Category: reason

It is not every day one reads an appellate opinion that cites polling data off the internet to criticize the laws the court is obligated to enforce. Today, in Lopez-Soto v. Garland, the U.S. Court of Appeals for the Sixth Circuit did just that. More broadly, the opinion by Senior Judge Martha Daughtrey includes an unusually aggressive critique of U.S. immigration policy, which may explain why the opinion was unpublished.

Judge Daughtrey’s opinion begins:

In an era in which it is difficult to find any issue upon which a large percentage of Americans agree, few people would dispute that our nation’s immigration system is broken and is need of a structural overhaul. Admittedly, a not insignificant number of Americans believe that any change to our immigration statutes should result in shutting our borders to almost all individuals, or at least to all potential immigrants who are not blond-haired and blue-eyed. A June 2020 survey by the Pew Research Center found, however, that approximately 74% of people surveyed felt that our immigration laws should be amended to provide legal status to the approximately 650,000 individuals now in the United States who were brought illegally to this country as children. See pewresearch.org/facttank/2020/06/17/americans-broadly-support-legal-status-for-immigrants-brought-to-the-u-sillegally-as-children/ (last visited Apr. 2, 2021). That same study further found that approximately 75% of the surveyed individuals supported a pathway to legal status for the approximately 10.5 million other immigrants who now reside in the United States without recognized legal status. Id.

Until the immigration system is reformed, however, individuals like petitioner Imelda Lopez-Soto—who has resided in this country for 21 consecutive years, who has remained employed and paid her federal income taxes when required, who has committed no crimes other than driving on a revoked license, and who has given birth to and raised two admittedly outstanding young boys who are United States citizens—remains subject to removal to a country from which she fled for greater opportunity and for a chance to participate in the so-called American Dream. She now petitions this court for review of a decision of the Board of Immigration Appeals (BIA) that denied her requests for withholding of removal, protection under the United Nations Convention Against Torture (CAT), and cancellation of removal. Constrained by precedent and by our immigration laws as they now exist, we must deny her petition.

Judge Karen Moore joined the opinion.

Judge Amul Thapar was also on the panel. He wrote separately, noting he concurred in the result. His brief opinion reads:

I have my doubts about the wisdom of courts opining on hot-button political issues or the motives of citizens who hold one position or another in those debates. And as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.

Thus, I respectfully concur only in the judgment.

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I wrote about this several months ago, but several states have gone stand-your-ground since then—Ohio, Arkansas, and now North Dakota—so I thought I’d repeat it.

[A.] The “duty to retreat” is something of a misnomer (though a very common one); it’s not actually a legally binding duty (the way a parent has a duty to support a minor child, or a driver has a duty to exercise reasonable care while driving). Rather, it’s a provision that, under certain circumstances, failing to retreat from a confrontation will effectively strip you of your right to use deadly force for self-defense.

To see how it works, let’s first set aside situations where you may not use deadly force for self-defense regardless of whether you’re in a stand your ground state:

1. You generally can’t use deadly force for self-defense in most states unless you reasonably believe that you’re facing the risk of death or serious bodily injury or some serious crime: rape, kidnapping or, in some states, robbery, burglary, or arson.
2. In particular, you can’t use deadly force purely in retaliation, once any threat has passed.
3. Nor can you use deadly force against a simple assault, unless you reasonably believe that you’re facing the risk of death or serious bodily injury.
4. You often can’t use deadly force merely to protect property, but it’s complicated.
5. You generally can’t use deadly force where you are yourself engaged in the commission of a crime (e.g., if you’re robbing someone and he fights back, you can’t “defend” yourself against him).
6. You generally can’t use deadly force if you attacked the victim or deliberately provoked the victim with the specific purpose of getting the victim to attack or threaten you.

Now let’s set aside situations where you may use deadly force for self-defense, again regardless of whether you’re in a stand your ground state:

1. You reasonably believe that you’re facing the risk of death etc. (see above) and you can’t retreat with complete safety. This would cover most situations where, for instance, you’re facing an attacker who has a gun, since one generally can’t safely retreat from a gun.
2. You reasonably believe that you’re facing the risk of death etc. and you’re in your home, or (in some states) on other property that you own or in your vehicle or in your workplace. At least the “home” aspect of this is often called the Castle Doctrine, on the theory that your home is your castle.

So what does that leave for the duty-to-retreat / stand-your-ground debate?

1. You reasonably believe that you’re facing the risk of death etc.
2. You’re outside your home (or similar place).
3. You’re not committing a crime, and you aren’t the initial aggressor, and (generally speaking) you are where you are legally entitled to be.
4. In duty-to-retreat states, you are not legally allowed to use deadly force to defend himself if the jury concludes that you could have safely avoided the risk of death or serious bodily injury (or the other relevant crimes) by retreating with complete safety.
5. In stand-your-ground states, you are legally allowed to use deadly force to defend yourself, regardless of whether the jury concludes that you could have safely avoided the risk of death etc. by retreating.

As best I can tell, the current rule is that 12 states fall in the duty to retreat category, with the states being bunched up quite a bit geographically; the other 38 states are stand your ground:

▮ Stand your ground (38 states plus PR, CNMI)
▮ Duty to retreat except in your home (MA, MD, ME, MN, NJ, NY, RI)
▮ Duty to retreat except in your home or workplace (CT, DE, HI, NE)
▮ Duty to retreat except in your home or vehicle or workplace (WI, GU)
▮ Middle-ground approach (DC)
▮ No settled rule (AS, VI)

Pennsylvania imposes a duty to retreat only when faced with an attacker who isn’t displaying or using a weapon “readily or apparently capable of lethal use.” Since it’s rare to have a threat of death or serious bodily injury (remember, you generally can’t use deadly force without such a threat) in the absence of such weapons, or of physical restraint that prevents a safe retreat, I view the Pennsylvania rule as being more on the stand-your-ground side.

The rule in federal cases seems to be ambiguous, and it is in D.C. as well. The D.C. formulation, for instance, is a “middle ground.” The law “imposes no duty to retreat, as it recognizes that, when faced with a real or apparent threat of serious bodily harm or death itself, the average person lacks the ability to reason in a restrained manner how best to save himself and whether it is safe to retreat.” But it “does permit the jury to consider whether a defendant, if he safely could have avoided further encounter by stepping back or walking away, was actually or apparently in imminent danger of bodily harm.” Query what exactly that means.

Still, I think this reflects the general pattern:

1. 3/4 of the states are stand-your-ground, and most of them took this view even before the recent spate of “stand your ground” statutes.
2. There is however a significant minority, basically a quarter of the states, in favor of a duty to retreat.
3. Of course, none of this tells us what the right rule ought to be.

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Rep. Ayanna Pressley (D–Mass.) wants to cancel the rent. She also is the owner of a rental property from which she and her husband have received tens of thousands of dollars in income.

On Monday, the Washington Free Beacon—relying on tax and financial disclosure records—reported that Pressley and her husband purchased a Boston property for $615,000 in 2019, and rented out one of its units for $2,500 a month. That same year, the Free Beacon reports, Pressley reported $15,000 in rental income.

It’s unclear when or if Pressley stopped renting out the property. Regardless, it raises interesting questions about her two-time sponsorship of the Rent and Mortgage Cancellation Act.

The latest version of the bill—written by Rep. Ilhan Omar (D–Minn.), and co-sponsored by Reps. Alexandria Ocasio-Cortez (D–N.Y.) and Rashida Talib (D–Mich.)—would forgive renters’ and homebuyers’ obligations to pay rent or a mortgage from March 2020 through April 2022.

People couldn’t be evicted or foreclosed on for failure to pay for their housing during that period. Unlike the existing federal eviction moratorium, renters would also be released of any obligation to pay back-rent. The legislation went nowhere when it was first introduced in April 2020. Omar reintroduced the proposal again in March of this year.

Pressley’s support of this bill while also being a landlord would seem to cut across her class interests.

The Free Beacon does note that the Rent and Mortgage Cancellation Act creates a fund to compensate landlords for lost rental income. If she remains a landlord, Pressley could avail herself of that aid if she agreed to a five-year rent freeze, to not bar tenants with criminal convictions (a potentially concerning condition given that Pressley’s rental property also contains her primary residence), and a requirement to only evict tenants for “just cause.”

The Rent and Mortgage Cancellation Act would also require Pressley to notify federal housing regulators if she puts her property on the market. The law would give public housing agencies, nonprofits, and state and local government bodies first dibs on buying it.

Pressley, in a press release, said that passing the Rent and Mortgage Cancelation Act “help move us towards an America where no person has to choose between putting food on the table and keeping a roof over their head.”

Does Pressley also think that her own receipt of rental income has taken food out of her tenant’s mouth? Perhaps her congressional salary liberates her having to rely on any rental income. Unfortunately, many small-time landlords are not in such a fortunate position.

The Rent and Mortgage Cancellation Act has been referred to the House Committee on Financial Services in March. The previous year’s version of the bill was referred to the same committee but never received a vote.

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Jurors this afternoon found former Minneapolis Police Officer Derek Chauvin guilty of murdering George Floyd in an encounter that led to widespread national protests, riots, and policing reforms.

After about 10 hours of deliberation, jurors found Chauvin guilty of second-degree unintentional murder (killing Floyd unintentionally as a result of assaulting him), guilty of third-degree murder (acting dangerously and without regard of human life), and guilty of second-degree manslaughter (culpable negligence that risks causing death or harm). Under Minnesota law, the most serious charge, second-degree unintentional murder, poses a maximum sentence of 40 years in prison, though sentencing guidelines show Chauvin likely facing around 12 years. Third-degree murder has a maximum sentence of 25 years. Second-degree manslaughter is punishable by a maximum sentence of 10 years.

In May 2020, Chauvin attempted to arrest Floyd for allegedly trying to purchase cigarettes at a local store with a counterfeit bill. During a confrontation that was captured on video by bystanders as well as police body cameras, a resistant, seemingly panicked but non-violent Floyd ended up on the pavement next to a police SUV, where Chauvin knelt on his neck, pinning him to the ground for more than seven minutes.

Floyd complained multiple times that he couldn’t breathe and then lost consciousness. He stopped breathing, and paramedics were unable to revive him. Subsequent medical examination determined that his death was a homicide caused by cardiac arrest due to his subdual, but Floyd also had fentanyl in his system.

That Floyd was under the influence of fentanyl would be used (particularly by Chauvin’s defense) to argue that the amount of force to make this arrest was justified, under a common and debunked claim by law enforcement officers that drug use confers “superhuman strength,” thus calling for such heavily physical responses.

The seemingly casual way that Chauvin pinned Floyd to the ground as he died became an iconic image and a rallying cry for policing reform, particularly in the way officers interact with black people. Protests led to hundreds of proposed policing reforms across the country. Only a few dozen passed, some focusing on rules for use of force and bans on certain types of neck restraints that cut off circulation.

Chauvin was fired the very next day after Floyd’s death, and several police chiefs and police unions decried his tactics and said the kneeling technique was an inappropriate use of force.

But whether Chauvin was criminally responsible for Floyd’s death needed to be determined by a jury. The two-week trial ended today with a jury determining that Chauvin is criminally culpable for Floyd’s death.

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As we await the now-imminent jury verdict in the trial of former police officer Derek Chauvin for killing George Floyd, it is worth remembering that, no matter what the jury decides, much work remains to be done in curbing police abuses. At the same time, even if the jury commits what I would consider a terrible error and acquits Chauvin on all charges, there is no justification for rioting, which will predictably harm innocent people and set back the cause of police reform. I made these points in a series of posts last year, which I think remain relevant today.

1. “How to Curb Police Abuses—and How Not to“

This post outlines several strategies for curbing police abuses, and also explains why rioting is both wrong in itself and likely to be counterproductive. Sadly, public opinion research suggests that last year’s riots did indeed lower white support for police reform. And it is undeniable that the rioting harmed large numbers of people. Since I wrote that post, some progress has been made on reforms such as ending qualified immunity. But much remains to be done through both litigation and political action. The “other” Ilya—Shapiro of the Cato Institute—has an excellent article on how many police abuses of constitutional rights can be curbed by cutting back or eliminating the War on Drugs. We differ on some other issues. But the Ilyas are very much of the same mind on this one!

2. “The Problem of Racial Profiling“

This post summarizes the evidence that racial profiling is a serious problem, and makes the case for various measures to curb it. Anyone who believes that government must be color-blind and abjure racial and ethnic discrimination cannot make an exception for those government officials who carry badges and guns, and have the power to arrest people (and, in extreme cases, kill or severely injure them).

3. “Rights and Wrongs of ‘Defunding the Police‘”

This post describes some ways in which the role of police in society can be beneficially reduced, but also warns against more radical forms of “defunding the police, ” particularly in light of extensive social science evidence that having more police on the streets reduces violence and property crime (of which poor minorities are disproportionately victims).

The above combination of views may (for different reasons) annoy both some conservatives and some on the left. But I nonetheless hope that a wide range of people might eventually agree that we need to hold police accountable for abuses, curb racial discrimination, and also ensure that police can protect people against violence and theft.

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