complex diseases from data of genome-wide association studies. Wittkowski also served for 20 years as head of the Department of Biostatistics, Epidemiology, and Research Design at The Rockefeller University in New York City.

The Soho Forum, sponsored by the Reason Foundation, is a monthly debate series at the SubCulture Theater in Manhattan’s East Village.

Voting on this debate is open until Monday, June 8, 2020, at noon EST.

Audio production by John Osterhoudt.
Photo: Maria Khrenova/ZUMA Press/Newscom

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