Category: reason

What’s a home worth?

It’s a tough question, and it’s one that Vicki Baker found herself trying to answer the hard way after a SWAT team mutilated her house in McKinney, Texas, during a standoff with a fugitive who had barricaded himself inside.

“For two days, I couldn’t quit crying,” Baker says. “The tear gas was everywhere. It was on the walls. It was on the floors. It was on the furniture. It was everywhere.”

Prior to the SWAT showdown, Baker’s daughter, Deanna, gave officers a key to the home, as well as a garage door opener and the back gate code. Agents took a different route. They smashed six windows. Instead of using the code, they maneuvered a BearCat armored vehicle through her fencing. Instead of using the clicker, they detonated explosives to blow off the garage entryway. And instead of using the key, they drove right on through her front door.

“It was after the insurance company told me there was no coverage that I really fell apart,” Baker adds. The company furnished a clause that protects them from liability in cases where the government is at fault for the damage. The city demurred: There would be no coverage. She was not a victim, according to the state.

“I’ve lost everything,” Baker says. “I’ve lost my chance to sell my house. I’ve lost my chance to retire without fear of how I’m going to make my regular bills.”

On July 25, 2020, news broke that a man named Wesley Little had kidnapped a 15-year-old girl. He arrived at Baker’s home, where he had done some work as a handyman about a year and a half prior; Baker had terminated him after Deanna said she felt something wasn’t right.

It was Deanna who answered the door that day. Having seen the news reports, and frightened for her safety, she let him in, left the home, and called the police. Little eventually released the girl unharmed but refused to leave himself, which is when the SWAT team swooped in. After destroying the house, they found Little inside, dead from suicide.

Baker had recently located a buyer for the home. The 76-year-old, who is battling stage 3 breast cancer, was set to begin retirement with her husband in Montana. Predictably, the sale fell through, as the house was no longer livable. She spent about $50,000 making repairs, a chunk of which she took from her retirement, though some things couldn’t be remedied: An antique doll collection from her late mother, which she hoped to gift to her granddaughter, was left covered in tear gas, and her daughter’s dog was rendered deaf and blind. Baker eventually landed another buyer—for significantly less than she did prior to police declaring war on the structure.

Over the last year, debates around law enforcement accountability and immunity have rapidly moved from little-known doctrines to dinner-table conversations. The legal concept central in Baker’s case has yet to gain traction in the mainstream dialogue, however: The Takings Clause of the Fifth Amendment requires that the public be compensated for property taken or destroyed by the government, but some lower courts have bafflingly exempted state actions from that if they were pursued under “police power.”

A lawsuit filed by the Institute for Justice (IJ) in the U.S. District Court for the Eastern District of Texas aims to clarify that.

“They’re forcing unlucky individuals to shoulder the burden of doing something that’s good for society,” says Jeffrey Redfern, an attorney with IJ. “Taking dangerous criminals off the street is good for society. If the city decides that it really needs to put a road through your house, that might be the right call. It might be something the community really needs. But that doesn’t justify making one unlucky owner bear the cost of doing something that’s good for everyone.”

Whether or not the police needed to attack the modest McKinney home with brute militaristic force perhaps more appropriate for a battlefield is indeed an important topic for debate. “I have a very high regard for the police,” says Baker, who identifies as a Christian conservative. “I’m very grateful for them.” But she remains skeptical of their tactics that day: “I thought it was a bit over the top,” she adds. She tells me she in no way supports calls to “defund the police” but she sees a need for reform.

Baker is not the first to lose her home to SWAT tactics gone awry, nor is this the first such case picked up by IJ. A SWAT team in 2015 totaled a $580,000 house in Greenwood Village, Colorado, while in pursuit of a shoplifter who had broken into the residence. The city handed the family a cool $5,000, and the Supreme Court subsequently declined to hear the case. And just last summer, police in Charlotte, North Carolina, decimated a home as they tried to coax a suspect out. The problem: He wasn’t even there.

I ask Baker how she’d like to see this nightmare end—what exactly would bring closure? “I’d like to get some of this money back,” she says. “I would. But the main reason I wanted to do this, and go through whatever it took to do it, was to set precedent.”

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

New on the Bound By Oath podcast: Early one morning in 1958, Chicago police burst into the home of an innocent family with guns drawn and without a warrant. On this episode, plaintiffs from the landmark case of Monroe v. Pape tell us about the raid that changed history.

New on the Short Circuit podcast: Special guest Tiffany Wright of Howard University’s Civil Rights Clinic drops by to talk police disciplinary records in New York and suspicionless smartphone searches at the border.

• In 2003, a Massachusetts man was convicted of being a felon in possession of a firearm. But wait a minute. The assistant U.S. attorney who signed the indictment hadn’t paid his bar dues, so his law license was suspended. Will the First Circuit retroactively throw out the whole prosecution? What do you think, anyone who has ever litigated against the government?
• Allegation: Man wakes up gasping for air. He’s turning blue, biting his tongue, and urinating. His wife calls 911. When Charlton, Mass. police arrive, they order the man to stop moving. Instead, he stumbles around in his underwear asking “What did I do?” So they shove him to the ground and kneel on his back (and then leglock him, and then handcuff him). He ends up with a seizure diagnosis and a fractured spine. First Circuit: Qualified immunity for the shove. But there might be some recovery for the kneeling (or for the shove under other legal theories).
• Lawyer representing indigenous Ecuadorians sues Chevron for environmental damage, secures multi-billion award. Uh oh! He did it by bribing the judge a half million dollars, among other shenanigans. Following a RICO suit in the United States, the plaintiff’s lawyer is prohibited from profiting from the Ecuadorian judgment. Does this include raising money by selling interest in the fraudulently obtained judgment? Second Circuit: It does, but we weren’t sufficiently clear about that the first time around, so don’t do it again. Dissent: We were totally clear about that. The civil-contempt ruling should stand.
• In March 2020, Congress’s Paycheck Protection Program authorized the Small Business Administration (SBA) to guarantee favorable loans to certain businesses affected by COVID-19. SBA: Businesses presenting “live performances of a prurient sexual nature” are excluded from the program. Strip club: That violates the underlying statute and the First and Fifth Amendments. District court: You’re probably wrong, so no preliminary injunction for you. Second Circuit: Agreed.
• Clarkstown, N.Y. officers stop and frisk man walking out of store with his two daughters; one officer recognized the man and, based on nothing more than a hunch, “believed that there might be” an outstanding warrant for him. Officers admitted, however, that they could point to no actual facts to believe he had committed any crime, and in fact the man had no outstanding warrants and the frisk found no weapons. Man sues, pro se. Police argue for qualified immunity as there’s no clearly established law that this is wrong. Second Circuit: This was a “paradigmatic violation of the Fourth Amendment.” QI denied.
• South Carolina fourth-grader writes an essay about LGBTQ equality for inclusion in a booklet of essays to be kept in the classroom and sent home with students. Principal vetoes inclusion of the essay as not age-appropriate, then relents, but student’s mother says she no longer wants essay reprinted in booklet. Instead, she sues, alleging that the principal violated the First Amendment by providing “no adequate explanation for holding that [the student’s] essay had no valid legitimate educational purpose.” Fourth Circuit: “This argument, like most of the arguments advanced by Appellant, completely misses the point.”
• Decades ago, a 20-something Virginia nanny had sex, once, with a 15-year-old boy. Now in her 50s, she’s suing pseudonymously as “Hester Prynne,” challenging “Orwellian” features of Virginia’s sex offender registry: she must submit fingerprints every 90 days, notify the state of new email addresses within 30 minutes, face unannounced home visits from a permanent investigator, avoid schools while kids are around, never drive for Uber or Lyft, notify federal and international law enforcement when traveling in other countries, give up the possibility of adoption, and more. Fourth Circuit: And since those restrictions didn’t exist at the time of the crime, there might be an ex post facto problem. (The opinion—22 pages long, accompanied by a 35-page partial dissent, and splitting with an earlier unpublished decision of the same court—is unpublished. (And even more parenthetically, legal-writing friends who gasped at the Supreme Court’s first use of the “(cleaned up)” parenthetical last week may find this footnote, from Judge Agee’s dissent, notable: “I have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted.”))
• Prosecutors in Texas murder trial use a spreadsheet listing potential jurors’ races and bolding the names of black people. This results in a jury of 11 white jurors and one black juror, which convicts and sentences to death a black man. But the federal courts cannot consider that spreadsheet, says the Fifth Circuit, as it was not included in the state-court appeals. (No matter that prosecutors did not hand it over until after his state-court appeals were done.) Besides, the spreadsheet seems fine.
• Industry trade associations challenge a federal regulation limiting concentrations of phthalates—chemicals that have been shown in some studies to interfere with normal development of the male reproductive system—in children’s toys. Fifth Circuit: The agency violated the APA when it failed to offer a second opportunity to comment after new scientific data led it to change its justification for the rule, and the agency also failed to conduct an adequate cost benefit analysis. However, we will leave the rule in place while we give the agency an opportunity to remedy those defects.
• If esoteric questions of diversity jurisdiction, appellate jurisdiction, and Burford abstention strike you as appealing (appealing!), then step up for this Fifth Circuit fed-courts funhouse.
• Pro-tip: When a court dismisses your arguments as “unpersuasive at best, and nearly incoherent at worst,” you are probably going to lose your case. Relatedly, the Sixth Circuit would like this law firm to show cause why it should not be sanctioned after it sued three judges on a state appellate panel for allegedly making false statements in a judicial opinion.
• Turns out that the transmissibility of COVID-19 has no connection to whether your large gathering consists of lockdown protestors or BLM protestors. Relatedly, the governor of Kentucky committed a “textbook” First Amendment violation when he threatened the former with prosecution, while inviting and speaking to the latter. But, as the Sixth Circuit notes, the case is moot on appeal, because the governor rescinded the COVID-19 restrictions.
• A Cleveland-area postal-service employee stole gift cards out of en route mail. All told, she stole a lot of cards averaging about $35 each—a total value around $47k. So the “loss,” for the Sentencing Guidelines, would be about $47k, right? The feds: Not at all. Stolen gift cards are “unauthorized access devices” like stolen credit cards, and the Guidelines commentary says the “loss” per unauthorized access device should be at least $500. So the “loss” is more like $750k. Sixth Circuit: You keep using that word. We do not think it means what you think it means.
• Federal prosecutors charge members of a white supremacy group—who travelled to political rallies planning violent confrontations—with violations of the Anti-Riot Act. Ninth Circuit: The Act is unconstitutionally overbroad, as it covers speech merely intended to encourage or promote a riot, but we can cure the defect by striking a few unconstitutional words from the statute. Dissent: I agree, but I would strike fewer of those words. (We previously covered a similar Fourth Circuit ruling on the podcast.)
• Would you believe that dry land can be categorized as “waters of the United States,” and thus subject to regulation under the Clean Water Act? Ninth Circuit: Indeed! But to secure a conviction the government had to prove the defendant knew the land was “water.” The district court should hold another trial, and this time it should tell the jury about the knowledge requirement. Dissent: The government should have to prove the defendant knew he was discharging a pollutant into “waters of the United States,” and not just any “water.”
• Exemption 5 to the Freedom of Information Act excludes certain intra-agency memos from production if they would not be available by law to a party in litigation with the agency. Does this include memos produced by outside consultants for the FAA? Ninth Circuit (en banc): When the consultant is acting as the functional equivalent of the agency, then yes. But the FAA hasn’t provided a good enough explanation of how it searched for other responsive documents, so back down it goes.
• The town of Gilbert, Ariz. is justly famous not only for its sign code, but for happy hour at the nearby Mad Dog Saloon. (“Great happy hour,” Heather R. reports credibly on Yelp.) On the evening of May 5, 2016, a local man leaves the saloon and catches a police officer’s attention by swerving his vehicle. Ignoring the police lights, he drives home and into his garage, where he refuses at length to leave the vehicle and insists, “No, I’m not under arrest.” The police release a K-9, which bites the man for almost a minute. Man sues. Ninth Circuit: Qualified immunity.
• To practice law in Oregon (as in many other states) you must pay not only for a license, but also dues to the state bar association. A group of lawyers who in no way want to associate with the association say that violates their First Amendment rights. Ninth Circuit: Not your free speech rights it doesn’t. But back to the district court on whether there’s a violation of the freedom of association.
• Jailhouse informant provides the prosecution’s only direct evidence, and the defendant is convicted of a Colorado Springs, Colo. murder. Yikes! The informant recants, says his false testimony was induced by the lead detective. The convicted man seeks habeas relief, which the Tenth Circuit revives once in 2013 and again in 2018. Alas, the third time isn’t the charm, as the Tenth Circuit refuses to entertain the man’s newest arguments because he did not include them in his original habeas petition.
• A 35-week-pregnant woman—held in custody at the Metropolitan Detention Center in Bernalillo County, N.M.—goes into labor. For 30 hours, the medical contractors on site ignore and minimize her symptoms, refuse to take her to the hospital, and fail even to conduct a pelvic examination. When she finally gives birth, her child is stillborn. She sues. Qualified immunity for the medical contractors (all employees of a for-profit, multi-state corporation)? Tenth Circuit: No.
• After a young woman’s father alerted police to her illegal drug use, the woman spent four days in Duchesne County, Utah jail vomiting and exhibiting other symptoms that jail officials ascribed to a stomach bug. Without medical treatment, the young woman died of opiate withdrawal. Tenth Circuit: The jail employee who ignored the woman’s symptoms is potentially liable. But the jail’s private doctor is not, even if the doctor’s training protocols were not exactly robust. We doubt that private doctors have market power to impose training protocols on government facilities, and liability would deter doctors from working with those facilities at all.
• The Clean Water Act prohibits the discharge of pollutants into “navigable waters.” In response to rulings from the U.S. Supreme Court holding that “navigable waters” excludes wetlands that aren’t anywhere near actual navigable waters, the EPA and the Army Corps of Engineers adopt regulations consistent with that holding. Colorado sues, and a district court preliminarily enjoins the new regulations. Tenth Circuit: Which it should not have done. Colorado failed to demonstrate that it would be irreparably harmed without an injunction, which is sort of important.

Queens resident Joe Corsini is, like many New Yorkers, a pigeon keeper. He decided to build a small pigeon coop on the roof of his home. Shortly after it went up, he received $3,000 in fines from the city and an order that he get a permit—something he hadn’t realized the small structure needed. He hired an architect and tried to bring the coop into compliance. But the city made a series of unreasonable demands until Joe finally gave up and took it down. While engaging with the city, he continued to receive violations for the coop, ultimately amassing approximately $11,000 in fines. Some were never reviewable by a neutral adjudicator—he simply had to pay. Others were subject to stacked-deck administrative hearings. Due process requires more. So Joe decided to fight back with IJ in a federal case challenging this abusive system. Click here to read more.

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Kentucky lawmakers advanced a bill Thursday that would make insulting or provoking a police officer a crime. 

The legislation, Senate Bill 211, passed out of a Senate committee by a 7-3 vote, according to the Louisville Courier-Journal. The bill would make it a misdemeanor offense for someone to taunt “a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”

The Kentucky bill is one of several introduced by state legislatures around the country aiming to crack down on anti-police protests following the national unrest over the police killing of George Floyd last year. In Florida, for example, Republican Gov. Ron DeSantis introduced legislation last September to enhance criminal penalties for protest-related crimes and block state funding to cities that cut their police budgets.

“In these riots, you see people getting up in officers’ faces, yelling in their ears, doing everything they can to provoke a violent response,” the Kentucky bill’s sponsor, state Sen. Danny Carroll (R–Benton), told The Courier-Journal.

“This is not about lawful protest in any way, shape, form or fashion,” Carroll continued. “This country was built on lawful protest, and it’s something that we must maintain—our citizens’ right to do so. What this deals with are those who cross the line and commit criminal acts.”

The American Civil Liberties Union of Kentucky called the legislation “an extreme bill to stifle dissent.” The law, if enacted, would no doubt be challenged on First Amendment grounds.

There’s in fact a significant body of First Amendment and Fourth Amendment case law generated by cops retaliating against people who hurt their feelings—most of it firmly upholding the right to hurl choice words or gestures at public officials.

In 2012, the U.S. Court of Appeals for the 2nd Circuit ruled in favor of a New York man who sued after he was arrested for disorderly conduct after flipping off a cop. The court held that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” (However, the 2nd Circuit would later dismiss a lawsuit by a man who was arrested after writing “fuck your shitty town bitches” on a mail-in traffic ticket.) In 2013, the U.S. Court of Appeals for the 6th Circuit, which covers Kentucky, ruled in favor of a woman who was pulled over and ticketed for flipping off an officer. The 6th Circuit first upheld the free speech right to shout “fuck you” and flip off a police officer from a moving vehicle in 1997, drawing on the Supreme Court’s famous 1971 decision in Cohen v. California, which upheld the right of a man to wear a jacket that said “fuck the draft” into a courthouse.

Despite this, similar cases keep popping up. In 2019, an Iowa man won a lawsuit after he was charged with third-degree harassment for posting on Facebook that a sheriff’s deputy was a “stupid sum bitch” and “butthurt.” Just last month, the U.S. Court of Appeals for the 8th Circuit denied qualified immunity to a Minnesota police officer who pulled over and arrested a man for flipping her off.

The Kentucky legislation is ill-conceived, probably unconstitutional, and would simply give police another tool, in addition to old standbys such as obstruction of justice and disorderly conduct, to ticket people for what’s known as “contempt of cop.” This has already played out in other states, such as Pennsylvania, where The Appeal reported in 2018 that police were using hate crime laws to charge people with “ethnic intimidation” for insulting them. Such prosecutions have no place in a country of citizens, rather than subjects.

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At each of Whole Foods Market’s more than 500 American stores, managers ask every team member—from the meat clerks to the baristas to the janitorial staff—to orient their work around a shared purpose, which is to make natural and healthy food widely available.  This goal, according to Whole Foods CEO and co-founder John Mackey, is in no way inconsistent with maximizing shareholder value, often seen as the essential purpose of a corporation. 

As Mackey writes in his new book about leadership, “At the heart of Conscious Capitalism is a radical refutation of the negative perceptions of business, and a rejection of the split between purpose and profit.” Mackey believes that this is the key to defending capitalism against those who condemn it for having no inspiring ideals. 

At a Reason-sponsored Soho Forum debate held on February 18, 2020, Ayn Rand Institute Chairman of the Board Yaron Brook challenged this view. He believes that maximizing profit should always be the primary goal of companies, and it’s that focus which explains why capitalism has lifted the broad masses out of poverty. That’s the message businesses should be emphasizing, he said, and it’s inspiring enough.

The debate, which played out in front of 200 people in The Villages, Florida, was moderated by Soho Forum Director Gene Epstein. It was an Oxford-style debate, meaning the winner is the person who moves the most people in his direction.

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“The best vaccine for you is the first one you can get,” advise most public health experts. Michigan Department of Health & Human Services spokesperson Lynn Sutfin concurs: “Michiganders should make the choice to receive any vaccine that becomes available to them.”

Detroit Mayor Mike Duggan apparently disagrees.

The Detroit Free Press reports that the mayor declined to accept a shipment of 6,200 doses of the Johnson & Johnson one-shot vaccine. Why? At a press conference on Tuesday, the mayor asserted, “Johnson & Johnson is a very good vaccine. Moderna and Pfizer are the best. And I am going to do everything I can to make sure the residents of the city of Detroit get the best.”

What does the mayor mean by “best”? Duggan stated, “The Moderna and Pfizer vaccines are 95% effective if you get two shots. Johnson & Johnson is one shot, which is nicer, but it’s about 67% effective.”

Actually, in the United States arm of the Johnson & Johnson (J&J) clinical trial, the vaccine’s ability to prevent moderate to severe infection was 72 percent and it is 85 percent effective at preventing severe disease. In addition, the J&J vaccine has been shown to be effective against the new, more contagious COVID-19 variants that are now spreading across the country. And it is likely that many citizens would prefer the convenience of getting a one-and-done J&J shot as opposed to waiting nearly a month to get a second Moderna or Pfizer/BioNTech shot.

But more importantly, all three vaccines are essentially 100 percent effective at preventing hospitalizations and deaths from COVID-19. Protecting Detroit’s citizens against those severe outcomes by taking advantage of available vaccine doses would seem to be a worthy endeavor. After all, a slower rate of vaccination means more lives lost.

It bears mentioning that Detroit will not receive additional doses of the Moderna and Pfizer/BioNTech vaccines to replace the J&J doses it rejected.

As Crain’s Detroit Business points out, the city lags behind other local jurisdictions and the state in the percentage of citizens already vaccinated. In Detroit, 11 percent of adults have been vaccinated, while that figure is 16.5 percent for neighboring Macomb County; 19.1 percent for Oakland County; 18.6 percent for outer Wayne County; and 18.5 percent for Michigan as a whole. Possibly owing to Duggan’s decision, both Macomb County and Oakland County happily received more doses of the J&J vaccine than they were expecting. It’s worth noting that the median household incomes for Macomb County, Oakland County, and Detroit are $63,000, $80,000, and $31,000, respectively, meaning the mayor’s rejection of the J&J vaccine will impact disadvantaged populations.

Misleading Americans into thinking that the J&J vaccine is somehow “second-class” could also set back the goal of reaching herd immunity. That involves vaccinating as many Americans as quickly as possible in order to get to the point where the virus cannot circulate widely throughout the population.

Duggan says that the city can meet the current demand for vaccinations with its current allocation of the Moderna and Pfizer/BioNTech vaccines. Demand, however, is set to surge in the next few weeks as Michigan begins to offer vaccinations to people over age 50. Detroiters waiting longer for vaccination appointments later this month may disagree with what the mayor thinks is “best” for them.

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