Category: reason

Almost every state instituted emergency rules to deal with the COVID-19 pandemic. This included statewide mask mandates, limits on gatherings, school shutdowns, and more. Michigan has had and continues to have some of the most severe restrictions across the country.

But what makes the Great Lakes State truly unique now is that it wants to make its emergency rules for businesses permanent.

State bureaucrats are moving to impose permanent regulations that would mandate the following and more on all Michigan businesses: mask wearing whenever employees are within six feet of someone else, daily health screenings, extensive record keeping, and keeping a “COVID-19 safety coordinator” on-site. Retail stores, personal care services, and other businesses open to the public would have to become the mask police: They would be required to make all customers wear masks, vaccinated or not.

Many of these rules are based on mandates put in place last spring by Gov. Gretchen Whitmer. As such, many are based on outdated scientific knowledge about how COVID-19 spreads. For instance, employers must “increase facility cleaning and disinfection” and “prohibit workers from using other workers’ phones, desks, offices or other work tools and equipment.” These rules were dreamed up when public health experts thought the virus could easily spread via surface contact. The Centers for Disease Control and Prevention (CDC) recently said there’s a one in 10,000 chance of getting infected from touching a contaminated surface.

The rules make no accommodations for vaccinations. The word vaccine doesn’t even appear in the rules. This means that even if a movie theater or bowling alley has fully vaccinated its entire staff and is in a community with no cases, masks are mandated at all times.

Other mandates in the proposed rules may be impossible for businesses to comply with. Sports stadiums must, for instance, “establish safe exit procedures for patrons,” such as dismissing attendees by section. Would the Detroit Lions need to prevent people from individually leaving Ford Field early during a blowout loss (a common occurrence)? That may be illegal. 

So how can this be? Aren’t there limits on the state’s power? Yes, but Michigan’s executive offices have fought them every step of the way.

Whitmer put in place orders last spring under a state law that requires the legislature to approve the continuation of emergency powers after 28 days. Initially, Michigan lawmakers approved their continuation for another 22 days. But even after the legislative approval expired, Whitmer continued issuing emergency orders. She claimed a 1945 law aimed at controlling local riots enabled her to maintain unilateral control over the state’s pandemic response for however long she alone determined was necessary. The Mackinac Center Legal Foundation filed a lawsuit on behalf of three medical providers who had been shut down, and a patient who had been denied care, and the Michigan Supreme Court eventually ruled that the governor had acted illegally and could not extend these emergency orders indefinitely.

Whitmer, nevertheless, maintained unilateral control. She merely switched to using a law that authorizes the director of her state health department to limit gatherings during a pandemic to reinstitute most of the mandates the Michigan Supreme Court had just invalidated. Other state departments, such as the Michigan Occupational Safety and Health Administration (MIOSHA), followed suit with their own emergency rules that mirrored the governor’s original orders.

The permanent rules being discussed are being put out by MIOSHA. As part of the rule-making process, they have to submit a “regulatory impact statement.” In it, they cite only one state with permanent COVID-19 rules—Virginia. But that may be incorrect, as Virginia’s workplace regulators say their rules are “temporary standards.”

In 2020, MIOSHA went after gas stations for employees wearing face coverings inadequately, roofers who were not social distancing, and forklift drivers working outside and not wearing masks. It has issued dubious fines for transgressions, including to the city of Port Huron, even though the inspector admitted he didn’t see any unmasked workers, but simply had a “general feeling” that masks “were not being taken seriously.” The agency can fine or put companies out of business or even put people in jail. The permanent rules being discussed would comprise a different process with different punishments, but this shows the extent to which the agency has gone after those violating regulatory mandates.

What can lawmakers and the public do? Not much. The legislature can slow down the implementation of these rules, but not stop them. MIOSHA must hold a public hearing and receive comments from the public, but it doesn’t have to take those comments into consideration. Barring a successful lawsuit, if the governor and her department want these permanent rules put in place, they will be in effect indefinitely until the law is changed or until a different governor changes them.

Ultimately, one person can control the lives of all 10 million Michigan residents to an enormous extent not only during a declared state of emergency, but potentially for years going forward.

If that doesn’t show the dangers of the administrative state, I don’t know what does.

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In the last month, the United States has seen four mass shootings in public places that killed at least four people aside from the perpetrator, including yesterday’s attack at a FedEx warehouse in Indianapolis. Prior to the Atlanta spa shootings on March 16, more than a year had elapsed without such a crime, which is the definition of public mass shootings used by the Congressional Research Service.

That pattern is consistent with data indicating that public mass shootings tend to happen in clusters, suggesting that one such crime makes others more likely. “One happens, and you see another few happen right after that,” Hamline University criminologist Jillian Peterson noted in a 2019 interview with NPR.

A 2015 PLOS One study seemed to confirm that impression. Statistician Sherry Towers and her collaborators looked at 232 “mass killings” (defined as “incidents with four or more people killed”) from 2006 through 2013, based on USA Today‘s database. They also considered 188 school shootings—defined as incidents on campus (including college campuses) during school hours, on school buses, or at school-related events (such as football games) in which at least one person was shot—from 1998 through 2013.

“We find significant evidence that mass killings involving firearms are incented by similar events in the immediate past,” Towers and her co-authors reported. “On average, this temporary increase in probability lasts 13 days, and each incident incites at least 0.30 new incidents….We also find significant evidence of contagion in school shootings, for which an incident is contagious for an average of 13 days, and incites an average of at least 0.22 new incidents.” The researchers did not find such evidence when they looked at a broader category of shootings that included attacks in which at least three people were injured or killed.

What is the mechanism of the “contagion” described in this study? Towers et al. say “stressed individuals may have, consciously or sub-consciously, been inspired to act on previously suppressed urges by exposure to details of similar events.” They argue that “such contagious ideation is not implausible,” since “vulnerable youth have been found to be susceptible to suicide ideation brought on by influence of reports and portrayal of suicide in mass media” and “media reports on suicides and homicides have been found to apparently subsequently increase the incidence of similar incidents in the community.”

In a 2016 paper, Western New Mexico University psychologist Jennifer Johnston and graduate student Andrew Joy say “recent analyses of media coverage followed by copycat incidents,” including the Towers study, “indicate a media contagion effect.” Consistent with that hypothesis, other studies have “found that most shooters desired fame and wished to emulate a previous mass shooter.” Johnston and Joy argue that “identification with prior mass shooters made famous by extensive media coverage, including names, faces, writings, and detailed accounts of their lives and backgrounds, is a more powerful push toward violence than mental health status or even access to guns.”

Northeastern University criminologist James Alan Fox, a leading expert on mass shootings, is skeptical of that argument. “Some bunching just happens,” he told The Washington Post in 2016. “Yes, there is some mimicking going on, but the vast majority of mass killers don’t need someone else to give them the idea.”

In a 2013 Homicide Studies article, Fox said there was a “paucity of hard evidence about the exact magnitude of copycatting.” But he also noted that “there are many curious examples of copycat offending,” including the series of shootings by U.S. Postal Service workers that began in 1986, which gave rise to the expression “going postal.” He also cited the perpetrator of the 2012 attack at Sandy Hook Elementary School in Newtown, Connecticut, who reportedly was “obsessed” with the mass shooter who had killed 77 people in Norway the previous year.

“Whatever the extent of imitation,” Fox wrote, “it is important that media coverage not obsess over large and especially record-setting body counts and avoid the tendency to sensationalize already sensational events….There is a critical distinction between shedding light on a crime and a spotlight on the criminal.”

University of North Carolina sociologist Zeynep Tufekci likewise argues that news organizations should exercise restraint in covering mass shootings. “I am increasingly concerned that the tornado of media coverage that swirls around each such mass killing, and the acute interest in the identity and characteristics of the shooter—as well as the detailed and sensationalist reporting of the killer’s steps just before and during the shootings—may be creating a vicious cycle of copycat effects similar to those found in teen and other suicides,” she writes in a 2012 Atlantic article.

Tufekci notes that news outlets changed the way they covered suicides in the hope of weakening the copycat effect—for example, by omitting the word suicide from headlines, by refraining from describing the method of suicide, and by not portraying it as “an inexplicable act of an otherwise healthy person.” She suggests that similar self-restraint could help prevent clusters of mass shootings.

Some of Tufekci’s specific recommendations are debatable. She suggests, for example, that information about “which guns exactly were used” should not be reported. Yet that information is of keen interest to people on both sides of the gun control debate, especially because politicians and activists always react to mass shootings by pushing the firearm policies they already favored, such as “assault weapon” bans and expanded background checks for gun buyers. The relevance of such proposals is hard to evaluate without knowing what weapon was used or how the perpetrator obtained it.

Tufekci’s recommendation that there should be “no reporting of the killer’s words or actions before or during the shooting” is similarly problematic, especially when those words and actions illuminate the shooter’s motivation. When a killer might have been driven by racism or anti-Semitism, for instance, interest in the views or sentiments he expressed goes beyond morbid curiosity or sensationalism and is legally relevant when prosecutors are contemplating hate crime charges (whether the law should allow such charges is another matter).

Tufekci also suggested that mass shooters’ social media accounts should be taken down right away, which has since become common practice, and that perpetrators’ names should not be immediately revealed. The latter recommendation, insofar as it implies that police should withhold that information “for weeks” (as Tufekci suggests), seems inconsistent with principles of transparency and accountability, since we are talking about public records concerning newsworthy events with implications for public safety.

But the fact that such information is available does not mean it has to be included in every article about a mass shooting. Likewise with photographs of mass shooters. I try to do my own small part by omitting the perpetrator’s name and picture when I write about mass shootings, which has been my practice in recent years. When the subject is something like the wisdom of public policy solutions proposed by politicians, there is no need for those details. And even in straightforward news coverage, reporters and editors really should be thinking about how often and how conspicuously they need to name and show the mass shooter.

More generally, the sheer volume of coverage that tends to follow mass shootings not only makes the perpetrators more famous; it creates a distorted sense of how often these crimes occur. Despite the impression left by the attention they receive, mass shootings remain rare events that account for a tiny share of annual gun homicides, and policies proposed in response to them may be ill-suited to the broader problem. Leaving aside the illogic of “assault weapon” bans, for example, they plainly have nothing to do with run-of-the-mill gun homicides, which overwhelmingly involve ordinary handguns (which are also the type of weapon most commonly used in mass shootings, including some of the deadliest).

In addition to cautioning against obsessive coverage of mass shooters, Tufekci argues that “the intense push to interview survivors and loved ones in their most vulnerable moments should be stopped,” which “may help reduce the sense of spectacle and trauma.” That too is more a matter of proportion, tone, and emphasis than a yes-or-no question. But if the news media contribute to the copycat effect by dwelling on the suffering of victims and relatives, so do the activists and politicians who endlessly highlight those stories while pushing firearm restrictions.

That is another reason (in case we needed one) to emphasize logic and evidence rather than emotional appeals in debates about gun control. Public officials could do their part by not reflexively pushing their pre-existing agenda after every mass shooting, even when the details of the crime are still unclear or make the supposed solution irrelevant. But if expecting self-control by click-hungry journalists seems unrealistic, expecting politicians to think before they speak is an even taller order.

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

Friends, please join us on Zoom from 12–2 pm ET next Tuesday, April 20, as we wish Section 1983 a happy 150th birthday. The symposium will feature a splendid array of scholars and litigators discussing the past, present, and future of the nation’s most important civil rights law. Register now!

• Tinker, Tailor, Soldier, Tweet (redux)? After previously remanding for the district court to determine whether a U.K. financier could be subject to personal jurisdiction in D.C. for tweets alleging that a D.C. resident was a “Russian intelligence asset,” a panel of the D.C. Circuit now reconsiders—and decides to certify some questions to the D.C. Court of Appeals instead.
• Dr. Pepper may be the world’s best soft drink (it’s a fact), but the drink’s manufacturer had less success in this D.C. Circuit labor-law appeal. While the company claimed that a union should not be certified for positions it had already announced plans to eliminate, that argument fell flat given that the company had announced similar plans multiple times before and never followed through.
• This week on “Judge Selya’s vocab quiz“: contretemps, encincture, interstitial, pellucid, and vel non.
• The pension fund for Virgin Islands government employees faces a $3 billion (with a “b”) shortfall. Third Circuit: The district court correctly found the Virgin Islands government liable for $18.9 million (with an “m”) in delinquent contributions, but improperly ordered the government to cover the entire shortfall. An island of 106,405 persons simply cannot cover these amounts. Concurrence: While we find the government liable for that smaller amount, we do not (and cannot) actually compel the government to pay anything at all.
• Lawful permanent resident, ordered deported after a controlled substance offense, obtained a full and unconstitutional gubernatorial pardon. So he gets to stay, right? Third Circuit: Nope.
• “Is there anything materially deceptive or misleading about a debt collection letter that accurately itemizes a debt as including ‘$0.00’ in interest and fees when the debt cannot accrue interest and fees?” Tell us, Third Circuit; the world needs to know! Third Circuit: That accurate statement obviously is not deceptive or misleading.
• In 1995, a Pittsburgh, Pa. teenager allegedly burned down his home to get the insurance proceeds. In responding to the blaze, three firefighters died. Local, state, and federal prosecutors form a joint prosecution team to try the alleged arsonist in state court, and he’s convicted. The state courts eventually grant him a new trial because witnesses at the first trial received money from the feds for their testimony. The state (yes, yes “Commonwealth”) then dismisses all charges. Whew! But wait, now a federal grand jury has indicted him for federal crimes relating to the fire. Man: Double jeopardy! Third Circuit: Nope. The original state-court case was set aside because of a trial error, so double jeopardy doesn’t enter the picture.
• An alien may seek to avoid deportation by showing a clear probability that, if deported, he will be persecuted because of his membership in a “particular social group.” El Salvadoran citizen: my particular social group is “former Salvadoran MS-13 members.” Board of Immigration Appeals: Not good enough; that group is too “diffuse.” Fourth Circuit (over dissent): Even applying Chevron deference, that’s wrong. On its face “former Salvadoran MS-13 members” provides clear benchmarks for the boundaries of the group. Case remanded to the Board of Immigration Appeals (which may well deport the man on different grounds).
• After a woman spoke out against a city employee at a public meeting, she was publicly shamed and followed home by the police. None of which, says the Fifth Circuit, is nearly scary enough to amount to a First Amendment retaliation claim.
• A Louisiana man invents and trademarks “Metchup,” a blend of mayonnaise and ketchup (except sometimes when it’s instead a blend of mustard and ketchup). Did Heinz infringe his trademark by briefly displaying a picture on its website featuring “Metchup” as a user-suggested name for its own mayo-ketchup blend? Fifth Circuit: Yeah, no. But we remand for fact-finding to see whether the Metchup impresario (who has sold some 60 bottles of marvelous Metchup over the past decade) should have his trademark canceled outright.
• An intoxicated man walks into a Dallas County jail lobby, where he eventually dies while being violently restrained. Fifth Circuit: There’s clear video of the whole thing, and all the force used was reasonable. Qualified immunity.
• In 2013, the Supreme Court ruled that settlements where a drugmaker pays a would-be generic manufacturer to delay entry into the market can sometimes violate antitrust laws. In the first case it reviewed after that decision, the FTC ruled that this particular settlement was totally illegal. And, says the Fifth Circuit this week, it was well within its rights to say so.
• The Fifth Circuit milks the udderly mooving story of the beef between two ranchers that—no bull—led to a high-stakes prosecution for modern-day cattle rustling. Held: 70 months is kosher.
• Ohio prohibits doctors from performing an abortion when they know that the woman’s reason for the abortion is that her fetus has Down syndrome and she does not want a child with Down syndrome. Which is constitutional, according to the en banc Sixth Circuit. Eleven opinions span 111 pages addressing a host of arguments, including originalism, eugenics, and whether Ohio’s law burdens a woman’s right to abortion at all.
• Wisconsin governor holds press briefing previewing the major initiatives to be unveiled in his budget address later that evening. Open only to invited members of the media, two reporters are turned away. Turns out they’re not on the media list because the governor’s staff doesn’t deem their think-tank-funded news service sufficiently newsy—an exclusion the reporters deem ideologically motivated. Seventh Circuit: Nah. The governor’s staff examines neutral factors in considering whether to include a particular media outfit on its list, and there’s no evidence of viewpoint discrimination.
• At sentencing for a felony murder conviction, the defendant’s attorney says only: “Judge, I’m going to defer to [the defendant] if he has any comments. I don’t have anything to add.” The man gets the maximum sentence—130 years in prison. Seventh Circuit: There’s inadequate assistance of counsel, and then there’s a total breakdown by counsel so profound that the defendant need not prove prejudice to get habeas relief. Dissent: He still needs to show prejudice.
• From late one night in Chicago comes the bizarre case of a man suddenly firing a gun into the air outside a nightclub. An off-duty officer responded by shooting the man. When the man’s friend picked up the fallen gun, the officer then engaged in a standoff with the friend, using the injured but living original gunman as a human shield, sometimes pointing a gun to his head. Is this reasonable under the Fourth Amendment? You can decide for yourself by watching the security footage here. But the Seventh Circuit won’t. Qualified immunity!
• Springfield, Ill. man and accused drug dealer is in the back of a squad car when he swallows 3.5 grams of heroin (which your editors understand to be an awful lot). When he wakes up at the hospital, he says some incriminating stuff to the cops. The district court finds the statements voluntary and admits them, and the man is convicted. Seventh Circuit: Sure, the statements weren’t coerced. But the man still might not have waived his right against self-incrimination if he hadn’t been (in technical terms) super-high. Please sort that out on remand.
• Only lawyers can take a sordid tale of smuggled body armor and surface-to-air missiles and turn it into a dispute about venue and waiver. In a related story, here’s a Ninth Circuit opinion about venue and waiver.
• Allegation: Social workers lied in order to get a court to order medical examinations of minor children without their parents’ consent. Ninth Circuit: And it’s clearly established you can’t do that. No qualified immunity.
• Defendant: I can’t be charged with extortion because the only thing I did was threaten to bring a meritless lawsuit against a “well-known singer-songwriter.” (pssst … it was some guy named Andy Grammer, whom your 40-something summarist has never heard of.) Ninth Circuit: Did you miss the word “meritless” in there?
• In 2007, federal prosecutors reached a secret agreement with Jeffrey Epstein under which he would not be prosecuted for sexually abusing more than 30 minor girls. Did the agreement, and the steps prosecutors took to conceal it, violate the victims’ rights under the Crime Victims Rights Act to be treated with fairness and dignity and to confer with the prosecutor? Eleventh Circuit (en banc, 185 pages of split opinions): No need to answer that. The CVRA does not allow victims to file a stand-alone case to assert their rights in the first place. Even though that was the only way they could have asserted their rights here. Because the non-prosecution agreement was hidden from them. (We discussed the original panel holding on the podcast.)
• Eleventh Circuit (sitting en banc): Prisoners can, in fact, recover punitive damages even in the absence of physical injury.
• In not-going-en-banc news, five judges dissent from the Fifth Circuit‘s refusal to reconsider whether the Department of Health and Human Services can delegate certain questions to the private Actuarial Standards Board.
• And in some-people-think-it-shouldn’t-be-going-en-banc news, a rare dissent from a grant of en banc review in the Sixth Circuit.

Once again, officers have seized property from someone engaged in perfectly legal behavior—flying with cash. And when Jerry Johnson went to court to fight for the return of his $39,500, which Jerry planned to use to purchase a used semi-truck at auction for his trucking business, the judge held that Jerry could not challenge the state’s forfeiture because he hadn’t proven his innocent ownership of the seized property. This week, IJ appealed Jerry’s case to the Arizona Court of Appeals, arguing that requiring Jerry to prove his own innocence flips the law on its head and undermines our most basic constitutional guarantees. Fox News 8 has the story.

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The Biden administration has done a great deal of good in reversing many of Trump’s anti-immigrant policies. Examples include ending Trump’s anti-Muslim travel bans, terminating or allowing to expire the previous administration’s bans on most immigration and work visas (adopted under the pretext of combating the Covid pandemic), revoking the border “emergency” declaration and the accompanying diversion of federal funds to build the wall, and fully reinstating DACA. The administration has also laid out an ambitious legislative agenda to legalize most current undocumented immigrants living in the United States, and make it easier for many new immigrants to enter. Even if that agenda is unlikely to pass anytime soon, it still serves a valuable function in moving the “Overton window” on political debate.

The above list—which isn’t exhaustive—should give pause to those (including some libertarians) who claim that Biden’s immigration policies are  no better than Trump’s. But it is also true that there are several immigration issues on which Biden has so far fallen woefully short.

Perhaps the most egregious is the administration’s decision to break the president’s promise to raise the annual refugee admission ceiling to 125,000 (62,500 for the rest of the current fiscal year). Instead, Biden will keep in place Trump’s historically low ceiling of 15,000, albeit while dropping the latter’s restrictions on admission of refugees from many African and Muslim-majority nations. This decision may even lead Biden to break Trump’s record for having the lowest refugee admissions ever. Liberal Washington Post columnist Catherine Rampell summarizes:

Biden has spoken warmly of immigrants in general and refugees in particular…. Shortly after taking office, he announced plans to rebuild the refugee resettlement program, which had been hobbled by years of successively lower refugee admissions ceilings set by Trump. Biden said this process would begin by quadrupling the record-low ceiling that Trump had set for fiscal 2021 (taking it from 15,000 to 62,500)….

Biden announced all this in early February. His State Department submitted a detailed report to Congress on the new ceiling and eligibility criteria days later. State Department officials began booking flights for refugees who had been waiting for years — people who had been fully screened for national security and public health concerns and deemed ready to go.

Then, astoundingly, Biden blocked his own policy from taking effect.

Without explanation, Biden never signed the paperwork, called a “presidential determination,” legally necessary to lift Trump’s restrictions. So, roughly 715 desperate refugees whose travel arrangements were made by Biden’s own State Department — many of whom had given away their possessions and vacated their homes in anticipation of relocation — had their tickets abruptly canceled.

There is no justification for this reversal, and the administration hasn’t offered any kind of policy rationale for it. For some of the refugees barred by the decision, the issue is literally a matter of life and death. At the very least, they will be condemned to spend many more months under conditions of severe privation.

The media reports anonymous White House sources indicating that it was caused by fear of “political optics” relating to the situation at the southern border. In reality, the refugee policy has no connection to the border situation, because the refugees are not crossing that border, and would not be undocumented migrants, having been already vetted and approved for entry. The administration’s fear of political backlash—if that is indeed the cause of the reversal—is also grossly overblown. In reality, few Americans even know what the refugee limit is (surveys consistently show most have no idea how much immigration there is in general and other fairly basic aspects of immigration policy), and those few who both know and would be angry about the administration’s decision to raise it are likely to be hardcover immigration restrictionists whose support Biden is highly unlikely to get, short of fully embracing a Trumpian agenda across the board.

The problems at the border that may have spooked the administration on the refugee cap are themselves largely a consequence of another flawed Biden policy: the decision to keep in place Trump’s Title 42 policy of expelling nearly all migrants at the southern border, while making an exception for unaccompanied minors. Predictably, this has led to both a surge in crossings by lone minors and continued undocumented migration elsewhere, as there is almost no way for adult migrants and intact family groups to cross legally.

Biden has perpetuated the Title 42 order despite the fact that it is of dubious legality  and do not actually benefit public health.  It was enacted by the Trump White House  over the opposition of CDC scientists, who believed it to be unnecessary. As Cato Institute immigration policy expert David Bier explains, Biden could easily address these problems by rescinding the Title 42 expulsion order, and reopening ports of entry.

A third area where the administration has fallen short is its failure to fully terminate lawsuits seeking to seize property for border wall construction through the use of eminent domain, despite the president’s campaign promise to do exactly that. Just two days ago, a federal court upheld one such condemnation, allowing it to go forward.

These takings were initially begun under the Trump administration. To my knowledge, the new administration has not initiated any new border wall eminent domain cases. In addition, the termination of Trump’s emergency declaration and accompanying funding diversions has led to the end of wall construction efforts in areas where the diverted funds were being used. Thus, overall, Biden’s record here is still a major improvement on Trump’s.

Nonetheless, the administration can easily improve further simply by terminating all border wall takings, including those unrelated to Trump’s emergency declaration. The federal government can terminate ongoing eminent domain cases anytime it wants. No law prevents it from doing so. The administration could also potentially return at least some of the previously seized land to its rightful owners.

The Justice Department claims to have been surprised by the recent district court border wall decision, because its lawyers had asked for continuances in all ongoing border wall takings cases. Even if this is true, they could and should have avoided this problem by simply terminating these cases entirely, not just seeking continuances.

Finally, David Bier highlights another Biden immigration policy failure that has received far less public attention than the three discussed above. But it is an important one nonetheless:

President Biden ended President Trump’s immigrant visa ban and allowed his nonimmigrant visa ban to expire on April 1. While this is progress, the president is inexplicably keeping 76 percent of consulates fully or partially closed to routine visa processing, affecting about 71 percent of all visa applicants. The consulate closures are acting as a de facto ban on legal immigration and travel, even though all travelers to the country must receive negative COVID-19 tests and more than 551 million doses of the vaccine have already been administered outside the United States….

As of April 8, 2021, just 57 of 237 visa processing sites around the world (24 percent) were fully operational for nonimmigrant visa applicants, and just 97 (41 percent) allowed anything other than emergency applications (Table 1). Even many open sites have massive wait times for visas. The average wait was 95 days for a visitor or business traveler visa, but 31 percent of sites open for those visas had waits longer than 4 months, and 22 percent had waits longer than 6 months….

As Bier explains, there is no good reason to continue these visa restrictions at a time when State Department employees are being  vaccinated, and the administration has multiple perfectly legal ways to restart visa processing without requiring in-person interviews (Bier describes them in detail).

In sum, Biden’s immigration policy is already a massive improvement over Trump’s. There are likely to be further improvements in the future. For example, the administration may well eventually raise the refugee ceiling and expand visa processing as the pandemic continues to recede.

But being better than Trump on immigration—even vastly better—is a very low standard of comparison.  On multiple fronts, the new administration is unnecessarily perpetuating cruel Trump-era policies, thereby inflicting needless suffering on migrants, refugees, and even American property-owners along the southern border.

Immigration advocates should recognize the good the Biden administration has done. But they should also press as hard as possible for it to end more of the evil.

 

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Florida lawmakers passed a new anti-rioting bill Thursday supported by Republican Gov. Ron DeSantis despite the objections of civil rights groups, which argue the legislation can and will be abused to target and punish peaceful protesters.

A read through H.B. 1 shows that it’s been designed so that supporters of the bill can insist that it’s only about fighting criminal and violent riot tactics. But its critics are correct: It contains vague enough wording to allow police to abuse it to shut down protests.

Here’s what’s in H.B. 1:

• H.B. 1 fleshes out existing laws against blocking streets as part of protests and increases penalties for anybody who commits battery or similar violent crimes as part of a riot.
• It establishes a minimum six-month jail sentence for anybody convicted of battery against a police officer as part of a riot.
• It creates a new crime—mob intimidation—which is defined as two or more people attempting to use or threatening force “to compel or induce, or attempt to compel or induce another person to do or refrain from doing any act or to assume, abandon, or maintain a particular viewpoint against his or her will,” punishable as a first-degree misdemeanor (which entails up to a year in jail and up to a $1,000 fine).
• It establishes that anybody convicted of vandalizing or destroying historic property or a memorial is committing a felony, with a possible prison sentence of up to 15 years and a fine of up to $10,000, as well as restitution orders.
• H.B. 1 further establishes a mandate that municipalities must respond to protect people and their property during a riot or any unlawful assembly. Failure to do so strips the municipality itself of civil immunity and opens it up to lawsuits for damages.
• It gives a commission in the governor’s office veto power over municipalities within the state if they attempt to reduce the budget of their own police departments.
• It prohibits releasing anybody arrested for certain crimes like theft or assault during a riot until the arrested person has appeared before a magistrate.
• It separately and specifically prohibits anybody who is arrested for “unlawful assembly,” which is defined as any gathering of people to “commit a breach of the peace” or any other unlawful act (not necessarily rioting), from being released until they’re brought before the court.
• It creates a new crime of “cyberintimidation by publication,” making it unlawful to electronically publish somebody’s personal identification information with the intent to (or with the intent that a third party will) incite violence against the person, harass the person, or place “such person in reasonable fear of bodily harm.” This section makes no distinction between private citizens or government workers or even elected political figures. Violating the law is a first-degree misdemeanor (up to a year in jail and up to a $1,000 fine).
• It creates an affirmative defense for anybody taken to civil court over injury, damage, or death if it is the result of a participant in the lawsuit engaging in rioting. This part of the law has been presented in the press as granting legal immunity to people who run over protesters.

There’s a lot going on in this law—not all of it terrible—but there are many troubling components. There is hardly a place in America where the penalties for crimes are too small, and Florida is no exception. We don’t need to increase the penalties for existing crimes just because they take place during riots.

Detaining people arrested for violent crimes or thefts during riots until they go before a judge is a measure that seems on the surface to be reasonable, but the whole justification for it seems suspect given that the bill also applies to the extremely subjective and abused crime of “unlawful assembly.” This part of the bill creates an incentive for law enforcement officials to declare any sort of protest on a controversial matter (especially one that critiques their power) as “unlawful” and clean off the streets, knowing that everybody they arrest will be detained for at least the evening. Lawmakers and DeSantis insist that this is all about keeping rioters from being released to cause more trouble, but the wording of the law is much looser than that, and it will almost certainly be used to detain people overnight who are not, in fact, engaging in violent behavior.

Florida’s chapter of the American Civil Liberties Union noted Thursday how the law’s wording is prone to abuse: “By redefining ‘rioting,’ the bill grants police officers broad discretion in deciding who could be arrested and charged with a third-degree felony at a protest and fails to provide protection for people who have not engaged in any disorderly and violent conduct. In Florida, a felony charge strips people of their voting rights.”

Some of the worst parts of the bill have nothing to do with rioting at all. It’s absolutely absurd, and certainly a violation of separation of powers in Florida, for the governor’s office to attempt to seize control of budget allocation for municipal police department at the request of the state attorney who works the area. It’s literally the executive branch attempting to seize control of the funding of executive branch activities.

The “cyberintimidation by publication” component essentially gives government officials a “heckler’s veto” over the publication of critical information about them online and encouragement for public reaction by claiming it has created a “reasonable fear of bodily harm.” It will most certainly be used by law enforcement officers to attempt to force censorship of images and videos of them online engaging in what people might see as violent or abusive behavior.

Maybe it’s my distaste of government civil immunity talking, but the part of H.B. 1 that strips immunity when cities don’t take action against riots seems defensible. Note that this doesn’t guarantee that somebody will win a lawsuit when they accuse a government or its police department of not protecting them or their property from rioters. It simply allows the lawsuit to actually happen.

Similarly, the part of the law that provides a defense in civil suits involving rioters would be supportable but for the fact that the bill itself plays around with the definition of what a rioter is. The description within the bill of a rioter is somebody who “willfully participates” in a public disturbance involving people who are acting with the common intent to engage in violent conduct that threatens property or the public. It doesn’t actually require that the person participate in the actual violent conduct to be classified as a rioter, just the disturbance itself.

And that’s why people are worrying that this would allow a defense against civil lawsuits for running over protesters. In this scenario, it’s the government deciding who to classify as a protester and as a rioter, and the vagueness is concerning. As part of the bill, the defense only needs to establish the participant was part of a riot based on a preponderance of the evidence. They don’t even need to be convicted (though conviction can also be used as evidence).

DeSantis will sign the bill. He praised it in a statement: “This legislation strikes the appropriate balance of safeguarding every Floridian’s constitutional right to peacefully assemble, while ensuring that those who hide behind peaceful protest to cause violence in our communities will be punished. Further, this legislation ensures that no community in the state engages in defunding of their police.”

A small-government Republican, DeSantis is not.

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